by Kirk Dobrowolski* and Jared Craig
Critics claim that isolated confinement can amount to inhumane treatment bordering on torture. Isolated confinement can cause severe mental pain and suffering. In fact, studies have found that lasting mental damage is caused after just a few days of social isolation.[i]
The main body of scientific opinion on the subject of isolated confinement is that it is psychologically harmful to inmates. As well, research shows that isolation is ineffective at rehabilitation and leaves lasting psychological damage. An environment devoid of stimuli that denies physical contact opposes the supposed goal of rehabilitation for re-entry into society.
In recent years, correctional practices related to isolated confinement have been called under serious scrutiny. The authors believe that the practice of isolated confinement, particularly during pre-trial proceedings, threatens the repute of the justice system.
We also believe that the professional obligation of defence counsel requires that they be aware of the harm and impacts of isolated confinement, and actively seek remedies as part of criminal proceedings—during interim release, as part of sentencing, and in extreme cases, in support of applications for stays of proceeding.
On this basis, in this post, we will briefly introduce the definition of isolated confinement and survey the psychological and emotional consequences associated with it. The authors will then identify the areas in which criminal defence lawyers may effectively seek relief for clients who are subjected to this form of unconstitutional treatment.
Definition of Isolated Confinement
A United Nations expert definition of isolated confinement is any regime where an inmate is held in isolation from others, except guards, for at least 22 hours a day.[ii] “Segregation, isolation, separation, cellular, lockdown, Supermax, the hole, Secure Housing Unit…whatever the name, solitary confinement should be banned…the practice could amount to torture”, the UN Special Rapporteur on torture reported.[iii]
Peter Scharff Smith points out that the amount of contact with prison staff can vary and may constitute more than an hour each day, but only rarely will this contact be socially and psychologically meaningful.[iv] Contact with prison staff typically takes place in connection with being escorted to the exercise yard or the toilet or through brief encounters when meals are delivered to the cell door.
Isolated confinement is used occasionally in most prison systems as a means to maintain prison order: as disciplinary punishment or as an administrative measure for inmates who are considered a risk to themselves or to prison order in general. Often, it is a tool for managing difficult prisoners, especially in over-crowded and under-staffed prisons and jails.[v]
Canadian Context
In Canadian legislation, isolated confinement is referred to as segregation (disciplinary or administrative). Disciplinary segregation can be imposed as a sanction where an inmate has been found guilty of a serious disciplinary offence. The purpose of administrative segregation is to maintain the security of the penitentiary or the safety of any person by not allowing an inmate to associate with other inmates.
In recent years, literature and case-law have focused primarily on the practice of isolated confinement within the correctional system for sentenced offenders. In other words, for convicted offenders serving provincial and federal sentences of incarceration. The general consensus is that administrative safeguards in place fail to adequately address this psychological harm.[vi]
Isolated Confinement for Sentenced Offenders
Fortunately, in relation to sentenced offenders, there is some measure of external oversight, and in turn, public records and statistics.
In March 2019, Canada’s Correctional Service held 322 inmates in administrative segregation—down from about 800 in 2014.[vii] However, the use of administrative segregation at the Edmonton Institution maximum-security prison had jumped 45 per cent in 2017 as the number of inmates who spent time in the institution’s segregation unit climbed from 119 to 171.[viii]
Many inmates remain in segregation for very lengthy periods. For example, the duration of placements for 430 federal inmates according to April 2017 data was as follows: 11 inmates (1-2 days); 91 inmates (3-8 days); 72 inmates (32-61 days); 39 inmates (62-91 days); 10 inmates (92-121 days); and 28 inmates (122 or more days).[ix]
Isolated Confinement for Pre-Trial Prisoners
However, as part of pre-trial proceedings, courts in Alberta and Canada have begun to acknowledge the prevalence of the practice of isolated confinement in provincial remand facilities—as part of pre-trial custody. For example, from a provincial standpoint, in February 2018, 247 inmates in Alberta correctional and remand centres were housed in administrative segregation, and 24 were held in segregation for disciplinary reasons.[x]
But beyond scant data related to the rate of incidence of isolated confinement, comparatively little is known about the numbers of people incarcerated in provincial and territorial segregation cells, where external oversight is very limited, and records are often not kept or not released to the public. For example, there is limited data related to the duration and specific conditions of isolated confinement. As Debra Parkes explains, “this is a serious gap in accountability because, on any given day, the vast majority of people incarcerated in Canada are in provincial or territorial jails, either awaiting trial or serving sentences of less than two years”.[xi]
This is also of pressing concern in the context of a bail system that is failing. In Canada, over 250,000 pre-trial persons are held in provincial and territorial detention centres across the country—more than triple of that from a decade ago.[xii] This number exceeds the population of sentenced inmates.[xiii] These inmates are housed in environments that fuel “crowding, violence and inhumane conditions”.[xiv] In fact, as of 2018, in Alberta, 70 per cent of all incarcerated persons in Alberta are pre-trial prisoners.[xv]
The Harm
The importance of meaningful social contact for the maintenance of mental and physical health is well established in the literature.[xvi] Consequently, numerous scientific and professional organizations have reached a broad consensus about the damaging effects of isolated confinement. For example, the American Psychological Association, the worlds largest professional association of psychologists, asserted that “solitary confinement is associated with severe harm to physical and mental health among both youth and adults, including: increased risk of self-mutilation, and suicidal ideation; greater anxiety, depression, sleep disturbance, paranoia, and aggression; exacerbation of the onset of pre-existing mental illness and trauma symptoms; [and] increased risk of cardiovascular problems”.[xvii]
Dr. Stuart Grassian
Psychiatrist Stuart Grassian has had extensive experience in evaluating the psychiatric effects of isolated confinement. He points out that it can cause severe psychiatric harm. The severe restriction of environmental and social stimulation has a profoundly deleterious effect on mental functioning. When deprived of a sufficient level of environmental and social stimulation, individuals will quickly become incapable of maintaining an adequate state of alertness and attention to the environment.[xviii] Grassian found that even a few days of solitary confinement will predictably shift the electroencephalogram (EEG) toward an abnormal pattern characteristic of stupor and delirium.[xix]
Although many of the acute symptoms suffered by these inmates are likely to subside upon termination of isolated confinement, Dr. Grassian found that many—including some who did not become overtly psychiatrically ill during their confinement in isolation—will likely suffer permanent harm as a result of such confinement. This harm is most commonly manifested by a persistent intolerance of social interaction, a deficit that prevents the inmate from successfully readjusting to the broader social environment of general population in prison. As well, this deficit severely impairs the inmate’s capacity to reintegrate into the broader community upon release from imprisonment.[xx]
According to Dr. Grassian, there is a “specific psychiatric syndrome” associated with isolated confinement. The effects of this syndrome include a) hyperresponsivity to external stimuli; b) perceptual distortions, illusions, and hallucinations; c) panic attacks; d) difficulties with thinking, concentration, and memory; e) intrusive obsessional thoughts; f) overt paranoia; and g) problems with impulse control.[xxi]
Professor Craig Haney
Social psychologist Craig Haney is noted for his work related to the psychological impact of prison isolation. Like Dr. Grassian, he points out that isolated confinement denies prisoners any meaningful social contact and access to positive environmental stimulation. “These prisons within prisons are nearly impenetrable to outside researchers (or anyone else). Prison officials tightly control access to solitary confinement units and to the prisoners inside them. They typically rebuff attempts by researchers to observe conditions and practices, let alone to carefully assess their potentially harmful effects”, he writes.[xxii]
Nonetheless, scholars and researchers know a lot about the negative effects of isolated confinement, according to Haney.[xxiii] To be sure, he points out that numerous literature reviews have noted that scientists from diverse disciplinary backgrounds, working independently and
across several continents, and over many decades, have reached almost identical conclusions about the negative effects of isolation in general and isolated confinement in particular.[xxiv]
Empirical studies have identified a broad range of regularly occurring adverse psychological effects to isolated confinement.[xxv] These include: stress-related reactions (such as decreased appetite, trembling hands, sweating palms, heart palpitations, and a sense of impending emotional breakdown); sleep disturbances (including nightmares and sleeplessness); heightened levels of anxiety and panic; irritability, aggression, and rage; paranoia, ruminations, and violent fantasies; cognitive dysfunction, hyper-sensitivity to stimuli, and hallucinations; loss of emotional control, mood swings, lethargy, flattened affect, and depression; increased suicidality and instances of self-harm; and, finally, paradoxical tendencies to further social withdrawal.[xxvi] According to Haney, the prevalence of psychological distress appears to be extremely high in many solitary confinement settings.
A common reaction to isolated confinement is social withdrawal. Haney notes that this is related to a “broader set of social pathologies that prisoners often experience as they attempt to adapt to an environment devoid of normal, meaningful social contact.”[xxvii] In order to exist and function in solitary confinement, where day-to-day life lacks meaningful interaction and closeness with others, Haney urges that prisoners have little choice but to adapt in ways that are asocial and, ultimately, psychologically harmful.
International consideration
A large international literature has reached similar conclusions on the adverse psychological effects of isolated confinement. As well, it has been studied in more traditional international criminal justice contexts. For example, clinical criminologist Henri Barte found that isolated confinement in French prisons had such “psychopathogenic” effects that inmates housed there for extended periods could become schizophrenic, making the practice unjustifiable, counterproductive, and “a denial of the bonds that unite humankind”.[xxviii]
Psychologist Ida Koch studied “acute isolation syndrome” among detainees in Denmark that occurred after only a few days in isolation and included “problems of concentration, restlessness, failure of memory, sleeping problems and impaired sense of time and ability to follow the rhythm of day and night”.[xxix] She found that if isolation persisted for a few weeks or more, it could lead to “chronic isolation syndrome”, including intensified difficulties with memory and concentration, “inexplicable fatigue”, a “distinct emotional liability” that included fits of rage, hallucinations, and the “extremely common” belief among prisoners that “they have gone or are going mad”.[xxx]
Harm without connections
Accumulating literature in social psychology and related disciplines shows that isolated confinement is a potentially harmful form of sensory deprivation. More destructively, it exposes prisoners to pathological levels of social deprivation; numerous studies have established the critical psychological significance of social contact, connectedness, and belonging.[xxxi] That said, meaningful social interactions and social connectedness can have a positive effect on people’s physical and mental health in settings outside of prison and, conversely, social isolation in general can undermine health and psychological well-being. Thus, it makes sound psychological sense that exposure to especially severe forms of material, sensory, and social deprivation harms prisoners’ mental health.
Social cognitive neuroscientist, Matthew Lieberman, concluded that human brains are “wired to connect” to others.[xxxii] Opposing the need to establish and maintain connections to others undermines psychological well-being and increases physical morbidity and mortality. Social connection is crucial to human development, health, and survival, and could be viewed as a national public health priority. Haney points out that the involuntary, coercive, hostile, and demeaning aspects of solitary confinement are likely to exacerbate the negative effects of social isolation that have repeatedly been documented in more benign contexts.[xxxiii]
The Role of Defence Counsel
In light of the harm isolated confinement causes, and the extremely high rate of pre-trial incarceration in Canada, and specifically Alberta, the authors believe that it is critical that defence counsel, who represent presumptively innocent accused persons as part of pre-trial proceedings, are alive to the harms of isolated confinement. As well, defence counsel should know the remedies available to protect these persons from rights violations amounting, in certain cases, to torture.
The starting point for analysis is that isolated confinement, under certain circumstances, represents a violation of s 12 of the Charter of Rights and Freedoms, and also implicates numerous other Charter rights.[xxxiv] This entails that s 24(1) grants a Court to grant such remedy “as the court considers appropriate and just in the circumstances”. The authors believe there are at least three circumstances under which defence counsel may, and perhaps are ethically obligated to raise these issues.
Isolated Confinement is Relevant to Judicial Interim Release (Bail)
First, while perhaps a novel argument, there is some authority to suggest that prison conditions are relevant to an application for judicial interim release (bail) pursuant to s 515 of the Criminal Code. This area has not been substantively considered in recent years. However, flowing from a finding of a breach under s 12, there is at least some authority to suggest that where an accused may face indefinite isolated confinement, if he or she remains detained, that this is a factor that mitigates in favour of release.
For example, in R v Downey,[xxxv] the accused was detained pending trial. He had been diagnosed with acquired immunodeficiency syndrome (“AIDS”). His condition was deteriorating due to inadequate facilities at the institution—in the face of what the Court described as “very probable impending mortality”.[xxxvi] As part of a detention review hearing, the Court also found that the accused was “locked up virtually 24 hours a day and there is no television, no radio, and there was no contact with other prisoners”.[xxxvii] The combination of these factors ultimately led to a finding that his rights under s 12 of the Charter had been breached. The Court stated as follows:
In the circumstances of the detention of this particular applicant and, in particular, during the last five weeks, or so, of his detention, I am content that he has shown, on a balance of probabilities, that he is subjected to cruel and unusual treatment in his detention. And I would take that as one of the facts to balance on a consideration on any action that I might take under s. 24(1) of the Charter and, more particularly, as a factor to be taken into consideration on this review.[xxxviii]
Where defence counsel represents an accused person who faces indefinite isolated confinement as part of pre-trial custody, there are compelling arguments that a Court should very carefully consider the effect of any detention order that would subject them to such treatment. As above, empirical data has established not only that isolated confinement inflicts serious, tangible harms, it also seriously undermines the prospects of future rehabilitation. On this basis, compelling arguments may be framed that in such cases, it is incumbent on a Court to consider the impact of detention on a presumptively innocent accused.
In framing arguments, particularly under the tertiary ground, defence counsel may consider advancing arguments about public perception, and the long-term repute of the justice system. As the SCC emphasised in R v St-Cloud,[xxxix] public confidence must be viewed through the lens of an individual who appreciates the fundamental importance of these rights.[xl] A reasonable member of the public fully appraised by the harms occasioned by isolated confinement may well be deeply troubled by the prospects of a presumptively innocent accused being ordered detained to face treatment that amounts to torture.
Isolated Confinement in Support of Sentence Reduction and Enhanced Credit
A second area in which Defence counsel may advance arguments related to isolated confinement is in the context of sentencing. This is an area that has received comparatively greater attention in recent years.
Isolated confinement could justify a reduction in a sentence through one of two possible routes. First is through a sentence reduction, in accordance with the SCC’s decision in R v Nasogaluak.[xli] The second is through enhanced credit for pre-trial custody, in accordance with the SCC in R v Summers.[xlii] In either case, the effect is that the sentence imposed on the offender is reduced—in some cases by a substantial margin. In turn, a remedy under either ground serves a two-fold purpose. First, it represents vindication for an offender, insofar as it reflects an acknowledgement of the wrongs suffered at the hands of the state. Second, it reflects a condemnation of the practice of isolated confinement.
In R v Nasogaluak,[xliii] the SCC stated that state misconduct (in that case, the excessive application of force as part of an arrest) may justify a reduction in sentence. What is relevant about Nasogaluak, is that the SCC found that even where state misconduct that does not rise to the level of a Charter breach, its impact on the offender may be considered in crafting a sentence. Generally, sentence reductions under Nasogaluak, at least in the prison context, arise in cases of abuse by prison guards.[xliv] Notwithstanding, it is arguable that isolated confinement, even where it does not rise to the level of a s 12 breach, may still justify a sentence reduction or be a factor that is relevant to crafting a fit and proportionate sentence.
In R v Summers,[xlv] the SCC found that pre-trial credit over and above a rate of a 1.5:1 ratio may be granted by sentencing judges to offenders who have suffered “particularly harsh treatment” in pre-trial detention.[xlvi] With respect to isolated confinement, this is the route through which Courts have more commonly awarded relief for offenders subjected to prolonged isolated confinement.
For example, in R v Adams,[xlvii] the accused received a remand credit of three times the time he spent in remand. In addition to abuse at the hands of other prisoners, and even ERC staff, Justice Clackson cited extended time in segregation, including 23-hour lockdown.
The most recent decision in Alberta addressing this issue, was the ABQB decision in R v Prystay.[xlviii] In that decision, Justice Pentelechuk found that Mr Prystay’s experience in isolated confinement represented a breach of his rights under s 12 of the Charter. In so finding, she provided enhanced credit of 3.75 days for each of the 363 days he spent in administrative segregation. What is perhaps most significant about Justice Pentelechuk’s decision, is her thorough review not only of the governing legal principles, but of the specific conditions Mr Prystay was subjected to while in administrative segregation at the Edmonton Remand Center (“ERC”), and the specific impacts of this segregation on his mental health. What is troubling, is that they reflect many of the same serious symptoms set out above. As she explains,
Prystay suffered from extreme stress, anxiety, sleeplessness, depression and paranoia. He experienced auditory hallucinations and physical symptoms including chest pain, back pain and body aches.[xlix]
In general, defence counsel representing individuals subjected to isolated confinement should turn very careful attention to Justice Pentelechuk’s strong pronouncements in Prystay, in advocating for clients as a part of sentencing.
Isolated Confinement in Support of a Stay of Proceeding
A final area in which Defence counsel may raise issues related to isolated confinement is in support of an application for a stay of proceedings. In appropriate cases, Defence counsel may consider seeking a stay of proceedings, and in the alternative, a sentence reduction or enhanced credit, as was the case in R v Adams.[l]
A stay of proceedings is the most drastic remedy a criminal court can order.[li] As the SCC explains “[i]t permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court”.[lii]
Nonetheless, Canadian courts recognize that on rare occasions, and the “clearest of cases”, a stay or proceedings is warranted.[liii] For isolated confinement, a stay of proceedings would generally fall under the second branch of the test for abuse of process set out by the SCC in R c Piccirilli[liv] known as the “residual category”. This is where state conduct does not compromise the right to a fair trial, but instead undermines the integrity of the judicial process. It applies where a court must denounce and distance itself from egregious state conduct.
In the face of a growing acknowledgement of the serious harms occasioned by isolated confinement, there have been two decisions in recent years where a stay of proceedings has been ordered with respect to accused persons facing significant periods of isolated confinement.
First, in R v Ugbaja (2019),[lv] the Ontario Superior Court stayed charges for importation of heroin, possession for the purpose of trafficking, and dangerous driving. It found that the treatment of the accused was so offensive that no alternative other than a stay of proceedings was reasonable in the circumstances. The accused had a fracture to his foot which was not treated promptly resulting in a permanent injury. However, perhaps the most significant aspect of the court’s ruling was based on the accused’s being unlawfully placed in isolated segregation for a period of 79 days. The Court found a breach of the accused’s rights under s 7 of the Charter, both with respect to his failure to receive appropriate medical care and due to his unlawful confinement in administrative segregation. The Court concluded by noting as follows:
Society’s understanding of the harm associated with administrative segregation has increased significantly over the last few years together with a recognition of the need to have sufficient procedural protections to ensure that it is not imposed in a manner inconsistent with the principles of fundamental justice. The accused’s confinement in this case was lengthy, without justification and carried out with total disregard for the principles of fundamental justice… I have therefore concluded that this falls within one of the “clearest of cases” where the granting of a stay is justified. The treatment of Mr. Ugbaja while in custody is so offensive to a sense of fair play and decency that society’s interest in a full trial on the merits must give way to a stay.[lvi]
Perhaps the most disquieting example of a case in which a stay was issued, which has garnered a significant degree of media attention, was the case of Adam Capay. Capay, a young member of Lac Seul First Nation suffering from mental health issues, was charged with first degree murder for the 2012 death of Sherman Quisses. Both were inmates at the Thunder Bay Correctional Center in Ontario.
Capay was 19 years old at the time of the incident. While awaiting trial, Capay served approximately four and a half years in isolated confinement—1,647 days.[lvii] In issuing a stay of proceedings, Justice Fregeau of the Ontario Superior Court said that this was “prolonged, egregious and intolerable”.[lviii] He provided a scathing review of the procedural safeguards within the institution, describing them as “pro forma, perfunctory and meaningless”.[lix] Justice Fregeau found breaches of the accused’s rights under ss. 7, 9, 12, and 15 of the Charter.
Interestingly, Justice Fregeau found that both branches of the test for a stay of proceedings were engaged.
The failure of the institution to keep suitable records related to Capay’s mental health, and inadequate medical treatment, undermined Capay’s right to a fair trial. The Defence had admitted that Capay had caused death. The only issue was his mental state at the time of the offence. Justice Fregeau also found that a stay was justified under the second branch of test. The Court stated as follows:
The accused, a young Indigenous man from a remote First Nations community with serious mental health issues was detained in continuous segregation for four and one-half years… He received no therapeutic mental health services during this period of time…[T]he accused remained in segregation in deplorable conditions. In my opinion, his segregation during this period of time was devoid of meaningful review at both the institutional and regional levels…In the expert opinion of Dr. Bradford, the accused’s time in segregation…almost certainly had a more serious effect on him than it would on many other individuals given his ADHD, antisocial personality disorder, and history of depression, self-injurious behaviour, and suicidality…[S]egregation either exacerbated the accused’s pre-existing PTSD or triggered its development, such that it is now chronic and severe and will persist as a legacy of the accused’s prolonged segregation. Dr. Bradford also opined that segregation has resulted in significant cognitive impairments for the accused.
Experts with decades of experience in the field of corrections and segregation were shocked and incredulous when describing the conditions in which the accused was segregated for four and one-half years. The accused has suggested that this case is not simply about state misconduct, but that it represents the worst state misconduct that decades of expert experience has ever seen. That submission, in my opinion, has a great deal of merit. In my opinion, this is the clearest of cases in which no remedy short of a stay is capable of redressing the prejudice caused to the integrity of the justice system as a result of the multiple and egregious breaches of the accused’s Charter rights.
Cases such as Capay are indeed extreme cases. However, what is perhaps most significant about such decisions is the need for vigilance, particularly on behalf defence counsel. In that case, an individual fell through the cracks. One might wonder what may have happened had issues been raised early in proceedings, for example during the bail phase, or at some point in the interim.[lxi] It is important to point out that diligent attention to Carpay’s underlying mental health would suggest that isolated confinement should be avoided—not abused.
Conclusion
Administrative segregation is a form of isolated confinement that places all Canadian inmates subject to it at significant risk of serious psychological harm, including mental pain and suffering, and increased incidence of self-harm and suicide. The risks of these harms are intensified in the case of mentally ill inmates. However, all inmates subject to segregation are subject to the risk of harm to some degree.
While many of the acute symptoms are likely to subside upon termination of segregation, many inmates are likely to suffer permanent harm as a result of their confinement. This harm is most commonly manifested by a continued intolerance of social interaction, which has repercussions for inmates’ ability to successfully readjust to the social environment of the prison general population and to the broader community upon release from prison. Negative health effects can occur after only a few days in segregation, and those harms increase as the duration of the time spent in segregation increases.
As Pentelechuk J (as she then was) stated in R v Prystay,[lxii]
Societal views on what is acceptable treatment or punishment evolve over time. Forced sterilization, residential schools, lobotomies to treat mental disorders, corporal punishment in schools and the death penalty are all examples of treatment once considered acceptable. Segregation ravages the body and the mind. There is growing discomfort over its continued use as a quick solution to complex problems.[lxiii]
Just as we, as a society, look back on such previous practices related to the treatment of prisoners with great concern, the authors believe that in the future, our practices of isolated confinement will also be seen to reflect a dark chapter in our history. The writers would call on all practising members of the criminal defence bar to avoid complacency, and ensure that, particularly with respect to pre-trial prisoners, all possible measures are taken to ensure the matters are properly brought before the courts to ensure robust judicial oversight.
* Kirk Edward Dobrowolski BA Hons EMT-P (ret)
Kirk obtained an honours BA from the University of Calgary with a major in law and society. His honours thesis looked at the harm caused by isolated confinement and ways to reduce it. Before completing his degree, Kirk worked in healthcare for nearly two decades as both a critical care paramedic and a clinical educator. His clinical experience includes working in a variety of rural and urban settings in Alberta. As well, he worked for a number of years on the Siksika First Nation. As an educator, Kirk spent time as a faculty instructor at SAIT where he taught pharmacology and developed algorithms for critical care resuscitation. Most important for Kirk, from a social, legal, and medical standpoint, is human advocacy and respect for human dignity.
[i] “Solitary Confinement Should Be Banned in Most Cases, UN Expert Says” (2011) UN News, United Nations, online <https://news.un.org/en/story/2011/10/392012-solitary-confinement-should-be-banned-most-cases-un-expert-says>.
[ii] Ibid.
[iii] Ibid.
[iv] Peter Scharff Smith, “The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature” (2006) 34:1 441 at 448 Crime and Justice – A Review of Research 441 at 448.
[v] Ibid at 454.
[vi] “A Quick Comparison: The Recent Solitary Confinement Rulings by BCSC and ONSC” David Asper Centre for Constitutional Rights (2019), online <http://aspercentre.ca/a-quick-comparison-the-recent-solitary-confinement-rulings-by-bcsc-and-onsc/>.
[vii] “Landmark Ruling in Ontario Caps Solitary Confinement at 15 Days” (2019) The Globe and Mail, online <https://www.theglobeandmail.com/canada/article-solitary-confinement-for-more-than-15-days-constitutes-cruel-and/>.
[viii] Keith Gerein, “Use of Segregation up Last Year at Edmonton Institution despite Decline Elsewhere” Edmonton Journal (2017), online <https://edmontonjournal.com/news/local-news/use-of-segregation-up-last-year-at-edmonton-institution-despite-decline-elsewhere>.
[ix] British Columbia Civil Liberties Association v. Canada (Attorney General), 2018 BCSC 62 at para 156.
[x] Stuart Davis, “Alberta Hit with Class-action Suit over Jails’ Segregation Policies” (2018) Edmonton Journal, online <https://edmontonjournal.com/news/politics/alberta-hit-with-class-action-suit-over-jails-segregation-policies>.
[xi] Debra Parkes, “Solitary Confinement, Prisoner Litigation, and the Possibility of a Prison Abolitionist Lawyering Ethic” (2017) 32 CJLS 165.
[xii] Abby Deshman & Nicole Myers, “Bail and the Revolving Door of Pre-trial Detention” (Toronto: Canadian Civil Liberties Association and Education Trust, July 2014), online <ccla.org/dev/v5/_doc/CCLA-set-up-to-fail.pdf>.
[xiii] Martin L Friedland, “The Bail Reform Act Revisited” (2012) 16 CCLR 315.
[xiv] Ibid.
[xv] Jamil Malakieh, Statistics Canada, “Adult and youth correctional statistics in Canada, 2017/2018” (2019), online < https://www150.statcan.gc.ca/n1/en/pub/85-002-x/2019001/article/00010-eng.pdf?st=2N3-PqQs>.
[xvi] Craig Haney, “The Psychological Effects of Solitary Confinement: A Systematic Critique” (2018) 47 Crime and Justice 365 at 374.
[xvii] Ibid at 368.
[xviii] Stuart Grassian, “Psychiatric Effect of Solitary Confinement” (2006) 22 Wash U JL & Pol’y 325 at 330.
[xix] Ibid at 331.
[xx] Ibid at 333.
[xxi] Ibid at 335-337.
[xxii] Haney, “The Psychological Effects” 2018 supra note 16 at 366.
[xxiii] Ibid at 367.
[xxiv] Ibid.
[xxv] For reviews of the literature documenting these adverse reactions see Haney and Lynch (1997); Haney (2003); Cloyes et al. (2006); Grassian (2006); Smith (2006); and Arrigo and Bullock (2008).
[xxvi] Haney, “The Psychological Effects” 2018 supra note 16 at 372.
[xxvii] Ibid at 272-273.
[xxviii] Henri Barte, “L’isolement carceral” (1989) 28 Perspectives Psychiatriques 252.
[xxix] Ida Koch, “Mental and Social Sequalae of Isolation: The Evidence of Deprivation Experiments and of Pretrial Detention in Denmark” The Expansion of European Prison Systems edited by Bill Rolston and Mike Tomlinson, Working Papers, European Criminology, no.7 Stockholm (1986): European Group for the Study of Deviance and Social Control.
[xxx] Ibid.
[xxxi] See Stephanie E. Cacioppo and John T. Cacioppo, “Decoding the Invisible Forces of Social Connections” (2012) 6 Frontiers in Integrative Neuroscience 1. See also Fiorillo and Sabatini (2011) and Hafner et al. (2011).
[xxxii] Matthew Lieberman, Social: Why Our Brains Are Wired to Connect (New York: Random House, 2013).
[xxxiii] Haney, “The Psychological Effects” 2018 supra note 16 at 375.
[xxxiv] R v Prystay, 2019 ABQB 8.
[xxxv] R v Downey, (1989), 42 CRR 286, 1989 CarswellOnt 2366 (Ont Dist Ct).
[xxxvi] R v Downey, (1989), 42 CRR 286, 1989 CarswellOnt 2366 (Ont Dist Ct) at para 32.
[xxxvii] R v Downey, (1989), 42 CRR 286, 1989 CarswellOnt 2366 (Ont Dist Ct) at para 20.
[xxxviii] R v Downey, (1989), 42 CRR 286, 1989 CarswellOnt 2366 (Ont Dist Ct) at para 29.
[xxxix] R v St-Cloud, 2015 SCC 27 [St-Cloud].
[xl] Ibid at para 79.
[xli] R v Nasogaluak, 2010 SCC 6.
[xlii] R v Summers, 2014 SCC 26 [Summers].
[xliii] R v Nasogaluak, 2010 SCC 6.
[xliv] See for example R v Munoz, 2006 ABQB 901.
[xlv] R v Summers, 2014 SCC 26 [Summers].
[xlvi] Ibid at paras 77-73.
[xlvii] R v Adams, 2016 ABQB 648 [Adams].
[xlviii] R v Prystay, 2019 ABQB 8.
[xlix] R v Prystay, 2019 ABQB 8.
[l] R v Adams, 2016 ABQB 648 [Adams].
[li] R v Regan, 2002 SCC 12 at para 53.
[lii] R c Piccirilli, 2014 SCC 16.
[liii] R v O’Connor, [1995] 4 SCR 411 at para 68.
[liv] R c Piccirilli, 2014 SCC 16.
[lv] R v Ugbaja, 2019 ONSC 96.
[lvi] R v Ugbaja, 2019 ONSC 96 at para 68.
[lvii] Patrick White, “Adam Capay’s 1,647 days in solitary: New details emerge as Ontario decides not to appeal stay of murder charge” (2019) The Globe and Mail, online <https://www.theglobeandmail.com/canada/article-ontario-will-not-appeal-decision-to-abandon-murder-charge-against-adam/>.
[lviii] Ibid.
[lix] Ibid.
[lx] R v Capay, 2019 ONSC 535 at paras 510-514, 534 (emphasis added).
[lxi] The writers would be clear that there is no basis to call in question the exceptional advocacy by Defence counsel who were retained at the time of the application for a stay of proceedings.
[lxii] R v Prystay, 2019 ABQB 8.
[lxiii] R v Prystay, 2019 ABQB 8 at para 12.
