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New solitary confinement office reminiscent of ‘Warden’s Courts’ | John L. Hill

Wednesday, May 12, 2021 @ 11:34 AM | By John L. Hill


John L. Hill %>
John L. Hill
In a previous article, I commented on Correctional Service Canada’s use of “Structured Intervention Units” (SIU) as a replacement for solitary confinement and pointed out that professors Anthony Doob and Jane Sprott had condemned the process by pointing out that in their February report that authors, in applying the Mandela Rules to data obtained from CSC, 28.4 per cent of SIU stays were in fact old style solitary confinement and an additional 9.9 per cent of the stays fit the definition of “torture or other cruel, inhuman or degrading treatment.”

A fourth report dated May 10, 2021, written by  Doob, and Adelina Iftene has been presented to CSC. The current analysis answers the question posed in the report’s title: “Do Independent External Decision Makers Ensure that ‘An Inmate’s Confinement in a Structured Intervention Unit is to End as Soon as Possible’?” The answer appears to be an unqualified NO.

The authors, this time concentrated on looking at the workings of independent external decision makers (IEDM). This is a newly created office where decisions on the placement of an offender in an SIU would be overseen by an authority not tied to the CSC and able to make an independent review and decision on the validity of the placement.

To some, their findings may seem shocking:

(a) Some inmates did not get IEDM reviews in a timely manner if at all. Some prisoners ordered released from an SIU were not released and, in some cases, even though ordered to be released, some inmates remained in isolation longer that those whose segregation had been ordered.

(b) The quality of the decision making of individual IEDMs varied.

(c) Black prisoners had longer stays in SIUs than other groups and the IEDM review did not eliminate this racial disparity.

(d) There seems to be no protocol as to how IEDM decisions are made.

The examination of the process pointed out markedly the secrecy under which the IEDMs operate. The report as written by Doob et al. makes this clear:

“There are few circumstances where court proceedings are so secret that nobody but the individual parties can see the results. We find it surprising that almost everything about the process of IEDM reviews is secret. Indeed, it is even unclear whether these reviews can be made public through Access to Information requests and where (CSC; PSC or IEDMs) to even send such requests. We understand the importance of protecting the privacy of prisoners. We find it harder to understand the importance that the government apparently places in not allowing public scrutiny of the review process of prisoners by IEDMs.”

Who is this lack of transparency aimed to protect? When the Justice Department withdrew its appeal of the B.C civil liberties cases to the Supreme Court of Canada, the practice of solitary confinement took on constitutional importance. Illegality should never be hidden by a governmental refusal to disclose it.

Unfortunately, the establishment of IEDMs is reminiscent of the creation of independent chairpersons to take the place of the old “Warden’s Courts” after the 1971 Kingston Penitentiary riot. Under the independent chairperson (ICP) system, convictions in internal disciplinary court were to be made by persons knowledgeable with administrative practices within the institution and decisions of guilt or innocence of an inmate charged with an internal offence would be adjudicated by an impartial referee. The sentencing would be conducted by institutional staff advising the ICP of available options including restrictions on liberties including solitary confinement.

The ICP soon came to become known as the “dependent chairperson” by the inmate population and what was meant to be a fair and impartial system lacked legitimacy from those whom it was meant to protect.

If the minister of public safety and the commissioner of corrections do not act positively on the shortcomings in the latest report, the SIU system will soon lack legitimacy as well.

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.

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