December 12th, 2017
Prepared by Dr. Myles Frederick McLellan
LL.B. (J.D.); LL.M (Osgoode); Ph.D.
(Anglia Ruskin – Law)
This synopsis identifies those issues that the Correctional Investigator, Dr. Ivan Zinger felt necessary to address in his report and to highlight the outstanding problems with those issues and provide the Investigator’s recommendations thereto.
The Correctional Investigator’s Office serves as an ombudsman for federally sentenced offenders and investigates offender complaints related to the decisions, recommendations, acts or omissions of the correctional service. The mandate of the Correctional Investigator is to investigate offender and systemic issues in Federal corrections and make recommendations to ensure safe, lawful, and humane custody. Dr. Zinger states at the outset that this mandate can only be achieved through recognition that corrections is “in the human rights business”.
The issues addressed in the report:
- Health Care in Federal Corrections
- Prevention of Deaths in Custody
- Conditions of Confinement
- Indigenous Corrections
- Safe and Timely Reintegration
- Federally Sentenced Women
Health Care in Federal Corrections
The role of medical staff in prison has the same ethical and professional standards of healthcare practice as found in the community. In carrying out their duties, the Mandela Rules [the United Nations standard minimum rules for the treatment of prisoners] instruct that correctional healthcare workers must be provided full clinical and professional independence. The management of self-injury and suicide in federal custody has been a long-standing concern of the Correctional Investigator’s Office. There remain significant omissions in the use of physical restraints to manage self-injurious and suicidal behavior prison. If an inmate in a regular institution cannot be controlled, a psychiatrist or physician can administer emergency medical treatment until such time as a transfer to an outside hospital or treatment center can be initiated. Under current policy, the decision to authorize the application, reduction of use or removal of instruments of restraint to prevent self-injury continues to reside with the Warden and not healthcare providers. The decision should in fact property reside with clinicians. There is no requirement for security staff who were assigned constant, direct observation of self-injurious or suicidal inmates to also be a source of human contact, comfort, or compassion.
I recommend that CSC review, in FY 2017-18, its health care policies, practices and authorities to ensure they are compliant with the revised United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), specifically those relating to health care services (Rules 24 to 35), solitary confinement (Rules 45 and 46) and instruments of restraint (Rules 47 to 49).
The office continues to call for external psychiatric hospital placements in cases of extreme complex or significant mental illness. The issue is especially problematic in women’s corrections as there are no dedicated, stand-alone treatment facilities for women in Federal corrections.
I recommend that transferring mentally ill women in the Pacific Region to the all-male Regional Treatment Centre be absolutely and explicitly prohibited. Women requiring mental health treatment should be transferred to the female unit at the Regional Psychiatric Centre (RPC) in Saskatoon, or, preferably, to a local external community psychiatric hospital as required
There continues to be inadequate treatment space for significantly mentally ill persons who cannot be safely or humanely managed in a federal correctional facility. This need remains especially acute for federally sentenced women. The CSC claims that it is too costly to place and treat significantly mentally ill women in provincial psychiatric facilities. The failure to conclude more federal/provincial exchange of service agreements for community placements based on funding considerations seems particularly problematic and shortsighted.
I recommend that CSC issue a Request for Proposal to fund or expand community bed treatment capacity to accommodate up to 12 federally sentenced women requiring an intensive level of mental health intervention, care, and supervision
The CSC indicated in its last fiscal year that it would initiate a review of its policies to ensure the right of transgender inmates including consideration of safety, security and privacy related to placement. At various points over the reporting period, CSC’s approach to this issue has been contradictory, disappointing and frustrating. In the context of federal correctional policy and practice, there does not appear to be a very deep understanding or appreciation for what the terms “gender identity” and “gender expression” actually mean.
Tattooing is still a prohibited practice in federal institutions. People who engage in tattooing behind bars are forced to conduct their work underground, often sharing and reusing unsterile homemade tattooing equipment. Illicit prison tattooing has been associated with higher rates of blood-borne infections such as hepatitis C and HIV among the inmate population.
I recommend that CSC reintroduce safe tattooing as a national program
Bill C – 14, medical assistant in dying became the law in Canada on June 17, 2016. In addition to making assisted death available to federally sentenced offenders, the legislation also amends the Corrections and Conditional Release act to exempt CSC from having to conduct mortality investigations when an offender receives medical assistance in dying. The criteria for granting compassionate release to a terminally ill offender are extremely restrictive. The documentation required by the parole board includes medical evidence/rationale that end-of-life is not only imminent, but also certain. In some cases, the board has required medical doctors to provide a defined period of life expectancy. Terminally ill inmates should not have to die imprisoned simply because the case was not processed or brought before the parole board in a sufficiently complete or timely manner.
I recommend that compassionate and humanitarian interests guide policy and practice in implementing Medical Assistance in Dying legislation in federal corrections. The decision of a palliative or terminally ill offender to end life through MAID should be freely and voluntarily made in the community
Prevention of deaths in custody
For this topic, the report focused on the case study of Matthew Ryan Hinds who was 33 years old when he died unexpectedly in federal custody following a series of use of force incidents at Dorchester penitentiary on May 26, 2017. The Correctional Investigator concluded that Matthew’s death was preventable. The repeated use of pepper spray at very close range seemed to have contributed to the medical emergency which ultimately led to Matthew’s death from acute asphyxia. Matthew appeared to have literally choked to death. Staff failed to recognize and respond to his medical distress. The Investigator’s report details a catastrophic and fatal breakdown in the chain of response and accountability.
On August 2, 2016 the Investigator’s office released its report “In the Dark: An Investigation of Death in Custody Information Sharing and Disclosure Practices in Federal Corrections.” The report documents the frustration of families when information is not fully and openly shared following a death of a loved one in custody. The investigation found that even straightforward factual summaries of the events and circumstances leading to the death were typically not provided. The delays, obstacles, and barriers the families encountered in trying to access information about how their family member died in federal custody denied them closure as they grieve their loss. The report concludes that the lack of forthcoming information, numerous delays [investigative reports can be delayed for years], the inappropriate behavior of some CSC staff and the general feeling that CSC is trying to hide something serve only to compound the grief and hurt of many families. The CSC has taken a number of important steps to address issues of concern identified in this report.
In addition to the Matthew Hynes case, the Investigator’s office reviewed a number of other incidents where correctional staff failed to recognize or respond to a medical emergency in a timely and appropriate manner.
There is no specific recommendation to this part of the report
Conditions of Confinement
On December 14, 2016 a major riot took place in the medium security sector of the Saskatchewan penitentiary. At its height, close to 200 inmates were involved. Some inmates covered their faces with balaclavas. Range cameras were covered or destroyed leaving officers with no means of observing events taking place on the ranges. One inmate was murdered. Eight others were taken to outside hospital with injuries sustained as a result of being assaulted, inhaling smoke or chemical agents or being struck by shotgun pellets used to suppress the riot. Damage to several units was extensive, leaving some “uninhabitable”. Prison riots are not random or in evitable events; they are most likely to occur when a certain threshold of defiance and desperation is reached among a group of prisoners who take matters into their own hands to violently force change or express a long-standing grievance. Immediately following the events of December 14, The Correctional Investigator’s Office dispatched two senior investigators to identify possible causes, as well as monitor and assess the response in the Saskatchewan riot’s aftermath. Several immediate areas of concern were noted, particularly with respect to personal health and hygiene, provision of basic living necessities, as well as access to legal counsel. At that time, the Investigator’s office made three recommendations: 1. Ensure food menus, recipes and portion size meet national requirements. 2. Pursue and maintain an open dialogue between management and prisoners. 3. Improve relations between CSC kitchen staff and inmate workers.
I recommend that the lessons learned from the National Board of Investigation into the December 2016 major disturbance at Saskatchewan Penitentiary be widely circulated within CSC and released as a public document
As one of the factors that sparked the deadly Saskatchewan penitentiary riot, food is foundational to health and safety in a prison setting. Spending on food in Canadian prisons has been decreasing. Among other measures, powdered milk has been substituted for fresh milk, bulky meat portions have replaced more select cuts, expensive greens have been removed and vegetable selection has been reduced.
I recommend that an external audit and evaluation of CSC food services be conducted on a priority basis and that the concerns of the inmate population related to portion size, quality, selection and substitution of food items be solicited, heard and addressed immediately by CSC management. The audit should include comparison of ration and per diem meal costs, prior to and after introduction of the food services modernization initiative.
The ability to complain effectively is integral to a legitimate prison environment. The Correctional Investigator notes his concern with the high volume of issues, requests and complaints brought forward to his office involving relatively minor matters. Some grievance decisions have been delayed as many as 14 times, with wait periods inexplicably extending beyond three years. In April 2017, CSC terminated the alternate dispute resolution pilot project that had been running at five institutions. At various times, the initiative had proven successful at resolving as many as half of all complaints and grievances at the local level. The Investigator states that he fails to see the justification or rationale behind these decisions.
I recommend reinstatement and expansion of the Alternative Dispute Resolution pilot program at all medium and maximum security penitentiaries.
A recent status report on administrative segregation conducted by CSC’s internal audit sector confirms that the use of segregation in federal prisons over the past two years has been significantly reduced. There remain significant concerns however, in that, indigenous inmates are still more likely to experience segregation and they continue to stay longer than any other group. The material conditions of confinement in segregation continues to be problematic. On June 19, 2017 the federal government introduced Bill C – 56 proposing to introduce a 15-day presumptive limit on segregation stays, establishing an independent external reviewer mechanism to look at rare and exceptional cases that would extend beyond the 15-day limit, and to include significant reforms to conditions of confinement in segregation. These are positive steps.
As part of its oversight role, the Investigator’s Office reviews all use of force incidents in federal correctional facilities. In 2016 – 17 the office reviewed 1436 interventions involving use of force. In more than two thirds of all the reviews there were compliance problems with video recording procedures. The most commonly identified deficiency related to the timely deployment of a hand-held recording device during a use of force incident. Over a three-year period from 2013 to 2016 a total of 353 requests were made to CSC that included or required processing of the use of force video recordings. Of that total, only 31 records were disclosed either in full or in part.
I recommend that CSC publish on its public website the process for requesting use of force video recordings, including the legal criteria for exemptions and disclosure. CSC should inform the inmate population of their right to access use of force video recordings.
The importance of visits to prisoners cannot be overstated. Regular visits with family members and friends provide an important opportunity to maintain supportive contacts, contributing to rehabilitation and reintegration aims. Visitors are not always treated with courtesy and respect by staff. Family members and friends often experience long delays in entering CSC facilities. It can take weeks or months to be approved for prison visits. Visitors often report feeling highly anxious, stressed, and even stigmatized by invasive security checks and measures conducted at the front entrance.
I recommend that CSC conduct a review of its prison visitor program, to include an updated evaluation of the use and reliability of Ion Mobility Spectrometry devices, and report the results to the Canadian public.
Dr. Zinger highlighted his personal claustrophobic experience in sitting in the back of one of CSC security escort vans used to take prisoners to attend court or medical appointments. Completely enclosed in metal, the compartment insert where shackled prisoners are kept is totally devoid of any comfort or safety features including seatbelts.
I recommend that, over the next two years, CSC remove the current fleet of security escort vehicles (small minivans) as their design is substandard and unsafe and replace them with larger vehicles meeting industry standards in policing (e.g. RCMP).
Between 2007 and 2016 while the overall federal prison population increased by less than 5%, the indigenous prison population increased by 39%. Today, while indigenous people make up less than 5% of the Canadian population, as a group they comprise 26.4% of the total federal inmate population. 37.6% of the federal women inmate population is indigenous. In 2015 – 16, most indigenous offenders were released from custody after their statutory release date, having served two thirds of their sentence. Of those released on statute, 79% were released into the community directly from a maximum or medium security institution without benefit of a graduated and structured return to the community. Parole grant rates were much lower for indigenous than non-indigenous offenders. On average, indigenous offenders waited five months from the point they began their sentence to the start of their correctional programming. Only 20% of indigenous individuals were able to complete their programs by the time they were first eligible for release. CSC has yet to develop tools to assess how culturally specific correctional interventions for indigenous offenders, such as Elder services, healing lodges, pathways initiatives and partnerships with community groups and organizations contribute to an offender’s progress toward successful reintegration. CSC sometimes makes security assessments and program referrals for incarcerated indigenous persons without adequate information from the provincial or territorial court system. CSC assessments and program referrals can be delayed for months awaiting this information. Indigenous persons are more likely than non-indigenous persons to receive higher security classifications. CSC does not provide staff with adequate guidance or training on how aboriginal social history should be considered in case management decisions.
I recommend that CSC review its community release strategy for Indigenous offenders with a view to:
- increase the number of Section 81 agreements to include community accommodation options for the care and custody of medium security inmates;
- address discrepancies in funding arrangements between CSC and Aboriginal-managed Healing Lodge facilities, and;
- maximize community interest and engagement in release planning for Indigenous offenders at the earliest opportunity.
Safe and Timely Reintegration
The report notes that it is encouraging to see that after a decade of decline and major policy reversals, conditional release indicators are finally beginning to trend in a positive direction. Parole grant rates are increasing while the number of offenders on statutory release is starting to come down. While many barriers and challenges remain for offenders returning to the community, none is perhaps more daunting than finding and securing employment with a criminal record. Approximately 60% of inmates at admission to federal custody have an identified employment need. CORCAN, which is a special operating agency within the CSC offers employment training and employability skills to federal offenders. Its goal is to help offenders acquire marketable job skills in prison, so they can obtain gainful employment upon release. Dr. Zinger notes that while he has seen some excellent examples of offenders productively engaged in prison industries, he also observed too many other instances where offenders are either unemployed or underemployed or not participating in any sort of educational, vocational, or correctional programming.
I recommend that the Minister of Public Safety request that the Standing Committee on Public Safety and National Security (SECU) conduct a special study on inmate work and prison industries (CORCAN).
I recommend that the prison farm program be reinstated under CORCAN direction.
Federally Sentenced Women
Female offenders, and in particular indigenous women are the fastest-growing population in Canadian corrections. The most pressing and practical issue is the lack of infrastructure within the secure unit to support the unique needs and manage the risks of the women who are classified as maximum-security. One woman reported being moved 20 times in 22 months as result of interpersonal issues. In numerous interviews, women stated that they fear being reprimanded by staff if they object to the constantly changing living arrangements. Just as concerning was the fact that women reported turning down visits with their children because they did not want their children to see them in leg irons or handcuffs during their visit.
I recommend that the level system for maximum security women be rescinded. Without procedural safeguards and defined review dates, movement levels are arbitrary as they exist outside the law. Security requirements should be assessed on a case-by-case basis as per the principles outlined in the Corrections and Conditional Release Act.
The CSC is struggling to respond to the unique needs of the changing profile of women offenders. In their lifetime, the vast majority of federally sentenced women experience symptoms consistent with a psychiatric disorder. These women present with unique psychological needs such as major mental illness, personality disorder, cognitive impairment, learning disorder, substance abuse, trauma or any combination of these. Significant number of these women engage in chronic, repetitive self-injurious or suicidal behavior.
I recommend that CSC expand capacity of the Structured Living Environments to allow for women with mental health needs to be integrated and accommodated in more appropriate and therapeutic settings. The Secure Units should be limited to separating women who would otherwise normally be placed in segregation.
Correctional Investigator’s Outlook For 2017 – 18 [Verbatim]
Sharp reductions in the use of segregation and length of stays over the past two years serve as a reminder of what can be accomplished when the Correctional Service of Canada’s leadership, focus and priority are fully engaged. The Service should be commended for these outcomes. Though no easy task, I am reminded that these results were achieved without any changes to legislation or regulatory amendments. Furthermore, they were accomplished without unduly compromising the safety and security of CSC institutions, staff, or offenders. Without diminishing the effort or results, I remain convinced that legal reforms are required to ensure that these gains are sustained over time, to further reduce reliance on segregation (especially for offenders with significant mental health issues and who are suicidal or chronically self-injure, younger offenders and women) and to enhance due process and procedural safeguards consistent with Canada’s domestic and international human rights obligations.
I am encouraged by the proposed legislation that was tabled in Parliament in June 2017. Presumptive release from segregation by 15 days and the external scrutiny of independent reviewers should have a significant impact on the number of inmates being segregated and the average length of stay. These measures will assist CSC in ensuring that administrative segregation beyond the 15-day limit is used only in rare and exceptional situations.
In the year ahead, I look forward to the Correctional Service investing a similar measure of focus and priority to address other equally persistent challenges in federal corrections. First, although I understand and appreciate that not all deaths in custody are preventable, there is, as the Matthew Hines case demonstrates, room to improve recognition and response to medical emergencies. Secondly, I anticipate seeing some sharp reductions in the overall use and reliance on chemical and inflammatory agents in use of force interventions. Introducing restraint in this area will not be easy, but changing the culture by reigning in the use of a weapon that runs counter to peaceful resolution of issues is both necessary and the right thing to do. Thirdly, the ongoing dysfunction of the internal inmate complaint and grievance system must be addressed.
Fourthly, in response to a recommendation in last year’s Annual Report, the Service agreed to develop a national older offender strategy to address the care and custody needs of offenders aged 50 or older. At that time, CSC’s response indicated that it would begin developing the strategy over the course of 2016-17, to be completed in 2017-18. As time passes, I remain concerned that the needs of 25% of the inmate population are not being properly met or served. In the coming year, I fully expect my Office to be briefed and consulted on a comprehensive and responsive package of older offender initiatives that addresses an area of outstanding concern dating back to 2010/11, when this recommendation was first made.
Finally, it is my hope that the Government of Canada will proceed, without further delay, to sign and ratify the United Nations Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). This international convention, which has been signed by almost 100 countries, would uphold the fundamental human rights of all individuals held in detention in Canada. In meeting the terms of the treaty, there are considerable advantages in the federal government establishing a new single National Prevention Mechanism (NPM) for places of detention under federal authority (penitentiaries, immigration detention centres, RCMP cells, Canadian Forces Service Prison and Detention Barracks). The designated NPM could serve as a centre of national expertise and assistance for the provinces and territories as Canada moves toward full ratification of the treaty. There is a sense of urgency to sign the OPCAT as further delays have important human rights implications for individuals deprived of their liberty.
I look forward to working with the Correctional Service and the Government of Canada to realize more of the potential of effective corrections and the benefits of independent prison oversight.
Note: at the end of the Report, the CSC has provided its response to each of the recommendations above noted.