Jordan Heath-Rawlings: We first covered today’s story nine months ago, when a critical deadline was approaching: the practice of solitary confinement in Canada had been found to violate inmates’ human rights, and the Canadian government had been given a year to fix that. And the year was almost up. And since that conversation and that deadline last December, a lot has changed in the world, but not a lot has changed in our prison system. And to be more accurate, if anything really had changed, we likely wouldn’t know because the government won’t tell us. In fact, it won’t even tell the panel that it appointed to help make those changes to the system. Solitary confinement has been declared a violation of basic human rights. It’s even been labeled torture, but because it’s happening to prisoners, it’s tough to find the political will to force the government to follow its own standards. And look, even if you believe in solitary confinement, here’s your problem: now that courts have found against it, prison systems continuing the practice are at risk of paying millions of dollars in settlements to inmates. That’s your money. So look, whatever you think about the practice itself, this is a flat out screw up. The system is broken. There’s no data to tell us how broken it is or how to fix it. And there won’t be until the public cares enough to demand it. And so far, the public doesn’t seem to care very much. So what happens next? And in the meantime, what’s happening in those tiny isolated cells and century old buildings? Will we ever know?
I’m Jordan Heath-Rawlings. And this is The Big Story. Justin Ling is an investigative reporter and he’s been on this file since well, before our last conversation. Hello, Justin.
Justin Ling: Hey, how’s it going?
Jordan Heath-Rawlings: It’s going well. And, here we are eight months after the first time we talked about this and things have not changed much, I guess.
Justin Ling: No, they really…if anything, things may have gotten worse somehow…you almost strain credibility to think it’s possible, but things, I think, may have actually gotten worse on this file.
Jordan Heath-Rawlings: So for people who didn’t listen to the first episode, we talked to you last December, when a deadline for Canada to have a plan to end solitary confinement was just a few days away. And what happened at that deadline and then going forward from there?
Justin Ling: Right. So this deadline was set by the Court of Appeal in Ontario and there’s a separate case in British Columbia that basically told the federal government, it needed to stop a practice that it called “administrative segregation”, but which everyone else calls solitary confinement. They’re basically the same thing. And it’s a practice whereby prisoners in the federal correction system could be locked up either for their own protection, as punishment ,for other people’s protection, you know, any sort of reason, for up to 22 hours a day with very limited time to interact with other humans and very little time outside. The courts said that this was cruel, inhumane and unconstitutional. They acknowledged that Canada itself says on the international stage that this practice is torture. And yet, the Canadian government fought these decisions every step of the way. Eventually it sort of acquiesced and went and drafted legislation that was designed to get rid of solitary confinement altogether, or so they said. The idea was to replace these solitary confinement cells with what they call “structured intervention units” or SIUs. And these new units were supposed to be bigger, nicer, you know, more accomodating to inmates who may have had mental health issues. And with this was a whole new sort of regulatory regime that would have allowed these inmates out of their cells for slightly longer every day. It would have required better oversight, would have required better reviews and would have required Correctional Services Canada to really actually continually monitor, those who were placed in these units . As we know, it can be extremely damaging for someone’s mental health to be locked in solitary for unlimited time on end, right? Now, there were serious deficiencies with this new program. Senators, when this was being studied in the upper chamber, it noted that there was really no cap on how long somebody could be placed inside one of these structured intervention units. So one of the big problems with solitary is that you had people being locked in these cells for months, maybe even in some cases, years on end, which does horrible things to your mental health. So there was no cap like that in the legislation envisioned. But anyways, the SIUs were notionally put into force. Now the big catch is…
Jordan Heath-Rawlings: There’s a lot of weres and would haves in that description.
Justin Ling: Yeah, so that’s exactly right. So the government actually appointed a panel that was supposed to monitor how these were being implemented. They appointed Dr. Anthony Duke, who’s this incredibly well-regarded criminologist, and as well as a host of others, lawyers, academics, mental health advocates, you have representation from racialized people, representation from Indigenous communities. And together they were supposed to monitor how these new units were actually being implemented. And the government told us that after a year we’ll get a really good sense of how all of this is being done.
Jordan Heath-Rawlings: Right. And?
Justin Ling: And it didn’t happen.
Jordan Heath-Rawlings: None of it happened?
Justin Ling: Literally, nothing, almost literally nothing happened. You know, it’s almost farcical.
Jordan Heath-Rawlings: Did they start using the SIUs? Like, do we know if they were ever tried?
Justin Ling: Yes.
Jordan Heath-Rawlings: Okay. So explain the timeline, I guess.
Justin Ling: Yeah, so let me tell you what this panel did, you know, last November. So the SIUs came into force in January, at the beginning of the year. The panel, this independent advisory panel, was appointed last September. They started their work around November and went to correctional services and said, hey, listen, as soon as you start implementing these new units, please start tracking and feeding us data about how long people are spending in these cells, how many days outside they’re getting, how much meaningful contact they’re getting. Tell us why they’re being put in these cells. Tell us who they are. Really capture the entirety of how this program is working because we want to be able to see, are you doing this punitively, is it to protect people? Are people getting the contact that the courts have said they’re required? You know, are you really doing this properly? And thanks to a report from this panel, we know that Correctional Services Canada didn’t capture that data at all. At the very beginning, Correctional Services came to this panel and said, we haven’t decided whether or not we’re going to give you the data you’ve requested. Months went by. Correctional Services eventually said, listen, we don’t actually have the data. We weren’t capturing it. We weren’t collecting it. We never have been. We’ve had to build this new system, so it’s going to take some time. Eventually, in May, Correctional Services delivers a computer, a full computer with all of this, supposedly all of this data on it. The panel opens it up, boots it up, opens it up and finds that the data is incoherent. It’s unreadable. It disagrees with itself. It doesn’t at all answer the questions that this panel has been asking. So they go back to Correctional Services Canada and say, this is woefully inadequate. Correctional Services Canada says, okay, you’re right. And acknowledges they’re right and says, we’ll keep working on it. We’ll hire a data analyst and we’ll see what we can do. At this point, we’re nearing the first half a year of these being implemented and Correctional Services Canada has no idea how they’re functioning whatsoever. Then the pandemic hits, right? So Correctional Services Canada is battling a COVID-19 outbreak inside many of its institutions and what it does, is it starts using the old solitary confinement processes to isolate people. So it throws people in the old cells with none of the regulation or oversight required by the new legislation. It just locks them up for, in some cases, 23 and a half hours a day inmates-
Jordan Heath-Rawlings: Sick people?
Justin Ling: Sick people, people who have been tested and haven’t got the results back. People who have tested positive. People who have shown symptoms.
Jordan Heath-Rawlings: So nothing to do with discipline or breaking the rules or for their own protection. This is, you’re sick, or maybe sick…
Justin Ling: I spoke over the phone with an inmate in Quebec who was sitting there basically saying that all of the guys on his range just sat and waited for someone to get sick. And they’d be hauled off to the basement where they get thrown in the hole. He sat there basically saying like, I don’t want to die in that hole. That’s what they’re all worried about. One of their fellow prisoners did die, likely in solitary confinement, because there weren’t enough hospital beds to actually treat the sick patients and they didn’t want to move them outside the prison. So they threw them in solitary confinement. Now, none of this was being reported to the panel. None of this has been reported publicly. This is thanks only to, what the correctional investigator has told us and what I’ve learned from speaking with many inmates. And the panel itself has been kept woefully in the dark about this. Finally in July, you know, approaching a year on from when they were first appointed, this panel writes this blistering report basically acknowledging that Correctional Services Canada gave them the runaround. Wasn’t collecting the data that it should have been collecting. Didn’t make that data available to them. And that, when this was raised with Correctional Services Canada and Public Safety Minister Bill Blair’s office, they didn’t do anything about it! That they were ignored again and again and again. So this preliminary report gets sent to the minister and Correctional Services in July. They don’t answer. They don’t respond at all. So finally the full report gets leaked to me and some others, just last week and it set off this firestorm. People were furious! Advocates, lawyers, human rights groups were furious. Understandably! And you know, what does the government do? You know, suddenly it’s very urgent. The government is furiously working to get an answer about this. You know, the Prime Minister says we’ll have more to say in the coming days. Bill Blair’s office says they’re working fervently to get an update. So the day after they put out a press release that says they’re going to be reappointing the panel and setting up a work plan to make sure they actually get the data they need. Well, it turns out that the panel doesn’t want to get reappointed, unless the government’s going to do something serious to actually bring Correctional Services Canada into line and get this data and get the surveillance in place that is absolutely necessary. This has been an absolute, if I may say, I’m not sure if I’m allowed to say this, it’s been a shit show. It’s been an unbelievable…
Jordan Heath-Rawlings: That’s what it sounds like.
Justin Ling: Yeah. It’s embarrassing.
Jordan Heath-Rawlings: Why, and I’m not asking you to speculate, but when you talk to everyone you’ve talked to in reporting this, what possible reason is there for the government not collecting this data and not sharing it? Like, is this just somebody screwed up, incompetence, or what?
Justin Ling: Because collecting the data would show how bad the system really is. You know, let’s be really blunt about it. The courts have told the government that what it was doing was unconstitutional and a human rights violation and may have constituted torture. In this new system, things are not that different. Let’s really break it down. What’s different between the old system and the new system? The old system would have let you lock up inmates for 22 hours a day. The new system lets you lock them up for 20 hours a day. You know, the old system had no real oversight. The new system is largely an oversight system internally. It’s largely at the CSC local level. If they remain in isolation, for long enough, there is an external panel that can review the placement, but there’s no court oversight. There’s no real reporting envisioned in this system. There’s no communication with the public. There’s no transparency to this and you know, this panel was really the only tool by which we would have gotten a complete picture of how solitary confinement gets used. And very truthfully, I don’t think Correctional Services Canada, I don’t think the government wanted that. Because especially during the pandemic, it would have shown that we just kept doing what we used to do. It would have shown that nothing has really changed about this. That, you know, when things got difficult, the government just went right back to throwing people in solitary confinement. Tou know, that all of the rhetoric around how they wanted to phase out this practice fell apart pretty quick y in the new year and especially in the face of the pandemic. I think in actually collecting this data, it would have shown just how sort of farcical this pledge for reform actually is.
Jordan Heath-Rawlings: So the panel now says they don’t want to get reappointed unless they know that they’re going to get good information. Do we know what the government’s going to do about that? I assume you were trying to get on the phone to Bill Blair as soon as you heard that.
Justin Ling: Yeah. I’ve been trying, I hopefully will be talking to Bill Blair shortly. But I can tell you that the chair, Anthony Doob has said, I’m not going back to doing this. And it’s worth remembering, this panel was a volunteer panel. They weren’t being paid. They had to cover their own expenses and then get reimbursed after the fact. But, Doob told me that he would consider being reappointed if they were to give him a firm promise and timeline about when that data is coming and were to take this seriously. Basically, he has the impression that he was used by this government as a fig leaf for a program that was never really going to be, serious about respecting prisoner’s rights. He has basically said his time was wasted. That the fact that they weren’t even collecting the data shows they’re not serious about reform in this respect. I spoke to two other members of the panel who said they basically have the exact same feeling, that they’re going to wait and see what the government actually does. But as is there’s very little appetite to basically provide a veneer of accountability for a system that just doesn’t seem to be designed to actually withstand public scrutiny. And that’s basically where we’re at. This government just didn’t care. It just didn’t care about this panel’s work. And it basically used them as a symbol of its commitment where actually, it seems really indifferent about what the courts have said very clearly, which is that this practice is torture and the government needs to stop it.
Jordan Heath-Rawlings: Have they made any firm commitments or big noises yet since the panel came back with that? Because in the big picture this is a government that’s not exactly handled all sorts of clerical things well recently, and this seems like another own goal.
Justin Ling: You know, I think that this is absolutely an own goal. I think this government would have been better off just cooperating with the panel and kind of dealing with what would have been a potentially critical report, but that at very least would have actually shown that they’re serious about accountability and transparency here. Instead, this government does what it often does, which is to promise it’s transparent, to promise it’s accountable, to promise that it wants oversight and accountability. And instead, frustrates the work of those independent watchdogs. Instead, it’s consistently, secretive and unwilling to share data or information with outsiders, and is fundamentally incapable of living up to the standards it’s set for itself. This government keeps saying, we want to eliminate – not only we want to, we have eliminated solitary confinement. But we don’t know that. There’s there’s no basis for saying that the government can’t claim that. Because consistently what we’re being told is that solitary confinement is still being practiced and Correctional Services Canada isn’t collecting data. So it doesn’t even know if it’s being practiced or not. It’s not surveilling it. It’s not watching for it. So how can this government possibly claim they’ve gotten rid of it? It absolutely is farcical. I keep using that word, it is a tragedy and a farce wrapped up all-in-one.
Jordan Heath-Rawlings: So give me a sense, how do you and other reporters on this and advocates, how do you try to get a sense of what is actually happening in solitary confinement right now? And how hard is it? Do you have any rough idea? Like how many people, how long they’re staying there?
Justin Ling: No.
Jordan Heath-Rawlings: Nothing, eh?
Justin Ling: I mean, the best we can do is hope to get on the phone with somebody who has either just been released or is currently in solitary confinement, which is incredibly difficult. You’ll hear stories about spouses or family members or advocates who are waiting for a phone call from someone who’s inside a federal facility and the call doesn’t come. The call doesn’t come. It comes two weeks later. And they pick up the phone and the person, the prisoner basically says, oh, sorry, I was in solitary confinement for the last two weeks. I couldn’t make a phone call. It becomes a black box. There are inmates who have managed to get on the phone. I’ve heard from inmates who were out of their cell for 20 minutes a day and use that 20 minutes to call me just to let me know the extent to which their prison administration is just locking people up rather than actually addressing COVID-19, rather than actually addressing the health concerns, rather than seriously trying to isolate them in a humane manner. It is incredibly difficult to get any information from Correctional Services Canada. Here’s a fun tidbit: this government has done a large tap dance about making the access to information system more accessible and usable for the public. If you want to file an access to information or freedom of information request to Correctional Services Canada, you have to mail them a letter with a cheque. They’re one of the only agencies that don’t participate in the online access to information system. So you can’t make requests online or by email, you have to write them a letter to do it. And when you do file requests, they are incredibly slow to get back to you. If you just ask for things informally, Correctional Services is loathe to give you the information that you want. They’re incredibly slow making interview requests of inmates. If they’re ever approved, it takes three weeks. It is a system that abhorrs public scrutiny. And this government has leaned into that. I think this government has benefited from that and it’s going to require people really getting mad about this for something to change. But unfortunately this government counts on the fact that people don’t care about inmates, about prisoners, and they’re right. Unfortunately, they’re right. Everything I’ve seen thus far has proven them right. It is not a political liability for them to keep doing this. They could keep torturing inmates and keep losing court battles. And I don’t think the public will care. We are going to lose millions and millions of dollars in lawsuits from inmates who will be able to rightfully claim that they experienced a psychological trauma from being in solitary confinement. We’ve had to spend hundreds of millions of dollars retrofitting these old prisons to make the old cells slightly more humane. And let me tell you, I spoke to one member of this panel who got to visit, who has dealt with some of these new structured intervention units. And she told me that the changes in some cases, amount to a new coat of paint and some posters. That is what differentiates a solitary confinement cell from a structured intervention unit cell: some posters and a new coat of paint. That is embarrassing. This government is doing the bare minimum in a bunch of respects. And again, they’re going to count on the public not caring. And unfortunately, I think they’re right.
Jordan Heath-Rawlings: Well, in terms of the political ramifications of this, then, two kind of similar questions. First is, has the opposition said anything specifically about the government’s mishandling of this? Because I know that they’d love another weapon to go after the Liberals with. But also, do we know, where the conservatives stand on solitary confinement?
Justin Ling: Yeah. The conservatives are in favour of it. I mean, let’s be blunt. The conservative party is in favour of basically any measure that makes time in prison more difficult, whether it’s constitutional or not constitutional. I think for them, it’s sort of, not much of a difference. The conservative government over their near decade in power consistently underfunded and removed funding from basic programming that helped prisoners reintegrate into society, that helped lower recidivism. They defunded those programs. They cut funding for basic things like food preparation. There was a deadly riot in the Saskatchewan Penitentiary just a couple of years ago brought on by the fact that they’re basically being malnourished thanks to corners cut by the Harper government in terms of just basic food. Like according to the correctional investigators’ reports, inmates don’t even receive the Canada Food Guide minimum allotment for nutrition, for basic sustenance. So things are very grim and the conservative party quite frankly, would be happier making it worse. The NDP, to their credit, has raised this issue and has chastised the government for continuing to use solitary confinement in this respect. But at the same time, I mean, you know, the NDP does not consistently talk about this. If you open up their platform for the last few elections, they’re talking about providing small, tiny amounts of money to do small scale programs in some correctional facilities. They’re not talking about a wholesale change about how we manage our prisons, which is frankly what’s needed. You know, right now, we’re having a conversation about defunding the police? We need to have a conversation about defunding prisons. The basic reality is that our facilities and our current budget, which is significant, is still not enough to manage the number of inmates we have in our prisons. Many inmates, close to a majority, are nonviolent offenders. There’s no reason why we should continue locking them up. It’s going to continue costing us obscene sums of money. We’re going to continue having to put people in isolation for various reasons. For their protection, for others’ protection because the COVID-19 pandemic is continuing. And we’re going to continue losing court battles. The courts are going to continue awarding judgments to prisoners who can rightfully claim they’ve been tortured inside of our prisons. And we’re going to continue having to retrofit and refurbish our prisons as the courts continue chastising how correctional services manages the inmate population. The rational adult solution here is to have fewer people in our prisons, to start closing down some of the old ones. Some of these prisons are 150 years old. The only responsible choice here is to reduce our prison population, close some of the old prisons, and make the newer prisons actually livable so that we’re not getting into a position where we’re ignoring the human rights of people who have been locked up. Whether they’re serial killers or whether they’re white collar criminals, it doesn’t matter. We still owe every single citizen of this country a basic constitutional standard, whether they’re in prison or out. But we’re not doing that right now. And we’re not going to be able to do that as long as we have as many people as we do in our prisons, as long as we’re managing prisons that are more than a century old. And as long as we’re going to continue using practices like solitary confinement, it’s just impossible.
Jordan Heath-Rawlings: I kind of hate it when my last question is cynical, but does any of this change in the foreseeable future? Unless something horrible happens.
Justin Ling: No, unless something horrible happens is the big caveat. And even then, I’m not sure that anything will change. Like I mentioned, there was a riot that left one person dead and several other people gravely wounded over the quality of food, something that’s so fixable. Our prisons spend between 4 and 6 dollars per inmate per day on food. That is…like, really wrap your head around how horrible that is. Roughly $5 a day for an adult male for food. That even a riot that left people dead couldn’t even get us into a conversation about changing that. I don’t know why anything will significantly change now. Maybe once the courts start releasing inmates, because they’ve been tortured, releasing convicted killers, releasing folks who have been charged on violent offences. Maybe once the court started vacating their convictions because they were locked in solitary confinement for months or years on end, maybe then the country will have to wake up to the fact that these prisons and the way we’re running them are untenable. But I think it’s going to require something really bad happening for this country to wake up and start taking this seriously.
Jordan Heath-Rawlings: Well, I hope it doesn’t, but thank you, Justin, for all your work on this file and for talking to us about it.
Justin Ling: Absolutely. Cheers.
Jordan Heath-Rawlings: Justin Ling is an investigative reporter. That was The Big Story. If you’d like more, we are at thebigstorypodcast.ca. You can look for our last episode on this. It’s from December 8th of 2019. If you want to write to us, the email address is email@example.com. If you want to yell at us on social media, we are @thebigstoryFPN on Twitter. And if you’d like to rate us and review us and your reviews have been so kind, most of you, you can find us in your favorite podcast player. That’s Apple or Google or Stitcher or Spotify, or any other one that you prefer. Thanks for listening. I’m Jordan Heath-Rawlings. We’ll talk tomorrow.
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