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Policy Memo

RE: Segregation of incarcerated people with


mental illness in Ontario corrections facilities

Francois Zucco & Gabriel Holt


Policy & Procedure Writing Assignment – 12/2018
ATTN: Minister Sylvia Jones
Ministry of Community Safety and
Correctional Services
18th Floor, 25 Grosvenor Street
Toronto ON, M7A 1Y6

December 14, 2018

Executive Summary
The Ontario Ministry of Community Safety and Correctional Services is responsible for
Ontario’s police and correctional services. It operates the province’s adult correctional
facilities, which includes being liable for the oversight and safety of the people
incarcerated therein. Since 2012, organizations including the Ontario Human Rights
Commission (OHRC), the UN and independent reviewers have called for the Ministry to
reform its policies on the use of segregation for incarcerated people with mental health
disabilities. The Ministry has lagged in its duty to implement these reform
recommendations. Administrative failure and lack of transparency have impaired the
Ministry’s ability to create coherent or effective policy, resulting in human rights abuses.
The Ministry must choose a way forward that fulfills its public and legal obligations.
To comply with the law and avoid further abuses, which would lead to lawsuits and
worsen administrative capability, the Ministry must address these problems. The status
quo of reacting through short-term policy fixes is not sustainable. A major overhaul of
corrections policy could work to address its abundant issues but would also strain a
system that is already short on resources, including funding and staffing. A gradual and
focused implementation would accommodate these logistical difficulties but would prove
politically challenging; this approach would require extensive, province-wide planning.
The John Howard Society of Canada recommends that the Ontario Ministry of
Community Safety and Correctional Services undertake a long-term strategy to fixing its
segregation policy, which should integrate the recommendations of the 2017 Sapers
independent review and the OHRC’s public interest remedies. It should build this plan
around David Cole’s independent review, which is due for publication in January 2019. A
report detailing this plan should be published by the winter of 2019.

This option accommodates the Ministry’s limited resources while addressing the root
administrative failures which have so far rendered reform initiatives impotent (Sapers et
al., 2017). A five-year plan which includes milestones and mechanisms for transparency
would help restore public faith in the Ministry and address concerns about its treatment
of incarcerated people with mental illness.
This memo will first present the background of the Ministry’s dealings with segregation
policy. It will then analyze the issues found to be causing the problem. It will consider
different options for the Ministry to take, then recommend the most feasible.

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Introduction and Problem Definition
Purpose
The purpose of this memo is to convey to the Ministry how its failure to comply with
recommendations and policies on segregation – specifically the segregation of
incarcerated people with mental health issues – continues to violate human rights and
breach the Ministry’s public mandate.

Background
In June 2012, the UN Committee Against Torture urged Canadian prisons to end the use
of segregation for incarcerated people with “serious or acute mental illness” (Larocque,
2017). In October 2012, Christina Jahn filed a human rights application against the
Ontario Ministry of Community Safety and Correctional Services due to her treatment in
segregation while incarcerated (OHRC, n.d.). The Jahn case reached a settlement in 2013,
resulting in 10 public interest remedies that targeted the use of segregation for mentally
ill people in the corrections system.
In 2015, the Ontario government was served a contravention of settlement application
for its failure to meet the terms of the Jahn settlement (Sapers et al., 2017). The Ministry
attempted to rectify this in 2015 and 2016 with a policy overhaul and set of action items
for segregation reform, but these efforts only addressed the use of disciplinary
segregation - which only made up 3% of segregation placements in 2016 - neglecting the
persistent and pervasive use of administrative segregation for mentally ill inmates
(Sapers et al., 2017).
In 2017, an independent review led by Howard Sapers was launched to investigate the
continued use of segregation in Ontario corrections. The review found that the Ministry,
despite its September 2015 segregation policy overhaul, still lacked a consistently
enforced segregation policy and had inadequately maintained records on the use of
segregation (Sapers et al., 2017). Additionally, the report found that a rising number of
inmates were being placed in segregation (Sapers et al., 2017). In January 2018, the
Human Rights Tribunal of Ontario released a Consent Order requiring that segregation
be ended for mentally ill inmates except in the most extreme circumstances.
In October 2018, in compliance with the Jahn settlement, the Ontario Ministry of
Community Safety and Correctional Services released data on segregated inmates with
possible mental health concerns. This data revealed that the segregation of incarcerated
people with mental illness was an ongoing issue and that segregation policies were not
always followed (Ontario Ministry of Community Safety and Correctional Services, 2018;
Rankin, 2018).

Problem Definition
The continued use of segregation for mentally ill inmates is caused by the lack of
coordinated or thoroughly-implemented segregation policy. This administrative failure
results in the continued violation of the rights of mentally ill inmates, and in many cases,
harm to incarcerated persons and loss of life.

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Issue Analysis
Despite repeated calls to end the practice of segregation for mentally ill inmates, Ontario
correctional facilities continue to violate both legal requirements and human rights
through their inconsistent application of segregation reform policies.
The OHRC and the Sapers independent review report have already outlined policies that
the government can implement to reduce the rate of segregation for mentally ill inmates.
The Ministry itself has conducted an internal review and published policy guidelines for
its use of segregation. These policies would all serve to protect the human rights of
Ontario inmates who have mental health challenges.
Administrative inconsistencies among Ontario prisons, as well as the failure within those
prisons to adhere to segregation policies, create a lack of accountability and
transparency within the correctional services system. These conditions are exacerbated
by a shortage of mental health workers and funding for facility renovations, and
haphazard protocols for reporting the use of segregation or the assessment of
alternatives.

Proposed Solutions
Currently, Ontario correctional facilities are implementing policy recommendations
piecemeal. Policies vary between institutions and aren’t adhered to fully inside certain
institutions (Sapers et al., 2017). This is the result of repeated calls for segregation reform
from multiple sources (the UN, the OHRC, etc.), which are met with policy overhauls -
none of which has resulted in standard implementation. This focus on short-term
planning, in which policies are hastily and inconsistently applied in response to a
demand, is unsustainable. Short-term planning repeatedly leads to administrative
failure, which prompts more calls to action and more short-term overhauls.

Universal Policy Implementation


One solution to this issue is for the government to create and implement a unified set of
policies across the province, with institutions only able to modify procedures in minor
ways. The advantage of this approach would be a clear set of guidelines across
institutions. The disadvantage of this approach would be the massive logistical effort it
would take to implement. In the long-term, this approach would be beneficial, as - after a
period of adjustment - institutions throughout the province would be more likely to
consistently apply the policies. In the short-term, however, this approach would likely
create more disorganization as institutions scramble to adjust.

Gradual Policy Implementation


Another solution is to balance the application of short- and long-term problem-solving. A
unified segregation policy for Ontario institutions is certainly advisable, but the
implementation of such a policy can be planned and rolled out with consideration of
institutional limitations (human and financial resources). The advantage to this
approach is that, with the gradual implementation of a long-term plan, the policy would
be clear, reallocation of resources to policy priorities would be steadier, and
accountability would be easier to enforce. Therefore, a structured and deliberate policy

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roll-out would result in better institutional policy adherence. The disadvantage of this
approach is in its political cost. A long-term plan will not yield immediate results and will
likely need continual implementation across governments. Rights groups will mount
pressure in the meanwhile, requiring continual updates and efforts to be transparent.

Strategic Recommendations
The John Howard Society urges the Ministry to continue implementing the
recommendations of the Independent Review and the OHRC.
These recommendations include the establishment of a reliable system that identifies
individuals with potential mental illnesses, a better plan to track segregation use, and
more active monitoring of the health of individuals in segregation.
The Ministry has appointed an independent reviewer, David Cole, to monitor and
evaluate the implementation of the Jahn settlement public interest remedies. However,
the interim report to be released by Cole in fall 2018 has still not been published. There
has been no accountability from the Ministry regarding that delay. The John Howard
Society recommends that the Ministry exercise greater transparency in this matter,
either through a status update on its site or a brief to the press.
On an institutional level, the government can create a formal procedure process for
evaluating alternatives to segregation, with the aim of discouraging hasty segregation
without a thorough evaluation of alternatives. This would benefit inmates with mental
health challenges, better serving their needs, as well as benefit the Ministry because the
mandatory tracking of segregation practices would help the government fulfil its
commitment to the Jahn settlement.
Finally, the John Howard Society also encourages the Ontario government to follow the
example of the federal government and begin a long-term strategy to reform the
correctional system. This can begin with community consultations and consultations
with the current independent reviewer, David Cole. If Cole’s report is published by
January 2019, as promised, the Ministry of Community Safety and Correctional Services
can begin integrating Cole’s recommendations into a strategy report. This report should
be published by the winter of 2019 and should include a five-year plan that incorporates
milestones tied to staff and budget allocation.

Limitations
The successful implementation of these recommendations is limited by time, financial
resources, and human resources.
Another obstacle to segregation reform is the inherent limitation of the current justice
system. Without a complete reform that reorients toward restorative justice, the punitive
consequences of segregation can never fully be eliminated.

Cost-Benefit Analysis
The government of Ontario cannot afford to continue its practice of segregating mentally
ill inmates. The federal correctional system has already moved to re-evaluate its

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practices, and Ontario cannot lag far behind. To be accountable and transparent to
voters and other governments, and to protect the human rights of its constituents, the
government has an obligation to end the use of segregation for mentally ill inmates.
It is true that implementing segregation reform policies strain and will continue to strain
the human and financial resources of the Ministry of Community Safety and Correctional
Services. However, this strain can be mitigated – as discussed above – through deliberate,
planned policy implementation.
The John Howard Society of Canada

809 Blackburn Mews


Kingston, ON
K7P 2N6

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Sources
John Howard Society. (April 2017). John Howard Society resolution regarding
solitary confinement. Retrieved from http://johnhoward.ca/wp-
content/uploads/2017/04/John-Howard-Society-Resolution-Regarding-Solitary-
Confinement-1.pdf

Larocque, R. (January 2017). Segregation in Ontario: Segregation literature review.


Retrieved from
http://www.ofm.gov.on.ca/sites/default/files/content/mcscs/docs/Segregation%20Li
terature%20Review%20ENGLISH%20FINAL.pdf

Ontario Human Rights Commission. (2018). Segregation and mental health in


Ontario’s prisons: Jahn v. Ministry of Community Safety and Correctional Services.
Retrieved from http://www.ohrc.on.ca/en/segregation-and-mental-health-
ontario%E2%80%99s-prisons-jahn-v-ministry-community-safety-and-correctional

Ontario Human Rights Commission. (n.d.). Submission of the OHRC to the Ministry
of Community Safety and Correctional Services Provincial Segregation Review.
Retrieved from http://www.ohrc.on.ca/en/submission-ohrc-ministry-community-
safety-and-correctional-services-provincial-segregation-review

Ontario Ministry of Community Safety and Correctional Services. (2018). Data on


inmates in Ontario being made available to the public. Retrieved from
http://www.mcscs.jus.gov.on.ca/english/Corrections/JahnSettlement/CSDatainmate
sOntario.html

Rankin, J. (2018, November 18). Years after landmark case, some Ontario inmates
with mental health issues still segregated for months at a time, ministry
data dump reveals. Toronto Star. Retrieved from
https://www.thestar.com/news/gta/2018/11/18/years-after-landmark-case-some-
ontario-inmates-with-mental-health-issues-still-segregated-for-months-at-a-time-
ministry-data-dump-reveals.html

Sapers, H., Monteiro, A., Neault, N., Deshman, A., & McConaghy, E. (March 2017).
Segregation in Ontario: Independent review of Ontario corrections. Retrieved
from
http://www.mcscs.jus.gov.on.ca/sites/default/files/content/mcscs/docs/IROC%20Seg
regation%20Report%20ENGLISH%20FINAL_0.pdf

Thunder Bay Jail male segregation cell [Digital image]. (2017). Retrieved from
http://www.mcscs.jus.gov.on.ca/sites/default/files/content/mcscs/images/TBJ_Segre
gation Cell (Block # 11 Cell # 1).jpg

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Appendix A: Number of Inmates in Segregation
Sapers Report Findings
INDIVIDUALS IN SEGREGATION COMPARED TO INDIVIDUALS IN CUSTODY

Year Number of distinct segregation Percentage of incarcerated population in


placements segregation
2016 22,509 7% (approximately)
Graph source: Sapers et al., 2017.
Data source: Sapers et al., 2017.

Ministry Report Findings


Year Number of inmates in Percentage of incarcerated
segregation population in segregation
2018 (between April 1 3,086 23%
and May 31) (3,998 total placements)
Data source: Ontario Ministry of Community Safety and Correctional Services, 2018.

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Appendix B: Segregation and Mental Health Alerts

Sapers Report Findings


Year of Individual admissions to Individual admissions to
review segregation while on mental health segregation while on suicide
period watch watch
2016 9,639 (43% of total admissions) 8,156 (31% of total admissions)
Data source: Sapers et al., 2017.

Ministry Report Findings


Date of review Inmates in segregation with a current or Inmates in segregation
period previous mental health alert on file while on suicide watch
2017 (November 373 (61%) Unspecified
14)
2018 (Between 1,546 (50%) 591 (19%)
April 1 and May 31)
2018 (June 5) 219 (88%) - identified as having possible Unspecified
mental health conditions and/or risk of self-
harm or suicidality
Data source: Ontario Ministry of Community Safety and Correctional Services, 2018.

Reported Health Assessments


A baseline health assessment is required to be conducted within five days of admittance to
segregation. These assessments are meant to identify potential mental health issues.
Assessment or action Number of cases in Percentage of cases in
which the action was which the action was taken
taken
Baseline Total 219 100%
Brief Jail Mental Health 193 88%
Screening Tool Administered
Jail Screening Assessment 101 46%
Tool Administered
Referred to Specialist 132 60%
Neglected 30 13%
Data source: Ontario Ministry of Community Safety and Correctional Services, 2018.

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Appendix C: Length of, Reasons for, and
Alternatives to Segregation Placement
Segregation Placement Length
Date of Median length of days Median number of days Maximum days
review consecutively spent spent in segregation spent in segregation
in segregation aggregate over a one- at time of review
year period period
2018 3 (females) 7 598
(Between 5 (males)
April 1 and
May 31)
Data source: Ontario Ministry of Community Safety and Correctional Services, 2018.

Reasons for Segregation Placement

Chart Source: Ontario Ministry of Community Safety and Correctional Services, 2018.

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Alternatives to Segregation Placement: June 5, 2018 Review
5 DAY REVIEW
Baseline 5-Day Consecutive Alternatives Alternatives not
Review considered considered
Number of 180 179 124 55
Inmates
Percentage 100% 99% 69% 30%
10 DAY REVIEW
Baseline 10-Day Alternatives Alternatives not
Consecutive considered considered
Review
Number of 148 144 118 55
Inmates
Percentage 100% 97% 82% 37%
30 DAY REVIEW
Baseline 30-Day Alternatives Alternatives not
Consecutive considered considered
Review
Number of 78 78 71 6
Inmates
Percentage 100% 100% 91% 8%

There were 78 inmates who met the criteria for inclusion in the 30-day continuous and 115
inmates met the criteria for inclusion in the 60-day aggregate reports.

Data source: Ontario Ministry of Community Safety and Correctional Services, 2018.

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Appendix D: Deaths
Year Total Inmates with a Inmates with a Inmates on Inmates in
inmate mental health suicide risk suicide segregation at
deaths alert on file at alert on file at watch at time time of death
time of death time of death of death
2017 26 15 (58%) 11 (42%) 5 (19%) 2 (1 suicide, 1
“undetermined”)
Data source: Ontario Ministry of Community Safety and Correctional Services, 2018.

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