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| Catherine Latimer |
Ivan Zinger used his last annual report as the correctional investigator to highlight the profound failure of the federal prison system to address the mental illnesses of its wards. The thorough analysis is most welcome, but it is questionable whether it will lead to any real changes.
Zinger suggests that turning to the courts to overcome the Correctional Service Canada (CSC)’s reluctance to comply with the law and to respect human rights is needed. That approach was tried and failed in the wake of the tragic death of Ashley Smith, a teenager struggling with mental illness who died in a federal prison cell. The coroner ruled the death a homicide, and important recommendations were made to prevent such deaths. One was to limit the amount of time prisoners could be held in solitary confinement, which is known to worsen and cause mental illness. When the government’s response to the coroner’s recommendations failed to limit the abuse, public interest lawsuits were launched.
Charter challenges by the Canadian Civil Liberties Association in Ontario and by the British Columbia Civil Liberties Association and the John Howard Society of Canada in B.C. were both successful in the appellate courts. It was determined that the process and the prolonged periods of isolated confinement violated s. 12 and s. 7 Charter rights. Rather than appeal to the Supreme Court, the federal government opted to repeal the offending provisions of the CCRA and replace them with new ones. The government claimed that the new provisions would eliminate solitary confinement.
Responding to skepticism about that claim, the government included a stringent parliamentary review clause and struck the structured intervention unit implementation advisory panel. That panel issued a number of reports signalling that the promised transformation away from abusive solitary confinement was not happening. The panel was terminated, and the required parliamentary review is now more than two years late. Not only is the Correctional Service failing to treat those with mental illnesses, their continued isolated confinement practices are causing and worsening them.
Zinger also points to class action lawsuits as a way to promote correctional reforms. A class action followed the appellate courts’ Charter violations findings. Prisoners who were placed in administrative segregation for more than 15 consecutive days within a set time period qualified. Three tracks were available to prisoners. The third track is for those with pre-existing mental health conditions who should not have been subjected to any isolated confinement according to the UN, which describes it as a form of torture and cruelty.
The class action process is seriously flawed. When other countries subject Canadian citizens to abusive corrections, like Omar Kadhr, Maher Arar and the two Michaels, millions of dollars in damages are awarded, but when it is our own government subjecting its citizens to torture, it is a different story. The expected damage awards are so low that prisoners are being pressured to opt for track 2 and collect maybe $12,000 rather than have their day in court. Class members who are battling mental illnesses are being required to self-represent and do not have access to disclosure of documents needed to prepare statements of claim. This process is not only unfair to individual claimants but it failed to deter CSC from continuing to subject individuals, including those who are mentally ill, to Charter-violating isolated confinement.
“Frustration” is probably too weak a word to describe the appropriate reaction to the intransigence of our correctional service to comply with recommendations of oversight bodies, auditors, senators, coroners, academics, etc., but it is commendable that the correctional investigator took a stand. The failure of our government, Parliament and courts to ensure respect for the rule of law and Charter rights for all must be corrected.
We share in the correctional investigator’s frustration and regret his early departure. The correctional investigator’s office is an important window into an opaque institution. By using all the available statutory tools, the next correctional investigator could play a vital role in promoting respect for the rule of law and for federal prisoners’ Charter rights. The CCRA provides more levers than previous correctional investigators were prepared to pull, including holding public hearings, summoning and examining people under oath, delegating authority to others with investigative or correctional expertise, and pursuing offences for statements made that were intended to mislead an investigation. Clear findings by the correctional investigator of unlawful non-compliance with statutory or Charter requirements might propel greater respect for the rule of law and Charter rights.
Catherine Latimer is the executive director of the John Howard Society of Canada.
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