Letter to Hon. Scott Moe, Premier of Saskatchewan

September 29, 2020

The Hon. Scott Moe

Premier of Saskatchewan

2405 Legislative Drive

Regina, SK

S4S 0B3

Dear Mr. Moe:

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.

As you may know, 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 B.C. 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 would 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 Saskatchewan, 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”.

In 2018, Noel Harder was held in solitary confinement for over 40 days at the Saskatoon Provincial Correction Centre, leading to a process of what he described as his “body and mind... rotting away”. Indeed, a statistical snapshot from March 21, 2018 showed that roughly four percent of Saskatchewan inmates were being held in solitary confinement and experiencing the same or similar conditions to Mr. Harder. The majority of those inmates had been in solitary for more than 15 days, and 30% for more than 30 days.

While the numbers appear to have dropped since then – a recent statistical snapshot showed that only about 0.2% of Saskatchewan’s inmates were being held in solitary – the use of solitary confinement in the province remains largely discretionary and without a limit in length. However, the perceived drop in instances of solitary confinement is derived from the data of only two calendar days. Greater transparency is required to better understand the extent to which solitary is used in the province. In the absence thereof, we continue to remember cases like those of Cody Lee Francis who spent four uninterrupted months in solitary in 2011.

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 Saskatchewan, 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 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 reason why

We look forward to hearing from you, or the appropriate Minister. On behalf of the Campaign,

Sincerely,

Brenda Baker

Paul Copeland CM

Pauline Couture

John Godfrey

Kate Kitchen

Myim Bakan Kline

Patrick Lesage

Jeremy Madden

Lynn McDonald

Ian Morrison

Bev Swerling

Please respond to: ian@coalesce.ca

cc:

Hon. Don Morgan, Q.C., Minister of Justice and Attorney General

Hon. Lori Carr, Minister Responsible for First Nations, and Métis Nations

Ryan Meili, Leader of the Opposition, Justice, Corrections and Policing

Doyle Vermette, Truth and Reconciliation, first Nations and Métis Relations