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Why I can’t sleep | Murray Fallis

Tuesday, July 27, 2021 @ 10:29 AM | By Murray Fallis


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Murray Fallis
Twenty-six per cent of prisoners in structured intervention units (SIU) have a release date within the next six months. This statistic keeps me up at night and it should keep you up too.

At a June stakeholder meeting, Correctional Service of Canada (CSC) stated the above statistic. This raised nearly every eyebrow in the criminal justice community. 

For context, structured intervention units house those prisoners who cannot function in the general population. They are the timeout chair of the prison world. In moments of extreme incompatibility, prisoners are sent to the SIUs for the safety and security of the institution. 

If 26 per cent of SIU prisoners are being released within the next six months, then Canada’s Minister of Public Safety Bill Blair has a bigger issue on his hands than the impending federal election. He’s likely incredibly worried about Canadian public safety. One expert witness before the House of Commons Standing Committee described the SIU implementation as a “fiasco.”

The word fiasco is apt to describe the SIUs even before considering the racial, financial and legal implications of their operation.

First, from a racial justice standpoint, as of March 9, 2021, 44 per cent of SIU prisoners were Indigenous. Black prisoners spent longer periods of time in the SIUs. Specifically, they are more likely to spend two months straight or longer in an SIU cell.

Second, financially, SIU costs are sky high. So far $300 million has been allocated to the SIUs, while another $125 million has since been requested. For context, percentage-wise, the Tokyo Olympics are more on budget. Who knows what September will bring?

Third, legally, as per the Corrections and Conditional Release Act, SIU cells are meant to be temporary in nature. The dilemma is, they’re being used for the long term. Recently obtained data indicates that one prisoner spent more than 400 days straight in an SIU cell.

Further, even where the SIUs are being used temporarily, data from February 2021 indicates that they are operating in flagrant non-compliance with domestic and international human rights law. Ten per cent of SIU prisoners remained in their cells 22 hours a day for 15 days straight or more, while a full 554 individuals were subjected to prolonged “solitary confinement” (15 days plus). Two of Canada’s leading criminologists actually calculated a “torture rate” for Canadian prisons. How can Blair sleep at night when his own prisons require torture rates?

As Dr. Jane Sprott, an expert witness noted before the Parliamentary Standing Committee on Public Safety:

We found that overall, 38 per cent of stays were qualifying, by the Mandela rules, as solitary confinement or torture.

Canadian courts would likely agree.

In June 2019, the British Columbia Court of Appeal determined the use of prolonged solitary confinement was unconstitutional. The federal government did not appeal. Two years on, the Senate Committee on Human Rights recommended:

That the Correctional Service of Canada ensure that Structured Intervention Units adhere to the most recent court decisions and respect Canada’s human rights obligations and international commitments.

Sadly, this seems needed.

A July 2021 Access to Information Request reveals that the office of the correctional investigator believes the Charter is presently being violated at Millhaven Institution. Criminal justice stakeholders across the country have since raised concerns ranging from unlawful use of force to inadequate oversight, to a lack of phone and legal access.

While CSC notes that SIUs are distinct from the old system of solitary confinement, it is increasingly difficult to see how. Guards continue to refer to the SIUs as “solitary” while prisoners colloquially dub it “the hole.” The cells are also the same. From speaking with SIU prisoners, so is the experience. 

The sad part of this bungled implementation is that it is Canadians who lose. As noted by the Ontario Superior Court in R. v. Capay [2019] O.J. No. 1025, prolonged solitary confinement results in serious psychological ailments. Unsurprisingly, psychological ailments are directly correlated to increased recidivism. If 26 per cent of SIU prisoners are released within the next six months, psychological ailments and all, then all trace of evidence-based decision making in corrections has been lost.

If Blair wants to maintain public safety and to return to a world where evidence informs policy, then he should immediately order a judicial inquiry into the SIUs. Alternatively, he can wait six months and see where public safety will be.
 
Murray Fallis is a lawyer with John Howard Canada.

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