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Why Canada’s Prisons Abuse Solitary Confinement

Last year, roughly 1,200 Canadians were placed in solitary confinement for more than 15 days.

Geraldine Malone

Adam Capay. Photo via Allison Jane Capay

Adam Capay sat in segregation in the Thunder Bay jail, 23 hours a day, for four years.

Under the glaring lights in a plexiglass cell, Capay could no longer tell night from day and was covered in scars from self harm.

Capay's plight only became clear after Ontario Human Rights Commissioner Renu Mandhane toured the jail in October and a corrections officer led her to the basement cell that housed the discarded 23-year-old Indigenous man.

While Capay's confinement is appalling, there are hundreds of other people across the country on any given day in the same situation.

Solitary confinement is only supposed to be used when other less restrictive alternatives have been exhausted or are rendered ineffective. So why has it seemingly become a standard practice?

Long-term stays are linked to an ambiguous category in corrections—administrative segregation.

While rules and regulations around segregation can differ between federal and provincial corrections, some experts say that administrative segregation is being deliberately overused and has actually become the go-to choice because it's easier to get away with.

"Sometimes you see prison administrations themselves get very creative with how they justify keeping people in segregation," Correctional Investigator of Canada Howard Sapers told VICE.

Disciplinary segregation is a punishment that can be imposed for conviction of a disciplinary offence—this can be anything from being disrespectful or disobeying an order to dealing drugs inside, but Sapers explained an inmate can also be charged for attempting to do these things.There is a hearing process within the institution and an inmate can be placed in segregation for no longer than 30 days.

Administrative segregation is supposed to be used for three reasons: the inmate's own safety, to maintain the safety of the institution or to ensure that there is no interference with an ongoing investigation. There's a few checks and balances like reviews by the institutional head and by a review board which are supposed to be done at five days, 30 days and every following 30 days but Sapers said "administrative segregation can be indefinite as long as all of those reviews go on."

"We see administrative segregation being used far more frequently than disciplinary segregation and frankly we see administrative segregation, sometimes at least in our conclusion, being used as a surrogate for punitive segregation," Sapers explained.

"It's much easier to just put somebody in administrative segregation than it is to go through the charging and the disciplinary process with punitive segregation."

These practices target Indigenous inmates at a higher rate because they are more likely to be classified as maximum security and spend more time in segregation, according to the latest Correctional Investigator of Canada report released on Oct. 31. Specifically, Indigenous women are significantly over-represented in maximum security and make up 50 percent of the segregation placements in women's prisons, although they make up only about four percent of the Canadian population.

While the number of inmates heading into solitary confinement federally has decreased over the past two years, it certainly hasn't disappeared. The Globe and Mail reported that "of all inmates released from segregation in the 2015-16 fiscal year" 246 had spent more than 120 days in isolation, although that's a drop from 498 the year before.

It's not time to pop the cork on the congratulatory champagne just yet when, according to United Nations, segregation placements longer than 15 days can be considered "torture or other cruel, inhuman or degrading treatment or punishment."

There's another problem. That only shows the numbers of inmates in for the long-haul of segregation in federal institutions. Once provincial numbers come in it's a much larger problem.

In Ontario alone, from October to December 2015, there were roughly 1,383 inmates placed in segregation for 15 days or longer, according to the data provided to the Ontario Human Rights Commission by the Ministry of Community Safety and Correctional Services. There were 115 inmates placed in segregation for three to six months, 61 inmates for six months to a year and 12 inmates in segregation for over a year.

In the three month period, of the 6,067 total inmates in solitary confinement, only 4.3 per cent were in disciplinary segregation. The other 95.7 per cent were in administrative segregation and the main reason was to protect the inmate.

"The extensive use of administrative segregation strongly suggests that segregation is not being used as a last resort, but rather, as a routine management strategy across Ontario's correctional facilities," the Ontario Human Rights Commission wrote in their report.

"It cannot be acceptable for the most restrictive and depriving form of incarceration legally administered in Canada—one which is otherwise imposed as a punishment—to be the default approach in situations where prisoners are sick or in need of protection."

This is the system that Capay landed in at Thunder Bay Jail.

"Irrespective of what's written on paper, there's many examples of prison agencies and prison officials not following the rule of the laws as it's written," Justin Piché, an associate professor in the Department of Criminology the University of Ottawa, told VICE.

"To be honest, I think that an ideal way to approach this, if we do see this as a form of sensory deprivation and torture, is to not do it."

While some experts say putting limit on segregation will stop other people like Capay from getting left in basements, Piché said it will leave "wiggle room" for the exploitative practices to continue.

"Officials [will] find loopholes to continue what they've been doing," he said.

"In light of the fact that setting limits still allows room for abuses and people to go around policies, I think we need to adopt a position that this is something that we just need to get rid of. I don't trust prison officials and prison staff to respect limits even if we impose them and make things more restrictive. They can find ways to go around those."

After Capay's story got out, Ontario's corrections minister said the province's goal was to use segregation as a last resort and promised an external review of the whole system. Last November, in his public mandate letter to the justice minister, Prime Minister Justin Trudeau called for a review of the federal criminal justice system which should include the restriction of the use of solitary confinement.

But those promises probably don't mean much to the hundreds of inmates across the country sitting in small cells, right now, in indefinite administrative segregation.

Follow Geraldine Malone on Twitter.

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