Paper Proposal:

The Constitutional Violations of Solitary Confinement in Canada

Ashlyn Murray - 101231372

Department of Law and Legal Studies, Carleton University

LAWS 2302E: Criminal Law

Professor Paolo Giancaterino

February 17, 2023

Word Count: 998

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Introduction

Throughout my final paper I will address the constitutional violations of solitary

confinement in Canada. Solitary confinement, also referred to as segregation, is an extreme

measure that has been adopted as a so-called form of management and control by the Canadian

criminal justice system (Parkes, 2017, p. 166). This measure was implemented with the intention

of being utilized as a last resort against incarcerated individuals who have been recognized as

dangerous or unmanageable (Parkes, 2017, p. 174). However, in practice it plays a much larger

role than merely a last resort. Rather, individuals placed under solitary confinement are met with

prolonged, sometimes even indefinite, periods of isolation that prohibits them from sensory

stimulation such as contact with others, any access to basic amenities, and more (Dobson, 2020,

pp. 100-101). Consequently, many isolated individuals develop devastating and permanent harms

including depression, anxiety, insomnia, self-mutilation, etc. (Dobson, 2020, pp. 100-101).

Ultimately, the past and present practice of solitary confinement violates the Canadian

Constitution by enforcing a form of supposed correction that strays from rehabilitation and rather

subjects incarcerated individuals, especially those with pre-existing mental health issues, to

various means of psychologically detrimental degradation and dehumanization. To address this,

my paper will be divided into three sections. First, the Charter and other legislation will be

utilized to highlight how solitary confinement ignores the basic constitutional rights of

incarcerated individuals regardless of their position in the justice system. Second, the accounts of

incarcerated individuals will be provided to reveal the unconstitutional truth behind solitary

confinement and its impacts. Finally, the failures of Bill C-83 will be analyzed to address its role

in the continuance of constitutionally unjust measures of solitary confinement in Canada.

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Bibliography

Dobson, L. (2020). Out of Sight, Out of Mind: Bill C-83, Solitary Con nement, and Mental
Health. Journal of Law and Social Policy. Retrieved February 16, 2023, from https://
digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1399&context=jlsp

This article is signi cant as it explores both the aims and impacts of Bill C-83 that was

passed in Canada in 2019. In doing so, the author Lydia Dobson utilizes relevant legal cases and

decisions to highlight the broadly de ned and unjust frameworks embedded within the criminal

justice system that have led to the continuous over-representation of incarcerated individuals

with mental health issues and more particularly, their increased risk of being placed under and

suffering from the harmful consequences of solitary con nement. Overall, the reforms developed

by Bill C-83 known as structured intervention units (SIU) can be recognized to simply replace

solitary con nement rather than eradicate it as it claimed it would. Ultimately, SIU can be

described as an alternative method of torture and isolation aimed at incarcerated individuals,

particularly those with mental health issues.

Gilmour, A. (n.d.). The Nelson Mandela rules: Protecting the rights of persons deprived of
liberty. United Nations. Retrieved February 17, 2023, from https://www.un.org/en/un-
chronicle/nelson-mandela-rules-protecting-rights-persons-deprived-liberty

This article published by the United Nations (UN) begins by utilizing legislation to

describe the longstanding struggles surrounding the protection of prisoners rights speci cally

regarding the widespread use of solitary con nement. The author and Assistant Secretary-

General for Human Rights, Andrew Gilmour, focuses on the adoption of the “Nelson Mandela

Rules” by the UN General Assembly in 2015. In doing so, the purpose behind these rules which

can broadly be explained as the absolute prohibition of torture in respect to prisoners inherent

dignity and values as human beings is identi ed. Overall, using examples from multiple legal
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institutions, attention is brought to the prominent effects that the “Nelson Mandela Rules” have

had on the current treatment of prisoners and the protection of their rights.

Kerr, L. (2015, April 15). The chronic failure to control prisoner isolation in US and Canadian
law. SSRN. Retrieved February 16, 2023, from https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2594363

Throughout this chapter the author Lisa Kerr strategically makes comparisons between

the use of solitary con nement in Canada and the United States (US). Using this comparison,

Kerr identi es how the two countries legal, historical, and political foundations differ in regard

to their use of solitary con nement. Further, emphasis is placed upon the mental state of

incarcerated individuals who have experienced the recognizably overused practice of solitary

con nement within these countries. A crucial aspect of this chapter however investigates the

language used within Canadas governing federal legislation which labels and authorizes the use

of inde nite solitary con nement under the name of “administrative segregation”. Kerr then

highlights how the use of litigation within the US to achieve the reformation of prisoner isolation

should be considered by Canada as a potential lesson for the future of its legal institutions.

Parkes, D. (2017). Solitary con nement, prisoner litigation, and the possibility of a prison
abolitionist lawyering ethic. Canadian Journal of Law and Society, 32(02), 165–185.
https://doi.org/10.1017/cls.2017.16

This scholarly article recognizes the potential role that litigation has in abolishing the

ongoing gendered and racialized human rights crisis upheld by solitary con nement. Debra

Parkes begins by bringing light to Canadas longstanding use of solitary con nement in federal

prisons as well as provincial and territorial jails. A thorough analysis is then applied to the

typically unsuccessful prisoner rights litigation that have arose in Canada and the United States

in order to identify the driving force behind the current litigation that hopes to put an end to

solitary con nement through broader, anti-carceral social justice strategies. Subsequently,
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recognition is brought to the challenges and bene ts faced by those involved in prisoner rights

litigation and ultimately the unjust logic and practices rooted within the carceral state altogether.

Finally, examples are provided to demonstrate how the endorsement of a prison abolitionist

lawyering ethic presents the criminal justice system with the opportunity to engage in critical

re ection that can possibly lead to just and meaningful legal, ethical, and institutional changes

that satisfy prisoners rights.

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