Letter to Hon. John Horgan, Premier of BC

December 7, 2020

The Hon. John Horgan

Premier of British Columbia

P.O Box 9041

STN PROV GOVT

Victoria, BC

V8W 9E1

Dear Premier:

Re: Solitary Confinement

We wish to raise with you our concerns, widely shared by the public, on the continued use of solitary confinement in corrections. Our aim is abolition, but we would hope to see major reforms achieved even short of that goal. We believe that the gross over-representation of Indigenous persons in solitary (already over-represented in the prison population) will not be curtailed short of legislation to abolish solitary.

The federal government has abandoned its appeals on two major decisions on solitary. This means that the ruling of the Ontario Court of Appeal, written by Justice Benotto, stands, that for solitary over 15 days, legislative standards are inadequate, and that the risk of harm “outrages standards of decency and amounts to cruel and unusual punishment.” While, technically this is a decision regarding federal institutions, our understanding is that all jurisdictions are effectively bound by it.

The Supreme Court of Canada had agreed to hear this and the British Columbia appeal on (Leask). This, we expected, would result in a concerted denunciation of solitary – at least over 15 days. To avoid this embarrassment, the federal government withdrew, using the excuse of effectively abolishing the use of solitary in federal prisons by the establishment of “structured intervention units.”

This approach, through Bill C-83, is now in force and its effects are not yet known. We predict that suicides and self-harm will decrease with its use, but we share the skepticism of many experts on corrections that this is more of a cosmetic name change, with loopholes, than a full-scale elimination of the practice. Firm limits are lacking.

Second, you are probably also aware of recent legislation adopted by Yukon, to limit solitary by law to 15 days. When you decide to draw up a new act for British Columbia, we urge you to include a ban on the use of solitary for inmates with psychiatric illness, pregnant women and those who have recently given birth, inmates with physical disabilities and the young (under 25 – those who suffer the worst long-term consequences from solitary). A limit of 10 days initially, to drop to five, would be better than 15 days, a number not based on any evidence that it is adequate to avoid harmful consequences. However, the 15-day limit now is, in effect, the law for all jurisdictions. It is hard to imagine any court deciding that prolonged solitary would be permissible in a provincial or territorial prison, though not in a federal one.

Third, courts are increasingly making judgments against governments for their use of solitary. Ontario Superior Court Justice Perell upheld a class-action suit, awarding $20 million in damages, citing the devastating psychological consequences. While this was a suit against Corrections Canada, provinces could be sued in a similar fashion. Perell’s decision showed contempt for the excuses made for solitary. He referred to it as “a dungeon inside a prison”.

Solitary conditions have been in formal use in British Columbia for nearly 100 years. In that time, inmates with the misfortune of enduring these regimes have been subject to an array of neglectful, harsh, and severe conditions. Take, for example, the experience of Jamie Bacon, who was subjected to long-term solitary confinement at the Surrey Pretrial Services Centre. Mr. Justice McEwan of the British Columbia Supreme Court found that Mr. Bacon was subjected to conditions that had been “condemned internationally.” His experience, under lockdown for 23 hours per day among other factors, led Justice McEwan to find that British Columbia Corrections’ actions constituted cruel and unusual treatment under s. 12 of the Charter, and amounted to an unlawful deprivation of his s. 7 rights to security of the person.

These sorts of experiences are not unique to Mr. Bacon, and indicate structural deficiencies in the British Columbia correctional system, as well as gaps in the related regulatory frameworks. Unfortunately, however, we will likely never be able to fully appreciate their extent. In 2016, the British Columbia Ombudsperson found significant gaps in B.C. Corrections’ inspection regimes between 2001 and 2012. The Ombudsperson recommended changes to bring these inspection regimes into line with international standards. All but one of these recommendations were fully implemented by 2018. The public, however, remains in the dark when it comes to their findings. Until British Columbia Corrections is required to publicly report these results, it will be nearly impossible to know how widespread are circumstances such as Mr. Bacon’s in the provincial correctional system.

Finally, more relevant data are needed. We ask that you provide annual (or the most recent) reports of the number incarcerated, male and female, for British Columbia, the number placed in solitary, and the number of days. Specifics are also needed for Indigenous persons and inmates of colour (both are known to be over-represented). Clearly, to track progress, firm numbers are needed.

For reference purposes, we offer a summary of categories of data published by the Office of the Correctional Investigator, Government of Canada:

Segregation admissions overall (voluntary and involuntary)
Segregation admissions per individual (voluntary and involuntary)
Length of stay in segregation
History of self-injury among those admitted to segregation
Number of offenders admitted to segregation at least once in a given fiscal year
Prevalence of a history of segregation in particular populations
Use of force incidents in a segregation context
Prevalence of segregation or segregation-like conditions to protect individuals requiring accommodations for their gender identity
Complaints regarding segregation
Prevalence of persons with identified mental health or ability issues in segregation
Deaths in custody that occur in segregation
Prevalence of youth in segregation and reasons why

We look forward to hearing from you, or the appropriate Minister.

On behalf of the Campaign,

Sincerely,

Brenda Baker

Ann Cameron

Maxwell Cameron

Paul Copeland CM

Pauline Couture

Phyllis Creighton

John Godfrey

Kate Kitchen

Myim Bakan Kline

Patrick Lesage

Jeremy Mutton

Lynn McDonald

Ian Morrison

Shannon Sampert

Bev Swerling

Lois Wilson

Please respond to: ian@coalesce.ca

cc: Hon. David Eby, Attorney General

Hon. Murray Rankin, Minister of Indigenous Relations & Reconciliation

Hon. Michael Farnsworth, Minister of Public Safety & Solicitor General

Shirley Bond, MLA, Leader of the Opposition

Mike Bernier, MLA

Michael de Jong, MLA

Peter Milobar, MLA

Mike Morris, MLA

Sonia Furstenau, MLA