Ontario Appeal Court ruling should end challenges that support solitary

John L. Hill

There is an old adage in prison law that “one goes to prison as punishment, not for punishment.” Staff at Ontario’s Ministry of Correctional Services (CSC) must not have understood the concept. When Justice Paul Purell handed down his well-researched decision in the case of Francis v. Ontario 2020 ONSC1644, the province’s knee-jerk response was to appeal.

Justice Purell had awarded $30 million in damages in the class action to prisoners in Ontario correctional institutions who had suffered solitary confinement. The Superior Court judge had found that Ontario had violated the segregated inmates’ constitutional rights under ss. 7 and 12 of the Charter as well as committed negligence in their treatment of a vulnerable population.

Conrey Francis was the representative plaintiff in the class action lawsuit. Francis had spent two years awaiting trial at the Toronto South Detention Centre. During his stay, it was known that the prisoner had mental health problems. On occasion he refused his medication. The refusals on two occasions resulted in his being placed in “the hole,” a term prisoners use to describe solitary confinement.

That isolation can damage a person’s mental health has long been known. In 1850, Charles Dickens wrote this about the use of solitary confinement while touring North American prisons: “I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers; and in guessing at it myself, and in reasoning from what I have seen written upon their faces, and what to my certain knowledge they feel within, I am only the more convinced that there is a depth of terrible endurance in it which none but the sufferers themselves can fathom, and which no man has a right to inflict upon his fellow-creature. I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body: and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay.”

By the mid-1970s, UBC professor Michael Jackson described the process following the McCann v. Canada [1976] 1 F.C. in hellish terms. In the early ’90s, the work of Harvard professor and psychiatrist Dr. Stuart Grassian was first presented to Canadian courts in the defence of Terry Fitzsimmons, a prisoner released directly to the streets from Kingston Penitentiary after serving six years in solitary.

Among Grassian’s findings accepted in the Purell judgment were the following: “Dr. Grassian stated that solitary confinement caused physiological harm and could have permanent adverse effects on brain function including an increased likelihood of developing dementia later in life. Psychiatric pathology and brain dysfunction are notable within just a few days. He said that individuals with diagnosed mental illness are particularly vulnerable and will suffer greater psychiatric harm. He said that medical research had confirmed that solitary confinement was toxic to brain function. He said that the mentally ill will suffer more and more permanent psychiatric harm from a solitary confinement. He said that the effect on the mentally ill will be so immediate and so inevitable that any use of solitary confinement with such individual is increasingly being entirely forbidden in many institutions” [at para. 251 of the trial judgment].

Grassian’s work has been cited with approval in all major attacks on the isolation process culminating with the B.C. Civil Liberties case British Columbia Civil Liberties Assn. v. Canada (Attorney General) [2018] B.C.J. No. 53.

The latest unanimous Court of Appeal decision in Ontario totally upholding the judgment in Francis should put an end to challenges to maintain solitary confinement as a legitimate control measure.

The greatest punishment a society such as ours can inflict is the deprivation of liberty. Excessive measures that maim the body or the mind are thankfully now regarded as illegal and deserving of compensation. 

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. Contact him at johnlornehill@hotmail.com.

Photo credit / João Pedro Menezes ISTOCKPHOTO.COM

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