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Canadian Solitary Confinement Deaths Result in Rare Lawsuits, Eventual Reforms

Deaths in Canadian federal prisons associated with the prolonged placement of prisoners in solitary confinement, as well as challenges to the use of segregation in provincial jails, have resulted in some limited reforms.

Ashley Smith was sentenced to Canada’s youth justice system when she was 12 years old; she was transferred to the adult federal prison system when she turned 18 in 2006. Smith was held in solitary confinement during her first 11.5 months in the adult system before killing herself, at the age of 19, at the Grand Valley Institution for Women in Kitchener, Ontario in October 2007. She had a history of mental health problems.

In August 2010, prisoner Eddie Snowshoe, 24, ended 162 days in segregation by hanging himself at the Edmonton Institution in Alberta. An inquiry into his death found that guards were unaware he had already served over 130 days at the Stony Mountain Institution near Winnipeg, Manitoba before being transferred to Edmonton, or that he had previously attempted suicide three times.

“It is urgent that we ensure that practices conform to [the Canadian] Charter of Rights protections before any more of our vulnerable prisoners, like Ashley Smith and Eddie Snowshoe, die alone in segregation,” said Julia Payson, executive director of the John Howard Society of British Columbia, in announcing a lawsuit challenging Canada’s use of solitary confinement.

In 2013, the jury in a coroner’s inquest into Smith’s death issued 104 recommendations, including a ban on indefinite solitary confinement. When Correctional Service of Canada (CSC) officials finally responded to the inquest in December 2014, they were broadly criticized for failing to directly address the recommendations and refusing to limit the use of solitary.

CSC “uses all of its tools to make sure the corrections system actually corrects criminal behavior, including the use of segregation,” said Jason Tamming, press secretary for then-Public Safety Minister Steven Blaney. “Our efforts will continue to be focused on the victims of crime.”

One in four Canadian federal prisoners has been held in solitary confinement. CSC has unapologetically admitted to placing prisoners in “administrative segregation” for 23 hours a day, but contends that is not the same as solitary.

There are generally two forms of segregation employed in Canada’s prisons and jails – administrative and disciplinary. Disciplinary segregation is overtly punitive and ordered pursuant to an administrative hearing, overseen by a jail administrator or, at the federal prison level, by an independent third party. Disciplinary segregation is not supposed to exceed 30 days.

Administrative segregation is far less regulated, often being imposed by jail or prison staff under the banner of security or safety. There is no limit to the duration of administrative segregation.

“Under the administrative segregation regime, prisoners can spend months and years in solitary confinement without even the benefit of an independent decision-maker to determine whether the confinement is justified,” noted constitutional law attorney Joseph Arvay.

“Solitary confinement is increasingly being used to warehouse prisoners with mental health issues even though it worsens mental illness,” added Catherine Latimer, executive director of the John Howard Society of Canada (JHSC).

Studies have shown that segregation can cause acute and irreparable harm to all prisoners, but especially juveniles, Payson noted. Their developing brains, pliable social skills and unformed psychology absorb the experience in irreversible ways.

Approximately 1,800 prisoners are held in solitary in Canadian jails and prisons at any given time. Prior to the election of Prime Minister Justin Trudeau in the fall of 2015, rates of solitary confinement grew substantially during an eight-year reign of Canada’s Conservative Party, which took a hardline “tough on crime” approach to criminal justice. According to a 2014 report by Correctional Investigator Howard Sapers, the increased use of solitary confinement disproportionately affected black and indigenous prisoners.

Litigation over prison conditions in Canada is rare because few provincial legal aid programs fund such actions and attorneys do not specialize in prison law due to the lack of financial incentives. Nevertheless, the government’s continued use of solitary confinement, even after the deaths of Ashley Smith and Eddie Snowshoe, compelled the B.C. Civil Liberties Association (BCCLA) and JHSC to file suit on January 19, 2015. The lawsuit marked the first time a Canadian judge had been asked to decide issues involving solitary confinement.

“At a time when the rest of the world is scaling back the use of solitary confinement, Canada remains steadfast in its reliance on a broken and dangerous system,” said BCCLA senior attorney Carmen Chung. “We were hopeful that the government would finally take action. It has not, and we cannot keep waiting.”

The suit argues that solitary confinement violates Canada’s Charter of Rights and Freedoms in numerous ways, including being cruel and unusual punishment; contrary to life, liberty and individual security; and discriminatory against mentally ill and aboriginal prisoners.

Arvay and co-counsel Alison Latimer represent BCCLA and JHSC in the lawsuit, which seeks to reform – not abolish – solitary confinement, and applies only to federal prisons. CSC Commissioner Don Head declined to comment about the case or on the deaths of Smith and Snowshoe.

Also challenging the practice of solitary confinement in federal prisons, the Canadian Civil Liberties Association (CCLA) and Canadian Association of Elizabeth Fry Societies filed a separate lawsuit in January 2015, arguing the use of segregation is unconstitutional.

Further, in July 2015, a class-action suit was filed in Ontario Superior Court against the practice of placing provincial jail prisoners in solitary. The complaint, brought by prisoner Christopher Brazeau, seeks $600 million in damages for mentally ill prisoners who have been subjected to solitary.

In March 2016 the Toronto Star reported that over the course of five months in 2015, there were more than 1,600 instances of prisoners being placed in solitary confinement in two Ontario jails.

The records reflecting that data were only made available to the Star, and to the public, through a case filed with the Ontario Human Rights Commission (OHRC) on behalf of a prisoner incarcerated in that province. In early 2016, OHRC Chief Commissioner Renu Mandhane recommended both incremental reform and the eventual abolition of solitary confinement in Ontario.

“The extent and gravity of [Human Rights] Code concerns with the use of segregation is why the OHRC is taking the rare step of advocating that Ontario show bold leadership by publicly committing to eliminate this practice across all its institutions,” said Mandhane. “The solutions are clear, albeit challenging, but the political environment is ripe for a new approach to corrections – one that is firmly grounded in equality, human rights, and human dignity.”

Noting that it will likely take time to abolish the use of solitary confinement entirely, Mandhane recommended interim measures to the government of Ontario, including external oversight over the use of segregation.

There are signs that prison reform efforts have an ally in the administration of Prime Minister Justin Trudeau. Upon taking office, Trudeau ordered the implementation of a number of changes related to solitary confinement in the federal prison system – including a 15-day limit on the duration of segregation, with prisoners being limited to a maximum of 60 days in solitary per year.

Further, Trudeau has tasked Justice Minister Jody Wilson-Rayboud with the implementation of recommendations resulting from the coroner’s inquest into Ashley Smith’s death. Additional reforms may result from the lawsuits challenging solitary confinement practices in Canadian prisons and jails, which remain pending.

Ashley’s mother, Caralee Smith, welcomed the BCCLA/JHSC suit, calling it “wonderful” news. “I approve of it 100 percent,” she stated.

“If a dog owner had a dog locked up for that long, that owner would be charged for animal cruelty,” said Eddie Snowshoe’s mother, referring to the more than five months her son spent in solitary confinement before killing himself.


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