Thunder Bay

Ontario breaks its own rules on use of segregation in jails, human rights commission says

Ontario is failing to meet its own legal obligations by continuing the use of segregation for inmates with mental health disabilities, according the Ontario Human Rights Commission.

Province being pressed to ban solitary confinement for prisoners with mental health disabilities

One of the cells in "Block 11" at the Thunder Bay District Jail, where Adam Capay spent almost one year of his four-and-a-half year time in solitary confinement. (Court documents)

Ontario is failing to meet its own legal obligations by continuing the use of segregation for inmates with mental health disabilities, according the Ontario Human Rights Commission.

The commission is now pushing for the Ontario Human Rights Tribunal to order a provincial ban on the use of solitary confinement for anyone in the correctional system who has a mental health disability and to appoint an independent monitor to ensure the rules are followed.

It filed a motion with the tribunal earlier this month, stating that "people with mental health disabilities in Ontario's correctional system continue to be warehoused in segregation by the thousands."

"It's important not to lose sight that this is about people's actual lived experience," said Ontario Human Rights Commission staff lawyer Insiya Essajee, in an interview with CBC News. "Every day has a human cost."

The motion is the latest in the commission's push to improve conditions for people with mental health disabilities in Ontario's correctional system.

11 breaches of previous orders

It comes after an independent reviewer determined Ontario failed to comply with previous orders from the tribunal and a 2013 settlement in the case of Christina Jahn. She was held in solitary confinement for more than 200 days due to a mental health disability, according to court documents.

The motion outlines 11 ways in which it claims Ontario is in breach of its own obligations, including:

  • Not implementing a system to ensure it's aware of which prisoners has a mental health disability.
  • Not using treatment or care programs to ensure people with mental health disabilities receive proper treatment in jail.
  • Not accurately tracking or reviewing segregation placements.
  • Not conducting baseline or ongoing health assessments of people in segregation.
  • Not implementing a definition of segregation based on the conditions of confinement.

The commission defines segregation, also known as solitary confinement, as "the practice of confining a person to a six by nine foot cell [approximately 2 metres by 3 metres] for twenty-two or more hours a day with little or no human interaction."

Because of Ontario's "long history of non-compliance," Essajee said the commission is now pressing for an order that goes beyond the previous decisions and imposes a full ban on segregation for anyone with a mental health disability.

For it's part, the Ministry of the Solicitor General, which is responsible for Ontario's jails, said it has met 31 of the "deliverables" previously ordered by the Human Rights Tribunal.

Spokesperson Brent Ross said recent government investments in 500 new corrections staff and modernizing corrections facilities "will also help ensure the safety and security of our institutions and ensure government is in compliance with its obligations regarding the use of segregation within correctional facilities."

'Last resort' 

Currently solitary confinement can be used as a "last resort" in Ontario's jails, but Essajee said the numbers of people in segregation show it's being used far too frequently.

Almost half the people in segregation between July 1, 2018, and June 30, 2019, had mental health alerts, she said.

"People should be able to rely on their government to meet their legal obligations," Essajee said. "We're going to the tribunal to hold the government to account."

The commission is seeking new limits restricting segregation of any inmate to no more than 15 continuous days and 60 aggregate days in a calendar year and the appointment of an independent monitor of corrections in Ontario. 

The oversight could help prevent situations such as that of Adam Capay, who spent more than four years in solitary confinement at the Thunder Bay District Jail while awaiting trial for murder. The charges were stayed in 2019.

In that case, the court found that the rules requiring corrections officials to regularly review the use of segregation for each person held in solitary confinement are "meaningless at the institutional and regional levels."

The conditions in the Thunder Bay jail continue to raise special concerns, Essajee said.

"It's such an old facility and such a difficult environment for people with mental health disabilities," she said. "Some of the most vulnerable people are experiencing some of the harshest conditions."

In pre-pandemic times, Ontario would have 14 days to respond to the motion filed by the commission on August 25, but it may be permitted to extend the timeline because of the restrictions that COVID-19 puts on normal working routines.

Ross said with the matter currently before the tribunal, the ministry cannot comment on the timelines. 

"Of course our hope is that this will be dealt with as quickly as possible," Essajee said.