Critical Expert Focus on Solitary Confinement

With its focus on solitary confinement, the second newsletter of the ICPA Network on External Prison Oversight & Human Rights brings to the forefront an extremely topical human rights discussion in Canada.

The recent high-profile release from a provincial Ontario prison of Adam Capay, after spending some four-and-a-half years in solitary confinement, aptly illustrates how problematic this questionable human rights practice has become in the Canadian context.

As highlighted on this website in October 2018, the International Corrections and Prisons Association (ICPA) Network was launched during the organization’s 2018 Annual Conference in Montreal, Quebec. The Canada OPCAT Project shortly thereafter featured the inaugural newsletter in an article with its focus on Canada, including on the OPCAT.

In the brand-new newsletter the focus has shifted to the issue of solitary confinement in prisons. The world-leading academic expert on solitary confinement, Sharon Shalev, opens the newsletter discussion, offering a critical assessment of its widespread use from the perspective of the United Nations Nelson Mandela Rules. She concludes her contributing article as follows:

“The fact that solitary confinement has been with us since the early days of the prison must not blind us to its harms, nor to its limited utility in achieving much beyond physically containing the individual separately from others. For too long prison managers and administrators have resorted to its use simply because it was there … The Nelson Mandela Rules remind us that we need to reserve it as a tool of last resort, when all else has failed and when no lesser restrictive method can achieve the purpose of the isolation. And then it must only be used for a very short time, whilst respecting the prisoner’s basic rights and treating them with dignity and respect. They also remind us that if it looks and feels like solitary confinement, it probably is solitary confinement, no matter what it is called.”

Solitary confinement
Cell Number 5 by Allissa Richardson (2011).

The latter highlighted point rings especially true in the Canadian context at a time when Bill C-83 is being discussed, which – critics have argued – seeks to essentially re-frame the use of solitary confinement in the country without abolishing the practice.

The current ICPA Network newsletter offers a view from Canada in this same connection, penned by the Ontario Supreme Court judge, David P. Cole. In his article the writer advances an overview of recent legal challenges and key judicial decisions in relation to the use of solitary confinement. Beginning with the Canadian Civil Liberties Association’s 2016 challenges to the ‘administrative segregation’ regime employed by federal correctional authorities through to the 2019 Adam Capay decision of the Ontario Supreme Court, David P. Cole charts the various legal arguments against its use. In relation to the highly publicized Adam Capay case from January 2019 Judge Cole writes at some length, stating:

“By far the most shocking recent Ontario decision is the case of R. v. Capay 2019 ONSC 535, where a trial judge refused to allow a murder charge to proceed because of numerous constitutional violations made by provincial penal authorities resulting in a remanded accused spending 1,647 days in solitary confinement, most in a perpetually lit cell … During the prisoner’s first two months in solitary, the accused – who had admittedly killed another prisoner by stabbing him with a pen – was kept in extreme isolation, never receiving a psychiatric evaluation or basic attention from prisoner staff, who had been instructed not to “enter into discussions” with him. Local and regional prison authorities were required by Ministry policy to conduct regular reviews of the accused’s segregation status, all designed to ensure that solitary confinement does not last longer than necessary. No reviews at all were conducted during the first few months, and most of the rest were found by the trial judge “to have remained irregular and perfunctory”. The judge further found that the harshness and squalor of the conditions in solitary were important factors in leading to his conclusion that the exceptional remedy of “a stay” should be imposed.”

Solitary confinement
Solitary Confinement by garshna (2013).

The newsletter closes its focus on acute isolation at the other end of the Americas with Argentina. Francisco Mugnolo of the National Prison’s Procuracy Office dissects the findings of a 2014 study conducted by his institution into the practice in the country’s 35 federal prisons. In doing so, he describes the different forms assumed by solitary confinement in the country. Based on this investigation as well as other complementary studies, the writer concludes the article as follows:

“Over the past 10 years, the solitary confinement procedure in federal prisons has expanded and solitary confinement “functions” have been diversified. Thus, the deprivation of liberty involves a series of additional punitive measures that are seen only in terms of punishment. These include accommodation in confined spaces, isolation, permanent restriction of movement, measured and monitored time, delay in granting and violation of rights, subjection to arbitrary rules and regulations, ill-treatment, and physical and psychological prison violence for thousands of inmates at the federal level.”

Taken together, these three impressive contributions underscore the pressing need for reform in relation to the harmful global practice of solitary confinement.

In addition to the above three lead articles, newsletter no. 2 helpfully includes a bibliography of useful documents and resources on the topic under its Selected Academic Articles and New Publications sections.

Solitary confinement
View finder on solitary confinement door by Tulio Bertorini (2005).

The latter section of newsletter no. 2 is devoted to the featured country jurisdiction of Australia. Whereas newsletter no. 1 focused on Canada as a jurisdiction, the current publication takes in Australia, with a very strong slant on the OPCAT as well as other forms of oversight of deprivation of liberty in the country.

As a country which ratified the OPCAT in December 2017 and which is currently in the process of instituting an NPM, there are unquestionably various important lessons for the equivalent national OPCAT discussion in Canada. As such, this section of the Network newsletter will be discussed in detail in a separate, forthcoming Canada OPCAT Project article.    

In sum, however, the ICPA Network on External Prison Oversight & Human Rights has succeeded in producing another highly thought-provoking human rights read with a prison focus. Readers are encouraged to explore its 55-pages and perhaps even consider the merits of joining this expanding expert cluster, now boasting some 65 members from 20 countries. If the humanization of deprivation of liberty is a cause close to your heart, then this ICPA Network may well be for you.  

Read the current ICPA Network newsletter.

Read the follow-up post about the newsletter’s focus on OPCAT implementation in Australia.

Read ICPA Network newsletter No. 1.

Visit the Network’s webpage and see who is a member.

Make a request to join the Network by contacting Canadian Correctional Investigator, Ivan Zinger.

Visit Sharon Shalev’s Solitary Confinement resource website.

Read more about the UN Nelson Mandela Rules and see the related UNODC posters.

Read the new reports by the Manitoba Ombudsman and Manitoba Advocate for Children and Youth on the findings of a joint investigation into the use of pepper spray and solitary confinement in youth correctional facilities in the province.