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Solitary Confinement: Legal Torture?

Solitary confinement has been described as “the most onerous and depriving experience that the state can legally administer in Canada.”[1] The United Nations has defined solitary confinement as the detention of prisoners to their cells for 22 hours or more per day without meaningful human contact and prolonged solitary confinement as such a practice lasting for more than 15 consecutive days.[2] In Canada, we have been hesitant to call some of our penal activities ‘solitary confinement,’ choosing instead to refer to them as ‘administrative segregation’ or ‘lockdowns,’ even though these practices often meet the threshold required to be considered prolonged solitary confinement in international law.

Initially, solitary confinement was introduced as a supposedly humane alternative to corporal punishment and was backed by multiple prison reformists.[3] Solitary confinement was once considered greatly preferable to whippings or beatings, but social science and the experiences of those subject to its implementation have shown that the impacts of solitary are significant. There have been multiple studies which have indicated that solitary confinement may lead to long-lasting and, in some cases, irrevocable harm to the physical and mental health of people in prison.[4] These opinions are almost universally held by experts within this field.[5] These harms include an increased risk of suicide, self-harm, panic attacks, general anxiety, social anxiety, depression, dissociation, and an inability to reintegrate into the prison population or wider Canadian society following release. These effects are staggering and are even more acutely experienced by those with mental health issues. Further, solitary confinement disproportionately targets the most marginalized communities in Canada, most notably Indigenous individuals and people with disabilities.[6]

Some have contended that solitary confinement is a valuable and necessary practice. They argue that solitary confinement provides a safety net within the prison, where dangerous prisoners who are threats to others, whether to staff or other prisoners, can be held safely. However, when one pairs such a suggestion with research on the matter, there is a legitimate concern that solitary confinement instead increases dangers within the prison. Notably, solitary confinement has been linked multiple times to increased occurrences of violence, anti-social behaviour and recidivism, and may in fact have the opposite effect of what is desired, making prisons and society generally less safe.[7]

The United Nations have recognized the harms which may be incurred by placing an individual in solitary confinement. Rule 45 of the United Nations Standard Minimum Rules for the Treatment of Prisoners states that solitary confinement must only be used in exceptional cases as a last resort, must be subject to independent review, and must never be used against pregnant or breastfeeding women, children, or those with mental disabilities.[8] Further, Rule 43 states that prolonged or indefinite solitary confinement amounts to torture and cruel and inhumane punishment. Canada has long engaged in practices which violate these rules, and in 2015, the BCCLA took legal action, claiming the administrative segregation law (which authorized prolonged solitary confinement) infringed upon many sections of the Charter.[9]  The BC Supreme Court agreed that the administrative segregation law was unconstitutional and struck it down.[10] The BC Court of Appeal agreed.[11]

Even though the administrative segregation law was struck down as unconstitutional, prolonged solitary confinement continues to be utilized across Canada to this day.[12] Certainly, Canada is failing to uphold its international commitments and promise to its citizens to protect and defend our rights. That is why the BCCLA filed a lawsuit last fall to challenge the use of prolonged lockdowns in federal prisons. During lockdowns, people can be restricted to their cells all day, for several days or weeks at a time. Many lockdowns constitute solitary confinement under the United Nations Standard Minimum Rules for the Treatment of Prisoners.

If Canada is to claim to be a bastion for rights and fairness domestically and in the international community, we must acknowledge our practices which contravene these commitments. Solitary confinement, harmful in practice and unjust in implementation, is one such failing and must be stopped.

[1] Annual Report of the Office of the Correctional Investigator 2014-2015 at p. 31 [2014-2015 Annual Report]

[2] https://www.unodc.org/documents/justice-and-prison-reform/GA-RESOLUTION/E_ebook.pdf

[3] Howard, J. (2013). The State of the Prisons in England and Wales: With Preliminary Observations and an Account   of Some Foreign Prisons (Cambridge Library Collection – British & Irish History, 17th & 18th Centuries). Cambridge: Cambridge University Press. doi:10.1017/CBO9781139891349 (page 43)

[4] https://ajph.aphapublications.org/doi/full/10.2105/AJPH.2013.301742; https://journals-sagepub-com.proxy.lib.sfu.ca/doi/pdf/10.1177/26326663211065644; https://ajph-aphapublications-org.proxy.lib.sfu.ca/doi/pdf/10.2105%2FAJPH.2013.301742

[5] https://bccla.org/wp-content/uploads/2018/01/Judge-Leask-re-British-Columbia-Civil-Liberties-Association-v.-Canada-Attorney-General-01-17.pdf (at para 251)

[6] British Columbia Civil Liberties Association v. Canada (Attorney General), 2018 BCSC 62 (at para 467 & 493)

[7] https://bccla.org/wp-content/uploads/2018/01/Judge-Leask-re-British-Columbia-Civil-Liberties-Association-v.-Canada-Attorney-General-01-17.pdf (at para 330)

[8] https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-ebook.pdf

[9] https://bccla.org/wp-content/uploads/2018/01/Judge-Leask-re-British-Columbia-Civil-Liberties-Association-v.-Canada-Attorney-General-01-17.pdf (at para 260)

[10] British Columbia Civil Liberties Association v Canada (Attorney General), 2018 BCSC 62. 

[11] British Columbia Civil Liberties Association v. Canada (Attorney General), 2019 BCCA 228.

[12] https://johnhoward.ca/drs-doob-sprott-report/