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How segregation in incarceration affects proceedings

Tuesday, June 25, 2019 @ 1:57 PM | By Jessyca Greenwood


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Jessyca Greenwood %>
Jessyca Greenwood
It’s often easier to avoid thinking about what goes on in jail as it is outside the realm of experience for most lawyers and the public at large. Working in criminal defence means that going to jail and hearing from clients about the conditions is a daily occurrence. It is not something we can ignore, as it affects our clients and in some cases their ability to have a fair trial.

Some of our clients become so unwell in custody, as a result of excessive segregation or without adequate medical or mental health attention, that they cannot prepare or participate in the court proceedings. Criminal defence lawyers are in a constant power struggle with jails to bring our clients to court on time, let us see our clients and to treat our clients fairly and with dignity.

Persons in custody can end up in segregation or on a segregation unit for a variety of reasons; it could be because of mental health issues including self-harm, or the need to separate someone in custody from others due to violence.

The type of segregation and the conditions of that segregation unit vary widely based on the institution, which can make it difficult to understand and may serve to make the segregation seem less inhumane than it was. A report from the World Health Organization suggests that “three main factors are inherent in all solitary confinement regimes: social isolation, reduced activity and environmental input, and loss of autonomy and control over almost all aspects of daily life.”

Segregation in some cases may be necessary or warranted, but there is little oversight or regulation to determine what standards should be in place and what mechanisms for review exist.

Over the last few years, public scrutiny over what occurs in jails has increased, and I would argue it has helped towards the betterment of the current system. Several prominent cases have brought the conditions in custody to light. In the case of Adam Capay, the Ontario Human Rights Commission brought public the circumstances he was living while in jail, the conditions were segregation for nearly 24 hours per day for 1,647 days.

The decision of Justice John S. Fregeau can be found online now that the appeal period has expired. Capay was charged with murder, because of the conditions and the length of time spent in them, his charges were stayed — an extraordinary measure reserved for the clearest of cases.

While there may be some justification for segregation, how will it affect those who will soon be released and need to be reintegrated into society?

Segregation can have devastating psychological and emotional consequences. How does that serve our society in the long run? This question should be one we ask with more intensity and frequency.

Unless there is a shift and increased focus on rehabilitation, those incarcerated are not going to be successfully reintegrated into society without support.

This is especially true for persons facing mental health challenges, addiction, trauma or having lost everything during a period of incarceration.

As principal lawyer at Greenwood Defence Law Jessyca Greenwood has been fiercely guiding and defending clients facing allegations of wrongdoing for more than a decade. You can follow her @jessycadefence.

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