Criminal Law

Segregation strips people of their humanity: Zita

By Jennifer Pritchett, Associate Editor

The call from civil rights organizations for a complete ban on the segregation of inmates who are mentally ill and for indigenous offenders is a good step toward ending a practice that has known harmful effects, Toronto criminal lawyer Jessica Zita tells

“I am in complete support. Segregation is nothing if not triggering, and it's beyond me how it can be viewed as ‘helpful,’ especially when we're talking about vulnerable members of society," she says.

Zita, an associate with Hicks Adams LLP, comments after the Canadian Press reported that the Canadian Civil Liberties Association, the John Howard Society and the B.C. Civil Liberties Association called for a complete ban for mentally ill and indigenous inmates, and a hard 15-day cap to be placed on the use of solitary confinement, or "administrative segregation," as it is officially known. The groups describe the practice as akin to torture and a violation of human rights, says the article.

They are especially critical of the federal government for launching an appeal against a British Columbia Supreme Court ruling in January that struck down Canada's law on indefinite solitary confinement, it says.

In addition to the B.C. Supreme Court, the Ontario Superior Court delivered a decision saying administrative solitary confinement is inhumane and unconstitutional if longer than five days, says the news service.

Public Safety Minister Ralph Goodale's office said the appeal is necessary to gain clarity on the issue as the two court decisions arrive at some differing conclusions, the CP story states.

"While these matters remain before the court, we are reviewing all recent court judgments; we will identify any further and better ideas that need to be incorporated in our reform package. But we have been proactive from the beginning and our work is already well advanced,'' Goodale said.

Zita says she understands the desire for clarity on the law, but notes the appeal is “disappointing.”

“This statement by the federal government is a step back,” she says.

Zita, who has seen first-hand what her clients go through in provincial jails as they await trial, and based on that knowledge, she would like to see the end of the practice in all correctional facilities.

“Locking someone in a concrete box with around-the-clock fluorescent lighting and only one hour of yard time daily doesn’t communicate that our justice system is built on the presumption of innocence,” she says.

“I think segregation is an archaic method. There should be a test created to justify its use, if it's to be used at all. It should only be practised in extraordinary circumstances, for a very limited period of time.”

Solitary confinement is “animalistic,” and works against inmates and any possibility of reform, Zita says.

“It completely strips people of their humanity,” she says.

Being thrown in the "hole", as it is often called, was meant to be used as a brief punishment to address an inmate's misbehaviour, Zita notes.

“But what I'm seeing now is that the system is being abused, and inmates who are awaiting trial are being kept there indefinitely for reasons such as overcrowding, or because the jail has nowhere else to place them,” she says.

Zita believes that solitary confinement likely increases wrongful convictions in situations where an accused pleads might have otherwise gone to trial.

“It's hard to continue to fight for your innocence when a plea bargain is being offered that may result in a release from segregation,” she says.

“The way it is currently being used may also increase institutional charges, as a result of how it creates a hostile and unhealthy environment for inmates. It fails to promote mental wellness for anyone in that circumstance.”

Zita says aside from a habeas corpus application, there is not enough recourse for inmates in segregation in provincial jails.

“From what I've seen, they're at the whims of the institution,” she says.

“I would like to see more clarity on this issue. It's one that I fight daily in the form of writing letters to the institution, requesting that my clients be transferred out of segregation after being there for 20-plus days. Sadly, these letters have largely gone without response.”

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