Law360 Canada (September 2, 2026, 10:47 AM EDT) --

John L. Hill

There is something profoundly unsettling about a society that regards prolonged solitary confinement as unconstitutional in prison yet appears prepared to tolerate the same isolation when the person behind the locked door is a psychiatric patient.

A recent Toronto Star investigation into Waypoint Centre for Mental Health Care in Penetanguishene raises precisely that question.

The Star reports that patients at Ontario’s only maximum-security psychiatric hospital have been kept in seclusion for extraordinarily long periods. One patient, Camelott Hamblett, has reportedly spent more than 20 years in isolation. Another, Andrew Azevedo, has been secluded for more than five years. In a single 20-bed unit, an Ontario Review Board hearing revealed that at least 11 patients were being secluded.

An independent assessment presented at the hearing concluded that the conditions meet the United Nations’ definition of solitary confinement and are comparable to conditions the UN has deemed to constitute torture in similar circumstances. Waypoint’s CEO has categorically disagreed with those findings.

The legal irony is hard to miss.

Canadian courts have already addressed the dangers of prolonged solitary confinement in correctional institutions. In 2019, the Ontario Court of Appeal held that administrative segregation exceeding 15 consecutive days violated s. 12 of the Canadian Charter of Rights and Freedoms as cruel and unusual treatment or punishment. The court struck down the statutory provisions to the extent of that violation.

The British Columbia Court of Appeal reached a similar conclusion concerning prolonged and indefinite administrative segregation. The litigation ultimately led Parliament to replace the federal administrative-segregation regime with the system created by Bill C-83.

The point is not that a psychiatric hospital and a penitentiary are identical. They plainly are not.

A prisoner is being punished for a criminal offence. A forensic psychiatric patient is in hospital because of mental illness and the legal consequences arising from a finding of not criminally responsible or other forensic-psychiatric circumstances.

But that distinction arguably makes the use of prolonged isolation in a hospital more, rather than less, troubling.

The purpose of imprisonment is punishment, subject to the constitutional requirement that punishment remain humane. A hospital's purpose is treatment and care.

If isolation for prolonged periods can damage a prisoner's physical and psychological health, it is difficult to understand why the same conditions should somehow become therapeutic merely because the walls belong to a hospital.

The Star report is especially disturbing because the issue was not unknown to government officials.

In December 2018, forensic psychiatrist Dr. John Bradford raised concerns with the Ontario government about what he described as serious and potentially irreversible harm caused by prolonged confinement at Waypoint. Bradford had worked at the hospital and ultimately resigned after his concerns were ignored. He described the conditions as unlike anything he had encountered in an Ontario psychiatric hospital.

What happened next should concern anyone interested in administrative law, health law or Charter rights.

Ministry officials were assigned to examine Bradford's concerns. According to evidence filed in the proposed class action, however, the officials did not visit Waypoint. They interviewed only one hospital representative, by telephone, in an interview that lasted less than two hours.

The ministry nevertheless concluded that no further action was necessary because Waypoint had policies and procedures dealing with clinical care.

That raises an elementary question about regulatory oversight: How can an institution's policies inform an investigator about what is happening to patients if no one goes into the institution to see how those policies are being implemented?

As Bradford subsequently put it, there is a substantial difference between hearing someone describe policies and seeing how those policies are implemented.

The concern becomes even more acute when the people affected are among society's most vulnerable.

A prisoner can challenge unlawful confinement in the courts. A psychiatric patient may have severe mental illness, be detained under a statutory regime and be dependent on the very institution responsible for their treatment.

That creates a powerful argument for independent oversight rather than weaker oversight.

The courts' refusal to certify the proposed Waypoint proceeding as a class action does not resolve the underlying question. The court found that decisions to seclude patients are individualized and that allegations of wrongdoing must be pursued on an individual basis. But an individualized legal remedy can be extraordinarily difficult for a person who is locked away, sometimes for years, in a psychiatric institution.

An important conceptual problem also arises. Calling the practice "seclusion" rather than "solitary confinement" should not determine its constitutional significance.

Law is often concerned with substance rather than labels. If a person is confined alone in a small room, deprived of meaningful human contact, and kept there for an extraordinarily long period, changing the name of the practice does not change its effect.

The Star report says an independent assessment reached essentially that conclusion by finding that Waypoint's seclusion falls within the UN definition of solitary confinement.

The law should therefore confront the substance of the confinement.

There may be circumstances in which temporary isolation of a psychiatric patient is necessary to protect the patient, staff or other patients. That is not the real issue.

The difficult question is whether isolation can legitimately become a long-term substitute for treatment.

When a person has spent years alone, the justification should not be that the institution has a policy permitting it. The justification must withstand independent scrutiny.

Perhaps the most haunting aspect of the Star report is what might have happened if the government's response in 2018 had been different.

Lawyer Anita Szigeti, who represents patients in long-term seclusion, says that if the matter had been properly investigated at the time, Hamblett might have been released from seclusion. Azevedo might never have been placed there.

Those are not merely administrative failures. If the allegations are ultimately proven, they represent years of human life spent behind a locked door. Canada has already recognized that prolonged solitary confinement can cross a constitutional line in its prisons. Waypoint raises the question of whether the same principle should apply when the locked door is in a hospital.

Indeed, there may be an even stronger moral and constitutional argument. A prison is supposed to take away liberty as punishment. A hospital is supposed to restore health.

If solitary confinement is too cruel to impose upon a prisoner for prolonged periods, we should be very cautious before accepting that it is an appropriate treatment for someone whose liberty has already been taken away because of mental illness.

The name of the institution should not determine the value we place on the person inside it.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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