Focus On

Solitary confinement continues | John L. Hill

Wednesday, April 14, 2021 @ 12:33 PM | By John L. Hill


John L. Hill %>
John L. Hill
In 1993, Terry Fitzsimmons was released from Kingston Penitentiary on mandatory supervision (now called statutory release) directly into the community having spent six years in solitary confinement. Not long thereafter, Fitzsimmons went on a killing spree with victims in Toronto, Montreal and Ottawa. He turned himself in to Ottawa police and made a full confession.

In three hearings, one in each city where a murder had occurred, the charges were lowered from first-degree murder with 25 years of parole ineligibility to second-degree murder without parole for 15 years. The reason for the reduction was that for the first time, the work of Dr. Stuart Grassian, a Harvard professor and psychiatrist who had studied the ill effects of solitary confinement on a person’s brain, was brought into evidence. The ill effects of solitary had interfered with a properly functioning mind and turned an admittedly troubled young man into a monster.

The Fitzsimmons sentences were just the beginning of the outcry against solitary confinement. In 1996, Justice Louise Arbour issued her report into wrongdoings at the Prison for Women in Kingston. The Arbour Report chastened the Correctional Service of Canada (CSC) for its use of solitary and commented that the findings by Grassian were preferred to the findings of CSC’s own reports showing solitary had minimal effect.

What many considered to be the death knell of solitary confinement was the landmark decision of the British Columbia Supreme Court handed down Jan. 17, 2018, (BCCLA and JHSC v. Attorney General of Canada 2018 BCSC 62 and appealed to the British Columbia Court of Appeal (British Columbia Civil Liberties Association v. Canada (Attorney General) 2019 BCCA 228.

The case held that sections of the Corrections and Conditional Release Act allowing indefinite solitary confinement were of no force and effect and a violation of s. 7 of the Charter. The trial judgment also cited a s. 15 violation for using solitary in discriminating against the mentally ill or disabled and Indigenous prisoners, although the Appeal Court held this was caused by misapplication of the legislation and not by the legislation itself.

A similar judgment was obtained in Ontario (Canadian Civil Liberties Association v. Canada 2019 ONCA 243). The response of the federal Justice Minister, Jody Wilson-Raybould, was to appeal the decision to the Supreme Court of Canada. Ultimately, her replacement, David Lametti, had the appeal withdrawn. The correctional service now argued that solitary confinement no longer exists; it has been replaced by a new regime called Structured Intervention Units (SIU). 

Being held in an SIU was supposed to be more humane; prisoners could interact with other inmates for four hours a day and confinement in an SIU would last no more than 15 days. This was in supposed compliance with the Standard Minimum Rules for the Treatment of Prisoners (commonly called the Mandela Rules). Canada not only signed on but helped draft the wording of the document. The Mandela Rules specify that stays less than two hours a day outside a cell and lasting more than 15 days constitutes “torture or other cruel, inhumane or degrading treatment.”

This would be progress if it were implimented. University of Toronto criminologist Anthony Doob and Ryerson University professor Jane B. Sprott issued a report at the end of February 2021. Their findings, based on numbers supplied by the CSC illustrate a shocking lack of adherence to the new policy after a year in operation. Quebec region has the highest proportion (40.06 per cent) of SIU stays that would be considered “solitary confinement” by the Mandela Rules, and the Pacific region has 19.5 per cent of SIU stays that would be considered torture.

Consider the case of Joey Toutsaint, an Indigenous offender at Saskatchewan Penitentiary with mental health issues. Rather than transfer him to a psychiatric facility, CSC has opted to have him spend 2,180 days in solitary confinement that exacerbates his tendency to self-harm or attempt suicide.

Although the prime minister has called the use of solitary confinement (or the practices that continue to exist under its new iteration, structured intervention unit) “unacceptable,” neither Public Safety Minister Bill Blair nor CSC commissioner Anne Kelly seems to be doing much to bring practices in line with law.

Ever since the murders committed by Fitzsimmons, we know the problem. Let’s strive to correct it.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. Contact him at johnlornehill@hotmail.com.

Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.