Charter Rights and Structured Interven�on Units: Have Rights Abuses of Administra�ve Segrega�on Been Corrected? Writen by: Rebecca Rabinovitch, Asper Centre Fellow August 10, 2023 For: The John Howard Society of Canada & David Asper Centre for Cons�tu�onal Rights

1 Table of Contents Executive

Summary ............................................................................................................... 2 1 Introduction ........................................................................................................................ 4 2 Context: The Constitutional Decisions .................................................................................. 4 2.1 Canadian Civil Liber�es Associa�on v Canada (Atorney General), 2019 ONCA 243 .....................4 2.2 Bri�sh Columbia Civil Liber�es Associa�on v Canada (Atorney General), 2019 BCCA 228 ...........6 2.3 Connec�ons to Interna�onal Legal Standards ............................................................................7 2.3.1 The Mandela Rules ...................................................................................................................................... 7 2.3.2 The Report of the Special Rapporteur of the Human Rights Council on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment .............................................................................................................. 8 2.3.3 Reports of Interna�onal Bodies .................................................................................................................. 9 3 Context: Bill C-83................................................................................................................. 9 4 Does the SIU Regime Adequately Address the Constitutional Problems? ............................ 12 4.1 Prolonged and Indefinite Condi�ons of Solitary Confinement .................................................. 13 4.1.1 Time Outside of the Cell ............................................................................................................................ 13 4.1.2 Meaningful Human Contact ...................................................................................................................... 15 4.1.3 Refusals ..................................................................................................................................................... 16 4.1.4 Excep�ons ................................................................................................................................................. 19 4.1.5 Length of Time in SIU ................................................................................................................................ 20 4.1.6 Prisoners Who Do Not Want to Leave ....................................................................................................... 22 4.2 Procedural Fairness ................................................................................................................ 23 4.2.1 The Right to Counsel ................................................................................................................................. 23 4.2.2 Independent Review ................................................................................................................................. 24 4.3 Equality Issues ........................................................................................................................ 29 4.3.1 Mental Disability ....................................................................................................................................... 29 4.3.2 Indigeneity and Race ................................................................................................................................. 31 5 Conclusion ........................................................................................................................ 32 Annex I: Comparison of DOJ Charter Statement and Current Knowledge on SIU Implementation ................................................................................................................... 34

2 Execu�ve

Summary In 2019, two appeal court decisions found that the administra�ve segrega�on regime used in Canada’s federal correc�ons system violated prisoners’ cons�tu�onal rights. While the two decisions differed in their analyses, some key points emerged: a cons�tu�onal system for segrega�ng prisoners would need to ensure prisoners did not experience prolonged periods of severe isola�on, 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 administra�ve segrega�on and replace it with a new system of structured interven�on units (SIUs), intended to allow more humane separa�on of prisoners in line with the cons�tu�onal requirements iden�fied by the appeal court decisions. However, this bill was cri�cized by many experts from the beginning of the legisla�ve process as making insufficient change to truly vindicate the rights in ques�on. Many worried that SIUs would be, in effect, administra�ve segrega�on 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 cons�tu�onal standards they were intended to realize. Through examina�on of the available data on SIUs – including documents from the Implementa�on Advisory Panel and Correc�onal Service Canada itself – this report examines the ongoing and serious viola�ons of prisoners’ Charter rights under this system. The documented failures of the SIU regime in allowing these viola�ons to con�nue highlights the urgency with which the review of Bill C-83 should be conducted.

Under the SIU system, prisoners s�ll experience a problema�c degree of isola�on. Many prisoners do not receive adequate �me outside of their cells or engaged in meaningful human contact. Legisla�ve standards for these ac�vi�es are framed as obliga�ons to provide opportuni�es rather than to ensure these standards are met, meaning that isola�on can occur even when there is legisla�ve compliance. However, prisoner refusals of offered opportuni�es cannot fully explain the degree of isola�on present in SIUs, indica�ng that noncompliance with the legisla�on is a factor as well.

These con�nuing condi�ons of severe isola�on demonstrate that the holdings of the appeal court decisions rela�ng to the dura�on of isola�on and procedural fairness around isola�on decisions cannot be dismissed as limited in relevance only to the former system of administra�ve segrega�on. Prisoners also con�nue 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 dura�on of SIU stays to prevent prolonged isola�on.

A por�on of the prisoners experiencing prolonged SIU stays also experience significant isola�on caused by not receiving their en�tlements to �me outside of their cells and �me in meaningful human contact. Under the Mandela Rules, the interna�onal 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

3 adequate procedural fairness. This problem is par�cularly urgent given the findings that prisoners con�nue to experience the very serious threats to life, liberty, and security of the person presented by the harmful degree of isola�on faced in SIUs. In par�cular, IEDM review occurs a�er long periods of confinement in the SIU, and is reliant on informa�on provided by Correc�onal Services Canada. This informa�on has not been consistently complete or accurate, presen�ng 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 implementa�on of IEDM decisions. Finally, the SIU system has implica�ons for the s. 15 Charter equality rights of par�cularly vulnerable groups of prisoners. Black and Indigenous prisoners are significantly overrepresented in the SIU popula�on, meaning that these marginalized groups are placed at a heightened risk of experiencing the nega�ve effects of SIU residence. Prisoners with mental health needs are also overrepresented in SIUs, despite their unique vulnerability to the psychological harms of isola�on.

The system of IEDM review has not succeeded in returning members of these groups to the general prison popula�on, in part due to inconsistent provision of informa�on about prisoners’ mental health status and social history factors to IEDMs. In combina�on, these problems indicate that serious viola�ons of prisoners’ Charter rights remain prevalent in the SIU system. Bill C-83 cannot be said to have resolved the cons�tu�onal problems iden�fied by the appeal courts of Ontario and Bri�sh Columbia in their examina�on of the administra�ve segrega�on regime.

As such, a thorough and expedi�ous five-year review of Bill C-83, involving civil society and aimed at reconsidering all aspects of SIUs, including compliance and enforcement, is impera�ve.

In addi�on to the need to approach this review with urgency, this paper iden�fies further recommenda�ons key to crea�ng a system that can adequately respect prisoners’ Charter rights, including the following: • Amend the CCRA to define “solitary confinement” in line with the interna�onal standards set out in the Mandela Rules, • Prohibit prolonged solitary confinement (solitary confinement las�ng over 15 days), • Prohibit solitary confinement for prisoners with serious mental health issues, • Mandate improved data-sharing with the public and civil society, and • Provide special aten�on to other key sources of cons�tu�onal viola�ons, including ensuring prisoners receive adequate �me outside of their cells, that IEDM decisions meet fairness standards, and that the needs of Indigenous and Black prisoners are priori�zed.

4 1 Introduc�on Bill C-83, among its numerous reforms to the correc�onal system, introduced a system of structured interven�on units (SIUs) as a replacement for administra�ve segrega�on. Throughout the legisla�ve process, experts raised concerns that SIUs would not resolve the cons�tu�onal problems that administra�ve segrega�on had been found to produce. As the five- year review of Bill C-83 approaches, it is clear that many of these concerns have materialized.

Moreover, these problems have been consistently and thoroughly documented throughout the period of SIU opera�on, with litle or no progress made towards solu�ons that respect prisoners’ cons�tu�onal rights. SIUs con�nue to impose harmful solitary confinement-like condi�ons on the prisoners they house, for dura�ons in excess of cons�tu�onal limits, through a process that does not possess an adequate standard of procedural fairness. As such, the viola�ons of sec�ons 7 and 12 of the Canadian Charter of Rights and Freedoms (Charter) found in the administra�ve segrega�on regime con�nue to occur in SIUs.

Moreover, while the appeal court decisions did not find sec�on 15 viola�ons in the administra�ve segrega�on regime, data on the experiences of marginalized prisoners in SIUs suggest that dispropor�onate harms are occurring and could ground such claims in the future. A�er an overview of the cons�tu�onal decisions and the legisla�on itself, each of these problems will be discussed, along with what must be done to bring this legisla�ve scheme into alignment with cons�tu�onal requirements.

It will be of crucial importance to approach the five-year review of Bill C-83 with the urgency that these cons�tu�onal problems necessitate, and to make full use of this opportunity to resolve these wrongs. 2 Context: The Cons�tu�onal Decisions Two challenges to the cons�tu�onality of administra�ve segrega�on succeeded at the appeal court level in two different provinces in 2019.

While the decisions did not en�rely overlap in their holdings, common themes emerged, including s. 7 Charter viola�ons based on procedural fairness issues, given the absence of independent review mechanisms for decisions exer�ng a strong effect on prisoners’ liberty and security interests.

Both courts also considered extended placement in solitary confinement-like condi�ons to be uncons�tu�onal, although their reasoning and resul�ng standards differed. 2.1 Canadian Civil Liber�es Associa�on v Canada (Atorney General), 2019 ONCA 243 In this decision, the Ontario Court of Appeal found that placement of inmates in administra�ve segrega�on for more than 15 consecu�ve days was a viola�on of s. 12 of the Charter, and could not be jus�fied under s.1. 1 The court noted that prolonged condi�ons of solitary confinement had the poten�al to cause serious and even permanent psychological harm.2 The lower court decision found that these harms could be offset by some aspects of the legisla�on, including monitoring requirements and s. 87(

a) of the Corrections and Conditional Release Act (CCRA), 1 Canadian Civil Liberties Association v Canada (Attorney General), 2019 ONCA 243, at paras 119, 126 [CCLA ONCA]. 2 Ibid, at para 99.

5 which mandates considering an inmate’s health in segrega�on decisions.3 However, on appeal, the court found that the former of these mechanisms can only intervene once harm has already occurred, while the later requires only considera�on, without requiring that health take precedence over other factors.4 Similarly, s. 69 of the CCRA prohibits “cruel, inhumane or degrading treatment or punishment” but does not include any standards opera�onalizing this ban.5 As such, these legisla�ve controls do not adequately prevent cruel and unusual treatment.

Furthermore, legisla�ve controls such as requirements that administra�ve segrega�on be terminated “at the earliest appropriate �me” cannot provide a sufficient limit on use, since under these provisions it is s�ll possible to determine that solitary confinement condi�ons may be appropriate for periods longer than 15 days. 6 At the Superior Court level, the lack of independent review present in the administra�ve segrega�on regime was found to cons�tute a viola�on of s. 7.7 This finding was not appealed, leaving independent review as an undisputed requirement for cons�tu�onality.8 The lack of independent review was found to be both arbitrary, in that it did not advance the purposes of the administra�ve segrega�on scheme, and procedurally unfair.9 The duty of procedural fairness required is “robust”, meaning that a system allowing the Ins�tu�onal Head to review their own segrega�on decisions was inadequate.10 The court noted that the independent review required would not necessarily need to be conducted outside of the Correc�onal Service Canada (CSC) structure, given the concerns about �meliness such a requirement could import.11 Instead, the court set out criteria for sufficiently independent internal review, including a reviewer who is outside of the ini�al decision-maker’s influence and neither chosen by nor repor�ng to them, and who has the power to subs�tute their decision for the one under review.12 However, it should be noted that the Bri�sh Columbia Court of Appeal expressed skep�cism that an internal review process, even one mee�ng these condi�ons, could adequately meet the level of independence needed. 13 Other aspects of the challenge to the administra�ve segrega�on regime were not successful.

The appeal court agreed with the decision below that there was insufficient evidence available to establish that deten�on of young adults (ages 18 to 21) in administra�ve segrega�on was a viola�on of s. 12. 14 While the court accepted that, in principle, s. 12 should prohibit placing 3 Corporation of the Canadian Civil Liberties Association v Her Majesty the Queen, 2017 ONSC 7491, at para 269 [CCLA ONSC]. 4 CCLA ONCA, supra note 1, at paras 79, 105. 5 Ibid, at paras 114-115. 6 Ibid, at para 113. 7 CCLA ONSC, supra note 3, at para 167. 8 CCLA ONCA, supra note 1, at para 2. 9 CCLA ONSC, supra note 3, at paras 106-108, 155. 10 Ibid, at paras 146, 155. 11 Ibid, at paras 171-173. 12 Ibid, at para 175. 13 British Columbia Civil Liberties Association v Canada (Attorney General), 2019 BCCA 228, at para 194 [BCCLA BCCA]. 14 CCLA ONCA, supra note 1, at para 61.

6 inmates with mental illnesses in solitary confinement condi�ons where this would worsen their condi�ons, the court did not view the evidence presented as adequately establishing which inmates might fall into this category.15 Finally, the court did not consider segrega�on a further form of punishment that would change the nature of the sanc�on imposed and thereby create a situa�on of double jeopardy as prohibited by s. 11(h).16 2.2 Bri�sh Columbia Civil Liber�es Associa�on v Canada (Atorney General), 2019 BCCA 228 The Bri�sh Columbia Court of Appeal found several aspects of the administra�ve segrega�on regime to be uncons�tu�onal under s. 7.

This Court’s analysis focused on the problema�c nature of prolonged and indefinite administra�ve segrega�on, as well as several procedural fairness concerns, including the lack of external review available in decisions rela�ng to administra�ve segrega�on.

This decision found that the prolonged and indefinite confinement permited by the legisla�on at the �me was grossly dispropor�onate to its aims, and so in viola�on of s. 7.17 However, instead of finding a need for a 15 day limit specifically, the Court chose not to decide whether another solu�on could be acceptable, such as a so� 15 day limit with the poten�al for extensions under par�cular circumstances.18 In this case as well, there was no appeal of the finding at the Supreme Court of Bri�sh Columbia that the ability of an Ins�tu�onal Head to review their own decision on segrega�on was a viola�on of s. 7. 19 The lower court noted that this arrangement would at the very least create the appearance of bias, and so could not provide sufficient procedural fairness for a decision with such serious effects on s. 7 rights. 20 As noted above, on the issue of the degree of independence required, the Bri�sh Columbia decision could not agree with the Ontario decision’s finding that internal review could provide sufficient procedural fairness under given condi�ons, and was skep�cal that external decision-making would necessarily involve any trade- off with �meliness. 21 Instead, the court held that for a system where prisoners experience solitary confinement condi�ons, external review is necessary for fair decisions, par�cularly in light of the history of inefficacy of CSC’s internal procedural safeguards.22 The court also discussed prisoners’ right to counsel at segrega�on review hearings, finding that this too is required by the needed level of procedural fairness for segrega�on decisions.23 As the legisla�ve scheme was simply silent on this point, the Court responded with declaratory relief rather than striking down any related provisions.24 This approach is consistent with the results of an interim applica�on heard by the Court rela�ng to access to counsel, which found that 15 Ibid, at para 66. 16 Ibid, at paras 136, 143. 17 BCCLA BCCA, supra note 13, at para 167. 18 Ibid, at para 151. 19 Ibid, at para 101. 20 British Columbia Civil Liberties Association v Canada (Attorney General), 2018 BCSC 62, at para 355 [BCCLA BCSC]. 21 BCCLA BCCA, supra note 13, at paras 194, 197. 22 Ibid, at paras 192, 194. 23 Ibid, at para 206. 24 Ibid, at paras 202, 270.

7 many desired orders, such as that CSC facilitate legal calls for prisoners, were already within CSC’s legisla�ve obliga�ons, although these obliga�ons were not always being adequately fulfilled.25 On the other hand, not all of the cons�tu�onal claims succeeded.

Equality rights claims rela�ng to inmates with mental illnesses and Indigenous inmates were dismissed as rooted in maladministra�on, rather than in the legisla�on itself. 26 There was no appeal of the finding that in prac�ce prisoners from both of these groups experienced discrimina�on in CSC’s applica�on of the administra�ve segrega�on regime.27 However, for both of these groups of prisoners, the Bri�sh Columbia Court of Appeal found that the lower court decision did not provide adequate discussion of which provisions might create these discriminatory effects or how.28 Similarly, the court found that the trial reasons did not set out with sufficient precision how the group of mentally ill prisoners who should not be placed in segrega�on ought to be defined, a problem the Court noted had arisen in the Ontario decision as well.29 The Court also held that the “individualized” decision-making process for administra�ve segrega�on was in fact responsive to mentally ill prisoners’ par�cular needs, rather than being discriminatory.30 However, the court did provide a declara�on that CSC in prac�ce had not been adequately complying with aspects of the legisla�on providing protec�on for mentally ill prisoners, although it did not make a similar declara�on applying to Indigenous prisoners due to the extent of the vagueness issues.31 2.3 Connec�ons to Interna�onal Legal Standards In addi�on to domes�c sources of law such as the Charter, interna�onal instruments and bodies are also highly relevant to the problem of solitary confinement.

Documents such as the Mandela Rules provide important benchmarks for the appropriate treatment of prisoners, while reports of Special Rapporteurs and interna�onal bodies monitoring compliance with declara�ons and conven�ons can highlight where further ac�on is needed to bring Canada in line with these standards and its interna�onal commitments.

Interna�onal standards are par�cularly key given the rich history of influence of these standards on Charter interpreta�on.32 As such, it is unsurprising that both of the appeal court decisions on administra�ve segrega�on made use of these documents. 2.3.1 The Mandela Rules Both judicial decisions referred to the Mandela Rules, an interna�onal document se�ng out basic minimum standards for treatment of prisoners, including in rela�on to solitary confinement.

While the Mandela Rules are not binding on Canada, and viola�ons of the 25 British Columbia Civil Liberties Association v Canada (Attorney General), 2019 BCCA 177, at para 20. 26 BCCLA BCCA, supra note 13, at paras 216, 231. 27 Ibid, at para 210. 28 Ibid, at paras 215, 231. 29 Ibid, at paras 228-230. 30 Ibid, at para 236. 31 Ibid, at paras 269, 272. 32 R v Hape, 2007 SCC 26, at para 55.

8 Mandela Rules do not necessarily cons�tute a viola�on of Canada’s interna�onal commitments, the Mandela Rules do provide widely accepted minimum standards for the treatment of prisoners in the interna�onal community.33 Furthermore, Canada has joined the Group of Friends of the Nelson Mandela Rules, thereby commi�ng to promo�ng both awareness and applica�on of the Mandela Rules interna�onally.34 As such, the Mandela Rules are a persuasive factor in considering the extent of Charter protec�ons for prisoners.

Notably, the Supreme Court of Bri�sh Columbia chose not to decide whether the Mandela Rules are also principles of fundamental jus�ce due to a status as peremptory norms of interna�onal law.35 The Mandela Rules define solitary confinement as confinement without meaningful human contact for 22 hours or more each day.36 The Mandela Rules prohibit prolonged (that is, over 15 days) or indefinite solitary confinement.37 The Mandela Rules also mandate a prohibi�on on the use of solitary confinement for persons with disabili�es that would be worsened by such condi�ons. 38 Finally, the Mandela Rules provide the general guidance that solitary confinement should only be used excep�onally and for the briefest periods possible, and should include independent oversight.39 Findings affirmed by the appeal courts indicate that administra�ve segrega�on was not compliant with the Mandela Rules.

The Ontario decision noted that brief instances of contact, including through food slots, could not be considered meaningful human contact as described in the Mandela Rules, and that avoiding 22 hours of confinement by only the length of a shower could not realis�cally be seen as conformity. 40 The Bri�sh Columbia decision also agreed that the administra�ve segrega�on regime resulted in prisoners experiencing solitary confinement as defined in the Mandela Rules. 41 2.3.2 The Report of the Special Rapporteur of the Human Rights Council on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Another interna�onal document that the judicial decisions make repeated reference to is the 2011 Interim Report of the Special Rapporteur of the Human Rights Council on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 42 This report, published before 33 CCLA ONCA, supra note 1, at para 29; CCLA ONSC, supra note 3, at para 56, 61; BCCLA BCCA, supra note 13, at para 71. 34 United Na�ons Office on Drugs and Crime, “The Group of Friends of the Nelson Mandela Rules,” online: < htps://www.unodc.org/unodc/en/jus�ce-and-prison-reform/nelsonmandelarules-GoF.html>. 35 BCCLA BCSC, supra note 20, at para 314. 36 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules): resolution adopted by the General Assembly, GA Res A/RES/70/175, UNGAOR, 70th Sess (2016), r 43(1)(

a) and (b), r 44 [Mandela Rules]. 37 Ibid, r 44. 38 Ibid, r 45(2). 39 Ibid, r 45(1). 40 CCLA ONCA, supra note 1, at para 25. 41 BCCLA BCCA, supra note 13, at para 90. 42 Interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, A/66/268, UNHRCOR (2011) [2011 Report].

9 the reformula�on of the Mandela Rules to their current standards, affirmed that solitary confinement can cause serious mental and physical harms, and in some circumstances can reach the level of cruel, inhuman and degrading treatment or punishment, or even torture.43 The report called for solitary confinement to be used only in excep�onal circumstances, restricted in dura�on and made subject to procedural safeguards, including adequate access to counsel, independent review, and the ability to appeal decisions judicially where administra�ve review does not resolve a dispute.44 With regard to persons with mental disabili�es, the report suggested that physical segrega�on without social isola�on would be a more appropriate means of protec�ng these individuals in the prison context when needed.45 2.3.3 Reports of Interna�onal Bodies Finally, it is worth no�ng that in addi�on to the judicial decisions described above, interna�onal bodies such as the Commitee against Torture and the Human Rights Commitee have iden�fied problems with Canada’s administra�ve segrega�on system, related to prolonged periods of segrega�on and the use of segrega�on for prisoners with mental illnesses.46 The Commitee against Torture also noted its concerns about the SIU system, including the absence of a limit on dura�on, the lack of special measures or prohibi�ons for par�cularly vulnerable groups, and the significant amount of discre�on inherent in the jus�fica�ons available for SIU usage. 47 In an�cipa�on of its next report on Canada, the Commitee against Torture has requested informa�on about the con�nued existence of solitary confinement in Canada and “measures taken to address concerns about [SIUs].”48 3 Context: Bill C-83 Among other reforms, Bill C-83 aimed to replace administra�ve segrega�on with a new system of structured interven�on units (SIUs).

Prisoners may be placed in these units where a staff member is “sa�sfied there is no reasonable alterna�ve” and one of the listed grounds is met.49 These grounds include where the prisoner’s con�nued presence in the general popula�on is thought to be a risk to an ongoing inves�ga�on, the ins�tu�on’s security, or a person’s safety, whether their own or another’s.50 Key differences between the two systems include new requirements for condi�ons of confinement as well as a new system of review for decisions to place or maintain a prisoner in an SIU.51 43 Ibid, at paras 79-80. 44 Ibid, at paras 88-89 et seq. 45 Ibid, at para 86. 46 Concluding observations on the seventh periodic report of Canada, CAT/C/CAN/CO/7, UNCATOR, 65th Sess (2018), at paras 14-15 [CAT Concluding Observations]; Concluding observa�ons on the sixth periodic report of Canada, CCPR/C/CAN/CO/6, UNHRCOR, 114th Sess (2015), at para 14. 47 CAT Concluding Observations, at para 14. 48 List of issues prior to submission of the eighth periodic report of Canada, CAT/C/CAN/QPR/8, UNCATOR, 72nd Sess (2022), at para 14. 49 Corrections and Conditional Release Act, SC 1992, c 20, s 34(1) [CCRA]. 50 Ibid, s 34(1). 51 Bill C-83,

An Act to amend the Corrections and Conditional Release Act and another Act, 1st Sess, 42nd Parliament, Canada, 2019, at cl 10 (assented to 21 June 2019).

10 The primary way in which condi�ons of confinement are changed is that Bill C-83 introduced requirements related to �me spent outside of the prisoner’s cell and �me spent in meaningful human contact.

CSC must offer SIU prisoners 4 hours of the former and 2 hours of the later, and these opportuni�es must be made available between 7 am and 10 pm. 52 However, there are excep�ons to the requirements for unusual circumstances, such as natural disasters or epidemics, as well as where a prisoner refuses the opportuni�es provided or is unwilling to comply with reasonable instruc�ons.53 The new review system comprises mul�ple layers of review, including both internal processes and a process of review by Independent External Decision-Makers (IEDMs).

Review by the Ins�tu�onal Head occurs at 5 days and at 30 days post-placement, as well as where a health care professional makes a recommenda�on related to the condi�ons of confinement or removal from the SIU. 54 If the Ins�tu�onal Head decides the prisoner should remain in the SIU, then addi�onal internal reviews will occur.

In the case of a health care professional’s recommenda�on, follow-up review will be performed by a commitee advised by a senior health care professional. 55 In other cases, follow-up review will be performed by the Commissioner or their delegate.56 If these layers of review do not lead to decisions to remove the prisoner from the SIU, the case will be referred to an IEDM. 57 Cases will also be referred to an IEDM where an SIU prisoner has not received their en�tlements to �me outside their cell or meaningful human contact.58 In these situa�ons, the IEDM will be able to make recommenda�ons related to the prisoner’s condi�ons of confinement. 59 A�er 7 days, the IEDM will be able to rule on whether CSC has taken all reasonable steps to improve the prisoner’s condi�ons, or alterna�vely whether the prisoner should be removed from the SIU. 60 If an IEDM finds that CSC has taken all reasonable steps but a prisoner has s�ll not received their legisla�ve en�tlements to �me outside of their cell and meaningful human contact for 10 consecu�ve days, this also triggers a determina�on of whether the prisoner should be removed from the SIU. 61 Finally, IEDMs also review cases and make recommenda�ons where requested by CSC or where a prisoner has been transferred to an SIU 4 �mes within 180 days. 62 During the legisla�ve process, there was significant discussion of whether Bill C-83 would adequately respond to the cons�tu�onal problems iden�fied by the judicial decisions rela�ng to 52 CCRA, supra note 49, s 36(1). 53 Ibid, s 37(1). 54 Ibid, ss 29.01(2), 37.2, 37.3(1). 55 Ibid, ss 37.31, 37.32. 56 Ibid, s 37.4; Corrections and Conditional Release Regulations, SOR/92-620, s 5(1)(b.1) [CCRR]. 57 CCRA, supra note 49, ss 37.8, 37.81. 58 Ibid, s 37.83(1). 59 Ibid, s 37.83(2). 60 Ibid, s 37.83(3). 61 CCRR, supra note 56, s 23.06(1). 62 Ibid, s 27.03(1).

11 solitary confinement.

The government’s view was that SIUs cons�tuted a dras�c departure from the former administra�ve segrega�on system.63 From this viewpoint, many of the courts’ comments on necessary safeguards and limits would no longer apply to this new system, as SIUs would not involve the solitary confinement-like condi�ons that created the harms these safeguards were aimed at.64 In par�cular, the requirements for �me spent outside of SIU cells and engaging in meaningful human contact could, in combina�on with an an�cipated expansion of mental health services, provide sufficient social s�mula�on and assistance to prisoners that �me in an SIU could be more akin to a therapeu�c period than a psychologically damaging one, in the government’s view. 65 Beyond this means of avoiding dispropor�onality, 66 the Department of Jus�ce pointed to the fact that the legisla�on set out the circumstances in which SIU usage would be permited as a bulwark against overbreadth. 67 Concerns about procedural fairness would, in this view, be addressed by the new review system, including the addi�on of IEDMs, which amendment was made a�er several experts expressed trepida�on about the cons�tu�onality of a system lacking a form of external review. 68 Finally, in the government’s view, any equality rights problems could be assuaged by the an�cipated individualized nature of the decision-making process, as well as specific protec�ons such as daily check-ins with health professionals and a new requirement to consider Indigenous social history factors in correc�onal decisions.69 However, these reassurances did not fully resolve the concerns of many of the experts consulted during the legisla�ve process.

In general, many experts expressed skep�cism that SIUs would truly be as large a departure from the administra�ve segrega�on system as had been suggested, due to factors such as a problema�c ins�tu�onal culture within CSC and use of 63 See for example “Bill C-83,

An Act to amend the Correc�ons and Condi�onal Release Act and another Act” 2nd reading, House of Commons Debates, 42-1, vol 148, No 337 (18 October 2018) at 22533 (Hon Ralph Goodale). 64 See for example House of Commons, Standing Commitee on Public Safety and Na�onal Security, Evidence, 42-1, No 135 (6 November 2018) at 1535 (Hon Ralph Goodale); Senate, Standing Commitee on Social Affairs, Science and Technology, Evidence, 42-1, No 59 (8 May 2019) (Dan Moore). 65 Government of Canada, “Bill C-83:

An Act to amend the Correc�ons and Condi�onal Release Act and another Act” (7 May 2019, last updated 1 September 2021), online: <htps://www.jus�ce.gc.ca/eng/csj-sjc/pl/charter- charte/c83.html> [D OJ Charter Statement ]; House of Commons, Debates, 42-1, vol 148, No 387 (26 February 2019) at 1245 (Julie Dabrusin); House of Commons, Debates, 42-1, vol 148, No 437 (26 February 2019) at 1720 (Francesco Sorbara). 66 Sec�on 7 of the Charter prohibits laws that deprive persons of life, liberty, or security of the person without complying with the principles of fundamental jus�ce.

One such principle of fundamental jus�ce is that these laws should not be arbitrary, overbroad, or grossly dispropor�onate.

As discussed on pages 2-3, the Bri�sh Columbia decision found that the harms produced by the administra�ve segrega�on regime dras�cally outweighed its purported benefits and goals, leading to grossly dispropor�onate effects and viola�on of s. 7 of the Charter. 67 DOJ Charter Statement, supra note 65. 68 Ibid; House of Commons, Standing Commitee on Public Safety and Na�onal Security, Evidence, 42-1, No 137 (20 November 2018) at 1535 (Dr Ivan Zinger); House of Commons, Standing Commitee on Public Safety and Na�onal Security, Evidence, 42-1, No 137 (20 November 2018) at 1645 (Noa Mendelsohn Aviv). 69 DOJ Charter Statement, supra note 65.

12 the same infrastructure for the new system.70 Experts also raised many specific cri�cisms. For example, some pointed out that even if the new �me requirements were perfectly complied with, prisoners could s�ll experience solitary confinement condi�ons.

Since solitary confinement is defined as 22 hours per day of isola�on, and the meaningful human contact requirement only mandates 2 hours per day, prisoners could receive precisely their legislated en�tlement and yet s�ll experience condi�ons of solitary confinement.71 Others noted that the list of permited jus�fica�ons for SIU use were very similar to those under the administra�ve segrega�on regime, and were vague enough to leave significant room for poten�ally problema�c discre�on.72 The absence of a limit on dura�on was also an important point of conten�on.

While some suggested a mandatory limit on dura�on would be logis�cally challenging, many experts pointed out that a 15 day limit was a component of both the Mandela Rules and one of the judicial decisions, and that its absence could leave the new system open to challenge.73 Finally, the addi�on of the IEDM system, while clearly an important step towards compliance with the appeal court decisions, did not fully resolve all experts’ concerns about procedural fairness.

Experts’ specific concerns included that IEDM decisions occur much later than the 5 day point iden�fied by the BCCA, come only a�er layers of internal review, and for some situa�ons only involve a determina�on as to whether CSC acted reasonably, rather than a power to remove the prisoner from the SIU. 74 Several experts iden�fied judicial review as a more appropriate mechanism for the type of review required.75 4 Does the SIU Regime Adequately Address the Cons�tu�onal Problems?

Given the numerous cons�tu�onal failings of administra�ve segrega�on and the lingering concerns around the cons�tu�onality of the SIU regime, it is important to examine how this system has operated in prac�ce. As surveyed in this sec�on, the opera�on of SIUs has exhibited many of the flaws and viola�ons that were present under administra�ve segrega�on.

Prisoners 70 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Evidence, 42-1, No 139 (22 November 2018) at 1530 (Josh Paterson); Senate, Standing Commitee on Social Affairs, Science and Technology, Evidence, 42-1, No 59 (9 May 2019) (Diana Majury); Debates of the Senate, 42-1, vol 150, No 301 (26 February 2019) at 1745 (Hon Kim Pate); Debates of the Senate, 42-1, vol 150, No 283 (2 May 2019) at 1740 (Hon Kim Pate). 71 House of Commons, Debates, 42-1, vol 148, No 437 (19 June 2019) at 2220 (Mathew Dubé). 72 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Evidence, 42-1, No 139 (22 November 2018) at 1600 (Josh Paterson); House of Commons, Standing Commitee on Public Safety and Na�onal Security, Evidence, 42-1, No 139 (22 November 2018) at 1635 (Prof Debra Parkes). 73 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Evidence, 42-1, No 136 (8 November 2018) at 1725 (Jason Godin); House of Commons, Standing Commitee on Public Safety and Na�onal Security, Evidence, 42-1, No 136 (8 November 2018) at 1545 (Savannah Gen�le); Senate, Standing Commitee on Social Affairs, Science and Technology, Evidence, 42-1, No 59 (9 May 2019) (Michael Rosenberg). 74 Senate, Standing Commitee on Social Affairs, Science and Technology, Evidence, 42-1, No 59 (9 May 2019) (Michael Rosenberg); Senate, Standing Commitee on Social Affairs, Science and Technology, Evidence, 42-1, No 59 (9 May 2019) (Josh Paterson); Senate, Standing Commitee on Social Affairs, Science and Technology, Evidence, 42- 1, No 59 (9 May 2019) (Prof Debra Parkes). 75 Senate, Standing Commitee on Public Safety and Na�onal Security, Evidence, 42-1, No 60 (15 May 2019) (Marie- Claude Landry); Debates of the Senate, 42-1, vol 150, No 301 (12 June 2019) at 1750 (Hon Kim Pate).

13 in SIUs experience inappropriate levels of isola�on, contrary to the Mandela Rules and the dictates of the appeal court decisions. SIU stays frequently last longer than the 15-day limit set out in both of these sources. The system of IEDMs in place to review SIU-related decisions cannot provide adequate procedural fairness, due to problems with the �ming of reviews, transparency, and a lack of coopera�on from CSC. Finally, SIUs con�nue to enact dispropor�onate harm on marginalized groups of prisoners, including prisoners with mental illnesses, Indigenous prisoners, and Black prisoners.

This confluence of problems indicates that the SIU regime has not successfully resolved the cons�tu�onal problems iden�fied by the Ontario and Bri�sh Columbia appeal courts, and that as a result viola�ons of prisoners’ Charter rights con�nue to occur. 4.1 Prolonged and Indefinite Condi�ons of Solitary Confinement 4.1.1 Time Outside of the Cell Data on SIU usage have consistently indicated that many prisoners are not receiving the minimum standard of 4 hours per day outside of their cells.

In fact, these data have also suggested that some por�on of SIU prisoners are not even receiving the opportuni�es for 4 hours per day outside of their cells. While the majority of prisoners in SIUs do receive offers for �me outside of their cells on the majority of days, the Implementa�on Advisory Panel found that 8.3% received such offers on less than half of the days of their SIU stay, and only 34.5% received such offers on every day of their �me in SIU. 76 This represents a significant degree of noncompliance with the legisla�on.

The focus in both the legisla�on and CSC’s record-keeping on the provision of opportuni�es for �me outside of the cell rather than the actual �me spent outside of the cell raises further issues. As will be discussed below, many prisoners may refuse some opportuni�es for a variety of reasons, including conflicts with other ac�vi�es or problems with the specific ac�vi�es offered. While these prisoners may have received what they are en�tled to according to the legisla�on, it is ar�ficial to consider them as having become any less isolated or any more shielded from the psychological harms concomitant with isola�on.

As such, this focus may obscure ongoing cons�tu�onal viola�ons. With regard to actual �me spent outside of SIU cells, many prisoners do not receive �me outside on at least some days of their SIU stay.

The Implementa�on Advisory Panel found that in total 64% of prisoners in SIUs missed the 4 hour target on over ¾ of their days in the SIU. 77 This propor�on differed by the length of the SIU stay, with 71.6% of prisoners staying under 15 days missing their en�tled �me on over ¾ of days, as compared to 58% of prisoners experiencing longer periods in the SIU. 78 Only 17.9% of short-stay prisoners and 25% of long-stay prisoners missed their �me outside of their cells on less than half of their days in the SIU.79 While some 76 Canada, Structured Interven�on Unit Implementa�on Advisory Panel, 2021/22 Annual Report, (Otawa: Public Safety Canada, September 2022) (Howard Sapers), at 124 [IAP Sept 2022]. 77 Ibid, at 107. 78 Ibid, at 107. 79 Ibid, at 107.

14 data have suggested that the propor�on of SIU prisoners receiving their alloted �me outside of their cells may have improved over �me, the most recent data indicate that 34.2% of long-stay prisoners s�ll missed their alloted �me on over ¾ of their days in the SIU.80 As such, in addi�on to the clear need for further progress on this measure, more recent data are needed to evaluate whether apparent improvements have con�nued, stagnated, or retrogressed. The 4 hour standard is intended to act as a minimum. However, even for prisoners who meet this standard, few receive significantly more than the minimum amount.

Internal surveys of the Prairie region ins�tu�ons suggest significant varia�on in how long SIU prisoners spend outside of their cells, ranging from an es�mated 5% spending more than 5 hours outside at Edmonton Ins�tu�on to an es�mated 90% spending more than 8 hours outside at Bowden Ins�tu�on. 81 However, na�onwide data show that only 5% of long-stay SIU prisoners receive a 4 hour period outside of their cells every day of their stay, sugges�ng that longer periods outside of cells as at Bowden Ins�tu�on must be very rare in general.82 Similarly, for prisoners who are not mee�ng the 4 hour standard, many are missing it by a large amount.

For example, the Implementa�on Advisory Panel found that 69.6% of long-stay SIU prisoners received 2 hours of �me outside or less, and 26.9% received 1 hour or less.83 In addi�on to the problems mee�ng the legisla�ve requirements that CSC’s own data reveal is the ques�on of the quality of CSC’s record-keeping on this topic.

Problems with record-keeping around �me spent outside of SIU cells have been reported by prisoners, who allege that CSC records do not correspond with their own records of when they have been permited to leave their cells. 84 In internal documents, CSC has also acknowledged problems with record-keeping, atribu�ng some nega�ve IEDM decisions to inadequate records of condi�ons of confinement rather than actual poor condi�ons. 85 Finally, IEDMs have also encountered documenta�on gaps and inconsistencies, as will be explored more fully below.

Altogether, these warnings raise concerns that, due to inconsistent record-keeping, the true extent of prisoners not receiving adequate �me outside of their cells is not known, and may be greater than reported. 80 Ibid, at 66. 81 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 3) (23 July 2021), at 44, 54, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11469999/11469999/Correc�onalServ iceCanada-2021-07-23-Part3-b.pdf>. 82 IAP Sept 2022, supra note 76, at 108. 83 Ibid, at 109. 84 West Coast Prison Jus�ce Society, “Solitary by another name: The ongoing use of isola�on in Canada’s federal prisons” (2020), at 48, online (pdf): West Coast Prison Justice Society <htps://prisonjus�ce.org/wp- content/uploads/2020/11/Solitary-by-another-name-report.pdf> [S olitary by Another Name]. 85 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 2) (21 June 2021), at 5, 18, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11454475/11454475/Correc�onalServ iceCanada-2021-06-21-02-b.pdf>.

15 4.1.2 Meaningful Human Contact Closely linked to the issue of whether SIU prisoners are receiving adequate �me outside of their cells is the problem of whether they are engaging in or receiving opportuni�es to engage in 2 hours of meaningful human contact per day. Data suggest that many SIU prisoners do not experience this minimum period of meaningful human contact every day that they are in the SIU.

The Implementa�on Advisory Panel found that, in total, 34.9% of prisoners in SIUs missed the 2 hour target on over ¾ of their days in the SIU. 86 This propor�on differed by the length of the SIU stay, with 46.4% of prisoners staying under 15 days missing their en�tled �me on over ¾ of days, as compared to 25.8% of prisoners experiencing longer periods in the SIU.87 Only 18.9% of short-stay prisoners and 24.2% of long-stay prisoners missed their alloted human contact �me on less than 1/5 of their days in the SIU.88 The most recent data indicate that 60.6% of long-stay prisoners missed their alloted meaningful human contact �me on 1/5 or more of their days in SIU, a drop from the first month of SIU opera�on, in which the corresponding figure was 83.1%. 89 However, this figure remains sufficiently high as to cause concern about the degree of isola�on SIU prisoners experience.

Addi�onal data are needed to assess whether further improvements have indeed been made, or whether this measure has plateaued or even worsened. In addi�on to concerns regarding CSC’s record-keeping, there are further poten�al problems with the meaningful human contact standard and its implementa�on. Firstly, as with �me spent outside of the cell, there is a focus on provision of opportuni�es rather than ensuring prisoners do in fact receive adequate human contact, which may obscure the degree to which prisoners con�nue to be isolated to an uncons�tu�onal degree.

Beyond this problem, what can be considered meaningful human contact is not en�rely clear. While judicial decisions have established that, for example, a brief exchange through a food slot is insufficient, rela�vely litle informa�on is available about how CSC counts this requirement. 90 Ins�tu�onal surveys on the implementa�on of SIUs provide some insight into which ac�vi�es may be offered.

For example, at Bowden Ins�tu�on, listed ac�vi�es include educa�on, spiritual ac�vi�es with chaplains or Elders, correc�onal programs, social programs, structured leisure, and interac�ons with staff or the Inmate Wellness Commitee. 91 However, litle informa�on is available about the precise content of each of these ac�vity types, making it difficult to assess how well these ac�vi�es may correspond with the Essex Paper descrip�on of meaningful human contact as genuine dialogue allowing for empathe�c interpersonal connec�on.92 86 IAP Sept 2022, supra note 76, at 108. 87 Ibid, at 108. 88 Ibid, at 108. 89 Ibid, at 73. 90 BCCLA BCSC, supra note 20, at paras 138-139. 91 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 3) (23 July 2021), at 43-44, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11469999/11469999/Correc�onalServ iceCanada-2021-07-23-Part3-b.pdf>. 92 Penal Reform Interna�onal and the Essex Human Rights Centre, Essex paper 3: Initial guidance on the

interpretation and implementation of the UN Nelson Mandela Rules, (April 2016), at 89 [Essex Paper].

16 Further to the ques�on of the quality of human contact available in SIUs is the nature of the correc�onal programs available. As discussed above, SIUs were proposed as a means of targe�ng individualized interven�ons to prisoners in need of assistance. However, it is not clear to what extent this has occurred.

Procedures exist for prisoners moved to SIUs to con�nue previously-begun correc�onal programs or to start new ones. 93 However, all prisoners transferred to SIUs, regardless of what correc�onal needs they may have, are considered for par�cipa�on in the Mo�va�onal Module-SIU or the Mo�va�onal Module-SIU-Indigenous. 94 Mo�va�onal Module programming also exists for prisoners who have refused or dropped out of other correc�onal programs.95 The two SIU-specific streams of the Mo�va�onal Module contain content related to challenges iden�fied as common in the popula�on of prisoners who were transferred to administra�ve segrega�on, under the assump�on that the SIU popula�on will have similar needs. 96 The Mo�va�onal Module-SIU-Indigenous covers material similar to the Mo�va�onal Module-SIU, but uses more culturally-specific methods, including incorpora�on of Indigenous ceremony and teachings.97 The streaming of all prisoners transferred to the SIU towards these two programs is not sugges�ve of the an�cipated high degree of individualiza�on of programming within these units. 4.1.3 Refusals Both �me outside of cell and meaningful human contact requirements are framed in the legisla�on as rights to opportuni�es for these ac�vi�es, rather than direct rights to a certain amount of �me engaging in the ac�vi�es.98 As a result, CSC’s tracking of its compliance with these provisions may not provide a full picture of condi�ons of confinement in SIUs.

For both of the legisla�ve requirements, there appears to be a significant problem of prisoners refusing the opportuni�es they are offered.

For example, at Saskatchewan Peniten�ary, internal documents from May 2020 indicate that on average 75-80% of SIU prisoners refused the ac�vi�es they were offered. 99 Na�onwide Implementa�on Advisory Panel data on refusals of �me outside of 93 Correc�onal Service Canada, “Structured Interven�on Units,” Commissioner’s Direc�ve No 711 (Otawa: CSC, 30 November 2019), Annex D [CD 711]. 94 Ibid, Annex D, at para 135. 95 Correc�onal Service Canada, “Na�onal Correc�onal Program Management Guidelines,” Guidelines No 726-3 (Otawa: CSC, 8 November 2021), at para 43. 96 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 3) (23 July 2021), at 8, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11469999/11469999/Correc�onalServ iceCanada-2021-07-23-Part3-b.pdf>. 97 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 3) (23 July 2021), at 8, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11469999/11469999/Correc�onalServ iceCanada-2021-07-23-Part3-b.pdf>. 98 CCRA, supra note 49, s 36(1). 99 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 3) (23 July 2021), at 48, online:

17 cells are consistent with this sta�s�c, indica�ng that 72.3% of SIU prisoners take advantage of these offers on less than half of the days of their SIU stays, and only 3.2% of SIU prisoners accept these offers every day. 100 Comparison of refusal rates over �me has indicated that there has been a minor decrease in refusals between 2020 and 2022, but that this progress has been limited in scope and inconsistent over �me. 101 The scale of the problem also varies by region and by ins�tu�on, but its presence is consistent.102 Refusals represent an urgent problem, given that if they occur consistently they can lead to prisoners experiencing psychologically harmful levels of isola�on.

Prisoners’ reasons for refusing the ac�vi�es offered are of key importance in understanding this issue. Both Parliamentarians and the Implementa�on Advisory Panel have raised concerns about the possibility of offers of clearly unsuitable ac�vi�es, such as outdoor recrea�on in hazardous weather. 103 Such offers would not be in the spirit of the legisla�on.

Interviews with prisoners by the Implementa�on Advisory Panel have suggested some offers could be of this type, as prisoners have cited �ming and bad weather as contribu�ng factors. 104 However, other reasons cited include simple preferences as between ac�vi�es.105 This is borne out by internal ins�tu�onal surveys, which note that different ac�vi�es vary significantly in refusal rates.

For example, Stony Mountain Ins�tu�on noted a group of prisoners who are much more interested in Indigenous cultural ac�vi�es than other pursuits, and Edmonton Ins�tu�on has noted that prisoners are generally more interested in recrea�on and correc�onal programs than in social programs. 106 Some ins�tu�ons have implemented strategies to try to increase uptake of offered opportuni�es, such as providing well-liked ac�vi�es as a second offer or consul�ng prisoners on new ac�vi�es that could be offered.107 However, there is litle available informa�on about the <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11469999/11469999/Correc�onalServ iceCanada-2021-07-23-Part3-b.pdf>. 100 IAP Sept 2022, supra note 76, at 126. 101 Canada, Structured Interven�on Unit Implementa�on Advisory Panel, Structured Intervention Units Implementation Advisory Panel Update #3-2023: Structured Intervention Units and Indigenous Prisoners, (Otawa: Public Safety Canada, March 2023) (Howard Sapers), Appendix Tables 20, 21 [IAP Indigenous Prisoners Update]. 102 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 3) (23 July 2021), at 43-44, 48, 53, 60, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11469999/11469999/Correc�onalServ iceCanada-2021-07-23-Part3-b.pdf>; IAP Sept 2022, supra note 76, p 69, 128. 103 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Evidence, 42-1, No 135 (6 November 2018) at 1725 (Mathew Dubé); IAP Sept 2022, supra note 76, at 58. 104 IAP Sept 2022, supra note 76, at 86. 105 Ibid, at 86. 106 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 3) (23 July 2021), at 54, 61, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11469999/11469999/Correc�onalServ iceCanada-2021-07-23-Part3-b.pdf>. 107 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 3) (23 July 2021), at 44-45, 55, online:

18 efficacy or uptake of these strategies, and the variable refusal rates across regions and limited progress in reducing refusals over �me suggest there is not an effec�ve na�onal strategy directed at this problem, despite its key importance in avoiding harmful isola�on of SIU prisoners.108 Internal documents suggest that another important reason for refusals may be simultaneous offers of mul�ple ac�vi�es. Stony Mountain Ins�tu�on has specifically noted that overlapping offers led to prisoners consistently selec�ng yard �me over correc�onal programming, which led to an effort to alter the

schedule so that these ac�vi�es would no longer overlap. 109 However, it seems that not all issues with simultaneous offers have been resolved.

As of February 2021, IEDMs had flagged that simultaneous offers were sufficiently common and poorly recorded in the informa�on they received so as to create difficul�es in assessing whether prisoners were in fact receiving offers for their full legisla�ve en�tlements, or whether offers were structured in such a way as to completely overlap and leave prisoners with no way to reach the 4 or 2 hour mark. 110 Finally, it is important to note that refusal rates do not fully explain the extent to which prisoners do not actually receive their alloted �me outside of their cells and meaningful human contact.

For both of these en�tlements, data have demonstrated that there are prisoners who rarely or never refuse offers, but nonetheless have missed much of the �me they are meant to receive.

With regard to �me outside of SIU cells, of the prisoners who refused only one or zero �mes, 40.9% s�ll missed their alloted �me on over half of the days comprising their SIU stays. 111 Similarly, with regard to meaningful human contact, of the prisoners who refused only one or zero �mes, 35.2% s�ll missed their alloted �me on over 1/5 of the days comprising their SIU stays.112 As such, while resolving the problems that have led to high refusal rates is of key importance, this will not be sufficient on its own to ensure prisoners are not subjected to harmful condi�ons of isola�on. <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11469999/11469999/Correc�onalServ iceCanada-2021-07-23-Part3-b.pdf>. 108 IAP Sept 2022, supra note 76, at 13, 55, 69; IAP Indigenous Prisoners Update, supra note 101, Appendix Tables 20, 21. 109 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 3) (23 July 2021), at 61-62, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11469999/11469999/Correc�onalServ iceCanada-2021-07-23-Part3-b.pdf>. 110 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 8.1) (21 June 2021), at 42-43, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11454475/11454475/Correc�onalServ iceCanada-2021-06-21-08-1-b.pdf>. 111 IAP Sept 2022, supra note 76, at 111. 112 Ibid, at 112.

19 4.1.4 Excep�ons As discussed in the

summary of the SIU system introduced by Bill C-83, the legisla�on contains several excep�ons allowing CSC to not offer prisoners �me outside of their cells or engaged in meaningful human contact in excep�onal circumstances.

These excep�onal circumstances include natural disasters, power failures, certain kinds of work stoppages, and, notably given the early history of SIU implementa�on, epidemics. 113 While an internal CSC memo from March 2021 instructed staff not to use the epidemic excep�on indiscriminately and ins�tuted regular review procedures, other groups have reported significant restric�ons jus�fied by the COVID-19 pandemic in SIUs specifically and in the correc�onal context more generally.114 CSC emails have also men�oned that the excep�ons should not be used for events such as rou�ne bad weather, apparently in response to IEDM decisions cri�cizing the use of this designa�on during a snow storm. 115 While this email was sent only shortly a�er implementa�on of the SIU system, it suggests the existence of at least some instances of legisla�ve excep�ons being used inappropriately to deny SIU prisoners their en�tlements.

The excep�ons have been used in a disputed fashion in at least one other more recent instance, where an IEDM found that an ins�tu�on had not met its obliga�ons by invoking the excep�on in rela�on to COVID-19 staffing reduc�ons and damage to yards. 116 While the types of situa�ons envisioned in the legisla�ve excep�ons may undoubtedly render it extremely challenging to ensure every prisoner receives their �me en�tlements, the use of these excep�ons may nonetheless lead to condi�ons of confinement similar to those deemed uncons�tu�onal.

Genuine uses of the excep�ons might be jus�fied under s. 1, par�cularly given that epidemics have been acknowledged as a possible ra�onale for s. 7 viola�ons. 117 On the other hand, no cases of s. 12 viola�ons have been found jus�fiable under s. 1, and courts have 113 CCRA, supra note 49, s 37(1)(c); CCRR, supra note 56, s 19(1). 114 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 11) (3 June and 9 June 2021), at 4, 9-10, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11415639/11415639/Correc�onalServ iceCanada-11-b.pdf>; Solitary by Another Name, supra note 84, at 31, 33; Office of the Correc�onal Inves�gator, COVID-19 Status Update (23 April 2020), at 3-6; Office of the Correc�onal Inves�gator, Third COVID-19 Status Update (23 February 2021), at 11. 115 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 1) (23 July 2021), at 37-38, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11469999/11469999/Correc�onalServ iceCanada-2021-07-23-Part1-b.pdf>. 116 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 2) (21 June 2021), at 31, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11454475/11454475/Correc�onalServ iceCanada-2021-06-21-02-b.pdf>. 117 Ref Re BC Motor Vehicle Act, [1985] 2 SCR 486, at para 85.

20 expressed some skep�cism that such a thing is possible.118 Improper use of the legisla�ve excep�ons, of course, would be even more difficult to jus�fy. The numerous problems around �me spent outside of cells and experiencing meaningful human contact indicate that SIUs have not succeeded in the goal of transforming the administra�ve segrega�on system into one where prisoners do not encounter solitary confinement-like condi�ons. Instead, many prisoners con�nue to experience a problema�c degree of isola�on beyond what courts have deemed acceptable.

Prisoners placed in SIUs can s�ll experience the serious psychological harms that form the basis of cons�tu�onal viola�ons. 119 This con�nua�on of solitary confinement-like condi�ons means that the other holdings of the appeal court decisions, rela�ng to dura�on of isola�on and procedural fairness around isola�on decisions, cannot be dismissed as limited in relevance only to the former system. As such, it is necessary to assess these factors as they apply to the SIU regime. 4.1.5 Length of Time in SIU A significant por�on of SIU stays exceed 15 days.

The most recent data currently available, from the Implementa�on Advisory Panel Report of September 2022, indicates that 56.5% of SIU stays exceeded 15 days, and 23.2% of SIU stays lasted over 2 months. 120 These numbers are consistent with those found in earlier examina�ons of SIU data.121 In fact, the Implementa�on Advisory Panel found that the propor�on of SIU stays las�ng over 15 days did not appear to be improving between the ini�al implementa�on of SIUs in November of 2019 and the end of their data collec�on period in November 2021, and data comparing lengths of stays in 2020, 2021, and 2022 found an increase in the propor�on of stays las�ng more than 15 days (respec�vely, this propor�on was 51.3%, 62.7%, and 63.5%).122 Moreover, a comparison between lengths of stays in SIUs and lengths of stays in the former administra�ve segrega�on system demonstrates that the new system may have worsened this problem: approximately 72-75% of administra�ve segrega�on stays lasted less than 30 days, while the corresponding propor�on in SIU stays is 59.8%.123 These data also do not account for the possibility that some prisoners may experience repeated SIU stays in close temporal proximity.

It is clear that there is a subset of prisoners who experience mul�ple SIU stays over �me: over the period between November 2019 and February 2022, 46% of SIU prisoners experienced 2 or more stays, and 8.4% of prisoners experienced 5 or more stays. 124 However, without informa�on on the rela�ve �ming of these stays, it is not clear 118 CCLA ONCA, supra note 1, at paras 124-125. 119 Ibid, at para 126. 120 IAP Sept 2022, supra note 76, at 58. 121 Jane B Sprot & Anthony N Doob, “Solitary Confinement, Torture, and Canada’s Structured Interven�on Units” (23 February 2021) at 11 [Sprott & Doob Feb 2021]; Canada, Structured Interven�on Unit Implementa�on Advisory Panel, Preliminary Observations of the Operation of Correctional Service Canada’s Structured Intervention Units, (Otawa: Public Safety Canada, October 2021) (Howard Sapers), at 2, 9 [IAP Preliminary Observations]. 122 IAP Sept 2022, supra note 76, at 58-59; IAP Indigenous Prisoners Update, supra note 101, Appendix Table 9. 123 IAP Sept 2022, supra note 76, at 58-59. 124 Ibid, at 16.

21 whether they should be considered meaningfully separate from one another. For example, if a prisoner is removed from an SIU for only one day before being returned to the SIU, it is unlikely that this would provide sufficient �me to recover from the psychological hardships experienced during the ini�al stay, which could magnify the harm suffered during the second stay in a way that the data on stay dura�on alone would not illustrate.

This type of rapid removal and return took place in the administra�ve segrega�on regime, par�cularly in the context of transfers between ins�tu�ons, as notoriously occurred in the tragic case of Ashley Smith.125 Since the implementa�on of the SIU regime, transfers have remained common among prisoners experiencing mul�ple SIU stays, and par�cularly so for prisoners experiencing mental health challenges.126 However, more informa�on is required to determine the extent to which transfers in par�cular, and rapid exit from and re-entry to SIUs in general, mask the true lengths of SIU stays.

Alarmingly, a subset of the prisoners experiencing stays over 15 days also experience condi�ons of severe isola�on. Sprot and Doob, respec�vely professor and professor emeritus of criminology, have found that 9.9% of SIU stays were both longer than 15 days and isola�ng in nature, in that prisoners averaged 2 hours or less outside of their cells per day and had no days at all where they reached 4 hours.127 These condi�ons amount to torture under the Mandela Rules, and do not meet cons�tu�onal standards.

It is important to note that Sprot and Doob’s approach produced a rela�vely conserva�ve es�mate, as due to the difficulty of extrac�ng informa�on on the meaningfulness of human contact from the available data, any ac�vity other than showering was counted as meaningful human contact.128 As discussed above, there is reason to doubt that all out-of-cell ac�vi�es allow for contact that is genuinely meaningful.

This analysis also revealed that SIU stays classifiable as torture were not primarily close to the margin: 54.9% of stays classified as torture lasted longer than 32 days, and 24.6% exceeded 62 days.129 This group of prisoners’ experiences cannot be fully explained by refusals, as 64.1% of this group refused �me out of their cell on half or fewer of their days in the SIU.130 Addi�onal data are needed to assess whether CSC has made any progress on reducing the numbers of prisoners experiencing condi�ons of torture over �me.

It is clear that at worst, CSC is not mee�ng the legisla�ve requirement to offer these prisoners opportuni�es for human contact. At best, this group may face technically permissible use of the legisla�ve excep�ons, but s�ll does not receive fulfillment of their cons�tu�onal right to protec�on from prolonged isola�on.

Similarly, even in the case of prisoners who frequently refuse, CSC may meet legisla�ve standards by offering opportuni�es, but it nevertheless does not meet cons�tu�onal standards where prisoners experience extended periods of isola�on. 125 Canada, Office of the Correc�onal Inves�gator, A Preventable Death (Otawa, 20 June 2008), at paras 18-19, 42- 43. 126 IAP Sept 2022, supra note 76, at 90-91; Mental Health and the SIUs: An Update for the Structured Intervention Unit Implementation Advisory Panel, (Otawa: Public Safety Canada, January 2023) (Howard Sapers), Appendix Table 2 [IAP Mental Health Update]. 127 Sprott & Doob Feb 2021, supra note 121, at 24. 128 Ibid, at 24. 129 Ibid, at 24. 130 Ibid, at 25.

22 4.1.6 Prisoners Who Do Not Want to Leave Several sources, including judicial decisions, note the existence of a popula�on of prisoners who prefer to remain within SIUs.131 As one example, regional data from Ontario notes a specific prisoner who remained in administra�ve segrega�on through the transfer to SIUs in November 2019, un�l July 2021.132 More recently, the Office of the Correc�onal Inves�gator’s 2021-2022 Annual Report has referred to the existence of this popula�on as well.133 Internal documents suggest that CSC has faced considerable difficulty in developing a strategy for returning these prisoners to the general popula�on, including going so far as to suggest that the use of force may, in rare cases, be necessary to remove certain individuals from SIUs.134 The Implementa�on Advisory Panel has found that some ins�tu�ons may implement useful strategies to promote reintegra�on, such as involvement of Elders or Inmate Commitees in the forma�on of exit or case management plans, but that these ini�a�ves are not consistent across CSC. 135 It is important to note that the existence of prisoners who prefer to reside in SIUs does not necessarily speak in favour of SIU condi�ons so much as raise concerns about the condi�ons in the general popula�on. 136 While some prisoners have reported a preference for SIUs because of increased aten�on from or good rela�onships with staff, others have noted less posi�ve reasons, including concerns about personal safety and the condi�ons of confinement in the general popula�on.137 General popula�on condi�ons have been par�cularly problema�c during COVID-19.138 Furthermore, serious issues have been iden�fied with general condi�ons at specific ins�tu�ons, such as the frequency of lockdowns at Kent Ins�tu�on leaving many general popula�on prisoners’ �me outside of their cells at levels even more restricted than what occurs in SIUs.139 The Office of the Correc�onal Inves�gator has also found that many ins�tu�ons operate non-SIU areas under condi�ons even more restric�ve than those present in 131 BCCLA BCSC, supra note 20, at para 71. 132 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Parts 2 and 3) (21 June 2021), at 52, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11454475/11454475/Correc�onalServ iceCanada-2021-06-21-02-b.pdf> and at 53, online: <htps://www.ourcom mons.ca/content/Commitee/432/SECU/WebDoc/WD11454475/11454475/Correc�onalServ iceCanada-2021-06-21-03-b.pdf>. 133 Canada, Office of the Correc�onal Inves�gator, Annual Report 2021-2022 (Otawa, 2022) at 16 [OCI Report 2021- 2022]. 134 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 2) (23 July 2021), at 69, 78-79, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11469999/11469999/Correc�onalServ iceCanada-2021-07-23-Part2-b.pdf>. 135 IAP Sept 2022, supra note 76, at 54. 136 Ibid, at 55; House of Commons, Standing Commitee on Public Safety and Na�onal Security, Evidence, 42-1, No 137 (20 November 2018) at 1640 (Hon Kim Pate). 137 IAP Sept 2022, supra note 76, at 86. 138 OCI Report 2021-2022, supra note 133, at 16. 139 Solitary by Another Name, supra note 84, at 11.

23 the SIU, due to pressure to keep SIU numbers low and a lack of clear legisla�ve requirements around condi�ons of confinement in non-SIU units.140 Given these problems, it is unsurprising that prisoners may prefer to remain in SIUs, even where their condi�ons entail significant isola�on. 4.2 Procedural Fairness Given the serious problems present in the condi�ons of confinement in SIUs outlined in the previous sec�on, it is clear that prisoners kept in SIUs face a very high risk of viola�ons of their Charter rights.

The serious effects of SIU placement on life, liberty, and security of the person create the need for robust procedural safeguards, to ensure that such placements occur in a manner consistent with the principles of fundamental jus�ce. The appeal court decisions emphasized both prompt access to counsel and independent review of decision-making as key aspects of procedural fairness needed to cons�tu�onalize the administra�ve segrega�on scheme. This sec�on will discuss the shortcomings of the SIU legisla�ve scheme on both of these issues.

In par�cular, the lack of concrete obliga�ons rela�ng to access to counsel for prisoners in the SIU, as well as the �ming, transparency, and implementa�on problems in the IEDM scheme, create significant obstacles to procedural fairness and do litle to alleviate the risk of viola�ons of prisoners’ Charter rights. 4.2.1 The Right to Counsel While neither judicial decision struck any provisions related to access to counsel, they did affirm that access to counsel is required for a procedurally fair process.

The courts dealt with this issue primarily from the perspec�ve of procedural fairness under s. 7 of the Charter, but isola�on also engages s. 10 rights.

Placement in isola�ng condi�ons, including administra�ve segrega�on under the former regime, restricts residual liberty and so cons�tutes a new deten�on that engages the rights outlined in s. 10, such as access to habeas corpus and the right to counsel. 141 The trial court in Bri�sh Columbia affirmed this point, no�ng that prisoners placed in the isola�ng condi�ons of administra�ve segrega�on are en�tled to access to counsel that is both �mely and private.142 However, the court also noted that viola�ons of these rights may be beter suited to individual s. 24 claims by affected prisoners.143 The legisla�ve scheme post-Bill C-83 requires that CSC provide prisoners sent to SIUs with “a reasonable opportunity to retain and instruct legal counsel,” and that where a prisoner has the opportunity to make representa�ons, they may receive assistance from counsel in doing so.144 The former legisla�ve scheme offered similar rights to prisoners transferred to administra�ve segrega�on, albeit phrased more forcefully.145 However, under the new legisla�ve scheme, CSC’s concrete obliga�ons remain vague.

Non-binding policy documents such as the relevant 140 OCI Report 2021-2022, supra note 133, at 78, 81. 141 R v Miller, 1985 CarswellOnt 124, at para 35. 142 BCCLA BCSC, supra note 20, at para 437. 143 Ibid, at para 437. 144 CCRR, supra note 56, ss 97(2)(a), 97(4). 145 BCCLA BCSC, supra note 20, at para 413.

24 Commissioner’s Direc�ve largely focus on indica�ng that CSC staff should facilitate comple�on of consent forms releasing prisoners’ informa�on to their counsel.146 These policy documents lack clear standards for what cons�tutes a private mee�ng, and do not contain �melines within which mee�ngs with counsel should occur.147 It appears that the lack of firm obliga�ons in the legisla�ve scheme has contributed to prisoners experiencing difficul�es in accessing counsel.

During the period of the suspension of invalidity of the former legisla�ve scheme, there were documented cases of undue delays in access to counsel.148 During this period CSC also ended their former prac�ce of allowing a regular legal clinic at one ins�tu�on’s segrega�on unit.149 Since the introduc�on of SIUs, the West Coast Prison Jus�ce Society has documented numerous problems prisoners have encountered in accessing counsel, including issues around contact with counsel being impeded or delayed, provision of insufficiently private loca�ons for mee�ngs, lack of disclosure of the case prisoners must meet, and poor or absent communica�on of the �ming of hearings.150 Furthermore, prisoners are required to submit a request for the presence of counsel 3 days prior to a hearing, which can create significant logis�cal challenges, as prisoners are o�en only informed of the �ming of a hearing on this same day.151 These issues have led to prisoners facing hearings with crucial effects on their residual liber�es without the assistance of counsel, despite the acknowledgement by courts and the legislature of the importance of counsel for procedural fairness in these decisions. 152 4.2.2 Independent Review While SIUs contain a form of independent review of confinement decisions through the IEDM system, several concerns remain about this system’s adequacy in mee�ng procedural fairness requirements.

Crucially, and as many have pointed out, IEDM review occurs well a�er the 5 day mark iden�fied as key by the BCSC. 153 While different types of review occur at different �mepoints, length of stay reviews, as one example, largely occur in the range of 55-62 days and a�er several layers of internal review, while condi�ons of confinement reviews include a 7 day period for CSC to implement any recommenda�ons before an IEDM can order the prisoner in ques�on removed from the SIU. 154 The focus of condi�ons of confinement reviews on whether CSC has made all reasonable efforts to comply with the legisla�on, rather than the prisoner’s actual experience of isola�on, raises similar concerns to the above-men�oned focus of the 146 CD 711, supra note 93, at para 152. 147 Ibid, at paras 150-155; Correc�onal Service Canada, “Structured Interven�on Unit (SIU) Transfer Procedures – SIU Sites,” Guidelines No 711-1 (Otawa: CSC, 30 November 2019), at para 47 [GL711-1]. 148 British Columbia Civil Liberties Association v.

Canada (Attorney General), 2019 BCCA 177, at para 18. 149 British Columbia Civil Liberties Association v.

Canada (Attorney General), 2019 BCCA 177, at paras 26-28. 150 Solitary by Another Name, supra note 84, at 54-56. 151 CCRR, supra note 56, s 20(2)(b); GL711-1, supra note 147, s 54; ibid, at 55. 152 Solitary by Another Name, supra note 84, at 54-56. 153 BCCLA BCSC, supra note 20, at para 410; Senate, Standing Commitee on Social Affairs, Science and Technology, Evidence, 42-1, No 59 (9 May 2019) (Josh Paterson). 154 CCRA, supra note 49, s 37.83(3); Jane B Sprot, Anthony N Doob, and Adelina I�ene, “Do Independent External Decision Makers Ensure that ‘An Inmate’s Confinement in a Structured Interven�on Unit Is to End as Soon as Possible’?” (10 May 2021) at 7 [Sprott Doob Iftene May 2021].

25 legisla�on on opportuni�es rather than actual �me outside of SIU cells.155 In par�cular, where CSC can present an argument that reasonable atempts have been made to provide appropriate condi�ons, this focus may lead to prisoners remaining in the SIU even where they are experiencing an uncons�tu�onal degree of isola�on.

True independence of IEDM decision-making, and the percep�on thereof, have been raised as a poten�al problem, as IEDMs are appointed by the Minister of Public Safety and are allocated staff by CSC. 156 The problems in the flow of informa�on to IEDMs, as described below, could be influenced by this structure, in which CSC staff are responsible for providing the informa�on necessary to hold CSC accountable.

In addi�on to administra�ve support, IEDMs also receive training from CSC.157 The Implementa�on Advisory Panel has iden�fied several flaws in this training, such as an absence of informa�on on what elements an IEDM decision should include, as well as no�ng the poten�al for conflicts of interest to arise from the training occurring under CSC’s aegis at all.158 However, even beyond these issues, there are addi�onal concerns around CSC’s informa�on sharing with IEDMs, use of referrals to IEDMs, and implementa�on of IEDM decisions. 4.2.2.1 Problems with Transparency and Informa�on Sharing The process of IEDM decision-making raises several concerns around transparency and consistency.

Decisions are not made publicly available, despite a legisla�ve regime that explicitly contemplates this, albeit as an op�on available at individual IEDMS’ discre�on rather than in a regularized or mandated fashion. 159 Even the Implementa�on Advisory Panel has only been able to review a “small sample” of IEDM decisions.160 Furthermore, litle informa�on is available on what documenta�on IEDMs receive and base their decisions on.161 What is known about the informa�on IEDMs receive is not promising: for example, emails from December 2020 note that informa�on regarding prisoners’ mental health diagnoses had only begun to be included at that point, about a year a�er implementa�on of SIUs and a�er repeated requests,162 and IEDM requests to be given addi�onal informa�on about prisoners’ health were ongoing at least as of 155 CCRA, supra note 49, s 37.83(3). 156 Senate, Standing Commitee on Social Affairs, Science and Technology, Evidence, 42-1, No 59 (9 May 2019) at 1725 (Prof Debra Parkes); IAP Sept 2022, supra note 76, at 44-45; House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 10) (23 July 2021), at 55, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11469999/11469999/Correc�onalServ iceCanada-2021-07-23-Part10-b.pdf>. 157 IAP Sept 2022, supra note 76, at 46. 158 Ibid, at 46. 159 CCRA, supra note 49, s 37.77; CCRR, supra note 56, s 23.02; Ibid, at 47-48. 160 IAP Sept 2022, supra note 76, at 47. 161 Ibid, at 47. 162 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 2) (23 July 2021), at 8-9, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11469999/11469999/Correc�onalServ iceCanada-2021-07-23-Part2-b.pdf>.

26 April 2021.163 While IEDMs are required to consider Indigenous Social History factors, this informa�on is not always consistently provided.164 IEDMs have also reported delays in receiving documents and challenges in assessing whether they have received all relevant informa�on.165 CSC itself has acknowledged a lack of proac�vity in providing IEDMs with relevant informa�on, and has suggested that many nega�ve IEDM decisions result from informa�on gaps rather than poor condi�ons. 166 Moreover, several regions have experienced challenges in finding a procedure that would allow prisoners to communicate confiden�ally with IEDMs, which could present a significant obstacle for subjects of reviews wishing to present their version of events. 167 The accuracy of the informa�on IEDMs do receive may also pose a problem.

Internal documents indicate that data IEDMs received on �me spent outside of SIU cells and meaningful human contact were notably inaccurate, to the point that several IEDMs had apparently stopped using these data at all in their decisions. 168 The inaccuracies were seemingly centred around overlapping offers, where a prisoner might be offered, for example, a choice between two different ac�vi�es occurring at the same �me.

Even though the prisoner could only par�cipate in one ac�vity, both would be counted towards the �me offered to the prisoner for that day. 169 163 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 9) (21 June 2021), at 87, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11454475/11454475/Correc�onalServ iceCanada-2021-06-21-09-b.pdf>. 164 CCRR, supra note 56, s 23.03; IAP Sept 2022, supra note 76, at 88. 165 IAP Sept 2022, supra note 76, at 45-46. 166 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 1) (23 July 2021), at 1, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11469999/11469999/Correc�onalServ iceCanada-2021-07-23-Part1-b.pdf>. 167 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 9) (21 June 2021), at 97-100, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11454475/11454475/Correc�onalServ iceCanada-2021-06-21-09-b.pdf>. 168 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 8.1) (21 June 2021), at 42-43, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11454475/11454475/Correc�onalServ iceCanada-2021-06-21-08-1-b.pdf>. 169 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Parts 8.1 and 9) (21 June 2021), at 42-43, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11454475/11454475/Correc�onalServ iceCanada-2021-06-21-08-1-b.pdf> and at 86 , online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11454475/11454475/Correc�onalServ iceCanada-2021-06-21-09-b.pdf>.

27 Beyond this, the data also included ambigui�es concerning dura�ons of ac�vi�es offered and reasons ac�vi�es ended.170 Further heightening concerns about decision-making is the fact that individual IEDMs have notably different rates of possible decision outcomes.

In an examina�on of length of stay decisions, the Implementa�on Advisory Panel found that individual IEDM rates of decisions to remove a prisoner from an SIU varied from 0% to 50% of their decisions (se�ng aside cases where a prisoner was removed from the SIU before a decision was rendered). 171 The range was similarly variable when excluding the IEDMs with only a small number of decisions made (0% to 46.7%). 172 Of the 14 IEDMs, 9 had a removal decision rate under 10%.173 There are also substan�al regional varia�ons in IEDM decision outcomes, with the propor�on of length of stay reviews resul�ng in a decision to remove the prisoner from the SIU ranging from 20.9% in Ontario to 3.0% in the Pacific region. 174 These inconsistencies, in combina�on with the inaccessible nature of IEDMs’ reasons for decisions, suggest that different IEDMs could be basing their decisions on different criteria or standards, crea�ng a situa�on where prisoners may have difficulty determining how to effec�vely meet the case against them. 175 4.2.2.2 Problems with Referrals to IEDMs Some types of IEDM review have seen litle use.

For example, as of June 2023, there had only been 4 cases referred to an IEDM by CSC staff, and no cases of review following non- implementa�on of a health care professional’s recommenda�ons regarding condi�ons of confinement or release from an SIU.176 This absence of referrals could reflect compliance with health care professionals’ recommenda�ons, or could suggest that not all referrals to IEDMs are occurring as they should. 170 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 9) (21 June 2021), at 86, 88, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11454475/11454475/Correc�onalServ iceCanada-2021-06-21-09-b.pdf>. 171 IAP Sept 2022, supra note 76, at 49-50. 172 Ibid, at 50. 173 Ibid, at 50. 174 Independent Oversight of Structured Intervention Units in Canada’s Penitentiaries: An Update - Structured Intervention Unit Implementation Advisory Panel, (Otawa: Public Safety Canada, December 2022) (Howard Sapers), Table 3 [IAP Oversight Update]. 175 Sprott Doob Iftene May 2021, supra note 154, at 14-15. 176 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Parts 8.1, 8.2, and 12) (21 June 2021), at 51, online: htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11454475/11454475/Correc�onalServic eCanada-2021-06-21-08-1-b.pdf and at 1, online: htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11454475/11454475/Correc�onalServic eCanada-2021-06-21-08-2-b.pdf an d at 1, 36 , online: htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11454475/11454475/Correc�onalServic eCanada-2021-06-21-12-b.pdf [CS C IEDM Data ]; Access to Informa�on Request #A-2023-00110.

28 An absence of referrals to IEDMs in situa�ons where such referrals seem to be indicated has been found in the context of length of stay reviews. Specifically, data on these reviews have indicated that some cases involving very long SIU stays never result in a referral to an IEDM.

For example, of the prisoners kept in SIUs for over 120 days, 32.3% had not been sent for IEDM review.177 A comparison between data from November 2019 through March 2021 and April 2021 through July 2022 showed that in both �me periods, about a third of SIU stays over 75 days were not referred to IEDMs, even though by the later period CSC was undoubtedly aware of this problem.178 Sprot, Doob and I�ene have suggested that some por�on of this group may be prisoners who have received a release decision from one of CSC’s layers of internal review, but that CSC may be slow to implement such decisions. 179 It has also been suggested that some por�on of this group are prisoners who do not wish to leave SIUs.180 However, even as applied to this special popula�on, this lack of oversight is risky given the poor condi�ons many SIU prisoners face. 4.2.2.3 Problems with Implementa�on of IEDM Decisions Analysis of data on length of stay IEDM decisions specifically has revealed problems in implementa�on of IEDM decisions.

This dataset indicates that an IEDM decision that a prisoner should be removed from the SIU does not appear to result in any faster a removal from the SIU than a decision that they should remain there.

Few prisoners, regardless of the decision made, are released within 30 days of the decision (for example, between May 2021 and September 2022, these figures were 16.0% for remain decisions and 17.4% for release decisions). 181 The Implementa�on Advisory Panel’s first Annual Report revealed that of the prisoners who receive a remain decision, 8.8% are only released a�er the 60 day-post decision mark, while a startling 35.3% of prisoners who receive a release decision are released a�er this point.182 More recent data show that this problem has not been resolved: during the period between May 2021 and September 2022, 2.7% of prisoners with a remain decision were released from the SIU a�er more than 61 days, while 39.1% of prisoners with a remove decision remained in the SIU this long.183 This may occur, at least in part, because of logis�cal delays around transferring prisoners to different ins�tu�ons.184 Nonetheless, as was pointed out in a June 2020 email within CSC: “This is a significant risk to the SIU scheme as well as government and CSC reputa�on if it is perceived CSC ‘ignores’ the IEDM decisions.”185 Beyond reputa�onal risks, 177 IAP Sept 2022, supra note 76, at 53; for a similar trend found in earlier data see Sprott Doob Iftene May 2021, supra note 154, at 17. 178 IAP Oversight Update, supra note 174, Table 1. 179 Sprott Doob Iftene May 2021, supra note 154, at 17. 180 IAP Sept 2022, supra note 76, at 53. 181 IAP Oversight Update, supra note 174, Table 5. 182 IAP Sept 2022, supra note 76, at 52. 183 IAP Oversight Update, supra note 174, Table 5. 184 IAP Sept 2022, supra note 76, at 51; Sprott Doob Iftene May 2021, supra note 154, at 16-17. 185 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 1) (23 July 2021), at 1, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11469999/11469999/Correc�onalServ iceCanada-2021-07-23-Part1-b.pdf>.

29 these delays call into serious ques�on the efficacy of the IEDM system in restraining CSC and providing recourse to prisoners. Finally, the broader efficacy of the IEDM system over �me is not clear.

A comparison of IEDM decision data between the ini�al period of SIU opera�on (November 2019 to April 2020) and a more recent period (November 2020 to April 2021) shows that the numbers of IEDM decisions across most review types have increased, although these numbers appear to have decreased in the following years.186 However, propor�ons of different review outcomes generally do not appear to have changed in a consistent direc�on over this period.187 As such, even if we assume that IEDM decisions are perfectly accurate, they do not appear to be exer�ng a consistent pressure on CSC towards compliance (which would look like all decision types converging towards very high propor�ons of remain and no recommenda�ons outcomes).

Interes�ngly, IEDM reviews on the grounds of 4 SIU stays within 180 days have demonstrated the opposite patern, with increasing propor�ons of reviews with recommenda�ons made over �me.188 While cau�on is warranted in interpre�ng these results given the rela�vely small number of these reviews overall, these data could signal worsening compliance by CSC over �me in the realm of repeated use of shorter SIU stays. 4.3 Equality Issues Neither appeal court decision found that the administra�ve segrega�on regime violated s. 15 of the Charter on the grounds of Indigeneity, race, or disability.

However, the Department of Jus�ce’s Charter statement on Bill C-83 acknowledged that administra�ve segrega�on could have implica�ons for equality on these protected grounds. 189 In line with this acknowledgement, it is well-known that people experiencing mental illness or disability and people of colour, including in par�cular Indigenous people, are over-represented in Canada’s prisons, and are therefore at risk of par�cular exposure to systems within prisons such as SIUs.

As such, it is worthwhile to assess any disparate impacts of the new SIU system on these groups. 4.3.1 Mental Disability The Ontario Court of Appeal, while not finding a s. 15 viola�on, noted that the serious psychological harms caused by solitary confinement render such condi�ons inappropriate for prisoners with significant mental illnesses or disabili�es.190 The court refrained from finding a s. 12 viola�on based on the use of administra�ve segrega�on for this group of prisoners due to a lack of evidence available to establish criteria for exactly which prisoners a prohibi�on on this basis might apply to, but noted this might be determined in future li�ga�on.191 Subsequent class ac�ons have successfully defined a class of prisoners experiencing serious mental illnesses who would be harmed by solitary confinement-like condi�ons, and found breaches of their 186 CSC IEDM Data, supra note 176; Access to Informa�on Request #A-2023-00110. 187 CSC IEDM Data, supra note 176; Access to Informa�on Request #A-2023-00110. 188 Access to Informa�on Request #A-2023-00110. 189 DOJ Charter Statement, supra note 65. 190 CCLA ONCA, supra note 1, at para 66. 191 Ibid, at para 66.

30 sec�ons 7 and 12 rights.192 Similarly, the Department of Jus�ce has recognized that SIUs require safeguards to ensure mentally ill prisoners are not subjected to disparate harms.193 Unfortunately, data on the implementa�on of SIUs show that many prisoners placed in SIUs have mental health flags within CSC’s records, including 32.5% of SIU prisoners during the period from January 2020 to July 2022.194 This figure may be worsening over �me, as data from the first year of SIU opera�ons indicate the propor�on of SIU prisoners with mental health needs was 28%. 195 Prisoners with mental health needs are par�cularly likely to experience mul�ple periods in SIUs, and are more likely to experience SIU stays of over 15 days than prisoners without iden�fied mental health challenges.196 Prisoners with mental health needs are also less likely to receive their legislated �me outside of their cells, with 61% of this group receiving less than 4 hours on at least ¾ of their days in an SIU, as compared to 51% of prisoners without an iden�fied mental health challenge. 197 In addi�on, prisoners iden�fied as experiencing worsening mental health appear to be held in SIUs for longer periods than other groups, with 40.5% of prisoners with deteriora�ng mental health staying in SIUs for over 61 days, as compared to 21.7% and 17.5% for prisoners with constant low- or high-needs designa�ons, respec�vely. 198 These tendencies run precisely counter to what might be expected from a system designed to accommodate this group’s unique needs.

The Implementa�on Advisory Panel has noted that it does not have sufficient evidence to determine whether or not SIU stays have a therapeu�c effect for prisoners. 199 However, CSC has found a decrease in mental health needs during only 2.3% of SIU stays.200 Another key factor in assessing the SIU system’s effects on prisoners with mental illnesses is to consider how the review process, including IEDM decisions, handles their cases.

This is par�cularly helpful given the BCCA’s view that the “individualized” decision-making process from the former administra�ve segrega�on system was responsive to mentally ill prisoners’ needs. 201 However, emails between CSC and Senior IEDMs have indicated that during approximately the first year of SIU implementa�on, IEDMs did not receive informa�on on mental health diagnoses of prisoners whose cases they were reviewing, despite repeated 192 Brazeau v Attorney General (Canada), 2019 ONSC 1888, at paras 17, 308, 310, 371 (aff ’d Brazeau v Canada (Attorney General), 2020 ONCA 184); Francis v Ontario, 2021 ONCA 197, at para 49. 193 DOJ Charter Statement, supra note 65. 194 IAP Mental Health Update, supra note 126, Appendix Table 1; see IAP Sept 2022, supra note 76, for similar data pertaining to the period between November 2019 and February 2022, at 78. 195 Sprott & Doob Feb 2021, supra note 121, at 20-21. 196 IAP Sept 2022, supra note 76, at 78-79, 115; IAP Mental Health Update, supra note 126, Appendix Tables 1, 4. 197 IAP Mental Health Update, supra note 126, Appendix Table 8. 198 Ibid, Table A; see for a similar trend with less recent data IAP Sept 2022, supra note 76, at 61-62. 199 IAP Sept 2022, supra note 76, at 80. 200 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 4) (3 and 9 June 2021), at 164, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11415639/11415639/Correc�onalServ iceCanada-04-b.pdf>. 201 BCCLA BCCA, supra note 13, at para 236.

31 requests.202 The effect of this lack of informa�on is illustrated by IEDM decision outcomes in length of stay reviews, which do not appear to be affected by the presence or absence of mental health needs.203 When an IEDM does decide a prisoner should be removed from the SIU, the presence or absence of a mental health need also does not affect the �meliness with which this decision is carried out.204 Also concerning is the fact that as of June 2023, there had been no recorded uses of referrals to IEDMs upon recommenda�on by a health care professional, and only 4 referrals by other CSC staff.205 While this could also reflect a situa�on where recommenda�ons of health care professionals are consistently followed, this interpreta�on appears less plausible in light of the above-men�oned data indica�ng the presence of many prisoners with mental health challenges, including challenges that are worsening, within SIUs.

Rela�vely litle informa�on is available regarding the requirements for assessment of SIU prisoners by health care professionals, and the Implementa�on Advisory Panel has noted an absence of data on the implementa�on of this measure, rendering accountability on this point even more difficult. 206 4.3.2 Indigeneity and Race The Department of Jus�ce has acknowledged that systems administering isola�on within prisons have the poten�al to exert dispropor�onately nega�ve effects on racialized prisoners.207 Neither appeal court decision found a s. 15 viola�on on the grounds of race.

However, data on SIU usage indicate that Black and Indigenous prisoners experience dispropor�onate effects of the SIU system.

Indigenous prisoners have made up a dispropor�onately large share of SIU prisoners since the system’s implementa�on.208 Indigenous women are even more starkly overrepresented.209 Indigenous prisoners are also more likely to experience SIU stays longer than 15 days, a trend that has worsened during the �me SIUs have been in opera�on.210 While Indigenous prisoners seem to be more likely to receive their en�tlements to �me outside of their cells and meaningful human contact, the Implementa�on Advisory Panel has suggested that this may be an ar�fact of regional varia�on across ins�tu�ons rather than an ameliora�ve effort by CSC.211 It is also important to note that despite this ar�factual effect, Indigenous prisoners in SIUs s�ll 202 House of Commons, Standing Commitee on Public Safety and Na�onal Security, Documents submitted pursuant to the motion adopted by the committee on Wednesday, May 5, 2021, Correctional Service of Canada (Part 2) (23 July 2021), at 8-9, online: <htps://www.ourcommons.ca/content/Commitee/432/SECU/WebDoc/WD11469999/11469999/Correc�onalServ iceCanada-2021-07-23-Part2-b.pdf>. 203 IAP Mental Health Update, supra note 126, Appendix Table 11. 204 Ibid, Appendix Tables 11, 12. 205 CSC IEDM Data, supra note 176; Access to Informa�on Request #A-2023-00110. 206 IAP Sept 2022, supra note 76, at 40; see also CD 711, supra note 93, at paras 98-100. 207 DOJ Charter Statement, supra note 65. 208 IAP Indigenous Prisoners Update, supra note 101, Appendix Table 2. 209 Ibid, Table A. 210 Ibid, Table B, Appendix Table 9. 211 Ibid.

32 miss a significant por�on of their �me outside of the cell and their meaningful human contact �me: for example, 45.5% of Indigenous prisoners experiencing a long SIU stay missed reaching a full 4 hours outside of their cells on more than ¾ of their days in the SIU, and 20.3% of Indigenous prisoners experiencing a long SIU stay missed reaching a full 2 hours of meaningful human contact on more than ¾ of their days in the SIU. 212 As in the SIU popula�on as a whole, these data cannot be fully explained by prisoners refusing opportuni�es, as many Indigenous prisoners refuse these opportuni�es only rarely.213 As described by the Implementa�on Advisory Panel, these data are indica�ve of an urgent problem in how CSC treats Indigenous prisoners in the SIU context.214 The Office of the Correc�onal Inves�gator has also noted the Black prisoners are dispropor�onately likely to be placed in SIUs, and to experience very long stays. 215 In data covering the period between November 2019 and September 2020, 26.8% of Black prisoners’ stays in SIUs lasted longer than two months, as compared to 19.5% of white prisoners’ SIU stays. 216 Black prisoners are more likely to receive mul�ple IEDM length of stay reviews: of Black prisoners receiving length of stay reviews, 45.2% received more than one, as compared to 31.7% for white prisoners. 217 These data suggest that not only are Black prisoners experiencing longer SIU stays, but that the IEDM system is not adequately resolving this problem.218 5 Conclusion As this report has confirmed, the new SIU regime retains many of the cons�tu�onal viola�ons that its predecessor, administra�ve segrega�on, was found to possess.

The significant qualita�ve differences between administra�ve segrega�on and SIUs an�cipated by the government do not appear to have materialized. A full comparison between the promises of the Charter Statement produced by the Department of Jus�ce and the reali�es of SIU implementa�on can be found in Annex I. Overall, despite legisla�ve standards requiring daily opportuni�es for �me spent outside of cells and engaging in meaningful human contact, many prisoners do not consistently receive these en�tlements.

In fact, framing these en�tlements as based around providing opportuni�es, rather than required amounts of �me, diminishes accountability and makes it possible for CSC to fulfill their legisla�ve requirements on this issue while s�ll leaving prisoners no less vulnerable to substan�al psychological harm. Furthermore, many prisoners remain in SIUs for periods exceeding 15 days, surpassing the cons�tu�onal limit on exposure to such condi�ons.

As a result of these long-las�ng condi�ons of isola�on, a significant por�on of prisoners in SIUs experience condi�ons that fall under the defini�on of solitary confinement, and a subgroup of 212 Ibid, Appendix Tables 12, 13. 213 Ibid, Appendix Tables 22, 23. 214 Ibid. 215 OCI Report 2021-2022, supra note 133, at 17. 216 Sprott Doob Iftene May 2021, supra note 154, at 10-11. 217 Ibid, at 9-10. 218 Ibid, at 9.

33 these prisoners experience condi�ons of torture. While an external review mechanism exists, it is lacking in transparency and is in many cases ineffec�ve, with many IEDM decisions complied with only a�er significant delays. Ini�al layers of review occur internally and in an insufficiently independent fashion, and external review occurs only a�er extended periods, in contraven�on of the cons�tu�onal requirement for external review at the 5 day mark. Each of these problems prevents vindica�on of prisoners’ cons�tu�onal right to procedural fairness in the SIU context.

In line with these flaws, the review system for SIUs has not succeeded in elimina�ng uncons�tu�onal condi�ons of isola�on or in ending overrepresenta�on of prisoners who are Indigenous or who are experiencing mental illnesses. Altogether, as many experts predicted during the legisla�ve process for Bill C-83, these flaws contribute to a system that perpetuates the viola�ons of sec�ons 7 and 12 of the Charter iden�fied by the two appeal court decisions. This report has further iden�fied some of the discriminatory effects of the SIU regime relevant to sec�on 15 equality arguments.

SIUs cannot be said to have resolved the problems that rendered administra�ve segrega�on uncons�tu�onal. These cons�tu�onal viola�ons, and the SIU system that permits them, should not be permited to con�nue. As the five-year review of Bill C-83 approaches, it is clear that a new approach that respects the rights of prisoners both on paper and in prac�ce is urgently needed. Significant changes to the SIU regime are needed to bring it in line with cons�tu�onal requirements.

The following list outlines a set of recommenda�ons that would promote cons�tu�onal compliance and which should be considered as star�ng points for amendment as the five-year review of Bill C-83 proceeds. • Ensure that the five-year review of Bill C-83 is both expedi�ous and thorough, so as to fully address the ongoing Charter viola�ons iden�fied in this paper.

This review should include par�cipa�on by civil society, and should be given a mandate to make recommenda�ons related to all aspects of these problems, including those connected to compliance and enforcement. • Amend the CCRA to define “solitary confinement” in line with the Mandela Rules defini�on. • Prohibit prolonged solitary confinement by crea�ng a cap on the dura�on of SIU stays of 15 days.

This limit should ideally be combined with addi�onal limits on the frequency with which a prisoner can be returned to the SIU a�er release and/or the total amount of �me a prisoner can spend in the SIU on a yearly basis. • Prohibit the use of SIUs for prisoners experiencing serious mental health challenges. • Mandate improved data-sharing with the public and civil society, including by requiring publica�on of IEDM decisions with redac�ons as needed to address privacy and security concerns, to promote transparency and consistency in decision-making. • Provide special aten�on to other key sources of cons�tu�onal viola�ons, including ensuring prisoners receive adequate �me outside of their cells, that IEDM decisions meet fairness standards, and that the needs of Indigenous and Black prisoners are priori�zed.

34 Annex I: Comparison of DOJ Charter Statement and Current Knowledge on SIU Implementa�on The Charter Statement on Bill C-83 prepared by the Department of Jus�ce sets out numerous claims about the cons�tu�onality of the SIU regime, with the aim of indica�ng the government’s reasoning in considering the bill cons�tu�onally compliant.219 Many of the arguments presented in this document were echoed by the government during the legisla�ve process. However, many of these claims have not corresponded well to the reali�es of the legisla�ve scheme as writen or the implementa�on of the SIU system in prac�ce.

This Annex sets out each statement about the cons�tu�onality of SIUs made in the Charter Statement, and provides informa�on about the problems that have arisen on each of these points, both within the legisla�on itself and based on the available implementa�on data. These explana�ons are accompanied by references to the pages of this report discussing these problems in further detail. Each statement is also accompanied by a descrip�on of addi�onal data needed to more fully assess how CSC has performed in implemen�ng the goals of the SIU system.

Sec�ons 7 and 12 DOJ: “First, the provisions specify the safety- and security-related reasons why designated staff members can transfer inmates to an SIU. They also require regular review of an inmate’s confinement in an SIU in light of these permissible reasons, and require the confinement to end as soon as possible.

The inclusion of these provisions proscribes arbitrary or overbroad impacts on liberty and security of the person, by requiring that an inmate’s confinement in an SIU always has a ra�onal connec�on to the objec�ves of the SIU scheme.” 220 Current Knowledge: The specified reasons for use of SIUs are very similar to the permited reasons for the use of the former administra�ve segrega�on system. While safety and security are important, the courts have found that keeping prisoners in condi�ons of extended isola�on does not support these goals, and instead detracts from them.

As such, in a system that con�nues to allow extended and severe isola�on, the jus�fica�ons for SIU use present in the legisla�on are not sufficient to prevent overbroad effects on prisoners’ s. 7 Charter rights. See pages 2-3, above. Further Informa�on Needed: The degree to which SIU stays contribute to or detract from ins�tu�onal safety and security goals could be illuminated with further informa�on on the frequency with which individual prisoners undergo repeated SIU placements.

Frequent returns to SIUs by the same individuals would suggest that SIUs do not successfully rehabilitate prisoners from posing future safety and security risks, and that their use may therefore be overbroad. 219 Government of Canada, “Bill C-83:

An Act to amend the Correc�ons and Condi�onal Release Act and another Act” (7 May 2019, last updated 1 September 2021), online: <htps://www.jus�ce.gc.ca/eng/csj-sjc/pl/charter- charte/c83.html> [D OJ Charter Statement ]. 220 Ibid.

35 DOJ: “Second, the decision whether to continue an inmate’s confinement in an SIU can be made in a procedurally fair manner. The provisions require the initial transfer decision to be made by a designated staff member who holds a position lower in rank than the institutional head. The staff member must maintain a record of the transfer, including the reasons for it and any alternative measures that were considered. Notice of the authorization to transfer and the reasons must be provided to the inmate orally within one working day of the initial transfer, and in writing within two working days.

Then, the institutional head must decide, within five working days of the transfer, whether the inmate should remain in SIU. The provisions define the grounds for the institutional head’s decision (again related to safety and security), along with some factors that must be taken into account.

This decision-making process respects impartiality and independence requirements by ensuring that in conducting the fifth working day review, the institutional head is neither chosen by the staff member whose initial transfer decision is under review, nor reporting to or otherwise in the sphere of influence of that staff member.

Procedural aspects of this decision-making process will be further prescribed by law in regulations made by the Governor in Council.” 221 Current Knowledge: The scheme of internal reviews prior to IEDM involvement described by the Department of Justice and set out in the legislation does not provide sufficient independence or procedural fairness, according to the standards found necessary by the British Columbia Court of Appeal. See page 3, above.

Further Informa�on Needed: Despite a right to counsel acknowledged in both the judicial decisions and the CCRR, it is not clear to what extent prisoners are afforded a right to counsel within this decision-making process in prac�ce. Notably, there have been reports of prisoners facing obstacles in receiving �mely and private legal advice, as well as barriers to par�cipa�on of counsel in hearings. Informa�on clarifying the extent of these problems and whether their prevalence has changed over �me could provide a beter picture of whether CSC is mee�ng the promise of procedural fairness in SIU decision-making.

DOJ: “Third, the provisions set out several requirements for the conditions of detention in SIUs, and seek to ensure accountability in meeting those requirements. The provisions state the general principle that an inmate in an SIU has the same rights as other inmates, except for those that cannot be exercised due to limitations specific to the SIU or security requirements. The provisions require that inmates in an SIU be afforded the opportunity to have a minimum of four hours a day outside of their cell. Time spent taking a shower will not count towards the four hours.

There is also a requirement to afford the opportunity to have meaningful human contact: a minimum of two hours a day interacting with others, including leisure time and rehabilitation programs. Every reasonable effort must be made to ensure that the meaningful human contact is not mediated or interposed by physical barriers. For each instance where such barriers exist, a record must be kept. 221 Ibid.

36 “These required daily opportunities must take place between the hours of 7:00 am and 10:00 pm. The requirements are subject to defined exceptions, for example where the inmate refuses the opportunity or does not comply with reasonable instructions to ensure safety. However, a record must be kept of any instance where these exceptions are relied on.

Further, if for five consecutive days or for a total of 15 days during any 30-day period, an inmate has not spent a minimum of four hours a day outside the cell or interacted for a minimum of two hours a day with others, an independent external decision-maker is to determine, as soon as practicable, whether the Correctional Service of Canada has taken all reasonable steps to provide, and to encourage the inmate to avail themselves of these opportunities.

Upon determining that the Service has not taken all reasonable steps, the independent external decision-maker may make any recommendation they consider appropriate to remedy the situation.

If, within seven days of receiving recommendations, the Service fails to satisfy the decision-maker that it has taken all reasonable steps to provide the inmate with such opportunities, the decision-maker is to direct the Service to remove the inmate from the SIU.” 222 Current Knowledge: Standards for time spent outside of the SIU cell and time spent in meaningful human contact are both framed as requirements for opportunities, rather than direct requirements for receipt of a certain amount of time.

As such, CSC may be in compliance with the legislation even where prisoners receive no time outside of their cells at all, so long as offers are made. Similarly, this type of IEDM review focuses on CSC’s efforts, rather than the effects on the prisoner. Framing the requirements for the conditions of confinement in this manner leaves significant room within the legislative scheme for prisoners to continue experiencing harmful isolation that violates their constitutional rights.

IEDM decision-making on conditions of confinement is also dependent on information received from CSC, which, along with diminishing independence, imports the risks associated with the known inaccuracies in CSC record-keeping on this topic. See pages 9, 11, and 20-21, above. In practice, many prisoners do not meet the 4 hour and 2 hour daily standards, whether because they are not offered sufficient opportunities or because they do not accept the opportunities that are offered. See pages 9-11, above.

The legislation does not include any limit on the duration of SIU stays, in contravention of the Ontario Court of Appeal’s finding that a 15 day limit is necessary. Many prisoners experience stays longer than 15 days. A subset of these prisoners also experience so little meaningful human contact that their condit