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BCCLA settles solitary confinement lawsuit against federal government

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Vancouver: The B.C. Civil Liberties Association announced today that it has settled a lawsuit against the Government of Canada that the BCCLA filed on behalf of BobbyLee Worm, a 26 year-old Aboriginal woman from Saskatchewan who was held in solitary confinement for more than three and a half years while in federal prison. The lawsuit charged that Ms. Worm was treated illegally and inhumanely.

“We are overjoyed that we have reached a settlement for BobbyLee. BobbyLee feels this makes real headway in addressing the concerns she raised about the abuse she suffered,” said Grace Pastine, BCCLA Litigation Director. “This lawsuit has helped draw attention to the unconstitutional practice of long-term solitary confinement. We’ll continue to challenge the government’s use of this illegal practice. This settlement is a step in the right direction toward treating prisoners humanely and giving them a real chance to successfully re-enter society when they’re released.”

The terms of the government’s release do not allow Ms. Worm to disclose the terms of the settlement but Ms. Worm is pleased with the outcome of the process and the settlement.

Ms. Worm, who experienced extreme physical, emotional and sexual abuse throughout her childhood, was 19 years-old and a first time offender when she entered prison. During her years in solitary confinement, Ms. Worm would spend up to 23 hours a day in a cell 10 by 8 feet in size. Often the only human contact she had was through the food slot in the door of her cell.

Prison officials placed Ms. Worm on the Management Protocol, a program for high-risk women prisoners that allowed prison officials to isolate women in solitary confinement for months and years at a time. The vast majority of the women placed on the program were Aboriginal. Women had to earn their way out of solitary confinement and could be returned to it for virtually any reason, including negative “emotional” behaviour, such as swearing or being disrespectful to staff.

Prison officials released Ms. Worm from the program two days after the BCCLA filed her lawsuit. Later that same month, the Correctional Services of Canada announced that it would end its use of the program across Canada.

Raji Mangat, counsel at the BCCLA: “The Management Protocol was a failure. It exacerbated symptoms of mental illness in prisoners, leaving women more damaged and less able to function in society than when they entered prison. As soon as BobbyLee was taken off the program, she was given access to programs to support her rehabilitation, including meaningful access to a First Nations elder.”

Robert Janes, lawyer for Ms. Worm: “It’s clear that this lawsuit had a real effect on how Corrections Canada operates. It should not have taken this lawsuit for the Government of Canada to cancel the Management Protocol but we’re relieved to see it go and have this case resolved.”

Ms. Worm was represented by the B.C. Civil Liberties Association and the cooperating law firm of Janes Freedman Kyle Law Corporation.

Backgrounder: BCCLA Settles Solitary Confinement Lawsuit Against Federal Government

What is solitary confinement?

Solitary confinement, also known as “segregation”, is the practice of confining a prisoner to a cell and depriving him or her of meaningful human contact for up to 23 hours a day. These conditions result in significant periods of sensory deprivation and social isolation.

What are BCCLA’s concerns with prolonged solitary confinement?

The negative effects of long-term solitary confinement are well-documented. These effects include psychosis, hallucinations, insomnia and confusion.

Prisoners are rarely able to function in the general prison population – or elsewhere – when released from solitary. The damaging effects of solitary confinement increase the longer the prisoner is kept isolated and the effects of prolonged isolation often hinder a prisoner’s rehabilitation. Solitary confinement can create mental illness where none previously existed and can exacerbate pre-existing illness. Ultimately, solitary confinement leaves many individuals more damaged and less capable of living a law-abiding life.

Canadian prison expert Michael Jackson has described solitary confinement as “the most individually destructive, psychologically crippling and socially alienating experience that could conceivably exist within the borders of the country.”

How can a prisoner be placed in solitary confinement?

Prisoners in Canadian federal prisons are placed into solitary confinement in one of two ways.
The first way, called “disciplinary segregation,” is used as a form of punishment when a prisoner is convicted of a serious disciplinary offense within the prison. The prisoner is “sentenced” to a period of disciplinary segregation after a hearing before an independent adjudicative body. Disciplinary segregation is limited to 30 days unless there are multiple convictions, in which case segregation is capped at 45 consecutive days.

The second way, called “administrative segregation”, is used to separate a prisoner from the general prison population for safety or security reasons. With administrative segregation, there is no hearing before an independent body. An individual is placed into solitary confinement based solely on the finding of the institutional head that the prisoner’s presence in the general prison population raises a risk to security or safety. Significantly, there is no limit on the amount of time a prisoner may be held in administrative segregation.

The day-to-day experience of solitary confinement is the same, regardless of whether it is imposed for disciplinary or administrative reasons.

What is the Management Protocol?

The Management Protocol was a program developed by Correctional Services of Canada for female prisoners who were deemed to be “high risk”. A key feature of the Management Protocol was its use of prolonged and indefinite solitary confinement. No similar program was created for male prisoners.

The Management Protocol consisted of three “steps”. On step 1, the prisoner was confined to her cell for up to 23 hours a day with no ability to associate with other inmates. Step 2 permitted the prisoner with limited opportunities to interact with other inmates in controlled settings, such as group therapy sessions. Step 3 of the protocol reintegrated the prisoner into the general prison population but with the constant threat that she could be sent back to solitary for virtually any reason, including negative “emotional” behaviour.

There was no limit on the amount of time a woman would spend on each step of the Protocol. There was no timeline for graduating from one step to the next.

Once a prisoner was placed on the Management Protocol, it was exceedingly difficult for her to “reintegrate” or return to normal prison conditions. In practice, a woman could spend years – perhaps the majority of her sentence – on the Management Protocol.

The Management Protocol was a form of administrative segregation. Corrections Services of Canada announced the discontinuance of the Management Protocol program in March, 2011, shortly after the BCCLA filed Ms. Worm’s lawsuit. However, the use of administrative segregation continues today.

Who has been placed on the Management Protocol?

Seven women were placed on the Management Protocol since it was first created in 2005. At the time the lawsuit was filed, all of the women on the protocol were Aboriginal, suggesting that the Protocol was applied in a discriminatory fashion.

Who is BobbyLee Worm?

BobbyLee Worm is an Aboriginal woman originally from Saskatchewan. Ms. Worm was 22-years old when she was placed on the Management Protocol. She was a first time offender, serving a sentence of 6 years and 4 months for offences including robbery.

Ms. Worm suffers from a serious history of trauma and abuse. Many of her family members were sent to residential schools. She suffered extreme physical, emotional and sexual abuse throughout her childhood and adolescence. She was introduced to drugs by peers and was addicted at an early age.

Ms. Worm was first placed on the Management Protocol in 2008. While in solitary confinement, Ms. Worm was confined to her cell, deprived of meaningful human contact, for up to 23 hours a day, for months at a time. She spent a total of over three and a half years in solitary confinement.

Ms. Worm completed her sentence and was released in May, 2012. She served the majority of her sentence in segregation.

With the conclusion of the lawsuit, Ms. Worm intends to reunite with her family in Saskatchewan.
What are the alternatives to solitary confinement?

There are many alternatives to solitary confinement.

First, resources should be directed at preventing and diffusing situations that lead to the need to isolate a prisoner, rather than relying on solitary confinement as a solution. It is critical to have a range of non-violent, non-coercive interventions before solitary confinement is used. Individuals and groups must be available to diffuse difficult situations and to support women who are in crisis, including counsellors, psychiatrists, and peer and community support groups.

Second, resources must be directed to provide prisoners opportunities for work, education, and special programming. Increasing social ties and improving skills have been demonstrated to reduce violence and confrontation.

Increasingly, solitary confinement is being used as a means to warehouse prisoners with mental health problems. The experience of solitary has a particularly devastating impact on those with preexisting mental illness. Resources must be devoted to ensure that there is adequate and appropriate mental health care in Canadian prisons.

In certain instances, it may be necessary to segregate a prisoner from the general prison population due to concerns about security or safety. In those extraordinary situations, solitary confinement should only be used as a last resort and should be extremely limited in duration. While in solitary, the prisoner should continue to have access to meaningful, daily human interaction in the form of programs, other forms of rehabilitation, or supervised contact with other prisoners. At all times, prison officials must be able to demonstrate that the segregation is necessary.

The highly authoritative 1996 report from the Commission of inquiry into certain events at the Prison for Women in Kingston, conducted by Madame Justice Louise Arbour, former UN High Commissioner of Human Rights and former justice of the Supreme Court of Canada, expressed serious concerns about the indefinite and prolonged nature of solitary confinement permitted under the administrative segregation regime.

A key recommendation of Madam Justice Arbour’s final report was that prisoners should not be made to spend more 30 consecutive days in administrative segregation, and that such segregation should be imposed no more than twice in a calendar year.