PLS on BC Corrections: Use of Solitary Confinement

On Thursday, January 16, 2014, Prisoners’ Legal Services participated in a roundtable discussion regarding the safety of staff, prisoners and the community in BC, hosted by MLA Thrones, the Parliamentary Secretary to the Minister of Justice and Attorney General for BC Corrections.Our letter to Mr. Throness outlines the issues that Prisoners’ Legal Services has identified in relation to BC Corrections, including our recommendations for improving safety.

Over the next couple of weeks, we will post excerpts from our letter, starting with the section on solitary confinement.

Use of segregation, separate confinement and Enhanced Supervision Placement

(a)   Legislation and policy

Segregation, separate confinement and Enhanced Supervision Placement (“ESP”) involve solitary confinement in a cell, usually for 23 hours per day, to punish prisoners, to provide for their protection or the protection of others, or for the purpose of behaviour modification.

Section 27(1)(d) of the Correction Act Regulation, B.C. Reg. 58/2005, allows prisoners to be held in segregation for up to 30 consecutive days as punishment for breaching an institutional rule (or up to 45 consecutive days for more than one breach).

Sections 17 and 18 of the Correction Act Regulation allow the person in charge to order a prisoner to be held in separate confinement for safety reasons. A new order must be made every 15 days, but there are no legislative or policy limits on how long a prisoner may be held in separate confinement.

No legislation governs the use of ESP. ESP is set out in the BC Corrections Adult Custody Policy Manual and each institution has its own ESP procedures. ESP involves keeping prisoners under behavioural contracts in solitary confinement for extended periods of time. Prisoners are expected to graduate to lower levels of ESP when their behaviour improves, which involves increasing amounts of time out of the cell. Provincial institutions generally keep prisoners at stage 1 of ESP for three weeks. Stage 1 involves isolating the prisoner in a cell for 23 hours per day.

Subsection 17(1)(a)(vi) of the Correction Act Regulation allows a prisoner to be separately confined if the person in charge reasonably believes that the prisoner “suffers from a mental illness”. Adult Custody Policy 4.8.3 indicates that “[a]ny inmate may be internally classified to an enhanced supervision placement (ESP) when identified as high risk due to: Mental or physical disorders…” In our submission, these provisions are discriminatory under human rights law on the ground of physical or mental disability.

(b)   Literature and Case Law Review

On August 5, 2011, the Special Rapporteur of the United Nations Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, issued a report on solitary confinement. Mr. Méndez reviews the work of experts internationally who conclude that negative health effects can surface after only a few days in solitary confinement. Negative health effects worsen the longer an individual is kept in isolation. He points to research that shows solitary confinement causes “psychotic disturbances” or “prison psychoses” with symptoms including anxiety, depression, anger, cognitive disturbances, perceptual distortions, paranoia and psychosis, and self-harm.

Mr. Méndez warns that some of the effects of solitary confinement are long-term, including continued sleep disturbances, depression, anxiety, phobias, emotional dependence, confusion, impaired memory and concentration. He notes “lasting personality changes often leave individuals formerly held in solitary confinement socially impoverished and withdrawn, subtly angry and fearful when forced into social interaction” that impairs a person’s ability to readjust to prison life outside of segregation and makes successful community reintegration difficult. He asserts that “long periods of isolation do not aid the rehabilitation or re-socialization of detainees” which is contrary to the essential goals of rehabilitation and reintegration of offenders into society. He calls for the absolute prohibition of solitary confinement for more than 15 days.

Mr. Méndez also discusses research indicating that solitary confinement often severely exacerbates previously existing mental conditions, resulting in dramatic deterioration in isolation and can result in self-harm or suicide. He calls for the abolition of solitary confinement for people with mental disabilities.

These concerns are illustrated by the Canadian case of Tekano v. Canada (Attorney General), 2010 FC 818. This federal prisoner was held in long-term solitary confinement which exacerbated his Post Traumatic Stress Disorder and Attention Deficit Hyperactive Disorder to the point that he engaged in severe self-harm. The Federal Court refers to a medical expert who describes segregation as being “akin to mental torture” for a prisoner who suffers from Attention Deficit Hyperactive Disorder.

In Mr. Méndez’ opinion, solitary confinement cannot be justified for the purpose of punishment as it “imposes severe mental pain and suffering beyond any reasonable retribution for criminal behaviour” constituting a violation of the Convention against Torture and the International Covenant on Civil and Political Rights.

Mr. Méndez recommends that “solitary confinement should be used only in very exceptional circumstances, as a last resort, for as short a time as possible” and reviews of solitary confinement should be conducted in good faith by an independent body. He recommends that prisoners in solitary confinement be monitored by independent medical personnel with specialized training in psychology.

In Bacon v. Surrey Pretrial Services Centre, 2010 BCSC 805, the Honourable Mr. Justice McEwan of the BC Supreme Court considered BC Corrections’ use of solitary confinement on prisoner James Bacon. In that case, Professor of Psychology Craig Haney provides the opinion that the conditions in segregation at the Surrey Pretrial Services Centre (“SPSC”) were similar to the most severe American solitary or “supermax” facilities. He describes the segregation unit at SPSC as “truly horrendous”.

Professor Haney is critical of SPSC for failing to provide adequate medical and psychological monitoring of prisoners, and for failing to provide specialized training to staff on the psychological effects of long-term isolation. (Bacon, ¶ 170).

Mr. Justice McEwan found that BC Corrections’ placement of Mr. Bacon in solitary confinement constituted cruel and unusual treatment under s. 12 of the Charter (Bacon, ¶ 353). He also found that BC Corrections violated Mr. Bacon’s rights under s. 7 of the Charter. He found SPSC’s 15-day reviews for separate confinement violated procedural fairness and natural justice as they were prepared without a hearing and without providing Mr. Bacon with an opportunity to respond, they were based on no information or information that was not assessed and no adequate reasons were given (Bacon, ¶ 109, 352 and 354).

Mr. Justice McEwan refers to the Honourable Louise Arbour, Commission of Inquiry into Certain Events at the Prison for Women in Kingston, 1996 (the “Arbour Report”). The Arbour Report warns that segregation often leads prisoners to become desperate for any means to assert some form of control over their lives, which results in crises including violence, suicide and self-injury. Madam Justice Arbour found that the indefiniteness of the isolation had the most demoralizing effect on prisoners.

Mr. Justice McEwan rejects the argument that solitary confinement and the associated deprivations are necessary in order to keep staff and other prisoners safe, or necessary in light of limited resources. He finds this to be a “manifestly false dichotomy” that ignores a range of alternative ameliorative options that are available. (Bacon, at ¶ 296.)

The Court in Bacon is critical of the mentality within BC Corrections that “all is denied that is not granted in the discretion of the prison administration”. This mentality is demonstrated by the use of the word “privileges” to describe the basic rights listed under s. 2 of the Correction Act Regulation, such as “regular meals of the type ordinarily served to inmates” and “clothing, a mattress and bedding”. He notes that this mentality is contrary to the concept that prisoners retain their rights other than those that are necessarily taken away. Mr. Justice McEwan finds this to be “a fundamental affront to the concept of human dignity”. He states:

 On the level of “pens” and “inhalers” or the placement of television sets, it is not a question of catering to trivial complaints, but of recognizing the psychologically corrosive effect that having no autonomy over even the smallest things can have on a person. (Bacon at ¶ 315.)

 The Court in Bacon found that BC Corrections ignored, misinterpreted or misapplied the Correction Act, SBC 2004, c 46, the Correction Act Regulation and the Adult Custody Policy Manual to the extent that it was impossible to adjudicate on the constitutionality of the legislation (Bacon at ¶ 355). The failure of BC Corrections to comply with its own legislation lends support to a call for the implementation of an independent review process for continuing solitary confinement under s. 18 of the Correction Act Regulations.

Segregation Is Our Prison Within The Prison is a report produced for the Correctional Service of Canada by Dr. Margo Rivera (May 4, 2010) (the “Rivera Report”). The Rivera Report makes a number of practical recommendations for reform of the federal prison segregation system with an emphasis on the segregation of prisoners with mental health concerns. Many of Dr. Rivera’s recommendations would also improve the safety of prisoners, staff and the community if implemented by BC Corrections.

Dr. Rivera recommends that segregation be used only when credible evidence of danger cannot be managed in any other way. She recommends that mediation be used to address aggressive behaviour in place of segregation. Dr. Rivera emphasizes the importance of ensuring a high quality of staff who work in segregation units who are trained in conflict-diffusion skills and who use professional, respectful, encouraging and empowering communication with prisoners in segregation. She advocates for more opportunities for prisoners to leave the unit for social interactions, more access to programming and education in segregation, access to television in segregation to decrease isolation and increase stimulation, and implementation of Behavioural Counsellors to create behaviour-changing programs similar to the way Dialectical Behavioural Therapy has been used in women’s institutions.

Dr. Rivera further recommends that rehabilitation, special-needs or complex needs units be established in every institution to decrease the number of vulnerable prisoners placed in segregation, and that intermediate care programs be established for prisoners with chronic psychiatric problems, personality disorders, brain injury, low cognitive functioning or who engage in self-harm. She also recommends improving access to Aboriginal services in segregation.

(c)    Observations of Prisoners’ Legal Services

Prisoners’ Legal Services receives a high volume of calls from provincial prisoners who, in our view, have been denied their rights under s. 17 and 18 of the Correction Act Regulation to adequate reasons for their separate confinement, notice of the period of time they will be held in separate confinement and the reason for the length of time. Our clients are never provided an in-person hearing and are rarely provided notice of their right to make submissions regarding their separate confinement. In our experience, reasons for continuing separate confinement under s. 18 of the Correction Act Regulation most often do not constitute reasons under law, but are merely a restatement of the legislative criteria. The institutions do not provide enough information for a prisoner to be able to respond to allegations.

Whenever we have referred a client to counsel to bring a habeas corpus application in BC Supreme Court, the client is released from separate confinement, making the application moot. While this is a good result for the individual client at the particular moment, this allows for the institutions to continue to routinely violate the procedural fairness protections of the Correction Act Regulation and the Charter without any judicial oversight.

Prisoners’ Legal Services receives many complaints from prisoners placed to ESP. In our view, ESP is separate confinement by another name and the legislative procedural fairness protections that apply to separate confinement must also apply to ESP placement. Our clients are rarely afforded these protections. The reasons provided to prisoners for placement in ESP take the form of a “case plan” and are minimal, non-descriptive and seem to be cut and pasted week-to-week. Although by policy case plan reviews are to be conducted on a weekly basis and prisoners are to be afforded an opportunity to make submissions, our clients report that they often are not aware of the right to make representations or given a deadline to make submissions. In general, the first time a prisoner has notice of the review is when the case plan indicating the decision to maintain ESP placement is slid under a prisoner’s door. The prisoner might make a complaint to the person in charge under s. 37 of the Correction Act Regulation, but this complaint is not considered or referred to in the following week’s decision to maintain ESP placement.

Prisoners’ Legal Services’ clients often report that they are sentenced to a term of segregation after being found guilty of a disciplinary charge, and are then held under s. 18 of the Correction Act Regulation after the segregation term expires, based on the same behaviour that led to the charge. In cases where a prisoner is found not guilty, or the conviction is overturned on appeal by the Investigation and Standards Office, he or she is often put in separate confinement based on the allegation raised in the charge. These clients are often then moved to ESP, where they can only graduate to lesser deprivations of liberty if they are able to improve their behaviour. For prisoners who face difficulties with their behaviour as a result of long term isolation or because of pre-existing mental disabilities, it is often impossible for them to improve their behaviour long enough to get out of this spiral of isolation. These clients may be transferred for a “fresh start” at another institution but inevitably will be placed on s. 17 and 18 upon arrival at the new institution. We have clients who have spent months, and sometimes years, in almost continual isolation within BC Corrections facilities. One of our clients, who had no pre-existing diagnosed mental disorder, was held in isolation so long that he had difficulty speaking upon his release.

It is clear from the experts cited in the above referenced reports and case law that it is dangerous to the community to release prisoners from solitary confinement directly to the streets. Prisoners who suffer the long term effects of isolation, including fearfulness and anger, have not been served well by BC Corrections in the goal of rehabilitation and reintegration. The practice of holding prisoners in solitary confinement is contrary to BC Corrections’ mission statement of reducing reoffending and protecting communities, which can only happen if prisoners are able to rehabilitate and reintegrate successfully into society upon release.

(d)   Recommendations

Prisoners’ Legal Services makes the following recommendations regarding the use of segregation, separate confinement and ESP in BC provincial prisons:

1)      That prolonged separate confinement, segregation or ESP placement (more than 15 days) be prohibited.

2)      That separate confinement, segregation or ESP placement be prohibited for prisoners who are at risk of suicide or self-injury, or who suffer from mental disabilities that may be exacerbated in isolation.

3)      That the use of segregation as punishment for breaches of institutional rules be prohibited.

4)      That an independent and impartial review body be established to review separate confinement decisions under s. 18 of the Correction Act Regulation, that reviews be conducted on the basis of an oral hearing, and that the prisoner be afforded the right to be represented in person by counsel and be provided adequate written reasons.

5)      That prisoners in segregation, separate confinement and ESP be provided daily independent medical and psychological monitoring.

6)      That BC Corrections abolish the use of ESP, or significantly modify the program to exclude the use of isolation and in its place, provide effective behaviour-changing programs.

7)      That a uniform BC Corrections-wide procedure be developed for ESP to replace the individual standard operating procedures at each institution.

8)      That legislation, policy and practice be amended to ensure that prisoners with physical or mental disabilities are not discriminated against in the use of segregation, separate confinement or ESP.

9)      That prisoners in segregation, separate confinement or ESP be treated equivalently to other prisoners in all material respects, that they be provided “privileges” equivalent to those of the general population, including contact with other prisoners when possible without compromising safety, television access and the same amount of time out of their cells as other prisoners.

10)  That segregation, separate confinement and ESP unit staff be trained in conflict diffusion skills and the psychological effects of solitary confinement. Performance reviews should include functioning regarding professional, respectful, encouraging and empowering communication with prisoners. Units should be staffed according to skills rather than (lack of) seniority and a mentoring program should be implemented where staff with demonstrated excellent attitudes and communication skills with prisoners mentor less experienced staff.

11)  That prisoners in separate confinement, segregation or ESP be provided regular psychological therapeutic services and programs.

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