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Solitary comes in for more heat from the bench
By Michael Benedict
September 16 2016 issue

Another judge has slammed the increasingly controversial use of prison solitary confinement for so-called administrative purposes. In the latest decision, Alberta Queen’s Bench Justice Joanne Veit castigated the federal maximum-security Edmonton Institution for failing on both procedural fairness and reasonableness grounds when ordering three inmates into solitary.

Finding “perfunctory” the prison’s mandatory segregation reviews, Veit went on to say that the “institution has essentially provided conclusions, rather than reasons, for its actions.”

Meanwhile, the Ontario government is appealing a scathing May Superior Court judgment (Ogiamien v. Ontario (Ministry of Community Safety and Correctional Services) 2016 ONSC 3080) awarding a record $85,000 to two inmates who, although they had never been convicted of a crime, were nevertheless subjected to consistent solitary confinement because their provincial prison used lockdowns as a routine administrative matter. (See The Lawyers Weekly, “Damages awards to inmates could fuel class actions,” June 10, p. 3.)

As for the Alberta judgment, R. v. Hamm 2016 ABQB 440, Justice Veit on Aug. 9 found multiple grounds for granting the habeas corpus motion brought by the three self-represented prisoners, ordering them back to the general prison population.

Matthew Hamm, serving a five and one-half-year sentence for robbery, and the others were segregated after fellow prisoners told the authorities the three were planning to attack some guards. Instead of initiating criminal charges or a disciplinary proceeding that could have produced a maximum 30-day solitary confinement, the prison ordered them immediately into administrative solitary, which has no time limit. (Indeed, one of the three, Shawn Keepness, before the habeas corpus petition, had spent 382- and 291-day stretches in solitary confinement although never convicted of an institutional charge.)

Said Veit: “The inmates had already served more than 30 days’ segregation by the time the habeas corpus hearing concluded; in other words, they had already suffered more than the most serious punishment that could have been imposed for the most serious disciplinary breach while at the same time not receiving the procedural safeguards that would accompany the laying of an institutional charge.”

She added: “A decision to place an inmate in solitary confinement is the equivalent, as other courts have put it, of sentencing an inmate to a ‘prison within a prison.’ Therefore, the process to be followed in making such decisions should mirror the process in the justice system whereby a court sentences a convict to a prison sentence.”

In this case, the authorities relied on confidential prison informants, despite the petitioners subsequently presenting written evidence that a fellow prisoner made up the story so he could be transferred to another unit with a television. Veit found the prison had not met “accepted police standards” for the credibility of informants, including whether they had provided reliable intelligence in the past and had received a benefit for the information provided.

For her part, Debra Parkes from the University of British Columbia’s Allard School of Law says Hamm is significant on several grounds. “It coincides with a rising public awareness of the harms that can be caused by solitary confinement,” says Parkes, who has written extensively on solitary confinement and prisoners’ rights. “The judges are showing concern and paying more attention.”

The case is also remarkable, Parkes adds, because the prisoners succeeded without legal assistance. “Habeas corpus petitions can be complicated, and government lawyers in the past have been able to dismiss them on technical grounds,” she says. “But judges are aware of the challenges and are becoming more flexible in these cases.”

Lisa Silver, who recently left private criminal defence practice to teach at the University of Calgary Law School, has high praise for Veit’s judgment. “It’s well written, and I can’t see anywhere where she went wrong,” she says. “Without suggesting bad faith, she says the prison’s behaviour is simply not good enough.”

Adds Silver: “Correctional services can’t skirt around the law by calling something a pro forma administrative matter when it is not. If it is criminal, the prisoner still has rights that must be respected.”

Canadian Civil Liberties Association lawyer Laura Berger agrees and finds four other reasons to commend the decision. “The judge does not shy away from calling it solitary confinement rather than using ‘administrative segregation,’ the term preferred by the prison authorities,” she says.

As well, Berger notes that Veit found “unreasonable the prison’s failure to conduct a mental health assessment of these prisoners beforehand.” Indeed, Justice Veit wrote, “In light of the serious pre-existing segregation histories of all the applicants and the pre-existing serious mental health issues of two of the applicants and the mental health issues of the third, it was unreasonable to make a segregation placement without a full mental health assessment of each inmate.”

In this finding, Veit noted the United Nations’ recent Mandela Rules that prohibit solitary confinement for more than 15 consecutive days. According to Berger, Veit may be the first justice to invoke this international standard, adopted only last December. While Veit said that the Mandela Rules are “not determinative,” she added: “They encapsulate an international standard…Those rules inform, but do not dictate, the result in a Canadian habeas corpus application.”

Finally, Berger says the decision stands out because it also addressed the Aboriginal origins of two of the petitioners as a factor in determining the appropriateness of solitary confinement. In Veit’s words, “It is unreasonable for a correctional institution to deny transparency in relation to its decisions concerning whether, and how, and where, Aboriginal offenders should be further deprived of liberty.”

Asked whether an appeal is under consideration, a Correctional Service of Canada spokesperson declined to answer on the grounds that the judgment is still under review.

Meanwhile, the Ontario Ministry of Community Safety and Correctional Services is appealing Ogiamien, asserting Justice Douglas Gray erred by, among other things, holding that staff shortage lockdowns met the high threshold for violating the Charter right to be free from “cruel and unusual treatment or punishment.”

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