Justice Vs. Solitary Confinement: Torture in Canadian Prisons

Warning to listeners: this episode contains descriptions of physical and psychological abuse, self harm, and suicide. The United Nations has declared solitary confinement to be a form of torture, so why do Canadian prisons still employ the practice? Today, Justice Vs. looks at how and why solitary confinement is used within the Canadian criminal justice system and the impact it has on those who are subjected to it. We speak with Noa Mendelsohn Aviv, director of CCLA’s Expression and Equality programs, and Rachel Fayter, a PhD. candidate in the Department of Criminology at the University of Ottawa, who describes her experience being held in prolonged solitary confinement and her academic work investigating it’s particular impact on women and those experiencing mental illness.

The John Howard Society does extensive work advocating for the rights of prisoners as well as offering reintegration services for people leaving the correctional system. For information on volunteer opportunities see: https://johnhoward.on.ca/jhs-ontario/volunteer/
PASAN is a community-based prisoner health organization which focuses on harm reduction through providing support services and advocacy to prisoners and ex-prisoners in Canada. To find out more, see: http://www.pasan.org/
The Canadian Criminal Justice Association seeks to promote more efficient, humane, rational, and equitable justice system. They can be found at: https://www.ccja-acjp.ca/pub/en/
Elizabeth Fry provides women with counselling services, employment supports, housing services, and more while subsequently advocating for a more inclusive and equitable criminal justice system. To find out how you can help, find them at: https://efrytoronto.org/.

General Info – Segregation  

Cole, David. “Final Report of the Independent Reviewer on the Ontario Ministry of the Solicitor General’s Compliance with the 2013 “Jahn Settlement Agreement” and the Terms of the Consent Order of January 16, 2018 Issued by the Human Rights Tribunal of Ontario”. February 2020. Retrieved from: http://www.mcscs.jus.gov.on.ca/english/Corrections/JahnSettlement/FinalReportIndependentReviewer.html#MH_SR_use_of_seg 

Jackson, Michael. “Solitary: A case for Abolition”. West Coast Prison Journal. November 2016. Retrieved from: https://prisonjustice.org/wp-content/uploads/2018/11/solitary-confinement-report.pdf 

John Howard Society. “Solitary Confinement Factsheet”. 2017. Retrieved from: https://johnhoward.on.ca/wp-content/uploads/2017/02/Solitary-Confinement-FactSheet-Final-1.pdf 

Rachel Fayter 

Fayter, Rachel. “Rachel Fayter Biography”. n.d. Retrieved from: https://rfayter.academia.edu/ 

CBC Radio. “Former Inmates Re-Invent Themselves as Criminologists”. March 2018. Retrieved from: https://www.cbc.ca/radio/sunday/the-sunday-edition-march-18-2018-1.4579165/former-inmates-re-invent-themselves-as-criminologists-1.4579189

Transcript

Rachael Fayter  00:07

I spent 32 days in, basically, the cell is about five meters squared. So it's a very small space. There's a concrete slab that you sleep on (that's the bed) with a very thin, almost like a, gym mat. No pillow, no blanket. I was isolated in this tiny, like, it's like a dungeon. The slang term for segregation is the hold.

Maria Rio  00:40

Welcome to CCLA’s podcast Justice Vs. I'm your host Maria Rio. The United Nations’ Nelson Mandela rules dictate that being in solitary confinement for more than 15 days is torture. In Canada, solitary has been used to punish individuals by isolating them for weeks, months, or even years. Even though solitary is not mandated at the court level, it is used by officers to penalize inmates for a wide range of actions, including for nonviolent rule infringements. In this episode of Justice Vs. we will explore how prolonged solitary confinement is used in Canada, its detriments, and why this matters. Today we're joined by Rachel Fayter, an advocate, author, and formerly incarcerated person at the Grand Valley Institute for Women in Kitchener, Ontario. Rachel has a Master's Degree from Wilfrid Laurier University in community psychology and is currently a PhD candidate at the University of Ottawa. Her work focuses on the punitive nature of the criminal justice system, and how it negatively impacts marginalized people – especially women living with mental illness. She advocates for reform through public speaking, research, and community to work and champions the rights of the incarcerated, she strongly believes in strengthening communities to help people avoid prison in the first place. We're so thankful to have you here today. Thank you for speaking with us, Rachel.

Rachael Fayter  02:03

Thank you for having me.

Maria Rio  02:04

Can you tell us about the events that led to your incarceration?

Rachael Fayter  02:08

I was in graduate school at Wilfrid Laurier University, working on my PhD. While I was in graduate school, I was in an unhealthy abusive relationship for a while. I was also in a bad car accident, in 2009, that left me with chronic neck and back pains, and at the time, doctors were over-prescribing opiates. So, I was put on Oxycontin and Percocet. I was maybe 27 or 28 years old. I was on those pills for a few years, I became addicted to them. When I tried to get off them, I experienced significant withdrawal, and it was very difficult to deal with when I was in school full time and working a couple part time jobs as well. Then I also got caught up in an investigation where I was connected with some people. I think 30 people got arrested. I got, kind of, lumped into this group. When I was arrested, I was caught with about a half ounce of marijuana and about three grams of hash and I was charged with possession for the purpose of trafficking on those two counts. I ended up with like 10 different charges, all related to drug trafficking. Then I was placed on house arrest for two and a half years while I was waiting trial. And eventually I ended up breaching my bail conditions. They were extremely restrictive. I actually had to drop out of my PhD program because of my bail conditions. I wasn't allowed to go to work, to go to school, to go to the doctor, to go anywhere. So, I was on house arrest at my parents’ house. Then I ended up breaching those conditions and ended up in the provincial system, and then from there made a plea bargain and was sentenced to federal prison.

Maria Rio  04:05

Thank you for sharing your story. Can you tell us how your experience as a psychology academic and a person of a federal institution impacted your view of the criminal justice system in Canada?

Rachael Fayter  04:16

As a psychology academic, I'm naturally inquisitive about human behavior and thought processes, and also the way that we treat people with mental health issues and the most marginalized in society. And I'm also naturally critical. I question everything. When I went to prison, I had an insider view of the system, and I was able to see behind the wall – see the things that happen, on a daily basis in the prison context that the general public does not see. I think much of what goes on in the prison is not known by the general public, because the system really lacks transparency and does a really good job of hiding the level of injustice that happens.

Maria Rio  05:16

What surprised you the most when you first arrived in prison?

Rachael Fayter  05:20

So I had spent five months in the provincial system before I was transferred to GVI in Kitchener. And in the provincial system, it was maximum-security conditions, so it's more of the typical prison that you might see on TV and movies. Saw concrete and metal, and cells, and a toilet in the cell, and metal tables, stuck to concrete floors. When I got to GVI, at first, it was nice to be out of that maximum-security conditions and being able to walk, around and have some sunshine, and see some green space and some trees. That was my first impression. What surprised me was how, in our federal system CSC talks about, and espouses, values. They espouse these values to the general public. There's also policies in Canadian law, and if you look at the CSC website, it doesn't sound that bad for women. It sounds like they're doing programs, and supports, and rehabilitation opportunities to help people. But in reality, that's not what's happening. So, I guess I was surprised at how much propaganda there is and how CSC espouses one thing to the general public. But then what is going on behind closed doors is almost the complete opposite.

Maria Rio  07:07

I'm wondering if you can take us back to your first day and subsequent time in solitary confinement?

Rachael Fayter  07:12

I was sent to solitary confinement towards the end of my sentence. So, I believe I'd been in for about two and a half years. It was about six months before I was going to be released, and I was sent to segregation for a minor nonviolent infraction. So, what happened was, I was caught with a very small amount of marijuana in my living unit, and I was sent there for 32 consecutive days. The reason I was there so long was because I was fighting an involuntary transfer. So, the institution was trying to put me in maximum security for the remainder of my sentence, which is a huge problem, because the way the system is supposed to work, according to what their policies state, is that prisoners come in at a security level and should be reducing their security to slowly reintegrate into the community. So that prior to a release we’ll be going on passes in the community, and then if you get parole, you'd go to a halfway house or you can get out on your statutory release, or full parole, and go home to a family member or your own apartment. They were trying to put me in maximum security right before I was going to be released, which would be a huge challenge, after serving a few years. 

Looking at my time in solitary: For the first 48 hours of that I was in segregation. I was placed in what is called “dry cell conditions,” which means they took all of my clothes, they put me in a kind of canvas – we call it a “baby doll dress” – it's kind of like a potato sack like a thick canvas sack that just kind of hangs over you, and we're not even allowed to be wearing underwear, so it's very uncomfortable. And for women, especially when there's male guards and men watching on CCTV cameras, it's very disturbing. All of the water was shut off to my cell, so I had to use the bathroom in front of guards, which was very dehumanizing, and I wasn't allowed to have access to the telephone, not even to call like any fry advocate. And, once that was finished, and they were trying to put me in maximum-security, I was fighting this, so it took me time to go through the process. I had to file a bunch of paperwork and have meetings with the warden and correctional managers and kind of fight my case. I spent 32 days in, basically, the cell is about five meters squared. So it's a very small space. There's a concrete slab that you sleep on (that's the bed) with a very thin, almost like a, gym mat. No pillow, no blanket. I didn't have any access to writing materials, or books, or anything to occupy my time. After about a week or so I was able to get some of my belongings from my cell. I was able to use the phone, read, write letters. I even had my TV after a while. So that helped. But I was isolated in this tiny, like, it's like a dungeon. The slang term for segregation is the hold. There's no natural light, it's all concrete around you, it's very dirty, there's just a, there's a toilet in your cell, a little metal table, you're eating in there, you're spending 23 hours a day in there. I went out for a shower every other day, and to go to the shower, they had to shackle me to walk the about 10 feet or 15 feet down the segregation range, and then lock me in the shower while I'm there. And then when I was finished, I just have to kind of wave my hands through a hole and be stuck there soaking wet and cold until they came and got me. I was allowed to go outside, sometimes, but this was November, and it was very cold. And the outside area – it's basically just to get some fresh air because it's just another box that you're in outside with concrete and you can see a little piece of the sky and there's razor wire all around you. So, it's not a very nice area to go outside for a walk. You're just kind of getting, breathing some fresh air. I really didn't understand how difficult solitary confinement was until I spent time in there.

Maria Rio  12:27

To learn more about solitary confinement. We also invited Noa Mendelsohn Aviv, the Director of CCLA’s Equality Program, to talk about prolonged isolation in Canadian prisons. Noa joined CCLA in 2002 and has directed the Equality Program since 2010. She has coordinated many CCLA interventions within courts, human rights tribunals, and appearances at the Supreme Court of Canada. Noa has advocated on issues like refugee protection, LGBTQ2S rights, racial profiling, and of course, solitary confinement. Noa has been advocating for the ban of prolonged solitary confinement in Canadian prisons for years. She undoubtedly played a crucial role in the recent CCLA court victory that ruled that solitary confinement lasting more than 15 days amounts to cruel and unusual punishment. One of the reasons CCLA fought against solitary is isolating individuals worsens existing mental health conditions and actually creates mental health problems. Solitary confinement causes anxiety, depression, suicidal ideations, and indeed suicide. One of the most well-known Canadian examples of the harms of solitary is a story of 19-year-old Ashley Smith, died while in solitary confinement in 2007. 

I want to give a content warning here. The following contains audio from surveillance videos of Ashley Smith during her troubling interactions with prison guards. Fast forward 55 seconds to skip this content

Unknown Speaker  13:54

We’re in the segregation cell area. The maximum-security unit. It’s June the 7th at approximately 11:30.

Unknown Speaker  14:02

Ashley continues to have her window covered with a sheet that has been soaked in water. 

Unknown Speaker  14:08

Can you please uncover your window?

Ashley Smith  14:11

Why?

Unknown Speaker  14:12

So that I can see you and make sure you're safe.

Ashley Smith  14:14

Safe!

Unknown Speaker  14:15

I can’t confirm that unless I can see you.

Unknown Speaker  14:20

They are going to open the segregation door to attend to her.

Unknown Speaker  14:26

Ok, Ashley, I’m just checking to make sure you don’t have any more…

Ashley Smith  14:31

I don’t want you touching me

Unknown Speaker  14:32

I’m not going to touch you, I’m only going to touch your gown

Ashley Smith  14:35

No, don’t do that!

Unknown Speaker  14:37

You got it?

Ashley Smith  14:39

Stop looking!

Maria Rio  14:46

Noa, let's go back to your early days as Director of Equality at CCLA, back to the Ashley Smith, case. Can you tell me Ashley’s story?

Noa Mendelsohn Aviv  14:54

Sure, Ashley Smith had a tragic story. Her life ended far too early. She had some very small-time troubles as a teenager, and over those minor infractions, got into trouble with the law and ended up with a carceral sentence in a youth facility. And there, there were mental health or behavioral issues that led to a lot of self-harming. And she continued to get into trouble while there, mostly because, while she was self-harming, if staff would try to stop her, she would end up lashing out and that would be seen as yet another violation, which got her yet another sentence. And ultimately, she ended up spending four years of her youth in these detention centers. And when she was 18, they made a move and transferred her into an adult penitentiary. And then it gets worse. Both in the youth system and in the adult system, she spent a lot of her time – In the adult system, she spent almost all of her time ­– in solitary confinement. That was about 11 and a half months. She continued to self-harm while she was in the adult system. She would tie ligatures around her neck, amongst other forms of self-harm. Ultimately, the prison warden came to the conclusion that Ashley was seeking attention, which is almost certainly true, because solitary confinement means the deprivation of human contact, which is something that all people need. And, so, the warden said, “Well, if she's seeking attention, we should not give it to her” and issued an instruction that the people working in the prison shouldn't go into herself she self-harmed, and that they shouldn't go in and remove a ligature until she stopped breathing. So, people stood outside her prison cell watching one day, when she tied a ligature around her neck, and she died. 

And the inquest jury who looked into this matter, came to the conclusion that this was homicide.

Maria Rio  17:12

Unfortunately, Ashley story is not unique. Another case of an inmate struggling with mental illness being placed in solitary was Terry Baker. Terry was at the same facility as Ashley and also died while in solitary confinement at the Grand Valley Institute for Women in July of 2016. Rachel, as someone who was in the same institution, what protocols, or lack thereof, do you think contributed to the deaths of both Ashley Smith and Terry Baker?

Rachael Fayter  17:38

So, I can't name the specific protocols that were used in those cases. There's a lot of CSC policies, thousands of them. But, I do know what the typical practice is for people with mental health issues that are threatening self-harm or that have harmed themselves, and that's why they're being placed in segregation. When I was in solitary, there was, I think, five or six different cells. And cell number one is the observation cell, where they put people when they're on suicide watch. And I believe that's the cell where Ashley Smith died, and Terry Baker, as well. While I was in solitary, I had to walk past this cell sometimes to like have a meeting with someone in the institution. During my time there I saw a woman in observation cell, so instead of a solid metal door and bricks, it's kind of Plexiglas, it's clear, open window that you can see in, and kind of looks like a medieval torture chamber. So, there was a metal bed with restraints on it, and there was a woman that was strapped to that bed for at least like 12 to 24 hours while I was there, and she was on suicide watch. That's what happens when somebody is threatening to harm themselves. They restrain them and put them in conditions that even somebody who is the most healthy, sane, stable person, without any mental health issues, it would make you have mental health issues, because of the way that you're being treated.

Maria Rio  19:43

At the inquest, CCLA pressed the jury to examine the circumstances around Ashley's death and rule it a homicide. In December 2013, the Court did just that. Her death was ruled the homicide and the jury made 104 recommendations regarding prison reform, accountability, mental health, and solitary confinement. In your opinion, what do you believe are the key recommendations of those 104?

Noa Mendelsohn Aviv  20:08

There were a lot of important recommendations. We had focused on accountability issues and on solitary confinement, and in fact, the jury came back with some very serious recommendations around solitary confinement, consistent with international law, saying that the Canadian correctional service should prohibit the use of solitary confinement for people with mental illness, that they should prohibit indefinite, and that they should prohibit prolonged solitary confinement. And under international law, anything over 15 days is considered prolonged solitary, because it can cause permanent harms to people's mental health

Maria Rio  20:45

Did the government follow through with the recommendations at the time?

Noa Mendelsohn Aviv  20:48

No, unfortunately not. One of the things that the jury did after sitting for so long and working so hard, they, they didn't want the inquest recommendations to just end up a dusty volume on a shelf as inquest recommendations often do. And, so, their last recommendation was the CSC had to come back and report on what it had implemented a year later. And they hadn't made any of those changes around solitary that we and others have called for. And the result was that the Canadian Civil Liberties Association filed a legal action to end the administrative segregation regime in Canadian prisons – “administrative segregation” being the name that the legal regime gave to that particular form of solitary confinement.

Maria Rio  21:42

We know the international standard for when solitary is considered torture is 15 days. How do you feel knowing that you spent double that time in solitary?

Rachael Fayter  21:50

I was aware of these standards, just from my own academic studies, and readings, and studying prison policies, and advocacy in the community. It was completely unjust. I wasn't a threat to anybody, I wasn't violent. So, I just had a tiny bit of marijuana. And it was it was very frustrating. I didn't have a choice because I didn't want to go to maximum security because it's very similar to solitary confinement conditions, in max. And, in my paperwork, actually, I did an ATIP (Access to Information and Privacy) request, and I took a lot of my paperwork with me when I left the institution, because I knew I was going to be using my lived experience as my thesis research for my PhD later on. So, in my paperwork, from when I was in solitary confinement, the institution says that I was there, in segregation, voluntarily, and that's why I was there so long, because they kept me way past the time that they were allowed to. But, that was a lie. I obviously didn't want to be there. My only other option was to just go to maximum security. It was frustrating. At the time, I was just kind of, focused on survival and like maintaining my mental health. So, I made myself like a bit of a routine every day, and just tried to do some exercising, and, it's difficult to be stuck in such a small space for so long and keep your sanity, and certainly once I got out of segregation, it was very strange. Just going back in to the prison, I felt anxious, like I experienced anxiety after my time in segregation. As I said, I had been in prison for about two and a half years at that point, and that one month in solitary was the most difficult part of my sentence. At that time, I would have rather done a whole another year in prison than spend another month in solitary. So, after that fact, I experienced anxiety that's ongoing to this day.

Maria Rio  24:13

The case of Adam Capay really highlighted the conditions people in solitary endure. When Adam was 26, he was incarcerated and subsequently spent 1,647 days in solitary while held for murder at a Thunder Bay prison. His case drew attention in 2016 when the Chief of the Ontario Human Rights Commission talked about what she saw when entering the jail. According to news reports, Adam’s conditions were so objectionable and intolerable that the judge stayed the murder trial in 2019 and Adam was released. Noa, are Ashley’s or Adam’s stories regarding prolonged solitary confinement isolated incidents? Or, are there other people spending incredibly long periods of time in solitary confinement? 

Noa Mendelsohn Aviv  24:55

Yeah, unfortunately, these were not isolated incidents at all. There were many people who spent prolonged periods in solitary. So much so, that there have been class actions that were filed since, regarding both people who had mental illness or mental health issues, who were placed and held in solitary, as well as people who are held in prolonged solitary. So, no, it was a norm. It was a, it was, it was administrative, it was called administrative segregation because it was the way in which prisons handled situations that they considered difficult. The grounds for placing someone in solitary in administrative segregation under the federal law said that somebody could be placed there if they were a danger to others, or if they were in danger, or if they might interfere with an investigation. But there were few restrictions placed around that at the time, and many people, like Ashley Smith, were people who have mental health issues that hadn't been addressed, and who were simply left to languish in these horrendous conditions.

Maria Rio  26:05

We know solitary causes mental harm to individuals. How common was it in your experience for mental health services to be offered to those in prison in order to combat the harmful psychological effects that may occur during segregation, or in a regular cell? It’s not that easy to

Rachael Fayter  26:20

It’s not that easy to access mental health supports or a CSC psychologist in prison, unless you have a severe diagnosed mental illness such as schizophrenia, bipolar, sometimes borderline personality disorder. Even when you do have access to a psychologist, or CSC mental health services, it's not like in the community where there's confidentiality, where you can go to your therapist and be completely open and honest and trust that nobody else outside of that room will hear what you're going to talk about or read your files, unless you're a danger to yourself or someone else or a child. In the prison context, every single thing you say is kept in a record where every staff in the institution has access to it. So, the guards, your primary worker, which is a guard that's responsible for your paperwork, your parole officer in the prison – they can all read these files. So, prisoners don't feel safe talking to psychologists and being honest with them. There was an experience when I was at GVI, where there was a woman with serious mental health issues, she was living in my living unit, and at one point, she was feeling like she couldn't keep herself safe, she wanted to hurt herself, she was threatening to kill herself. We decided, the 10 women that were in that unit, to watch her and kind of like have a buddy system, make sure someone was always with her at all times for about at least 48 hours, until those feelings were going away for her, because she didn't want to go talk to the psychologist, and we agreed that if she did, she would be sent to segregation, and she would be strapped down to that table. If you're feeling suicidal, that treatment is going to make you feel much worse. Instead of reaching out to the professional mental health services that are available, prisoners often help each other and reach out to each other to keep each other safe because the system is not able to do that for us.

Maria Rio  28:54

While women are likely to face segregation at a rate comparable to men, you believe that there are more harm by its use than men. Why do you think that is?

Rachael Fayter  29:04

Women in prison typically have much higher rates of mental health issues, and more severe histories of trauma. Upwards of 75% of federally sentenced women have experienced abuse and assault in their life, and two thirds to three quarters of women in prison have mental health issues. Women are more likely to harm themselves than to harm someone else, and then they're placed in isolating conditions – no human contact and no opportunity for fresh air or to even keep their mind occupied. It's going to be very difficult. Part of my PhD research is looking at the strengths, and talents, and assets, and resiliency of criminalized women. But, there are so many women that have not had opportunities for education, even high school education, or our single young mothers, who might not have histories of employment. There are some women that are in prison that aren't able to read. So, if you're stuck in a cell and you can't even read a book, or you are having hallucinations, or just feeling so much anxiety, that you're having a panic attack, and you don't feel like you can keep yourself safe. I think all of these factors play a role in how women experience more harm by the use of solitary confinement than men do.

Maria Rio  31:09

Why do you think a practice that so many view as torture would be voluntarily requested by an incarcerated person?

Noa Mendelsohn Aviv  31:15

The prisons are problematic in so many ways. We have over-incarceration in Canada. We have a gross disproportionate incarceration of indigenous people, and in particular, indigenous women. And we have prisons that are not places for rehabilitation. We have places that are dangerous. And, so, there are people who, for lack of any other kind of alternative, see themselves in danger in the general population, and have said, “Well, if the only alternative is solitary, I'll take solitary.” Whether or not a person who makes that request understands just how dangerous solitary is to their mental health, that I couldn't tell you. But that's why people have asked for it. Certainly, the Canadian Civil Liberties Association says there has to be an option that does not involve putting somebody's mental health at risk – that doesn't involve warehousing somebody in awful, awful conditions.

Maria Rio  32:12

In 2019, Bill C83, an act to amend the Corrections and Conditional Release Act became law. At face value, the objective of this bill is to strengthen and improve federal correctional facilities, and seemed to create positive reform. What concerns the CCLA have about Bill C83?

Noa Mendelsohn Aviv  32:32

Bill C83 is interesting because it is the second bill that the federal government introduced after CCLA filed its challenge. The first one really made no changes have any significance. The second one was Bill C83, and when the government introduced it, during our appeal, they announced that they were ending the use of administrative segregation. But you didn't have to look very hard to see that what they had essentially planned was to remove the label “administrative segregation” and replace it with the label “structured intervention unit.” And it wasn't at all clear that the legislation was going to require the serious kinds of reforms that were needed within the prison system. So, Bill C83, did call for allowing people in solitary in these in these structured intervention units, to have four hours a day outside of their cell, to have two hours a day of meaningful human contact. Those two hours and four hours are the same, so it could be two hours of meaningful human contact outside of your cell. But there were exceptions, and there was a lack of accountability, and there was no accounting for people with mental illness, except for that a mental health professional should come in and assess people who were in the structured intervention units, and they could then make a recommendation to the institution head, and the institution head didn't actually have to listen to the mental health professional. The other very serious concern we have with Bill C83 was that it seemed to completely ignore what had been decided at the Ontario Superior Court, in response to CCLA’s challenge. The Ontario Superior Court had said that administrative segregation under the federal legislation was unconstitutional, because there was no independent review of the decision to place somebody in solitary. And although the Superior Court had said that made it unconstitutional, when the government turned around to say, “Okay, so we'll change things, we'll fix things, we'll create a new law,” their new law did not account for or create independent external decision making. So perhaps on the government's version, that's because they were saying they no longer had segregation, so they didn't have to follow any of the earlier decisions, but it was clear to us that under this legislation, people could remain in solitary.

Michael Bryant  34:48

My name is Michael Bryant, I'm the Executive Director of the Canadian Civil Liberties Association. We've done our, our advocating, and we're now in the courts. We're here to expose the truth and the truth is that the Government of Canada is fighting in the courts for the right to put mentally ill, and indigenous people in a torture box. The punishment within the punishment of a penitentiary, or provincial correctional sentence, is one of the very rare instances where an individual's liberty gets taken away, without any hearing, without any real due process. And it's been that way in Canada for most of our history.

Noa Mendelsohn Aviv  35:36

And of course, the other thing that concerned us was that C83 not only didn't bring in independent external decision making, it didn't prohibit long term solitary, it didn't prohibit solitary for people with mental illness, or for young people, or for people who thought that prisons were dangerous, and were asking to be secluded, because it was the only option for protection that they saw in the prison environment. But I should, I should note that because of the submissions that CCLA and other organizations made, reminding them of their duties to obey what the court said, they did make one amendment to – they made several amendments – but they made one big amendment to C83 and did create some form of independent decision making process.

Maria Rio  36:24

What are some of the arguments that you've heard that support solitary confinement? And why do you still believe that prolonged solitary should be banned in Canada?

Noa Mendelsohn Aviv  36:32

Prison officials will tell you that it's hard to manage certain prisoners, that they can't manage without these kinds of practices like solitary, but they used to say the same thing about whipping, and when they wanted to get rid of whipping, they brought in solitary confinement because they believed that it was going to be a more humane, therapeutic way for a person to sit, and do penance, and have time on their own. And very shortly afterwards, they discovered that that was not, in fact the case. and that it was very harmful to people to be kept without meaningful human contact. I should note as well, that it's not just the Canadian Civil Liberties Association, and indeed, the courts that say that prolonged solitary should be banned. It's also the international rules around the treatment of prisoners known as the Mandela Rules under international law, which prohibit prolonged solitary confinement, prohibit indefinite solitary, and indeed prohibit the solitary confinement of people with mental illness.

Maria Rio  37:29

Many people hold the belief that prison is supposed to be unpleasant and punitive, and those complaining about prison conditions can simply avoid them by not breaking the law. How would you respond to this argument?

Rachael Fayter  37:41

Revenge and punishment are kind of natural human reactions for anybody who has experienced harm from someone else, and there's a common assumption that anyone who is in prison deserves to be there. The reality of it is that there are many people that are in prison on remand, so that pre-trial custody where they haven't actually been convicted or sentenced, they're not guilty of a crime yet. Many people have to make a plea bargain, which is what I did just to escape a harsher sentence. So, the system can put pressure on us. For example, they were threatening me with 10 to 12 years if I were to lose at trial, and then I made a plea bargain for five years, because I was scared to have a longer time, and I was also in the provincial system, which is basically torturous and dehumanizing. If we look at the demographics of the prisoner population, on any given day, we can see how inclusive a society we live in, and how our country perceives the most marginalized people. We see many people who have experienced homelessness, and poverty, and mental illness, and addiction. Many women have experienced childhood physical and sexual abuse, or abuse and assault as an adult. No access to education, employment. I think many people that end up in prison, even if they are guilty of breaking a law, often it's out of survival – to feed their family or feed an addiction, or be able to escape their abuser. Many women that are in prison for violent offenses are there for self-defense – defending themselves against their abusers. In terms of this question, it's important to recognize that laws are socially constructed, and they shift over time, so laws can change. We saw for about a decade when the Harper Conservative government was in power and the omnibus crime bill, weed was highly criminalized, and people were getting federal prison sentence for possession of marijuana. Now it's legal. So, our laws kind of shift and change. It is – I was talking about how the most marginalized people end up in jail and prisons, people that do not have wealth and resources, whereas the most powerful and powerful members of our society: people that are, say, corporate CEOs, or they work on Wall Street or something, these, these individuals end up getting away with lots of crimes, and I would argue that corporate crime causes a lot more harm to people and the planet, much more than any individual lawbreaker could ever do.

Maria Rio  41:10

Do you think the use of solitary has any place in the system that attempts to rehabilitate those that we incarcerate?

Rachael Fayter  41:16

I don't think that there should be any segregation. As I was saying, in women's prisons, I can speak to that confidently. I think, perhaps, in men's prisons, or even in certain circumstances for women as well, where prisoners have to be separated from one another. But they don't need to be kept in these horrible dungeon-like conditions. It doesn't do anything to help anybody. The prisoner is certainly much worse off, and then when they're released into the general population of the prison or into the community, it's going to be that much more difficult for them to be a part of that community. Some, some prisoners, I mean, I spent 32 days, but there's people that have spent months and years in segregation, and after one month, with the anxiety that I felt and how weird it was relating to people, I can't even imagine how difficult it would be after spending months or years like that. It would be so difficult to have any kind of normal, healthy relationship with anybody or to trust anybody. Definitely, I think segregation causes lots of harm, doesn't do really any good, and it doesn't do anything to help keep prisoners or the prison or the wider community safe.

Maria Rio  42:54

At face value, someone might look at your story as an inmate who was able to turn their life around through education, having a master's degree and soon a PhD, and reach the conclusion that our system is actually rehabilitative. Would you agree with this assessment? Or do you believe that your success was in spite of the system you were working with?

Rachael Fayter  43:12

It was definitely in spite of the system, because although there were a few individual people that worked for CSC that were decent people that did care about federally-sentenced women's well-being, for the most part, the system just continually oppressed me, took things away. As I said, I had to drop out of my PhD program, I was stuck on house arrest, and then I'm in prison. And I have a record, which then makes it hard to get a job later on. Anything positive that I had in the prison experience was from friends that I made in there, supports from family and friends in the community, and also programs that were external to CSC. So, the required CSC programs didn't really do much for me, it was just a hoop I had to jump through. But, there was a music program that was wonderful, there was the Walls to Bridges education program that was wonderful, and different groups, such as community justice initiatives in Kitchener that come into the prison. Our system definitely is not rehabilitative. It's completely punitive, and they did not do, really, much of anything to help me, and instead, they just tried to kind of hinder my success.

Maria Rio  44:44

In 2020. An independent review board tasked with examining the state of segregation in Ontario found that the harms of segregation take hold within mere hours of exposure, including worsening of mental illness, suicidal ideation and negativite physical effects. Part of your work focuses on the effects of solitary and tries to find alternatives in holistic mental health and wellness rehabilitation. Please speak to these alternatives, their goals and what exactly they entail.

Rachael Fayter  45:13

I believe in preventing mental health issues, or worsening of mental health issues, preventing people going to prison, worse social outcomes, those kinds of things, and also what I call holistic mental health, which doesn't just look at how we're feeling like mentally or emotionally, but also looks at our physical health and our spiritual health, and also our social health – connecting with people through relationships. The way that prisoners are treated, and the use of solitary confinement goes against everything that CSC claims to be doing in terms of offering women respect, dignity, support, those kinds of things. I don't know if those things can even be offered in a prison context, because it's so punitive and isolating and lacks so much transparency. No matter what policy is, or laws are put in place, there's so much going on behind the walls that people don't know about, or even when it comes to the public attention, or even if it goes to a tribunal or the Canadian Human Rights Commission, CSC is very resistant to change. We need less prescriptions, less medicating of prisoners, opportunities for education, and work, and community engagement, volunteering, going to different programs, instead of taking all those away from us, and using that as a punishment and threatening us that these are privileges. They should be rights for everyone, and having those types of rights will only help individuals and help the community because, in Canada, every prisoner or almost every prisoner, even people with a life sentence, are eventually released. So, how is it a good thing for public safety if people are treated like animals and tortured in inhumane prison conditions for years and then just thrown into the community without any support? We need to facilitate prisoner supports, and I think prisoners, former prisoners, like myself, or like others with a record, can play a huge role in that.

Maria Rio  47:51

From the outside Canada's criminal justice system emphasizes rehabilitation and reintegration. Unfortunately, cases like Ashley's and Rachel's tell us that our system is heavily punitive. As of April 2020, the federal government finally stopped fighting CCLA in the courts and has withdrawn its appeal to the Supreme Court of Canada against an Ontario decision prohibiting prolonged solitary confinement. This is just one aspect of prison reform that must be tackled in order to treat people justly, and humanely. 

A big thank you to the team of amazing volunteers who put this episode together. We could not have done this without you. 

Before we close a note of acknowledgement: We wish to acknowledge land on which CCLA operates. Toronto and CCLA are in the Dish with One Spoon territory. The land I'm recording on today is the traditional territory of many nations, including the Mississaugas of the Credit, the Anishinabek, the Chippewa, the Haudenosaunee, and the Wendat peoples. And it's also home to many diverse First Nations, Inuit and Métis peoples. We’re grateful to have the opportunity to work on this land. 

If you enjoyed today's podcast, please subscribe to justice vs wherever you get your podcasts and a review on Apple Podcasts. Thank you so much for joining us today. We hope you join us next time as we continue to learn, advocate and educate on Canada's most crucial human rights issues. Until next time!