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Bill 113, Ministry of Correctional Services Amendment Act (Limits on Solitary Confinement), 2019

Des Rosiers, Nathalie

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Bill 113 Original (PDF)

EXPLANATORY

NOTE

The

Bill amends the Ministry of Correctional Services Act

with respect to the humane treatment of inmates and ending solitary

confinement.

The

Bill prohibits any cruel, inhumane or degrading treatment or punishment. It prohibits

holding an inmate under overly rigorous physical constraints or surveillance.

It prohibits sensory deprivation or disorientation and punishments that

withdraw things necessary for good health. It requires the superintendent to

ensure the Canadian Charter of Rights and Freedoms

is complied with. Violation of these rules is an offence.

The

Bill requires the creation of a plan to phase out solitary confinement over

five years. At the end of those five years, the Bill prohibits solitary

confinement.

During

those five years, the Bill imposes restrictions on the use of solitary

confinement. It restricts who may be held in solitary confinement and for how

long. The restrictions become more stringent over time. The Bill also provides

for safeguards, including independent reviews, reviews by health professionals,

and rights to exercise, to have visitors and to have darkness at night.

There

is also provision for reviews of cases of inmates held in conditions that are

highly restrictive but are not solitary confinement.

Bill 113 2019

Act to amend the Ministry of Correctional Services Act with respect to solitary

confinement

Her

Majesty, by and with the advice and consent of the Legislative Assembly of the

Province of Ontario, enacts as follows:

(1) Section 1 of the Ministry of Correctional

Services Act is amended by adding the following definition:

“solitary

confinement” means any type of custody where an inmate is highly restricted in

movement and association with others for 22 hours or more per day. (“isolement

cellulaire”)

(2) The

definition of “solitary confinement” in

section 1 of the Act, as enacted by

subsection (1), is repealed.

The Act is amended by adding the following section:

Prohibited

treatment or punishment

Cruel,

inhumane, degrading

13.1

(1) No

person shall administer or instigate any cruel, inhumane or degrading treatment

or punishment of an inmate.

Specific

types of treatment or punishment

(2) No

person shall administer or instigate any of the following treatments or

punishments of an inmate, regardless of whether the treatment or punishment

would constitute cruel, inhumane or degrading treatment or punishment:

1. Holding

the inmate in physical circumstances that are more rigorous than is reasonably

necessary to protect his or her safety or the safety of others.

2. Subjecting

the inmate to surveillance that is more rigorous than is reasonably necessary

to protect his or her safety or the safety of others.

3. Subjecting

an inmate to sensory deprivation or disorientation.

4. Punishing

the inmate by depriving him or her of food, exercise, periodic human contact or

access to medical observation and treatment.

Offence

(3) Every

person who contravenes subsection (1) or (2) is guilty of an offence and on

conviction is liable to a fine of not more than $50,000 or imprisonment for a

term of not more than two years, or both.

(1) Subsection 20 (2) of the Act is repealed and the following

substituted:

Duties

(2) The

superintendent shall,

(

a) receive

into the institution every person delivered under lawful authority for

detention in the institution;

(

b) be

responsible for the custody and supervision of such person until his or her

term of imprisonment is completed or until the person is transferred or

otherwise discharged in due course of law; and

(

c) ensure

that such person is treated in compliance with the Canadian

Charter of Rights and Freedoms .

(2) Section

20 of the Act is amended by adding the following subsection:

Offence

(6) Every

person who contravenes clause (2) (

c) is guilty of an offence and on conviction

is liable to a fine of not more than $50,000 or imprisonment for a term of not

more than two years, or both.

The Act is amended by adding the following Part:

PART

II.1

Solitary confinement

Plan

to End Solitary Confinement

Plan

to end solitary confinement

30.1

(1) The Minister

shall, in collaboration with superintendents, other correctional institution

employees and the unions that represent correctional workers, develop and

implement a plan to completely phase out the use of solitary confinement in

Ontario within five years after the day the Ministry of

Correctional Services Amendment Act (Limits on Solitary Confinement), 2019

received Royal Assent.

Tiered

reduction of use of solitary confinement

(2) The

plan must provide for the holding of an inmate in solitary confinement to be

restricted to,

(

a) within

one year after the day the Ministry of Correctional

Services Amendment Act (Limits on Solitary Confinement), 2019 received

Royal Assent, no more than 10 consecutive days and no more than 55 days in every

365-day period; and

(

b) within

three years after the day the Ministry of Correctional

Services Amendment Act (Limits on Solitary Confinement), 2019 received

Royal Assent, no more than five consecutive days and no more than 40 days in every

365-day period.

Publication

of report

(3) The

Minister shall publish an annual report on a website of the Government of

Ontario that sets out the plan to phase out the use of solitary confinement and

describes the progress made towards achieving that goal.

Publication

date

(4) The

annual report must be published in each year on or before the anniversary of

the day the Ministry of Correctional Services Amendment

Act (Limits on Solitary Confinement), 2019 received Royal Assent.

Limits

on Solitary Confinement

solitary confinement of certain inmates

30.2 An inmate shall not be

held in solitary confinement if the inmate,

(

a) is

pregnant or has recently given birth;

(

b) is

chronically self-harming or suicidal;

(

c) has

a mental disorder, or an intellectual disability, that meets the prescribed

conditions;

(

d) needs

medical observation; or

(

e) has

a mobility impairment that meets the prescribed conditions.

15-day

consecutive maximum

30.3

(1) A

superintendent shall immediately remove an inmate from solitary confinement if

he or she has been held in those conditions for more than 15 consecutive days.

Five-day

interval

(2) If

an inmate was recently held in solitary confinement, the superintendent shall

not hold the inmate in solitary confinement again unless at least five days

separate the end of the previous period of solitary confinement from the

beginning of the new one.

Transfers

do not constitute break

(3) For

the purposes of this section, a transfer of an inmate who was held in solitary

confinement in one correctional institution to a different correctional

institution does not constitute a break in his or her consecutive days of being

held in solitary confinement.

60-day

aggregate maximum

30.4

(1) The

superintendent shall ensure that no inmate is held in solitary confinement for

more than 60 aggregate days in the most recent 365-day period.

Transfers

do not constitute break

(2) For

the purposes of this section, a transfer of an inmate who was held in solitary

confinement in one correctional institution to a different correctional

institution does not affect the calculation of the aggregate number of days he

or she has been held in solitary confinement.

Health

Care and Conditions of Confinement

Regular

evaluation of inmate in solitary confinement

Health

care service team

30.5

(1) The

Minister shall establish health care service teams consisting of at least one

individual qualified to diagnose physical health issues and one individual

qualified to diagnose mental health issues and assign each team to one or more

correctional institutions.

Regular

evaluation

(2) When

an inmate is being held in solitary confinement, the superintendent shall

ensure that a member of the health care service team qualified to diagnose

physical health issues and a member of the health care service team qualified

to diagnose mental health issues visit the inmate and evaluate his or her

condition at least once every three days.

Visits

and evaluation as necessary

(3) The

superintendent shall ensure that the members referred to in subsection (2) are

permitted to visit and evaluate the inmate whenever any of them considers it to

be necessary.

Exercise

30.6 The superintendent

shall ensure that every inmate held in solitary confinement is given the

opportunity to participate in exercise outside of his or her cell for at least one

hour every day.

Regular

visits

30.7

(1) The

superintendent shall ensure that every inmate held in solitary confinement is

given the opportunity to have another person visit and converse with them for

at least one hour every day.

Communication

through a meal hatch insufficient

(2) Communication

through a meal hatch does not constitute a visit or conversation for the

purposes of subsection (1), unless there is a safety or security concern that

cannot be addressed in any other manner.

Darkness

at night

30.8 The superintendent

shall ensure that every inmate held in solitary confinement is given an

adequate amount of darkness for an adequate amount of sleep during the night.

Independent

Review Panel

Conditions

of confinement review and recommendations

30.9 The Independent Review

Panel shall,

(

a) review,

in accordance with the regulations,

(

i) the

cases of inmates held in solitary confinement, and

(ii) the

cases of inmates who,

(

A) are

held in any other type of custody in which the inmate is highly restricted in

movement and association with others for a period of time that is longer than

the standard in general population housing in the correctional institution, and

(

B) meet

the prescribed conditions; and

(

b) make

recommendations concerning those inmates to the superintendent, including

recommendations in relation to an inmate’s conditions of confinement.

Solitary

confinement reports and referral

30.10

(1) The

superintendent shall create a report stating the reasons for holding the inmate

in solitary confinement at each of the following times:

1. When

the inmate has been held in solitary confinement for 72 consecutive hours.

2. When

the inmate has been held in solitary confinement for five consecutive days.

3. When

the inmate has been held in solitary confinement for 10 consecutive days.

Written

report

(2) The

superintendent shall provide a written copy of every report made under

subsection (1) to the inmate and, at the inmate’s request, shall provide the

inmate with a reasonable number of copies.

Notice

at 72 hours

(3) If

the inmate is held in solitary confinement for 72 or more consecutive hours or

if the superintendent plans to hold the inmate in solitary confinement for 72

or more consecutive hours, the superintendent shall immediately provide notice

of the confinement to the Independent Review Panel.

Referral

at five days

(4) If

the inmate is held in solitary confinement for five consecutive days, the

superintendent shall immediately refer the matter to the Independent Review

Panel.

Referral

at 10 days

(5) If

the inmate is held in solitary confinement for 10 consecutive days, the

superintendent shall immediately refer the matter to the Independent Review

Panel.

Transfers

do not constitute break in solitary confinement

(6) For

the purposes of this section, a transfer of an inmate who was held in solitary

confinement in one correctional institution to a different correctional

institution does not constitute a break in his or her consecutive days of being

held in solitary confinement.

Referral

at 30 and 55 aggregate days

30.11

(1) The

superintendent shall make a referral to the Independent Review Panel as soon as

an inmate has been held in solitary confinement for,

(a) 30

aggregate days in the most recent 365-day period; and

(b) 55

aggregate days in the most recent 365-day period.

Notice

to Minister

(2) The

superintendent shall notify the Minister as soon as a referral is made under

clause (1) (b).

Review

hearings

30.12

(1) If a

case is referred to an Independent Review Panel under subsection 30.10 (4) or

(5) or

section 30.11, the Panel shall initiate a review hearing of the matter

no later than five days after the case is referred or such earlier time as may

be prescribed.

Matter

to be reviewed

(2) The

Panel shall determine whether there are alternative arrangements to solitary

confinement available in the institution for the inmate, and whether it is

appropriate to continue holding the inmate in solitary confinement.

concurrent review hearings

(3) If

the Independent Review Panel is already in the process of conducting a review

hearing respecting an inmate’s case at the time it receives another referral to

initiate a review hearing for the inmate, it shall combine the hearings into a

single hearing.

Parties

(4) The

parties to the review hearing are the superintendent and the inmate.

Notification

of review hearing

(5) The

Panel shall notify the inmate who is the subject of the review hearing, in

writing, of,

(

a) the

date, time and location of the review hearing;

(

b) the

inmate’s right to appear at the review hearing with or without a lawyer or

other person to provide assistance;

(

c) the

inmate’s right to testify, present relevant documents, call witnesses and

cross-examine witnesses; and

(

d) any

other prescribed information.

Public

hearing

(6) The

review hearing shall be open to the public, subject to any prescribed limits.

Telephone

and video conferences

(7) A

review hearing is deemed to be open to the public if the public can access it

by,

(

a) telephone;

(

b) videoconference;

(

c) a

prescribed method.

Rules

(8) The

Panel may make rules governing the practice and procedure before it at the

review hearing.

Submissions

(9) In

making submissions to the Panel, the superintendent and the inmate, or their

representative, may testify, present relevant documents, call witnesses and

cross-examine witnesses.

Superintendent’s

representative

(10) The

superintendent may present his or her case at the review hearing or may appoint

a representative to present his or her case.

Superintendent’s

submissions

(11) The

superintendent, or his or her representative, must,

(

a) advise

the Panel of the steps the superintendent has taken, tried to take or will take

to improve the inmate’s conditions of confinement so that it is no longer

necessary to hold the inmate in solitary confinement; and

(

b) provide

the Panel with evidence from any health professionals who have recently

assessed or treated the inmate, where available, including any reports or

recommendations made by them.

Viewing

of a correctional institution

(12) If,

in the opinion of the Panel, a viewing of all or part of a correctional

institution is necessary to determine the issues before the Panel, the Panel

shall inform the superintendent of the correctional institution.

Same,

superintendent

(13) The

superintendent shall facilitate the viewing in accordance with such

requirements as may be prescribed and subject to such conditions as may be

prescribed.

Decision

timing

(14) The

Panel shall provide notice of its decision to the inmate and to the

superintendent within 24 hours after conducting the review hearing and may

order, subject to such conditions and limitations as the Panel may determine,

(

a) that

the inmate’s conditions of confinement be altered so as not to constitute solitary

confinement;

(

b) that

the inmate continue to be held in solitary confinement but that some of the

conditions of their confinement be altered; or

(

c) that

the inmate shall continue to be held in solitary confinement.

Written

reasons

(15) The

Panel shall,

(

a) provide

the inmate and the superintendent with written reasons for the decision as soon

as possible, but no later than four days after the day of the decision and, at

the inmate’s request, shall provide the inmate with a reasonable number of

copies; and

(

b) send

a written copy of the decision to a third party at the inmate’s request.

Decision

to continue solitary confinement

(16) If

the Panel orders that an inmate shall continue to be held in solitary

confinement, the Panel shall, in its decision,

(

a) include

details regarding other options for the inmate that were considered and

rejected and provide written reasons as to why solitary confinement is the only

reasonable and necessary option; and

(

b) document

all evidence relied upon and any conflicting evidence or opinions that were

brought forward during the review hearing.

Superintendent’s

compliance

(17) The

superintendent shall comply with a decision made under this section, including

the timelines set out in the decision, as soon as possible after receiving

notice of the decision, but is not required to comply with any portion of a

decision if,

(

a) the

superintendent would be required to use force on an inmate who does not intend

to comply with the security measures that are necessary to safely implement

that portion of the decision; or

(

b) it

would require the superintendent to contravene

section 30.3 or 30.4.

Does

not prevent application for habeas corpus

(18) For

greater certainty, a proceeding under this

section does not prevent an inmate

from making an application to the courts for relief in the nature of habeas corpus .

Sections 30.1 and 30.2 of the Act, as enacted by

section 4, are repealed and

the following substituted:

Prohibition

on solitary confinement

30.1 The superintendent

shall ensure that no inmate is held in any type of custody where the inmate is

highly restricted in movement and association with others for 22 hours or more

per day.

(1) Subsection 30.3 (1) of the Act, as enacted by

section 4, is

repealed and the following substituted:

10-day

consecutive maximum

(1) A

superintendent shall immediately remove an inmate from solitary confinement if

he or she has been held in those conditions for more than 10 consecutive days.

(2) Subsection

30.3 (1) of the Act, as re-enacted by subsection (1), is repealed and the

following substituted:

5-day

consecutive maximum

(1) A

superintendent shall immediately remove an inmate from solitary confinement if

he or she has been held in those conditions for more than five consecutive

days.

(3) Section

30.3 of the Act is repealed.

(1) Subsection 30.4 (1) of the Act, as enacted by

section 4, is

repealed and the following substituted:

50-day

aggregate maximum

(1) The

superintendent shall ensure that no inmate is held in solitary confinement for

more than 50 aggregate days in the most recent 365-day period.

(2) Subsection

30.4 (1) of the Act, as re-enacted by subsection (1) is repealed and the

following substituted:

40-day

aggregate maximum

(1) The

superintendent shall ensure that no inmate is held in solitary confinement for

more than 40 aggregate days in the most recent 365-day period.

(3) Section

30.4 of the Act is repealed.

Sections 30.5 to 30.8 of the Act, as enacted by

section 4, are repealed.

Clause 30.9 (

a) of the Act, as enacted by

section 4, is repealed and the

following substituted:

(

a) review,

in accordance with the regulations, the cases of inmates who,

(

i) are

held in a type of custody in which the inmate is highly restricted in movement

and association with others for a period of time that is longer than the

standard in general population housing in the correctional institution, and

(ii) meet

the prescribed conditions; and

(1) Paragraph 3 of subsection 30.10 (1) of the Act, as enacted by

section 4, is repealed.

(2) Subsection

30.10 (4) of the Act, as enacted by

section 4, is repealed.

(3) Subsection

30.10 (5) of the Act, as enacted by

section 4, is repealed.

(4) Section

30.10 of the Act, as enacted by

section 4, is repealed.

(1) Subsection 30.11 (1) of the Act, as enacted by

section 4, is

amended by striking out “and” at the end of clause (

a) and repealing clause

(b).

(2) Section

30.11 of the Act is repealed.

(1) Subsection 30.12 (1) of the Act, as enacted by

section 4, is

amended by striking out “or (5)”.

(2) Subsection

30.12 (1) of the Act, as amended by subsection (1), is amended by striking out

“subsection 30.10 (4) or”.

(3) Section

30.12 of the Act is repealed.

(1) Subsection 60 (1) of the Act is amended by adding the following

clauses:

(

m) governing

the calculation of the number of days an inmate has been held in solitary

confinement for the purposes of this Act;

(

n) establishing

and governing the process for making a referral to an Independent Review Panel;

(

o) governing

the quorum and composition of Independent Review Panels;

(

p) governing

the procedure for review hearings before an Independent Review Panel;

(

q) governing

the review process referred to in

section 30.9;

. . . .

(

w) prescribing

any other matter that this Act requires to be prescribed or refers to as being

prescribed;

(

x) providing

for any transitional matter that the Lieutenant Governor in Council considers

necessary or advisable in connection with the implementation of the amendments

made by the Ministry of Correctional Services Amendment

Act (Limits on Solitary Confinement), 2019 .

(2) Clauses

60 (1) (m), (

n) and (

p) of the Act, as enacted by subsection (1), are repealed.

Commencement

(1) Subject to subsections (2) to (4), this Act comes into force three

months after the day it received Royal Assent.

(2) Subsections

6 (1), 7 (1), 10 (1) and (3), 11 (1) and 12 (1) come into force one year after

the day this Act receives Royal Assent.

(3) Subsections

6 (2), 7 (2), 10 (2) and 12 (2) come into force three years after the day this

Act receives Royal Assent.

(4) Subsection

1 (2),

section 5, subsections 6 (3) and 7 (3), sections 8 and 9 and subsections

10 (4), 11 (2), 12 (3) and 13 (2) come into force five years after the day this

Act receives Royal Assent.

Short

title

The

short title of this Act is the Ministry of

Correctional Services Amendment Act (Limits on Solitary Confinement), 2019 .

Date Bill stage Event Outcome Committee

May 13, 2019

First Reading

Vote

Carried

Debates and Progress

First Reading

May 13, 2019

Committee

Second Reading

Committee

Third Reading

Royal Assent

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