As pressure mounts on the federal government to end most forms of solitary confinement in Canadian prisons, a lack of transparency about how this type of incarceration is used is preventing reform in provincial and territorial jails, legal experts and advocates say.
"We don't even really know the scope of the problem," said Debra Parkes, an associate dean in the faculty of law at the University of Manitoba. "And to actually address a problem, you have to understand it first."
Officially referred to as "segregation," solitary confinement means keeping a person locked in a small cell for up to 23 hours a day with very few or no privileges. The UN says that more than 15 consecutive days of solitary confinement amounts to a form of torture.
Parkes studies Manitoba's provincial jails. For years, she has struggled to access consistent and detailed data on solitary confinement in the province, with varying success.
"Provincial and territorial correctional centres are where the vast majority of people are held on any given day in Canada, yet they are black holes of unaccountability. There is, essentially, no meaningful oversight," she said.
"Bringing a case to court — which can be costly or out of reach for many inmates — is often the only effective way to compel documents and information from the system."
'Limitless recourse to segregation'
The Toronto Star reported on Tuesday that over the course of five months last year, more than 1,600 inmates were put in solitary confinement at two Ontario jails. The figures were provided by corrections officials as part of a case before the Ontario Human Rights Commission brought by an inmate, which was recently settled.
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In an email to CBC News/Radio-Canada, the Ministry of Community Safety and Correctional Services said the 1,600 figure "represents an aggregate total of admissions to segregation over a five-month period, not individuals" — meaning some of those might be the same person going into segregation on separate occasions.
The fact that those numbers only became available through litigation speaks to a lack of transparency that has made reform difficult, some lawyers and advocates argue.
Lisa Kerr, an assistant professor of law at Queen's University, says jails are among "the least-scrutinized institutions in our society" and too often use solitary confinement as a tool to manage prisoners.
"The problem stems from the fact that prison administrators have long been convinced that they cannot manage their institutions without easy, limitless recourse to segregation," she said.
"In a lot of ways, it makes sense that prison workers — who are not mental health workers, who are not social workers, who are struggling to do their jobs in tough conditions — would rely on this technique."
No better choices
There are two types of segregation used in Canadian correctional systems — disciplinary and administrative — and there are important differences at the federal and provincial levels.
Disciplinary segregation is punitive and is preceded by a hearing within the jail. The period of solitary confinement can't exceed 30 days. In federally run prisons, an independent party, often a retired lawyer, decides whether segregation is warranted and for how long. In provincial jails, it's someone within the facility itself, such as the superintendent.
Administrative segregation is supposed to be used as a last resort for security or safety reasons or if an inmate requests it. In practice, though, it gives officials "very broad discretion to segregate people" on ambiguous grounds, Parkes says.
Critically, there is no limit on how much time an inmate can spend in administrative solitary confinement.
Data from the federal prisons watchdog has repeatedly shown that administrative segregation is often used on the most vulnerable inmates, particularly those suffering from mental illness.
This is also the case in some provincial facilities, according to Mike Lundy, a correctional officer at the Thunder Bay District Jail in northern Ontario.
He says staff often feel they have no choice but to segregate inmates suffering from mental health challenges for their own safety.
"We have basically no mental health training," says Lundy, who is president of the local chapter of OPSEU, the union that represents corrections officers.
"Mentally ill inmates need support, and they need help. We put them in segregation so we can watch over them more. You see them get worse over time, but right now, there's not any better choices."
The Thunder Bay jail houses about 150 prisoners and has 10 segregation cells. Lundy says that, usually, every segregation cell is used for inmates who are clearly suffering from mental health challenges.
"We're human. Nobody wants to see these inmates go through this," he said.
Research is 'exceptionally difficult'
But the kind of hard, reliable data that could be used to better understand and eventually end solitary confinement is lacking, according to Kelly Hannah-Moffat, director of the Centre for Criminology and Sociological Studies at the University of Toronto.
"Because we've not been able to do systematic research, nor do we have a lot of access to people who have experienced segregation, it's really hard to know why segregation persists," she said.
"It's exceptionally difficult to interview correctional officers, senior managers within facilities, staff or prisoners. All of those voices are important."
The numbers made public in Ontario this week came as pressure to end solitary confinement has ramped up. On Monday, the Ontario Human Rights Commission called on the province to publicly commit to stopping the practice and to "immediately implement strict restrictions" on its use.
The recommendations were among 10 the commission made to the Ontario Ministry of Community Safety and Correctional Services, which is conducting an ongoing review of solitary confinement.
New laws needed
The review comes in the wake of several major events that shone a spotlight on segregation in federally run institutions. The inquests into the tragic deaths of Ashley Smith and Edward Snowshoe; a high-profile legal challenge launched in B.C. Supreme Court that argues solitary confinement is unconstitutional; and mounting international criticism have all put pressure on the federal government to rethink its approach.
Ontario is expected to release its final report on the review later this year.
Ultimately, abuses of administrative segregation can only be reined in by legislative reform, Kerr says. Such reform, she said, should include time limits on how long an inmate can stay in solitary confinement; an outright ban on putting mentally ill people in solitary confinement; and a system of "regular, fixed external oversight."
"The truth is that prison officials do know how to deliver alternatives to segregation, but so long as the governing legislation does not demand that they have to do it, in a specific number of days, then they, like any other bureaucracy, are going to take longer to do it," Kerr said.