Solitary confinement and federally sentenced Indigenous women: a moment for change

Criminal Law | Human Rights | Indigenous Advocacy | Indigenous Women | Policing/Prisons

Indigenous people, and especially Indigenous women, are disproportionately subject to solitary confinement in Canadian prisons, a treatment that has long-term health consequences for those subject to it. Last week, the Globe and Mail reported that Jody Wilson Raybould, Canada’s new Minister of Justice, has been given a mandate to limit the use of solitary confinement in Canadian federal penitentiaries. For anyone concerned about the human rights of prisoners—and particularly Indigenous women in prison—this is an encouraging and long overdue first step towards change in corrections policy in Canada.

Solitary Confinement in Canadian Prisons Today

A prisoner subject to solitary confinement—or segregation, as it is often called—is  held separate from the rest of the prison population and prison staff, spending up to 23 hours a day alone in a cell.  The Corrections and Conditional Release Act, S.C. 1992, c 20, which governs the rights of prisoners in federal penitentiaries, provides for two kinds of segregation—disciplinary and administrative.

Disciplinary segregation is used to punish inmates for committing serious disciplinary offences in prison. Inmates who are subject to disciplinary segregation are accorded procedural protections such as an independent review process and substantive protections such as a 30-day cap on their time in segregation (s. 41).

Administrative segregation, on the other hand, may be imposed whenever the head of the institution thinks that the inmate poses a risk to the security of institution or any person; in order to facilitate an investigation into criminal or institutional charges at the penitentiary; or for the prisoner’s own safety (s. 31). While inmates under administrative segregation are entitled to regular hearings to review their status, the head of the institution is entitled to ignore the recommendations of those hearings, and the prisoner has only minimal rights to challenge that decision (ss. 33-34). There is no cap on how long an inmate may spend in administrative segregation. This leaves prison officials with a lot of discretion over when and for how long to impose segregation on an inmate.

The result has been that the use of solitary confinement is commonplace in Canadian prisons. One in four prisoners in Canada has spent at least some time in segregation.  One third of the prisoners who enter segregation spend more than sixty days there. And some prisoners, even ones who were initially incarcerated on relatively minor charges, end up in segregation for years.

Solitary Confinement and Federally-Sentenced Indigenous Women

Indigenous women are dramatically over-represented in Canada’s prisons, representing nearly 35 % of women in prison.  They are generally classified to be higher risk than other prisoners, using risk assessment tools that fail take into account their histories and life experiences. This puts them at higher risk of being subject to solitary confinement.  Evidence also shows that they are more often subject to repeated and extended bouts of segregation than other federally-sentenced women.

Solitary confinement leads to increased rates of recidivism, self-harm, and suicide among inmates. Irreversible psychological harm begins to take hold after about 15 days. The U.N. Special Rapporteur on Torture has noted that prolonged solitary confinement causes mental distress so severe it could properly be considered torture, particularly when it is used on inmates who already suffer from mental health issues or who have a history of trauma and abuse.  Many federally-sentenced Indigenous women carry such histories with them.

Corrections Service of Canada policy commits officials to considering the principles similar to those set out by the Supreme Court in R v. Gladue, [1999] 1 S.C.R. 688 at the policy and operational level, which includes decisions about segregation.  This means that officials should take into account the unique systemic factors which may have played a part in bringing the particular Indigenous offender into the corrections system, such as the impacts of colonialism, the residential school system, family or community history of suicide, experience in the child welfare or adoption system, experiences with poverty, lack of formal education, and family or community history of substance abuse.   However, this policy has not been well understood or effectively implemented by decision-makers and prison staff on the ground.  Too often, a history of marginalization has been equated with a security risk.

Unsurprisingly, a number of organizations, such as the Native Women’s Association of Canada and the Canadian Association of Elizabeth Fry Societies, have identified Canada’s disproportionate use of solitary confinement against federally-sentenced Indigenous women as a violation of Charter rights and Canada’s international legal obligations.

What Now: Implementing the Recommendations of the Ashley Smith Inquest

In her work to limit the use of solitary confinement, Minister Wilson Raybould has been asked to implement the recommendations of the Coroner’s Inquest into the Death of Ashley Smith.  As you may remember, Ashley Smith was a 19 year-old woman who died after being found in physical distress in her cell in solitary confinement in the Grand Valley Institution. The recommendations of the Inquest provide a good starting point for change.  For instance, it recommends “an absolute prohibition on the practice of placing female inmates in conditions of long-term segregation”, defined as anything longer than 15 days or 60 days in a calendar year.  It also makes a number of important recommendations about providing better support to prisoners with mental health issues.

The thing to watch will be whether and how the government works with organizations like the Native Women’s Association of Canada and the Canadian Association of Elizabeth Fry Societies to address the disproportionate use of solitary confinement against federally-sentenced Indigenous women.   A ban on long-term segregation is essential, but it is not enough: to reform the use of segregation without attention to the discriminatory manner in which it has been applied would be a missed opportunity.  In recognition of the overrepresentation of Indigenous women among segregated inmates in women’s prisons and the more serious impact of segregation on individuals with histories of trauma and abuse, federally-sentenced Indigenous women should receive a thorough assessment of systemic and background factors similar to those articulated in Gladue by competent staff before they are subject to even short periods of segregation.  Decisions to segregate should also be subject to independent (and binding) review by a person or body with expertise in the systemic factors that affect many Indigenous women and communities.

By Krista Nerland