By Rebecca Rabinovitch,

In 2019, two appeal court decisions found that the administrative segregation regime used in Canada’s federal corrections system violated prisoners’ constitutional rights. While the two decisions differed in their analyses, some key points emerged: a constitutional system for segregating prisoners would need to ensure prisoners did not experience prolonged periods of severe isolation, and would need independent review of decisions to isolate prisoners. In response to these decisions, Bill C-83 was introduced. Among other changes, this bill aimed to abolish administrative segregation and replace it with a new system of structured intervention units (SIUs), intended to allow more humane separation of prisoners in line with the constitutional requirements identified by the appeal court decisions. However, this bill was criticized by many experts from the beginning of the legislative process as making insufficient change to truly vindicate the rights in question. Many worried that SIUs would be, in effect, administrative segregation under a new name. Now, as the five-year review of Bill C-83 approaches, there is an opportunity to assess whether SIUs have met the constitutional standards they were intended to realize. Through examination of the available data on SIUs – including documents from the Implementation Advisory Panel and Correctional Service Canada itself – this report examines the ongoing and serious violations of prisoners’ Charter rights under this system. The documented failures of the SIU regime in allowing these violations to continue highlights the urgency with which the review of Bill C-83 should be conducted. Under the SIU system, prisoners still experience a problematic degree of isolation. Many prisoners do not receive adequate time outside of their cells or engaged in meaningful human contact. Legislative standards for these activities are framed as obligations to provide opportunities rather than to ensure these standards are met, meaning that isolation can occur even when there is legislative compliance. However, prisoner refusals of offered opportunities cannot fully explain the degree of isolation present in SIUs, indicating that noncompliance with the legislation is a factor as well. These continuing conditions of severe isolation demonstrate that the holdings of the appeal court decisions relating to the duration of isolation and procedural fairness around isolation decisions cannot be dismissed as limited in relevance only to the former system of administrative segregation. Prisoners also continue to experience extended stays in SIUs. While the CCRA requires that prisoners be transferred out of the SIU as soon as possible, there is no cap on the duration of SIU stays to prevent prolonged isolation. A portion of the prisoners experiencing prolonged SIU stays also experience significant isolation caused by not receiving their entitlements to time outside of their cells and time in meaningful human contact. Under the Mandela Rules, the international standards for the treatment of prisoners accepted by Canada, this group of prisoners is experiencing torture. While Bill C-83 introduced a mechanism for review of SIU decisions by Independent External Decision Makers (IEDMs), this system contains serious flaws that impede its ability to provide  adequate procedural fairness. This problem is particularly urgent given the findings that prisoners continue to experience the very serious threats to life, liberty, and security of the person presented by the harmful degree of isolation faced in SIUs. In particular, IEDM review occurs after long periods of confinement in the SIU, and is reliant on information provided by Correctional Services Canada. This information has not been consistently complete or accurate, presenting a significant barrier to fair review. Even worse, many prisoners face delays in being referred to IEDM review at all, as well as delays in implementation of IEDM decisions. Finally, the SIU system has implications for the s. 15 Charter equality rights of particularly vulnerable groups of prisoners. Black and Indigenous prisoners are significantly overrepresented in the SIU population, meaning that these marginalized groups are placed at a heightened risk of experiencing the negative effects of SIU residence. Prisoners with mental health needs are also overrepresented in SIUs, despite their unique vulnerability to the psychological harms of isolation. The system of IEDM review has not succeeded in returning members of these groups to the general prison population, in part due to inconsistent provision of information about prisoners’ mental health status and social history factors to IEDMs. In combination, these problems indicate that serious violations of prisoners’ Charter rights remain prevalent in the SIU system. Bill C-83 cannot be said to have resolved the constitutional problems identified by the appeal courts of Ontario and British Columbia in their examination of the administrative segregation regime. As such, a thorough and expeditious five-year review of Bill C-83, involving civil society and aimed at reconsidering all aspects of SIUs, including compliance and enforcement, is imperative. In addition to the need to approach this review with urgency, this paper identifies further recommendations key to creating a system that can adequately respect prisoners’ Charter rights, including the following: • Amend the CCRA to define “solitary confinement” in line with the international standards set out in the Mandela Rules, • Prohibit prolonged solitary confinement (solitary confinement lasting over 15 days), • Prohibit solitary confinement for prisoners with serious mental health issues, and • Mandate improved data-sharing with the public and civil society   

The John Howard Society of Canada & David Asper Centre for Constitutional Rights, 2023. 43p