Government of Ontario
Ministry of the
Solicitor General

Final Report of the Independent Reviewer

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 25, 2020

Justice David P. Cole, Independent Reviewer

Table of contents

Background to this report
Basic facts and figures about Ontario corrections
Report on ministry compliance with Jahn deliverables​
Independent Expert’s report - Summary of findings on the Jahn Consent Order
Ministry responses to Independent Reviewer's Interim Report
Reforms to disciplinary processes​
Issues carried over from Interim Report
Correctional transition teams
List of recommendations by both Independent Expert and Independent Reviewer
Endnotes

Background to this report

“I’ve worked in hospital emergency departments. I’ve worked in mental hospitals. But this correctional population contains the most multi-problem people I’ve ever seen in my entire nursing career.”
- Senior mental health nurse

By Order in Council O.C. 371/2018 I am appointed by Cabinet to provide “independent progress reports with respect to compliance with the 2013 Jahn settlement of the terms of the order entered as a consent order with the Human Rights Tribunal of Ontario dated January 16, 2018”. Each of these terms requires some further explanation.

Ms. Christina Jahn was incarcerated at the Ottawa Carleton Detention Centre (OCDC), an adult correctional facility operated by what was then called[1] the Ontario Ministry of Community Safety and Correctional Services (MCSCS), on two separate occasions:

  1. May 25-August 15, 2011. She was initially remanded into custody on charges of assault, obstruct police, assault with a weapon, causing a disturbance and mischief. After some time spent on custodial remand[2], she entered pleas of guilty to charges of assault, obstruct police, causing a disturbance and mischief, whereupon she was sentenced to a total of 100 days in custody.
  2. October 3, 2011-February 5, 2012. She was initially remanded into custody on charges of theft under $5,000, assault peace officer and utter threat of death or serious bodily harm. After some time spent on custodial remand, she entered pleas of guilty to charges of theft under $5,000 and assault peace officer, whereupon she was sentenced to a total of 167 days in custody.[3]

Ms. Jahn alleged in a complaint to the Human Rights Tribunal of Ontario (HRTO) that she “was immediately placed in segregation and remained there for the duration of both incarcerations, spending 210 days in total isolation…in a 10 by 12-foot cell, with blocked out windows”. Though the MCSCS disputed Ms. Jahn’s assertions as to why she was placed in segregation, the ministry conceded that she “spent some time in segregation during these two periods of incarceration”.[4]

After a period of negotiation between Ms. Jahn’s counsel, MCSCS and the Ontario Human Rights Commission (OHRC)[5], on September 24, 2013 Minutes of Settlement were entered into by the parties.[6] Schedule “A” of those Minutes of Settlement, entitled “Public Interest Remedies” (PIR), required the ministry to take steps to address:

  • PIR#1 required that the ministry complete a report on how best to serve female inmates with major mental illness – this report was to include various options for female inmates with major mental illness, including the viability of building a secure treatment facility for women; special attention would be paid to the development of a variety of mental health assessment, placement and housing components
  • development of mental health screening tools and follow up assessment by a physician (if necessary)
  • improvements in access to mental health services for incarcerated inmates
  • reforms to policies and practices regarding the placement and management of inmates in “administrative” and “disciplinary” segregation
  • development of “treatment plans” and “individualized mental health services” for inmates “with mental health issues” placed in either form of segregation, as well as the participation of physicians/psychiatrists as part of “5-day segregation reviews”
  • improved mental health training for ministry front line staff and managers
  • revisions to its Inmate Handbook “to reflect the rights and responsibilities of inmates”
  • statistical reports to be provided to the OHRC “concerning the number of female inmates at the Ottawa Carleton Detention Centre placed in segregation…” annually for a period of three years

Given the size of the ministry and the need for substantial revisions to its policies and procedures, various time frames by which the ministry was expected to comply with each of these “Public Interest Remedies” were agreed to by the parties.

In April 2017 the Ombudsman of Ontario released a Report on segregation in Ontario corrections which was critical of MCSCS’ implementation of its obligations under the Jahn Settlement. [7] This was followed up a few weeks later by an Interim Report on segregation issued by Ontario’s Independent Advisor on Corrections Reform, which came to the same conclusions.[8] MCSCS immediately indicated (publicly) that it accepted the Independent Advisor’s findings.

After some negotiation back and forth with the ministry about its responses to these two reports, in September 2017 the OHRC initiated another Contravention Application with the HRTO, alleging inter alia that:

“Four years ago, the Government of Ontario made a legally binding commitment to a vulnerable group of people – prisoners with mental health disabilities. Ontario explicitly recognized that segregation was harmful for this group and agreed, as part of a binding settlement agreement, to prohibit segregation for individuals with mental illness unless it would cause undue hardship. Four years later, two independent reviews have revealed that Ontario has not lived up to that commitment.”

MCSCS responded by claiming that it had in fact “substantially complied” with the “Jahn Public Interest Remedies” and that these are “complex issues that are not amenable to a quick resolution”.

Following more negotiations a further settlement was reached in January 2018.[9] Addressing the complexities referred to by the ministry, the parties agreed that:

“Ontario is engaging in a multi-year process to implement new overarching principles relating to living conditions in correctional institutions which will include creating alternative placements, supporting infrastructure, new staff and staff training.”[10]

Against this backdrop the ministry agreed to “comply operationally with the 2013 Jahn v. MCSCS settlement Public Interest Remedies (PIRs) #2, #4, #5, #6, and #7” as well as to conduct a much broader system-wide comprehensive review of policies and their implementation.

The first element of this new settlement relevant to this background description was the creation of the position of an Independent Expert on human rights and corrections “to assist in implementing the terms of this consent order”.[11] Professor (Prof.) Kelly Hannah-Moffat “was mutually agreed upon by the minister and the OHRC[12] to act as the Independent Expert. Her duties can be broadly described as providing advice to government on its plans to track “persons in custody”[13] placed in restrictive confinement and segregation; she is further directed to share her advice and evaluation(s) of the ministry’s plans with me for consideration in my Final Report.[14]

The second aspect of this new settlement was that MCSCS was required to “establish internal compliance mechanisms to monitor the implementation of and ongoing compliance with the terms of the Jahn consent order and the terms of [the January 2018] consent order”.[15] Against this backdrop I am appointed as Independent Reviewer with an overall mandate “to report on compliance with the 2013 Jahn settlement agreement and the terms of this order as soon as reasonably possible”.[16] According to the timeframes specified in the settlement, I was to produce an interim “progress report setting out the progress Ontario has made with respect to the commitments in this consent order which are to be completed prior to the date of the progress report”.[17] I was then required (by September 30, 2019) to issue a final report containing my opinion regarding:

  • the Jahn settlement remedies and terms of [the January 2018] consent order that have been complied with
  • the Jahn settlement remedies and terms of [the January 2018] consent order that remain outstanding
  • any non-compliance with the Jahn settlement remedies and terms of [the January 2018] consent order, and if so, recommended steps with associated timelines for promoting compliance
  • the effectiveness of the accountability and oversight mechanisms put in place by Ontario, including the mechanisms for assessing undue hardship before placing individuals with mental health disabilities (including those at risk of suicide or self-harm) in segregation
  • whether further changes are necessary to address the use of segregation for individuals with mental health disabilities (including those at risk of suicide or self-harm), and whether the ongoing use of segregation for this population is still necessary
  • whether any changes are necessary to address the use of alternative housing or restrictive confinement for individuals with mental health disabilities (including those at risk of suicide or self-harm)
  • measurable changes to the treatment and experiences of individuals with mental health disabilities (including those at risk of suicide or self-harm) supported by human rights-based data and statistics[18]

The Consent Order specifies that “[t]he content of the final report is not limited to the above, and additional content can be included based on the discretion of the Independent Reviewer”[19].

The original date scheduled in the consent order for production of this progress report was “in the Fall of 2018”. Because of considerable hurdles encountered at various stages of this project, principally stemming from (1) delays in the appointment of the Independent Expert (2) delays in the production of data sets which could be properly analyzed by Prof. Hannah-Moffat and her team (discussed at length in section 4 of this Report) (3) MCSCS policy changes that continue to the present, the date for production of this Report was delayed until February 28, 2019 on the consent of both MCSCS and the OHRC

The “knock on” effect of these delays has unfortunately resulted in neither the Independent Expert nor myself being able to complete our investigations and analysis by September 30, 2019. Our respective Reports were delivered to the ministry on January 31, 2020, with public release currently scheduled to occur in the Spring of 2020, once stakeholder consultations, translation and formatting of the content to enable posting on the ministry’s website have been completed.

For purposes of completeness I need to add that my Interim Report, which contained an Executive Summary of the Independent Expert’s interim findings and recommendations, was delivered to the ministry on February 28, 2019. As it was entitled to do, the ministry elected not to publicly release my Interim Report. At some later point the OHRC decided to post the Interim Report on its website. Whenever substantive references to my Interim Report are made in this Final Report, a hyperlink is provided that will take the interested reader to the OHRC website.


The contents of this Report are as follows:

  • Section 2 contains data on Basic Facts and Figures about Ontario Corrections, including recent data on the numbers of persons in provincial custody (both remand and sentenced) detained in conditions that constitute segregation.
  • Section 3 contains my evaluation – as advised by the Independent Expert – of the ministry’s current compliance with the various “Jahn” settlements. It also contains commentary and recommendations by both the Independent Expert and myself about what we jointly consider to be important aspects of the ministry’s ongoing efforts at future compliance with the “Jahn” settlements.
  • At my request, Section 4 contains the Independent Expert’s detailed assessment of the ministry’s efforts and progress pertaining to segregation and restrictive confinement tracking, data releases and meaningfulness of their analyses, alternatives to segregation, management or treatment of those who are marginalized due to their mental health concerns and/or sex/gender. It also includes Prof. Hannah-Moffat’s comments and recommendations relating to non-compliance with other “Jahn” settlement remedies and terms of the Consent Order.
  • Section 5 evaluates and makes recommendations regarding the responses of both the Ministry of the Solicitor General and the Ministry of the Attorney General to my February 2019 Interim Report.
  • Section 6 proposes a series of procedural reforms to the processes by which persons in custody considered to be mentally ill can be placed (and maintained) in conditions that constitute segregation.
  • Section 7 describes a series of issues that were necessarily carried over from my February 2019 Interim Report.
  • Section 8 describes and recommends the adoption of a new program currently being piloted in Alberta provincial corrections which aims to increase the speed and number of bail releases of mentally ill (and severely addicted) accused persons, with particular attention to issues of stable housing.
  • Section 9 contains a list of all recommendations made by the Independent Expert and myself.

Basic facts and figures about Ontario Corrections[20]

Table 1: Adult Institutions: 2018/19 - Average counts / days stay[21]
All institutions Average daily count Days stay
Males Females Total Males Females Total
Capacity/days x capacity 8,002 681 8,683 2,903,124 247,249 3,150,373
Remand 4,857 422 5,279 1,772,860 153,882 1,926,742
Provincial sentence 1,612 146 1,758 588,384 53,379 641,763
Intermittent sentence* 352 16 368 55,243 2,501 57,744
Federal sentence 125 8 133 45,665 2,838 48,503
Immigration 91 4 95 33,119 1,526 34,645
Other 21 1 22 7,806 236 8,042
Institutional total 6,858 587 7,445 2,503,077 214,362 2,717,439
* Intermittent sentence average count is the average weekend count, based on 157 "weekend" days rather than 365 days.

Table 2: Adult community caseload: 2018/19 - average month-end balance by supervision status
Supervision status Total province
Male Female Total
Probation 31,766 6,465 38,231
Conditional sentence 1,619 425 2,044
Parole 362 37 399
Total community caseload 33,747 6,927 40,674
Totals may differ from the sum of the components due to rounding.

From these two tables it may be seen that approximately 7,445 persons over whom the provincial ministry has jurisdiction were incarcerated in a provincial adult institution on an average day in fiscal 2018/19. This amounts to about 15.5% of all persons being supervised by the ministry.


Table 3: Admissions to adult institutions: 2018/19[22] - Adults
Location - all admissions Total admissions Sentenced admissions1 Remand admissions
Males Females Total Males Females Total Males Females Total
Algoma Treatment and Remand Centre 554 139 693 270 47 317 472 119 591
Brockville Jail 617 0 617 254 0 254 487 0 487
Central East Correctional Centre 3,990 577 4,567 1,787 177 1,964 3,091 510 3,601
Central North Correctional Centre 1,999 313 2,312 1,037 115 1,152 1,507 267 1,774
Elgin-Middlesex Detention Centre 2,369 426 2,795 934 108 1,042 2,069 397 2,466
Fort Frances Jail 153 61 214 28 4 32 144 58 202
Hamilton-Wentworth Detention Centre 2,675 702 3,377 1,292 158 1,450 2,339 637 2,976
Kenora Jail 1,301 334 1,635 318 76 394 1,295 329 1,624
Maplehurst Correctional Complex 6,824 6 6,830 2,502 4 2,506 5,081 5 5,086
Monteith Correctional Complex 585 115 700 287 42 329 504 111 615
Niagara Detention Centre 1,829 1 1,830 548 0 548 1,616 1 1,617
North Bay Jail 530 101 631 233 35 268 431 90 521
Ottawa-Carleton Detention Centre 3,376 599 3,975 1,587 229 1,816 2,470 512 2,982
Quinte Detention Centre 1,710 381 2,091 845 141 986 1,393 322 1,715
Sarnia Jail 525 114 639 179 21 200 477 102 579
South West Detention Centre 2,067 329 2,396 1,006 125 1,131 1,851 312 2,163
Stratford Jail 206 0 206 140 0 140 141 0 141
Sudbury Jail 783 99 882 351 27 378 570 84 654
Thunder Bay Correctional Centre 1 300 301 6 90 96 3 276 279
Thunder Bay Jail 1,269 0 1,269 376 0 376 1,162 0 1,162
Toronto East Detention Centre 2,133 0 2,133 757 0 757 1,731 0 1,731
Toronto South Detention Centre 8,159 17 8,176 2,244 4 2,248 7,112 10 7,122
Vanier Centre for Women - Milton 3 2,670 2,673 2 615 617 3 2,363 2,366
Total 43,658 7,284 50,942 16,983 2,018 19,001 35,949 6,505 42,454
1. Sentenced admissions are actually sentences to incarceration imposed during the year. The offender may have been in custody on remand at the time of sentencing, so it is not a physical admission. Because there is overlap between remand admissions and sentences imposed (sentenced admissions), they total more than the total institutional admissions. Sentenced admissions also include federally sentenced offenders.
* Note: where female admission exists in an all male institution, it is the result of a transgender alert.

Table 4: Adult institutions: 2018/19 - time served: remands ending in 2018/19
Length category Males Females Total % of Total
1 to 3 days 7,786 1,766 9,552 22.9
4 to 7 days 6,316 1,343 7,659 18.4
8 to 14 days 4,514 1,009 5,523 13.3
15 to 21 days 2,756 561 3,317 8.0
22 to 31 days 2,633 481 3,114 7.5
>1 to 3 months 6,770 889 7,659 18.4
>3 to 6 months 2,680 225 2,905 7.0
>6 to 12 months 1,202 71 1,273 3.1
>1 year 612 26 638 1.5
Total 35,269 6,371 41,640 100.0
Average length of remand[23] 46.0 24.0 42.7
Median length of remand[24] 13.0 8.0 12.0
Remands ending does not necessarily indicate a release from custody.

Table 5: Adult institutions: 2018/19 - time served: provincial sentences ending in 2018/19
Length category Males Females Total % of Total
1 to 7 days 3,080 510 3,590 25.6
8 to 14 days 1,531 255 1,786 12.7
15 to 29 days 2,005 311 2,316 16.5
1 month 302 39 341 2.4
>1 to <3 months 2,876 329 3,205 22.8
3 months 69 5 74 0.5
>3 to <6 months 1,334 132 1,466 10.5
6 months 89 12 101 0.7
>6 to <12 months 790 44 834 5.9
12 months 28 0 28 0.2
>12 to <18 months 280 6 286 2.0
18 months 0 0 0 0.0
>18 to <24 months 0 0 0 0.0
>2 years 0 0 0 0.0
Total 12,384 1,643 14,027 100
Average provincial sentence 61.3 37.5 58.5
Median provincial sentence 25.0 18.0 23.0
From this table it may be seen that over 91% of sentenced prisoners served less than six months on a provincial sentence, and 57.3% served sentences of less than one month in 2018/19.

Table 6: Institutional average counts: 1985/86 – 2018/19

Tables 4-6 reflect the changing nature of Ontario’s adult custodial population over time. Though the figure varies slightly over the last few years (and can even vary from month to month[25]), the remand population consistently amounts to about 65-70% of admissions, while the sentenced population amounts to about 30-35%. A 2017 study conducted for the Ministry of the Attorney General analyzes lengths of time spent in remand.[26] On January 24, 2019 Juristat released its annual national review of adult criminal court processing statistics; it pointed out that in fiscal 2016/2017 there was “a slight increase” in the “median charge processing time” from 108-120 days.[27] Obviously, this has an impact on the lengths of time some persons spend in remand custody.


Table 7: Daily segregation and custodial counts in Ontario correctional facilities, yearly average 2008/09 – 2019/20 YTD[28]
Average daily population counts, Ontario correctional facilities
Year Total custodial population Segregated population Percentage of custodial population in segregation
2008-09 8,851 453 5%
2009-10 8,755 441 5%
2010-11 8,723 466 5%
2011-12 8,802 478 5%
2012-13 8,806 470 5%
2013-14 8,262 472 6%
2014-15 7,785 499 6%
2015-16 7,952 538 7%
2016-17 7,673 577 8%
2017-18 7,474 628 8%
2018-19 7,445 678 9%
2019-20 YTD 8,161 603 7%
* Due to rounding, totals of male and female from the tables below may not add to the totals in the above table.
** Although the average count in 2018/19 appears similar to the average count in 2017/18, the increase in the adult population began in 2018/19 rising 10.8% between April 2018 (7,171) and March 2019 (7,943) and this trend continues into the current fiscal year.
Source: Ministry of the Solicitor General

Table 8: Yearly averages of daily male custodial and segregation population counts in Ontario correctional facilities, 2008/2009 – 2019/20 YTD
Average daily population counts, Ontario correctional facilities
Year Total male custodial population Male segregated population Percent of men in custody in segregation
2008-09 8,235 430 5%
2009-10 8,160 418 5%
2010-11 8,137 441 5%
2011-12 8,182 448 5%
2012-13 8,161 441 5%
2013-14 7,634 444 6%
2014-15 7,204 469 7%
2015-16 7,320 503 7%
2016-17 7,080 543 8%
2017-18 6,904 579 8%
2018-19 6,858 622 9%
2019-20 YTD 7,462 559 7%
2019/20 YTD includes from April 1 to October 31, 2019

Table 9: Yearly averages of daily female custodial and segregation population counts in Ontario correctional facilities, 2008/2009 – 2019/20 YTD
Average daily population counts, Ontario correctional facilities
Year Total female custodial population Female segregated population Percent of women in custody in segregation
2008-09 615 22 4%
2009-10 595 24 4%
2010-11 586 25 4%
2011-12 620 30 5%
2012-13 645 28 4%
2013-14 629 28 4%
2014-15 581 30 5%
2015-16 632 35 6%
2016-17 593 34 6%
2017-18 570 50 9%
2018-19 587 56 10%
2019-20 YTD 699 44 6%
2019/20 YTD includes from April 1 to October 31, 2019
Source: Ministry of the Solicitor General

Figure 1 - Yearly averages of daily counts of adults in custody and segregation in Ontario correctional institutions, 2008/09-2019/20 YTD[29]


2019/20 YTD includes from April 1 to October 31, 2019


Figure 2 - Percentage of Ontario’s male, female and total custodial populations in segregation, 2008/9-2019/20 YTD. Calculations based on yearly averages of daily counts of adults in custody and segregation.


2019/20 YTD includes from April 1 to October 31, 2019


By way of comparison, figures recently provided by British Columbia provincial corrections indicate that “for fiscal year 2017/18, the average daily count of individuals housed in a segregation unit was 125, which represents approximately 4.8% of the total inmate population”.[30] This discrepancy will obviously need to be studied further by the Ontario ministry to ascertain if the criteria used by the two provinces to place and maintain persons in segregation are different and, if so, why.

Figure 3 - Admissions to segregation in Ontario correctional facilities in 2018/19, broken down by reason for admission to segregation. “Multiple reasons provided” refers to inmates who were admitted and/or continuously held in segregation for multiple reasons.

Figure 4 - Legal status of individuals in segregation in October 2019. (The category “Other” includes immigration holds, extradition holds, federal sentences, national parole violations, remand & immigration holds, and remand and national parole violations).

Table 10: Percentage of custodial population in segregation by individual institution, fiscal year 2017-18 and 2018-19
Region Institution 2017-18 2018-19
Central region Maplehurst Correctional Complex 9% 12%
Ontario Correctional Institute 1% 0%
Toronto East Detention Centre 12% 13%
Toronto Intermittent Centre 5% 10%
Toronto South Detention Centre 4% 5%
Vanier Centre for Women 12% 18%
Eastern region Brockville Jail 9% 15%
Central East Correctional Centre 11% 12%
Ottawa-Carleton Detention Centre 14% 15%
Quinte Detention Centre 11% 19%
St. Lawrence Valley Centre 1% 2%
Northern region Algoma Treatment & Remand Complex 9% 11%
Central North Correctional Centre 10% 14%
Fort Frances Jail 9% 11%
Kenora Jail 4% 4%
Monteith Correctional Complex 8% 8%
North Bay Jail 10% 12%
Sudbury Jail 13% 12%
Thunder Bay Correctional Centre 5% 2%
Thunder Bay Jail 2% 4%
Western region Brantford Jail 5%
Elgin-Middlesex Detention Centre 7% 9%
Elgin-Middlesex Detention Centre - Regional Intermittent Centre 3% 13%
Hamilton-Wentworth Detention Centre 5% 6%
Niagara Detention Centre 14% 17%
Sarnia Jail 13% 11%
South West Detention Centre 7% 10%
Stratford Jail 3% 4%
*Only fiscal year 2017 onward are presented here as by April 2017, segregation was being reported through the Offender Tracking Information System (OTIS) and Care in Placement Screen. This allowed segregation to be reported as a status and not only a place. Prior to this, segregation was reported through the manual midnight counts and was only based on unit.
Source: Ministry of the Solicitor General

Table 11: Ontario institutions, construction date* and current operational capacity
Institution Year constructed Age in 2019 Current operational capacity**
Brockville Jail 1842 177 48
Brantford Jail[31] 1850 169
Stratford Jail 1901 118 50
Fort Frances Jail 1908 111 22
Thunder Bay Jail 1928 91 142
Sudbury Jail 1928 91 163
Kenora Jail 1929 90 159
North Bay Jail 1929 90 100
Monteith Correctional Complex 1960 59 210
Sarnia Jail 1961 58 76
Thunder Bay Correctional Centre 1965 54 124
Quinte Detention Centre 1970 49 237
Ottawa-Carleton Detention Centre 1972 47 456
Ontario Correctional Institute 1973 46 186
Niagara Detention Centre 1973 46 228
Maplehurst Correctional Complex 1976 43 888
Toronto East Detention Centre 1977 42 368
Elgin-Middlesex Detention Centre 1977 42 426
Regional Intermittent Centre 2016 3 102
Hamilton-Wentworth Detention Centre 1978 41 524
Algoma Treatment and Remand Centre 1990 29 133
Central North Correctional Centre 2001 18 980
Vanier Centre for Women (Milton) 2001 18 312
Central East Correctional Centre 2001 18 864
St. Lawrence Valley Correctional & Treatment Centre 2003 16 100
Toronto Intermittent Centre 2011 8 250
Toronto South Detention Centre 2012 7 1,272
South West Detention Centre 2013 6 282
*Note that this table only reflects original construction dates, and does not capture major projects that were undertaken to retrofit or add capacity to an existing institution.
**Based on operating capacity on November 3, 2019.

Report on ministry compliance with Jahn deliverables

“Every 18 months or so, this ministry makes some big “splash” promising “reforms” to policies or practices. But once public attention has died down, budgetary constraints soon take over, so these promises never amount to anything. In reality, nothing ever changes in this ministry.” - GTA probation officer with 35 years experience

1. Formal report on ministry compliance with “Jahn” deliverables

Pursuant to the 2013 and 2018 Jahn settlements, MCSCS (since renamed Ministry of the Solicitor General) is responsible for implementing 31 time-specific deliverables. These focus on five key themes:

  • data collection[32]
  • redefining segregation[33]
  • segregation reporting and tracking[34]
  • enhanced mental health screening[35]
  • compliance and implementation[36]

At the time of my Interim Report (PDF, 2 mb) (February 2019), the ministry reported that 26 deliverables had been completed and reported to the Ontario Human Rights Commission, the Independent Expert and the Independent Reviewer. The remaining deliverables were due to be initially completed between April 19 and October 31, 2019[37]; some deliverables are to be monitored and completed on a continuing annual basis.

I am satisfied that Ontario has now met the deadlines to submit data for all 31 deliverables specified in the consent orders in a timely manner. I am also satisfied that the ministry is in the process of making substantial improvements in tracking segregation and restrictive confinement, as well as undertaking a variety of reforms to some of its policies and procedures. For these efforts, which have involved (and will no doubt continue to involve) significant commitments of institutional and corporate staff time and energy, as well as some considerable reorganization of ministry corporate structures, the ministry should be commended.

Having said this, I join with the Independent Expert when she concludes (in section 4 of this Report):

“…As of this date (January 31, 2020), it is my expert opinion that the ministry is not yet in full compliance with the requirements outlined in the Jahn settlement…. The ministry’s future plans for compliance with Jahn compliance are important and laudable, but do not replace the requirement for the schedule items to be implemented…in a timeframe that allows the Independent Reviewer and me to assess, which did not occur.”

In order to highlight what we jointly consider to be some of the most significant outstanding deficiencies, the following are outlined here:

Establishing a mental health screening tool: The Independent Expert’s Interim Executive Summary, which is included in her Final Report, recommended that the ministry undertake a culturally informed and gender-based evaluation of the tools being used in its institutions in order to meet the PIR#2 requirements. As of November 2019, the Independent Expert reminded the ministry that it needed to undertake such an evaluation in order to satisfy the PIR#2 requirements.

As of February 19, 2020, we have been made aware that the ministry has agreed to consider completing a study to determine whether the Brief Jail Mental Health Screening tool (BJMHS) is sufficiently gender-responsive and culturally informed to meet the needs of Ontario’s population. The ministry advises that it is still in the process of determining which of its many tools and forms may need to be assessed.[38] Thus, on the basis of what has been made available to us as of the date this Final Report is submitted, we are unable to conclude that the ministry has complied with this aspect of PIR#2.

Mental health reassessments: The Jahn settlement and Consent Order require that the ministry conduct mental health reassessments at least once every six months (PIR#2, A1, B11(d)).

Based on the materials and data from the compliance review, it appears that Ontario has yet to institute a consistent practice whereby individuals are reassessed at least once every six months. Thus, I join with the Independent Expert when she concludes that the ministry has not complied with this requirement.

Defining segregation:The various Jahn settlements and Consent Order terms (B1, B3) a) require the ministry to develop and apply a revised definition of segregation to all of the various settlement and Order terms, and b) to set out the revised definition in policy (B2).

Based on discrepancies between policy and practice (see especially the Independent Expert’s concerns regarding ‘segregation tracking’ and the ‘gray zone’ discussed in detail in section 4), Ontario has not yet produced clear and consistent policies, procedures, and working definitions of segregation, restrictive confinement, mental health, and associated alerts during the reporting period. Thus, the requirement that Ontario consistently apply the revised definition of segregation has not yet been achieved[39]; as such, I again join with the Independent Expert when she concludes the ministry is not yet in compliance with B1-B3.

Five-day segregation reviews: The various settlements and Orders require that the ministry review the circumstances of individuals with mental health disabilities in segregation at least once every five days, and that these reviews document that all alternatives have been considered to the point of undue hardship, including whether a Treatment Plan is in place (PIR#6, A1).

The Independent Expert notes numerous issues with these reviews. In her report she writes: “Since Ontario has not instituted a break in segregation that is qualitatively different from segregation itself, the segregation clock and timing of these reviews may not occur at the intended five, 10 and 14-day markers”. I fully adopt both this summary of her findings on point and her detailed analysis of this issue (in section 4). She also cautions that “without sufficient resources for restructuring, alternatives and associated front-line supports, these regional-level reviews will likely remain pro-forma exercises”. I again accept her views.

I appreciate that Ontario has laid out new policies providing timely reviews. However, at various portions in my Report (see particularly section 6), I caution – and reiterate here – that in the absence of policies establishing truly independent reviews of such decisions, even if Ontario is able to address the Independent Expert’s concerns about timeliness, the possibility of Capay-type cases arising again is entirely possible.

I thus conclude that Ontario is not adequately in compliance on this subject of five-day segregation reviews.

Identifying and defining all housing placements other than general population: The Consent Order requires that the ministry identify and categorize all alternative housing placements (B6), set these out in policy by June 2018 (B7), and apply these alternative housing strategies across the correctional system by December 2018 (B7).

As described in section 6, the ministry has substantially revised its PSMI policy to designate four alternative housing placement categories. In our respective reports, both the Independent Expert and I agree that, if properly applied, these new categories have the capacity to transform the frequency and longevity of placement in “conditions that constitute segregation”. However, I agree with the Independent Expert when she has proposed revisions to the PSMI policy “to ensure clearer parameters and standards to facilitate Ontario’s operational compliance with the requirements of the Order”. As previously indicated, though the ministry accepted in December 2018 that some of the Independent Expert’s recommendations should be included in a revised policy document, we have not yet seen it, and we are told that it will not likely be implemented until “some time in 2020”.

Furthermore, we both remain very concerned that some of these specialized care categories have the potential to amount to segregation by another name. The Independent Expert puts this in terms of “Ontario has not yet set hard time-out-of-cell parameters for specialized care that exceed the two-hour threshold marking segregation”. I agree with that, but I also base my concern on various reports from the Office of the Correctional Investigator and Prof. Michael Jackson’s writings about their many years of experience with federal corrections, where, until very recently, despite voluminous written policies about the rules surrounding “administrative segregation”, there is clear evidence that such policies have been frequently ignored.

Thus, because we have not yet been provided with clear evidence indicating that Ontario, despite updating its PSMI policy to define alternative housing strategies, has met its requirements to apply these consistently and/or as alternatives to segregation in a meaningful way, we are unable to say whether Ontario is in compliance.

Human rights data: The Consent Order requires that the ministry annually release data on: (a) its use of segregation and restrictive confinement (B15, B17), and (b) the proportion of individuals in the overall correctional population with mental health difficulties and breakdown of the correctional population based on sex/gender (B16).

Much of the Independent Expert’s report sets out and exhaustively discusses numerous issues regarding the ministry’s data collection and release, especially in regards to restrictive confinement. Beyond agreeing with what she says, it is unnecessary to repeat what she says in section 4.

I thus join with the Independent Expert when she concludes that the ministry remains non-compliant with the human rights data collection and reporting requirements.


Our respective Orders in Council are scheduled to lapse at the end of February 2020. In light of the need to address these various continuing deficiencies in a timely and consistent manner, the Independent Expert and I have jointly decided to recommend: (a) the immediate establishment of a Committee of Experts on Data, Best Practices and Policy Compliance (b) the immediate establishment of a Ministerial Advisory Committee on the Treatment of Mentally Ill Inmates, and (c) the immediate proclamation of those portions of the Correctional Services and Reintegration Act, already passed by the legislature, that establish an office of Inspector General of Correctional Services. Our rationales for each of these are discussed in the remainder of this section.​

2. Observations of the ministry’s commitment to research and related issues – joint statement of the Independent Expert and the Independent Reviewer

We find it necessary to make some overall comments about the ministry’s responses to the various Jahn settlements. While we have been in our respective roles for about two years, it cannot be ignored that the ministry’s failure to commit itself fully to and implement the various Jahn remedies has now been going on for nearly 6 1/2 years. For numerous senior officials (corporate and field) to continually rationalize the ministry’s lack of substantive response to the Jahn litigation with phrases such as “it takes a lot of effort to turn a big ship around”, or “things are different now as we have new managers and structures in place”, or “we have to await political direction, which takes time” is simply inadequate, given the gravity of the issues involved. We are particularly concerned that the commentary by a very experienced ministry staffer quoted at the beginning of this section may well reflect what will happen if substantial external oversight is not immediately instituted across the ministry.

We attribute much of this to the ministry’s observed “insularity” in relation to (a) its overall commitment to cross-jurisdictional research, and (b) its approach to its role as part of Ontario’s criminal justice system, and it is to these subjects that we now feel compelled to turn.

a. Ministry research into cross-jurisdictional developments:

When Prof. Hannah-Moffat and I took up our respective Terms of Reference in early 2018 we presumed that, as a normal and routine part of the background for the [then] recently introduced Correctional Services and Reintegration Act, 2018 [40], considerable ministry-wide effort had gone into surveying what was happening with case law, legislation and policy in other jurisdictions, so that Ontario could benefit from these as part of the policy development for the pending legislation. Thus, one of the first things we requested was to be immediately apprised of “any and all scans that had been done of legislation, policies and procedures in other jurisdictions, in both Canada and other countries”. Despite repeated requests, we received very little substantive documentation, just vague promises that “cross-jurisdictional scans would be forthcoming soon”. When we began to press the issue more forcefully and consistently, most of our requests to see whatever research had been conducted were greeted with what can only be charitably described as “considerable resistance”. This communication style continued, to the point where it was necessary for both of us to remind ministry personnel that our Terms of Reference specifically direct that “the ministry is accountable…[to] provide unencumbered access to…information necessary to the Independent Reviewer/Independent Expert”.

When we eventually did receive some documentation, it appeared to us that, on the basis of what was shared over time, little sustained work had been put into any serious comparative canvas of what was happening in other parts of Canada (and elsewhere) as part of the preparation for the new legislative regime. Further, many of the research papers we eventually read tended to be “aspirational” rather than being comprised of detailed analyses of how policies in other jurisdictions might be applied in Ontario. This pattern of two-way communication was by no means unique. On numerous other occasions throughout our mandates we requested to see ministry-developed documents explaining the evidence-based rationales for both existing and proposed policy changes. It is our firm conclusion that too many of these documents shared were neither well-researched nor particularly well-reasoned.

Though it must be said that over time much has changed in a positive direction in terms of facilitating our access to documents, on the basis of what was shared over time, it seemed clear that insufficient effort was being expended towards routinely surveying comparative developments in other provinces, in federal corrections and in other countries. Consequently, our inferences based on these experiences were that ministry background papers and studies all too often seem to randomly reference only one or two other provincial correctional systems. They were not reflective of comprehensive canvasses of other jurisdictions – Canadian and offshore - facing many of the same problems as Ontario.

Having received little or no ministry-developed comprehensive canvasses of cross-jurisdictional studies and other materials, we deemed it necessary to instruct our research assistants to spend considerable parts of the summer and fall of 2018 collecting and analyzing these materials, many of which are readily accessible on public websites or in easily researchable academic journals.

Once again, when Prof. Hannah-Moffat and I shared studies and materials we had come across in our reviews of interprovincial and international developments, it is obvious that in some quarters these offers have been either ignored or have been greeted with little or no follow through. Similarly, where we offered to share examples of research reports from other jurisdictions[41] that appear to be working to address these difficult problems of treatment of incarcerated mentally ill persons in custody, we have sometimes been met with apparent unwillingness to seek these out.[42]

A draft of this portion of our joint Report was delivered to the ministry on February 4, 2020. On February 19 the ministry responded that: “…extensive work was completed as part of the development of the CSRA, including literature reviews of segregation and independent oversight. The ministry is providing examples of some of the reviews and scans for the IR’s consideration”. This was of course entirely new to both the IE and myself. When these were sent to us on February 21, the accompanying emails referred to us being given “a few documents” and “some examples of literature reviews and jurisdictional scans”. This communication, which was received one week before the scheduled termination of our mandates, references ministry documents dating from 2015-2017.

From this narrative, we derive the following:

  • It is clear that the ministry has been in possession of numerous comprehensive scans prior to, and throughout the entire duration of our respective mandates.
  • It is obvious that these have only been disclosed in anticipation of what we might be documenting in the Final Report.
  • Since we have only been given “a few” or “some” of these materials, we are unable to discern exactly what other materials are in the ministry’s possession.
  • No explanation has been offered at any point to explain or offer a rationale why these (and any other) jurisdictional scans have not been previously shared with us.
  • The ministry has made no admission of wrongdoing, nor has any apology been offered. This takes on particular salience when we recall how much of our research assistants’ time (as well as taxpayer fiscal contribution) was wasted by having to duplicate that which was already in the ministry’s possession - materials that could so easily have been disclosed in a timely fashion.
  • This inevitably makes us somewhat dubious about other areas identified where the ministry has claimed not to have materials which we sought.

This experience reinforces our conclusion that several types of external oversight – none of which currently exist within the ministry - are essential to ensure that, inadvertently or otherwise, ministry-generated cross-jurisdictional studies are readily available to those who need to examine them, including academic researchers. This is discussed later in this section.


At one point during our mandates, we were informed that the ministry was working toward the development of what was to be called a “Knowledge Development/Dissemination Hub”, where it was intended that, inter alia, cross-jurisdictional materials would be routinely posted (electronically or otherwise) for the benefit of ministry staff, OPS researchers and policy developers[43]. The ministry reports some progress in the development of “data connectivity” in its “Vanguard” (formerly known as High Sensitivity Analytics Platform Initiative), which will no doubt be of considerable assistance in building audit reporting to flag data and process gaps. However, we have been recently advised that, instead of formally establishing the proposed “Hub”, the ministry has instead decided, through its Research, Analytics and Innovation Branch (RAIB) to “disseminate knowledge through various channels and platforms including:

  • a comprehensive, searchable inventory of all justice sector research the ministry is affiliated with, available to RAIB to all ministry partners
  • publication of a periodic research newsletter, where updates on current ministry-affiliated research can be provided
  • when and where appropriate hosting of research symposia, which would provide a spotlight for ministry-affiliated research to be showcased, as well as networking opportunities for researchers, SolGen, and relevant partners”[44]

While the ministry is to be commended for this initiative, our continuing concern is that none of these “channels and platforms” appear to have an articulated mandate to specifically focus on cross-jurisdictional research. In our joint view, this is simply inadequate. On the basis of our experience, there is currently no place where ministry staff, other OPS (and academic) researchers and policy developers can readily and routinely find out what other (Canadian and offshore) jurisdictions have developed policies and procedures designed to improve conditions for the mentally ill in custody. In our joint view, this is simply inadequate. Ontarians have a right to expect that the ministry will conduct itself accordingly. It goes without saying that this may in turn contribute to public safety.

3.1 It is jointly recommended ongoing research and knowledge dissemination being conducted by the ministry should be staffed by professionals knowledgeable about how to conduct and compile cross-jurisdictional research studies.  It is further recommended that descriptions of the evolution and availability of such studies should be regularly shared with the proposed Committee of Independent Experts on Data, Best Practices and Policy Compliance (described infra).

This will hopefully link the promotion of operational modernized policies to the viability and utility of the ministry’s goals and mandates.

b. Ministry data sources:

Prof. Hannah-Moffat’s Independent Expert Report (section 4 of this Report) separately details her findings regarding the ministry’s commitment to sound data and best practices. Here, we wish to highlight our concern about the absence of external oversight into ministry data collection and analysis, and best practices, particularly given that our respective mandates are set to expire at the end of February 2020.

As Independent Reviewer, with input from the Independent Expert, I am expressly required by my Terms of Reference to report and comment on the “effectiveness of the accountability and oversight mechanisms put in place by Ontario, including the mechanisms for assessing undue hardship before placing individuals with mental health disabilities…in segregation”. Thus, Ontario is required to establish internal mechanisms for monitoring of their ongoing compliance with the terms of the Order. An effective accountability and oversight system should promote systemic changes so that segregation is at least minimized, if not completely phased out in the long-term. In the short-term, this system must ensure that segregation is not used for those with identified mental health conditions, nor that its use is discriminatory on the basis of Code-related factors. An effective oversight system can then be premised on an in-depth examination of patterns and drivers of segregation.

As part of the ministry’s response to the various Jahn initiatives, the ministry has recently created an “Oversight and Accountability Unit” within the “External[45] Oversight and Compliance Branch”, which is in turn part of the ministry’s “Operational Support Division”. The ministry has established this Unit to ensure cross-divisional alignment with the requirements of the Order. It is designed to focus on compliance audits, developing mitigation strategies for potential and existing risks, evaluating compliance with various policies and procedures, and supporting inter-divisional partners to ensure changes occur in a manner consistent with the terms of the Order. While these components are essential to establishing an effective accountability and oversight structure, we consider that the scope and power of this Unit’s oversight capacity is fundamentally limited and unnecessarily siloed.

While we applaud the establishment of this Unit (and Branch), it is our joint view that the current reporting structure of the Unit (i.e., reporting to a branch under the assistant deputy minister of Operational Support) significantly limits cross-divisional alignment with the requirements of the Order. Furthermore, its oversight role is constrained to conducting baseline and compliance audits, with little ability to address the systemic or institutional-based concerns, which we see as vitally important given the ever-increasing centrality of mental health in contemporary corrections. In our view these bodies should report directly to the deputy minister, rather than reporting more indirectly through the assistant deputy minister of Operational Support.

More broadly, we have concluded that, relevant to policy change overall, Ontario’s effort to satisfy the requirements of the Order have largely occurred in a policy vacuum. In our joint view, many of the requirements of the Order have been neglected because the development of new and necessary policy has been constrained by concerns about what institutions could (and could not) comply with in practice, rather than focusing on what is required by the Order and recent court decisions clearly limiting how and when administrative segregation can be used.

3.2 It is jointly recommended that the ministry establish a unit or branch under the deputy solicitor general’s office that is exclusively focused on compliance with the various Jahn settlements and Consent Orders. This unit or branch must have an on-going and direct line of communication with frontline staff and individuals (anonymous or otherwise) so that institution-specific concerns can be identified, and province-wide operational compliance can be reached. This unit or branch’s audit strategy and outcomes must be publicly posted for increased transparency.

3.3 It is jointly recommended that for all recent policy changes that relate to the Order, Ontario should establish firm time limits for when full operational compliance must be reached. It is further recommended that compliance audit plans and results be shared with the OHRC.

More significantly, we note that these various structures do not envisage any role for review of the work done by this Unit and Branch to be assessed by independent experts separate from government. In our view, particularly given the very considerable difficulties that the Independent Expert has continually encountered in accessing and addressing ministerial data deficiencies, there needs to be an external Committee of Experts expressly mandated to review, evaluate and, if necessary, comment upon the ministry’s various data collection and analysis efforts, its adherence to “best practices”, and both operational and substantive compliance with laws and policies.

In coming to this conclusion, we have consulted on this precise issue with both the Office of the Ombudsman and the Ontario Human Rights Commission, given these organizations’ respective experience over time in detecting and monitoring the treatment of mentally ill persons in custody in Ontario corrections. Both advise that while they envisage themselves as having indirect roles in evaluating ministry compliance, they acknowledge that they lack technical expertise in how best to understand and evaluate the data presented. An external Committee of Experts appears to be the best way to proceed.

3.4 It is jointly recommended that a Committee of Independent Experts be immediately established, mandated to review, evaluate and comment on the ministry’s research capabilities, its data collection and analysis practices, its commitment to evidence-based “best practices”, and its operational and substantive compliance with both laws and policies. This committee should be expressly authorized to have unencumbered access not only to ministry data collection methods, but also to any ministry initiatives and documents that may assist in ensuring that this committee’s mandate can be properly fulfilled. The ministry’s External Oversight and Compliance Branch should be required to report to this committee quarterly, and the committee should regularly report directly to the deputy minister. Wherever possible, the committee’s findings should be publicly reported on the ministry website. This committee should have a mandate to act in this capacity for a three-year period.

c. The ministry’s perception of its role in Ontario’s justice system:

After nearly two years of study and consultation, we are both firmly of the view that the ministry is far too “insular” in its approach and analysis of some of the policy areas it is required to address, especially in the glaring lack of field experience of many of those who are charged with developing policy at the corporate level. This unfortunately manifests itself in several ways:

First, we have been continually troubled that many of those charged with developing and drafting policies in the ministry’s corporate offices have never experienced the realities of institutional corrections for adults in any sustained way. Some of these officials bring experiences from other ministries which do not deal with adult offenders (or, indeed, come from postings entirely outside the criminal justice system). Even more striking is that many officials have little or no knowledge of legislation and case law from other provinces, nor about relevant practices and procedures in other parts of Ontario’s criminal justice system. Our experience is that all too many draft policy documents we have seen reflect piecemeal “policies that can be complied with” rather than policies that are consistent with federal and provincial legislation and case law.[46] Indeed, we have both been expressly told on several occasions that some policy developers are reluctant to propose policy changes “if they might reflect negatively on the ministry”. Given the reality which led to the establishment of this investigation and review, this is simply unacceptable and needs to be addressed forthwith by senior correctional management.

Second, in our opinion this lack of knowledge of “corrections on the ground” all too often seems to be compounded by the fact that within the ministry’s corporate offices, advisors who are, by virtue of their “field experience”, presumed to have particular “expertise” are simply outdated in some of their understandings of criminal law and Ontario’s privacy legislation. Though some of the “field experts” we have encountered are most knowledgeable about the complex issues of managing persons in custody, it must be said that on several occasions we have experienced graphic examples where advice provided by such “experts” is simply wrong or substantially outdated.

No doubt ministry officials will point to extensive processes of consultation with superintendents and other “field” personnel before policies are adopted. While these are no doubt undertaken in good faith, and sometimes result in entirely appropriate amendments to policy proposals, it seems to us that too much energy is unnecessarily expended before this consultation stage is reached. Unfortunately, we have both experienced too many recurrent examples where “field experts” seem quite unwilling to “think outside the box” and pursue evidence-based practices that have been shown to work in other jurisdictions. This is sometimes compounded by a basic lack of empirical knowledge of the problems they are trying to solve. As discussed in the Independent Expert’s Report, one glaring example of this is disclosed in “field” responses to the Independent Expert’s emphasis on “tracking” of segregation and restrictive confinement.

Without necessarily adopting OPSEU’s oft-expressed view that “frequently consultation is merely for show”, we can certainly understand that sentiment. As discussed above, at the very least, there should be greater attention paid to routinely incorporating research reports from Canadian and offshore jurisdictions into policy proposals and ministry background papers.

Finally, we wish to stress that meaningful consultation earlier in policy development processes that are informed by evidence-based research and practices in other jurisdictions will be more cost effective in the long run. Also, timely planning will be economically more in line with competing budgetary domains and will help to enhance and apply the ministry’s strategic goals of modernization.

d. External oversight of the treatment of mentally ill prisoners:

For many years there has been no opportunity for any external province-wide scrutiny of both the efficacy of existing provincial correctional policies and policy development initiatives. Historically, for over a century the Grand Jury in Ontario exercised a kind of rough “oversight” of provincial corrections. When the office of the Grand Jury was abolished (sometime in the 1960s), it was replaced for a time by the Minister’s Advisory Committee on the Treatment of Offenders (MACTO), which existed until some way through the 1980s, when the Committee ceased to function, by virtue of its members’ terms simply not being renewed. Since that time, other than Community Advisory Boards[47] (which operate only at the institutional level), there is currently no external body in existence that has any province-wide mandate to examine existing policies and policy development proposals, as well as to bring ongoing concerns to senior correctional management. While we have not made any formal comparative study of this issue, the lack of any opportunity for external oversight of (general and specific) policy developments seems quite anomalous as compared with other Ontario government functions dealing with vulnerable persons in government “care”.

In order to further communications in line with the ministry’s modernization efforts currently in process of implementation, we would generally support the establishment of one or more properly funded and mandated external advisory bodies to oversee provincial corrections, such as those for First Nations, Inuit and Metis communities envisaged in ss. 23-25 of the Correctional Services and Reintegration Act, 2018. However, given our specific mandate to examine and report on the treatment of mentally ill persons involved in Ontario’s justice and correctional system:

3.5 It is jointly recommended that a properly mandated and adequately funded Ministerial Advisory Committee on the Treatment of Mentally Ill Inmates (MACTMII) be immediately established. One of this committee’s mandates should be to receive regular relevant reports from the ministry’s Research, Analytics and Innovation Branch regarding its various “knowledge dissemination channels and platforms”, as well as from the ministry’s Oversight and Accountability Unit.

We also wish to comment on who might be invited to sit on this advisory body. In July and November, 2017 the ministry convened two “correctional stakeholder roundtables” to discuss issues regarding the treatment of mentally ill offenders in provincial correctional institutions. While the organizations that were invited and the names of those who attended no doubt had many useful contributions to offer, it needs to be said that some of these were not at all representative of those who regularly work on the front lines with mentally ill prisoners (remand or sentenced) and probationers. Without wishing to diminish the excellent work of organizations and individuals who participated, it is noteworthy that a number of important service delivery organizations do not appear to have been invited. For example, several very experienced and knowledgeable service delivery groups that operate at the critical interface between custody and community were not specifically consulted at any stage of these “roundtables”.[48] We would thus urge that membership in this proposed Ministerial Advisory Committee be largely focused on those organizations and individuals who are mandated to provide actual “front line” services, both in and out of correctional institutions.[49] Such inclusive representation should reflect Ontario’s gender and ethnocultural diversity.

e. An inspector general of Correctional Services:

To complement the creation of this proposed ministerial advisory committee, we consider that there is an important lesson to be learned from Canadian federal corrections. At the federal level scrutiny over various national correctional issues has mostly devolved over the past 40 years to the Office of the Correctional Investigator (OCI), whose occasional special studies and Annual Reports – many of which deal with the treatment of mentally ill offenders in penitentiaries and on conditional  release - provide the closest alternative to a significant level of external oversight of the Correctional Service of Canada (CSC), and related organizations. Following on from several public complaints about Ontario provincial corrections – including the Jahn and Capay cases and findings by the Office of the Ombudsman - Mr. Howard Sapers (who had just retired as the federal Correctional Investigator) was asked by the ministry to investigate and report on various aspects of provincial corrections. Under the title of Independent Reviewer of Ontario Corrections, he and his team produced several significant reports[50], following which he was additionally asked to draft what eventually resulted in the Correctional Services and Reintegration Act, 2018. Mr. Sapers recommended, and the legislature eventually accepted, that the office of Inspector General (IG) of Correctional Services - broadly equivalent to that of the federal OCI - should be established with an overall mandate to exercise an independent[51] oversight role in Ontario provincial corrections.

For reasons that have never been made clear to either of us, there seems to be reluctance to proclaim in force those portions of the CSRA that relate to the establishment and adequate staffing of this new IG office[52]. This seems curious in that an equivalent to the role of the correctional IG is presently being set up within the policing side of the Ministry of the Solicitor General. In our view, further delay is unnecessary. While it is of course the right of any government not to proclaim in force legislation that has been previously passed, the fact that the legislature has already pronounced on this issue strongly suggests to us that the position of the IG should be created as soon as practicable. There is no need to wait until experience has been gained through the IG policing function. The longstanding (45 years) experience with the federal OCI provides a solid template for dealing with persons in custody generally, but most specifically with mentally ill prisoners.[53]

The main reason MACTO seems to have foundered was because it proved quite impossible for its volunteer members to adequately “keep up” with province-wide developments. Much the same problem appears to exist in other provinces and at the federal level. From what we have discerned from our brief canvas of other jurisdictions, it seems that, as in Ontario, such “advisory” bodies as may exist are usually confined to individual institutions, and opportunities for regional or province-wide consultations with senior correctional officials are few and far between; even those which do exist tend not to be ongoing in any substantial way. Given the lack of any existing external correctional oversight bodies of any kind in Ontario corrections, the need for a provincial correctional IG to provide ongoing oversight becomes even more compelling. Simply put, only an official charged with continuing professional oversight of provincial corrections is going to be in any position “to hold the ministry’s feet to the fire”, especially, as we have regrettably found, a ministry that seems very resistant to change. As previously stated, 6 1/2 years have now elapsed since the initial Jahn settlement, and, as the contents of both the Interim Report and these Final Reports repeatedly disclose, SolGen is still far from complying with the need for fundamental changes revealed by the Capay case and the various Jahn settlements.

3.6 It is jointly recommended that Royal Assent to proclaim Part IX of the Correctional Services and Reintegration Act, 2018, creating the Office of Inspector General (IG) of Correctional Services, should be immediately sought.


We are mindful that the joint comments in this part of the Report are sharply critical of some ministry personnel, attitudes and practices. Nonetheless, since our respective appointments we have certainly noted a considerable “sea change” in approaches towards the tasks we have undertaken. Where once there was ample evidence of resentment about and resistance towards the inquiries, requests and demands that our Terms of Reference require us to investigate, it is clear that many senior ministry officials – both corporate and institutional staff - now accept that “Jahn should not be seen as an obligation, but rather as an opportunity to improve treatment of mentally ill inmates and probationers”[54]. Such attitudes should be acknowledged and applauded as we all attempt to create policies, procedures and structures that will hopefully reduce the chances of other Jahn - or Capay - type cases in the short and long term future.


As Independent Reviewer I wish to “flag” in this part of the Report that there is one other significant area where there is insufficient external scrutiny, that being Ontario’s proposed new procedures in relation to decisions to place and maintain a person in “conditions constituting segregation”. As discussed in more detail in section 6 of this Report, through the enactment of a new Regulation on point, the ministry considers that so long as certain procedural limitations are adhered to, it is both appropriate and constitutionally acceptable for senior correctional administrators to review the decisions of other correctional officials. While I accept that, at least until the views of the Supreme Court of Canada are known[55], Ontario may technically have the lawful authority to take such a position, I would remind the ministry that somewhat similar provisions were in effect during the appalling four-year pre-trial incarceration of Mr. Capay – a decision which too many ministry officials try to write off as “an anomaly”. Though review by an independent external decision-maker provides no guarantee that a Capay case will not arise again, in my view the presence of an external reviewer will likely go some considerable distance to guarding against the insular logic that unfortunately so dominated what happened in that case. As I note elsewhere in this Report, experience demonstrates time and again that the danger point in corrections is not when changes are being implemented in a fit of reformist zeal, but it is much more likely to arise when inflexible routines dominate the custodial environment. In that sense the cases of Ms. Jahn and Mr. Capay may be said to resemble the cautionary tale of “the canary in the coal mine”.

Independent Expert's Report

Summary of findings on the Jahn Consent Order

For the Independent Reviewer

Kelly Hannah-Moffat, PhD, Independent Expert on Human Rights and Corrections

Jihyun Kwon, PhD candidate and Kelly Struthers Montford, PhD[56], advisors to the Independent Expert

February 24, 2020

Table of contents

  1. Overview
  2. Impeding reform: ‘voluntary' segregation
  3. Consent Order deliverables and post-interim assessment of Ontario's compliance
  4. Conclusion
  5. Bibliography
  6. Appendix I: Overview of documented negative effects of segregation
  7. Appendix II: Select materials shared with Ontario
  8. Appendix III: Reproduction of Interim Executive Summary

I. Overview

The Jahn Consent Order is an agreement between the Ontario Ministry of Community Safety and Correctional Services (now the Ministry of the Solicitor General), and the Ontario Human Rights Commission (OHRC) regarding Ontario’s commitment to reforming their use of segregation, with specific attention to Code-related needs, namely mental health disability and sex/gender. The Order is the outcome of a human rights application filed by Christina Jahn in 2012 that alleged discriminatory treatment on the basis of gender and disability. Ms. Jahn, who experienced mental health disabilities, addictions, and cancer, was held in prolonged segregation (approximately 210 days) at the Ottawa Carleton Detention Centre. In 2013, Ontario and the OHRC reached an initial order, containing 10 Public Interest Remedies (PIRs).[57] In 2017, the OHRC filed a contravention of settlement application, alleging that Ontario had failed to comply with the 2013 settlement. The Human Rights Tribunal of Ontario issued the Consent Order[58] on January 16, 2018 in response to the 2017 contravention application. This context is outlined in detail in Section 1 of this report and informing to the content of this section.

I was appointed as the Independent Expert on Human Rights and Corrections to provide the ministry with impartial expertise and assistance in implementing the terms of the Consent Order per Order in Council 356/2017. Also per my Terms of Reference, I am required “to provide the ministry with independent advice and expertise on human rights and corrections, and to assist in implementing the terms set out in the Consent Order. This includes providing feedback on the ministry’s efforts and assessing whether the Jahn settlement remedies and terms of the Consent Order have been complied with.”[59]

In January of 2019, I submitted an Interim Report to the Independent Reviewer, Justice David Cole. This Interim Report was written at the request of the Independent Reviewer to assist him in his evaluation of compliance. It was inclusive of ministry materials and actions until December 31, 2018, and included 35 recommendations (see Appendix III). As of today, all recommendations remain in progress and/or pending, some of which include that the ministry undertake a culturally informed and gender-based evaluation of the tools being used in its institutions to satisfy the PIR#2 requirements.

This is my final report, which is also being provided to Justice Cole for consideration in his assessment of compliance in the Final Report that is expected to be publicly released in the first quarter of 2020. As requested by Justice Cole, this report includes my assessment of the ministry’s efforts and progress pertaining to segregation and restrictive confinement tracking, data releases and meaningfulness of analyses, alternatives to segregation, management or treatment of those who are marginalized due to their mental health concerns and/or sex/gender. As requested by Justice Cole, it also includes comments and recommendations relating to compliance with other Jahn settlement remedies and terms of the Consent Order. This report is based on all information I have been provided by the ministry as of February 24, 2020.

Successful implementation of the Consent Order requires the collection of meaningful data and both policy and operational compliance accompanied by sufficient resourcing and proper oversight measures. I agree with the Independent Reviewer, who notes that Ontario has made good efforts to meet various deadlines attached to the deliverables of the Consent Order. Notwithstanding the commendable efforts of ministry staff, it is my conclusion that to date, Ontario is not yet in full compliance with the terms of the Order, including the requirements set out in the initial Jahn settlement.

This conclusion is principally based on Ontario not being able to produce a cohesive policy framework required to operationalize and implement the terms of the Consent Order, nor the incumbent PIRs. I note that the work on Jahn has been impeded by multiple transitions in ministry leadership and staff, as well as an election. Additionally, the recently passed correctional legislation that has not yet been proclaimed into force,[60] and the Canadian Civil Liberties Association (CCLA) Appeal Court decisions[61] and various other concurrent cases on segregation[62] have created challenges at the ministry as to how to approach segregation reform. However, it is my position that the courts’ findings in federal segregation cases (e.g., independence of segregation reviews and a 15-day cap on consecutive segregation) are compatible with the principles underpinning Jahn. Ontario’s work meeting the requirements of both Jahn and CCLA have to date been uncoordinated.

Overall, the ministry’s timelines for policy reform and operational implementation remain unclear. There are significant compliance issues spanning unresolved tracking, data integrity and implementation issues, as well as an absence of evidence demonstrating operational change. Operational context rather than a commitment to an overall legal human rights framework appears to have shaped and limited policy development. However, the empirical evidence supporting many concerns about compliance has not been provided. That said, there is evidence that some local institutions and correctional staff—in the absence of clear policy—are creatively trying to accommodate individuals. These local best practices, however, are not being captured or effectively used by Ontario.

Segregation remains a common practice in Ontario provincial prisons. Administrative segregation continues to be used for male, female, and transgender individuals, as well as for those with mental health concerns who may show signs of or have disclosed thoughts of self-harm or suicide. The data disclosed in this report includes remanded and sentenced individuals. Because the harms of segregation do not discriminate based on custodial status and are not predictable, my comments throughout this report apply to both populations of individuals. Furthermore for those in remand detention, being in segregation likely further contributes to a decision to plead guilty in advance of a trial date, and for this reason, should be used, as stipulated by international law and provincial legislation, as a measure of absolute last resort. More importantly, it should be prohibited for those with serious and/or identified mental[63] and physical disabilities. One of the known harms of segregation include negative mental health effects. Any sustained use of segregation, then, will produce the very issues that the Consent Order sought to remedy. Succinctly, the CSRA as legislated requires the elimination of the practice of segregating mentally ill persons. Ideally, Ontario will follow other national and international jurisdictions and severely restrict, with a view to eliminating, the practice of administrative segregation.

The human rights-based data collected for schedule B-15 (the requirements are discussed below) show that Ontario has not substantially reduced its use of segregation to date. Between July 1, 2018 and June 30, 2019, there were 24,220 segregation placements. Of the 12,059 individuals included in the review, 1,900 identified as female and 10,159 identified as male.[64] Within this period, 6,994 individuals (58%) had experienced a single segregation admission,[65] while 5,065 (42%) had been placed in segregation two or more times. Five-hundred-and-sixty-nine individuals (5%) experienced more than five segregation placements, and 90 individuals (1%) experienced more than 10 placements. Upon placement in segregation, 46% (n=5,558) of the 12,059 individuals had a verified or unverified mental health alert on file. More specifically, 4,459 men (44%) and 1,099 women (58%) in segregation had a mental health alert. In comparison, 8,659 men (28%) and 2,219 women (46%) in the overall custody population had a mental health alert on file.

Table 1. Presence of mental health, suicide risk, and suicide watch alerts by gender (between July 1, 2018 and June 30, 2019)
Presence of an alert Female Male Total
Individual Column % Individual Column % Individual Column %
Total individuals 1,900 100.0% 10,159 100.0% 12,059 100.0%
MH alert1 1,099 57.8% 4,459 43.9% 5,558 46.1%
Suicide risk alert**,2 729 38.4% 3,549 34.9% 4,278 35.5%
Suicide watch alert3 317 16.7% 1,648 16.2% 1,965 16.3%
*Excludes intermittent sentences.
**Suicide Risk Alert includes Suicide Watch Alerts, Enhanced Supervision, and Previous Suicide Attempt.
1 Yates' chi-square = 297.345, df = 1, p < .001
2 Yates' chi-square = 61.275, df = 1, p < .001
3 Yates' chi-square = 12.113, df = 1, p < .001

Of the 12,059 individuals covered in the review, 4,278 (36%) had a suicide risk alert recorded in their file. There were 729 women (38%) and 3,549 men (35%) in segregation who had a suicide risk alert, which is disproportionate to those in the general prison population, who in comparison have lower rates of suicidality. Specifically, 1,308 women (27%) and 6,292 men (20%) in the overall custody population had a suicide risk alert on file (Table 1).

Mental health, suicide risk and the use of segregation[66]

Importantly, of the 24,220 placements that occurred between July 1, 2018 and June 30, 2019, there were 1,969 (8.1%) placements of 30 continuous days or longer. Of these, 1,259 placements (63.9%) were of individuals with mental health alerts on file; whereas 938 placements (47.6%) were of individuals with suicide alerts.[67] There were 19 placements of 365 continuous days or greater in segregation. Of these 19 placements, 14 (73.7%) were of individuals who had a mental health alert on file; 10 placements (52.6%) were of those who had suicide alerts on file (Tables 2 and 3). Of the 12,059 individuals segregated during this reporting period, 1,091 individuals (9.0%) were segregated for over 60 aggregate days. Over half (65.4%, 714), and about half (49.1%, 536) of these individuals had a mental health alert or a suicide alert on file, respectively (Tables 4 and 5).

Table 2. Continuous days in segregation by mental health alerts (between July 1, 2018 and June 30, 2019)
Continuous days in segregation MH alert on file No MH alert Total
Placement % row total Placement % row total Placement %
Less than 30 days 11,576 52.0% 10,675 48.0% 22,251 91.9%
30 to 59 days 730 65.0% 394 35.1% 1,124 4.6%
60 to 89 days 245 61.3% 155 38.8% 400 1.7%
90 to 119 days 104 57. 8% 76 42.2% 180 0.7%
120 to 179 days 88 68.2% 41 31.8% 129 0.5%
180 to 239 days 39 63.9% 22 36.1% 61 0.3%
240 to 364 days 39 69.5% 17 30.4% 56 0.2%
365 or more days 14 73.7% 5 26.3% 19 0.1%
Total 12,835 53.0% 11,385 47.0% 24,220 100.0%
*Excludes intermittent sentences.
**Chi-square = 109.884, df = 7, p < .001
Table 3. Continuous days in segregation by suicide risk alerts (between July 1, 2018 and June 30, 2019)
Continuous days in segregation Suicide risk alert on file No suicide risk alert Total
Placement % row total Placement % row total Placement %
Less than 30 days 9,285 41.7% 12,966 58.3% 22,251 91.9%
30 to 59 days 551 49.0% 573 51.0% 1,124 4.6%
60 to 89 days 179 44.8% 221 55.3% 400 1.7%
90 to 119 days 80 44.4% 100 55.6% 180 0.7%
120 to 179 days 61 47.3% 68 52.7% 129 0.5%
180 to 239 days 28 45.9% 33 54.1% 61 0.3%
240 to 364 days 29 51.8% 27 48.2% 56 0.2%
365 or more days 10 52.6% 9 47.4% 19 0.1%
Total 10,223 42.2% 13,997 57.8% 24,220 100.0%
*Excludes intermittent sentences.
**Chi-square = 29.574, df = 7, p < .001
Table 4. Aggregate days in segregation by mental health alerts (between July 1, 2018 and June 30, 2019)
Aggregate days in segregation MH alert on file No MH alert Total
Individual % row total Individual % row total Individual %
Less than 60 days 4,844 44.2% 6,124 55.8% 10,968 91.0%
60 to 119 days 453 64.1% 254 35.9% 707 5.9%
120 to 179 days 138 67.6% 66 32.4% 204 1.7%
180 to 365 days 123 68.3% 57 31.7% 180 1.5%
Total 5,558 46.1% 6,501 53.9% 12,059 100.0%
*Aggregate days are calculated based on the total number of days in segregation during the 365-day reporting period. The total number of aggregate days in segregation were counted to June 30, 2019.
**Excludes intermittent sentences.
***Chi-square = 182.375, df = 3, p < .001
Table 5. Aggregate days in segregation by suicide risk alerts (between July 1, 2018 and June 30, 2019)
Aggregate days in segregation Suicide risk alert on file No suicide risk alert Total
Individual % row total Individual % row total Individual %
Less than 60 days 3,742 34.1% 7,226 65.9% 10,968 91.0%
60 to 119 days 341 48.2% 366 51.8% 707 5.9%
120 to 179 days 98 48.0% 106 52.0% 204 1.7%
180 to 365 days 97 53.9% 83 46.1% 180 1.5%
Total 4,278 35.5% 7,781 64.5% 12,059 100.0%
*Aggregate days are calculated based on the total number of days in segregation during the 365-day reporting period. The total number of aggregate days in segregation were counted to June 30, 2019.
**Excludes intermittent sentences.
***Chi-square = 99.827, df = 3, p < .001

Many of these individuals were admitted to segregation more than once during the same reporting period. While there were 6,994 individuals (58.0%) who experienced a single segregation admission, 5,065 (42.0%) of individuals had been placed in segregation two or more times. As well, 569 individuals (4.7%) experienced more than five segregation placements, and 90 individuals (0.75%) experienced more than 10 placements over the year of the reporting period, with 37 being the maximum number of placements per individual (Tables 6, 7 and 8).

Table 6. Number of placements by mental health alerts (between July 1, 2018 and June 30, 2019)
Number of placements MH risk alert on file No MH alert Total
Individual % row total Individual % row total Individual %
1 placement 2,783 39.8% 4,211 60.2% 6,994 58.0%
2 placements 1,220 50.9% 1,176 49.1% 2,396 19.9%
3 placements 594 53.4% 519 46.6% 1,113 9.2%
4 placements 366 57.7% 268 42.3% 634 5.3%
5 placements 215 60.9% 138 39.1% 353 2.9%
6 to 10 placements 311 64.9% 168 35.1% 479 4.0%
11 placements or more 69 76.7% 21 23.3% 90 0.7%
Total 5,558 46.1% 6,501 53.9% 12,059 100.0%
*Excludes intermittent sentences.
**Chi-square = 325.911, df = 6, p < .001
Table 7. Number of placements by suicide risk alerts (between July 1, 2018 and June 30, 2019)
Number of placements Suicide risk alert on file No suicide risk alert Total
Individual % row total Individual % row total Individual %
1 placement 2,095 30.0% 4,899 70.0% 6,994 58.0%
2 placements 902 37.6% 1,494 62.4% 2,396 19.9%
3 placements 481 43.2% 632 56.8% 1,113 9.2%
4 placements 287 45.3% 347 54.7% 634 5.3%
5 placements 186 52.7% 167 47.3% 353 2.9%
6 to 10 placements 269 56.2% 210 43.8% 479 4.0%
11 placements or more 58 64.4% 32 35.6% 90 0.7%
Total 4,278 35.5% 7,781 64.5% 12,059 100.0%
*Excludes intermittent sentences.
** Chi-square = 321.991, df = 6, p < .001
Table 8. Number of placements by gender (between July 1, 2018 and June 30, 2019)
Number of placements Female Male Total
Individual % Individual % Individual %
1 placement 1,109 58.4% 5,885 57.9% 6,994 58.0%
2 placements 391 20.6% 2,005 19.7% 2,396 19.9%
3 placements 184 9.7% 929 9.1% 1,113 9.2%
4 placements 83 4.4% 551 5.4% 634 5.3%
5 placements 43 2.3% 310 3.1% 353 2.9%
6 to 10 placements 73 3.8% 406 4.0% 479 4.0%
11 placements or more 17 0.9% 73 0.7% 90 0.7%
Total 1,900 100.0% 10,159 100.0% 12,059 100.0%
*Excludes intermittent sentences.
** Chi-square = 8.681, df = 6, p = .192

Overall, this data shows that prolonged segregation (15 days or longer) remains a routine practice for individuals with mental health and/or suicide risk alerts on file. These individuals also tend to have a high number of aggregate segregation days, and repeated segregation placements. At the very least, the above-mentioned findings reinforce the need for clarity in policies and procedures, meaningful review processes, and independent external oversight. The data above show that segregation practices function in a discriminatory manner:

  • Table 1 demonstrates that, of those in segregation, women had a higher incidence of mental health alert, suicide risk alert, and suicide watch alerts than did their male counterparts.
  • Tables 2, 3, 4, and 5 indicate that, while most individuals are segregated for less than 30 continuous days and less than 60 aggregate days, the proportion of individuals with mental health alerts and suicide risk alerts are higher amongst those in prolonged segregation.
  • Tables 6 and 7 show that, as the number of placements increased per individual, the likelihood of these individuals having a mental health and/or suicide alert on file also increased.[68]  
Reasons for segregation

The three most frequent reasons for segregation placement included: 7,627 (32%) occurrences where individuals requested to be placed in segregation; 6,631 (27%) placements as a result of medical reasons such as observation, isolation, and safety; and 5,332 (22%) placements as a result of an alleged or adjudicated misconduct.[69] Throughout a segregation placement, the reason for placement may change, although most placements (19,827, 82%) had only one associated reason.

Gender discrepancies across reasons for placement are extant. While 7,173 (35%) segregation placements for men had individual’s own request as the reason, this was only the case for 454 (12%) placements for women. Segregation for medical purposes made up 5,157 (25%) placements for men, and 1,474 (40%) placements for women. Alleged misconduct constituted 4,776 (23%) of placements for men, with 1,330 (6%) of placements being for disciplinary segregation. For women, alleged misconduct made up 556 (15%) of segregation placements, and 203 (5%) for disciplinary segregation (Table 9).

Table 9. Reason(s) for segregation placements by gender (between July 1, 2018 and June 30, 2019)
Reason(s) for segregation** Female Male Total
Placements % total (n=3,725) Placements % total (n=20,495) Placements % total (n=24,220)
Inmate request 454 12.2% 7,173 35.0% 7,627 31.5%
Inmate needs protection: medical 1,474 39.6% 5,157 25.2% 6,631 27.4%
Alleged misconduct 556 14.9% 4,776 23.3% 5,332 22.0%
Security of institution/safety of others 682 18.3% 2,746 13.4% 3,428 14.2%
Inmate needs protection 453 12.2% 1,886 9.2% 2,339 9.7%
Close confinement*** 203 5.4% 1,330 6.5% 1,533 6.3%
Security of institution/safety of others: medical 281 7.5% 574 2.8% 855 3.5%
*Excludes intermittent sentences.
**Figures represent all reasons for segregation placement for all active segregation placements (N=24,220) during this period. One placement in segregation may include more than one associated reason. Therefore, the total number of placements in this table exceed the actual number of segregation placements.
***In Ontario, close confinement refers to disciplinary segregation.

II. Impeding reform: 'Voluntary' segregation

As accepted in recent court decisions,[70] the academic literature indicates that there are multiple harmful effects that stem from segregation, and that these effects can manifest in as little as 48 hours. The literature documenting the effects and experiences of segregation are not isolated to other jurisdictions nor federal institutions; these findings are applicable to those in provincial custody – regardless of whether individuals are sentenced, remanded, or detained for immigration reasons. How conditions of confinement will be experienced is not bound by jurisdiction.

Some harms of this practice include the exacerbation of existing mental health issues, suicidal ideation, the development of psychiatric symptoms, inability to regulate emotions, and negative physical health effects – all of which can produce problematic behaviours and resultant safety concerns (see Appendix I, reproduced from Interim Report, which provides a list of documented negative health effects). It is difficult to predict how much damage will be incurred from segregation and which individuals will be affected. The segregation literature related to women and Indigenous individuals notes the particular vulnerabilities of these populations to the adverse effects of segregation (see Appendix I). Overall, segregation can produce harm, mental illness, and violence. If any immediate institutional safety benefits are achieved, these are likely outweighed by the adverse effects of even a relatively brief segregation for the individual.

As the Independent Reviewer and I note in his Final Report, the research capacity of the ministry is limited as is its access to knowledge of international best practices in other jurisdictions. To support Ontario in its reform efforts, I have provided Ontario with materials and literature on an ongoing basis (see Appendix II, reproduced from Interim Report).

Self-segregation

Based on Ontario’s recent data, own request remains a primary reason for segregation. In my Interim Report, I urged Ontario to approach segregation as symptomatic of broader prison safety and management problems. Ontario continues to use ‘individual’s own request’ as justification for the placement of an individual in conditions of confinement that constitute segregation. Individuals generally request segregation because they want to be in ‘safe’ living conditions and/or because they are not able to cope in general population. Within prison settings, segregation is often perceived as an individual’s only option to ensure some form of safety, particularly in remand. Such a request must not be conflated with the individual requesting conditions of confinement that expose them to potentially permanent psychological damage. A similar argument can be made for the segregation of a person for ‘protection’. Although it is sometimes necessary to separate a person from the general population due to concerns for their safety, the requirement or request for protective custody ought not be a sole justification for segregation. Individuals in such circumstances ought to be separately and safely housed, with opportunities for time out of cell maximized. 

Specialized placements

Ontario has designated specialized placements[71] that can accommodate individuals who would otherwise fall into the categories of ‘own request’ or protective custody; however, it is my view joined by the Independent Reviewer that these remain underutilized.[72] At present, Ontario has not identified a type of individuals currently housed in administrative segregation but cannot be accommodated within its 2019 specialized placement framework. Nonetheless, specialized placements operate as or can be a form of restrictive confinement and ought to be monitored as such. We have not been provided data to indicate whether or not Ontario is considering alternatives to the point of undue hardship. Therefore, we cannot confirm if Ontario is compliant with the terms of the Order or its own policy.

Ontario continues to use the refusal to leave one’s cell as a justification for segregation. Ontario ought to assume the best practices of some jurisdictions, which have adopted various strategies and approaches to encouraging individuals to come out of their cells. Ontario ought to undertake an analysis of the drivers to segregation, including a review of classification practices. An individual’s refusal to leave cell can be a consequence of fear and safety concerns related to placement and/or related to mental illness. Simply put, because segregation can so easily result in harm, the ministry needs to develop new practices for managing persons in custody who are inclined to either request segregation or refuse to leave their cell to engage in meaningful activities. A decreased use of segregation requires systemic changes and a cultural shift in how Ontario prison populations are managed, along with judicious oversight.

4.1 It is recommended that the ministry should undertake a review of best practices around mental health with a view to improving correctional staff resources, training, and strategies for managing the refusal to leave a cell. Recommendations arising from this review should be shared with both the proposed Committee of Independent Experts (see rec 3.2) and the Ministerial Advisory Committee on the Treatment of Mentally Ill Inmates (see Recommendation 3.3).

4.2 It is recommended that staff and decision-makers be provided with and be required to consult an exhaustive list of alternatives to segregation. This list ought not be limited to alternative housing units/placements or living arrangements, but should include strategies for increasing time out of cell.

4.3 It is recommended that Ontario should plan to cease placing self-selecting individuals in segregation by December 31, 2020, to be implemented no later than June 30, 2021. Instead, focus should be on the building of capacity for specialized placements and training its staff on best practices for those refusing to leave their cells.

III. Consent order deliverables and post-interim assessment of Ontario's compliance

B11 and B13: Health care reassessment baseline and compliance review

B11. Ontario shall ensure that the following timelines are formalized in policy, and shall make all reasonable efforts to ensure substantial compliance with them on a system-wide basis, by July 31, 2018 …

d. Individuals shall be reassessed using the mental health screening process at least once every 6 months. (emphasis added)

B13. Ontario shall perform a compliance review to review and report on compliance with the timelines set out in [B- 11(d)]. This will involve a point-in-time review of the files of 50 randomly selected individuals who, as of Thursday, March 8, 2019, have been in custody for 6 months or longer. The review will assess whether and when the 6-month mental health screening reassessments set out in [B-11(d)] occurred. Ontario shall share the results of this review with the OHRC, the Independent Expert and the Independent Reviewer within six weeks of March 8, 2019.

PIR4 and B-11 require the ministry to continuously (every six months at minimum) evaluate an individual’s mental health. In an effort to satisfy the requirements of B-11, Ontario revised its Mental Health Services Policy, and developed a standard form for reassessment.

Results of the reassessment compliance review

B-13 measured Ontario’s compliance with its requirement to continuously reassess the mental health of individuals in custody. This point-in-time review included 60 randomly selected individuals who, as of March 8, 2019, had been in forms of custody for six months or longer. This review showed that 19 out of 60 (31.7%) had been reassessed using the newly introduced reassessment tool, as required. However, the ministry determined their own compliance rate of 96.7% (55 out of 60 files) because individuals were regularly seen by clinical staff, which they counted as a reassessment, even though a reassessment form was not present in the file (36 of the 41 individuals without documentation (Table 10). Having a record of appointments with health care staff, however, is deficient in meeting the compliance criteria measured by B-13, which requires the development and operational practice of a standardized reassessment process.

PIR4 and B-11 require that a formal and comprehensive assessment of an individual’s mental health condition occur on a regular and ongoing basis. The 36 individuals included in the above described B-13 sample were seen by the clinical staff for follow-ups. This may have effectively and effectively addressed the issues that had been previously detected in a timely way. However, based on a review of files, it appears that a comprehensive assessment to identify other potential mental health concerns previously unbeknownst to the health care team, did not occur. While some of these follow-ups were related to mental health concerns, others could have been limited to a previously known physical health issue. These efforts, regardless of potential effectiveness, do not satisfy compliance requirements, which entails the institution of a standardized, comprehensive reassessment tool that is both evidence-based and gender-responsive (see PIR2).

Table 10. Six-month mental health reassessment by gender (as of March 8, 2019)
B-13 compliance status Female Male Total
n % column total n % column total n % column total
Reassessed using the standardized tool 7 46.7% 12 26.7% 19 31.7%
Not reassessed with the standardized tool 8 53.3% 33 73.3% 41 68.3%
Seen by a health care staff* 8 28 36
Seen by a psychiatrist 6 17 23
Seen by MD/NP but not psychiatrist 10 10
Not seen by MD/NP​/psychiatrist 2 6 8
Total 15 100.0% 45 100.0% 60 100.0%
*This includes medical doctors, nurse practitioners, psychiatrists, registered nurses, psychologists, and social workers.

Based on the materials and data from the compliance review, it appears that Ontario has yet to institute a consistent practice whereby individuals are reassessed at least once every six months. As such, I am unable to confirm that the ministry has complied with this requirement. Given Ontario’s low rate of compliance in reassessing the mental health of individuals in custody for 6 months or greater, I recommended in my Interim Report that Ontario repeat this audit by September 15, 2019. The ministry responded by committing to complete this review in early October. [73]  

In January 28, 2020, I was informed that this audit took place between November and December 2019. The summary deck[74] reports an 81% compliance rate province-wide with the 6-month reassessment with some regions less compliant than others (e.g. 69% in the Northern Region and 73% Central Region). This appears to be an improvement compared to the earlier B-13 review conducted in March 2019. However, I was not involved in this audit process and did not receive the raw data for verification, as requested. Therefore, I cannot independently confirm whether or not the reassessment was completed in a timely manner, if the approved reassessment tool was used, or if the formalized protocols were followed. I also cannot confirm whether or not the reassessment practice is consistent for all groups (e.g. female/women, Indigenous and other ethno-racial minorities, those with previously known mental health concerns) or explain the decision to exclude the Toronto South Detention Centre from the review.[75]

4.4 It is recommended that regular health assessment compliance reviews occur at 6-month intervals. Following the implementation of the revised reassessment tool in Spring 2020, a B-13 audit should be repeated by a Committee of Independent Experts, shared with the OHRC, and publicly posted.

B15, B16, and B17: Human rights data collection and release

B15. Ontario shall…annually…release data regarding its use of segregation and restrictive confinement for all individuals in Ontario’s correctional system… Such data will include: Number of placements; Duration of placements…; Reason for placements; Deaths; and, Instances when individuals are put on suicide watch by clinical staff.

Data relating to the above categories, shall be disaggregated based on: (i) those with mental health disabilities (including risk of suicide or self-harm)…; (ii) sex/gender; (iii) facility; and (iv) region. Ontario shall work with the Independent Expert to ensure that the data is released in a manner that allows for meaningful analysis of how segregation and restrictive confinement are used on and affect individuals based on mental health disability and sex/gender (emphasis added).[76]

B16. As of July 31, 2019, each time the data as per [B-15] is released, Ontario will also provide information on the proportion of individuals in the overall correctional population with mental health disabilities, and the breakdown of the overall correctional population based on sex/gender.

B17. When Ontario implements a system, as referenced in [B-8], to track continuous and aggregate restrictive confinement placements based on individual conditions of confinement, excluding circumstances of lockdown, it will publicly release such data on a disaggregated basis as set out above in [B-15], and specifically identify any individuals who are physically or socially isolated for 22 hours or more per day, but not considered to be in segregation (emphasis added).

B-15 requires Ontario to collect and publicly release annual human rights-based data specific to its use of segregation and restrictive confinement for all individuals in its correctional system. Ontario was required under the Order to begin releasing the aforementioned annual data in 2018. In consultation with both the OHRC and myself, we concluded that the ministry was not yet able to do so. The scope of the initial data was considerably reduced (from one year to approximately two months) with the understanding that this deficiency would be remedied for the 2019 release. Specifically, it was expected the 2019 data would contain full-year worth of individual-level segregation and restrictive confinement data to satisfy the requirements set out in B-15, 16, and 17. As such, the 2018 data release was a pilot for future annual human rights-data releases that will span the entire year, as required by the Order. Thus, I am of the view that Ontario has not sufficiently refined its procedures. Multiple issues remain in the latest B-15 release that continue to compromise the integrity, accuracy, and reliability of the data.

First, as will be discussed below, Ontario has not yet produced clear and consistent policies, procedures, and working definitions of segregation, restrictive confinement, mental health,[77] and associated alerts during the reporting period. Consequently, it is hard to accurately and consistently determine how segregation and restrictive confinement are used for men, women, and non-binary individuals, as well as for those with mental health concerns. For example, segregation data is derived from Care in Placement Records (CIP screens) that document movement in and out of segregation status. Because the timing and procedures for when these screens are opened and/or closed varies across institutions, it is difficult to consistently calculate the duration of placements. As discussed with the ministry, this issue could be improved through clear tracking policies and practices.

Second, Ontario was meant to report a year of restrictive confinement data but could only provide 3 months of data. This is because Ontario did not have unit-based information about the average out-of-cell time, nor a working definition of restrictive confinement until July 2019. B-17 states Ontario ought to “publicly release such data on a disaggregated basis” as set out in B-15 “when [it] implements a system…to track continuous and aggregate restrictive confinement placements based on individual conditions of confinement.” The 2019 data released to the public reflected how many individuals were housed in a unit that was regularly locked up for 17 hours or more per day, and was based on somewhat inconsistent CIP records to infer individual-level practices of restrictive confinement across Ontario’s prisons. Although the collection of the data and 17 hour cut-off was indeed discussed and agreed to by the IE, this data is complex and not yet an accurate reflection of the practices of restrictive confinement.

Ontario expects to be able to collect the individual-level data once they implement the mobile tracking solution. Given that B-17 allows for temporal flexibility, the ministry can be deemed partially compliant with the requirement to create a plan to track restrictive confinement. Notwithstanding the ministry’s plans to track restrictive confinement, the requirements of B-15 to provide individual-level reliable information on the number of restrictive confinement placements, the duration of each continuous placement, nor associated placement reasons have not been achieved.

Third, schedule B-15 requires data disaggregation based on mental health disability and sex/gender, amongst other rights-based factors. It also requires that “Ontario shall work with the Independent Expert to ensure that the data is released in a manner that allows for meaningful analysis of how segregation and restrictive confinement are used on and affect individuals based on mental health disability and sex/gender.” It is my expert opinion that the intersectionality of various human rights factors (e.g., race, ethnicity, age, religion, immigration status) should have important implications for how segregation, and restrictive confinement are used for those with mental health concerns and/or members of gender/sexual minority equity seeking groups. Because this is “human rights-based data,” and because these variables are considered baseline demographic factors in quantitative analyses, it is imperative that data be disaggregated beyond the specified mental health and sex/gender criteria to ‘allow for meaningful analysis.’

4.5 It is recommended that Ontario should implement a policy outlining how restrictive confinement placements are recorded, tracked, and analysed no later than September 30, 2020. This is required in order to meet the B-15 requirement to report on a year’s worth of data and to do so in a meaningful manner.

4.6 It is recommended that the ministry adjust the B-15 annual reporting period to April 1 to March 31 to match the fiscal year. The summary and analysis of the dataset should be shared with the Committee of Independent Experts and publicly posted on (see section 3) an annual basis no later than every July 30.

4.7 It is recommended that Ontario update the annual deaths in custody reports on an ongoing basis as Coroner inquest verdicts are issued.

B5: Tracking continuous and aggregate segregation

B5. Ontario shall, by July 31, 2018, have commenced manual tracking of continuous and aggregate placements in segregation, as defined in [B-1]. The parties recognize that manual tracking is subject to human error and that Ontario will continuously work towards improving its tracking mechanisms. By January 31, 2019, Ontario shall consult with the Independent Expert regarding its efforts to improve its process for manually tracking segregation (emphasis added).

The Order specifies an ongoing requirement to track segregation in a manner that allows for ‘meaningful analysis.’ B-5 enables the oversight of segregation and the monitoring of operational compliance with Jahn principles and other schedule items of the Order. In my opinion, Ontario is not in compliance with the tracking requirements stipulated by the Order. The information and data I have been provided are inadequate and lack a coherent policy framework.

Mobile tracking solution and its limitations

In December 2018, Ontario developed and implemented a manual segregation tracking form and conducted a mobile tracking pilot at three institutions. Recognizing that its reliance on the paper-based system has and continues to impede proper and timely compliance reviews, the ministry will be implementing the mobile solution province-wide for the fourth quarter of the 2019-2020 Fiscal Year.

The mobile tracking solution requires operational staff to scan individual Quick Response (QR) codes using a mobile device. This will enable the collection of individual-level data about: the amount of time an individual is in and out of a cell; how time out of cell was spent; movement details; and, the nature and duration of social interactions with others CIP reports will also be completed in Offender Tracking Information System (OTIS ). This information will be used to generate three reports about individuals in segregation (i.e. 22-24 hours in cell); in highly restrictive conditions of confinement but not considered segregated (i.e. 20-22 hours in cell); and, in conditions of restrictive confinement (i.e. 17-20 hours in cell). Theoretically, the mobile solution is capable of efficient and precise tracking of time in cell and it can support the monitoring and oversight of segregation and of restrictive confinement.

Ontario must modernize its technology and data collection processes. Mobile tracking solutions – properly used – can allow for easier and reliable data collection and analysis. Ontario has indicated that this technology will be implemented in Winter/Spring 2020. While this technology could help support compliance with Jahn and recent court decisions, it does not, in and of itself, constitute compliance with the Order.

The grey zone (20-22 hours): Tracking the minutes, imprecision and oversight failures

As mentioned above, the Order requires that individuals in “all circumstances in which individuals are physically isolated and confined in a cell for 22 hours or more per day” be tracked. This triggers the ministry’s review of Code-related needs and their accommodation with alternatives to segregation. To fulfill the requirements of the Order, the ministry currently envisions that anyone with a mobile record of less than 120 minutes of out of cell time will be considered in segregation for tracking and B-15 reporting purposes and be subject to review by deputy regional directors (DRDs) and the assistant deputy minister of Institutional Services (ADM-IS) or delegate. Individuals who are out of cell for 121 minutes or more are determined as not in segregation for these purposes, and thus not subject to the same oversight and accommodation requirements.

This approach presents two fundamental challenges. First, individuals who are confined in a cell for extended periods are likely to experience and/or be at risk to similar damaging effects resulting from prolonged isolation. The distinction between 23, 22 or 21.5 hours is negligible. Conditions of confinement akin to segregation (i.e. segregation-lite[78]) will persist between 20-22 hours. This is a practice that can be experienced as segregation, and can be similarly damaging, especially for those closely on either side of 21-22 hours. Consistent among the Jahn Order, the CCLA decisions, and the empirical evidence is that the isolation and deprivation of meaningful social interaction can produce significant harm. It is inconsequential whether this harm occurs in a cell within a designated ‘segregation’ unit or elsewhere. I am not aware of empirical evidence that suggests that harm resulting from segregation can be measured in minutes. Ethically and legally such a sharp distinction is unadvisable, especially if the objective is to reduce and eliminate administrative segregation and limit harm.

Second, a 120-minute tracking and review threshold hinges on the ability of a tracking solution to capture the actual conditions of confinement accurately at all times. With the cut-off being at the precise minute, a tracking system that separates those out of cell for 121 minutes or greater is vulnerable to human errors—errors that are highly probable in an unpredictable correctional environment. Frontline officers in several institutions and union representatives have consistently reminded myself and the Independent Reviewer that it is unrealistic to expect the accurate tracking of minutes for every individual’s movement, given the nature of their work and current staff complements. This technology and approach will not ensure compliance with the principles of the Order (and CCLA more broadly) let alone the ministry’s own policies. It, however, may produce data that appears to demonstrate compliance yet obscures the actual operational practice.

The ministry recognizes that those in cell for 20 to 22 hours (i.e. “the grey zone”) are in conditions of confinement that may be more prohibitive than other forms of restrictive confinement (that ranges from 17-22 hours in cell).[79] Ontario also recognizes that there exist tangible operational limitations to accurately documenting with precision the minutes of individual’s movements and quality of associations. Subsequently, the ministry has suggested that the placements of those in frequent circumstances of restrictive confinement and/or those who fall within the grey zone will be tracked and subject to different and potentially less rigorous local reviews and may be escalated to DRD reviews at the discretion of the Superintendent.[80] In essence this plan will create a shadow system with a less robust oversight mechanism for a vulnerable group, who but for a minute, are in the same conditions of confinement as the ‘segregated’. Given the potential for these less rigorous reviews to become standard practice, Ontario should turn its attention to strengthening how it tracks the grey zone. This will not only impact those in seg-lite conditions but will make the oversight of continuous segregation ambiguous and inconsistent.

Ontario’s decision to track individuals in the grey zone (20-22) separately from other restrictive confinement conditions (more time in cell than the scheduled lockdown times for general population – approximately 17 hours in cell) is encouraging. However, data reporting on restrictive confinement needs to differentiate more carefully between individuals in forms of segregation-lite versus those in restrictive confinement and segregation. Failure to do so will obscure conditions of confinement for a vulnerable segment of the population. The considerable variance in the conditions of restricted confinement (anywhere between 17-22 hours) will be obfuscated and in turn highly misleading.

To date, I have not seen a comprehensive plan that ensures meaningful oversight and risk management strategies that can overcome the present operational limitations and foreseeable challenges.

4.8 It is recommended that Ontario not track continuous segregation using precise minutes at the 22-hour mark, nor use such tracking to determine who is segregated for the purposes of administrative review.

4.9 It is recommended that all individuals not out of cell for more than 4 hours per 24-hour period be tracked and reviewed using the same documentation and oversight processes, with the overall aim of providing alternatives to restrictive confinement and to increase time out-of-cell. This standardized process must be clearly articulated in policies, procedures, directives, standing orders, and training curriculum.

Tracking meaningful social interaction

Schedule item B-17 notes that tracking restrictive confinement requires the ministry to “specifically identify any individuals who are physically or socially isolated for 22 hours or more per day, but not considered to be in segregation” (emphasis added). The CCLA decision, Bill C-83, as well as the new federal legislation enacted in response to these decisions also requires that time-out-of-cell be meaningful, and that perfunctory contact required for showers not be considered time-out-of-cell nor meaningful.

I raise these issues because Ontario needs to track not only the minutes an individual is out of cell, but the quality of that time. Ontario’s articulated principles for defining “meaningful social interaction” include that such time consist of face-to-face and direct human contact without physical barriers, empathetic exchange, and sustained social interaction.[81] However, without clear directions and policies, staff expressed confusion as to their operational requirements. For example, the ministry’s earlier training material delivered to the institutional management staff and segregation review committee members[82] suggested that ‘phone contact’ and ‘access to news and information about the outside world’ are to be considered ‘meaningful social interactions.’ These are important provisions but are not necessarily consistent with the ministry’s own established principles for the tracking of such time, as these can occur without meaningful interpersonal interaction. As such, while the provision of current events and phone calls can potentially mitigate some harms of isolation, these in and of themselves do not necessarily constitute meaningful social interaction.

The training offered to the correctional officers on this topic includes a number of examples for meaningful social interactions with repeated emphasis on documentation.[83] As discussed in other subsections of this report, there exist foreseeable counting issues that may undermine meaningful data collection, tracking, reporting, and oversight with a system tracking minutes.

The segregation clock: Defining a break in segregation

To meet the tracking requirements of Jahn as well as the decision in CCLA, there is a need to clearly specify when ‘a break in segregation’ occurs for the purposes of tracking.[84] Policy should specify when the segregation clock starts and stops for various oversight, mitigation, and accommodation requirements specified by the Order and CCLA.

Reports and Inquests[85] have consistently identified problems with how federal and Ontario provincial correctional administrations count and report on continuous and aggregate days in segregation for the purpose of oversight reviews and to produce meaningful data.[86] To resolve this issue, Ontario’s policy must clearly indicate when a segregation clock starts (day 1), stops, and resets (to day 1).

To date, the ministry’s documentation defines a break in segregation or the restart of the clock at day 1 as occurring after a 24-hour period wherein the segregated individual is out of cell for 2 hours and 1 minute, or greater.[87] In practice, this means that the ministry will restart the segregation clock counting continuous days when an individual is recorded to be out of cell for 121 minutes on one day. Technically, this plan will end a record of continuous segregation for an individual, subsequently avoiding the ‘independent’ segregation review by its DRDs and ADM-IS. This is contrary to the directions and obligations from the Order. Further, using the minute threshold within a 24-hour timeframe to determine segregation status does not satisfy the ongoing B-5 and B-15 requirements (also see Subsection B15, B16 and B17).

Aggregate tracking of days may capture more individuals. However, it is still subject to the same problem. The 120-minute threshold is still required for one day to be considered segregation. It is at this point unclear as to whether or not the calculation of aggregate days in segregation will use a consistent definition of 120 minutes or less out of cell. A consistent definition of what constitutes a day in segregation would be necessary for both aggregate and continuous tracking.

4.10 It is recommended that to satisfy its obligation under B-5, Ontario define ‘a break in segregation’ as at minimum, when the individual is out of cell for a minimum of four hours a day for 72 continuous hours.[88]

B8 and B9: Defining and tracking continuous and aggregate restrictive confinement

B8. Ontario shall seek the advice of the Independent Expert to develop a phased implementation plan to track continuous and aggregate placements of individuals in restrictive confinement, defined as any conditions of confinement that are more restrictive than general population but less restrictive than segregation, excluding circumstances of lockdown. The plan will include a method for specifically identifying any individuals who are physically or socially isolated for 22 hours or more per day, but are not otherwise considered to be in segregation. The plan will enable tracking of situations where individuals are transferred from such conditions of confinement in one facility to the same conditions in another facility as single, continuous placements. This plan will be provided to the Independent Reviewer for consideration in the Independent Reviewer's Final Report.

B9. In the event that ministry policy or the legislature adopts a definition of restrictive confinement that is as broad as or broader than the definition contained in [B-8], Ontario's obligations under Schedule "B" will be governed by the definition adopted by the legislature. Ontario will ensure that in meeting its obligations set out in Schedule "B", it captures, at a minimum, the circumstances described in [B-8].

Specific to B-8/9, Ontario is required to seek the advice of the Independent Expert to develop a phased implementation plan for tracking the continuous and aggregate placements of individuals in restrictive confinement.[89] Following consultation and based on an analysis of Ontario’s lockdown schedules, Ontario has to date agreed to define restrictive confinement as that falling between 17 and 22 hours of in-cell time per day. Ontario is planning to track restrictive confinement using the mobile tracking solution and CIP screens. However, to date, there has not been significant advancement on this front to demonstrate their compliance to B-8/9. Further, Ontario had not yet developed a consistent framework nor method of tracking RC, including the “individuals who are physically or socially isolated for 22 hours or more per day, but are not otherwise considered to be in segregation.” This is further complicated by the fact that scheduled time in cell varies by institution.

 It was not until recently that Ontario has all scheduled unit lockdown periods in OTIS as baseline. This information is to be used to determine whether individuals on those units are considered to be in conditions that constitute segregation (22 or more hours) or restrictive confinement (between 17 and 22 hours). When an individual is confined to their cell outside of these baseline periods, tracking of time in and out of cell on an individual basis is meant to determine if they meet segregation conditions. This means that the ministry could not determine whether individuals on certain units are considered to be in restrictive confinement or not. Doing so is foundational to begin designing a mechanism to track restrictive confinement.

Movement is currently captured through manual tracking when an individual is confined to their cell outside of normal periods of confinement for that unit, and that it will be tracked digitally using the mobile inmate tracking solution, once implemented. However, this is subject to the same tracking issues as ones identified above (see “Mobile Tracking Solution and its Limitations” and “The Grey Zone”). Although the mobile solution could work well in theory, the proposed minute-by-minute tracking seems operationally impracticable and may produce problematic data.[90] Even if the CIP screen reporting and tracking were to become accurate, having the capacity to track who is in cell for 17 to 22 hours per day does not alone satisfy my interim recommendation (#32) that restrictive confinement be administered and tracked similarly to segregation (including mandated reasons, the requirement to consider alternatives, and regular reviews intended to facilitate a return to general population at the earliest possible time). These limitations impair oversight and accountability. It is unclear as to whether or not those in restrictive confinement conditions will have an open CIP screen or any systemic method of tracking their condition of confinement that enable proactive response. In addition to its B-8/B-9 requirements, a robust restrictive confinement tracking system is required to fulfill the B-15 annual requirements to publicly report individual-level, human rights-data.

Ontario has yet to indicate the extent to which restrictive confinement procedures will be improved. As such, I cannot confirm if Ontario is compliant with its requirements under B-8/B-9.

4.11 As Ontario has yet to implement a restrictive confinement tracking system, it is recommended that the proposed Committee of Independent Experts undertake an evaluation of Ontario’s tracking of aggregate and continuous restrictive confinement placements soon after Ontario implements this tracking system. This evaluation should focus on Ontario’s response and remedies to the above-described limitations, occur by September 30, 2020, and be shared with the OHRC.

B-14: Oversight of prolonged segregation

B14. Ontario shall, by February 15, 2018, ensure that all reports to the minister and assistant deputy minister, as per [PIRs] #5 and #6, regarding individuals with mental illness in segregation will:

  • be provided to the minister and assistant deputy minister regardless of any delegation that would have otherwise occurred
  • detail the circumstances of each individual’s segregation placement
  • detail the undue hardship analysis undertaken, and set out the objective, real, direct evidence relied upon in determining no alternative placement was available for each individual

Current oversight procedures for prolonged segregation include reports on segregation placements reaching 30 consecutive and 60 aggregate days. Per PIR 5 and 6, these reports are sent to the minister (currently, the solicitor general), and the assistant deputy minister of Institutional Services (ADM-IS). My Interim Report commented on the lack of detail in these reports in detail, particularly that the 30-day consecutive and 60-day aggregate segregation reviews did not contain meaningful documentation regarding accommodation or undue hardship. Since that time, I have not been provided with evidence of improvement. The latest versions of the 30-day and 60-day reports (dated January 2019 and provided to me on November 10, 2019), continue to show that alternative housing placements are not adequately considered, nor are alternative management strategies documented. For example, some individuals with an ‘active mental health alert’ are not identified as having ‘Code-related needs,’ and remain in prolonged and continuous segregation. As such, Ontario has not complied with the requirements of this schedule item.

4.12 It is recommended that Ontario revise its policies and processes to clearly document decisions, considerations of alternatives, and undue hardship analysis undertaken during the initial segregation decision, and in all subsequent segregation reviews, including the 30- and 60-day reports. This recommendation is consistent with my interim recommendations #25 and #27.

4.13 It is recommended that Ontario revise its training and operational documents to communicate expectations around time out-of-cell, and that a comprehensive list of alternatives, strategies, incentives be provided, considered, and exhausted prior to placing individuals in segregation.

4.14 It is recommended that the Deputy ought to personally review the completeness and adequacy of any 30- and 60-day reports. The deputy’s review ought to include documentation about the steps to be taken to alter the conditions of confinement. This review must then be sent to the minister.

4.15 It is recommended that in the aim of accountability and oversight, an independent Prison Inspector General be appointed to review prolonged segregation files and reports (see joint recommendation 3.4). It is further recommended that an audit and compliance unit be established that directly to reports to the deputy minister.

The revised 5, 10, and 14 day segregation review process

The Consent Order requires the ministry to “review the circumstances of inmates who are placed in segregation at least once every five days” (PIR6). Recently, the Ontario Superior Court of Justice in CCLA also required that the placement of an individual[91] in administrative segregation be promptly and independently reviewed. Subsequently, the ministry made several changes to its segregation review processes[92] to satisfy these requirements. These changes include: 5- and 10-day reviews that will be conducted by deputy regional directors; as well as day 14 reviews (and all subsequent others) that will be conducted at the corporate-level by the assistant deputy minister-Institutional Services or their designate.[93] Since Ontario has not instituted a break in segregation that is qualitatively different from segregation itself, the segregation clock and the timing of these reviews may not occur at the intended 5, 10, and 14-day markers. Finally, without sufficient resources for restructuring, alternatives and associated frontline supports, these regional-level reviews will likely remain pro-forma exercises.[94]

4.16 It is recommended that at 6-month intervals, external compliance audits should be undertaken by the Committee of Independent Experts. These audits should assess Ontario’s consideration of alternatives to segregation and its duty to accommodate to the point of undue hardship. Findings from these audits should be submitted to the OHRC and be publicly posted as an ongoing Jahn compliance measure.

4.17 Consistent with the Independent Reviewer (see Section 3 of the Final Report) and with previous recommendations made by the Independent Reviewer of Ontario Corrections, and as enunciated in the CSRA, (legislation already passed by the legislature) it is recommended that Independent Chairpersons be appointed as the decision-makers for disciplinary segregation placements, and that Independent Hearing Officers be appointed to adjudicate administrative segregation placement beyond five days.[95] These appointed individuals ought not only be independent decision-makers, but be external to the ministry.

A9 and B10: Awareness of individuals with mental health disabilities

A9. Ontario shall, by February 12, 2018, refine the mental health alert system by introducing a new policy which will require mental health professionals to verify existing mental health alerts, remove inaccurate alerts and verify new mental health alerts when appropriate, on an ongoing basis as part of mental health screening upon admission and reassessment.

B10. Ontario shall ensure that individuals admitted to Ontario’s correctional institutions with mental health disabilities (including those at risk of suicide or self-harm) have mental health alerts and are identified in a manner consistent with protecting individuals’ personal health privacy rights. Ontario shall ensure that mental health disabilities are identified through: (i) mental health screening and reassessment; or (ii) because of being reported and confirmed. Ontario shall ensure that all mental health alerts under the refined mental health alert system are verified by mental health professionals. The presence of a mental health alert under the refined mental health alert system will act as an indicator that alternatives to segregation must be considered to the point of undue hardship on account of an individual’s mental health disability. …

b. By July 31, 2019, all individuals in custody in Ontario’s correctional institutions will have undergone mental health screening or reassessment consistent with that set out above and have any mental health alerts verified.

One of the overarching principles of the Order and the PIRs is to ensure that individuals with mental health concerns are not segregated unless the undue hardship threshold has been reached. This obligation requires the prompt and consistent recognition of those with mental health concerns by frontline staff including correctional and health care staff.

Defining mental illness

For consistency and proper oversight, Ontario has adopted a new working definition of mental illness, as well as defined the parameters of major mental illness as required by several Consent Order deliverables (including but not limited to PIR1-2, PIR4-8, A9-10, and B15). A standardized operational definition of these terms was approved on November 28, 2019.[96] There are, however, considerable inconsistencies between the requirements of the consent order deliverables on the identification, accommodation, and reporting requirements as they relate to mental health concerns. Several operational and policy challenges in identifying those with extant or onset mental illness remain:

  • most mental health screening occurs at admission,[97] yet the onset of mental health issues can occur at any time
  • there is a lack of clarity as to what constitutes mental illness and how it should be identified
  • shortages of mental health nurses working in Ontario prisons
  • limited access to physicians and psychiatrists in custody, which is required for a serious mental health designation

The ministry accepts that formal definitions of mental health concerns and serious[98] mental health concerns are a fundamental requirement of compliance with the Order.[99] Some necessary policy changes are occurring—albeit slowly.[100] Significant changes relating to corrections mental health and addictions strategy are planned. Earlier, Ontario had indicated that it plans to update related policies and procedures between December 2019 and February 2020, and training for frontline health care and correctional staff to occur in March and April 2020.[101] On February 20, 2020, I was informed that the timelines for the implementation of the definitions of mental illness and serious mental illness are being revised, and that updates to policies and procedures and training are anticipated to occur within the 2020/21 fiscal year. As these proposed changes have yet to be implemented, neither I nor the Independent Reviewer can confirm that proposals for revised policies, procedures, and strategies will result in operational compliance with the terms of the order.

Communication of mental health concerns: Mental health alerts

As part of its requirement to be aware of those with mental health concerns, the order requires that Ontario refine its mental health alert system. A-9 and B-10 of the Order detail a phased implementation plan. Verified mental health alerts are meant to serve as “an indicator that alternatives to segregation must be considered to the point of undue hardship” (B-10). The ministry has revised its Recording Health Care Information in OTIS Alerts policy. The revised policy requires health care staff to ensure that mental health and suicide risk alerts are verified immediately upon alerts being entered into OTIS, or within 48 hours of the alerts being entered. Despite this policy revision, numerous issues remain that prevent compliance with the requirements of the order, including whether: alerts are actually verified; line staff can expeditiously access the electronic records containing these verifications; and, the fact that the alerts do not currently distinguish between mental or serious mental illness.

The compliance audit conducted in July 2019 showed that institutional rates of mental health alert compliance varied across the province. According to its July 11, 2019 data, only 7 of 24 institutions[102] fully verified their mental health or suicide alerts, with one institution’s verification rate as low as low as 31%. While about 12.4% of the alerts (246 of 1,989) were yet to be verified province-wide, more than a quarter (28.3%) of suicide-related alerts were not verified. This rate of unverified alerts includes those who had previously attempted suicide, reported suicide threats or ideation, and/or were placed on suicide watch (Table 11).

Table 11. Mental health and suicide risk alerts verification (on July 11, 2019)
Presence of alert(s) Female Male Total
n % parent row total n % parent row total n % parent row total
MH alert 236 80.0% 1,283 75.7% 1,519 76.4%
Verified 217 91.9% 1,189 92.7% 1,406 92.6%
Unverified 19 8.1% 94 7.3% 113 7.4%
Suicide risk alert 59 20.0% 411 24.3% 470 23.6%
Verified 40 67.8% 297 72.3% 337 71.7%
Unverified 19 32.2% 114 27.7% 133 28.3%
Total 295 100.0% 1,694 100.0% 1,989 100.0%

According to the summary deck of the Winter 2019 mental health audit,[103] the verification rate did not improve since July 11, 2019. Only about 77% (1,381 of 1,781) of all mental health alerts files on December 12, 2019 were verified province-wide, with some regions worse than others (e.g., 67% in the Northern Region and 63% in the Central Region).[104]

Alerts are recorded and stored in the OTIS to facilitate seamless record keeping and communication among all correctional and health care staff. In practice however, this is not the case. Frontline correctional officers often do not have access to technology and/or time during their shift to access OTIS . Instead, they often rely on paperwork containing OTIS information that was printed at admission, which is sometimes inconsistently updated. Although the ministry is exploring a Mobile Inmate Tracking solution that will provide data to identify when a CIP record is required for the management and oversight of segregation, it is unclear how the ministry will connect the verification processes to segregation decisions.

4.18 It is recommended that the Committee of Independent Experts review Ontario’s processes around the verification of mental health, suicide, and self-injury related alerts, as well as how this information is communicated between staff. This should occur in the Fall of 2020, following the implementation of recently approved mental health definitions, and every six months thereafter. The results of these ongoing reviews should be shared with the OHRC and publicly posted as a Jahn compliance measure.

PIR4 and B11: Inter-professional teams and care plans

PIR4. For those inmates who screen positive for mental health issues…a physician will develop an appropriate [care] plan. [It] may be developed in consultation with mental health professionals. [It] will be: accessible to all inter-professional team members involved in the case; identify the issues and goals, including addressing behavioural issues, illness, etc.; outline interventions; identify who is responsible for treatment and interventions; and set out how the treatment plan will be implemented. The ministry agrees that amendments to or variance from the treatment plan can only be made in consultation with a primary care physician or a psychiatrist, as appropriate.

Those inmates with a major mental illness will be referred as soon as possible to a psychiatrist, who will develop an appropriate [care] plan… . The ministry agrees that amendments to or variance from the treatment plan for inmates with a major mental illness can only be made by a psychiatrist… (emphasis added)

...The program personnel engaged in discharge planning will also be advised at the earliest opportunity to begin planning for the inmate's return to the community.

B11. Ontario shall ensure that the following timelines are formalized in policy, and shall make all reasonable efforts to ensure substantial compliance with them on a system-wide basis, by July 31, 2018:

c. [Care] Plans developed in accordance with [PIR] #4 shall be established within 48 hours of the appointment with the assessing physician or psychiatrist, subject to the discretion of the assessing physician or psychiatrist (emphasis added)

The Order requires the ministry to provide tailored care and support for individuals known to have mental health issues. Care plans are the mechanism through which this is meant to be delivered.[105] The purpose of a care plan is to ensure consistent and integrated care strategy for individuals who require a form of specialized care throughout their incarceration. This should not include any confidential information that is subject to PHIPA such as diagnoses or prescribed medications. However, information such as observations, symptoms, side effects of medicine and an individual’s compliance or non-compliance with medication should be shared where relevant.

My Interim Report outlined the results of the A-6 sample review and the B-11 compliance review on the ministry’s use of care plans. This data showed that care plans are not in place for the majority of those requiring them. When present, the functional utility of the care plans was inconsistent. For example, many frontline staff reported that the information contained in care plans is inadequate, leaving them without crucial information about how to properly manage highly distressed individuals or those requiring Code-related accommodation. To date, I have not been provided with data indicating that these issues have been remedied. As such, I, like the Independent Reviewer,[106] find Ontario to be non-compliant with the requirement to use care plans to provide individualized and appropriate care to individuals with identified mental illness.

Legal requirements vs. directions and policies

My Interim Report outlined several issues relating to the existing directions and policies on care plans to satisfy the requirements of the PIR4. I had recommended that “the ministry should establish clear policy standards regarding: the timeframe for a care plan; who qualifies for such plans; and, which staff shall develop, communicate, and execute the plans.” I am aware that the ministry has since drafted an Inmate Care Plan Guidance Document and is making some revision to its Placement of Special Management Inmates (PSMI) policy. I have been asked to not comment on the specifics of these drafts.

As the ministry continues to make revisions to these and other documents, special attention should be paid to the following: (a) PIR4 explicitly requires the ministry to establish care plans for all individuals with a general and/or serious mental illness – regardless of their conditions or locations of confinement; (b) it stipulates that physician-developed care plans are required for those with general mental illness, and that psychiatrist-developed care plans are mandatory for those with serious mental illness; and (c) care plans ought to “be accessible to all inter-professional team members.”

To fulfill these requirements, the ministry should establish clarity between medical ‘treatment plans’ and frontline ‘care plans.’ The new policy must ensure to provide clear and consistent province-wide guidelines and instructions for institutional staff on the use and administration of the care plans. This must include by whom, when, and how the care plans are to be initiated, developed, accessed, revised, managed, and overseen. In addition to the roles of physicians and psychiatrists for care plan developments, it must clarify roles of other clinical staff (e.g. nurses, social workers and other health care professionals), correctional officers, program staff (e.g. classification officer, rehabilitative officer, etc.), NILOs, Elders, providers of religious or spiritual services, and others who might not be qualified or adequately trained.[107] Appropriate resources must be allocated to ensure province-wide compliance and to prevent any unjustifiable variations across institutions.

4.19 It is recommended that Ontario revise its policies, procedures, and guidelines to be consistent with the requirements under PIR4. To do so, Ontario should clarify that a care plan must be developed by a physician or a psychiatrist for those with mental illness and serious mental illness, respectively. This should be followed by institution-wide training on care plans.[108]

4.20 It is recommended that Ontario limit the discretion of institutions to operationalize policy as a means of ensuring consistent processes for the development of a care plan. In the event that medical resources on site are limited, Ontario should make use of ‘telehealth’ technology to remotely access the appropriate expertise.[109]

Privacy concerns, access, and the use of care plans

The Order specifically notes that care plans ought to “be accessible to all inter-professional team members.” This is intended to help guide all institutional staff, especially frontline correctional officers who have the most contact with individuals. However, there is no clarity about whether and to what extent the frontline correctional officers should be permitted to take part as a member of the ‘inter-professional team.’ This ambiguity has prevented them from being more engaged and proactive caregivers to accommodate those with mental health concerns.  

How Ontario interprets privacy law continues to impede operational compliance with PIR4. There remains a reluctance to share crucial details and management strategies amongst inter-professional team members, and with frontline officers. The Independent Reviewer provides an extensive analysis of the ministry’s interpretation of the privacy law in Section 7 of report. Similarly, I have found the lack of information sharing and communication to be consistent across institutions—a practice that will detrimentally impact Ontario’s ability to provide human rights-based accommodations.

When care plans exist, access to these documents remains a challenge for frontline correctional officers. Currently, the exchange of crucial information related to the management of mentally ill individuals is verbal. The most up-to-date physical copies of the care plans are not always available; this is complicated by uneven access to computers with the electronic versions. To address this issue, the ministry is proposing technology updates in the Spring and Summer of 2020. These updates do not appear to address concerns line staff have raised around time to use and access to computers.

4.21 It is recommended that Ontario provide clear policy direction on the interpretation of privacy law and confidentiality and develop standards and expectations to guide communication between health and security staff, as well as provide necessary equipment and access.[110]

4.22 It is recommended that the availability and completeness of the care plans ought to be regularly evaluated when the Independent Committee of Experts perform health care audits. These results should be shared with the OHRC and publicly posted as a Jahn compliance measure.

A11 and B20: Policy and oversight (this issue is covered in the joint statement with the Independent Reviewer in Section 3)

A11. Ontario shall establish internal mechanisms to monitor the implementation of and ongoing compliance with the terms of the Jahn settlement agreements and the terms of this consent order.

B20. Ontario shall establish internal mechanisms to monitor the implementation of and ongoing compliance with the terms of Schedule “B”.

Ontario is required to establish internal mechanisms for monitoring of their ongoing compliance with the terms of the Order. An effective accountability and oversight system should promote systemic changes so that segregation is phased out in the long term. In the shortterm, this system must ensure that segregation is not used for those with identified mental health conditions, nor that its use is discriminatory on the basis of Code-related factors. An effective oversight system is then premised on an in-depth examination of patterns and drivers of segregation.

The ministry has established its Oversight and Accountability Unit to ensure cross-divisional alignment with the requirements of the Order. It is designed to focus on compliance audits, developing mitigation strategies for potential and existing risks, evaluating compliance with various policies and procedures, and supporting inter-divisional partners to ensure changes occur in a manner consistent with the terms of the Order. While these components are essential to establishing an effective accountability and oversight structure, the Unit’s oversight capacity is fundamentally limited.

The scope and power of this Unit is severely limited and siloed. The current reporting structure of the Unit (i.e. reporting to a branch under ADM Operational Support) limits cross-divisional alignment with the requirements of the Order. Furthermore, its oversight role is constrained to conducting baseline and compliance audits, with little ability to address the systemic or institutional-based concerns.

Relevant to policy change overall, Ontario’s efforts to satisfy the requirements of the Order have occurred in a policy vacuum. Many of the requirements of the Order have been neglected because the development of new and necessary policy was constrained by concerns about what institutions could comply with in practice, rather than focusing on what is required by the Order and recent court decisions clearly limiting how and when administrative segregation can be used.

4.23 It is recommended that the ministry establish a unit or branch under the Deputy Solicitor General’s Office that is exclusively focused on compliance with the Order. This unit or branch must have an on-going and direct line of communication with the frontline staff and individuals (anonymous or otherwise) so that institution specific concerns can be identified, and province-wide operational compliance can be reached. The ministry’s policies that govern correctional services as well as the newly established unit or branch’s audit strategy and outcomes must be publicly posted for increased transparency.

4.24 It is recommended that Ontario analyze its staffing needs for segregation, restrictive confinement, and specialized care placements. Careful recruitment, suitable selection, and proper training are needed. These posts should be filled based on competency and expression of interest. Also, Ontario must provide sufficient and interactive training for frontline officers and health care staff so they can safely and securely perform their responsibilities. Finally, Ontario should provide ongoing and resourced training on human rights law and provision of care for those with Code-related needs.

4.25 It is recommended that for all recent policy changes that relate to the Order, Ontario should establish firm time limits for when full operational compliance must be reached. I recommend that compliance audit plans and results be shared with the OHRC.

IV. Conclusion

The Independent Reviewer agreed to extend the deadlines for my report and that of the Independent Reviewer. This was to ensure the ministry had the opportunity to: (a) produce and implement substantive changes required for full compliance to the Order and (b) provide supporting and/or explanatory documents for consideration as evidence of compliance. However, of the 39 deliverables contained in the ministry’s tracker all remain pending. Most of these relate to my 35 interim recommendations for Ontario’s complying with the Order (as of August 23, 2019). I am consequently of the view that to date Ontario is not yet compliant with the requirements outlined in the Order.

More broadly, I remain of the opinion that Ontario should undertake an analysis of the drivers of segregation and implement the recommendations in my Interim Report which remain salient. An analysis of its drivers to segregation can provide Ontario with a clear and holistic understanding of the causes of segregation and will assist in the elimination of administrative segregation. Operational changes required under Jahn will likely be ineffective and unsustainable without a clear understanding of how segregation operates within Ontario institutions. Following this, it will be possible to develop and institute a coherent, integrated approach to policy, followed by a phased change management process to align institutions with new policy.

As segregation can lead to the onset of previously undetected mental illness and can cause irreversible psychological damage, an evidence-based and risk adverse approach would be to eliminate the use of segregation for all persons in custody. This would also be consistent with the requirement to accommodate based on Code-related factors, as women and Indigenous persons are shown to experience the harms of segregation in a heightened and more detrimental manner (see Interim Report Appendix III).

The ministry’s future plans for compliance with Jahn compliance are important and laudable, but do not replace the requirement for the schedule items to be implemented in a timely manner and in a timeframe that allows the Independent Reviewer and me to assess. Thus, I agree with the Independent Reviewer who notes that Ontario has made good efforts to meet various deadlines attached to the deliverables of the Consent Order. Notwithstanding the commendable efforts of ministry staff, it is my conclusion that to date, Ontario is not compliant with the terms of the Order, including the initial PIRs.

V. Bibliography

British Columbia Civil Liberties Association v. Canada (Attorney General), 2018 BCCA 282.

Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 243.

Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA​ 342.Carlisle, John, Verdict of Coroner’s Jury - Coroner’s Inquest Touching the Death of Ashley Smith (Toronto: Coroner for Ontario, 2013).

Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, 2017 ONSC 7491.

Correctional Services and Reintegration Act, 2018, S.O. 2018, c. 6, Sched. 2.

Correctional Services Recruitment and Training Centre​, “Independent Segregation Review and Oversight,” (PowerPoint deck, Ministry of the Solicitor General, Ontario, September 2019).

Independent Advisor on Corrections, Segregation in Ontario: Independent Review of Ontario Corrections (Toronto: Queen’s Printer for Ontario, 2017).

Jahn v. Ontario (Community Safety and Correctional Services), Public Interest Remedies, (HRTO, September 24, 2013).

Ministry of Community Safety and Correctional Services, The Letter and Terms of Reference for the Independent Expert, March 15, 2018.

Ministry of the Solicitor General, “Implementation Plan for the Revised Definitions of Mental Illness and Serious Mental Illness (Version 2.0)” (PowerPoint deck, shared on November 10, 2019).

———. “Inmate Care Plan Guidance Document v.11,” (Internal document, September 30, 2019).

———. “Inmate Care Plan Template v​3 – Draft,” (Internal document, shared on November 10, 2019).

———. “Jahn Consent Order Narrative,” (Internal document, shared on November 10, 2019).

———. "The Placement of Special Management Inmates Policy,” December 17, 2018

———. “The Placement of Special Management Inmates Policy draft, Version 6,” November 7, 2019.

———. “Undue Hardship: Providing Accommodation Short of Undue Hardship” (July 30, 2015).

Modernization and Strategic Policy, Research and Innovation Division, “Update on Ontario’s Implementation Plan for the Independent Review and Oversight of Administrative Segregation” (PowerPoint deck, Ministry of the Solicitor General, Ontario, September 30, 2019).

Office of the Correctional Investigator, A Preventable Death (Ottawa: Office of the Correctional Investigator, 2008).

Ombudsman Ontario, Out of Oversight, Out of Mind: Investigation into how the Ministry of Community Safety and Correctional Services Tracks the Admission and Placement of Segregated Inmates, and the Adequacy and Effectiveness of the Review Process for Such Placements. Ontario: Office of the Ombudsman, 2017.

Ontario Human Rights Commission v. Ontario (Community Safety and Correctional Services), 2018 HRTO 60.

Operational Support Division, “Audit of Mental Health Screening Requirements” (PowerPoint deck, Ministry of the Solicitor General, Ontario, January 6, 2020).

R. v. Capay, 2019 ONSC 535.

Appendix I: Overview of documented negative effects of segregation

The following summarizes documented negative effects of segregation on the mental health and behaviours of prisoners held in conditions of short and/or prolonged segregation:

  • Prisoners experience the isolated conditions of solitary confinement, sensory deprivation, and constant ‘lockdown’ status very negatively and stressfully.[111]
  • Prisoners leave supermax ‘deeply traumatized’ and ‘socially disabled.’[112]
  • Segregated prisoners who are already experiencing mental health problems, have a history of suicide attempts, and have high levels of hopelessness, are more likely to report suicidal ideation.[113]
  • Long-term segregation may lead to the development of previously undetected psychiatric symptoms.[114]
  • Segregation appears to be a significant risk factor for the development of psychiatric symptoms including depression, suicidal ideation,[115] as well as psychiatric symptoms generally.[116]
  • Antipsychotic medication loses some effectiveness on people in segregation.[117]
  • Disciplinary segregation can lead to increased symptoms of unremitting and irresistible impulses, as well as increased thoughts, feelings, or actions of anger (including aggression, irritability, and rage).[118]
  • Prisoners who experience isolation report experiencing anger, hatred, bitterness, boredom, stress, loss of the sense of reality, suicidal thoughts, trouble sleeping, impaired concentration, confusion, depression, and hallucinations.[119]
  • Prolonged isolation may negatively affect women’s ability to cope with incarceration.[120]
  • Segregation can erode federally sentenced women’s self-worth, re-traumatizes them, and contributes to a range of mental health issues.[121]
  • Segregation has repeatedly been linked to appetite and sleep problems, anxiety, panic, rage, loss of control, depersonalization, paranoia, hallucinations, self-mutilation, increased rates of suicide and self-harm, an increased level of violence against others, and higher rates of frustration.[122]
  • Isolation can produce emotional damage, declines in mental functioning, depersonalization, hallucination, and delusion.[123]
  • Segregation may lead to cognitive-behavioural problems among prisoners: difficulty solving interpersonal problems, unawareness of the consequences of their actions, inability to make positive choices, and a tendency to display disregard for others as a result of being socially unaware and impulsive.[124]
  • Segregation can produce a vicious cycle where a prisoner’s extreme behaviour and ‘acting out’ leads to an increase in physical altercations with prison staff, which ultimately increases the level of frustration and violence engaged in by both parties.[125]
  • Prisoners who are denied normal social contact with others on a long-term basis experience heightened levels of anxiety, increased risk of panic attacks, and a sense of impending emotional breakdown.[126]
  • Prisoners housed in segregation may lose the ability to limit and control their own behaviour, relying instead on the prison structure to manage their conduct. Others in extreme forms of restricted isolation may become severely apathetic and lethargic resulting in an inability to initiate behavior.[127]
  • Mentally ill prisoners are more likely than other prisoners to be sent to solitary confinement. Several studies have estimated that about one-third of prisoners in solitary confinement are mentally ill.[128]
 

Appendix II: Select Materials Shared with Ontario

Carel, Rain and Ryan Quirk. “Under New Influences: Changing Behaviour with Individualized Management Plans,” Corrections Today (May/June 2016).

Glowa-Kollisch, Sarah et al., “From Punishment to Treatment: The ‘Clinical Alternative to Punitive Segregation’ (CAPS) Program in New York City Jails,” International Journal of Environmental Research and Public Health 13, no. 2 (February 2, 2016): 182.

Hannah-Moffat, Kelly. 2013. Report to Coroner Investigating the Death of Ashley Smith at Grand Valley Institution for Women.

———.2016. Expert Report to the British Columbia Civil Liberties Association and the John Howard Society of Canada v. Attorney General of Canada, SCBC Vancouver Registry No. S-150415.

Independent Review of Ontario Corrections. 2018. Institutional Violence in Ontario: Interim Report. Toronto: Queen’s Printer for Ontario.

Krupers, Terry. “Treating Those Excluded from the SHU,” Correctional Mental Health Report 12, no. 4 (2010): 49-54.

Penal Reform International and the Essex Human Rights Centre. 2017. Essex Paper 3: Initial Guidance on the Interpretation and Implementation of the UN Nelson Mandela Rules. London, UK.

Quirk, Ryan. “Aligning Prison Classification with Treatment Needs,” Correctional Mental Health Report 14, no. 4 (November/December 2015): 49-64.

———. “Calculated Risks with Inmates Housed in Restrictive Housing,” Correctional Law Reporter XXVIII, no. 1 (June/July 2016): 1-16.

Standing Committee on Public Safety and National Security. 2018. Indigenous People in the Federal Correctional System: Report of the Standing Committee. Ottawa: House of Commons, Parliament of Canada, 42nd Parliament, 1st Session.

Standing Committee on the Status of Women. 2018. A Call to Action: Reconciliation with Indigenous Women in the Federal Justice and Correctional Systems: Report of the Standing Committee on the Status of Women. Ottawa: House of Commons, Parliament of Cana, 42nd Parliament, 1st Session.

United Nations Office on Drugs and Crime. 2008. Handbook for Prison Managers and Policymakers on Women and Imprisonment. New York: Criminal Justice Handbook Series.

———. 2009. Handbook on Prisoners with Special Needs. New York: Criminal Justice Handbook Series.

*Vera Institute of Justice, Center on Sentencing and Corrections. Safe Alternatives to Segregation Initiative, Resource Centre. https://www.safealternativestosegregation.org/

Policies and documents from select jurisdictions

State of Colorado, Colorado Department of Corrections. Behaviour Management Plans. Regulation 650-05. (April 1, 2017).

———. Lesson Plan Cover Page: Self Injurious Behavior. #01, NSIB04.

———. Lesson Plan Cover Page: Trauma Informed Practice. #01, ETIC04.

———. Lesson Plan Cover Page: Mental Health First Aid. #01, NMHF08.

———. Offender Group Living: Incentive Living Program. Regulation 650-01 (August 1, 2018).

———. Offender Group Living: Protective Custody. Regulation 650-02 (November 1, 2017).

———. Offender Group Living: Residential Treatment Programs for Offenders with Mental Illness and Intellectual and Developmental Needs. Regulation 650-04 (February 1, 2018).

———. Offender Group Living: Restrictive Housing. Regulation 650-03 (April 15, 2018).

———. Offender Health Services: Emergency and Involuntary Psychotropic Medication Administration. Regulation 700-23 (July 15, 2017).

———. Offender Health Services: Mental Health Scope of Service. Regulation 700-03 (July 1, 2018).

———. Offender Records: Health Records/Confidentiality/Access. Regulation 950-02 (May 15, 2016).

———. Self Injurious Behavior Unit Training Handout.

Washington State, Department of Corrections. Behaviour and Programming Plan (BPP). DOC 21-472 (May 11, 2016).

———. Conditions of Confinement – Mental Health. 13-393, DOC 630.500, DOC 630.550 (January 20, 2017).

———. Disruptive Hygiene Behaviour Response Protocol. DOC 320.255 Attachment 1 (October 2016).

———. Functional Analysis Tracking Sheet for Custody, Classification, Nursing, and Mental Health.

———. Individual Behaviour Management Plan. DOC 13-069 (March 3, 2014).

———. Restrictive Housing, Policy – Prison: Offender/Spanish Manuals, DOC 320.255, (October 10, 2016).

———. Restrictive/Secured Housing Unit Conditions of Confinement Modification Approval. DOC 21-632 (October 03, 2016).

———. Security Enhancement Plan, DOC 21-638 (August 2, 2017).

Appendix III: Reproduction of interim executive summary

Independent Expert executive summary

The full-length version of my Submission evaluates Ontario’s progress and compliance to the Jahn Consent Order (hereafter the Order) up to December 31, 2018. Compliance to the Order is evaluated both in terms of the spirit and principles of the Order, as well as specific schedule items. The 36 recommendations are based on my understanding of the processes and outcomes thorough consultations with various staff members at the corporate and institutional levels, and the corrections Ministry Employer-Employee Relations Committee (MERC), site visits, and table discussions with civilian stakeholders. Overall, Ontario has demonstrated a commitment to meeting the deadlines specified in the Order for various schedule items and to improving its tracking of segregation and restrictive confinement. However, it is my opinion that the data reviews herein addressed were in many cases premature as Ontario is undertaking a variety of reforms to policies and procedures. Ontario’s largely paper-based records systems also impeded data collection and integrity audits. Institutions vary in their efforts to reduce segregation. There remain significant confusion and inconsistencies among ministry divisions regarding adherence to the intent, principles, and substance of the Order, impediments which to date have hindered the full implementation of the terms of the Order.

Principles of the Consent Order

As stipulated in the Order, Ontario and the Ontario Human Rights Commission (OHRC) agreed that segregation should be used only as a measure of last resort. The available data suggest, however, that segregation remains a routine approach to population management, including for those with identified mental health concerns. Women comprised 12.4% of those subjected to segregation, whereas men comprised 87.6% of those placed in segregation (Ontario). The 30-day report for September 2018 shows that for those who had segregation placements lasting 30 or more days, a higher proportion of female inmates (80%) were reported as having identified mental health concerns, than were men (60%). These rates of individuals with identified mental health concerns in conditions of prolonged segregation are troubling.

The United Nations has defined prolonged segregation as that exceeding 15 days; it should be noted that persons can experience psychological damage immediately upon placement to segregation and that this damage can be irreversible well-before the 15-day threshold. How individuals will react to segregation is not predictable, and can be related to histories of abuse, trauma, violence, gender, and pre-existing mental health conditions. For these reasons, it is not possible to accurately predict who will be

Ontario uses an OTIS-based (Offender Tracking Information System) mental health alert system to alert staff of required precautions, behaviour requiring monitoring, and/or services to be provided. This may refer to various signs and symptoms of mental health conditions and behavioural tendencies and is not limited to a clinical diagnosis. Any staff member who is involved with the inmate, including a community and institutional staff, may record or request that a mental health alert be recorded in OTIS. Mental health alerts that have not been confirmed by a healthcare professional remain as unverified alerts in the OTIS alert screen.

detrimentally affected by isolation, nor at what time point. Further, the use of segregation presents a public safety concern as remanded prisoners held in segregation can be released without discharge planning or having transitioned through less restrictive conditions of confinement. Various jurisdictions have not only eliminated the use of administrative solitary confinement, but for public safety reasons, now prohibit the direct release of someone in solitary confinement directly to the community. I have shared materials related to best practices with Ontario, yet I am not confident that these materials are being meaningfully considered or used to inform evidenced-based reforms to segregation practices to limit its use.

Disciplinary segregation

I remain concerned about the use of disciplinary segregation for those with identified mental health concerns. Given that those awaiting the adjudication of an institutional misconduct will be held in administrative segregation, it is not clear how the Order’s requirement to not segregate those with identified mental health needs will be met in this circumstance. For example, 26.3% of those segregated for an alleged misconduct, and 28.6% of those in close confinement during the month of September 2018, were identified as having mental health needs. Although the revised Discipline and Misconduct (DM) policy was implemented on July 6, 2018, Ontario has not turned its attention to how inmates with mental illness who are accused and/or found guilty of institutional misconducts will be diverted from segregation.

Alternative housing and restrictive confinement

As stipulated in schedule item B-7, Ontario was to introduce a policy standardizing alternative housing by July 6, 2018 (revised), with these alternative housing placements applied across institutions by December 31, 2018. To my knowledge, the revised Placement of Special Management Inmates (PSMI) policy represents the culmination of Ontario’s response to B-7. It contains four alternative placement categories for inmates (behavioural care, managed clinical care, stabilization, and supportive care) who cannot be housed in general population.

Overall, the PSMI requires revision to ensure clearer parameters and standards to facilitate Ontario’s operational compliance with the requirements of the Order. Similar to the Independent Reviewer, I am troubled by the absence of review and oversight mechanisms for its four newly introduced placement types. Behavioural Care placements, for example, could become de-facto segregation as difficult to manage prisoners with mental health alerts might be diverted from administrative segregation as per the PSMI. Such placements remain permissible and lack robust admittance, release, and oversight provisions. The slippage between segregation and specialized care remains possible because Ontario has not set hard time-out-of-cell parameters for specialized care that exceed the two-hour threshold marking segregation. This increases the likelihood that inmates will experience these placements as the same as segregation; from an operational standpoint these placements will also be difficult to track.

Similarly, Ontario has recently defined “restrictive confinement” as conditions of confinement that are less restrictive than segregation, yet more restrictive than those in general population. This definition, which is consistent with that set out in the Order, is contained the PSMI policy dated December 17, 2018. However, provisions for its tracking, monitoring, and reviewing are yet to be not elaborated despite the Order’s clear intent to prevent the systemic slippage between restrictive confinement and segregation of vulnerable individuals.

The PSMI maintains the centrality of administrative segregation to prison management, and the segregation of those with identified mental health concerns remains permissible to the point of undue hardship. Despite this caveat, operationally Ontario does not have a process for consistently conducting and documenting the undue hardship analyses. Therefore, I remain concerned that this provision will have a negligible effect on the Province’s use of segregation.

Mental illness

Given the centrality of mental illness and disability to the Order, the identification and appropriate management of those with mental health concerns are crucial to Ontario’s human rights-based requirements. The Order also requires a clear and consistent working definition of ‘major mental illness.’ At the time of my report, Ontario did not have a clear, consistent, or operationalizable definition of mental illness. To date, I remain unclear as to whether Ontario has provided a definition and/or guidance to the field regarding what constitutes major mental illness or how to accommodate and manage those with this condition. Both the recently revised PSMI policy (December 17, 2018) and the Mental Health Services policy ([MHS], July 31, 2018) do not define major mental illness.

Overall, these gaps have caused confusion and can have the effect of preventing meaningful communication for nurses and clinical staff in institutions; for correctional staff who do not receive sufficient information to appropriately manage inmates with mental health concerns; for those at regional, corporate, and ministerial levels who need a clear picture of the needs of populations in various institutions; and for data integrity purposes because it is impossible to understand with clarity how and why segregation is used for those with identified mental health concerns.

I have advised Ontario to adopt a clearer working definition of mental illness and to define the parameters surrounding major mental illness. This is necessary to ensure consistent and appropriate management and treatment of those experiencing mental health concerns, and to ensure proper data collection and monitoring of compliance. Mental health is a fluid and dynamic issue. Therefore, the absence of documented processes for the ongoing monitoring and intervention of mental health is concerning.

Based on my involvement in the data review processes, it became also evident that mental health alerts are not accurate indicators (even when verified) of current mental health needs. Policies and procedures surrounding the activation and expiration of alerts continue to be applied inconsistently, and there is little communication between community services and corrections. This impedes continuity of care. Inmates often have multiple active alerts, some of which are entered by community services and have not been verified by correctional mental health staff. Consequently, the ministry’s reliance on the presence of mental health alerts and treatment plans as indicators of the need to accommodate Code-related factors has remained inadequate. The ministry is reforming its alert system and implementing processes for verifying all alerts, as required by the Order.

Based on my consultations with various ministry representatives, further consultation is needed on mental health screening tools. I remain concerned about the use of the Brief Jail Mental Health Screen. There has been considerable attention to the use of assessment tools for Indigenous persons, Black persons, and women. Some academic literature has shown that tools can have a discriminatory impact upon women and non-white persons. Given the high rates of mental illness amongst criminalized persons, mental health screening, assessment, and treatment are paramount to the spirit of the Order, effective corrections, and public safety. Ontario should undertake a culturally-informed and gender-based evaluation of how its current mental health screening tools are being used in its institutions, and familiarize itself with the considerable literature on gender-responsive classification, screening/assessment, as well as best practices.

Gender-responsive corrections

An overarching concern remains about the marginalization of gender-responsivity in Ontario’s response to the Order. A considerable body of literature produced over the last three decades about women’s corrections exists. Research in this field consistently shows that because women differ from men in their reasons for offending, their experiences of trauma and/or abuse, and institutional adjustment in prison settings; it is discriminatory, let alone ineffective, to manage women in criminal justice systems designed for men. From a human rights perspective, gender-responsivity is an issue of substantive equality.

Gender responsiveness (GR) requires an understanding of, and responsiveness to, social and cultural positions, histories and experiences of women in assessment, programming, and service delivery. Additionally, GR necessitates an intersectional understanding of how gender inequalities are compounded for certain groups of women (because of their age, ethnicity, race, mental health/disability, etc.). GR requires jurisdictions and service providers to identify and meaningfully address any intersectional barriers that arise form women who are also members of other equity groups (i.e. Indigenous women, black women, women with mental health concerns, and those with precarious immigration statuses). In the context of incarceration, gender responsivity requires more than an acknowledgement of gender. GR requires that correctional systems provide evidence-based programmes and services that are informed by a contextualized understanding of women’s experiences.

Thus far, the ministry has not demonstrated an awareness of the gender-responsivity literature or best practice, nor have they meaningfully engaged my advice on this issue. Policies and practices list gender as an axis of identity, but do not contain gender-responsive approaches as per my advice. This is a significant oversight that requires remedy in order for Ontario to meet its human rights obligations.

Care plans

Following the 2013 Jahn Settlement, Ontario implemented care plans as required by Public Interest Remedy (PIR) 4. As per this PIR, Ontario is required to develop an appropriate management plan for inmates who screen positive for mental health issues via a gender-responsive and evidence-based mental health screening tool. Although the initial settlement refers “treatment plan,” I have been advised that Ontario has responded to its obligation by developing a care plan template consistent with its requirements under PIR 4. Care plans include fields for an individual’s management plan, intervention strategies, referral information, and discharge planning. Despite the clear requirement stipulated in the Order, Care plans are seldom used, and when extant, are insufficiently developed.

PIR 4 and the current care plan form indicate that the details collected are meant to facilitate the proper care and the accommodation of Code-protected factors for inmates who suffer from mental illnesses. Information contained in the care plans is meant to guide the work of front-line staff who are most frequently in contact with inmates including the security staff. The ministry’s interpretations of privacy law, however, seemingly impede its operational compliance to the requirements of PIR 4. Notably, there exists significant reluctance to share pertinent information and management strategies—even when confidentiality around diagnosis and medication are maintained—amongst inter-professional team based on privacy concerns. This gap can have the effect of preventing human rights-based accommodations.

I have shared materials from other jurisdictions on best practices for managing those with mental illness in a manner that upholds human rights and provides appropriate accommodation; these materials have also included policy, templates and operational instructions related to behaviour management plans from other jurisdictions. Ontario’s interpretation of privacy requirements combined with the operational realities of its prisons results in a situation where front-line staff have little meaningful access to information about the needs of inmates. As detailed in my recommendations, the ministry must provide clear direction to the field about privacy regulations and develop sustainable systems to share information required to accommodate Code-related factors.

Segregation tracking and reviews

Consistent with the requirements of the Order, Ontario has developed segregation tracking mechanisms. In particular, the ministry has implemented a manual segregation tracking form and did pilot a smart phone-based tracking system. The PSMI also includes a section requiring institutions to record and track all placements manually, which are then recorded as a “Care in Placement” (CIP) entry in OTIS. In various institutions, data entry positions have been created to input segregation tracking data on a daily basis. In this regard, Ontario should be commended for its commitment to instituting a manual segregation tracking system that is resource- and time-intensive.

Because segregation is now a condition of confinement rather than a physical unit, tracking those in conditions of restrictive confinement and on the threshold of segregation requires attention. To this end, I recommend that the ministry’s proposed three-tiered procedure for tracking time-out-of-cell be formalized in policy. Since restrictive confinement is now defined in the PSMI, Ontario should turn its attention to developing and instituting tracking, accountability, and oversight mechanisms for those held in conditions of restrictive confinement, as required by the Order. As well, the segregation reports submitted to senior ministry officials and to the Minister’s office require revision in format and content to ensure that the information contained therein is sufficiently detailed in terms of mental health concerns, alternatives and strategies to segregation, and all efforts to accommodate Code-related needs. The ministry should implement review mechanisms for restrictive confinement that are similar to those used to monitor segregation.

Undue hardship

Alternatives to segregation are meant to be exhausted to the point of undue hardship. The ministry has devised a thorough document meant to guide how institutional staff undertake an undue hardship analysis. However, because undue hardship is a stringent legal test, institutional staff should not be expected to perform such an analysis. I had previously recommended that the field be directed to approach human rights principles as a “duty to accommodate.” In this way, those in the field would have a positive onus to meaningfully consider and appropriately respond to Code-related factors. Ontario has revised the PSMI to inform staff of their “duty to accommodate short of undue hardship” (see s.4.5, 4.5.2, and 5.2.2, for example), but further revisions are needed. Staff require training and clear policy guidance to implement a proactive approach for the accommodation of Code-related factors. Changes such as these can help shift operational practice. Namely, the ministry can move beyond documenting the presence of various Code-related factors, to Code-related factors shaping the conditions of confinement and management of an individual in its institutions.

Data collection and review

Ontario has made progress in its data collection and presentation procedures throughout the series of data reviews that were mandated by the order. However, concerns regarding data integrity, validation, and presentation remain and are significant. Institutions were largely responsible for submitting information meant to measure their own compliance. These are also partly attributable to the absence of standardized data recording and collection practices, as well as the absence of electronic systems. For future compliance reviews, the ministry should endeavour to institute sound research methodology in the aim of achieving data integrity, including robust procedures for inter-rater reliability, as well as independent data verification and validation.

In addition to the above, Ontario must clarify how it identifies those with mental health conditions and/or those at risk of suicide. Longstanding issues with its mental health alert system that have been aforementioned make it largely unknowable as to who is experiencing mental health conditions. The order also requires Ontario an ongoing release of human rights-based data on segregation, restrictive confinement, and deaths in custody on a yearly basis. Ontario should commit to releasing proportionate prison-wide data relevant to every data sample it releases so that meaningful interpretation and analysis can occur.

Institutional staff training and investments

With a recognition that inmate living conditions are staff working conditions, and in an effort to meet its requirements under the Order, Ontario should commit to providing additional substantial training for its staff specific to mental health first-aid, de-escalation techniques, gender-responsivity, and the accommodation of human rights. While a revised training curriculum was introduced in 2015 and included training on the identification of mental health, de-escalation, and self-care, high quality and ongoing training is urgently needed. As training and employment expectations should be clearly aligned, leadership at all levels should also frame employment expectations for front-line staff in a manner consistent with the order. These measures are crucial to building rapport with inmates and encouraging time out-of-cell for those in conditions of segregation.

As suggested by various segregation sergeants, small investments can also have a significant impact on the implementation of the Order. For instance, we were told that hard copies of all policies, standing orders, and some documents such as care plans are only provided online as thus, difficult to access by some frontline staff. Institutions must ensure that all policies are easily accessible to all staff members. It was also reported that front line staffing is not sufficient and that equipment (e.g. computers or other electronic devices) is needed, to allow officers the time to review documents, verify policy, and consult corporate supports about the management of inmates, as needed. Likewise, it was suggested that lights be installed in recreation yards in order to extend the hours in which the yard can be used, and thereby increase time out-of-cell. Minor improvements such as these would significantly impact Ontario’s ability to meet its requirements under Jahn. While data clerk positions have been added at some institutions, additional staff continue to be required to meet Ontario’s reporting requirements under Jahn, especially those related to the tracking of segregation and restrictive confinement. Though relatively minor and straightforward, addressing these gaps can help the ministry mitigate complex compliance issues and concerns raised during consultation processes. As well, I urge the ministry to extend its lines of communication with frontline staff who continue to provide valuable insight informed by operational realities.

Recommendations
  1. To uphold its human rights obligations and to decrease its reliance on segregation for all inmates, Ontario should turn its attention to gender-responsive frameworks that are relevant to the needs of its women and trans-identified populations. Ontario should formally and operationally recognize the differing carceral experiences of women in general and women with mental illness, and the subsequent need for gender-responsive accommodation. I recommend that Ontario review its use of segregation relative to gender/sex, with particular attention to systemic discrimination.
  2. As with other jurisdictions, Ontario should eliminate the use of administrative segregation and prohibit the direct release of someone in solitary confinement directly to the community for public safety reasons. Ontario is encouraged to systematically review the materials I have shared on best practices and evidenced-based reforms to segregation.
    I recommend Ontario engage (beyond Superintendents) with institutions and staff to examine the feasibility of various requirements as it undertakes revisions to policies and procedures. The Province should also provide necessary support and resources that would allow institutions to be operationally compliant with the Consent Order.

Compliance and human rights data reviews

  1. I recommend that Ontario develop processes that would allow for independent verification and validation of the data inputted for all future compliance reviews. This is necessary measure to ensure data quality, consistency, and integrity, and is required to properly examine compliance. Verification measures should also evaluate consistency within and across institutions related to the documentation of demographic information, determination of mental illness, delivery of service pertaining to the requirements of the Consent Order, and the accommodation of Code-related needs.
  2. As the current paper-based system has been identified as impeding proper and timely compliance reviews, I recommend that Ontario explore alternative electronic documentation systems that would be conducive to sustainable data collection, monitoring, and analysis as required for ongoing compliance reviews. The implementation of such systems must account for and provide line staff sufficient time and resources to record information about inmates and decisions.
  3. I recommend that by March 30, 2019, Ontario amend its relevant policies, including, but not limited to the DM, PSMI, and MHS, to address all concerns identified in this Submission.
  4. I recommend that an additional compliance review be conducted in July 2019, with the requirement that the data and an inventory of measures taken to improve compliance be submitted to the OHRC, the Independent Reviewer, and myself by July 31, 2019. This Review should be inclusive and cover all grounds.
  5. Given that policy was also in flux at the time of the reviews, which caused operational inconsistencies in how data was recorded and collected, these human rights-based data reviews should occur once the new version of the PSMI is implemented. Given the difficulties with and patterns demonstrated in the data reviews to date, I recommend that Ontario be required to conduct additional reviews and publicly post the findings. These reviews ought to be defined and conducted by trained, arm’s length staff to ensure data integrity and accuracy. This review needs to be attentive to the methodological issues detailed in this Submission in order to produce meaningful and cogent information as to Ontario’s correctional practices in relation to the Jahn settlement.
  6. For previous and future B-15 data releases (including the pilot review on restrictive confinement), I recommend that Ontario publicly release demographic and mental health data for the entire prison population from each of the review periods. Doing so would allow for the meaningful analysis of Ontario’s use of segregation and restrictive confinement, and instances of death, relative to Code-protected grounds as stipulated in the Consent Order.
  7. For the purpose of B-15, I recommend that Ontario clarify under the Code what constitutes human rights data to ensure accuracy, transparency, as well as unencumbered data collection and dissemination, as per the Consent Order. This will necessarily include data on sex/gender, race, disability, and other Code-related factors.
  8. For future B-15 reviews on deaths in custody, I recommend that Ontario collect, analyze, and release information pertaining to the following:
    • length of custody
    • whether mental health screening and medical professionals indicated that an individual had a mental health concern or was experiencing suicidality
    • services provided by healthcare
    • whether there was an appropriate care plan in place
    • whether the individual had experienced segregation, as well as the reasons for placement.

Mental illness: definition, screening, alerts, and delegation of duties

  1. Ontario is advised to immediately adopt a clearer working definition of mental illness and to define the parameters surrounding major mental illness.
  2. Given that mental health is a fluid and dynamic issue, and that inmates can decompensate at any point while in custody, especially in extenuating circumstances (e.g., segregation, significant life events, issues regarding institutional adjustment); Ontario must develop ongoing monitoring and intervention of mental health with proper documentation for its population. This should not be limited to those who have been placed in segregation, nor ought it be limited to the 6-month reassessment procedure that is already in place.
  3. To satisfy its obligations as per PIR 2, I recommend that Ontario forthwith undertake a culturally-informed and gender-based evaluation of how its current mental health screening tools are being used in its institutions and familiarize itself with the considerable literature on gender-responsive classification and screening/assessment as well as best practices.
  4. By April 31, 2019, Ontario should revise its policies to give direction on how mental health professionals should address community mental health alerts (i.e., alerts placed on file by those working in a community safety capacity such as probation officers).
  5. I recommend that Ontario cease its current practice of delegating duties meant to be performed by physicians and psychiatrists to other health care staff, contrary to the requirements of the Consent Order. This relates to various assessment and referral processes, as well as to the development and amendment of care plans.

Care plans

  1. In all future compliance reviews, Ontario is encouraged to review outcomes of the BJMHS and JSAT to properly examine whether the Consent Order’s referral and care/treatment requirements have been met.
  2. To meet the PIR 4 requirements, I recommend Ontario to establish clear policy standards regarding: the timeframe for establishment, review, and revisions of a care plan; who requires care plans as related to mental illness and major mental illness; and, which staff shall develop, communicate, and execute the plans. The policy should also include directions on how and where the care plans shall be made available to help address its functional availability/utility that significantly vary across institutions. Ontario is encouraged to consult international best practices and their frontline staff as part of their revision process.
  3. To fully comply with PIR 4, I recommend Ontario: provide clear direction to its employees as to the interpretation of privacy law and confidentiality concerns; significantly improve its mental health training for correctional officers; and, develop standards and expectations to guide communication between health and security staff.
  4. I recommend that Ontario provide clear direction in policy and training to meet the requirement set out in PIR 4 that “program personnel [be] engaged in discharge planning…[and] be advised at the earliest opportunity to begin planning for the inmate's return to the community.” More specifically, this ought to be a necessary component of the care plan.
  5. In order to address the significant confusion and variations across institutions regarding discharge planning, I recommend that Ontario conducts a province-wide review of practices, resources, and availability of staff dedicated for proper discharge planning. Results of this review should be submitted to the Independent Reviewer.

Segregation reviews: alternatives, undue hardship, and duty to accommodate

  1. I recommend that policies be revised to contain clear direction about the reasons for segregation to help address the systemic issues driving the Province’s use of segregation.
  2. Ontario should undertake a province-wide study of drivers to segregation in consultation with the Independent Expert. These findings should be analyzed relative to Code-related factors and should be made publicly available.
  3. Ontario should formally recognize the detrimental effects of physical and social isolation and commit to substantially reducing its reliance on segregation. I further advise that those “requesting” segregation be accommodated under specialized care placements, as per the PSMI policy.
  4. For proper demonstration of compliance, I recommend that Ontario develop a robust, documented mechanism that will ensure diversion of inmates with mental illness who are accused and/or found guilty of institutional misconducts from being held in condition that constitutes segregation.
  5. I recommend that Ontario revise its policies and forms to more robustly document decisions about alternatives and undue hardship analysis undertaken for the initial segregation decision and as part of all subsequent segregation reviews, including the 30-day consecutive and 60-day aggregate segregation reports. It should detail how decisions must be made, including what kind of information must be considered to meaningfully report on decision-making processes related to prolonged segregation.
  6. Ontario should revise its policies, operational documents, and staff training to include a comprehensive list of alternatives, strategies, incentives, and staff expectations around time out-of-cell for those in conditions that constitute segregation. Institutions and staff members should NOT be left to develop their own alternatives in crises or emergency situations, and thus Ontario is encouraged to allocate resources for the development and implementation of alternatives to segregation.
  7. I also recommend that details about how the 30-day and 60-day reports are considered, evaluated, and addressed by the ministry be provided to the Independent Reviewer for further examination.
  8. Following my consultations with the ministry’s corporate staff, including its legal and human rights representatives, as well as the OHRC, I recommend that Ontario’s legal staff and senior staff at the corporate level be engaged to properly assess undue hardship should exceptional cases arise where alternatives to segregation are seemingly impossible. This will require additional revisions to the PSMI and other related policies and forms.
  9. At the institutional-level, Ontario is advised to further amend its PSMI and other related policies to direct the field to approach human rights principles as a “duty to accommodate.” The revised policies will detail how staff are expected to accomplish this requirement.
  10. These policy changes should come in tandem with significantly improved training (in terms of its quality, content, duration, and delivery) for its correctional and health care staff specific to: dentification of mental health, mental health first-aid, de-escalation techniques, gender-responsivity, the accommodation of human rights, secondary trauma and self-care. While the ministry should communicate terms of the Order to its front-line staff as employment expectations, it should also recognize that those expectations can only be met when there exist sufficient support and guidance.

Tracking and prevention of seg-lite: segregation, restrictive confinement, and alternative placements

  1. I recommend that, for all of its components related to recommendations set out in this Submission and the Consent Order, the PSMI communicate clear, measurable, and observable expectations to allow for consistency and compliance across provincial institutions.
  2. I recommend Ontario revise the PSMI to detail review, tracking, and monitoring mechanisms for all inmates held in conditions of restrictive confinement and those housed in the four newly introduced placement types. This oversight process ought to keep in mind that the specialized care units and restrictive confinements are likely to have the unintended effect of essentially reproducing conditions that constitute segregation (i.e. seg-lite).
  3. The PSMI also needs to include clear processes for the accommodation of inmates with identified mental health concerns, who are under specialized placement but are not in conditions that constitute segregation, and those in condition of restrictive confinement.
  4. The PSMI policy ought to include a minimum “unlock” time of four-hours per day for all those in specialized care in order to clearly differentiate these placements from conditions that constitute segregation, to demonstrate substantive commitment to the principles of the Consent Order, and to remain consistent with established international best practices.
  5. I recommend that Ontario formalize its three-tiered procedures regarding the time-out-of-cell tracker in its policy.
  6. I recommend that Ontario provide samples, information roll-ups, and data related to each institution in order to monitor compliance with its requirement to track time out-of-cell tracking requirements, to the Independent Reviewer and myself. Such information should also include extensive feedback from the field regarding the implementation of the system, as well as a schedule for next steps and improvement.

Ministry responses to Independent Reviewer's Interim Report

  1. Responses to interim recommendations regarding institutional discipline:

Virtually all of my 15 interim recommendations have to date received one of two responses, both of which unfortunately reflect that the ministry is not yet – if at all - prepared to commit itself to responding substantively to them.[129]

Several of these interim recommendations propose either amendments to the existing Ministry of Correctional Services Act or the proclamation in force of portions of the CSRA. To these, the ministry response is that:

“The ministry will consider this recommendation as it seeks direction on an overall approach for corrections legislative change….Implementation will depend on the direction received on the overall approach to corrections legislative change.”

While I acknowledge that developing and deciding on options for legislative change is a complex process, I feel compelled to point out that the present government will have been in office for about 18 months by the time this report is expected to become public in the Spring of 2020; with respect it seems to me that an announcement respecting “an overall approach for corrections legislative change” is by now long overdue, and should be forthcoming in the very near future.

I thus find it necessary to continue to recommend that the ministry accept my interim recommendations (1, 2, 7, 8, 11, 12, 13 and 14) respecting legislative changes in relation to Institutional Disciplinary Policies and Procedures:

5.1 It is recommended that if the Ministry of Correctional Services Act is to remain in force, both the Act and accompanying regulations should be revised to confirm in statute the animating principles relating to what are now termed “conditions that constitute segregation” in the ministry’s “Placement of Special Management Inmates” (PSMI) and “Discipline and Misconduct” (D and M) policies.

5.2 In the alternative, it is recommended that if the 2018 Correctional Services Reintegration Act (or portions thereof) is/are proclaimed in force, both the legislation and any accompanying regulations should be revised to confirm in statute the animating principles behind the “conditions that constitute segregation” in the ministry’s “Placement of Special Management Inmates” and “Discipline and Misconduct” policies.

5.3 It is recommended that section 74(2)(1) of the 2018 Correctional Services Reintegration Act be proclaimed in force in order to prohibit the availability of a penalty of close confinement for a minor disciplinary offence.

5.4 In the alternative, it is recommended that that if the Ministry of Correctional Services Act is to remain in force, both the act and accompanying regulations should be revised to require a superintendent to deduct any time spent in “administrative segregation” from any penalty of close confinement that may be imposed for a minor disciplinary offence. In cases involving serious disciplinary offences, a superintendent should be expressly authorized to exercise their discretion to deduct any time spent in “administrative segregation” from any penalty of close confinement that may be imposed for a serious disciplinary offence.

5.5 It is recommended that sections 65-67 of the Correctional Services and Reintegration Act 2018 dealing with the appointment of disciplinary hearings officers to adjudicate allegations of serious misconduct be proclaimed in force.

5.6 In the alternative, it is recommended that if the Ministry of Correctional Services Act is to remain in force, a process for the appointment of independent adjudicators for serious misconducts be immediately developed.

5.7 It is recommended that s. 73(5) of the Correctional Services and Reintegration Act 2018 dealing with the right to counsel in cases involving allegations of serious misconduct be proclaimed in force.

5.8 In the alternative, it is recommended that that if the Ministry of Correctional Services Act is to remain in force, a process for the ensuring access to counsel in cases of allegations of serious misconduct be created.


The second type of response I have received is in relation to a series of interim recommendations I made regarding (non-legislative) policy reforms to institutional discipline processes:

“The ministry is currently working on definitions of institutional misconduct and is working towards having these definitions in place by summer 2019 and embedded in operational policy by November 2019.”

Among its various responses to my Interim Report, the ministry undertook to consult with me as policies are being developed and modified. While I eventually participated in a meeting (November 21, 2019) with ministry staff seized with examining and preparing policy revisions on this subject, I was told that the ministry had undertaken consultations with frontline staff during August and September, 2019, that “their feedback was being reviewed to help inform a plan to revise the discipline and misconduct process”. I was thus told that the timelines set out in the ministry’s response were not going to be met. At best, I have been told that, subject to approval at the ADM level, I might be shown some sort of draft upon which I might be asked to comment. As of the date of submission of my final report, this has not happened.

With respect, most of my proposed reforms are quite uncontroversial, not involving any fundamental changes in policy direction. I cannot see why it is at all necessary that so many months have elapsed with only a commitment to “consider implementing” some of these recommendations (and then only in “operational policies”).

I thus find it necessary to continue to recommend that the ministry accept my interim recommendations (4, 5, 6, 9, 10 and 15) respecting institutional disciplinary policies and procedures.

5.9 It is recommended that ministry personnel and officials of Legal Aid Ontario (LAO) review processes regarding the timing of a superintendent’s decision to treat an allegation of misconduct as “serious” or “minor”, with a view to substantially advancing the timing of that decision-making process.

5.10 It is recommended that ministry personnel develop criteria to guide superintendents in their decision to treat an allegation of misconduct as “serious” or “minor”.

5.11 It is recommended that the ministry conduct a detailed study of charging and disposition practices in relation to the institutional offence of “making a gross insult”, with a view to examining whether inadvertent racial discrimination may affect decision-making processes. It is recommended that the proposed Committee of Experts on Data, Best Practices and Policy Compliance (described in section 3 supra) be consulted as part of any such study.

5.12 It is recommended that the form of misconduct notice currently being used be substantially revised. The usage of high order language detracts from the ability of all readers to process its meaning the way it is intended; problems of illiteracy in Canada’s official languages need to be better addressed; the list of potential penalties should be included on the printed notice form; persons in custody should be specifically advised that they may make submissions as to penalty.[130]

5.13 It is recommended that those sections of the new D&M policy that deal with procedural fairness (s.4.13) be applied to those sections of the policy that deal with notifying the person in custody of “the nature and circumstances of the misconduct” (s.6.5.3c.ii). In addition, superintendents should receive training from the ministry’s Legal Services Branch as to the substantive content of allegations within misconduct notices.

5.14 It is recommended that the ministry and LAO develop policies for expanding the role of “onsite duty counsel” as advisors to mentally ill and developmentally delayed persons in custody, as well as for the representation of such persons at segregation review hearings and in disciplinary proceedings. It is further recommended that the current “onsite duty counsel” program (or equivalent) be expanded to other institutions. It is further recommended that LAO be adequately funded to provide such advice and representation services throughout the province.

Interim recommendation #3, which was included in my recommendations at the request of the Independent Expert, called upon the ministry to improve several of its data collection efforts regarding specialized care placements and segregation (or other forms of restrictive confinement). As the ministry’s responses to that recommendation are more properly relevant to the Independent Expert’s observations and recommendations, her Final Report is the most appropriate place to address this issue.

  1. Responses to interim recommendations regarding “improving linkages between courts and corrections”:
    1. Recommendations directed to the Ministry of the Solicitor General and the Ministry of the Attorney General (MAG) responded to by MAG.

Several of my “court process” interim recommendations (#s 3, 4, 5, 6 & 7) were largely responded to by MAG. Some progress appears to be “in the works”. Interim recommendations #3, 6 & 7 contained identical responses:

“The Court Services Division of MAG is currently working with Correctional Services Canada to enhance access to court documentation. Any final processes, approved by the judiciary, may help inform options in provincial institutions in future discussions”.

Though I have not been specifically briefed on this issue, I have some concerns. In 1995 Parliament enacted s.743.2 of the Criminal Code, which provides that “[a] court that sentences or commits a person to penitentiary shall forward to the Correctional Service of Canada its reasons… [and] any relevant reports that were submitted to the court…”. That section is restricted on its face only to penitentiary-length sentences, which obviously engages timeframes substantially different from needing to get accurate information and exhibits into the hands of those custodial or probation authorities who will deal with the offender following the imposition of either a very short custodial sentence or a non-custodial sentence. Thus, I have some difficulty understanding why CSC is thought to be the most effective delivery model for co-operating with provincial officials who, by definition, are concerned only with sentences of less than two years.[131] If MAG chooses to issue a response to my Final Report, perhaps these new procedures could be explained in some greater detail.

Interim recommendation #4 was designed to improve the flow of documents between courts and corrections. In this area I was concerned about documents submitted to the court and marked as exhibits – in this case any form of mental health reports or assessments. MAG responded to this recommendation by indicating that both the process of formally marking documents as Exhibits and the routine forwarding of such documents to correctional officials will be brought to the attention of the relevant Chief Justices. With this I entirely agree. I may say that I have already discussed this with Chief Justice Maisonneuve of the Ontario Court of Justice, who has indicated that she is generally supportive of improving these processes.

Interim recommendation #5 was designed to assist ministry staff (institutional or community) to have better access to transcripts of relevant court proceedings, so that ministry personnel do not have to rely solely on Police Synopses (see ministry response to Recommendation 8, infra). Because I was aware that there would be considerable cost implications if the current “floor” of not preparing transcripts unless the sentence imposed is six months or greater, I urged only that this issue be studied. The Court Services Division of MAG responded that in 2016-2017 Statistics Canada data revealed that “approximately 20,000 individuals received a sentence of less than six months”.[132] Given these considerable financial implications MAG indicated that this matter would require further study, which I can readily understand.

I offer two suggestions for consultation in this regard. The first is that input be sought from the Criminal Lawyers’ Association and the Ontario Crown Attorneys’ Association, both of which would no doubt be able to provide useful input. Second, I would propose that consultation with court probation liaison officers might be fruitful, perhaps with a view to seeing whether, at least in the case of very short custodial (or non-custodial) sentences, listening to the readily available digital transcripts of court proceedings might suffice to apprise the supervising probation officer of the agreed facts of the offence, and any pertinent submissions made during the course of the sentencing proceedings.

  1. Interim recommendations directed to both the Ministry of the Solicitor General and MAG, responded to by the Ministry of the Solicitor General.

Section 5 of my Interim Report contained nine recommendations that were either exclusively directed to [then] MCSCS or to both ministries.

The responses by [then] MCSCS to most of these joint recommendations were entirely predictable:

“The ministry does not have control over court processes but is collaborating with MAG to respond to [these] recommendation[s]”.

While these responses to recommendation #s 3, 4, 5, 6 and 7 are technically correct, with respect they miss – or ignore - the point of why I considered it so necessary to devote a whole section of my Interim Report to the urgent need to improve linkages between courts and the two ministries in order to better address the problems of the mentally ill who come into contact with the criminal justice system.

The ministry has very recently provided me with a “Jahn Consent Order Narrative”[133] which details ministry responses to the current Jahn settlement order. That document properly references my Interim Report and correctly states that “the Independent Reviewer…provided an additional set of recommendations intended to guide the ministry toward…longer-term systemic change”. It is unfortunate – and in my view sadly reflective of the ministry’s continuing “insular” approach to the rest of the criminal justice system - that almost nothing in the remainder of this document references any of these recommendations. The only place where any possible reference can be said to be made to them is in the ministry’s October 2019 “Corrections Mental Health Strategy”, which proposes focus on:

  • “Improving mental health and addictions data utilization to influence evidence-based decision making and accountability.
  • Establishing mental health and addictions interprofessional teams.
  • Improving communication to facilitate the provision of high-quality mental health and addictions services.
  • Establishing mental health and addictions care pathways.
  • Improving access to care that is trauma-informed, gender safe, and culturally safe”.

While there is of course nothing wrong with setting out such a strategy, I find it noteworthy that the Narrative then goes on to say that: “[t]he ministry will continue to work with mental health system partners to validate the strategy and will begin to implement key initiatives in 2019/20”. Nothing is said about this ministry’s role in seeking to improve working relationships with the courts. It appears that, according to the ministry, every aspect of seeking out “mental health” documents that may be in possession of the courts is apparently to be deferred to MAG.[134] As I have previously indicated I have considerable concern that this may be inadequate, especially for very short sentences.

The Independent Expert and I have received helpful briefings from ministry officials principally responsible for developing the ministry’s Corrections Mental Health Strategy. Though there are some phrases in the briefing document[135] that could be interpreted as setting out a broader role for the ministry by, for example, “concentrate[ing] on seamless transitions for continuity of care throughout the justice system”, it seems quite clear that the ministry currently views “continuity of care” as restricted to “[inmates and offenders] while in custody, upon discharge, and while supervised in the community”.[136] It says nothing at all about this ministry’s role in attempting to get court documents that may assist in the treatment and rehabilitation of mentally ill offenders.

In section eight of this Report, I describe and advocate a model recently developed in Alberta (and British Columbia) which links correctional ministries with other service providers in the direct provision of what are termed “correctional transition teams” aiming to address bail releases for the mentally ill and severely addicted. For now, I simply wish to reiterate the point introduced in section 3, namely that this ministry has a very long way to go before it can claim to be an integral member of Ontario’s justice system. Given their overlapping and continuous leadership mandates, it is incumbent that this increased integration needs to be specially examined and prioritized by the Modernization Divisions of these two ministries.

5.15 It is recommended that the Modernization Divisions of both the Ministries of the Solicitor General and Attorney General make every effort to facilitate and prioritize the Ministry of the Solicitor General’s full participation as an integral component of Ontario’s criminal justice system.

5.16 It is recommended that all Ministry of the Solicitor General personnel (field[137] and corporate) should receive in-service training with a focus on this ministry’s participation as an integral part of Ontario’s criminal justice system. When appropriate such training should involve experienced criminal justice practitioners.

I should indicate that the ministry has separately responded somewhat positively to several of my other recommendations that aim to improve linkages between courts and corrections. I address these in turn:

Interim recommendation #1 was designed to improve communication between ministry policy developers and criminal justice professionals. The ministry has responded by agreeing that in the “short term” (1-3 months), it will “continue to consult with our legal counsel and MAG as we review and develop policies that impact decision-making and information sharing”. While I of course have no general objection to this desire for consultation, I have had a draft of this response since mid-August. To date, I have not been offered any briefing indicating how the ministry is responding in the “short term”. I do hope that this lack of response is not illustrative of how this recommendation may “slip through the cracks”.

Interim recommendation #2 was designed to better integrate ministry personnel (both institutional and community services personnel) into local “court management committees”. This recommendation was triggered by my having had several opportunities both to observe and to learn about some excellent working court management committees in different parts of the province where ministry personnel are currently involved. Thus, this recommendation was directed to areas of the province where the ministry is not presently represented on such committees. The ministry’s response is that it supports this recommendation, that it hopes to implement it in the “long term” (six months or more), and that I am “to be apprised of any developments”. As of the date of submission of this Final Report to the ministry, I have not been offered any briefing or report on how this is progressing across the province.

I can say with confidence that I have discussed this issue with Chief Justice Maisonneuve of the Ontario Court of Justice (under whose overall aegis these court-based “court management committees” are constituted at the provincial court level), and she has authorized me to say that she is entirely supportive of this concept. I hope that ministry membership on these committees is proceeding apace. Given the Chief Justice’s support, I would expect to be advised only if there are difficulties in having ministry personnel participate in such committees.

Interim recommendation #8 proposes that the two ministries work together to reduce the ministry’s reliance on the police synopsis as “the only available document regarding the facts of the offence(s)”. The ministry response is that both ministries “are currently working on a bail and remand strategy and this work will take this recommendation into consideration[138]. Moreover, both ministries will look at ways to move forward the disclosure obligations outlined in the Framework Memorandum of Understanding (FMOU)”. This initiative is to be applauded, if only because, as has been criticized by the defence bar and the judiciary for many years, reliance on a police synopsis is not consistent with the kinds of measures of factual determinations that the criminal justice system (and, inferentially, the ministry of the Solicitor General) should rely upon. In this regard I would draw the ministry’s attention to the recent judgment of Durno S.C.J. in R. v. Downey [2018] O.J. No. 6133 (at paras. 4-22); even though, strictly speaking, the judgment deals with “occurrence reports” rather than “police synopses”, His Honour’s comments about the use of untested evidence at a bail hearing is instructive.

Interim recommendation #9 proposes that “wherever feasible, the ministry work with local stakeholders to facilitate mentally ill persons access to speedy judicial interim release, as well as to post-charge diversion programs”. The ministry response is that both ministries are working together to increase “the use of video conferencing for various stages of the criminal justice process…includ[ing] facilitating access to bail hearings/bail court in an expeditious manner or meetings with post-charge diversion workers. The video strategy specifically contemplates better facilitating some of the specific needs of those in-custody accused with mental health issues, including leveraging technology to connect individuals with appropriate services”. Based on my nearly 30 years experience as a judge presiding in provincial courts where video evidence is intermittently used, I have concerns about the efficacy and efficiency of video conferencing as a supposed “cure all” solution to communications between correctional facilities and courthouses. Nevertheless, I applaud the effort. I shall have more to say about this question of speedy access to bail in section 8 of this report.

Interim recommendation #10 proposed that the ministry take steps to expand the “Discharge from Distant Court (Red Bag) Program” to areas of the province where it does not currently exist, particularly where release at court is “unanticipated”. As part of that recommendation I asked that I receive a briefing on this prior to my Final Report. While I have had two meetings over the summer with the ADMs whose mandates extend over this policy area (Community Services, Institutional and Operational Services), unfortunately not much progress has been achieved. In part this derives from the first part of the ministry’s response to this recommendation, which is that “unanticipated releases at court are beyond the control of the ministry”. While this is again technically correct, because the ministry usually does no more than bring the prisoner to court from the local detention centre, it is once more unfortunately reflective of an attitude that the ministry has merely a passive role, and that what happens at court is the sole responsibility of Crown counsel and defence/duty counsel.

In my judgment this is a complex problem[139] that needs considerably more urgent attention than it has been given to date.

5.17 It is recommended that a working committee, comprising representatives of both the policing and corrections divisions of the Ministry of the Solicitor General, together with representatives from MAG and those involved in service delivery for mentally ill persons at court (including LAO and court-based mental health workers), be struck to find solutions to the issue of “unanticipated releases at court”. This working committee should report to the deputy minister within six months of its establishment, and its findings and recommendations should be posted on the ministry website.

Reforms to disciplinary processes

“When all is said and done, the only thing federal and provincial correctional ministries ever really listen to is when courts order them to do something. Litigation is the only way to force meaningful changes.” - Seasoned correctional litigator

Introduction:

At the very end of my mandate the ministry informed me of its position that “the level of independence of the [segregation] review process falls outside the scope of the Jahn remedies”. Though Canadian legal academics have been writing about this issue for nearly 50 years, at the point when the Independent Reviewer’s Terms of Reference were originally drafted (over two years ago), the various “CCLA” cases had not yet been argued, so it is somewhat understandable that these Terms made no express reference as to whether I should examine this issue. However, as matters have developed and as discussed in this section, it is now entirely clear that the issue of the level of independence of segregation reviewers is of central importance in considering the constitutionality of the structure of segregation reviews. This is best evidenced by the fact that in February 2020 the Supreme Court of Canada has decided to hear argument on this “issue of national importance”, given the differing views on this issue expressed by the British Columbia and Ontario courts.  For this reason alone, I consider that I would not be adequately addressing my obligations were I to pretend that this issue somehow did not need to be addressed.

Beyond this, I wish to remind the ministry that my Terms of Reference expressly state that “additional content can be included [in the final report] based on the discretion of the Independent Reviewer”. Thus, what I am electing to do here is no more than is expressly – and entirely sensibly – authorized by my Terms of Reference.

With this I now proceed to discuss this and related issues.


Section 4 of the February 2019 Interim Report (PDF, 2 mb) discussed and made several recommendations concerning reforms to administrative and disciplinary segregation. At that time two important cases were under consideration by appellate courts in Ontario and British Columbia; consequently, I cautioned that I was hesitant to make recommendations on some topics until decisions of those appellate courts had been rendered. Though those decisions have now been publicly released (discussed infra), it was not until February 13, 2020 that the Supreme Court of Canada granted leave to appeal (and cross-appeal) the various appellate decisions, which will mean that final adjudication of the constitutional issues raised will be considerably delayed, which in turn will likely have implications for policy development at the provincial level. Thus, what follows in this section of this Report must necessarily be read as potentially limited by the absence of the Supreme Court of Canada’s final views on these difficult and multi-faceted issues.[140]

Since the Interim Report was delivered to the ministry and the Human Rights Commission (February 2019), there have been some significant changes in the descriptive language used to define “segregation” in Ontario and federal policy documents. Though the term “administrative segregation” is still frequently used in common parlance within provincial and federal institutions, both levels of corrections have largely abolished formal use of this term in policy documents. It has been replaced in both systems with new models for placement of persons in custody considered to be difficult to assign and maintain in a regular prison or penitentiary population. While my mandate is to examine only Ontario provincial authorities’ treatment of mentally ill persons in custody who may be deemed to be inappropriate for placement in “general” (or even “protective”) custody, some of the policy and legislative developments in both correctional systems – and accompanying new terminology –  are relevant to a full understanding of the current state of these issues.

  1. Changes to provincial definitions and policies

One of the major aspects of my mandate is to examine whether some very recently implemented ministry changes to institutional policies and procedures regarding what until December 2018 used to be called “segregation” or “close confinement”– now mostly called “conditions that constitute segregation” – may assist in reducing the numbers of persons in custody suffering from mental illness being kept in such conditions. However, I must immediately comment that, following suggestions made by the Independent Expert and her team as to the need for additional revisions to this new version of the Placement of Special Management Inmates (PSMI) policy (which have been accepted in principle by the ministry), such revisions will not be implemented in formal policy or operational practice until various consultations have occurred. These sessions are in progress; however, I am told that they will extend past the deadline agreed upon for the submission of this Final Report; indeed, my latest information (as of December 2019) is that it will not be until “sometime in 2020” that a new version of the PSMI will be in place. It unfortunately follows that delays in the implementation of this new version of the PSMI policy means that neither the Independent Expert nor I will have had any significant opportunity to track and evaluate how this (and related policies) will be applied in practice. More importantly, we are simply unable to say whether this new policy will have the desired effect of reducing (or curtailing) the numbers of persons placed in “conditions that constitute segregation” and the lengths of time they may spend under such conditions.

Additionally, it was only in late 2019 that the ministry presented the Independent Expert and myself with new ministry definitions of “mental illness” and “serious mental illness”. In the interests of completeness, I had intended to include discussion of how these “fit” with other ministry policies in this Report. However, at the very end of the preparation of this report I received the following request from ministry staff: “While the definitions of mental illness and serious mental illness have been approved, they have not yet been implemented in policy. As a result, the ministry is requesting that the definitions be summarized, rather than being quoted in full”. I will respect the ministry’s request; however, I am concerned that any interest members of the public may have in this report may not be sufficiently and/or adequately addressed by “summarizing” such necessarily complex definitions in a few words. After due consideration, I have decided not to do so. Thus, what follows must be understood as a quite incomplete analysis of how mental illness[141] equates with other documents being used by the ministry.

Under both the previous (2015) and December 2018 PSMI policies, a superintendent[142] may direct that a person in custody (remand or sentenced) be kept in “administrative segregation” (now called “conditions that constitute segregation”) for one (or more) of four reasons:

  • if the inmate is in need of protection
  • if the inmate must be segregated to protect the security of the institution or the safety of other inmates
  • if the inmate is alleged to have committed a misconduct of a serious nature
  • if the inmate requests to be held in conditions that constitute segregation[143]

The December 2018 version of the PSMI[144] creates two broad categories of Housing Placements (regardless of whether a person in custody is on remand or sentenced). “General Purpose (Operational)” placements are subdivided into two sub-categories: “general population” (GP) and “protective custody” (PC - which is deliberately defined as a sub-set of general population). The second category of housing placements - “Special Purpose” - are considered to be the “overarching category for all alternative placements other than general population (GP) or protective custody (PC) used to assess, stabilize, treat and house special management inmates”.[145]

These “Special Purpose” placements contain two broad categories: “Medical”[146] and “Specialized Care Placements (alternative housing)”, which are further sub-divided into four types: “Behavioural Care”, “Managed Clinical Care”, “Stabilization” and “Supportive Care”. An accompanying Memorandum to Superintendents summarizes each of these four types as follows:

Behavioural care: This placement is for inmates who:

  • need to be separated from the GP or PC based on serious behavioural concerns (i.e. aggression, violence, highly disruptive behaviour, intimidation, etc.)
  • are considered to be an immediate risk to staff, other inmates, the institution and/or themselves
  • are not necessarily isolated from other compatible inmates and social interaction
  • may have a mental health diagnosis but safety concerns override or have been assessed as not responsive to mental health treatment

Managed clinical care: This placement is for inmates who:

  • present with symptoms of a chronic mental illness (i.e. addictions, concurrent disorder, dual diagnosis, etc.)
  • have been identified as requiring additional clinical support on an ongoing basis to improve or maintain their wellbeing
  • are not necessarily isolated from other compatible inmates and social interaction

Stabilization: This short-term placement is for inmates who:

  • are experiencing a crisis or traumatic event
  • are considered to be an immediate risk to themselves (including suicide) staff, other inmates and/or the institution
  • may have a mental illness
  • require intensive mental health services with a goal to stabilize and reintegrate the inmate into an alternate specialized care unit

Supportive care: This placement is for inmates who:

  • require special service provisions or programming that cannot be accommodated in the GP or PC
  • may have a developmental, cognitive or physical disability (i.e. restricted mobility, deaf, blind, etc.)
  • have other identified Human Rights Code related needs or unique circumstances which may cause them to be vulnerable in the GP or PC, identified by the inter-professional team.”

These revised policies provide quite detailed directions to staff as to how decisions are (and are not) to be made in deciding where to house “special management inmates”, emphasizing:

  1. that any such decisions are to be made on an “individualized assessment of an inmate’s needs and circumstances based on reliable information and verified criteria, not assumptions or impressionistic views about the level of risk that their being housed in GP or PC may pose”
  2. that decisions to place an inmate “in conditions that constitute segregation” are to be made “only as a last resort”, and that “[a]ll alternative options are to be exhausted prior to an inmate being held in conditions that constitute segregation”
  3. that even when an inmate is being held “in conditions that constitute segregation, [they] must be held under the least restrictive conditions available while protecting the safety of persons and/or the security of the correctional institution”[147]

Special attention is paid throughout the new policies both to limit and to guide when those with mental illness may (and sometimes may not) be placed “in conditions that constitute segregation”.[148 Particularly germane to my mandate are various detailed provisions that direct early and ongoing consultation with and input from a “mental health provider” (preferably a physician or psychiatrist where available). No doubt in response to the issues raised by Ms. Jahn’s case and others, there are extensive mandatory procedures enunciated throughout these policies that are meant to guide when decisions to place a person in custody “in conditions that constitute segregation” must be reviewed, who must participate in those decision-making processes, what documentation is to be prepared, and who must further review any decisions to maintain an inmate in such conditions, “under truly exceptional circumstances and in a manner consistent with Code-related factors”. Once again, where a person in custody held in such conditions is considered to be mentally ill, the PSMI contains very detailed provisions directing (a) that particular attention must be paid to ongoing consultation with mental health professionals and (b) that detailed written reasons supporting why alternatives are not feasible must be continually updated.

I stressed in the Interim Report (PDF, 2 mb) that, if properly observed and scrupulously followed, it is my view – shared by the Independent Expert – that these various policy changes have the capacity to substantially transform the use of “conditions that constitute segregation” throughout Ontario corrections. This new PSMI policy, combined with the ministry’s existing Discipline & Misconduct (D&M) policy, represent a major part of the ministry’s response to the Jahn litigation and settlement. The most important conceptual change envisaged by these policies is that segregation will no longer be defined as a physical location, but rather as a status. By reconceptualizing “conditions that constitute segregation” as a status rather than as a physically separated location within an institution, I highlighted that the ministry is to be commended for recognizing the need for fundamental change in its approach to (and operational practices regarding) institutional population management. By moving away from a purposefully designated location (and thus expected use of segregation), the ministry accepts that in a lawful and compassionate society, officially tolerated deprivations of basic human rights can no longer be permitted, except in the clearest of circumstances, following the observation of mandated procedural protections, and for extremely limited periods of time.

However, given that the final versions of these changes and the definitions of “mental illness’ and “serious mental illness” are only scheduled to be instituted sometime “in 2020”, I reiterate that neither the Independent Expert nor myself will have had any opportunity to observe and monitor whether these policy developments will “alter the penal landscape” in any substantial way now that our Final Reports have been delivered to the ministry. Though it is hoped by all that these various policy changes will bring about significant changes to the segregation regime, we must unfortunately caution that it remains entirely possible that persons in custody (mentally ill or not), who were previously housed for lengthy periods of time in “administrative segregation”, may now be routinely housed in “behavioural care” and/or “conditions that constitute segregation”. They may cycle in and out of these two statuses, merely with time frames superficially adjusted, accompanied by reams of paperwork to justify maintenance of much of the status quo. For example, since the December 2018 version of the PSMI came into effect, we have been advised by staff in several institutions that previously existing “segregation cells” and “segregation units” are still being used to house persons in custody “in conditions that constitute segregation”.[149 Thus, it is important, as the Independent Expert stresses at several points in her Final Report, that comprehensive strategies need to be developed to ensure that “time out of cell” is both meaningful and expanded wherever possible.

  1. Changes to federal definitions

Whereas those detained in provincial custody are mostly[150] a mix of remanded accused and sentenced offenders, it goes without saying that virtually all[151] persons detained in a federal penitentiary are offenders who have been sentenced to a term or terms totalling two years or more – up to life imprisonment.[152] Thus, with the exception of the occasional person in provincial custody who either spends lengthy periods of time detained in a facility while awaiting trial, or who accumulates several sentences that do not total two years or more, it is obvious that persons detained in federal custody are likely to be serving considerably longer periods of time in custody than those detained in provincial facilities.

Because of the lengths of custodial time involved, it is therefore not at all surprising that much of the litigation that has directly challenged the federal “administrative segregation” regime (or its predecessors) has been brought by or on behalf of person held in custody in penitentiaries. Many of these cases have been exhaustively described and discussed by Prof. Michael Jackson of the University of British Columbia Law School in numerous texts and scholarly articles over almost 50 years.[153] Prof. Jackson has supplemented this by extensively participating in and writing about federal policy discussions and developments, with particular attention to ongoing debates over the desirability of and rational for independent adjudication of administrative segregation at the federal level.[154] Prof. Jackson has appeared as an expert witness on various aspects of lengthy incarceration in “solitary”, including the important recent Ontario case of R. v. Capay[155] and in the British Columbia“ CCLA case”,[156] all of which are referred to infra. Prof. Jackson’s various writings describe how federal correctional authorities have for several decades been staunchly resistant to most notions of independent review of correctional decision-making.[157] This was directly challenged in the two “CCLA” cases concurrently launched in 2017 against segregation practices in federal penitentiaries in Ontario and British Columbia.

The British Columbia hearing judge heard extensive evidence on this issue from federally sentenced persons in custody, from current and former federal correctional staff, and he also had available to him Prof. Jackson’s extensive notes of “many hundreds” of Segregation Review Board (SRB) hearings, all of which led Leask J. to conclude that “limited weight is given to the inmate’s account, and [that] the institution’s information is taken to be presumptively reliable…[leading to] senior administrators…generally defer[ring] to what those to whom they delegated tasks thought best…Similar deference exists at the regional and national levels in relation to wardens and correctional managers who must deal with the operational realities of their institutions”.[158]

Based on this evidence Leask J. thus came to the factual conclusion that “[a]n independent adjudicator is best placed to ensure that robust inquiry occurs at segregation reviews and that institutional staff and administrators make the case for segregation by demonstrating that there are no reasonable alternatives”.[159] Importantly, he then went on to conclude that the evolution of Charter jurisprudence means that an independent adjudicator in segregation review cases is now constitutionally mandated.

It is important to keep in mind that in coming to this conclusion the British Columbia court expressly disagreed with the previously rendered decision of Marrocco A.C.J. on this point in the Ontario “CCLA” case. In that case, Marrocco A.C.J. had (albeit on the basis of a much narrower factual record) come to the conclusion that, so long as federal correctional officials (CSC) were to develop “[a further level of] administrative review…[this would amount to an adequate] trade-off between expeditious dispute resolution and the full protection of procedural rights. The reviewing tribunal can have adequate independence without having all the attributes of a judge”.[160] For Marrocco A.C.J.:

“The administrative review of the decision can be independent and impartial if the reviewer is:

  • not chosen by the person whose decision is being reviewed,
  • not reporting to the person whose decision is being reviewed,
  • completely outside the circle of influence of the person whose decision is being reviewed and
  • given the need for a prompt decision, able to substitute its decision for that of the person whose decision is being reviewed.”[161]

For Marrocco A.C.J. “this type of independence would satisfy a fully informed reasonable observer”.[162] Leask J. disagreed, concluding that “the evidence led before me…demonstrates that CSC has shown an inability to fairly review administrative segregation decisions…[P]rocedural fairness in the context of administrative segregation requires that the party reviewing a segregation decision be independent of CSC”.[163]

Because this part of Marrocco A.C.J.​’s decision was not appealed by the federal government, the Ontario Court of Appeal was not asked to pronounce on this issue.[164] However, the federal government did elect to appeal this part of Leask J.’s decision to the British Columbia Court of Appeal, which court expressly adopted (and expanded upon) the reasoning of Leask J. in preference to that of Marrocco A.C.J.​, Fitch J.A. writing for the court that:

“As the [Supreme Court of Canada] explained…the requirements of independence and impartiality both seek to uphold public confidence in the fairness of administrative bodies and their decision-making procedures. The legal tests for independence and impartiality appeal to the perceptions of the reasonable well-informed member of the public. The question concerns what an informed person viewing the matter realistically and practically would conclude. Would that person think that it is more likely than not that the decision-maker whether consciously or unconsciously, would not decide fairly? [citations omitted].

On the basis of [Leask J.’s] findings of fact, the Canadian experience with internal review, and detailed studies of the issue which have resulted in repeated calls for the adoption of external review, a well-informed member of the public could not reasonably conclude that internal review of segregation decisions will be done fairly”.[165]

Thus, the British Columbia Court of Appeal “took a different view” of the constitutional adequacy of “internal” review from that of Marrocco A.C.J. (in coming to this conclusion Fitch J.A. indicated that he was also influenced by the fact that federal legislation (Bill C-83) pending at the time the appeal was argued “would require the external review of segregation decisions in defined circumstances”).[166]

I repeat that as of the date of submitting my Final Report to the ministry, it remains to be seen whether, now that the Supreme Court of Canada has granted leave to appeal these appellate decisions, the Court will ultimately pronounce on this issue of whether s.7 of the Charter now requires that a decision-maker must be independent of the correctional authority that decides to place a person in “conditions that constitute segregation”.[167]

The reason this is important for my Final Report is that the ministry has shared with me draft “Segregation Decision/Review” forms and supporting documents, at least one of which quotes the exact language of paras. 175-6 of the decision of Marrocco A.C.J.​ as the basis for the ministry’s proposed new policy,[168] in preference to that of the two British Columbia decisions. If this policy is adopted, Ontario’s decision to have only senior ministry employees as reviewers of decisions by other ministry employees to place a person in custody in “conditions that constitute segregation” will stand in stark contrast with newly enacted federal legislation.[169]

Even if such a policy withstands a constitutional challenge which might be brought by a person confined in an Ontario provincial institution – which seems rather doubtful – it is also necessary to point out that such a policy goes against already enacted Ontario legislation. Sections 65-67 of the Correctional Services and Reintegration Act 2018,[170] passed by the Ontario Legislature in May 2018, envisages the creation of “Independent Review Panels”, deliberately comprised of non-ministry personnel, to review initial decisions made by an institutional superintendent to place “an inmate…in conditions that constitute segregation for non-disciplinary reasons” after various specified time frames. While I concede that this legislative enactment has not been proclaimed in force, and that the government is not legally obligated to implement this legislation, I repeat that Ontario now seems to be at odds with contemporary legislative and constitutional developments.

To this I would add that whereas the United Nations “Mandela Rules” provide that penal administrators may impose lesser forms of punishment for institutional misconducts, Rule 45 is clear that where solitary confinement is to be imposed:

“[It] shall be used only in exceptional cases as a last resort,
for as short a time as possible and subject to independent review, and only pursuant to the authorization by a competent authority….

I find is difficult to imagine that the United Nations intended that the “competent body” that authorizes the review would also be the “independent review(er)” in a matter as serious as imposing prolonged segregation/solitary confinement.[171]

In a similar vein, I note that the “Handout” which is (supposedly) given to every person in custody who has been placed in “conditions that constitute segregation” reads:

“Within 24 hours of your initial placement, your case will be reviewed by the superintendent or designate. Every five days thereafter, your placement will be reviewed by an Independent Reviewer to ensure that all options have been looked at to remove you from segregation conditions…”. (emphasis added).

I very much doubt that the segregated prisoner would consider that a senior correctional manager reviewing decisions taken by other correctional officials is truly independent. To quote the old adage: “justice must not only be done, it must be seen to be done”.

It is particularly troubling that Ontario seems intent on largely maintaining a policy which was found to be at the basis of much that went wrong in the recent case of R. v. Capay, where the highly exceptional remedy of a stay of proceedings was granted in an Ontario murder charge because of repeated very serious breaches of the accused’s Charter rights. The court was particularly scathing about the “meaningless…segregation review process… [which was] devoid of any meaningful oversight or review”. Fregeau J. found that:

“[t]he treatment of the accused was outrageous, abhorrent and inhumane [and that] it was a shocking and intolerable violation of [his Charter rights] … The right to prompt segregation reviews based on objective and reliable information was a distinct right guaranteed by s. 9. Continuously detaining the accused in segregation without adhering to the segregation review policy and in the absence of a proper evidentiary basis that the accused was a risk to the safety or security of the institution or other inmates was unlawful and therefore arbitrary and represented a separate and distinct breach of his s. 9 Charter rights.”[172]

More specifically, the evidence given by various ministry witnesses made it clear that the internal review process that existed under the policies in force at that time allowed – and indeed encouraged – senior ministry officials to defer to institutional staff, rather than give serious consideration to exercising their own discretion. The deputy director of the Northern Region, whose role was to consider and “sign off” on maintaining a person in segregation was quite candid in his evidence:

“Well for me to make that decision, I'm going to have to base that on something. So I would, it's a very hypothetical thing for me, 'cause I'm not going to, we're a team, we're not, like I have oversight onto them but we're part of a team and they are doing good work and I rely on the social workers and everybody else that's making these decisions to stay there. So why would I make a decision against that? So if that information's not there, yes I would probably pick up the phone and say what's going on here? But when you got social workers and psychiatrists and whoever else that's indicated that this person is in segregation, whether they're at their own will or because that's the decision they've made, then I'm going to sign off on that. I don't think it's my decision to go against a social worker or a psychiatrist. I've reviewed it, I've seen the work was being done according to policy and I move forward with it.

Q. So in your experience, it's never happened that the superintendent has recommended continued segregation and you've not supported that decision?

A. It may have happened. I may have picked up the phone and questioned but I don't remember ever overriding the institution. I just, I don't see it, no. I would work with them to try to get somebody out of segregation but to override and say you have to take that person out of segregation seems a bit heavy-handed for a person that's sitting, could be 600 miles away or whatever. So I just go, I'm reviewing information, basing it on policy. I'm reviewing policy really and if that policy is meeting what the expectations are, you're going to sign off on it. I think that's our job.

Q. So do you know what the authority of part E is? If it's, "if not supported" is checked and that's sent back to the institution, what authority does that carry? Is that considered an order to the institution that the inmate be removed from segregation?

A. I suppose it could be.

Q. But that's just in theory? Like in your practice do you....

A. I've never heard of it. I've never heard of that before. Like why would you do that? Why wouldn't you work with the institution to find out what's going on instead of trying to, me overriding a psychiatrist and social worker. I don't think that's my role to do that. I don't think I'm authorized to do that. I can't, a psychiatrist, if a psychiatrist is making a decision, I think I have to go with that decision.[173]

This type of thinking captures precisely what Leask J. was so rightly troubled about when he found (as I have previously quoted) that “senior [federal penal] administrators…generally defer to what those to whom they delegated tasks thought best…Similar deference exists at the regional and national levels in relation to wardens and correctional managers who must deal with the operational realities of their institutions.” While external oversight does not guarantee that the kind of egregious fact pattern so sadly and graphically displayed in the Capay case will not happen again, I am concerned that, once the reforms instituted by this Jahn settlement have become “routinized” both in ministry policy and in practice, the “internal oversight” regime envisaged by Marrocco A.C.J. may over time simply prove to be inadequate to ensure that another Capay case will not arise.[174] As Prof. Jackson has pointed out time and time again, the history of corrections “reforms” in this country unfortunately demonstrates that once attention has moved away from the immediate reason changes were instituted, policies and procedures tend over time to “default back to the mean” of what existed before. In this regard I wish to draw particular attention to the fact that the accused in the Capay case was quite severely mentally ill, and thus not in much of a position to advocate for himself.

I reiterate that even the federal government, which vigorously resisted enacting external oversight provisions for many years (in either legislation or policy), has recently passed legislation creating “independent external decision-makers” in “structured intervention unit” cases.[175]

For all of these reasons, Ontario should modify its view of this issue forthwith.

6.1 It is recommended that Ontario seek Royal Assent to proclaim in force ss. 65-67 of the 2018 Correctional Services and Reintegration Act, and establish the necessary mechanisms for the appointment and training of Independent Review Panels as envisaged by that legislation.

  1. The need for independent decision-makers in institutional disciplinary decisions where being placed in “close confinement”/segregation is a possible penalty.

In the Interim Report (PDF, 2 mb) I referenced the fact that s. 29 of the Ministry of Correctional Services Act continues to govern disciplinary decision-making processes in Ontario correctional institutions. Given my mandate to examine and report on the potential ramifications of such decisions for persons in custody suffering from mental illnesses, I expressed concern that, no matter how well-intentioned a Superintendent might consider that they are behaving in conducting a disciplinary hearing against a mentally ill person alleged to have breached an institutional offence, neither the alleged offender nor “a reasonable well-informed member of the public” (to quote the Supreme Court of Canada) would consider that justice has both been done and – equally important – be perceived to have been done. In this regard I noted that several Superintendents and other staff who deal with mentally ill persons in custody have made a point of reminding both myself and the Independent Expert and her team of their frequent and ongoing difficulties in dealing with such persons in custody, and have repeatedly expressed desires that Legal Aid Ontario be adequately funded to provide advice and representation (at disciplinary hearings and segregation reviews) to the mentally ill.

The Interim Report also referenced that various portions of the Correctional Services and Reintegration Act 2018 already passed by the Ontario Legislature, anticipate the establishment of “Independent Regional Chairs”, who will assign “Disciplinary Hearings Officers” to adjudicate cases of “alleged misconduct that is serious misconduct”.[176] I thus recommended that these sections of the CSRA be proclaimed in force, and that the necessary supporting infrastructure be created. Because the ministry has informed me over several months that it “will consider this recommendation as it seeks direction on an overall approach for corrections legislative change”, as indicated supra I now find it necessary to repeat that recommendation.

Unfortunately, this does not end the matter. Even where a superintendent elects to treat an allegation of misconduct as “not serious”, it is the ministry’s current position that placement in “close confinement” (disciplinary segregation) is a potential penalty available to a Superintendent in these circumstances (see Chapter 4, section 6 of the Interim Report). Though it would appear from my discussions and consultations with Superintendents that such a penalty is only applied “very rarely” to persons in custody who suffer from “serious mental illness”, the Interim Report proposed the proclamation of that section of the CSRA that would preclude the imposition of such a penalty on any person in custody found to have committed a minor disciplinary offence.[177] However, given that none of the various independent decision-maker provisions of the CSRA had been proclaimed in force, I anticipated that the MCSA would remain in force for the time being; with that in mind I proposed (a) that the ministry adopt a standard by which no mentally ill person in custody be disciplined for a minor institutional offence by way of placement in “close confinement” unless there had been findings of guilt for at least two previous similar offences during the same period of confinement, and (b) that a Superintendent be required to deduct any time spent in administrative segregation pending disposition of the allegation of misconduct from any penalty of close confinement ultimately imposed for that offence.[178]

As discussed in Section 5 of this Report, thus far the ministry has not provided me with what I view as an adequate response to these and other recommendations I made regarding disciplinary processes. Other than a very late and quite inconsequential meeting with staff seized with developing responses to my recommendations on point, all I received to by way of ministry responses to these recommendations is that:

“The ministry is working on definitions of misconduct, which will inform the response to [these recommendations]. The ministry supports this approach to calculating disciplinary options and will consider implementing [these recommendations] through operational policy…The ministry will also consider [these recommendations] as it seeks direction on an overall approach for corrections legislative change”.

With respect, most of these recommendations are quite uncontroversial, not involving any fundamental changes in policy direction. I cannot see why it is at all necessary that so many months have elapsed with only a commitment to “consider implementing” some of these recommendations (and then only in “operational policies” as distinct from “an overall approach for corrections legislative change”).

Furthermore, Alberta has had a system of somewhat independent decision-makers in provincial discipline cases for at least 15 years.[179] At the federal level there have been “Independent Chair Persons” in “serious” penitentiary discipline cases since at least 1991. Despite my oft-repeated offers to share information about (and some evaluations of) these programs with provincial correctional officials, I have not even been told if someone is presently designated within the ministry to examine the strengths and weaknesses of these examples from other Canadian jurisdictions, which I find disappointing, particularly given the already enacted CSRA provisions and the more recent consideration of the constitutionality of these issues within the two “CCLA” cases.

In light of all of these case law and other developments, and in the absence of any meaningful ministry response to some of my previous recommendations, I would now slightly modify those Interim recommendations regarding disciplinary processes as follows:

6.2 It is recommended that, given a significant number of previous court decisions (at both federal and provincial levels) that the interests involved in disciplinary proceedings are so significant that an independent decision-maker is now constitutionally mandated in cases involving allegations of “serious” institutional misconduct, Ontario should forthwith create, train and staff such positions at all 25 provincial institutions.

6.3 It is further recommended that, if a superintendent elects to seek a penalty of “close confinement” following a finding of guilt for a “non-serious” allegation of misconduct, such a case must be referred to an external independent decision-maker for adjudication (and if the CSRA provisions are proclaimed in force, that referral would be to a disciplinary hearing officer).

6.4 In the alternative, it is recommended that if the ministry elects not to create a regime of truly independent external decision-makers (either under the MCSA or the CSRA), superintendents should be required to specify in writing the reasons why they have concluded that any alternative to “close confinement” could not be met without “undue hardship”, as that term is defined in both the PSMI and D and M policies.

6.5 It is recommended that in any case where a superintendent elects to seek a penalty of either loss of ability to earn remission or loss of remission already earned by a person in custody serving sentence, such a case must be referred to an external independent decision-maker for decision, regardless of any other penalties that may be sought.[180]

As Legal Aid Ontario will be inevitably involved in providing advice and advocacy services to persons in custody who may be the subject of disciplinary proceedings, LAO needs to be adequately funded to perform such tasks, as I have already recommended (see Recommendation 5.14 supra).

  1. Who should be the decision-makers in such cases?
  1. Disciplinary cases:

    In order to obtain some idea of the volume of cases that an independent decision-maker might be called upon to adjudicate, I asked the ministry to provide me with a “snapshot” of “serious” misconduct cases[181] for three institutions thought (by ministry officials and myself) to represent a fair range of geographically diverse populations in different parts of the province.[182] The month of April 2019 was chosen.

    Ministry officials in all three of the selected institutions agreed that the average length of time it would take to deal with a case would be “five to twenty minutes”. This no doubt reflects the fact that in the vast majority of cases recorded, the person alleged to have committed an institutional misconduct either “admits” the misconduct or “admits [the misconduct] with an explanation”. In such cases, the decision-maker’s job is to hear submissions about and then to (usually immediately) determine the penalty to be imposed. In two of the three institutions less than 10% of the “serious misconduct” cases dealt with situations where the person in custody either “denied” or “refuse[d] to admit or deny” the allegation, which would normally require the hearing of evidence, and would obviously take more time.[183] Though the issue would need to be studied in more detail, the overall workload for an independent decision-maker would thus seem to be quite manageable.

    At the federal level “Independent Chair Persons” have conducted disciplinary hearings in “serious” cases for nearly two decades. Unfortunately, federal officials advise that there have not been any recent evaluations of the efficacy of this program, so it is difficult to predict how such an initiative might work out at the provincial level (nor have Ontario ministry officials provided me with any initial assessments of how the program of “disciplinary hearing officers” envisaged by the CSRA might have been operationalized in practice – apparently because these do not exist). Alberta provincial corrections has had a form of external “hearing adjudicators” in serious disciplinary cases since about 2007; from what I am able to tell from various court decisions, that system appears to be working quite well.[184]

    If this proposed recommendation in favour of independent disciplinary decision-makers is to be acted upon, I would suggest that special consideration be given to inviting retired and “per diem” (or supernumerary) judges to apply for such positions. Not only do judges already carry reputations as independent decision-makers, but they would presumably require little training, which could reduce the costs of establishing and maintaining such a program.[185]

  2. Independent reviews of placement in “conditions that constitute segregation” for non-disciplinary cases:

    It is presently difficult to evaluate the amount of work that would be necessary to properly staff such positions; consequently, it is difficult to make specific proposals as to who would be best suited to act in such a role. In the 1996 Report of the Commission of Inquiry Into Certain Events at the Prison for Women in Kingston Commissioner Arbour made alternate recommendations on this issue. Her preferred course of action was that if placement in segregation in a given calendar year “approached” 60 days, and that if CSC was “of the view that a longer period of segregation was required, the service be required to apply to a court for a determination of the necessity of further segregation”.[186]

    This concept has been revisited very recently during the final Parliamentary debates regarding Bill C-83, where certain Senators urged that speedy judicial oversight was essential to ensure that prisoners placed in “structured intervention units” would not languish. Because of the heavy demands that this would place on scarce judicial resources, the federal government rejected the proposed involvement of judicial decision-makers; instead, the government largely adopted Commissioner Arbour’s alternative recommendation to the extent of providing for “independent external decision-makers”:

    “9(f)(i) that segregation decisions be made at an institutional level subject to confirmation within five days by an independent adjudicator;

           (ii) that the independent adjudicator be a lawyer, and that he or she be required to give reasons for a decision to maintain segregation;

           (iii) that segregation reviews be conducted every 30 days, before a different adjudicator each time, who should also be a lawyer, and who should also be required to give reasons for his or her decision to maintain segregation;”[187]

    It is tempting to suggest that, as I have just recommended with regard to disciplinary decisions potentially involving a penalty of “close confinement”, that priority be similarly placed on engaging retired or per diem/supernumerary judges to fulfil the role of external independent decision-makers in reviewing decisions to place or maintain a person in provincial custody in “conditions that constitute segregation” for non-disciplinary reasons. However, the possible implications for workload will no doubt be significantly affected by the decisions Ontario ultimately takes regarding the stages at which such reviews are to take place (which may in turn be affected by any decision the Supreme Court of Canada may render on point).

    Unlike the recently enacted amendment to O. Reg. 778[188] which will reduce the maximum amount of time a person in custody may spend in disciplinary segregation from 30 to 15 consecutive days, depending on what the Supreme Court of Canada may ultimately rule, Ontario has not yet taken any final policy decisions regarding “caps” on how long a person in custody may spend in non-disciplinary “conditions that constitute segregation” or the stages at which various reviews should take place during any such placement in “conditions that constitute segregation”. Though interim policies have been shared with both the Independent Expert and myself, Ontario is cognizant of the fact that these policy proposals may in turn be affected by whatever decision the Supreme Court of Canada may ultimately render on these issues.

    Under the existing procedures contained in Reg. 778, initial reviews of segregation placement and maintenance are currently conducted by superintendents or their designate. Effective October 29, 2019 The ministry has instituted a new “ADM-IS Directive”[189] which envisages that if a person is still detained in “conditions that constitute segregation” for non-disciplinary reasons after four days, and the superintendent proposes that they continue to be detained for a longer period, regional director (or designate) is to provide a written decision on the fifth day.[190] The new Directive reads:         

    “The independent reviewers are the deputy regional directors, who will conduct the reviews and make decisions on the fifth and tenth days. If the inmate continues to remain in segregation conditions by the fifteenth” day, the ADM-IS​ will conduct the review and provide direction to the institution on the decision”.[191]

    The ministry proposes that by virtue of re-designating this responsibility, the process should now be considered an independent review, so long as the designate is not a superintendent or anyone who reports them. As previously indicated, I do not accept that this amounts to the kind of independence that is now constitutionally mandated in these circumstances.

    The ADM-IS​ must submit a written report to the minister (or delegate) which outlines the reasons for keeping any person in custody in “conditions that constitute segregation” for 15 continuous days.

    Leaving aside the question of whether these various processes are conducted by constitutionally independent decision-makers, the Independent Expert has additionally suggested that segregation reviews will need to be conducted every four days in order to allow time for adequate corporate-level interventions that fulfill the ministry’s requirement under the terms of the Jahn Consent Order to conduct a proper “undue hardship” analysis. She argues that because the Consent Order binds the ministry, rather than individual institutions and regions, there must be ongoing consultation between these “local” decision-makers and the ministry’s “corporate office” to ensure that the “undue hardship” test required by the Consent Order has been both met and, more important, documented in writing in every individual case. She argues that only by undertaking such an analysis can the terms of the Consent Order be properly fulfilled.

    I entirely agree with the Independent Expert on this issue. However, as has unfortunately occurred in Canadian corrections on so many previous occasions – and as the Capay case so dramatically demonstrates, I remain very concerned that over time, reasons documenting “undue hardship” may become pro forma. I reiterate that, while external independent review by no means guarantees adequate oversight over segregation decision-making, such a form of external scrutiny may screen out some of the excesses that Capay and its progeny document. In this regard, I note that the federal government, which has for so many years vigorously opposed the concept of external independent decision-makers, has recently enshrined such positions in legislation. As previously indicated, I urge Ontario to do the same.

6.6 It is recommended that the proposals respecting timeframes for “segregation reviews” made by the Independent Expert on point be adopted as ministry policy, pending any final ruling that may ultimately expressed by the Supreme Court of Canada.

What I urge above all is that the principle of external independent adjudication be adopted by Ontario, with questions as to who might be invited to apply for such positions being deferred until workload expectations are more certain.

Issues carried over from Interim Report

At the conclusion of my Interim Report (PDF, 2 mb)  I listed 10 possible issues which at the time seemed to be potentially worthy of further comment and analysis in this Final Report. Six of these have already been discussed in earlier sections of this Report:

  1. Examining and interpreting ministry and stakeholder responses to the interim recommendations contained in this progress report, paying particular attention to those most closely involved in institutional service delivery to mentally ill persons in custody

See Section 5 supra.

  1. Reviewing the evolution of pending appellate case law and proposed federal legislation intended to reduce the numbers of federally sentenced prisoners placed and maintained in a range of segregation-like conditions

See Section 6 supra. In that section I also describe and evaluate Ontario’s current policy responses to recent appellate case law.

  1. Examining the effectiveness of accountability and oversight mechanisms put in place and operationalized by the ministry, including the mechanisms for assessing undue hardship before placing persons in custody with mental health disabilities in conditions that constitute segregation

See Section 3 supra.

  1. Developing measures designed to encourage ministry staff involvement (both corporate and “field”) as “core members” of the Ontario criminal justice system, in order to strengthen timely and effective communication and improve decision-making

See Section 3 supra.

  1. Examining barriers to the routine sharing of ministry human-rights based data and statistical studies – particularly those which consider aspects of the incarceration of mentally ill persons - with the public and interested researchers

See Section 3 supra. This issue is also extensively considered in the Independent Expert’s Report in Section 4 of this Report.

  1. Examining barriers to the expansion of the “red bag” program and improvements in service delivery to mentally ill persons in custody who are “unexpectedly released” at court

See Section 5 supra.

I now turn to consider three separate issues that I identified in my Interim Report:

  1. Examining barriers to public availability of ministry policies that continue to exist despite Ontario’s commitment to “open government”. This examination is particularly required given that many other Canadian and foreign correctional jurisdictions have for many years posted most of their policies on the internet[192]

Since the release of my Interim Report, I have had a number of discussions on this issue with ministry staff, who have quite properly explained that the processes of collecting all ministry policies, evaluating whether there are security (or other) concerns that would reasonably preclude them from being publicly released, as well as updating them at regular intervals, would all be extremely expensive.[193] After considering their concerns, I agreed with staff that I would be satisfied if only the two policies most relevant to my mandate – the Placement of Special Inmates and the Discipline and Misconduct policies - were to be made publicly available by being posted (with updates) on the ministry website.

As of the date this Report is being submitted to the ministry (January 31, 2020) I have been advised that no decision will be taken by senior correctional management as to whether these two policies are to be posted on the ministry website until “they have been finalized and implemented”. However, at an earlier stage in my discussions with ministry staff, it was suggested that it was likely that only a summary of these two policies would be posted on the website, given that summaries of several other policies are already posted on the website. I believe it is an error in principle to equate these two policies with, say, summaries of policies regarding the availability of educational programs or making an application for parole. Precisely because these two policies involve the possibility of often very vulnerable persons in custody being placed or maintained in “conditions that constitute segregation” or losing remission, it is my firm view that the full policies need to be made readily available to potentially interested persons.

In my discussions with ministry staff I raised the example of how a lawyer whose client has been placed in “conditions that constitute segregation” can ascertain whether procedures were properly followed, so she can properly advise her client[194] whether to accept or challenge such a decision. I also used the example of a family member who wishes to learn why their relative has been segregated. I pointed out to these officials that the current summary of Segregation policy on the ministry website is simply inadequate to provide this level of information, to which the response was that “the lawyer will be able to get the actual policy if she starts an action and seeks discovery as part of the process”. In the absence of any claim that security is somehow involved (which cannot be the case here), such an arbitrary restriction is uncalled for. This is not what we mean by transparency and accountability under the rubric of “open government”.

7.1 It is recommended that the Placement of Special Inmates and the Discipline and Misconduct policies be made publicly available by being posted in full (with updates) on the ministry website.

  1. Examining barriers – real and perceived – to adequate sharing of information among those who deal with mentally ill persons in custody, most particularly institutional front-line staff, mental health professionals, and probation staff

“Lawyers, judges, wardens and even scholars often treat the criminal courts and the penal administrative realm as two separate worlds”.[195] - Prof. Lisa Kerr, Queens University Faculty of Law

In section 5.1 of my Interim Report (PDF, 2 mb) I discussed some ways in which senior corporate staff were being continually misinformed about the ministry’s supposed inability to access mental health assessments filed as Exhibits in (adult) criminal court proceedings. I described how such misinformation stemmed from wrongful interpretations of the supposed limitations contained in Ontario’s privacy legislation. I detailed how I found it necessary to convene a meeting of governmental and private sector legal privacy experts who explained that, except in very rare circumstances, Ontario and federal privacy legislation do not affect access to court filings; they also advised that ministry officials were simply in error in their assumptions about the scope of privacy legislation. I commented that “it is simply unacceptable that the ministry’s senior management should be so ill-informed about basic rules and procedures governing the operation of [privacy legislation]” and recommended that consultation with experts in privacy legislation should be “embedded” into the development, evaluation and application of ministry policies.

I now turn to another aspect of Ontario’s privacy legislation that needs to be addressed. This derives from a series of meetings the Independent Expert and I have held with union members of the ministry’s Corrections Management Employee Relations Committee (MERC), who have continually voiced their concerns – to us and to the ministry – that “the limitations contained in the privacy legislation” result in line staff in a number of institutions being told that “nothing about the inmate’s physical or mental health can be shared”. MERC officials have expressed fears that such a rigid interpretation of the Personal Health Information Protection Act (PHIPA) can – and in their view does – compromise both the way line staff interact with persons in custody and, just as important, the physical safety of officers who must frequently deal with extremely difficult and unpredictable prisoners, many of whom are suffering from various degrees of mental (and physical) illness. Simply put, the core issue that has been described to myself and the Independent Expert is that front-line correctional officers, who have the most contact with persons in custody on a day-to-day basis, are designated as security, not health staff, and thus are prima facie precluded by PHIPA legislation from being privy to confidential health information about persons in custody, including information pertaining to their mental health.

In order to address this issue adequately, some very brief background is necessary. Ontario’s privacy legislation is mainly based on three rather complex statutes: the Freedom of Information and Protection of Privacy Act (FIPPA), the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), and, most importantly for current purposes, the Personal Health Information Protection Act.

PHIPA was created in 2004 “to establish rules for the collection, use and disclosure of personal health information about individuals that protect the confidentiality of that information and the privacy of individuals with respect to that information, while facilitating the effective provision of health care”[196]. The legislation thus attempts to balance the sensitivity of an individual’s personal health information and the importance of ensuring the privacy of that information, with the needs of groups or organizations to access and share this information in order to effectively provide and improve upon health care services to Ontarians. In other words, “the Act sets out rules to balance different interests in circumstances where the needs of other parties may affect or conflict with the individual’s right to privacy”[197].

Given that persons in custody are one of the most vulnerable populations in our society, by virtue of their confinement, the legal restrictions on their rights, and their limited visibility amongst the public, Ontario has properly recognized that special attention should be paid when it comes to ensuring their health privacy rights while under the care of the [recently renamed] Ministry of the Solicitor General. Ensuring these rights can be a complex process in a correctional facility, particularly given the high rate of mental and physical illnesses among persons in custody, as well as the sometimes highly unpredictable and often very tense nature of custodial institutions.

An unfortunately all too regular manifestation of these ongoing tensions between “the keepers and the kept” is revealed by the volume of demands (and appeals of rejected demands) for various types of information (health and non-health) by persons in custody. Staff of the ministry’s Freedom of Information and Privacy Office advise that they are required to deal with voluminous numbers of requests/demands for information by and on behalf of remanded and sentenced adults in custody in Ontario provincial institutions under the three statutes previously referenced. In this regard, I was surprised to learn that over the past few years, over 700 decisions about information requests have had to be determined by the province’s Information and Privacy Commissioner (IPC)[198], either referred by the ministry or “appealed” by a person in custody. The acting manager of the ministry’s Freedom of Information and Privacy Office writes:

“Routinely our office withholds information under the Law enforcement exemptions found in FIPPA when reviewing requests for inmate files.The most common types of information that we withhold are victim information, any flags placed on an inmate’s file i.e. gang affiliation, known violence behaviour, other inmate’s names, information supplied in confidence and correctional records supplied in confidence (immigration holds, federal institutions providing information to a Provincial Institution).We also withhold information about their history and supervision; this exemption 14(2)(d) is often used in conjunction with other exemptions, an example of this would be information about an inmate with a gang affiliation as to ensure that he/she is not housed with a rival gang member. Any CPIC information would be withheld as well.We have been appealed on our use of these exemptions and in most cases we have been upheld on our decisions….The only issue with these types of Orders are that the IPC has to anonymize the Order in a manner as to not disclose the appellants information.Therefore, the information in the order and how the ministry was upheld is only know to the IPC, the appellant and the ministry.

The Community Safety Act does provide managers with the ability to release personal information about adult offenders in specific circumstances to the chief of police or designate, the general public (any person), victims, agencies and other authorities.The circumstances in which this information can be released is clearly defined in that act and in our ministry policies.”

Though some of these various types of applications for information (and frequent denials of such applications) no doubt relate to individuals in Ontario adult custody facilities who are considered to be mentally ill, I have decided not to make inquiries into such matters, as I am not aware that they raise substantive questions about the overall treatment of mentally ill prisoners. (Nor do my Jahn Terms of Reference expressly direct me to investigate and report on such issues of access to information).

I should further specify that I have also decided not to investigate the sometimes extremely difficult issues surrounding what Ontario’s privacy legislation implicates for the sharing of information with courts and criminal justice professionals who deal with issues of fitness to stand trial and other aspects of mental illness in court proceedings. As my principal mandate is to examine the treatment of the mentally ill held in custody by the ministry, I will do no more than flag the fact that, as a judge who presides from time to time in cases involving mentally ill accused and offenders, I am acutely aware that PHIPA can – and often does – create significant barriers to the sharing of important information with courts and court personnel, thereby potentially compromising public safety. Throughout my mandate I have been continually reminded by both criminal practitioners, IPC counsel, judges and mental health professionals that this is an issue requiring ongoing re-evaluation by legal, medical and judicial experts in the field[200].


“Different clinicians have different definitions of [what comprises] privacy [under Ontario legislation]. So the type and amount of information shared is largely inconsistent." – Ministry psychologist

I now turn to address MERC’s concerns about why and how tension between PHIPA and the realities of managing mentally ill persons in custody continually arises. It is important to begin with the ministry’s current definition of an Inmate Care Plan[201]:

4.2 Care Plan: A Care Plan (for those inmates with mental illness and/or Specialized Care placements) is a written document that guides a consistent approach for inter-professional team members on how to meet care goals and support needs. Care Plans are dynamic documents and are updated as needs and conditions of an inmate evolve over time. Inter-professional team members (e.g. correctional officer, program staff, mental health providers, Native Inmate Liaison Officer (NILO), Elder, social workers, community outreach, etc.) work collaboratively to develop the Care Plan including input from the inmate.

Included as part of the plan are:

  • 4.2.1 management and care specific to the inmate
  • 4.2.2 strategies on managing behavioural issues (e.g. identification of triggers, de-escalation techniques)
  • 4.2.3 living unit options and progression (which unit the inmate will be placed or housed in)
  • 4.2.4 interventions/therapeutic options (e.g.​ access to worship room, arts/crafts, physical activity, reading/writing, relaxation/meditation, sensory stimulus, supportive conversation/engagement, etc.)
  • 4.2.5 observed behaviour
  • 4.2.6 Human Rights Code related needs, (including accommodations and specific cultural considerations (e.g.​ Indigenous, religious, sex, gender identity or expression, sexual orientation, mental, physical and developmental disabilities, faith, etc.)
  • 4.2.7 programs and services
  • 4.2.8 dietary needs
  • 4.2.9 discharge planning/preparedness (linking to community services)
  • 4.2.10 any security measures recommended to mitigate risk
  • 4.2.11 reviews and updates

From the express reference to “correctional officers” in this policy, I consider it obvious: (1) that Care Plans are intended to be used by line staff, and (2) that line staff are allowed and expected to participate in their creation as part of an Interprofessional Team[202]. Both of these goals are intended to facilitate the care goals and support needs of individuals in custody in their day to day interactions. It naturally and logically follows that such documents can and should be readily accessible to unit and support staff at all times, so they may be consulted whenever necessary. Furthermore, staff need to know not just where and how to consult these plans, but also how to, and who may, have the right or authority to meaningfully contribute information to these plans on an ongoing basis.

After speaking with a number of representatives from institutions throughout the province, I have concluded that the union is entirely correct that there remain significant ambiguities in policy that should be clarified for the future assistance of health care/nursing staff[203], line staff, and any other staff involved in the development and use of Care Plans.

According to the ministry’s Oversight and Accountability Unit: “[T]he Inmate Care Plan will not include any confidential information that is subject to PHIPA such as diagnoses or prescribed medications. However, information such as observations, symptoms and compliance or non-compliance with medication is expected to be shared where relevant”[204], and they are intended to be contributed to and utilized by members of an Inter-professional team, which, as outlined above, may consist of a wide array of institutional staff. However, despite the fact that ministry policy is that Care Plans are not considered to be medical documents, I reiterate that discussions with union representatives and line staff in several institutions reveals that there is a considerable lack of understanding about Care Plans across staff throughout institutions, including their development, implementation, intention, function, and ongoing utilization at the operational level, as well as who is primarily accountable for them.

First, from discussions with line staff at several institutions, many are under the impression that it is health care staff who are ultimately responsible for these documents. Front-line representatives from multiple institutions have reported that they are not involved in Care Plan development, and do not consistently have access to such documents. Perhaps more important, line staff have told myself and the Independent Expert that because Care Plans are usually created for persons in custody experiencing mental health issues (particularly those in Specialized Care Placements), they believe that these are the inmates who will most likely have ongoing interactions with health care staff.

Second, as I read the ministry’s current “Management of Personal Health Information” policy[205], it is by no means crystal clear exactly what, and how much information may be shared by a “health information custodian” with non-health care staff. For example, under the heading “Confidentiality”, health care custodians are directed “not [to] enter…detailed health care information into logbooks or reports that may be accessed by non-health care staff…” and “not [to] enter…health information on OTIS [206] that includes diagnoses or identification of specific health problems”. While there are examples provided about the types of information that cannot be shared, it is noteworthy that the policy provides few if any examples of the types of information that health care staff can and should be sharing with those on the front line. Unfortunately, with limited specificity to guide them, I can readily see how a health care custodian might well choose to interpret such restrictions as “detailed health information” and “identification of specific health problems” in a particularly cautious manner, so as to avoid potentially breaching either ministry policy or PHIPA.

Thirdly, problems also exist regarding securing the person in custody’s consent as a condition precedent to disclosing health information to other staff. The “Disclosure” provisions described in the relevant policies direct that “a signed consent to the Disclosure of Personal Health Information shall be obtained from the inmate prior to disclosing any personal health information to operational staff”. Though the policies do specify that prior consent is not required “if the use or disclosure is…necessary for the purpose of eliminating or reducing a significant risk of serious bodily harm to a person or group of persons”[207], two health custodians in different institutions have raised with my research assistant their concern that they are somewhat uncertain as to how to best apply the restriction that the risk of bodily harm must be “significant” before it can be disclosed to line staff (particularly if the person in custody seems to have no history of violent acting out while in custody, and if the offence charged is non-violent).

I can readily appreciate the ministry’s concern that, precisely because persons in custody are maintained in an artificial and separated environment, the core principle that health information be kept private must be carefully protected. I also agree that the strictures deliberately enacted in PHIPA are very much designed to emphasize that privacy must be respected unless there are sound and important reasons for over-riding it. However, if PHIPA is being interpreted by some ministry health care staff as authorizing (or requiring) them to deny line staff access to any health information about a person in custody, that interpretation is largely inaccurate, and should be corrected forthwith. The provisions of both PHIPA and ministry policies amply establish that, while front-line correctional officers are usually[208] not entitled to know the precise medical diagnosis of the mental health condition(s) the person in custody is suffering, such officers are certainly entitled to know about anticipated (or potential) symptomatic and/or behavioural changes that may result from a change in an inmate’s treatment plan. A common – and common sense – example of this is that line staff should be informed that, as a result of a medication change, a mentally ill person in custody may be unusually groggy during those officers’ shifts. Without this knowledge, line staff may not be able to properly appreciate that a failure on the inmate’s part to respond appropriately to staff commands may be reflective of side effects of medication, rather than a wilful refusal to obey[209].

This is made somewhat more complicated by the fact that, in some institutions, line staff officers may be members of an “inter-professional team”. As part of the ministry’s December 2018 rollout of its substantially revised Placement of Special Management Inmates (PSMI) policy, the ministry produced “Q&As [which] will be a working document that will be updated as we work towards full implementation” of the various new types of specialized placements envisaged in the revised policy. Q&A #9 reads:

Q. Are correctional officers to be part of the inter-professional team?

A. Yes, correctional officers should be part of the inter-professional team, attend weekly meetings and assist with the inmate’s Care Plan. Correctional officers are a primary source of information (observations and comprehensive documentation) used for decision making. The reason the policy states “may” is to provide flexibility to institutions in the full composition of the inter-professional team depending on their available resources.”

While there is certainly nothing wrong – and much right – with involving line staff officers as members of “inter-professional teams”, this does not appear to be occurring with any kind of consistency or regularity across institutions. As a result of resource or staffing considerations, it seems that sometimes only unit managers or staff sergeants are included as inter-professional team members in some institutions, while line staff are included as members of such teams in other institutions. These limitations are understandable given the variability of institutions across the province; however, I am left with the overall impression that pertinent and relevant information and updates about persons in custody are not consistently disseminated to workers on the front lines – those who interact the most with persons in custody and by whom these plans could potentially be utilized most effectively.

Due to the fact that there is no standardized approach in policy for disseminating relevant information or changes discussed in those meetings to front line staff, it is also entirely possible that what gets discussed in Inter-professional team meetings does not actually make its way to the correctional officers “on the line”. To draw on the example described above, a nurse may only inform a CO that a person in custody might be unusually groggy if their paths happen to cross while the nurse is on the way out of the unit; however, if the line officers are otherwise occupied, the opportunity for communicating that information may be missed entirely. What is more, even if that communication does occur, there is no procedure for how that information can or should be consistently communicated to line staff on subsequent shifts in that unit.

It is clear that the ministry’s intention has been to allow individual institutions the ability to structure their own individualized procedures for the development, maintenance, and utilization of Care Plans so as not to create overly restrictive and/or unrealistic approaches that could be impractical due to operational or structural limitations at a particular facility. While I appreciate the intention, I am concerned that this may have contributed to a lack of clarity in terms of whose purview Care Plans fall under, who has access to them, who may contribute to them, and how the information is utilized in practice, all of which seems to have unfortunately resulted in their lack of maximal effectiveness at an operational level.

7.2 It is recommended that the ministry establish a province-wide policy for the development, maintenance, access, and utilization of care plans across institutions to ensure ongoing standardization and accountability.

It has also come to my attention that there is a lack of training curriculum at the foundational level for COs surrounding the creation, exercise, and communication of Care Plans. I am told that while such plans are “referenced”[210] in basic training, precisely because the ministry has allowed for flexibility across institutions for how Care Planning is to be carried out, there presently is no standardized approach across the province to educating staff on the intricacies of these documents; thus, I agree with union representatives that new recruits and front-line correctional officers are not receiving standardized operational training surrounding how to translate these critical components of Care Plans from policy into practice. [211]

Common sense suggests that COs who work on the units are likely to have more interaction with mentally ill persons in custody than anyone else in the institution and are uniquely situated to make ongoing and informed observations about changes in behaviour. Indeed, it frequently transpires that it is front line officers who are the first to notice a change in behaviour and who bring this to the attention of a nurse or other member of the health care staff [212]. This highlights the need for information-sharing to be occurring in several directions among multiple roles within the institution as a shared responsibility to the ongoing care and well-being of mentally ill persons in custody, rather than falling solely on the shoulders of one unit or department. This is precisely why Care Plans are designed to be contributed to by a multi-disciplinary staff team.

Care Plans are intended to aid those who engage most with persons in custody who are mentally ill, and to help facilitate the most positive and constructive interactions between staff and a vulnerable, and potentially volatile, population. However, given the experiences of front-line officers noted above, and the types of mentally ill persons in custody who are generally the subject of Care Plans, it is understandable that misconceptions exist surrounding the idea that they are primarily a tool under the purview of health care staff. It is imperative that correctional officers are trained to understand that these documents are at least in part intended for them, to make their jobs safer and their interactions with often difficult persons in custody more streamlined and productive. It is understandably difficult for them to comprehend the relevance and benefit of these documents if the plans are not being properly updated and maintained, and if staff are not instructed on their purpose or how they are intended to function, let alone given access to them.

In this regard, my research assistant consulted with staff of the ministry’s Corporate Health Care and Wellness, Operational Support Division, to find out the type of training that exists for health care staff around these Care Plans; I was disappointed to learn that no such training exists at a province-wide level. It seems that there is no “basic training” equivalent for nurses, medical doctors or other mental health personnel practicing in corrections; all of their corrections-related education occurs after they accept their job position; training takes place within the institution in which they are employed, based on the practices of that specific facility. I was separately advised  by staff of the ministry’s Training Centre that part of the foundational training of correctional officers respecting privacy issues/legislation “identifies that the management of personal health information is the responsibility of health information custodians such as health care manager/coordinator/senior nurse or designates”. Perhaps this is where some health care staff’s reluctance to share information with line staff is founded.

It is inappropriate that the ministry has not yet established any formal set of standards and training for preparing health care staff practicing in correctional institutions, instead letting the responsibility fall to individual facilities. If we expect a certain standard of care to be practiced by these individuals, regardless of where they are employed, then it is a corporate responsibility to develop and communicate that standard throughout the province. Many front-line health care staff I have spoken with have reported feeling woefully ill-prepared for the challenges they face working with prisoners in these correctional environments, and felt the training they did receive from the institution was inadequate. Working in correctional facilities is a very niche environment, one which the vast majority of health care staff have little to no experience with prior to their entry into their positions in institutions. Given the unique challenges these staff face, it is unacceptable that they are being sent in to perform a job without the appropriate level of preparation about what to expect and how to handle the unique demands of the job they are tasked with.

7.3 It is recommended that the ministry develop and implement a standardized provincial-wide training curriculum for health care staff employed within Corrections.

Another potential area of difficulty for health care staff may derive from the directions they receive from their professional regulatory bodies (usually called “Colleges”). While I have not examined in any detail all of the standards of professional conduct applicable to nurses, social workers, medical doctors and psychologists (the groups most likely affected by their employment in corrections), I am generally aware that they all have in common that they place very high emphasis on the importance of maintaining client/patient confidentiality by a member of the appropriate College.

7.4 It is recommended that the ministry conduct a scan of health care regulatory bodies’ Standards of Professional Conduct (or other equivalent sets of professional rules) to investigate whether these may need to be developed/modified to better address the balance between patient/inmate privacy interests and correctional realities. It is further recommended that the ministry (a) canvass health providers employed within the ministry to ascertain what points of tension may exist; (b) share the outcomes of such canvasses with the respective licencing bodies (“Colleges”); (c) involve the Office of the Information and Privacy Commission as necessary.

7.5 It is recommended that the ministry establish and/or clarify a set of standards for Care Plans, delineating a number of basic roles and functions of the document.[213]

7.6 It is recommended that in each institution there be an individual designated who can ensure that Care Plans are being utilized effectively and consistently, and with whom any member of staff can consult.

While it is essential that care plans remain dynamic documents that are contributed to by a variety of stakeholders throughout the institution, it has become apparent that if no one is specifically assuming responsibility for them, it can and does compromise the ability of these plans to be utilized effectively and consistently.

7.7 It is recommended that there should be minimum requirements established for the number of staff involved in the development of a Care Plan to ensure that there is diverse contribution from staff, thereby potentially increasing the chances that a mentally ill person in custody’s needs are being more comprehensively considered.

The Care Plan template that currently exists includes a list of 24 possible participants (as well as an “other” category), that can be ticked off to indicate participation and consultation in the care plan over the course of incarceration. However, there is no minimum number of participants that is explicitly stated who must be involved in the creation of the plan. This may be an important distinction to formally establish, so that a care plan is not created by a single individual who cannot possibly conceptualize all possible useful interventions for an individual in custody. Having multiple stakeholders involved who are responsible for a variety of different concerns relating to inmate needs ensures that approaches to care are multifaceted and dynamic, and so front-line staff consulting these documents have numerous and varied approaches to try in case one or another proves unsuccessful in a given situation.

There may also need to be minimum frequencies established to determine whether Care Plans need to be reviewed or updated. If this is only done on a reactive basis, changing needs will likely be recognized only when they ultimately become a problem. Establishing a consistent review cycle at least ensures that some individuals are not being ignored at the expense of more demanding inmates.

7.8 It is recommended that a standardized policy be devised province-wide that includes a regular schedule for reviewing individual care plans and determining whether they are still relevant and comprehensive, or if they require updating and revision. It is further recommended that it be clarified that all necessary staff should have access to Care Plans. It is further recommended that there also need to be clear and explicit guidelines for updating Care Plans, including who is and is not permitted to contribute and make changes, and how those changes need to be made, recorded and communicated to all relevant stakeholders.

It must also be made explicit which staff are permitted to both review and contribute to these documents to eliminate any ambiguity or confusion about who may participate in their creation and ongoing development. These need to be occurring for both short-term (e.g.: a few days, while a person in custody adjusts to a new medication or dosage) and long-term (e.g.: complete abandonment or adoption of programs or tactics) changes.[214]

  1. Examining what more can be done to encourage and facilitate persons in custody (remand or sentenced) not to seek to “self-segregate” in conditions that constitute segregation

“In the [court] record there is ample evidence from [the offender] that the long term confining of him in segregation had serious psychological consequences….Over a year in segregation, with almost no yard or other recreational time and simply sitting alone in a small cell for up to 23 hours a day, will turn a person into himself and create anxiety in dealing with others.”[215] - Justice E. M. Morgan, Ontario Superior Court (2018)

One issue that remains somewhat unaddressed in regards to “conditions that constitute segregation” surrounds the placement of persons in custody who enter into segregation conditions by their own request. Among those prisoners who were in segregation for 30+ continuous days between January 31, 2018 and January 31, 2019, over 56% were there by their own request.[216] For persons in custody who spent 60 or more aggregate days in conditions that constitute segregation during that same time period, just over 34% had requested placement there.[217] Overall, between July 1, 2018 and June 30, 2019, 31.5% of segregation placements were related to “own requests”.[218]

As the Independent Expert has noted in her Report (see section 4) these rates raise a number of concerns. The general motivation for such requests is based on a desire for ‘safe’ living conditions, which can be generated from a fear of being housed in the general population. This is likely reflective of prisoners’ perceptions that ‘safe’ living conditions cannot be achieved in the general population or cannot otherwise be assured by the institution. It may be prudent for this issue to be studied further, to determine whether there are discernable patterns in the types of persons admitted to custody who apply for such placements, how soon after entering an institution persons in custody are requesting to be kept in conditions that constitute segregation, whether there are significant distinctions in these figures between those who are sentenced versus those on remand, what successes the ministry has achieved in dissuading such persons from remaining in conditions that constitute segregation, and what strategies ministry personnel may have employed in so doing . This may elucidate whether these requests are motivated by fear caused by a lack of experience with incarceration or that specific institution, or conversely, if these are informed decisions based on previous lived experience with a particular facility.

Policy dictates that requests[219] to be kept in conditions that constitute segregation are to be considered on an individual basis by the superintendent or designate.[220] Furthermore, PSMI policy is clear that such requests should only be approved as a last resort after all other placements and strategies have been considered and rejected. However, the Independent Expert and I have both been told by some Institutional Admissions Officers in different facilities that they are of the view that if a newly admitted prisoner requests to be segregated, they have “no option” but to accede to that request. Perhaps more needs to be done to educate staff on the rules surrounding alternative placement options to try and limit reliance on this designation.

For those who do not qualify for Specialized Care Placements, one might assume that a natural alternative would be placement in a Protective Custody unit. However, assignment to a PC unit is not perceived to come without baggage, as those housed here are often assumed (rightly or wrongly) to be informants, child molesters or (increasingly) those caught up in inter- and intra-gang “turf wars”. Understandably, then, some would rather deal with the isolated conditions that segregation entails, rather than carry the label of “PC”.

7.9 It is recommended that placement in conditions that constitute segregation as a result of a person in custody’s own request should be studied with a view to determining (a) whether such placements are overused, and (b) whether policies can be developed or modified to encourage alternative placements to be accessed. The methodology and results of such research study should be shared with the proposed Committee of Independent Experts and with the proposed Ministerial Advisory Committee on the Treatment of Mentally Ill Inmates.[221]

After speaking with front-line staff who regularly supervise persons in custody kept in conditions that constitute segregation, one approach that tends to be utilized in several Ontario institutions with some degree of success is a series of “rotational unlocks” among small groups of segregated prisoners simultaneously. While these persons in custody obviously need to first be assessed to ensure compatibility with others housed on the unit, so long as there are no apparent conflicts, small groups of prisoners, usually around 4 to 5 at a time, will be unlocked from their cells simultaneously and given access to a day room (or “step down unit”) together. They are monitored closely by a correctional officer from the unit, who is present in the room and often may engage and interact with the unlocked group as much as possible based on the unit activity at that time.

In the fall of 2018, I visited a Nova Scotia facility that has developed this practice into more of a formal arrangement, creating a unique unit catering to those with developmental delays who may (or perceive that they may) be targeted for bullying or manipulation in the general population. The Central Nova Scotia Correctional Facility has created a “Transitional Day Room (TDR)” for “offenders whose mental health issues are persistent and severe but not meeting the criteria for the Mentally Ill Offenders Unit”, [222] (comparable to Specialized Care Placements in Ontario). With Transitional Day Rooms:

“[T]he goal is to provide this vulnerable population with a safe living environment that is more geared to respond to their mental health needs than a general day room within the facility.  Further, through direct supervision and specialized training for the staff, offenders are able to be housed together rather than segregated.  In addition, through collaboration between the Nova Scotia Health Authority and The Department of Justice, the care and treatment will be coordinated throughout their placement.

The services offered to those within the TDR will be comprised of a more intensive case management approach but whose components are already provided for all within the CNSCF.  Programing and activities will consider the variable cognition of those within the day room.”[223] 

7.10 It is recommended that where feasible, in institutions that have the resources or facilities available, specific units be designated for developmentally delayed or otherwise physically vulnerable persons in custody. It is further recommended that the ministry consult with other jurisdictions to examine unique approaches, such as the Transition Day Room in Nova Scotia, that are being utilized to avoid keeping prisoners in conditions that constitute segregation. 


The provision of legal services to persons in custody:

Though I did not specifically identify the provision of legal services to persons in custody as an issue I intended to directly address in my Final Report, there are several places in my Interim Report where I referenced the [then] state of legal advice and advocacy services to persons in custody through Legal Aid Ontario. Without repeating these, LAO and the ministry have in recent years established a pilot program whereby legal aid duty counsel are “embedded onsite” in several of the larger Ontario institutions. While their formal mandate is limited to assisting persons in custody in obtaining bail, to make applications for legal aid and to respond to questions they may have about the process of their charges, I was repeatedly made aware that superintendents and other institutional staff who work regularly with persons in custody who are mentally ill and/or developmentally delayed have come to very much rely on these duty counsel’s involvement with these often difficult prisoners. As one superintendent put it to me: “Sometimes these prisoners are so deranged that we have no idea who their lawyer is, so we can’t talk to the lawyer about their client’s deteriorating mental state.” In a related vein, staff who conduct segregation placement and maintenance reviews have told me that they would welcome the presence of duty counsel “as a voice to speak up for the prisoner”.

After lengthy consultations with a variety of service providers, LAO had been developing a “prison law strategy” which would inter alia involve an expansion of duty counsel services to persons in custody in Ontario corrections. It was also anticipated that funded counsel might be made more readily available for reclassification, involuntary transfer, and segregation review/habeas corpus matters. Finally, it was contemplated that additional funding might be made available for “test case” litigation against conditions in Ontario correctional facilities.

Early in 2019 the provincial government announced very significant funding cuts to LAO. The net result is that that LAO’s overall “prison law strategy” has been shelved, that there is to be no expansion of the number of “embedded” duty counsel, and that any expansions of certificates issued to private counsel to fund them to assist prisoners in provincial custody with respect to their conditions of confinement are unlikely to be forthcoming. LAO advises, however, that some limited funding is still available for private counsel for representation at parole hearings, extraordinary remedies, and test case litigation in the area of prison law, although the hourly coverage for private lawyers conducting parole hearings has been cut back.

Leaving aside the issue of whether there is now a constitutionally mandated “right to counsel” in prison discipline hearings – a decision that may have to await the Supreme Court of Canada’s consideration of the “BC CCLA case” – the contraction of legal aid funding necessitated by the government’s funding cuts is most regrettable to the extent that it will likely significantly affect those very vulnerable and marginalized persons in custody who are the subject of my mandate. In this regard, I want to reiterate that the number of Superintendents and other staff who deal with the mentally ill who have spoken with me about the need for counsel to assist these prisoners is very striking. I thus repeat Recommendation 5.14 (supra) regarding the need for increased LAO funding.

The building of a schedule 1 facility for adult women:

The Jahn settlement requires that the ministry implement recommendations on how to best serve women prisoners with mental illness (PIR#1). I mentioned in the Background section of this Final Report that Jahn “required the ministry to take steps to address…a variety of issues regarding its physical facilities, including agreement by the ministry to build a new custodial institution in Brampton for adult women”.

Beyond this, however, there is no further comment on this requirement in the Final Report. The reason is very simple: although there have been occasional formal and informal briefings about ministry proposals for the treatment of mentally ill women prisoners, neither I nor the Independent Expert have been offered any briefing about the ministry’s plans regarding construction of any dedicated facility. Consequently, I am not in a position to comment on this issue.

Having said this, I have been generally made aware that there are a number of proposals currently under consideration for the development of housing for mentally ill women prisoners. On the basis of what I have been led to understand, none of these appear to contemplate the construction of any new facility (or the re-deployment of any existing facility) specifically intended for mentally ill women in custody in Northern Ontario. If this is the case, I would suggest that particular attention needs to be paid to this issue.

Proposed changes to the sustained training of ministry staff who deal with mentally ill persons in custody, both in institutions and under community supervision:

While my Jahn Terms of Reference do not expressly mandate me to examine this issue, I had hoped to address this obviously important subject matter in some detail. However, with some regret I must report that I have not been able to do so, given the time and resources that would have been necessary to devote to a proper study of this difficult and multi-faceted issue. Given the sad reality that the percentage of mentally ill, developmentally delayed and severely addicted in provincial custody seems to be ever increasing, it goes without saying that ongoing attention to training issues is of singular importance.

I realize that the ministry has undertaken numerous steps to introduce new components to its training curricula, and to modify elements of existing instructional programs, particularly in “foundational” curricula for new recruits. These initiatives, which I believe all concerned consider to be long overdue, are to be applauded if mentally ill persons in custody (and on probation or subject to conditional sentences) are to be exposed to adequate management, treatment and counselling.



7.11 It is recommended that Ontario analyze its staffing needs for segregation, restrictive confinement, and specialized care placements. Ontario must provide sufficient and interactive training for frontline officers and health care staff so they can safely and securely perform their responsibilities. As part of any such training, Ontario should provide ongoing and adequately resourced education on human rights law and provision of care for those with Code-related needs.[224]






 

Correctional transition teams

Assuming that safety concerns can be adequately addressed, it seems patently obvious that the best ways to address the custodial conditions of freshly arrested mentally ill prisoners are either not to have them enter custody in the first place, or to have many of them discharged from remand custody back into the community as quickly as possible.[225] Though there seems to be no comprehensive data on point, anyone who works in any aspect of the Ontario criminal justice system is well aware that the vast majority of mentally ill or developmentally delayed accused are: (a) usually charged with relatively minor offences, and (b) tend to be “chronic users” of the criminal justice system, in that they (sometimes very rapidly) cycle in and out of custody, all too often as a correlate or a consequence of their poor mental health.[226] In those cases in which some custody for a remanded or sentenced mentally ill person is called for, I believe that, like other participants in Ontario’s criminal justice system, the ministry must be prepared to expand its role to do its part to find ways to facilitate prisoners’ transition from custody to community that may help reduce recidivism and thereby serve to better protect society. Simply put, so long as public safety concerns can be adequately addressed, the best way to address issues of the treatment of mentally ill persons in provincial custody is not to have them in custody in the first place or to have them released back into the community as soon as possible. Like others in the criminal justice system, the ministry needs to initiate and operationalize policies and procedures that may facilitate this.

In coming to these conclusions, I have been very cognizant of and much influenced by the portions of the 2018 Report of Ontario’s Expert Advisory Committee on Health Care Transformation in Corrections that have to date been publicly released.[227] While most of that Report is devoted to a discussion of whether and how Ontario should transfer all or part of the responsibility for correctional health care from the Ministry of the Solicitor General to the Ministry of Health and Long Term Care (MOHLTC),[228] I have found two elements of that Report to be particularly germane to my mandate.

The first element I wish to emphasize is that the Report stresses (as numerous other studies have done) that periods of time spent in provincial custody (either on remand or serving sentence) usually tend to be quite brief:

“Almost all of those in the custody of Ontario’s provincial correctional facilities will quickly return to their communities and continue to live as our neighbours. The vast majority will return to these communities within a month.”[229]

In support of this proposition, the Report quotes ministry data from fiscal year 2016-17:

“The average time in custody for those on remand is 40.2 days and the median time in custody is nine days, while for sentenced individuals the average time in custody is 53.3 days and the median time in custody is 15 days. A significant proportion of those in provincial custody are there for less than one week. 37.8% spend between one and seven days in custody prior to release, and 65.4% are incarcerated for one month or less.”[230]

In light of this, the Report:

“contains advice and a series of recommendations on improving access to high-quality health care services for people in custody, including once they return to the community…The Committee wishes to stress that diversion[231] should be prioritized, where appropriate. Given that incarceration may negatively impact the health of individuals and communities, incarceration must and should be a last-resort option in the criminal justice system. The Committee particularly supports continued investments in targeted diversion programs that ensure people with mental illness, substance abuse disorders, and developmental disabilities receive appropriate care and supports rather than incarceration.[232]

The second point I wish to highlight from the Report’s conclusions is that:

“Currently, health care services within Ontario’s correctional facilities are reactive: they typically provide a minimum level of required services geared towards episodic care, crisis management, and emergency care, while lacking in follow-up care, patient engagement, and continuity of care.[233]

I fully concur with the Committee’s emphasis on the need to develop a correctional health care system that seeks to integrate custodial and community-based health care.

8.1 It is recommended that that the Ministry of the Solicitor General continuously work with partner ministries and community agencies to implement an approach to correctional health care that aims to integrate custodial and community-based health care.

In concert with this general recommendation, I wish to add that the Chief Commissioner of the Ontario Human Rights Commission has copied me with a letter sent to Solicitor General S. Jones following the Commissioner’s July 15, 2019 visit to investigate conditions at the Hamilton Wentworth Detention Centre. She writes (in part):

[The Ministry of the Solicitor General] is well-placed to interrupt the cycle of addiction and incarceration by offering intensive addictions treatment and support, and working with the Ministry of Health and community partners to make sure that prisoners can seamlessly access support in the community on release…the Ministry of the Solicitor General should work with the Ministry of Health to make sure that systemic barriers to effective community treatment are addressed.[234]

As I understand the development of her recommendation, arising from an inquest into several deaths that had occurred in the Hamilton-Wentworth Detention Centre, health care and custodial staff sought advice and input from St. Joseph’s Hospital in Hamilton in order to better understand how to identify, and if necessary intervene, where a prisoner appeared to be in distress as a result of a drug overdose. Commissioner Mandhane complimented the facility on this approach to ongoing “in service” training. With this I entirely agree.


In May of 2017, the Ministry of the Solicitor General announced that it would begin exploring options to potentially shift oversight and the provision of health care services to MOH. Even if these discussions come to fruition, this will inevitably take years to finalize, let alone operationalize. My concern is that efforts to integrate custodial and community-based health care for the mentally ill need not – and should not – be deferred until these no doubt complex discussions are completed. As the ministry’s Ottawa Carleton Detention Centre (OCDC) Task Force properly acknowledged some years ago (and as OPSEU continues to stress in its ongoing submissions to the ministry), unfortunately the mentally ill custodial population (remand and sentenced) is rapidly increasing both in numbers as well as in complexity of symptomatology.

There is no reason for the ministry to defer the development of action plans designed to link custodial and community-based health care until some undefined point in the future. Nor is it sufficient for the ministry to continue to claim that it cannot act because it lacks jurisdiction to do so. There are existing Modernization Divisions in both ministries, each with complementary mandates to try to promote better integration between the two ministries. Given this acknowledged need for a new approach to health care delivery for the mentally ill and severely addicted, the development of timely solutions and their implementation should become a central priority.

To its credit the ministry has briefed me about its ongoing efforts “to facilitate enhanced continuity of care with community providers”. The ministry writes:

“that a new correctional health strategy has been developed in order to improve health care services in the short term, regardless of where health care is governed from. The ministry is working with MOH​ and other health system partners to implement the health care strategy. The ministry and MOH​ have a list of shared priorities that have been agreed to by both deputy ministers. The ministry has also reached out to all 31 Ontario Health Teams that submitted full applications. The ministry, via the CHCWB[235], is actively engaging with at least a dozen Ontario Health Teams across the province, participating on mental health and addictions working groups, and fostering local partnerships with probation and parole offices and institutions, where possible, so as to facilitate enhanced discharge planning, linkages to community health and social services, and continuity of care.”

As part of its consultations informing its Report, the Expert Advisory Committee met with experts from some Canadian (and other) jurisdictions to learn from them how they either have transformed, or are in the process of transforming, their correctional health care systems. Though Nova Scotia was the first provincial correctional system to formally transfer its health care delivery system to the provincial Ministry of Health (in 2002), it appears that Alberta has considerably extended this concept to include a carefully thought out system which attempts to link custodial and community health care “for addicted and mentally ill incarcerated individuals” through the use of “corrections transition teams”. I consider that this model has quite a lot of potential for Ontario provincial corrections.

I begin my commentary on this by referencing the Ministry of the Solicitor General’s quite recent establishment of positions of Discharge Planners in some of the larger adult institutions across the province.[236] In my February 2019 Interim Report (PDF, 2 mb), I commended the ministry on this initiative, but noted that these ministry discharge planners are currently mandated to work only with persons already sentenced to custody. I wrote that these new positions do “not seem to be oriented to other release scenarios – such as where an inmate is granted a bail release at court (often to be intensively supervised by a bail program), or charges are withdrawn on a trial date, or an inmate is sentenced to “time served” in light of the amount of their time already spent in custody”[237] and I recommended that the ministry address aspects of this recurrent problem.

As shown in Section 5 supra the ministry’s formal response to this portion of my Interim Report has been that these other forms of release are “beyond the control of the ministry”, and that, as such, my recommendations on point should be directed to MAG. I accept that this is a technically correct response. Unless a probationary term is imposed following a guilty plea (in which case the ministry’s “community corrections” would become formally  involved in probation or parole supervision), such matters as bail releases, charge withdrawals, or guilty pleas in exchange for “time served” (without probation) are largely matters over which MAG staff (or organizations funded by MAG, such as Bail Programs) have principal responsibility. However, what the Expert Advisory Report continually stresses is that thinking in “silos” and/or using “lack of control/jurisdiction” as justifications for not addressing the problems of the mentally ill may in fact exacerbate recidivism by de-emphasizing efforts at reintegration.

[REDACTED] With this in mind, I contacted Alberta correctional officials, who sent me two helpful documents on point. The first consists of a literature review, which concludes from a review of papers written in several jurisdictions that “[a]ppropriate community transition interventions can a) reduce recidivism, b) reduce relapse to addiction, and c) improve health outcomes of the addicted and mentally ill offenders upon release from incarceration”.[238] However, this literature review properly cautions against making overly optimistic assumptions about the potential success of such programs, particularly given the multi-problem populations who are likely to form much of any such program’s “clientele”. As the paper’s Abstract concludes:

“Findings of this paper reveal potential opportunities for collaboration between criminal justice systems, correction health agencies and community based service providers through integrating transition interventions at community level. Integration of the transition interventions may have a more sustainable impact that would advance program outcomes. Nonetheless, there is [a] paucity of evidence and research on the efficacy of transition interventions, how transition is best carried out and which interventions and services are effective in preventing recidivism and relapse to drug addiction”.[239]

I agree with this cautious approach. Though “correctional transition teams” seem like a better model than those few efforts currently being employed in Ontario corrections, one should not be optimistic that such a program will be particularly successful with many in the target population. It cannot and should not be forgotten that many of the mentally ill and/or severely addicted persons who might be “reached” by such a program suffer from numerous physical and mental health problems; furthermore, some are unfortunately neither able nor well motivated to begin to address their complex issues.[240]

The second document provided by Alberta correctional officials is a description of “Roles, Processes, and Standards…for Correctional Transition Teams (CTTs)”,[241] as they have been established in that province.[242] There is no need to describe this document in detail in this Report, but I wish to highlight two roles considered critical for CTT “success” – finding employment and suitable stable housing for those recently released from provincial custody (on bail or upon conclusion of custodial sentence):

“Although the Corrections Transition Team’s primary role is to address offender’s mental health and/or addiction concerns, CTT also plays a significant role in linking clients with community service providers to address other unique challenges, such as finding employment…[A]pproximately 75% of all offenders in Canada are identified as having employment needs. Additionally, offenders with addiction and mental health issues are often faced with a myriad of other challenges in respect to securing employment. These include personal factors such as low self-esteem, low motivation, skills deficit, a lack of stable accommodation; social factors such as negative peer influence, an absence of family support and a poor employment record. Addressing these personal factors and social determinants of health is an important component of the provincial CTTs.

Another challenge in this offender population is finding suitable housing and/or living arrangements when offenders are transitioning from custody to community. Social isolation is a core experience of many CTT​ clients who are often homeless and/or with unstable housing. Offenders who are reconvicted often point to a lack of suitable housing as a key factor in their unsuccessful transition to life in the community. The absence of suitable accommodation for released offenders in the community can result in clients having to live in shelters which are transient or short-term and are typically located in the most problematic parts of the community. These factors impact the capacity of the client’s ability to attend to treatment and rehabilitative needs.”[243]

These twin themes of needing to address housing and employment as integral components of any holistic efforts to prevent recidivism on the part of mentally ill persons – either bailed pending disposition of their charges or sentenced – are consistently repeated in the voluminous literature I have read on point, including the Ontario Expert Advisory Committee Report. Additionally, my contacts across the province with numerous service providers (some ministry employees, some working for transfer payment agencies) confirm all agree that addressing housing and employment must be central to any serious efforts to prevent the repetitive cycle of mentally ill persons going in and out of custody – most particularly in the 10 days immediately following release.

Unfortunately, it was not until the very end of my mandate that I became aware of some interesting longitudinal work on homelessness currently being conducted by the Psychosocial Rehabilitation Assessment Service at the Centre for Addiction and Mental Health. The lead clinician writes:

“Since 2015, we've had two initiatives funded by the Ontario Government. The first was Bridges to Housing and the second was Connecting the Dots. The first aimed to identify and support persons with developmental disabilities experiencing homelessness. The second was an epidemiological project that grew from the first and looked at rates of Brain Injury, Developmental Disabilities, Dementia and Mental Illness among the homeless in Toronto, Ottawa and York Region”. [244]

I would urge that both the Ministry of the Solicitor General and the Ministry of the Attorney General consult with CAMH as the results of this three-year study are completed.

In my Interim Report[245] I referenced two Recommendations of the Ottawa-Carleton Detention Centre Task Force Report[246] which go some way to addressing these issues. Recommendation 11 was that the ministry and MAG should work with the MOHLTC and community agencies to review the funding of “bail beds for offenders whom the court determines could be appropriately housed and supervised in the community”. Arising from this proposal, both the John Howard and Elizabeth Fry Societies of Ottawa have each been funded by MAG to create bail residences designed to service “vulnerable populations such as Indigenous, racialized individuals and individuals living with mental health and addiction issues.” I recommended that both ministries examine the well-established program of English “bail hostels” with a view to possibly expanding the availability of such facilities to other Ontario judicial districts.[247] This ministry predictably replied to my recommendation by pointing out that since the Ministry of the Solicitor General has no responsibility for bail issues, this is a matter that should be addressed by MAG. As previously noted, this response, while technically correct, is reflective of “thinking in a silo” which does little to address these complex issues and may even exacerbate recidivism.

While bail beds/residences seem to be successful in moving mentally ill remand prisoners into community residences in some Ontario communities, metropolitan Toronto presents substantially different concerns, mostly because persons released from custody on various forms of bail must compete for very scarce “shelter” resources with other – equally deserving – individuals. I recently met with senior officials of the Toronto Bail Program, which currently supervises over 1,700 persons on bail in the Toronto area at any one time. Though these officials were quick to acknowledge the funding they have received from MAG over many years, they explained that the problems they face in attempting to find any kind of housing – let alone stable housing – for their clientele, many (if not most) of whom are quite severely mentally ill, are becoming increasingly difficult to address. They explained:

“When thinking about the necessary reforms regarding the reintegration of adult prisoners with mental health issues being released from Provincial Correctional Institutions, one must direct their attention to the serious lack of supportive housing in Ontario.  It is very difficult to stabilize an individual who suffers from issues around mental health and addiction without giving them a place to call home.  The same applies to maintaining the stability of someone who has already been treated in a correctional facility…quickly moving an individual into appropriate housing and then providing additional supports and services as needed is crucial for recovery. 

In larger cities such as Toronto, the staggering number of individuals being released on remand would require a larger scaled approach.  Years ago in Toronto, finding a shelter bed for an individual being released on Bail simply required a phone call to an existing shelter.  A bed would be instantly placed on hold for that individual.  Due to an influx of refugees and a greater demand on immediate emergency housing, the process for arranging such housing has been made far more complex in recent years.  Any individual needing a shelter bed is now referred to the assessment and referral centre at 129 Peter Street in Toronto.  The individual is forced to travel to that location and then is often asked to sit on a chair for hours or days until a shelter bed becomes available.  He/she is then required to make their way the shelter where he/she is met with very little, if any, support.  An individual with mental health, addiction, developmental and/or cognitive issues is likely to find this multi-faceted instruction far too complex and become overwhelmed.  For these vulnerable individuals, the current process simply does not work.  These individuals do not have the patience or capacity to comply and may “give up”.  The end result is an increase in administrative (criminal) charges and an ultimate increase in the remand population in correctional facilities.

Bail Verification and Supervision Programs in Ontario supervise several thousands of individuals on remand at any one given time.  Bail Program clients are the most vulnerable of the individuals going though the Criminal Justice System.  They are the individuals with little or no family or financial supports.  They are plagued with mental health concerns, addictions, trauma, cognitive/developmental issues and homelessness.  If existing local shelters can be expanded to include “Bail Beds”, Bail Program staff can have access to these beds immediately upon the release from custody of the accused person.  Much like the Corrections Transition Teams in Alberta, Bail Program staff would meet with individuals prior to their release, identify and assess needs, develop a release plan and then work alongside their clients at the readily available shelter to ensure the accused person is connected to a wide range of supports in a timely fashion…What is being proposed is the addition of a critical piece that is currently lacking, access to designated Bail Shelter Beds in larger cities.”[248]  

Apart from the scale of the problem, sadly there is nothing new in this problem of lack of stable housing for the mentally ill – regardless of whether they are involved in the criminal justice system. Report after report over the past half century has documented the ongoing difficulties with creating and maintaining appropriate housing for this “hard to manage” population. While I understand the need of these bail program workers – and others I have spoken to over the course of my mandate – to propose “real world” solutions, I find it somewhat shocking that the best they can propose is designated “shelter beds”, which by its very definition amounts only to a temporary solution. Ontario can do better than this.

I wish to reiterate that in my view it is no longer acceptable that the ministry continue to maintain its present stance that responsibility for addressing these complex problems is “not within its jurisdiction”. In my view, Alberta officials have it right when they accept that responsibility for discharge planning of persons admitted to custody in a principal correctional facility should start from the day the accused person enters custody. In this regard I was pleased to learn of the existence of a recently established pilot project at the Toronto South Detention Centre where representatives of COTA[249] and an “embedded” staff member of the Toronto Bail Program work together – sometimes in concert with court-based mental health services – to identify and develop bail release plans for mentally ill accused.

I have not had sufficient resources to conduct a detailed canvas of whether similar programs exist in other parts of the province[250] or in other jurisdictions.[251] If they do not, I am of the view that both Ministries should be proactive in assisting in their development, even if such programs are funded through other sources.[252]

8.2 It is recommended that the Ministries of the Solicitor General and Attorney General forthwith establish a high level, short term working committee charged with developing and implementing “correctional transition teams” at the bail stage for mentally ill and severely addicted accused persons. As part of its mandate this committee should immediately canvas the experience of Ontario and other jurisdictions with a view to ascertaining strengths and weaknesses of other models. It is further recommended that, as a matter of priority, this working committee should investigate the feasibility of expanding stable and properly funded “bail bed” programs in Metropolitan Toronto and other parts of the province where a need can be demonstrated.

The second OCDC recommendation that I referenced in my Interim Report proposed that “the ministry should, through the Correctional Services Transformation Strategy, collaborate with partner ministries and community agencies to explore alternative housing options such as mental health facilities or dedicated addiction treatment spaces for those sentenced offenders with mental health needs” (Recommendation 25). For purposes of the record, I should indicate that I have been advised by ministry staff that this “Transformation Strategy” has subsequently been “subsumed” into the ministry’s “Modernization Initiatives”.

As previously indicated the ministry has created “discharge planner” positions in some institutions. While this is a worthy and necessary initiative, I remain concerned that by limiting these positions to dealing only with sentenced offenders, this may have the effect of detracting from what I believe is the ministry’s obligation to expand discharge planning to begin as soon as the accused person is admitted to custody.

8.3 It is recommended that that the role description of the Ministry of the Solicitor General’s current “discharge planners” be expanded to include advice and assistance to prisoners seeking bail release.

There are two further technical issues that need to be addressed respecting discharge planning for sentenced prisoners. No doubt because of limits on the numbers of discharge planners who are currently employed by the ministry, planners do not usually become formally involved until after sentence has been imposed. The first problem can arise where a person has been found guilty, but that sentence is deferred until some later date, say because the sentencing judge decides that a pre-sentence report (PSR) is necessary – a process that normally takes some weeks to prepare. My understanding is that the ministry’s OTIS tracking system just reflects that the individual has a future court date; it does not reflect that the offender has been found guilty. Thus, even a well-motivated discharge planner is unlikely to become aware that the imposition of sentence is pending; consequently, the discharge planner will not likely be in position to offer advice and assistance to the offender in anticipation of the sentence which may be imposed.

The second – and related – problem is that, again because of resource limitations, discharge planners do not usually begin to work with an offender[253] until only 30 days remains in the custodial portion of the sentence.

Both of these issues raise the same problem i.e. that the sentence may well be less than 30 days; indeed, given the fact that sentencing judges are now virtually compelled to make reductions in sentence as a result of time already spent in pre-sentence custody, custodial sentences of “time served” or a few additional days are by no means unusual.[254]

8.4 It is recommended that that the ministry amend the OTIS system to provide that where an offender in custody is to return to court on a later date for sentencing, that fact is immediately reflected in an entry on OTIS . It is further recommended that in institutions where discharge planners are employed, mechanisms be established whereby these planners are immediately made aware of such OTIS entries. It is further recommended that where a sentence of 3 months or less has been imposed, discharge planners should not wait until only 30 days remains in the custodial portion of the sentence before offering advice and assistance to an offender.

List of recommendations by both Independent Expert and Independent Reviewer

1. Joint recommendations by Independent Expert and Independent Reviewer:

Section 3

3.1 It is jointly recommended that ongoing research and knowledge dissemination being conducted by the ministry should be staffed by persons knowledgeable about how to conduct and compile cross-jurisdictional research studies.  It is further recommended that descriptions of the evolution and availability of such studies should be regularly shared with the proposed Committee of Independent Experts on Data, Best Practices and Policy Compliance (described infra).

3.2  It is jointly recommended that the ministry establish a unit or branch under the Deputy Solicitor-General’s Office that is exclusively focused on compliance with the Jahn settlements and Consent Order. This unit or branch must have an ongoing and direct line of communication with frontline staff and individuals (anonymous or otherwise) so that institution-specific concerns can be identified, and province-wide operational compliance can be reached. This unit or branch’s audit strategy must be publicly posted for increased transparency.

3.3 It is jointly recommended that for all recent policy changes that relate to the Jahn settlements and the Consent Order, Ontario should establish firm time limits for when full operational compliance must be reached. It is further recommended that compliance audit plans and results be shared with the OHRC.

3.4 It is jointly recommended that a Committee of Independent Experts be immediately established, mandated to review, evaluate and comment on the ministry’s research capabilities, its data collection and analysis practices, its commitment to evidence-based “best practices”, and its operational and substantive compliance with both laws and policies. This committee should be expressly authorized to have unencumbered access not only to ministry data collection methods, but also to any ministry initiatives and documents that may assist in ensuring that this Committee’s mandate can be properly fulfilled. The ministry’s External Oversight and Compliance Branch should be required to report to this Committee quarterly, and the Committee should regularly report directly to the deputy minister. Wherever possible, the committee’s findings should be publicly reported on the ministry website. This Committee should have a mandate to act in this capacity for a three-year period.

3.5 It is jointly recommended that a properly mandated and adequately funded Ministerial Advisory Committee on the Treatment of Mentally Ill Inmates (MACTMII) be immediately established. One of this Committee’s mandates should be to receive regular reports from the ministry’s Research, Analytics and Innovation Branch (RAIB) regarding its various “knowledge dissemination channels and platforms”, as well as from the ministry’s Oversight and Accountability Unit.

3.6 It is jointly recommended that Royal Assent to proclaim Part IX of the Correctional Services and Reintegration Act, 2018, creating the Office of Inspector General (IG) of Correctional Services, should be immediately sought. One element of that Office’s mandate should be to receive regular reports from the ministry’s Research, Analytics and Innovation Branch (RAIB) regarding its various “knowledge dissemination channels and platforms”, as well as from the ministry’s Oversight and Accountability Unit.

2. Recommendations by Independent Expert:

Section 4

Alternatives to segregation and mental health

4.1 It is recommended that the ministry should undertake a review of best practices around mental health with a view to improving Correctional staff resources, training and strategies for managing the refusal to leave a cell. Recommendations arising from this Review should be shared with both the proposed Committee of Independent Experts (see rec 3.4) and the Ministerial Advisory Committee on the Treatment of Mentally Ill Inmates (see Recommendation 3.5).

4.2 It is recommended that staff and decision-makers be provided with and be required to consult an exhaustive list of alternatives to segregation. This list ought not be limited to alternative housing units/placements or living arrangements but should include strategies for increasing time-out-of-cell.

4.3 It is recommended that Ontario should forthwith develop a plan to cease placing self-selecting individuals in segregation by December 31, 2020, to be implemented no later than June 30, 2021. Instead, focus should be on the building of capacity for specialized placements and training its staff on best practices for those refusing to leave their cells.

Human rights data and compliance

4.4 It is recommended that regular health assessment compliance reviews occur at 6-month intervals. Following the implementation of the revised reassessment tool in Spring 2020, a B-13 audit should be repeated by the Committee of Independent Experts, shared with the OHRC, and publicly posted.

4.5 It is recommended that Ontario should implement a policy outlining how restrictive confinement placements are recorded, tracked, and analysed no later than September 30, 2020. This is required in order to meet the B-15 requirement to report on a year’s worth of data and to do so in a meaningful manner.

4.6 It is recommended that the ministry adjust the B-15 annual reporting period to April 1 to March 31 to match the fiscal year. The summary and analysis of the dataset should be shared with the Committee of Independent Experts and publicly posted on (see section 3) an annual basis no later than every July 30.

4.7 It is recommended that Ontario update the annual deaths in custody reports on an ongoing basis as Coroner inquest verdicts are issued.

Tracking and Oversight

4.8 It is recommended that Ontario not track continuous segregation using precise minutes at the 22-hour mark, nor use such tracking to determine who is segregated for the purposes of administrative review.

4.9 It is recommended that all individuals not out of cell for more than 4 hours per 24-hour period be tracked and reviewed using the same documentation and oversight processes, with the overall aim of providing alternatives to restrictive confinement and to increase time out-of-cell. This standardized process must be clearly articulated in policies, procedures, directives, standing orders, and training curriculum.

4.10 It is recommended that to satisfy its obligation under B-5, Ontario define ‘a break in segregation’ as at minimum, when the individual is out of cell for a minimum of 4 hours a day for 72 continuous hours.

4.11 As Ontario has yet to implement a Restrictive Confinement tracking system, it is recommended that the proposed Committee of Independent Experts undertake an evaluation of Ontario’s tracking of aggregate and continuous restrictive confinement placements soon after Ontario implements this tracking system. This evaluation should focus on Ontario’s response and remedies to the above-described limitations, occur by September 30, 2020, and be shared with the OHRC.

4.12 It is recommended that Ontario revise its policies and processes to clearly document decisions, considerations of alternatives and undue hardship analysis undertaken during the initial segregation decision, and in all subsequent segregation reviews, including the 30- and 60-day reports. (This recommendation is consistent with my interim recommendations #25 and #27).

4.13 It is recommended that Ontario revise its training and operational documents to communicate expectations around time out-of-cell, and that a comprehensive list of alternatives, strategies, incentives be provided, considered, and exhausted prior to placing individuals in segregation.

4.14 It is recommended that the deputy solicitor general should personally review the completeness and adequacy of any 30- and 60-day reports. The deputy’s review ought to include documentation about the steps to be taken to alter the conditions of confinement. This review must then be sent to the minister.

4.15 It is recommended that in the aim of accountability and oversight, an independent Prison Inspector General be appointed to review prolonged segregation files and reports (see joint recommendation 3.6). It is further recommended that an audit and compliance unit be established that directly to reports to the deputy minister.

4.16 It is recommended that at 6-month intervals, external compliance audits should be undertaken by the Committee of Independent Experts. These audits should assess Ontario’s consideration of alternatives to segregation and its duty to accommodate to the point of undue hardship. Findings from these audits should be submitted to the OHRC and be publicly posted as an ongoing Jahn compliance measure.

4.17 Consistent with the Independent Reviewer (see Section 3 of the Final Report) and with previous recommendations made by the Independent Reviewer of Ontario Corrections, and as enunciated in the CSRA (legislation already passed by the Legislature), it is recommended that Independent Chairpersons be appointed as the decision-makers for disciplinary segregation placements, and that Independent Hearing Officers be appointed to adjudicate administrative segregation placement beyond five days.  These appointed individuals should not only be independent decision-makers,  but should also be external to the ministry.

4.18 It is recommended that the Committee of Independent Experts review Ontario’s processes around the verification of mental health, suicide, and self-injury related alerts, as well as how this information is communicated between staff. This should occur in the Fall of 2020, following the implementation of recently approved mental health definitions, and every 6 months thereafter. The results of these ongoing reviews should be shared with the OHRC and publicly posted as a Jahn compliance measure.

Mental Health

4.19   It is recommended that Ontario revise its policies, procedures, and guidelines to be consistent with the requirements under PIR4. To do so, Ontario should clarify that a care plan must be developed by a physician or a psychiatrist for those with mental illness and serious mental illness, respectively. This should be followed by institution-wide training on care plans.

4.20   It is recommended that Ontario limit the discretion of institutions to operationalize policy as a means of ensuring consistent processes for the development of a care plan. In the event that medical resources on site are limited, Ontario should make use of ‘telehealth’ technology to remotely access the appropriate expertise.

4.21   It is recommended that Ontario provide clear policy direction on the interpretation of privacy law and confidentiality and develop standards and expectations to guide communication between health and security staff, as well as provide necessary equipment and access.

4.22 It is recommended that the availability and completeness of the care plans ought to be regularly evaluated when the Independent Committee of Experts perform health care audits. These results should be shared with the OHRC and publicly posted as a Jahn compliance measure.

3. Recommendations by Independent Reviewer:

Section 5

5.1 It is recommended that if the Ministry of Correctional Services Act is to remain in force, both the Act and accompanying regulations should be revised to confirm in statute the animating principles relating to what are now termed “conditions that constitute segregation” in the ministry’s “Placement of Special Management Inmates” (PSMI) and “Discipline and Misconduct” (D&M) policies.

5.2 In the alternative, it is recommended that if the 2018 Correctional Services and Reintegration Act (or portions thereof) is proclaimed in force, both the legislation and any accompanying regulations should be revised to confirm in statute the animating principles behind the “conditions that constitute segregation” in the ministry’s “Placement of Special Management Inmates” and “Discipline and Misconduct” policies.

5.3 It is recommended that section 74(2)(1) of the 2018 Correctional Services Reintegration Act be proclaimed in force in order to prohibit the availability of a penalty of close confinement for a minor disciplinary offence.

5.4 In the alternative, it is recommended that if the Ministry of Correctional Services Act is to remain in force, both the Act and accompanying regulations should be revised to require a superintendent to deduct any time spent in “administrative segregation” from any penalty of close confinement that may be imposed for a minor disciplinary offence. In cases involving serious disciplinary offences, a Superintendent should be expressly authorized to exercise their discretion to deduct any time spent in “administrative segregation” from any penalty of close confinement that may be imposed for a serious disciplinary offence.

5.5 It is recommended that sections 65-67 of the 2018 Correctional Services Reintegration Act dealing with the appointment of Disciplinary Hearings Officers to adjudicate allegations of serious misconduct be proclaimed in force.

5.6 In the alternative, it is recommended that if the Ministry of Correctional Services Act is to remain in force, a process for the appointment of independent adjudicators for serious misconducts be immediately developed.

5.7 It is recommended that s. 73(5) of the 2018 Correctional Services Reintegration Act dealing with the right to counsel in cases involving allegations of serious misconduct be proclaimed in force.

5.8 In the alternative, it is recommended that if the Ministry of Correctional Services Act is to remain in force, a process for the ensuring access to counsel in cases of allegations of serious misconduct be created.

5.9 It is recommended that ministry personnel and officials of Legal Aid Ontario review processes regarding the timing of a superintendent’s decision to treat an allegation of misconduct as “serious” or “minor”, with a view to substantially advancing the timing of that decision-making process.

5.10 It is recommended that ministry personnel develop criteria to guide superintendents in their decision to treat an allegation of misconduct as “serious” or “minor”.

5.11 It is recommended that the ministry conduct a detailed study of charging and disposition practices in relation to the institutional offence of “making a gross insult”, with a view to examining whether inadvertent racial discrimination may affect decision-making processes. It is recommended that the proposed Committee of Experts on Data, Best Practices and Policy Compliance (described in section 3 supra) be consulted as part of any such study.

5.12 It is recommended that the form of Misconduct Notice currently being used be substantially revised. The usage of high order language detracts from the ability of all readers to process its meaning the way it is intended; problems of illiteracy in Canada’s official languages need to be better addressed; the list of potential penalties should be included on the printed Notice Form; persons in custody should be specifically advised that they may make submissions as to penalty.

5.13 It is recommended that those sections of the new D&M policy that deal with procedural fairness (s.4.13) be applied to those sections of the policy that deal with notifying the person in custody of “the nature and circumstances of the misconduct” (s.6.5.3c.ii). In addition, superintendents should receive training from the ministry’s Legal Services Branch as to the substantive content of allegations within misconduct notices.

5.14 It is recommended that the ministry and Legal Aid Ontario develop policies for expanding the role of “onsite duty counsel” as advisors to mentally ill and developmentally delayed persons in custody, as well as for the representation of such persons at segregation review hearings and in disciplinary proceedings. It is further recommended that the current “onsite duty counsel” program (or equivalent) be expanded to other institutions. It is further recommended that LAO be adequately funded to provide such advice and representation services throughout the province.

5.15 It is recommended that the Modernization Divisions of both the Ministry of the Solicitor General and the Ministry of the Attorney General make every effort to facilitate and prioritize the Ministry of the Solicitor General’s full participation as an integral component of Ontario’s criminal justice system.

5.16 It is recommended that all ministry personnel (field and corporate) should receive in-service training with a focus on this ministry’s participation as an integral part of Ontario’s criminal justice system. When appropriate such training should involve experienced criminal justice practitioners.

5.17 It is recommended that a working committee, comprising representatives of both the policing and corrections divisions of MSG, together with representatives from MAG and those involved in service delivery for mentally ill persons at court (including LAO and court-based mental health workers), be struck to find solutions to the issue of “unanticipated releases at court”. This working committee should report to the deputy minister within six months of its establishment, and its findings and recommendations should be posted on the ministry website.

Section 6

6.1 It is recommended that Ontario seek Royal Assent to proclaim in force ss. 65-67 of the 2018 Correctional Services and Reintegration Act, and establish the necessary mechanisms for the appointment and training of Independent Review Panels as envisaged by that legislation.

6.2 It is recommended that, given the significant number of previous court decisions (at both federal and provincial levels) establishing that the interests involved in disciplinary proceedings are so significant that an independent decision-maker is now constitutionally mandated in cases involving allegations of “serious” institutional misconduct, Ontario should forthwith create, train and staff such positions at all 25 provincial institutions.

6.3 It is further recommended that, if a superintendent elects to seek a penalty of “close confinement” following a finding of guilt for a “non-serious” allegation of misconduct, such a case must be referred to an external independent decision-maker for adjudication (and if the CSRA provisions are proclaimed in force, that referral would be to a disciplinary hearing officer).

6.4 In the alternative, it is recommended that if the ministry elects not to create a regime of truly independent external decision-makers (either under the MCSA or the CSRA), superintendents should be required to specify in writing the reasons why they have concluded that any alternative to “close confinement” could not be met without “undue hardship”, as that term is defined in both the PSMI and D&M policies.

6.5 It is recommended that in any case where a superintendent elects to seek a penalty of either loss of ability to earn remission or loss of remission already earned by a person in custody serving sentence, such a case must be referred to an external independent decision-maker for decision, regardless of any other penalties that may be sought.

6.6 It is recommended that the proposals respecting timeframes for “segregation reviews” made by the Independent Expert on point be adopted as ministry policy, pending any final ruling that may ultimately expressed by the Supreme Court of Canada.

Section 7

7.1 It is recommended that the Placement of Special Inmates (PSMI) and the Discipline and Misconduct (D&M) policies be made publicly available by being posted in full (with updates) on the ministry website.

7.2 It is recommended that the ministry establish a province-wide policy for the development, maintenance, access, and utilization of care plans across institutions to ensure ongoing standardization and accountability.

7.3 It is recommended that the ministry develop and implement a standardized provincial-wide training curriculum for health care staff employed within corrections.

7.4 It is recommended that the ministry conduct a scan of health care regulatory bodies’ Standards of Professional Conduct (or other equivalent sets of professional rules) to investigate whether these may need to be developed/modified to better address the balance between patient/inmate privacy interests and correctional realities. It is further recommended that the ministry (a) canvass health providers employed within the ministry to ascertain what points of tension may exist; (b) share the outcomes of such canvasses with the respective licencing bodies (“Colleges”); (c) involve the Office of the Information and Privacy Commission as necessary.

7.5 It is recommended that the ministry establish and/or clarify a set of standards for Care Plans, delineating a number of basic roles and functions of the document.

7.6 It is recommended that in each institution there be an individual designated who can ensure that Care Plans are being utilized effectively and consistently, and with whom any member of staff can consult.

7.7 It is recommended that that there should be minimum requirements established for the number of staff involved in the development of a Care Plan to ensure that there is diverse contribution from staff, thereby potentially increasing the chances that a mentally ill person in custody’s needs are being more comprehensively considered.

7.8 It is recommended that a standardized policy be devised province-wide that includes a regular schedule for reviewing individual care plans and determining whether they are still relevant and comprehensive, or if they require updating and revision. It is further recommended that it be clarified that all necessary staff should have access to Care Plans. It is further recommended that there also need to be clear and explicit guidelines for updating Care Plans, including who is and is not permitted to contribute and make changes, and how those changes need to be made, recorded and communicated to all relevant stakeholders.

7.9 It is recommended that placement in conditions that constitute segregation as a result of a prisoner’s own request should be studied with a view to determining (a) whether such placements are overused, and (b) whether policies can be developed or modified to encourage alternative placements to be accessed. The methodology and results of such research study should be shared with the proposed Committee of Independent Experts and with the proposed Ministerial Advisory Committee on the Treatment of Mentally Ill Inmates.

7.10 It is recommended that where feasible, in institutions that have the resources or facilities available, specific units be designated for developmentally delayed or otherwise physically vulnerable persons in custody. It is further recommended that the ministry consult with other jurisdictions to examine unique approaches, such as the Transition Day Room in Nova Scotia, that are being utilized to avoid keeping prisoners in conditions that constitute segregation. 

7.11 It is recommended that Ontario analyze its staffing needs for segregation, restrictive confinement, and specialized care placements. Ontario must provide sufficient and interactive training for frontline officers and health care staff so they can safely and securely perform their responsibilities. As part of any such training, Ontario should provide ongoing and adequately resourced education on human rights law and provision of care for those with Code-related needs.

Section 8

8.1 It is recommended that the Ministry of the Solicitor General continuously work with partner ministries and community agencies to implement an approach to correctional health care that aims to integrate custodial and community-based health care.

8.2 It is recommended that the Ministries of the Solicitor General and Attorney General forthwith establish a high level, short term working committee charged with developing and implementing “correctional transition teams” at the bail stage for mentally ill and severely addicted accused persons. As part of its mandate this committee should immediately canvas the experience of Ontario and other jurisdictions with a view to ascertaining strengths and weaknesses of other models. It is further recommended that, as a matter of priority, this working committee should investigate the feasibility of expanding stable and properly funded “bail bed” programs in Metropolitan Toronto and other parts of the province where a need can be demonstrated.

8.3 It is recommended that the role description of ministry’s current “discharge planners” be expanded to include advice and assistance to prisoners seeking bail release.

8.4 It is recommended that the ministry amend the OTIS system to provide that where an offender in custody is to return to court on a later date for sentencing, that fact is immediately reflected in an entry on OTIS. It is further recommended that in institutions where discharge planners are employed, mechanisms be established whereby these planners are immediately made aware of such OTIS entries. It is further recommended that where a sentence of 3 months or less has been imposed, discharge planners should not wait until only 30 days remains in the custodial portion of the sentence before offering advice and assistance to an offender.

Endnotes

 

[1] In 2019 the ministry was renamed as the Ministry of the Solicitor General. For purposes of accuracy, I have decided to leave the ministry’s name as it stood throughout the Jahn proceedings before the Human Rights Tribunal of Ontario (HRTO).

[2] This narrative is derived from the written pleadings before the HRTO initiated by Ms. Jahn and responded to by MCSCS within the context of her claim that she had been discriminated against by the MCSCS because of her (mental) disability and her sex. It is important to note that because the matter was eventually settled between the parties, no formal findings of fact were made. Thus, the pleadings omit some facts that would no doubt have been disclosed had the matter proceeded through a hearing – such as the exact number of days spent in custodial remand prior to her guilty pleas. Nor do the pleadings reflect what consideration, if any, was given by the sentencing judge(s) to either the number of days spent on remand or to her conditions of confinement during those periods of time.

[3] Once again, the kinds of details referred to in the previous footnote are similarly absent from the pleadings filed.

[4] Ms Jahn’s specification of the exact number of days she spent in segregation is likely correct. On the two sentences totaling 267 days, she could have (and likely did) earn remission of 1/3 of the days to be served, which reduced her total sentences to be served to 178 days (267-89). If she spent all of that time in segregation post-sentence, that would leave some 32 days (210-178) that she would have spent in segregation while on custodial remand. Assuming she entered her various guilty pleas early in the court process (which appears to have been the case), that total figure would seem to be reasonable. (In any event, the ministry did not dispute Ms Jahn’s calculation of the total amount of time spent in segregation).

[5] The OHRC had intervened in the litigation under s. 37(2) of the Ontario Human Rights Code with Ms Jahn’s consent.

[6] Ms Jahn received some financial compensation from the ministry “as compensation for injury to dignity, feelings and self-respect”. As the amount of that compensation is confidential as between the parties, it will not be referred to further in this Report.

[7] The Ombudsman launched its review in light of the severity of issues raised in an increasing number of inmate complaints related to segregation. Ombudsman of Ontario, Out of Oversight: Out of Mind: Investigation into how the Ministry of Community Safety and Correctional Services tracks the admission and placement of segregation inmates, and the adequacy and effectiveness of the review process for such placements (Toronto: Office of the Ombudsman of Ontario, 2017).

[8] Howard Sapers, a former federal Correctional Investigator, had been appointed as an Independent Advisor on Corrections Reform in November 2016, with a mandate to review MCSCS’ use of segregation. Independent Advisor on Corrections, Segregation in Ontario: Independent Review of Ontario Corrections (Toronto: Queen’s Printer, 2017).

[9] Ms Jahn elected not to participate in this process.

[10]Ontario Human Rights Commission v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services January 16, 2018 Schedule “A” Preamble, clause 5.

[11] Ibid, clause 10.

[12] Terms of Reference for the Independent Expert “Method of Appointment”.

[13] Many of the various formal and colloquial terms applied to persons detained in a custodial institution – “inmate”, “accused”, “remand prisoner”, “offender”, “criminal” – can be quite confusing, even though they are each technically accurate. I have decided to use the term “person in custody” in most places in this report; not only does this term emphasize that persons in custody are people, but the term is also usually easier to apply in the multifarious circumstances that regularly arise in correctional contexts.

[14] Ministry Press Release. More details are provided under the heading “Duties of the Expert” in her Terms of Reference.

[15] Schedule “A” clause 11.

[16] Ibid, clause 12.

[17] Ibid, clause 14.

[18] Ibid, clause 15.

[19] Ibid.

[20] These data are provided by the Statistical Analysis Unit, Research, Analytics and Innovation Branch, SolGen. Additional data is available on the ministry website under the heading Jahn Settlement – Data on Inmates in Ontario.

[21] Ministry Statistical personnel advise that, for technical reasons, “days stay” should not be equated with “length of stay”.

[22] All tables referring to 2018/19 refer to fiscal 2018/19.

[23] By way of comparison, in 2017/18 the average length of remand was 42 days.

[24] By way of comparison, in 2017/18 the median length of remand was 10 days. See also “Looking Behind (Prison) Walls: Understanding Ontario’s Remand Population”. Report to the Ministry of the Attorney General, Ontario 5 January 2017 (on file).

[25] For example, in an affidavit (dated 25 April, 2019) filed in the Supreme Court of Canada in support of an application to “stay” an order of the Ontario Court of Appeal “capping” the number of days an incarcerated person can be kept in administrative segregation, the [then] Assistant Deputy Minister of Institutional Services deposed that in March 2019 that figure had risen to 72.7% of the custodial population (para. 17).

[26] “Looking Behind (Prison) Walls: Understanding Ontario’s Remand Population”. Report to Ministry of the Attorney General, Ontario 5 January 2017 (on file).

[27] “Adult Criminal and Youth Court Statistics in Canada 2016/2017” (release 24.1.2019).

[28] The following definition is taken directly from the reference in data posted publicly on the ministry website: “Segregation is currently defined by the ministry’s policy as any type of custody where an inmate is highly restricted in movement or association with others for 22 hours or more a day (excluding circumstances of unscheduled lockdown) which can occur anywhere in an institution. Prior to July 6, 2018, segregation was defined as a specific area within an institution and the definition did not include a minimum requirement for time out of cell.”

[29] Tables 7-9 and Figures 1-3 were originally developed for the Independent Advisor on Corrections Reform for inclusion in the “Segregation in Ontario” Report released in March, 2017. At my request, the ministry has re-coded this data for my report to reflect fiscal years, rather than calendar years, and has provided data from 2017 to 2020 (YTD).

[30] January 23, 2019 email from Director, Policy and Programs, Strategic Operations Division, BC Corrections.

[31] Brantford Jail closed in December 2017.

[32] Schedule A-2/A-4 (completed February 20 and March 20, 2018); Schedule A-3/A-5 (completed April 16, 2018); Schedule A-6 (completed June 16, 2018); Schedule A-7 (completed July 31, 2018); Schedule B-15 (completed October 31, 2018).

[33] Schedule B-1 to B-6 (completed July 6, 2018); Schedule B-7 (completed December 17, 2018).

[34] Schedule A-9 (completed February 12, 2018); Schedule B-11 (completed July 31, 2018); Schedule B-12 (completed September 27, 2018); Schedule B-10 (completed December 17, 2018).

[35] Schedule B-14 (completed February 14, 2018); Schedule B-5 (completed July 31, 2018).

[36] Schedule A-10/12 (completed February 28, 2018).

[37] Schedule B-13, B-10(b), B-16, B-8 and B-17.

[38] PIR#2 particularly speaks to the adequacy of the mental health screening tool. We wish to point out that many concerns have been raised by frontline health care staff during our visits and some issues have been noted in the literature with regard to the BJMHS. However, we find ourselves unable to comment further as this issue is beyond our respective areas of expertise.

[39] It is true that Ontario has laid out a revised definition of segregation in its Placement of Special Management Inmates (PSMI) policy. However, we have been consistently told that this policy is “under review”, and that a final version is expected “in 2020”). Thus, we are uncertain whether this definition will be included in the final version.

[40] First Reading in the Ontario Legislature February 20, 2018; Royal Assent May 7, 2018.

[41] For example, for at least 35 years, the U.S. based Vera Foundation has fostered extensive public reports on various aspects of correctional reform. Most recently, in collaboration with the University of Michigan Law School and Center for Prisoner Health and Human Rights, the Foundation initiated a “Safe Alternatives to Segregation Resource Center”, which contains numerous useful reports on how various American jurisdictions have been modifying their policies practices to reduce reliance on segregation in state jails and prisons. We have recommended to numerous ministry staff that they might wish to access this free website, as well as various European studies (also available on free websites). Despite our recommendations, few seem to have done so. For a partial list of what we shared with the ministry, see the Bibliography attached to the Independent Expert’s Report (section 4).

[42] We should also add that we directly introduced ministry officials responsible for the ministry’s Modernization Division to the librarian at the University of Toronto’s Centre of Criminology and Sociolegal Studies, which is a remarkable resource on many of these issues. She advises that though there was some initial expression of interest on the part of ministry officials, unfortunately this seems to have largely dissipated.

[43] It was intended that some of this material could also be made available for what the ministry terms “vetted” public researchers (presumably academics).

[44] Ministry of Solicitor General Response to draft Final Report, dated January 17, 2020.

[45] The ministry advises that in this context “external oversight” refers to the external correctional oversight bodies both the unit and branch work with, such as the Office of the Ombudsman, Chief Coroner, OHRC, HRTO, Auditor General etc. The term does not denote any place for oversight independent of government.

[46] This is why, in the Independent Reviewer’s Interim Report, an express recommendation was proposed that would require the ministry to “embed…access to experienced criminal practitioners and experts in Ontario’s privacy legislation [to] be readily available to provide advice in the development, application and evaluation of policies”.

[47] Additionally, though some of these CABs do very conscientious work, they do not exist in all institutions. Further, voluntary membership in CABs tends to fluctuate, unfortunately leading to a loss of continuity in some institutions.

[48] This is likely because, as discussed at other places in this Report, the ministry has been taking the position that it has no role in bail issues, that being solely a function of MAG.

[49] We include here groups such as Bail Programs (Ontario and Toronto), COTA, ACT Teams, Law and Mental Disorder Association (LAMDA), the Empowerment Council, Central Toronto Youth Services (CTYS), Canadian Mental Health Association (CMHA). Early in our mandate, we jointly convened a meeting of these groups (and some other individuals), which we found to be most helpful in directing us to think more closely about the complexities of actual service delivery. We also note that the ministry’s roundtables did not invite Justices of the Peace and Judges, as well as members of the Crown and defence bars, all of whom deal daily with some of the very difficult and complex issues respecting mentally ill prisoners before the courts; these organizations should at least be regularly consulted if not invited to provide members.

[50] Segregation in Ontario (March 2017); Corrections in Ontario: Directions for Reform (September 2017). Mr. Sapers and his team also conducted further investigations into Institutional Violence in Ontario, issuing an Interim Report (September 2018), and a Final Report (December 2018). Both of these were released after the new legislation had passed through the legislative process.

[51] Some will no doubt quibble over whether a provincially-employed Inspector General of Correctional Services (IGCS) can be truly said to be an “external” overseer. Though such a view is technically correct, we consider that, as has developed with the federal OCI since the 1970s, such a position carries a sufficient level of “independence” that the distinction is not particularly important.

[52] S.O. 2018, c. 6, Part IX, ss.109-127.

[53] While we do not wish to be taken as endorsing the OHRC and MERC’s November 2019 “Joint submission to Ontario’s consultation on the 2020 budget: Necessary investments in Ontario’s correctional system”, we find it noteworthy that these groups, supported by other stakeholders, similarly propose the establishment of “an Inspector General to provide independent oversight of Ontario’s correctional institutions” (Recommendation #11).

[54] Quoting one of the assistant deputy ministers centrally involved in Jahn implementation.

[55] Discussed in section 6 infra.

[56] Listed alphabetically.

[57] Jahn v. Ontario (Community Safety and Correctional Services), Public Interest Remedies, (HRTO, September 24, 2013).

[58] Ontario Human Rights Commission v. Ontario (Community Safety and Correctional Services), 2018 HRTO 60.

[59] Ministry of Community Safety and Correctional Services, The Letter and Terms of Reference for the Independent Expert, March 15, 2018.

[60] Correctional Services and Reintegration Act, 2018 S.O. 2018 c. 6.

[61] Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 243.

[62] Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, 2017 ONSC 7491; Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 342;

British Columbia Civil Liberties Association v. Canada (Attorney General), 2018 BCCA 282.

[63] The Consent Order requires the ministry to define, track and support those with ‘mental illness,’ ‘major mental illness’ or ‘mental health disability.’ The ministry has used the terms ‘mental illness’ and ‘serious mental illness’ instead to refer to these requirements. In this report, the term ‘mental illness’ and ‘mental health disability’ are used interchangeably, as are the term ‘serious mental illness’ and ‘major mental illness.’

[64] This includes 92 individuals who self-identified as transgender during this period; they have been included as either female or male based on their self-identification. They represent 39.0% and 32.6% of the overall population in custody, respectively. While there were 118 individuals with transgender alerts in custody during this period, 92 of them were placed in segregation.

[65] This includes both forms of segregation.

[66] This includes both forms of segregation. Some individuals may show up in both the suicide risk and mental health categories.

[67] The presence of mental health or suicide risk alerts does not necessarily indicate a confirmed mental health diagnosis. However, this does signal the presence of potential mental health or suicide-related concerns and should trigger healthcare supports. As of November 27, 2018, the ministry implemented a policy requiring all alerts to be consistently verified by mental health professionals. This verification is meant to be completed within 48 hours of the alert being entered. As such, the data for this release includes both verified and unverified mental health and suicide risk alerts present on the individual’s file for the current period of supervision. To accurately assess if and how many individuals with verified alerts were segregated, the Independent Reviewer requested a dataset that covers the post-implementation period. To my knowledge, this has not been provided. The B-10 compliance audit of alert verifications also did not include the individual’s segregation status relative to verified alerts.

[68] The chi-square p-values confirm that these patterns are not likely the result of chance.

[69] See Section 6 of this Final Report for a more detailed discussion of ministry policies regarding misconducts.

[70] Please see further my expert witness reports in CCLA v. Canada (AG), British Columbia Civil Liberties Association v. Canada (AG), 2018 BCCA 282, R. v. Capay, 2019 ONSC 535.

[71] PSMI draft, Version 6, dated November 7, 2019.

[72] Of the 7,627 placements that were associated with inmate’s own request, 5,305 placements (69.6%) had a mental health alert, suicide risk alert, and/or suicide watch alert on file. The introduction of specialized care placements was meant to reduce its use of segregation, yet I have not been provided with evidence to demonstrate that this has occurred, especially for those suffering from mental health issues. Additionally, the alternative housing definitions set out in policy have yet to be sufficiently implemented and “applied across Ontario’s correctional system by December 31, 2018” as required per B-7.

[73] The ministry had indicated that it is revising its reassessment tool, which will be released to the field by Spring 2020.

[74] In my Interim Report, I reported on the results of the B-11/12 compliance review. Of 54 individuals who required JSAT following the screening by the BJMHS, 26 individuals (48%) have not had JSAT completed. Only 24 (44%) individuals had their JSAT completed within 96 hours of admission to custody per the ministry’s policy, and 4 (7%) had completed theirs after 96 hours. According to the same summary deck, the BJMHS and JSAT appear to have been delivered to the 95% and 81% respectively to the individuals included in the sample. The ministry is to be applauded for making improvements with the delivery of the JSAT. As with the reassessment (and mental health alerts). However, I cannot confirm the accuracy of the reported compliance rates cited therein without the raw data or detailed information on the timelines and demographic breakdowns.

[75] Operational Support Division, “Audit of Mental Health Screening Requirements” (PowerPoint deck, Ministry of the Solicitor General, Ontario, January 6, 2020).

[76] For schedule item requirements in entirety, please see the Consent Order: http://www.ohrc.on.ca/sites/default/files/OHRC%20v%20MCSCS%20-%20Consent%20Order%20-%20Jan%202018.pdf

[77] These definitions of mental illness were approved by the minister’s office on November 29, 2019.

[78] This is a term commonly used by various correctional oversight bodies as well as persons in custody.

[79] Modernization and Strategic Policy, Research and Innovation Division, “Update on Ontario’s Implementation Plan for the Independent Review and Oversight of Administrative Segregation” (PowerPoint deck, Ministry of the Solicitor General, Ontario, September 30, 2019).

[80] The ministry has indicated that it expects the reviews will be mandatory at the local level and at the discretion of the Superintendent to escalate to the DRD level. This policy proposal has yet to be approved, and it is unclear whether this ‘mandatory local level review’ would have equivalent forms and processes for proper oversight. The grey zone will inevitably include some – in fact many – of those who are practically subject to conditions of confinement that constitute segregation. Therefore, to ensure compliance, the ministry has been advised to extend the local and DRD requirement to this group, and to adopt the same forms and processes.

[81] Correctional Services Recruitment and Training Centre​, “Independent Segregation Review and Oversight,” (PowerPoint deck, Ministry of the Solicitor General, Ontario, September 2019).

[82] Correctional Services Recruitment and Training Centre​, “Independent Segregation Review and Oversight,” (PowerPoint deck, Ministry of the Solicitor General, Ontario, September 2019).

[83] Some of examples of this include (a) creating opportunities for compatible inmates to spend time together in the yard, dayroom or participating in programs that encourages them to converse and/or engage with each other in a positive manner; (b) front line staff conversing with inmates about the news or areas that they are interested in such as sports, art, music, in enough depth that a meaningful conversation is had in which the inmate feels less isolated because of the CO interaction; (c) encouraging and providing inmates with opportunities to participate in religious or spiritual practices; and (d) offer inmates work program opportunities within the institution. Correctional Services Recruitment and Training Centre​, “Independent Segregation Review and Oversight: Presented to Correctional Officers,” (PowerPoint deck, Ministry of the Solicitor General, Ontario, January 2020).

[84] As of the date this Report has been submitted, it is not known whether, and if so on what terms, the Supreme Court of Canada will grant leave to appeal to Ontario and British Columbia ‘CCLA’ decisions. If leave is granted, the court’s views are unlikely to be known until sometime in 2021. While I recognize that CCLA appeal is still under consideration, the ministry was making changes that could undermine or support Jahn (policy, forms, training, etc.) while assuming that this is/will be the law. “Break in seg”, “meaningful interaction”, and “out-of-cell time” have been proposed to be part of segregation definition itself. As far as Jahn is concerned, all segregation definition related changes will have to be considered and applied for compliance to the Order (see B-1).

[85] See especially Ombudsman Ontario, Out of Oversight, Out of Mind: Investigation into how the Ministry of Community Safety and Correctional Services Tracks the Admission and Placement of Segregated Inmates, and the Adequacy and Effectiveness of the Review Process for Such Placements page 27 at 72, Ontario: Office of the Ombudsman, 2017; Office of the Correctional Investigator, A Preventable Death. Ottawa: Office of the Correctional Investigator, 2008; Dr. John Carlisle, Coroner for Ontario: Verdict of Coroner’s Jury - Coroner’s Inquest Touching the Death of Ashley Smith, Toronto: Coroner for Ontario, 2013.

[86] The Ontario Ombudsman found that segregation records were often incomplete, misdated, or nonexistent (Ombudsman Ontario, 2017).

[87] As per CCLA, this time must be meaningful.

[88] Incidentally, this recommendation, if implemented, would allow the ministry to mitigate the foreseeable operational challenges associated with ascribing minutes and degrees of meaningfulness to social activities.

[89] See Ministry of Community Safety and Correctional Services, The Letter and Terms of Reference for the Independent Expert, March 15, 2018.

[90] This proposed solution will not work unless there is a significant increase in operational support.  The practicability of this solution remains to be seen. A number of potential pitfalls exist. The analysis of the gray zone from 20-22 hours is also relevant to the tracking of RC.

[91] To bolster confidentiality and participation of the segregated individual in the review process, both the individual segregation statement and segregation review notifications completed by and delivered to incarcerated individuals should be placed in sealed envelopes.

[92] This new process also requires the Legal Services Branch to participate in the reviews should accommodation issues arise.

[93] The ministry currently defines the Independent Reviewer as “designated individuals (deputy regional director, ADMO-IS) responsible for the review, oversight and placement decisions regarding inmates who have been in segregation conditions for more than four days” (Ministry of the Solicitor General, “PSMI draft, Version 6,” November 7, 2019).

[94] The Ontario Superior Court of Justice in R. v. Capay found that it was “obvious that the segregation review process in the case of the accused was meaningless at the institutional and regional levels” (emphasis added, at para 386).

[95] Independent Advisor on Corrections, Segregation in Ontario: Independent Review of Ontario Corrections (Toronto: Queen’s Printer for Ontario, 2017). Also see Correctional Services and Reintegration Act, 2018, S.O. 2018, c. 6, Sched. 2.

[96] As stated in my Interim Report: “Ontario has not demonstrated province-wide operational changes compliant with its requirements under Public Interest Remedies 4 and 7, which outline specific care requirements for those assessed as experiencing serious mental illness.”

[97] See discussion of Schedule items B-11 and B-12.

[98] The Consent Order requires the ministry to define, track and support those with ‘mental illness’ ‘major mental illness’ or ‘mental health disability.’ The ministry has used the terms ‘mental illness’ and ‘serious mental illness’ instead to refer to these requirements. In this report, the term ‘mental illness’ and ‘mental health disability’ are used interchangeably, as are the term ‘serious mental illness’ and ‘major mental illness’ .

[99] Ministry of the Solicitor General, “Jahn Consent Order Narrative,” (Internal document, shared on November 10, 2019), at page 6.

[100] At the time of my Interim Report, neither the revised PSMI policy (December 17, 2018) nor the Mental Health Services policy (July 31, 2018) included a definition of major mental illness.

[101] Ministry of the Solicitor General, “Implementation Plan for the Revised Definitions of Mental Illness and Serious Mental Illness (Version 2.0)” (PowerPoint deck, shared on November 10, 2019).

[102] While Ontario has 25 provincial institutions, only 24 were included in this review.

[103] Operational Support Division, “Audit of Mental Health Screening Requirements” (PowerPoint deck, Ministry of the Solicitor General, Ontario, January 6, 2020).

[104] This audit excludes the Toronto South Detention Centre and the St. Lawrence Valley Correctional and Treatment Centre.

[105] While the original wording of the Order states that a “treatment plan” ought to be developed for these individuals, the ministry has labeled this document a “care plan.” This is to avoid confusion as there already existed operational clinical documents referred to as “treatment plans” which include medical protocols. The care plan (and not the treatment plan), which was meant to fulfill the requirements under PIR4. Therefore, any policies, practices and documents currently used for the clinical purposes (i.e., treatment plan) cannot be said to satisfy these requirements.

[106] As noted in the Final Report of the Independent Reviewer: “After speaking with a number of representatives from institutions throughout the province, I have concluded that the union is entirely correct that there remain significant ambiguities in policy that should be clarified for the future assistance of health care/nursing staff, line staff, and any other staff involved in the development and use of Care Plans…While there is certainly nothing wrong – and much right – with involving line staff officers as members of “Inter-professional teams”, this does not appear to be occurring with any kind of consistency or regularity across institutions. As a result of resource or staffing considerations, it seems that sometimes only Unit Managers or Staff Sergeants are included as Inter-professional team members in some institutions, while line staff are included as members of such Teams in other institutions. These limitations are understandable given the variability of institutions across the province; however, I am left with the overall impression that pertinent and relevant information and updates about persons in custody are not consistently disseminated to workers on the front lines – those who interact the most with persons in custody and by whom these plans could potentially be utilized most effectively…Due to the fact that there is no standardized approach in policy for disseminating relevant information or changes discussed in those meetings to front line staff, it is also entirely possible that what gets discussed in Inter-professional team meetings does not actually make its way to the Correctional Officers (COs) ‘on the line’” (Section 7, pages 8-11).

[107] The Independent Reviewer in his Final Report has discussed the lack of a standardized province-wide training for health care staff. I agree with his conclusion that the ministry “has not yet established any formal set of standards and training for preparing health care staff practicing in correctional institutions, instead letting the responsibility fall to individual facilities” and that they “are being sent in to perform a job without the appropriate level of preparation about what to expect and how to handle the unique demands of the job they are tasked with” (see page 13 of the Final Report of the Independent Reviewer).

[108] See also Section 7 of the Final Report of the Independent Reviewer.

[109] See also Section 7 of the Final Report of the Independent Reviewer.

[110] See further Section 7 of the Final Report of the Independent Reviewer.

[111] Toch, Mosaic of Despair.

[112] Lowen and Isaacs, “Lifetime Lockdown: How Isolation Conditions Impact Prisoner Reentry.”

[113] Ronald L. Bonner, “Stressful Segregation Housing and Psychosocial Vulnerability in Prison Suicide Ideators,” Suicide and Life-Threatening Behavior 36, no. 2 (April 1, 2006): 250–54, https://doi.org/10.1521/suli.2006.36.2.250; Terry A. Kupers, “How to Create Madness in Prison,” in Humane Prisons, ed. David Jones (Oxford: Radcliffe Publishing, 2006), 47–59, http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.392.9468&rep=re....

[114] Kupers, “How to Create Madness in Prison.”

[115] Bonner, “Stressful Segregation Housing and Psychosocial Vulnerability in Prison Suicide Ideators.”

[116] Brodsky and Scogin, “Inmates in Protective Custody: First Data on Emotional Effects”; Grassian, “Psychopathological Effects of Solitary Confinement”; Grassian and Friedman, “Effects of Sensory Deprivation in Psychiatric Seclusion and Solitary Confinement”; Korn, “The Effects of Confinement in the High Security Unit at Lexington”; Kupers, Prison Madness; Miller, “Reexamining Psychological Distress in the Current Conditions of Segregation.”

[117] Kupers, “How to Create Madness in Prison.”

[118] Holly A. Miller and Glenn R. Young, “Prison Segregation: Administrative Detention Remedy or Mental Health Problem?” Criminal Behaviour and Mental Health 7, no. 1 (March 1, 1997): 85–94, https://doi.org/10.1002/cbm.146.

[119] Korn, “The Effects of Confinement in the High Security Unit at Lexington”; Kupers, Prison Madness; Martel, Solitude & Cold Storage; Rhodes, Total Confinement.

[120] Kruttschnitt and Vuolo, “The Cultural Context of Women Prisoners’ Mental Health.”

[121] Martel, Solitude & Cold Storage.

[122] Craig Haney, Reforming Punishment: Psychological Limits to the Pains of Imprisonment, 1 edition (Washington, DC: American Psychological Association, 2005); Craig Haney, “Mental Health Issues in Long-Term Solitary and ‘Supermax’ Confinement,” NCCD News 49, no. 1 (January 1, 2003): 124–56, https://doi.org/10.1177/0011128702239239; Kupers, “How to Create Madness in Prison”; Miller and Young, “Prison Segregation.”

[123] Brodsky and Scogin, “Inmates in Protective Custody: First Data on Emotional Effects”; Grassian, “Psychopathological Effects of Solitary Confinement”; Haney, Reforming Punishment; Korn, “The Effects of Confinement in the High Security Unit at Lexington”; Kupers, Prison Madness; Miller, “Reexamining Psychological Distress in the Current Conditions of Segregation”; Scott and Gendreau, “Psychiatric Implications of Sensory Deprivation in a Maximum Security Prison.”

[124] Motiuk and Blanchette, “Characteristics of Administratively Segregated Offenders in Federal Corrections Response to the Commentaries,” 2001.

[125] Kupers, “How to Create Madness in Prison.”

[126] Haney, “The Social Psychology of Isolation: Why Solitary Confinement Is Psychologically Harmful.”

[127] Arrigo and Bullock, “The Psychological Effects of Solitary Confinement on Prisoners in Supermax Units.”

[128] Arrigo and Bullock; Haney, “The Social Psychology of Isolation: Why Solitary Confinement is Psychologically Harmful”; Jeffrey L. Metzner and Jamie Fellner, “Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics,” Journal of the American Academy of Psychiatry and the Law Online 38, no. 1 (March 1, 2010): 104–8.

[129] Let me be clear. If the ministry elects to reject some or, for that matter, all of my Interim or Final Recommendations, it is entirely within the ministry’s purview to do so. My concern is that, to date, the ministry does not appear to be addressing them substantively.

[130] In fairness, I should indicate that soon after the Interim Report was released, I was asked to comment on a proposed new template for a Misconduct Notice. I responded by indicating that this proposed new Form appeared to address the concerns raised in the Interim Report. However, I note that according to the ministry’s formal response, “[t]he template…is on hold pending the outcome of the frontline discussions on the D&M policy.” Once again, I must question why this is taking so long.

[131] CSC usually collects data on federal-length sentences through Information Retrieval Units (IRUs), staffed by ex-police officers. I have some familiarity with these units through my involvement in national judicial education programs. While these IRUs do a first-rate job (at least when court staff and the judiciary provide them with the material they are supposed to), I very much doubt that these units are adequately staffed to deal with the approximately 20,000 provincial-length sentences of less than 6 months imposed in Ontario each year.

[132] I presume this is data from Ontario courts.

[133] November 10, 2019 (on file).

[134] See for example the lack of any commitment by the ministry to implement Recommendations #5 and 7.

[135] “Corrections Mental Health and Addictions Strategy for Inmates and Offenders” (October 18, 2019; on file p.6).

[136] “Defining a Correctional Health Care Strategy for Inmates and Offenders” (October 18, 2019; on file p.9).

[137] While I do not wish to be taken as endorsing the OHRC and MERC’s November 2019 “Joint submission to Ontario’s consultation on the 2020 budget: Necessary investments in Ontario’s correctional system”, I find it noteworthy that these groups, supported by other stakeholders, similarly propose, under the heading of “Support[ing] Front-Line Staff” that staff be adequately trained “on correctional and human rights law as well as criminal procedure” (section 3(c)(iv); emphasis added).

[138] I must say that I have some difficulty imagining how taking steps to reduce reliance on the Police Synopsis will form a part of a “bail and remand strategy”.

[139] To give some idea of the complexity of this issue, I brought to the attention of the ADMs that some police departments and court-based service providers (such as probation officers or bail program staff) have refused or expressed extreme reluctance either to transport or to receive property from the detention centre pending the prisoner’s release at court. I requested that the ministry examine the possibility of “Indemnification Agreements” to protect such police and staff. After receiving a legal opinion, an ADM responded that, while indemnification agreements as contemplated were an option, there were significant requirements within government that would need to be met to offer such agreements to third parties providing those services.

[140] It would appear that oral argument in these cases may be heard in late 2020, with reasons to follow sometime in 2021.

[141] I have chosen to use the term “mental illness” in this Report as a blanket descriptor for persons suffering from a variety of conditions including – but not restricted to - developmental delay, addiction and acquired brain injury.

[142] Rather than repeating the words “or designate” each time, I shall simply refer to the disciplinary decision-maker as “the Superintendent”.

[143] These continue to mirror s. 34(1) of Regulation 778 under the Ministry of Correctional Services Act, which currently remains the governing statute. On this, see Sheepway v. Hendriks 2019 YKSC 50.

[144] Section 6.0. The Independent Expert and I have been advised that the descriptions of the various types of placements described in this section of the Policy will not change substantially, if at all, in the final revisions to the PSMI.

[145] Memorandum to all superintendents announcing the Revised PSMI policy, December 17, 2018.

[146] Since this category seems to be reserved for those inmates who require “to be placed in isolation for medical or treatment purposes to protect the health and safety of the inmate or to prevent the spread of disease” (PSMI Medical Placement Policy s.6.3.2.a), “misconduct issues” seem unlikely to occur with this group. While such inmates can and often do create considerable management issues and concerns for staff e.g. the tubercular inmate who denies their illness, the Policy seems to be restricted to those who present with physical rather than mental health difficulties; consequently, this category will not be considered further. But see R. v. Boone 2014 ONSC 370; 2014 ONSC​ 515 as an extreme example of a mentally ill HIV positive person in custody whose refusal to desist from unprotected sexual activities with others in custody resulted in the ministry deciding that he needed to be isolated, a decision which was upheld by two levels of Ontario courts.

[147] PSMI Policy, ss.3.1.1-3.1.3

[148] Ibid ss. 3.1.4-3.1.6; 3.2.1-3.2.6

[149] As one angry remand prisoner awaiting trial in an institution where some of these changes have already been instituted rather aptly told me during a routine pre-trial appearance in court: “all this is b.s.; it’s just ‘seg. lite’”. Furthermore, front-line staff still routinely refer to these physical spaces as “segregation cells” and “segregation units”, so the shift from conceptualizing segregation as a space rather than a condition has not necessarily translated into practice to the operational level.

[150] According to ministry data, over the past several years the percentage of persons held in custody solely as immigration detainees amounts to about 1.8% of adult prisoners (see Section 2, Table 1). Because I am aware that a number of these often very long-term detainees suffer from severe mental illnesses (see the recent report from the  Human Rights Program at the University of Toronto Law School https://ihrp.law.utoronto.ca/sites/ihrp.law.utoronto.ca/files/PUBLICATIONS/IHRP%20We%20Have%20No%20Rights%20Report%20web%20170615.pdf),  I asked senior ministry staff whether they considered that this would be something that should be investigated as part of my mandate. The assistant deputy minister of Operational Support responded that since these persons are detained under a cost-sharing arrangement with the federal government, rather than as a result of criminal charges, the ministry was of the view that this did not fall within my mandate.

[151] There are very occasional exceptions for persons detained under federal “national security certificates”.

[152] Code s. 743.1.

[153] Prisoners of Isolation: Solitary Confinement in Canada (University of Toronto Press, 1983); Justice Behind the Walls: Human Rights in Canadian Prisons (Douglas & McIntyre, 2002). The latter text is supplemented by a regularly updated blog, found at www.justicebehindthewalls.net. In addition, Prof. Jackson has for many years been a core member of the Canadian Bar Association’s ongoing Committee on Imprisonment and Release. (As a matter of full disclosure, I was a member of that Committee and worked closely with Prof. Jackson on these and other issues throughout the 1980s prior to my appointment to the bench in 1991).

[154] See, for example, M. Jackson “The Litmus Test of Legitimacy: Independent Adjudication and Administrative Segregation” Canadian Journal of Criminology and Criminal Justice, Vol. 48, Number 2, April 2006 pp.157-196.

[155] [2019] O.J. No. 1025; 2019 ONSC 535. I should also note that Prof. Hannah-Moffat, the Independent Expert involved in the present review, also gave evidence as an expert witness in the Capay case and in both of the “CCLA” cases.

[156] B.C.C.L.A. v. Canada [2018] B.C.J. No. 53; 2018 BCSC 62.

[157] Only in the area of adjudication of “serious” institutional misconducts in federal penitentiaries have “independent chairpersons” been allowed to serve as decision-makers (since 1991). My proposals to apply a somewhat similar regime to the provincial discipline system are discussed infra.

[158] At paras. 387-389. It should be noted that the same sentiment was clearly expressed by a senior Ontario provincial penal administrator who testified in R. v. Capay, as quoted infra.

[159] Para. 391

[160] Para. 173.

[161] Para. 175.

[162] Para. 176.

[163] Paras. 409-410.

[164] 2019 ONCA 243, paras. 2, 42 & 65.

[165] Paras. 193-194.

[166] Para. 197. It is perhaps noteworthy that the Court of Appeal publicly released its decision three days after the then pending federal legislation establishing “independent external decision-makers” had finally passed through the Parliamentary process. See Bill C-83 ss. 37.6-37.83 and SOR/2019-299 ss. 23.06-23.07.

[167] Now called a “structured intervention unit” in federal parlance.

[168] The August 29, 2019 draft that has been shared with me contains an as yet undated letter from the assistant deputy minister of Institutional Services to all superintendents, which cites the precise language of the judgment.

[169] See Footnote 167 supra. These issues are thoroughly discussed in a very recent case comment on the “CCLA” cases by Prof. Lisa Kerr The End Stage of Solitary Confinement” (2019) 55 C.R. (7th) 382.

[170] S.O. 2018 c.6 

[171] See Organization for Security and Co-operation in Europe (OSCE) Office for Democratic Institutions and Human Rights (ODHR) and Penal Reform International (PRI) Guidance Document on the Nelson Mandela Rules Implementing the United Nations Standard Minimum Rules of the Treatment of Prisoners (2018) on file.

[172] See paras. 386, 415 and 464.

[173] Para. 108 (emphases added). See also para. 95.

[174] It should be recalled that the only reason the Capay case came to public attention because a correctional officer brought his plight to the attention of the Ontario Human Rights Commissioner, who happened to be visiting the institution in which Mr. Capay was at that time detained. While some ministry staff continue to refer to this case as “an exception where procedures were not followed” or “an anomaly”, it is entirely possible that, despite the reforms the ministry is currently proposing, other as yet undetected “Capay-type” cases may already exist within Ontario’s correctional system, or may unfortunately arise in the future.

[175] See footnotes 166-167 supra.

[176] s. 72(8).

[177] CSRA s.74(2)(1).

[178] O. Reg. 778 was amended (effective November 1, 2019) to place a “cap” of maximum 15 days in “conditions that constitute segregation” that can be imposed as a potential penalty for breach of an institutional offence. In the accompanying rationale, the ministry explains that: “Regulation 778 currently limits disciplinary segregation to 30 consecutive days; however, this does not align with operational policy, which establishes a 15-day cap on disciplinary segregation. The ministry made changes to the disciplinary segregation regime in operational policy based on research, engagement with stakeholders and the public, and international standards. The corresponding regulatory provision will be changed to align with operational policy and reduce any ambiguity for frontline staff.”

[179] S.A. 2007 c. 29, s.3. A somewhat similar program – soon to be formally confirmed in territorial legislation - is currently underway in the Yukon, modified to reflect the sparse demographics in some parts of the Territory. On this, see Sheepway v. Hendriks 2019 YKSC 50.

[180] Perhaps the time has come for Ontario to re-evaluate whether the remission regime needs to be retained. During the Correctional Law Review process of the 1980s federal authorities came to the conclusion that this regime was no longer needed in penitentiaries, so this regime was repealed at the federal level in the 1992 Corrections and Conditional Release Act. In light of this the provinces were asked if they wished to repeal the regime (by way of an amendment to the Prisons and Reformatories Act). Ontario and other provinces indicated their objection to this proposal, which was consequently abandoned. However, as the data in section 2, Tables 1, 4 and especially 6 disclose, the nature of Ontario’s correctional population has changed very substantially since the 1980s. Routinely, Ontario’s correctional population is now comprised of about 70% remand prisoners, to whom the remission regime does not apply. Even if Ontario elects to maintain the remission regime as a spur to good behavior for sentenced prisoners, perhaps it is time to re-examine its availability as a potential punishment for breach of institutional discipline. In my Interim Report I produced some data (section 4, Table 8) indicating that penalties of loss of remission or suspension of the right to earn remission were only imposed in about 4% of cases, (those cases of course involving only sentenced prisoners).

[181] I have by no means forgotten about my Interim Report recommendation that allegations of “non-serious” misconduct should be referred to an external decision-maker where the superintendent is considering asking for a period of “close confinement” in the event the person in custody is found guilty. I did not ask the ministry to try to obtain this data, both because it would likely have been extremely time-consuming to do so, and because my conversations with Superintendents lead me to believe that such a request in a “non-serious” allegation of misconduct would be very rare. In the event the ministry elects to follow up with more detailed data, this is something that should be taken into account.

[182] The three institutions selected were the Ottawa-Carleton Detention Centre , the Central East Correctional Centre and the Quinte Detention Centre.

[183] There was a substantially greater number of persons (89.19%) who “denied” the allegations at the Quinte Detention Centre. From discussions with ministry staff I have some reason to believe that this institution’s “correctional disciplinary culture” may be somewhat anomalous, as compared with other institutions. Because of its geographical location near a number of federal penitentiaries, Quinte tends to house numerous “federal” prisoners who are awaiting trials in courts serviced by that facility. I have myself observed on several occasions that such persons often present significant management difficulties in a non-penitentiary environment; deliberately or otherwise, they tend to demonstrate their resistance to being in “provincial” custody by acting out, often very aggressively, to staff and/or other persons in custody. If they are then charged with institutional misconducts, they tend to “litigate” rather than concede that they have erred.

[184] See Currie vs. Alberta (Edmonton Remand Centre) [2006] A.J. No. 1522; 2006 ABQB 858. I been unable to discern whether the relevant Alberta ministry has conducted any evaluations of this program, which has been operational since abut 2007 (there has been some post-Currie commentary on the program’s efficacy in Alberta case law; see Paxton v. Calgary Remand Centre (Director) [2014] A.J. No. 820 and cases cited therein).

[185] Consistent with the terms of the Jahn Consent Order, any training of external independent decision-makers should at least include segments on gender and mental health, as well as on the dynamics of correctional institutions. I would suggest that some of the very experienced federal ICPs who preside in Ontario might be of considerable assistance as trainers.

[186] Recommendation 9(e)(vi).

[187] pp. 255-6.

[188] November 1, 2019.

[189] The directive is issued by the assistant deputy minister of Institutional Services. “Directives” are frequently used by the ministry as a speedier mechanism for introducing new policies and procedures, rather than going through the rather convoluted processes of introducing new “Policies”.

[190] It would of course be open to either the superintendent (or the regional director) to simply order that the person no longer be detained in “conditions that constitute segregation” at any time.

[191] ADM Directive October 29, 2019.

[192] The Correctional Service of Canada (CSC) has publicly released many of its policies in the form of what are called “Commissioner’s Directives”, available on the CSC website. Other more local policies, which often involve security concerns, are referred to as Standing Operating Orders”. The Director General of Strategic Policy and Planning for CSC summarized the distinction as follows: “Regarding the sharing of policies with the public, CSC does share most policies with the public (on our external website), but we do not share certain specific policies that could jeopardize the security of institutions, staff or inmates”. New Zealand has published many of its prison policies on its website since 2004; my understanding is that the same type of distinction between what is publicly released and what is released only within the prison system is made. Though it would take a lot of effort, no doubt such a distinction could be drawn by the ministry.

[193] I would suggest that publication/posting of the vast majority of these policies (some of which are called “Assistant Deputy Minister’s Directives”) would also be a waste of resources. To illustrate, as part of my mandate I have been provided with some 250 health care policies, most of which deal with entirely mundane matters, such as the rules around the ministry ordering medications in bulk.

[194] Or, more practically, prepare an informed opinion for legal aid LAO officials to make a proper determination as to whether they are prepared to authorize the expenditure of scarce resources to challenge the ministry’s decision in a court proceeding.

[195] “Sentencing Ashley Smith: How Prison Conditions Relate to the Aims of Punishment”, Canadian Journal of Law and Society, 2017 Volume 32, no. 2 pp. 187-207 at p. 191.

[196] PHIPA, Part I, Sec 1(a).

[197] A Guide to the Personal Health Information Protection Act, 2004, https://www.ipc.on.ca/wp-content/uploads/Resources/hguide-e.pdf

[199] Email dated October 29, 2018 (on file).

[200] Those involved in the provision and administration of insurance services for mental health professionals should also be involved in any such discussions, as should the various “Colleges” that regulate such professionals.

[201] Institutional Services Policy and Procedures Manual, Inmate Management, Placement of Special Management Inmates (December 2018 version). As recently as January 31, 2020 the Independent Expert and I have been advised that this definition of a Care Plan is now under revision, as is the entire Placement of Special Management Inmates Policy.

[202] Any possible remaining ambiguity in this question of access by line staff is surely dispelled by the heading of the current version (CS 010-152 (10/2015)) of the Care Plan template, which reads (in part): “A Care Plan guides the inter-professional team to strategize and manage inmates to meet their individual goals and needs. It provides information for front-line staff on how to best care and support the inmate.”.

[203] The Independent Expert and I have recently been advised that this definition too may be revised.

[204] “Jahn Consent Order Narrative”, Oversight and Accountability Unit, November 11, 2019 (on file).

[205] Ministry of the Solicitor General, Health Care Service Policy and Procedure Manual, Health Care Records, Management of Personal Health Information, April 12, 2012.

[206] Offender Tracking Information System (OTIS).

[207] This wording appears to have been derived from a July 2005 Fact Sheet (Number 7) issued by the Information and Privacy Commissioner interpreting s.40(1) of PHIPA. The Fact Sheet states that “…a custodian can disclose personal health information in the absence of an individual’s consent…if a health information custodian believes on reasonable grounds that it is necessary, in order to eliminate or reduce a significant risk of serious bodily harm to a person or group of persons, to disclose personal health information without consent, the disclosure may be made.”

[208] Ibid.

[209] Other examples provided to me by the ministry are that the person in custody may be subject to a suicide watch, that special precautions are necessary for the protection of staff (e.g. airborne, droplet or other contact precautions), or other special precautions (e.g. requires inhaler).

[210] Personal communication to my research assistant from program advisor from Corrections Learning and Standards Branch.

[211] Though Care Plans are not specifically mentioned in the OHRC/MERC’s “Joint submission to Ontario’s consultation on the 2020 Budget: Necessary investments in Ontario’s correctional system” (November 2019), as I read the various proposals to support staff health and safety it would seem clear that re-evaluation of the role of Care Plans would form part of such reforms to training. As the very last details of this Report were being finalized, I was unexpectedly forwarded what appears to be a brand-new power point “deck” (dated January 2020) designed for instructing correctional officers about dealing with segregated inmates. Part of that “deck” differentiates between “Care Plans” and “Treatment Plans”. While I am pleased that this is being done, given its recency I have had no chance to evaluate its adequacy nor to review it with MERC officials.

[212] The Independent Expert and I have been advised by both line staff and managers in several institutions we have visited that, contrary to whatever may be expressed in formal policy, it is frequently the case that line staff know the prisoners better than managers, and that it is line staff who are the first to bring their observations and concerns to the attention of health care staff, rather than the other way around. Sadly, this often stems from line staff having dealt with local “frequent fliers” over many months and years.

[213] See footnote 211 supra.

[214] As of November 19, 2019, the manager of the Oversight and Accountability Unit, of the External Oversight and Compliance Branch of the Solicitor General has provided a “Narrative” of the ministry’s progress on the public interest remedies and consent order deliverables resulting from Jahn settlement, as well as their ongoing plans that have not yet been realized but are intended to be implemented in the near future. According to this document, it appears that the ministry intends to address a number of recommendations that I have put forth above: “The ministry is updating the Inmate Care Plan template and is developing a supporting Guidance Document for all institutional staff that outlines who is to have an Inmate Care Plan, who initiates it, what information ought to be included, how often it will be reviewed, where the plans should be stored in the institution and how material information will be communicated and shared amongst relevant institutional staff”. See footnote 211 supra.

[215] R. v. Roberts 2018 ONSC 4566 at para. 34.

[216] Ministry of the Solicitor General “30 Day Segregation Review Report” (January 2019, unpublished)

[217] Ministry of the Solicitor General “60 Day Aggregate Segregation Review Report” (January 2019, unpublished).

[218] Schedule B-15 data.

[219] PSMI Policy, ss. 4.1 (December 17, 2018).

[220] They are most often delegated to unit management or sergeants to expedite the decision-making process.

[221] The rationale for the establishment and functioning of these two proposed bodies are discussed in section 3 supra.

[222] Handout provided by Superintendent of The Central Nova Scotia Correctional Facility. Though the description refers to “offenders”, which suggests that access is restricted to those serving sentence, on the occasion that I visited, several of the approximately 15 prisoners on the unit were on remand.

[223] Ibid.

[224] As referenced in footnote 211 supra, I have just been presented with various apparently brand-new (January 2020) training materials designed to educate correctional officers about segregation, restrictive confinement and specialized care placements. Part of the “decks” I have seen contain materials about human rights law and recent appellate decisions. Once again, because of the recency of delivery to me, I have not had any opportunity to review the adequacy of these “decks”.

[225] This is entirely consistent with what the Supreme Court of Canada recently emphasized about the importance of the constitutional relationship between bail and the presumption of innocence in R. v. Antic 2017 S.C.J. No. 27.

[226] Sadly, many of them are referred to the police by their families, who feel that they can no longer endure the manifestations of mental illness or addictions.

[227] Transforming Health Care in Our Provincial Prisons (unpublished, 2018), available through the website of the John Howard Society of Ontario.

[228] This is by no means unique. To date British Columbia, Alberta, Quebec, Nova Scotia, Newfoundland & Labrador either have made such a transition or are in the process of doing so.

[229]Transforming Health Care in Our Provincial Prisons p. 13.

[230] Ontario Ministry of Community Safety and Correctional Services. Statistical Analysis Unit, Research and Innovation Branch, Adult Correctional Populations: (fiscal) 2016-17. In fiscal 2018-19 the average time in custody for those on remand was 42.7 days and the median time in custody was 12 days, while for sentenced individuals the average time in custody was 58.5 days and the median time in custody was 23 days. A significant proportion of those in provincial custody were there for less than one week. 25.6% spent between one and seven days in custody prior to release, and 70.0% were incarcerated for one month or less”. See Tables 4 & 5 in Section 2 of this Report.

[231] It is clear from other portions of the Report that the Committee broadly recommends two forms of “diversion” for many mentally ill and developmentally delayed accused – either not proceeding with criminal charges in the first place, or ensuring that bail release is readily available so that an accused who remains in the criminal justice system can be diverted from custody pending resolution of their charges. This is consistent with Recommendation 18 of a ministry-led Task Force into conditions at the Ottawa-Carleton Detention Centre in 2016: “MCSCS and MAG should increase the availability of pre- and post-charge diversion programs for individuals suffering from addictions and mental illness” (emphasis added).

[232] Transforming Health Care in Our Provincial Prisons at pp. 6-7, emphases added.

[233] Ibid p.22, emphasis added

[234] pp. 2,4 (emphasis added).

[235] Corporate Health Care and Wellness Branch (CHCWB).

[236] If proclaimed in force, s. 34(3)(b)(iii) and (iv) of the Correctional Services and Reintegration Act will create a more formal role for such forms of “case management”. I read this legislation as obligating Superintendents to develop “case management” for both remand and sentenced persons in provincial custody.

[237] Section 4, p.23.

[238] “Community Transition for Addicted and Mentally Ill Incarcerated Individuals” Alberta Health Services, November 2017, (on file) p. 5

[239] Ibid. It should be noted that many of the papers reviewed are from studies conducted in American jurisdictions, which have very different rules regarding conditions of confinement that can be imposed by penal authorities (such as ordering prisoners to take various forms of medication), as well as different bail and parole rules. Such Canadian studies as are referred to in that literature review only describe “transition teams” dealing with releases of federally sentenced prisoners, not remanded or sentenced provincial prisoners.

[240] There is an economic argument that needs to be briefly addressed. Some prison reformers frequently trumpet that because incarceration is expensive, “community” alternatives should always be preferred. With respect that argument fails to take into account the costs to various social systems of providing adequate funding for the kinds of expensive “wraparound” services that will be necessary to properly support transitions from custody to community. With this in mind, I recently inquired whether any evaluations of the Alberta program are being conducted. I am told by Alberta correctional officials that none are currently being undertaken. This is unfortunate because one would have hoped that some sort of “value for money” audit would be undertaken as part of any evaluation.

[241] March 23, 2017, on file. The Alberta program aims to serve both adults and youth. Given that I have no mandate to examine mental health issues for incarcerated Ontario youths (ages 12-17), I shall not comment at all on this aspect of the Alberta program.

[242] I have also been briefly made aware of a similar program started in parts of British Columbia in the spring of 2018. Obviously, it is too early to expect any evaluation of that program’s costs and successes.

[243] “Correctional Transition Teams: Roles, Processes, and Standards” p. 4 (citations omitted).

[244]Email from Dr. Sylvain Roy, Lead Clinician, Inner City Health Team dated November 30, 2019 (on file).  The brief summary that I have seen of this CAMH study does not exclusively consider custodial populations, but it extensively references the fact that many of the homeless are (or have been) involved with the criminal justice system. In addition, I have found the following websites to be particularly useful. Some 10 years ago the American Psychological Association published an extensively peer-reviewed study tracing the multifaceted relationships  between mental health and homelessness: https://www.apa.org/pi/ses/resources/publications/end-homelessness. More recently, drawing on successful U.S. programs, a Toronto-based organization called “Housing First” makes some very sensible proposals for addressing the cycle between insecure housing and mental illness: https://www.homelesshub.ca/solutions/housing-accommodation-and-supports/housing-first.

[245] Section 4, pp.16-18.

[246] The Report and subsequent Progress Reports are posted on the ministry website.

[247] According to one of the OCDC Task Force Progress Reports, satellite residential facilities are operational in Pembroke, Perth and L’Orignal. Separate from the OCDC Task Force I have also been made aware that since 2016 JHS Thunder Bay has operated a “bail bed” facility in that city. The Director of Partnerships and Strategic Initiatives for John Howard Ontario writes: “JHS Thunder Bay was the first location in Ontario to roll out bail beds for both male and female populations. They receive block funding (as opposed to per diems) of $200,700/year for 20 bail beds. That works out roughly to about $10,035 per bed annually, or approximately $27 per day per bed. Since the program’s inception, occupancy rates have increased and remained very high….Looking at the data, you see a high of 960 days as the longest concluded stay to date in a bail bed at JHS Thunder Bay. If that individual had remained detained in a detention centre, that would have cost the system significantly (using the above per diem figure, that would have amounted to $195,360 in corrections costs versus the bail bed cost of approximately $25,920). While there is a wide range of length of stays (if you average the length of stays, you arrive at 88 days, with wide deviations on either end), if you look to the occupancy rate, it is clear the program has received significant uptake.”

[248] These officials went on to outline some more specific proposals: “In the future, an interesting opportunity may exist with The Good Shepherd shelter located at 412 Queen Street East in Toronto. The facility provides shelter beds, with housing and resettlement workers, crisis intervention counseling, and the effective Drug and Alcohol Recovery Enrichment (DARE) program (25 beds).  For many years the Agency has been trying to build a second 90 bed facility; with 60 beds for a newly relocated DARE program and 30 additional shelter beds. If successful, the existing 25 DARE beds at 412 Queen Street could be repurposed as bail beds and/or supportive/transitional housing for the criminalized mentally ill.”

[249] The organization’s website describes Cota as: “an accredited, not-for-profit, community-based organization that has been supporting adults with mental health and cognitive challenges to live well within their communities for over 45 years. We provide person-centred supports that assist individuals to find inspiration and hope in their inherent strengths and support them to pursue meaningful change in their lives, as they define it. We also work collaboratively with our funders, our partners and other stakeholders, across the provincial health and social service systems, to inspire positive change in the way that services are delivered to individuals living with mental health and cognitive challenges….Cota offers a wide range of services to adults living with serious mental illness, geriatric mental health conditions, acquired brain injuries, developmental disabilities and dual diagnoses. Our services include case management, supportive housing, short-term residential beds, day programs, court and justice related services, an Assertive Community Treatment (ACT) team and services for individuals who are experiencing homelessness.”

[250] I have been made aware of the existence of some more informal arrangements between detention centres and local courts. In my Interim Report I described what appears to be a most sensible working relationship between officials at the Monteith Correctional Centre and court personnel based in Timmins.

[251] The U.S. Vera Institute’s website contains numerous examples of successful “wraparound” practices used in various American states.

[252] While I do not wish to be taken as endorsing the OHRC and MERC’s November 2019 “Joint submission to Ontario’s consultation on the 2020 budget: Necessary investments in Ontario’s correctional system”, I find it noteworthy that these groups, supported by other stakeholders, propose several steps designed to reduce over-crowding, including “[d]eveloping non-institutional forms of pre-trial detention, including safe and sustainable alternatives to incarceration used in other jurisdictions”, and “”[i]dentifying existing community-based services and programs that could be leveraged to promote an individual’s safe, gradual release from custody” (Recommendations 1(a) and (b)).

[253] Discharge planners have told me that they often are already well acquainted with sentenced offenders, and thus do not need a lot of time to provide advice and assistance, especially to “frequent fliers”.

[254] The data shown in Tables 4 & 5 in section 2 of this Report details that average and median sentence lengths have generally been reduced in recent years.