Written Submission from the Correctional Investigator of Canada Dr. Ivan Zinger on BILL C - 19

An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures DIVISION 19 Corrections and Conditional Release Act (Detention in a Dry Cell) Standing Senate Committee on National Security and Defence May 18, 2022

Office of the Correctional Investigator 2

Summary Under

section 51 of the Corrections and Conditional Release Act (CCRA), a Warden may authorize use of a ‘dry cell’ (a specially equipped direct observation cell used to search for and retrieve suspected contraband from bodily waste) when they have reasonable grounds to believe that an incarcerated person has ingested or is concealing contraband in a “body cavity.” Division 19 of

Part 5 of Bill C - 19 (An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures) proposes to amend

Section 51 of the CCRA by replacing the phrase “in a body cavity” with “in their rectum.” It also proposes to add a requirement that a prisoner detained in a dry cell be visited at least once every day by a registered health care professional. The concern of the Office of the Correctional Investigator is that even with these amendments in place, a federally sentenced person could still to be held in dry cell detention for an indefinite period of time.

Section 51 of the CCRA should be further amended to prohibit any placement in a dry cell beyond 72 hours. The amendments in question are being proposed in light of the November 2021 Supreme Court of Nova Scotia decision which deemed the practice of using a dry cell for women prisoners suspected of concealing contraband in their vagina unlawful because they could be subjected to longer, or possibly even indefinite periods of dry cell detention. The point of departure for this case and the ruling itself is based on a rather narrow set of arguments and facts.

The Crown attempted to convince the court that the prisoner’s dry cell detention was, in fact, illegal, some kind of “isolated and localized (not systemic) incident of maladministration” on the institution’s part, and that, in any case, the definition of a “body cavity” does not include concealment of contraband in a vagina. On these facts, the judgement prohibits the use of dry cell placements for women prisoners suspected of carrying contraband in their vagina, as it does not constitute a “body cavity” for the purpose of conducting a dry cell search. It does not pronounce more widely than that.

The Office of the Correctional Investigator, which serves as an independent oversight agency of the Correctional Service of Canada (CSC), first raised a set of concerns around certain aspects of the use of dry cells in its 2011-12 Annual Report, a time when there were few procedural or legal safeguards and virtually no internal

Office of the Correctional Investigator 3 oversight of this practice. Since then, CSC has implemented various notification and procedural safeguards – the requirement to give written notice for reasons of placement; an opportunity for incarcerated persons to retain and instruct legal counsel without delay; provision to give notice to Health Services; and, a daily review by the Warden of placements. At that time, the Office first called for an absolute prohibition on dry cell placements exceeding 72 hours.

In my 2019-20 Annual Report, I made the following observations about dry cell detention: The conditions of dry cell confinement are, by far, the most degrading, austere and restrictive imaginable in federal corrections. The dry cell procedure requires strip-searching, around the clock direct observation and 24/7 illumination of the cell. Dry-celling imposes restrictions on any and all activity that would compromise the recovery of suspected contraband. The demands of staff are equally dignity depriving.

Staff are required to observe and document the entire time that an inmate is on the toilet, write search and observation reports for every bowel movement, don protective equipment, search for contraband and hand over any seized item to a Security Intelligence Officer. It’s an extraordinary procedure. CSC has consistently resisted placing any upper limit on how long a person can be held in a barren cell with no plumbing under continuous observation.

While the circumstances depicted in the Nova Scotia judgement are “isolated and localized” (i.e., not systemic in nature), the practice of detaining a prisoner in a dry cell for an uncertain period of time is far from unusual. My Office continues to investigate and intervene in extreme cases of indefinite detention in a dry cell. In my opinion, there can be no further reason or justification to hold a person in such depriving conditions indefinitely. As I recommended in 2019-20, I think this practice should be capped at 72 hours.

After three days, it is my belief that dry cell detention is excessive and unreasonable, if not strictly punitive. It is not known how often dry cells are used in federal prisons, as there is no obligation for the Service to report publicly on this practice. More significantly, there is no mechanism to review the validity of the “reasonable grounds” rationale to place or maintain an individual in a dry cell, other than the Warden trusting in the information that is brought forward from the institutional Intelligence and Preventive Security group.

The only certainty of release from a dry cell is a bowel movement, and only then,

Office of the Correctional Investigator 4 if there is some kind of contraband expelled and retrieved. Otherwise, as the Nova Scotia judgement illuminates, placements can extend indefinitely with little practical means to challenge, quash, or end what could potentially constitute cruel and unusual treatment or punishment. It was precisely the indefinite nature of administrative segregation (or solitary confinement), defined as two hours or less out of cell, that led the present government to abolish that particular correctional practice.

Arguably, dry - celling is an even more egregious form of detention, one that is virtually devoid of any kind of external review or oversight. It is expected that dry cell placements are limited to what is reasonably required and for the shortest possible time. However, given data and record-keeping limitations, it is currently impossible to corroborate the actual number or duration of these placements.

Furthermore, the proposed requirement for a registered health care professional to monitor dry cell placements is yet a further violation of its patient advocacy role – another ‘dual loyalty’ problem that inappropriately obliges health services personnel to be involved in discipline and security matters. Conclusion Placing a prisoner in a cell with no plumbing, on a bare floor, in a security gown, with no certainty of release for days on end to carry out a search of their (“body cavity” now rectum) is inhumane, degrading and quite likely unlawful.

If a person is so desperate, indebted or addicted enough to the point of concealing drugs in their rectum with potentially life-threatening consequences, then surely this level of desperation should point us to consider other less intrusive, evidence-based and compassionate approaches of addressing the harms of illicit drug use behind bars. For these reasons, I conclude that the proposed amendments are inadequate and insufficient. These measures do not rise nearly high enough to meet the life, liberty, and dignity concerns and interests at stake.

Instead, my recommendation is that there should be an absolute prohibition on any dry cell placements beyond 72 hours.