Solitary Confinement and the Structured Intervention Units in Canada’s Penitentiaries
The Final Report of the SIU IAP

December 5, 2024

Table of Contents

Preface

This is the final report of the Structured Intervention Units Implementation Advisory Panel (SIU IAP). The Panel was first created in 2019, lapsed for a year, and was re-established in 2021. Structured Intervention Units (SIUs) were created in response to violations of the Charter of Rights and Freedoms and the SIU IAP was created to monitor this policy response and report to the Minister of Public Safety. Since 2021, the Panel has visited penitentiaries, met with prisoners and CSC staff, held meetings with stakeholders, and produced several reports. The thread throughout these reports is that the Correctional Service of Canada is struggling to operate Structured Intervention Units (SIUs) in a way that best reflects the primary reason for their creation – the elimination of solitary confinement-like conditions for segregated prisoners.

It has been my privilege as Chair to work alongside nine remarkably savvy, insightful, informed, and passionate Panel members. To the extent that the work of the Panel has value, it is a result of the efforts of Ed Buller, Anthony Doob, Myrna Lashley, Ed McIsaac, Farhat Rehman, Jane Sprott, Janet Taylor, Johanne Vallée, and Margo Watt. Short biographies of the Panel members and links to all SIU IAP reports can be found here: Structured Intervention Units and the Implementation Advisory Panel

Howard Sapers, Chair
Structured Intervention Units
Implementation Advisory Panel

Structured Intervention Units and Solitary Confinement

During the 2010s, and most notably during the time when two "administrative segregation" cases were winding their way through the British Columbia and Ontario Courts, it was becoming increasingly clear that although the Government of Canada and Correctional Service Canada (CSC) were arguing to continue the practice of Administrative Segregation, the status quo was unlikely to continue. The practice of solitary confinement is generally defined as being in a cell for 22 hours or more without meaningful human contactFootnote 1 (with concerns especially focused on solitary confinement which lasts longer than 15 days), and the courts were heading toward prohibiting that practice.

When the Courts of Appeal in those two provinces determined that changes were necessary to make the practice of administrative segregation constitutional, the government introduced legislation that it claimed eliminated those aspects of segregation that resulted in the practice of solitary confinement. And 15 months after the amended legislation creating Structured Intervention Units came into effect in late 2019,Footnote 2 the Commissioner of Corrections stated: "We do not practice solitary confinement anymore."Footnote 3

The amended legislation resulted in a change in focus from concern about solitary confinement and how it was practiced in Canada's penitentiaries to a focus on legislatively created SIU cells in specific locations inside 10 CSC men's institutions and in the 5 women's institutions. Canada has only 15 SIUs and the SIUs are constantly monitored and documented. The data for this report and the 11 previous reports on the SIUs released since October 2020 come from this monitoring process. Various records of what happens in the SIUs are required by the Act that created them.Footnote 4 The focus on a location, however, left those prisoners not in SIUs essentially without statutory safeguards in terms of their experience of isolating conditions of confinement. To the extent that isolating conditions of confinement can be imposed on prisoners anywhere in an institution (as suggested by the Office of the Correctional InvestigatorFootnote 5), these practices largely go unmonitored by any external oversight system.Footnote 6

There is some disagreement between CSC and others (e.g., this Panel, the Office of the Correctional Investigator and at least one IEDMFootnote 7) about the presence of isolating confinement elsewhere in CSC facilities. In a redacted decision made publicly available,Footnote 8 one IEDM noted in a decision that:

Likewise, I am concerned about CSC's use of ranges outside SIUs that are not mainstream population ranges to avoid SIU placements, avoid CCRA obligations for SIUs, and avoid IEDM oversight. This issue appears to arise at [Maximum Security Institution]. In this case [the prisoner] was on the [maximum security institution] range, known as the reception or isolation range for about [time redacted]. While I have not been able to speak to [the prisoner] about his experience there, other inmates have described the conditions as more isolated than the SIU.

This Panel was unable to estimate how often such experiences occur and how long prisoners would typically be held in such conditions because the Service does not maintain data on these practices, and they are not subject to IEDM oversight. However, the Panel has witnessed such isolating practices, outside of the SIU, during our institutional visits.

The first detailed empirical report on the SIUs was released in October 2020.Footnote 9 This is the 12th empirically detailed report (the 8th by this PanelFootnote 10) on the operation of the SIUs carried out by people independent of the CSC, but using CSC administrative data. It is difficult to argue that conclusions on the operation of SIUs are premature. The picture painted by the data consistently shows that the practice of solitary confinement continues, and vulnerable groups appear to be especially at risk of experiencing its negative effects.

The Correctional Service Canada's Structured Intervention Unit Model Does Not Correct the Judicially Recognized Problems with the Former Use of Administrative and Disciplinary Segregation

The data that have been made available to this Panel by CSC allow us to evaluate three critical factors – short stays, time out of cell, meaningful human contact – that are meant to differentiate SIUs from solitary confinement.Footnote 11 These three factors are each central parts of the legislation governing SIUs.

The SIUs were established to separate some prisoners from the mainstream population to manage their custody. This separation is to be of short duration and only after considering and rejecting all reasonable alternatives.Footnote 12 The stated goal is to help these prisoners reintegrate into the mainstream populations as soon as possible.Footnote 13

Overall, CSC must address three central requirements when a prisoner is transferred into an SIU:

  1. The stay in the SIU should be for as short a period as possible.
  2. Prisoners should have the opportunity of a minimum of four hours per day out of their SIU cell.
  3. Two of these four hours should involve meaningful human interaction.Footnote 14

Short Stays in SIUs

The first of these defining characteristics is implied, but not stated, in the following two sections of the CCRA.

Indeed, transfer into an SIU can be justified only by reference to a number of specific legislatively prescribed reasons: the prisoner acts in way that jeopardizes the safety of a person or the institution; staying in the "mainstream population" would put the prisoner at risk; or staying in the mainstream would jeopardize the integrity of an investigation.Footnote 15 Each of these, it could be argued, justifies the stay in the SIU with reference to a weakness, or fault, or failure of the broader penitentiary system. In effect, it is suggesting that the broader penitentiary is unable to address certain issues, and the least harmful option is a transfer to the SIU. It is also noteworthy that these three articulated justifications for transfer to an SIU are almost identical to those that were used to justify transfer to Administrative Segregation.

To gain an understanding of how things may have changed when CSC moved from "Segregation" to SIUs, we looked at the length of stays in these settings (see Table 1).Footnote 16

Table 1: Prolonged Stays in Administrative Segregation and SIUs
Year Number of Stays (Segregation or SIU) that were 61 or more days in length Stays 61 days or more) per 1,000 Penitentiary PrisonersFootnote 17
("Rate")
Number of Stays (Segregation or SIU) that were >120 days in length Stays of >120 days per 1000 Penitentiary Prisoners ("Rate")
2017-8
(Segregation)
469 33.2 92 6.51
2018-9
(Segregation)
550 39.1 92 6.54
2020 437 34.1 168 13.10
2021 391 31.6 113 9.14
2022 313 25.7 61 5.01
2023 434 33.7 89 6.91
2024 Approx. 534 (estimated from the fact that between January and June there were 267 stays of at least 61 days) 38.0 (equivalent) 111 (estimated from the fact that between January and April there were 37 admissions that lasted at least 121 days. 7.90 (equivalent)

Note: Rates for 2024 are made roughly equivalent to what might be expected in a year. They obviously are estimates based on data for only a part of that year.

As we pointed out in our 3rd Annual Report, the fact that stays are just as long, or longer, under the new SIU model as compared to the old Administrative Segregation model is very concerning. Adding the 2024 data did not improve the picture. The SIU regime was meant to be different from the former Administrative Segregation. However, the data show that in 2023, SIUs looked very much like the last full year of the use of Administrative Segregation with very similar rates of long stays. The data for the first part of 2024 look much the same – both when one looks at the rate of stays that were long (61 days or more) and very long (121 days or more). Some caution should be exercised in interpreting these figures given that they are based on 6- and 4-month periods and do not consider any "split stays" in which a prisoner is removed from the SIU for a short time and then returned to an SIU, thus restarting the clock.

Many stays in SIUs are for very long periods of time and this has not appreciably improved in the past 4.5 years (see Table 2). For each of the 5 time periods (January 2020 to 30 June 2024), at least 20% of the SIU stays lasted over two months. To focus on individual prisoners, this means, for example, that between January and June 2024, 262 people started a stay in an SIU that would last at least 62 days.

Table 2: Total Days in SIUs (including those still-in) Over Time
Year SIU stay started 1 to 5 days 6 to 15 days 16 to 31 days 32 to 61 days 62 to 769 days Total Percent Total Number
2020 23.8% 24.9% 16.0% 15.1% 20.1% 100% 2,152
2021 15.4% 21.9% 16.4% 18.7% 27.6% 100% 1,393
2022 14.5% 22.7% 17.3% 24.3% 21.2% 100% 1,424
2023 16.6% 22.6% 17.7% 23.0% 20.0% 100% 2,140
2024 (to 30 June) 13.6% 21.9% 17.5% 21.8% 25.2% 100% 1,041
Total 17.6% 23.0% 16.9% 20.3% 22.2% 100% 8,150

Furthermore, the "time in the SIU" has, notably, not improved (i.e., become shorter) for two especially vulnerable groups: Black and Indigenous prisoners (Table 3). Prolonged stays in SIUs are somewhat more common for Indigenous and Black prisoners and since there have been no consistent, meaningful changes over time (see Appendix Table 1), we use all stays from January 2020 through 30 June 2024 to show the differences that have persisted throughout the SIU regime. Overall, while "only" 19.3% of White prisoners stay over two months, 25.9% Black prisoners and 23.6% of Indigenous prisons stay that long (Table 3).

Table 3: Total Days in SIUs by Ethnicity
Ethnicity 1 to 15 days 16 to 61 days 62 to 769 days Total Percent Total Number
White 45.3% 35.4% 19.3% 100% 2,955
Black, Caribbean, Sub-Sahara African 39.9% 34.1% 25.9% 100% 1,137
Indigenous 36.3% 40.1% 23.6% 100% 3,432
All others 42.8% 35.8% 21.4% 100% 626
Total 40.6% 37.2% 22.2% 100% 8,150

As the trends over time reveal (Appendix Table 1), in the first half of 2024, there were 262 prisoners whose stays in the SIU lasted 62 days or more. 55 of them were Black and 116 of them were Indigenous. Given that long stays in isolating conditions of confinement are known to be harmful and are discouraged by the governing legislation, we see that these two groups are clearly being made vulnerable to harm by CSC decisions.

Similarly, those who face mental health challenges tend to spend similar, or longer, periods of time in SIUs compared to those without such challenges. For example, 22.7% of those assessed by CSC as having "no" mental health needs had stays of over two months while 22.1% of those with "some" and 19.1% of those with "considerable or higher" mental health needs stayed that long. The length of these stays in the SIU is not improving (i.e., decreasing) in any appreciable way over time (Appendix Table 2).

The relationship between a person's changing mental health status and time in the SIU shows that those with deteriorating mental health (as assessed by CSC) stay longer than others. There have been no meaningful changes over time, so we simply present the overall pattern (for trend data see Appendix Table 3). Overall, of those with low needs/not getting worse 21.2% stayed over two months and 15.2% those with high needs, but not getting worse stayed that long (Table 4). That stands in contrast to those with various needs that are getting worse, where 37.5% stayed over two months (Table 4).

Table 4: Changes in Mental Health and Days in SIU
Mental Health Status 1 to 15 days 16 to 60 days 61+ days Total Percent Total Number
Low needs/not getting worse 42.9% 35.9% 21.2% 100% 6,692
High needs/ not getting worse 47.7% 37.2% 15.2% 100% 705
Various mental health needs and getting worse 13.4% 49.1% 37.5% 100% 753

To put the above figures in context, from January 2020 to 30 June 2024, 282 people who had been assessed by CSC as having deteriorating mental health were housed in SIUs for over two months. 34 of those stays started in 2024 (see Appendix Table 3). We know of no evidence which suggests that very long stays in isolating conditions of confinement (e.g. an SIU) are beneficial for those with deteriorating mental health.

Four Hours Every Day Out of the SIU Cell

The second critical characteristic of SIUs that is supposed to differentiate a stay in an SIU from solitary confinement-like conditions is that a prisoner should receive a minimum of four hours out of their SIU cell. Specifically, the CCRA states that:

Note that these two figures – the four hours out of cell and the two hours of meaningful human contact – are the minimum amounts that prisoners are supposed to be offered. It should be remembered that the main factor that would demonstrate a stay in CSC's SIUs is not "solitary confinement" is that prisoners are actually out of their cells for these minimum time periods. However, CSC's data demonstrate that many prisoners do not receive anything close to 4 hours daily out of their cells.

CSC places emphasis on the fact that the law only requires that prisoners are to be presented with "opportunities" or "offers" to have 4 hours out of their cells each day. There is no legal obligation that prisoners actually spend time out of their cells. One should therefore be concerned about what an "opportunity" actually involves, and whether it has to be an "opportunity" that is attractive to the prisoner. An "offer" or "opportunity" could be anything from doing something inherently better than being confined in a solitary manner like interacting with people who pose no threats – to something that is questionably better such as being alone in an exercise yard without equipment when the ambient temperature is -20C.

We have not been able to evaluate adequately the nature of the "offers" to be out of cell, and to our knowledge, after over four years of operation, CSC has no persuasive data on this issue. However, we do know that many prisoners, for many days during their stays in SIUs, choose not to "avail"Footnote 18 themselves of CSC's offers. We also know from data presented in some of the previous 11 reports on the SIUs, that "refusals" on the part of prisoners to leave their cells do not adequately account for all the times that prisoners do not receive their four hours out of their SIU cells. We are also unable to assess, systematically, why 'offers' of time out of cell (with or without meaningful human contact) were not accepted, and to our knowledge CSC also has no convincing data on this very important aspect of their management of the SIUs. It is, however, easy to understand why this might occur from discussions Panel members have had with prisoners in SIUs. An offer to spend time outside in the SIU's yard might be unattractive if the weather were bad, if there was nothing to do in the yard, if the yard places them in view of populations which makes them vulnerable, or if yard time means giving up some other activity such as a chance to phone home. An offer to be with other prisoners in a common area might be unattractive if a prisoner who is likely to be in that common area was also likely to be aggressive toward the prisoner in question. Either way – whether the offer was not made, or was not attractive – the SIU regime has, after 5 years of operation, not accomplished what it was supposed to, which was to abolish the practice of solitary confinement-like conditions. Furthermore, the data are spectacularly clear on one important feature of this failure: the situation is not getting better.

Focusing on the more recent data (2022, 2023, and the first half of 2024Footnote 19), Table 5 shows that, for both shorter and longer stays (15 or fewer days "available" to be out of cell and 16+ days available) over half are not receiving their four hours out of cell in over three quarters of their stay (for trends over time see Appendix Table 4).

Table 5: SIU Stays (2022 to 30 June 2024): Proportion of Stay where 4 hours out of cell was not achieved
Number of days available to be out of SIU cell Proportion of stays that did not receive four hours in 75% or less of stay Proportion of stays that did not receive four hours 76% or more of stay Total Percent Total Number
Up to 15 Days 42.0% 58.0% 100.0% 1,780
16 thru 748 days 45.4% 54.6% 100.0% 2,804

Most recently, in the first 6 months of 2024, among those who had at least 16 days "available" to be out of cell, we see that there were 379 people (or 56.7% of this group) who did not receive their minimum 4 hours out of their cell in the majority (76%+) of their days (Appendix Table 4).

Two Hours, Each Day, of Meaningful Human Interaction

The third defining characteristic of the SIU system is that prisoners are supposed to be able to have at least 2 hours of meaningful human contact or interaction as part of their (minimum) 4 hours out of their cells.Footnote 20 Table 6 shows that overall, 55% of shorter stays and 47% of longer stays are not receiving their two hours of meaningful human contact in the majority (over half) of their days. The longer stay (16+ days available to be out of cell) prisoners, who are not receiving their two hours of meaningful human contact are most concerning. The Mandela Rules suggest that these prisoners are experiencing conditions equal to "prolonged solitary confinement" and amounting to "torture or other cruel, inhuman or degrading treatment or punishment" and should therefore be prohibited, as the Courts of Appeal in Ontario and BC have decidedFootnote 21.

Table 6: SIU Stays (2022 to 30 June 2024): Proportion of Stay where 2 hours of "meaningful human contact" was not achieved
Number of days available to be out of SIU cell Proportion of stays that did not receive two hours in 50% or less of stay Proportion of stays that did not receive two hours 51% or more of stay Total Percent Total Number
Up to 15 Days 44.8 % 55.2% 100.0% 1,780
16 thru 748 days 52.9% 47.1% 100.0% 2,804

Looking at those most recently admitted to SIUs in the first six months of 2024, there were 318 prisoners who had at least 16 days "available" to be out of their cell, but did not get their "solitary confinement" relief – two hours of meaningful human interaction – on at least half of their days (see Appendix Table 5). This constitutes a failure on CSC's part for nearly half (47.5%) of this group during the first 6 months of 2024. How one is supposed to interpret a "failure rate" that is this large after over four years of experience in running SIUs is obviously an important question. This Panel takes the view that a failure rate this large probably reflects two things: flawed legislation and flawed implementation by CSC to ensure that at least the intent of the legislation is respected.

Since the legislation is based on complying with the Courts of Appeal rulings which prohibited the practice of solitary confinement, it is hard not to conclude that CSC failed in their dealings in the first half of 2024 with these 318 prisoners. From a policy perspective, of course, CSC can be seen as not serving either the interests of these prisoners or Canadians more generally since it is a broadly accepted finding that people are harmed by such isolation and most of them will, eventually, be released, carrying that harm back into our communities.

If the only purpose of this report were to evaluate whether CSC has delivered on the promise of the legislation that came into effect in 2019 to "abolish" administrative segregation and solitary-like confinement, the report could end here. CSC has not delivered on this promise. However, the problems with the legislation (and its administration) do not end here. Many other problems have been identified in each of the previous 11 empirical reports. We will briefly discuss some of them.

Oversight of Isolating Conditions of Confinement in Federal Penitentiaries

CSC mentions in its summary of the SIU regimeFootnote 22 three bodies (this Panel, the Office of the Correctional Investigator, and the Independent External Decision Makers) that provide oversight of the SIUs. Though CSC does provide comments to the Panel on reports that the Panel has produced, we see no evidence of any significant change since the first SIU IAP began its work. Similarly, problems with the SIUs that have been identified by the Office of the Correctional Investigator (OCI) have likewise not been ameliorated.

The oversight provided by Independent External Decision Makers (IEDMs) is different from the "oversight" provided by this Panel and by the OCI. We will focus here on the key decision that we investigated: the review provided by the IEDM of (very) long stays in the SIU. Cases are supposed to be referred to the IEDM if the prisoner had been in an SIU for approximately 60 days and the Commissioner's determinations under CCRA s.37.4 is that the prisoner should remain in an SIU. A decision is to be rendered after 30 days of referral to the IEDM.

That the first truly independent review of the length of an SIU stay takes place this late in the process is, in itself, problematic. We feel that this needs to be examined carefully in any review that takes place of the operation of the SIUs. In addition to the legislative timing of the review, there are two problems related to these length-of-stay reviews. Various sections of the CCRA make evident the disadvantaged position of the prisoner – who almost certainly has not had much contact with IEDMs – as compared to the CSC.

Under CCRA s.37.71(1) the IEDM is required to provide the prisoner with a written summary of the information that the IEDM has considered. Before making a decision, the IEDM "shall ensure" that the prisoner is provided an opportunity to make "written representations" to the IEDM (s.37.72) and the IEDM also "may communicate" with the prisoner (s.37.72). That the law focuses on written correspondence and only allows for other forms of communication, but does not require it, is interesting. With grade 8 being the average literacy level for those inside Canada's federal prisons, one does not need much imagination to realize that the "written representation" qualification puts the prisoner at a disadvantage in promoting their view of what should happen. We do not know how often prisoners actually speak to IEDMs. We know that it happens sometimes, and we also know that some prisoners are offered opportunities to speak to IEDMs decline. We do not know why they decline. The 46 decisions that we received from one IEDM (mainly on "time out of cell" issues) contained a number of decisions in which this IEDM offered to talk to the prisoner and the prisoner declined. CCRA s.37.7(1) also appears to ensure all relevant information is shared with IEDMs.

However, we are concerned with the lack of accountability to ensure this is happening. CSC has established a list of standard or minimum records that are to be shared, and it is up to individual IEDMs to request additional information. It is true that an IEDM can order that information be provided, but to ask for it, the IEDM needs to know it is there.

Incomplete information sharing (or the absence of information to share) can have specific impacts on identified populations. For example, while CSC has committed to follow GladueFootnote 23 principles as set out by the Supreme Court of Canada, it is unknown if IEDMs regularly receive an Indigenous Social History or an Elders' report to assist in reviews of Indigenous prisoner stays in an SIU.

There are other concerns about the independence of the IEDMs. For example, CSC controls access to prisoners in two ways. First, expenses for IEDM travel to institutions is funded by CSC and CSC is responsible for approving travel requests. Secondly, as is the case with lawyers seeking to meet with their clients, CSC can deny access for a myriad of "operational issues".

For this final report, we decided to focus on the more recent decisions (2022 onwards) to show that these are not issues limited to the earlier years when there could have been difficulties related to early implementation while adjusting to a new external oversight regime, or due to the COVID 19 pandemic (as we were told time and again). The problems continue to look very much as they looked the first time we examined IEDM decisions.

Table 7: IEDM decisions (2022-Aug 2024)
IEDM Decision Percent
Prisoner should NOT remain in 11%
Prisoner should remain in 89%
Total Percent 100%
Total Number of Decisions 537

Table 7 makes obvious a central finding: Most IEDM decisions are that the prisoner should remain in the SIU.

Other researchFootnote 24 has explored why independent decision-makers tend to go along with correctional authorities. There are many concerning reasons which we cannot explore because, although anonymized IEDM decisions can be released to the publicFootnote 25, no truly representative sample of written decisions from IEDMs has ever been released.Footnote 26 There are few circumstances where court proceedings are so secret that no one other than the individual parties can see the results. We find it surprising that almost everything about the process of IEDM reviews is opaque. There is little public information about how IEDMs are recruited, selected, trained, managed, supported or evaluated. There is even less information about how IEDMs actually conduct their reviews and how minimum standards of administrative fairness are met. Access to decisions is almost non-existent and it is unclear whether these decisions can be made public through Access to Information requests and where (i.e. CSC, PSC or IEDMs) to even send such requests.Footnote 27 We understand the importance of protecting the privacy of prisoners, but we find it harder to understand the importance that the government apparently places on not allowing public scrutiny of the review process of prisoners by IEDMs. It is hard to have confidence in a process that is supposed to provide “independent oversight” when that process itself, and the logic behind each decision, is not open to scrutiny. Even the sole “Annual Report” (covering the period between 2019 – 2022) that IEDMs have prepared and provided to the government in May 2024, has not been published on the Public Safety Canada website

Our data made it possible to look at the decisions made by individual IEDMs (identified by number, not name). During those two and a half years, looking at IEDM decisions where the IEDM rendered at least 20 decisions, there is enormous variation across IEDMs. One IEDM has never rendered a decision to release a prisoner from an SIU while at the other end, two IEDMs have rendered that decision – that the prisoner should be transferred out of the SIU – in over a third of the cases they reviewed (Table 8).

Table 8: Decision from IEDMs who rendered at least 20 decisions (2022-Aug 2024)
  Prisoner should NOT remain in SIU Prisoner should remain in SIU Total Percent Total Number of Reviews
IEDM 2 0% 100% 100% 62
IEDMs 6 and 7 38% 62% 100% 72
All other IEDMs 8% 92% 100% 376

As repeatedly demonstrated in our previous reports, we see that when an IEDM orders a prisoner out of an SIU, CSC fails to implement that decision in a timely manner. Looking at cases sent to IEDMs from 2022 to 1 June 2024 that had received one IEDM review and were then released, we see that those who are ordered out by an IEDM stay in an SIU longer than if they were ordered to remain in (Table 9).

Table 9: Cases referred to IEDMs (2022 to 1 June 2024): Only cases that had one review and were then released from the SIU
Timing IEDM has this time to render a decision IEDM has rendered their decision Total
IEDM Decision Released within 30 days of referring case to IEDM Released 31-40 days after referring case to IEDM Released 41-60 days after referring case to IEDM Released 61+ days after referring case to IEDM
Prisoner should NOT remain in SIU 10 8 8 15 41
Prisoner should remain in SIU 33 63 72 5 173

We do not have the date that each IEDM decision was shared with CSC. As a result, we took the conservative approach and assumed that most take the full 30 days to render a decision. Thus, those released within 30 days, or shortly thereafter (up to 40 days) of referring the case to the IEDM may be understandable. In other words, of the 41 cases in which IEDMs ordered CSC to release the prisoner from the SIU, 18 (or 45%) of these people were, in fact, released in what is possibly a reasonable amount of time (Table 9).

But the latter two groups (released 41-60 days and 61 days or longer) begin to raise serious concerns, especially the 15 people "ordered" out of the SIU but who stayed over 60 days after referring the case to the IEDM, as this means that if the IEDM took their full 30 days to render their decision, CSC has taken over a month to actually implement that "binding order".Footnote 28 Notably, those 15 people constitute 37% of those ordered to be removed from the SIU whereas only 3% (or 5) of those who were told to remain in the SIU stayed that long. This raises serious questions about the legitimacy of this oversight system. It is quite clear that this system is not operating in a manner that will – or can – shorten stays.

A Sampling of Other Problems with the Operation of the SIUs

The Over-Representation of Vulnerable Groups of Prisoners

Indigenous and Black Canadians are over-represented in the placement of prisoners into SIUs, even more than in the general penitentiary population (Table 10). While representing approximately 5% of Canada's population, including a significant percentage that are minors and would not be placed in federal custody, Indigenous people, on September 15, 2024, accounted for 33.1% of those in the mainstream population of CSC penitentiaries and 44% of the SIU/RMFootnote 29 population. And, while Black persons are estimated to account for 4.3%Footnote 30 of the Canadian population, on 15 September 2024, they accounted for 9.7% of people in the general penitentiary population and 17.5% of the SIUs/RM population (Table 10).

Table 10: Census Information from 15 September 2024
Location of Prisoner Indigenous White Black All others Total Percent Total Number
SIU/RM 44.0% 29.5% 17.5% 9.1% 100% 275
General Population 33.1% 46.0% 9.7% 11.2% 100% 13,775
Total 33.3% 45.7% 9.8% 11.1% 100% 14,050

ElsewhereFootnote 31 we have highlighted that the SIU population tends to be younger than those in the general population, and that the Black population, in particular, tends to be younger than others. Moreover, as we have already shown, Black prisoners tend to stay longer in SIUs than others (see Table 3). This points to the need for CSC, both in its general population and especially in SIUs, to take into consideration the age-based needs of these cohorts. More generally, since it is widely accepted that given the presence of systemic racism, and its strong negative relationship to the social determinants of health, prisoners who self-identify as members of ethnically vulnerable communities should be provided supports and access to health care which takes into consideration the many systemic indignities with which they must contend.Footnote 32 It is true that some provisions have been made to assist in the delivery of appropriate care for those of Indigenous heritage (such as access to cultural activities and Elders).

Notwithstanding these provisions, there is evidence of ongoing gaps between what policy directs should happen and what actually happens. Successive reports from the OCI and the Office of the Auditor General have pointed to the failure of CSC to move away from its colonial approach to Indigenous corrections. These same concerns are pertinent to understanding the circumstances of Black prisoners. We have little clarity on whether attention is being paid to the cultural needs of Black prisoners in SIUs such that the interventions offered allow for culturally appropriate interventions. While CSC has made commitments to measure and evaluate efforts to improve Indigenous corrections, there are no similar efforts to define its approach to meeting the needs of Black prisoners.

CSC must do what is necessary to ensure the fair treatment of Black and Indigenous prisoners in light of the systemic racism that has undermined them and their communities. As a start, CSC must be specific about how it monitors for and reports racism within its institutions, what specific actions are taken in response to allegations of racism, and the measures in place to prevent subsequent racist behaviours and decisions.

Prisoners with mental health needs are also especially likely to be placed in SIUs. CSC provided us with data on the mental health needs of prisoners in all of their correctional institutions on 15 September 2024 showing that 13.1% of prisoners were rated as having "some need" and 6.1% had "considerable or higher" need. For a rough comparison, we can look at those who were admitted to an SIU during the first half of 2024.Footnote 33 They were much more likely (than prisoners overall) to be described as having "some need" (26.2%) or "considerable or higher need" (10.1%).

Notes From a Trip Report (Male Institution):

One Elder specifically mentioned that SIUs reflect the worst of CSC, meaning there is no treatment, no help, and no hope...

Issues Surrounding the Use of SIUs with Prisoners who have Mental Health Challenges

As shown earlier, those with deteriorating mental health tended to stay in SIUs longer than others (see Table 4). Moreover, this trend is evident in each of the five time periods (see Appendix Table 3). We have also combined the "length of stay" data with the "4 hours out of the SIU" and "2 hours of meaningful human interaction" data. We had identified these as the special features that the SIU regime is supposed to address in order to be compliant with the Court of Appeal decisions.

When this is done, we see that prisoners with deteriorating mental health are slightly more likely to experience a long stay where the four hours and/or two hours of meaningful human contact was not achieved (see Table 11). But what is, perhaps, more important is the fact that in all three groups, at least a third of the SIU stays were of the worst possible kind: long stays where the "promised" time out of cell was not delivered.

Table 11: SIU stays (2002 to 30 June 2024): Proportion of stays that were long and did not receive their four and/or two hours out of cell
  Short Stay Long stay / received four and two hours Long stay / did not receive four and/or two hours Total Percent Total Number
Low-some needs; not getting worse 40.7% 23.7% 35.6% 100% 3,740
High needs; not getting worse 48.5% 17.3% 34.1% 100% 375
Various mental health needs and getting worse 16.0% 44.8% 39.2% 100% 469
Total 38.8% 25.3% 35.8% 100% 4,584

Notes:

Long stay = 16+ days available to be out of cell.

Not receiving four hours = not receiving four hours out cell in 76%+ of days.

Not receiving two hours = not receiving two hours of meaningful human contact in 51%+ of days.

Moreover, this is a stable pattern – in the past three time periods (2022, 2023, first six months of 2024) about a third of the SIU stays involved all three circumstances that are supposed to be avoided (long stays, not getting a high proportion of days with 4 hours out of cell, not getting their 2 hours of meaningful human interaction very often; see Appendix Table 6).

Those with deteriorating mental health are much less likely to have short stays in SIUs, but are just as likely, or slightly more likely, than other SIU prisoners to be subjected to all three of the negative experiences SIUs were to avoid (long stays, inadequate overall time out of cell, and inadequate meaningful contact with other people).

Notes From a Meeting with a CSC Executive Member:

That is my biggest frustration. The minute people see mental health, it's like well, Health, you are not doing what you should be doing. What we need is the Social Program Officer to play cards with the guy, or basketball. We need the chaplain to come down and help create meaning and opportunities. I would say that 80% of the work for this population is not health work.

We were supposed to learn from the Ashley Smith death that people with chronic illnesses, again and again and again (come back into segregation), and look what we are doing with SIUs. We are moving people repeatedly to keep them out of the SIU.

There is a small group of people who are in Maximum security who tend to rate very high for anti-social personality disorder as well as borderline personality disorder, quite often problematic substance use with chronic need but not in crisis, and because of that they are not able to integrate into the mainstream institution, so they are just being flown all over the country. There's got to be a better solution.

Correctional Programming

CSC, in its "Structured Intervention Units Infographic",Footnote 34 describes a "typical day" that does not match what a "typical day" looks like from their empirical data. Specifically, they say on a "typical day", prisoners in SIUs will "participate in correctional programs and interventions."Footnote 35 We see no evidence of daily participation in programming in their data. In our most recent Annual Report (completed in July 2024 and released by Public Safety Canada in October 2024), we noted that CSC's data show that the success in the delivery of core correctional programming to SIU prisoners is best described as having been dismal. Appendix Table 7 shows this very clearly: the majority are not receiving many hours of correctional programing, and this has been deteriorating over time. For example, in 2022, of those who had over a month of "days available" for programming, 28% received over 10 hours of correctional programming (hardly praise-worthy) and this has now declined to only 18% receiving that much (or little) correctional programming. Our analysis reveals that more than 80% of SIU prisoners receive less than 10 hours of programming per month (Appendix Table 7).

Because we were most concerned with those who had long stays and who had considerable mental health needs identified by CSC, we looked to see if this group was more likely to receive correctional programming than others. As can be seen in Table 12, overall, people with considerable mental health issues are no more likely (and perhaps slightly less likely) to receive a reasonable amount of correctional programming. While 21.8% of those with no mental health needs (who stayed over a month) received over 10 hours of correctional programming, only 17.6% of those with "considerable or higher" mental health needs who stayed over 1 month received that many hours of programming. We have no way of knowing how the lack of significant program engagement is related to their mental health needs, nor are there data to demonstrate that mental health supports and interventions were in any way substituted for core correctional programming.

Table 12: SIU stays (2022 to 30 June 2024) that were longer than one month: Correctional Programming Hours Provided
Mental Health Needs Zero Hours of programming provided Up to five hours of programming provided Over five hours to 10 hours of programming provided Over 10 hours of programming provided Total % Total Number
None 21.4% 37.8% 18.9% 21.8% 100% 1,341
Some 21.8% 38.0% 22.0% 18.2% 100% 532
Considerable or Higher 25.0% 41.5% 15.9% 17.6% 100% 176
Total 21.8% 38.2% 19.5% 20.5% 100% 2,049

Notes From a Trip Report (Male Institution):

The system is too eager to ship them out. We need to slow it down. Also, better programming would encourage them to come out.

–Manager, Assessment and Intervention

Institutional and Regional Variation

On almost all dimensions we have found substantial regional differences in the operation of the SIUs.Footnote 36 As one example, from 2022 through to 30 June 2024, among stays that had 16 or more days available to be out of cell, 76.3% did not receive their minimum four hours out of cell in over 75% of their days in the Pacific region whereas only 27.1% did not receive their hours that much of the time in the Prairie region (Appendix Table 8).

Moreover, different trends over time appear in the regions (Appendix Table 8). In the Pacific region, for example, in 2022, 86% of those who had over 16 days available to be out of cell did not receive their minimum four hours out of cell over 75% of their days and in 2023 and again for the first half of 2024 this declined to 70% not receiving their hours that much of the time. In the Prairie region, in 2022 and again in 2023, of those with 16 or more days available to be out of cell, 22% did not receive their hours out of cell in over 75% of their days and during the first half of 2024 this rose to 44%.Footnote 37

These regional differences suggest that what has proven to be possible (or is closer to what is required by the legislation) in one region is not routinely replicated in other regions. Repeatedly, over the past four years, we have brought these findings to the attention of CSC in our reports in the hope that they would be interested in learning from this regional variation and use their experience with the "better" examples of the administration of the SIUs to improve the performance of SIUs elsewhere. While CSC has reported documenting and sharing good and promising practices, we see no evidence that the gap between the worst and the best SIUs is closing.

Concerns with Split/Multiple Stays

We have discussed split stays in the past (see our 2022-2023 Annual ReportFootnote 38). Prisoners sometimes have a "new" SIU stay starting a few days after a previous one has ended. For example, we found that of the prisoners in an SIU on 24 March 2024, 72% of them had previous SIU stays.Footnote 39 Moreover, of those with multiple SIU stays, 40% started their second and/or subsequent SIU stay within four or fewer days after the previous stay had ended.

In addition, we have found that when prisoners do experience multiple SIU stays, these stays, more often than not, take place in different institutions and regions. Inter-regional transfers were an issue that occurred within the selected IEDM cases we received from one IEDM. In one case the IEDM flagged the numerous transfers, stating that:

"Section 33 of the CCRA requires SIU placements to end 'as soon as possible'. As mentioned in many reviews as an IEDM, I am concerned CSC's interpretation of this section of the law causes CSC to carry out inter-regional institutional transfers even in situations where analysis of all relevant factors shows it is more likely to cause harm than help. I believe this does not reflect the legislative intent for the SIU system".Footnote 40

In a case where the prisoner was assessed as having "considerable" mental health needs, had many SIU stays and had been transferred to new institutions several times, the IEDM noted under the heading "Ending SIU placements through institutional transfers" that "an institutional transfer can be harmful and counterproductive. It can aggravate stress and anxiety…". The IEDM also pointed out that the CCRA (S.28) requires, in choosing penitentiaries, that CSC must consider criteria such as "accessibility to home, language, culture, and programs."Footnote 41

In another case where mental health needs were present, the IEDM noted that:

"A transfer is not an appropriate solution in all cases. CSC should meaningfully assess and address the root causes of an SIU placement, developing a plan with the inmate concerned as much as possible…. CSC has used inter-regional transfers in XXX's case. This approach will likely not resolve the underlying issues discussed above. His transfer to XXX would likely lead to another SIU authorization. It may worsen XXX's situation… a transfer would take him far away from his community support. The legal criteria for penitentiary placement include safety, proximity to home, language, culture, and program and service availability [CCRA s29]. These should be considered in all institutional selection decisions. For XXX, records show being close to his family in XXX is important to him. In the past being in XXXX has motived him to do better… another potential issue is the loss or delayed return of personal belongings. My reviews as an IEDM have shown this issue is common when institutional transfers occur. It is often a source of frustration for inmates, especially when sentimental or valuable objects are lost.Footnote 42

In our 2023-24 Annual Report we found that of those with multiple SIU stays, 43% occurred in different SIUs in different regions. Those prisoners with multiple stays are especially likely to have experienced mental health problems and, of the people with deteriorating mental health who had multiple SIU stays, 59% occurred in different SIUs in different regions.Footnote 43 We found no evidence to suggest that these problems are decreasing. This is concerning because these practices are reminiscent of the practices that occurred under the Charter-violating Administrative Segregation model.Footnote 44

Trip Report Notes (Male Institution) - Response from an Institutional Health Care Manager when asked what the most important question is that the SIU IAP should try to answer:

The Manager of Health Care believed that the most important question is why somebody has ended up in an SIU. Why can't they manage? There are so many different answers to this question that you can't expect a one-size-fits-all approach to work. XXXX believed that expecting prisoners to "buy in" to the premise of an SIU was not realistic.

It comes as no surprise to XXXX that many of the prisoners refuse to leave their cell or engage in the activities that are offered.

XXXX felt that basic lessons learned about how and why people change have been ignored in how SIUs have been rolled out. He said there were four categories of SIU prisoners.

  1. Those who are psychotic and shouldn't be in an SIU.
  2. Those who love being in an SIU but probably shouldn't be there either.
  3. Those who have serious and significant underlying issues that negatively impact their life chances. These individuals may benefit from the SIU, but their needs are inconsistent with short interventions.
  4. Those who have mental health concerns that do require better assessment and may be benefiting the most from the new policy.

Summary of How SIUs Are Operating

The problems that we have identified have been evident since the beginning of the SIU regime and are still with us. We discussed the problems with CSC's "performance indicators" in our last Annual Report.Footnote 45 Aside from a suggestion that CSC is no longer using one of their problematic measures,Footnote 46 we see no evidence of a serious addressing of the problems we identified in our 2023-2024 Annual Report. It would be possible, though pointless, to have a long discussion here about whether these measures are purposefully flawed or just poorly conceptualized. In either case, serious thought needs to be addressed to the manner in which data can be used to ensure that the monitoring of the SIUs is effective.

Setting aside CSC's own performance measures, an unfortunate summary of the findings from our investigation of the SIUs for this and previous reports is that SIUs have never operated in an acceptable fashion and there is no evidence that that they are improving in any sustained fashion.

The law and the administration of the law outlawing solitary confinement-like conditions in Canadian penitentiaries are each, independently, in need of change. The review of the legislation must start from the beginning and be informed by the now well-documented failures in the implementation of the SIUs.

CSC, on the other hand, must start a serious, empirically informed, investigation into how it can change its operational culture to support a more humane way in which admittedly difficult prisoners can be fairly and temporarily isolated from the mainstream prison population for short periods of time if it is necessary to do so. We know, for example, that those with deteriorating mental health are likely to experience multiple stays in SIUs. And this same group – prisoners described by CSC itself as experiencing deteriorating mental health – are much more likely than other prisoners to experience very long stays (62 days or more) in SIUs.

Notes From a Trip Report (Women's Institution):

I presented some of the panel's findings on the use of SIUs generally, including the difficulties in delivering minimum time out of cell, keeping SIU stays short and infrequent, the excessive use of interregional transfers, and the lack of timely IEDM reviews. They seemed surprised at some of our findings and felt that the SIUs were not the problem but perhaps their implementation was. I asked them to elaborate and was told that the excessive focus on time frames is a problem. They also felt that there are legislative limitations, including who can do assessments for treatment, that limit the effectiveness of SIUs.

They also noted that there are challenges in attracting and retaining clinical staff, particularly psychologists and registered nurses. They also told me that the mental health burden is very high in the SIU.

SIUs are, arguably, the most surveilled spaces in a Canadian penitentiary. The enhanced staffing and policy requirements for staff/prisoner interaction should result in increased safety for prisoners transferred into these units. After all, one of the three legislated reasons for transfer is that "allowing the inmate to be in the mainstream inmate population would jeopardize the inmate's safety." In spite of this, SIUs can be dangerous. The Panel is aware of two non-natural cause prisoner deaths while confined in the Millhaven SIU during 2024. The Millhaven SIU was also the site of a violent 3-on-1 assault in February 2020, less then 3 months after the unit opened.

Thinking About Change: The Need to Focus on Public Safety

There is significant evidence available to convince most people that placing prisoners in solitary confinement (or similar conditions) is not a good idea if one is interested in the mental health of the prisoner or the prisoner's behaviour when eventually released. Simply put, it is in the interest of all Canadians for people to be released from prison in a state that makes them less, not more likely to reoffend.

It is an essential feature of the Corrections and Conditional Release Act that the law frames imprisonment as follows:

In addition, the following section can be read as being crucial to the goal of using SIUs as little as possible, given the risks that arise from the use of isolating conditions of confinement:

In the context of these legislative requirements, procedures that interfere with the mental well-being of prisoners should be discouraged. Said differently, practices – whether they reflect formal policy or not – that interfere with the mental well-being of prisoners are not in the public interest. Such practices can be seen as violating the legislative requirement that "the protection of society is the paramount consideration for the Service in the corrections process."

In interpreting what has happened in the past five years, it is important to keep in mind that the impetus for change (from "Segregation" to "SIUs") did not originate in CSC or the Government of Canada. In 2019, Canada created "Structured Intervention Units" (SIUs) to replace "Administrative Segregation" because of court decisions that the Government of Canada (and by implication CSC) initially opposed.

In regard to the operation of SIUs, the Panel continues to be unable to identify what is particularly "structured" about the interventions delivered to the most challenging men and women that occupy these places above and beyond what we would reasonably expect to be offered to all those in custody inside Canada's penitentiaries.

It is important that when thinking about an SIU as a place, we do not lose sight of the fact that any "place" in a prison can be used to isolate. It is dangerous to believe that oversight of SIUs equals oversight of all isolating conditions of confinement. Solitary-like confinement can – and does – exist as a practice outside of SIUs. For example, we were told of one prisoner – who had had extensive experience in an SIU – who was placed in an SIU cell. He was surprised that for 10 days after being placed there, nobody came to talk to him about his stay. When he finally looked carefully at some papers he had been given when he was transferred/moved to an SIU cell, he noticed that he had not been approved for transfer to an SIU. Our informant pointed out that from the institution's point of view "this could be a workaround by management to keep the SIU placement numbers lower than what they really are [given that this] institution's SIUs are always quite full."

This is not, unfortunately, a set of events that panel members found surprising. During SIU visits, they have noted that at times there were more prisoners physically in the SIU than showed up in official records of the SIU "count" on the day that they visited. In one institution, an entire unit was discovered housing prisoners in what can only be described as solitary confinement.

It is worth remembering that SIU cells were not distributed in any obvious way across the country when they were created, and the utilization of those cells also varies from region to region. For example, there is only one SIU in the Ontario Region. Located in Millhaven Institution, Ontario's SIU has a maximum capacity of 50. During a site visit on October 21, 2021, Panel members were told the decision to open only one regional SIU was based upon the belief that this would limit utilization. We were also told that the "ideal" count was 20 or fewer, and that this relatively low count would allow the institution to meet the "goals of the policy". On the day of that visit, the SIU count was 25. As reported in our 2021/22 Annual Report, the Millhaven SIU count on February 13, 2022, was 19.Footnote 47 The "if we don't build it, they won't come" philosophy appeared to be working. Panel members re-visited Millhaven on May 23, 2024, and, on that day, the SIU count was 49. Nineteen of the SIU prisoners were Indigenous, eight were Black and twenty-four had been in the SIU more than thirty days. Six cells within the unit are designated medium security, five of which were occupied at the time of our visit. While discussing the increased SIU population, Panel members were told once again the ideal would be to have no more than 20 prisoners housed in the SIU. No clear explanation was provided for the increased count.

Ontario's combined (male and female) SIU capacity is 53. On a random day in March 2024, Ontario's total SIU count was 49. In Canada as a whole, there were 244 prisoners in SIUs that day with a national SIU capacity of 422. Said differently, Ontario's SIUs were 92% full that day compared to 57% for Canada as a whole. We do not know the proportion of Ontario's SIU prisoners who "originated" from Ontario and what proportion were flown in so that they could "benefit" from the SIU facilities in Ontario. Whatever the origin of the Ontario SIU prisoners might be, it is clear that Ontario's SIU was, at that time, much closer to capacity than was the case in Canada as a whole. That said, with so many SIU prisoners being transported from SIU to SIU across the country, this uneven distribution was, for better or worse, created by CSC.

We know that the number of transfers into an SIU cell continues to vary and it now appears, if anything, to be increasing (at least in the most recent years). For the four years (2020-2023) for which we have complete data, those numbers are 2152, 1393, 1424, and 2140. For the first half of 2024 the number is 1041 (which, if it were the same in the second half of 2024 would be the yearlong equivalent of 2082).Footnote 48 We do not have a clear understanding of what is responsible for this significant variation and we are concerned that the apparent trend appears to be contrary to the requirement that all alternatives be examined prior to a transfer to an SIU.

The 2019 legislation was very successful in one important, but unfortunate, way: it focused official attention (generally, and for a Panel such as this one) on what happens in these 15 very localized penitentiary locations. To cite one example of why this is problematic, this Panel was easily able to identify the length of time that each prisoner had been in an SIU. In the context of our third annual report, we examined the histories of all those in SIUs on an arbitrarily chosen day (chosen by CSC) – March 24, 2024. One prisoner – we'll call him Marc – had, according to CSC, already spent 594 consecutive days in an SIU. And Marc continued to be held in the SIU after March 24, 2024. Perhaps Marc is an outlier, but it is notable that there were quite a few prisoners that day who had spent lengthy periods in an SIU.

But what if we were to ask the question, "What is the longest period of time a prisoner outside of the SIUs was isolated from the general population?" Today, that question is almost certainly unanswerable. SIUs are locations in penitentiaries that are required to be carefully monitored and documented. The number of days without four hours and/or two hours of meaningful human contact (i.e. the practice of solitary confinement) can be identified and counted – even if these counts are not perfectly accurate. But not even an inaccurate accounting of isolation outside of SIUs is available. There are no systematic efforts to measure the length or form of isolation conditions of confinement elsewhere in our penitentiaries.

There is an additional problem: CSC performance reporting can obscure what is actually happening. CSC, for example, in its performance review report on SIUs, provides data for fiscal year 2023-2024 to describe their level of success in avoiding the practice of solitary confinement.Footnote 49 They present data on the 82,215 "person days" that year when prisoners in SIUs were available to be released from their SIU cells. CSC reports that prisoners were offered time out of cell on 78,019 of these days (or 94.9% of the days). Each day for each person is a unit. Hence if a person was in an SIU and available to be released from their cell for 10 days, those 10 days count as 10 of the 82,215. If the person was available to be released on 100 days, then this would be 100 of the 82,215. One can calculate from these data that on an average day that year, there were 224.6 (82,215/366 = 224.6) prisoners available to get offered time out of cell. And, as already pointed out they were offered time out of cell 94.9% of the time (78,019/82,215 =.949). But then if one goes to the next page of that same "performance report", we see that CSC tells us that they only actually left their cells 32.1% of the time.

We pointed out earlier in this report that there is consensus that isolating people in small spaces by themselves with no meaningful human contact is not good for them. But by focusing – as CSC does – on "offers" rather than actual experiences of prisoners, CSC manages to obscure the problem.

In terms of protecting prisoners from the harmful effects of isolating conditions of confinement, it is not "offers" that are important; rather it is the provision of meaningful human interaction that is important. To use an analogy, if during the recent COVID-19 pandemic, public health officials had focused on how many Canadians had been offered vaccinations, this would be of little use compared to the measure of the portion of the population who were actually vaccinated.

It is impossible to know from CSC's report how the "refusals" were distributed across prisoners, just as we don't know how the 4,196 person-days when prisoners were not even offered time out of cell that year were distributed. One might think that 41 people, each in an SIU for 100 days not even getting an offer of time out of cell would be different enough from each of 419 people, each in for 40 days, not getting offers on 10 of those 40 days, that it would be important for CSC to provide (or at least collect) a bit more information.

In addition, as we have pointed out repeatedly in our reports, an "offer" of time out of cell is meaningless unless one knows what was offered and why it was apparently turned down.

This Panel's Work

This Panel was charged with the responsibility of reporting on the implementation of the SIUs. Its mandate, then, was to try to understand how these 15 units (5 for women, 10 for men) operate in 15 of CSC's 42 institutions. The Panel had no staff, but it had, since its creation in 2021, support from Public Safety Canada and very reasonable cooperation from CSC in receiving, in a timely way, data on the operation of the SIUs. Various members of the Panel have also visited each of the SIUs and some have been visited more than once. During these visits, staff and SIU prisoners were typically interviewed.

The Panel has received administrative data from CSC at various times when it has been requested. These data give us systematic information about the operation of the SIUs. Largely, these data describe the characteristics of each "person stay" in the SIUs across Canada. The data also allowed us to link person-stays in order to be able to describe a prisoner's history of experiences with the SIUs.

As we have pointed out, what is missing from these data sources, of course, is any information about "solitary-like" experiences by prisoners elsewhere in Canada's penitentiaries. The findings presented here are severely limited if one is truly interested in, and concerned about, the practice of solitary confinement. To suggest that "solitary-like" experiences cannot occur outside of SIUs and/or that these experiences of isolation outside of SIUs do not matter would be naïve. Observations from other sources as well as our own observations makes it clear that "solitary-like" experiences are not uncommon elsewhere in CSC's institutions.Footnote 50

This is the twelfth empirically based report on the SIUs that has been produced since October 2020. The first report (produced by two independent researchers with data provided by CSCFootnote 51) was released in October 2020 and looked at experiences with the SIUs in the first few months of their operation. The most recent, completed in July 2024 and released in October 2024, is the third annual report of this Panel. This final report covers experiences with the SIUs up until September 2024 and is designed to give an overview about what we know, after almost five years' experience, about how the SIUs are operating.

CSC does provide responses to Panel recommendations; however, a careful review of these responses leaves us wanting much more. In October 2024, the panel received a copy of CSC's "Independent Advisory Panel Report - Commitment Tracking Tool." Because it is a 13-page (legal size paper) document, it is hard to summarize succinctly. The difficulty with CSC's response is that it describes various activities and processes but does not clearly indicate how it will be determined if a process or activity as described is successful in addressing the identified problem. While there's nothing wrong with describing intent, after nearly 5 years of operation, this Panel believes that it was time for improvement in the kinds of problems identified in this and the previous 11 empirically dense reports on CSC's SIUs. In other words, what the Panel was looking for was "results" – changes that clearly made a difference in the operation of SIUs.

Perhaps the easiest way of describing the shortcomings of CSC's responses to concerns that had been expressed is to examine a couple of them in detail.

  1. Recommendation 1.3 states that "The Office of the Correctional Investigator is be informed of the use of all forms of modified routine/restrictive housing through quarterly reports." The intent was to shine a light on the existence and use of restrictive cells throughout Canada's penitentiary system. Under "Actions" CSC states that "(t)he Commissioner and OCI maintain quarterly meetings to discuss relevant issues devoted to all operational issues, including forms of housing and routines." And under "Updates on Actions" readers are told, "Completed: As indicated in the initial response, CSC has regular meetings with its advisory bodies, including the National Indigenous Advisory Committee and the National Ethnocultural Advisory Committee. With respect to the Office of the Correctional Investigator, biweekly meetings are scheduled between the Senior Deputy Commissioner and the Executive Director and General Counsel of the Office of the Correctional Investigator to discuss operational issues." Reading this, we wonder how many readers would be confident in giving an answer to the question, "Has the Office of the Correctional Investigator been informed of the use of all forms of modified/restricted housing and if it not, when will they be told?" One also wonders how often CSC discussions with the National Indigenous Advisory Committee and the National Ethnocultural Advisory Committee address the issue of CSC's use of restrictive cells outside of the SIU regime.
  2. Recommendation 5.1 deals with what we have, in previous reports, described as "split stays", where prisoners are released from an SIU and then returned quickly to the same or a different SIU. Not only does this shorten the reported length of a stay in the SIU; it also, intentionally or not, avoids certain reviews by IEDMs, etc. In an item described as having been "Completed" this issue is discussed: "5.1: Policy must require a review at the regional level of every instance when a prisoner transferred out of an SIU is transferred into a different SIU within 5 days." Note that this was a recommendation that CSC develop its own policy around this practice. CSC says that "CSC commits to putting in place a mechanism to monitor, report and review any cases of inmates authorized to transfer to an SIU within five days of their transfer out of an SIU." That would seem fairly clear until one looks at the actions, implementation date (November 30, 2023) and the updates on actions. The actions look promising: "As part of the data enhancement strategy, the SDC [Senior Deputy Commissioner] will develop, through the LTE application [LTE= "Long term evolution" – their data collection system for the SIUs], an automated process for identifying all cases where an inmate is transferred out of an SIU into a different [emphasis added] SIU within 5 days. When this occurs, CSC will identify the cases and assess the conditions which led to the placement and address any areas of concerns with the region.

    All instances will be reviewed on a real time basis." However, under "updates on actions" we find that "while discussions with Systems Management to determine a mechanism for automating the tracking in the LTE continue, this has not been identified as a possible LTE release at this time." Nevertheless, the revised completion date is listed as "Completed."Footnote 52 Note, however, that CSC says that they planned (and then abandoned that plan) to use their automated system to identify instances where "an inmate is transferred out of an SIU into a different SIU within 5 days." We find it interesting that they ignored the other form of split stays, such as where a prisoner is released from an SIU and then returned to the same SIU within 5 days.

Little has changed over time. We gave our third annual report the title "SIUs Failing to Transform Corrections" which flowed directly from the published title of the second annual report: "Time for meaningful change." In reality, CSC not only failed to transform federal corrections, but they also failed to deliver meaningful change in line with what might be expected from the legislation.

The Terms of Reference (TOR) for the SIU IAP were jointly developed and endorsed by the Panel and Public Safety Canada. Paragraph 3.1.2 of the TOR reads "The IAP Chair will meet with the Minister annually and at the Minister's request. Meetings could include a discussion of Panel reports." Over the life of the Panel, the Chair did meet with Ministers Blair and Mendicino. Disappointingly, Minister LeBlanc was not able to find time to meet, be personally briefed on the Panel's findings and have the opportunity to seek clarification on the recommendations made.

Why Didn't the Shift in 2019 to SIUs Fix the Problems that were Identified with Administrative Segregation? What Should Be Done Now?

The simple answer to this question is that the 2019 legislation, at best, "enabled" changes to be made but did not "require" these changes. For example, by focusing on "offers" to get out of the cell, section 36(1) of the legislation avoided the necessity to provide a healthy alternative to isolation; any activity potentially involving time out of a SIU cell could be placed in an "offer" and result in the claim by CSC that it is in compliance.

An additional answer may be found by considering the actual "bricks and mortar" of the SIUs. Most have been operationalized in former segregation units. During penitentiary visits it was not uncommon for Panel members to hear both prisoners and staff refer to the SIUs as "seg", or "the old seg". Locating the SIUs in former segregation units, not designed for intensive programming, easy prisoner movement, and providing workspace for non-security staff undermines the notion that the Units would fuel "transformational change".

Aside from the fact that the new legislation covers only what happens in places in penitentiaries that are labelled as SIUs, we have seen evidence – some from CSC itself – that suggests that CSC circumvents aspects of the law. As we pointed out in our third annual report (and this report), CSC acknowledges that it holds people for (sometimes) extended periods of time after they have been "ordered" out of the SIU by the Independent External Decision Makers.

We are not, in this report, challenging the idea that there are times when certain prisoners need to be isolated – for limited periods of time – from others for the various reasons identified in the CCRA. However, for this to be done in a way that is both safe and fair to prisoners, and simultaneously serve public safety interests (by among other things maximizing the likelihood that they will reintegrate peacefully into society when released), there is a need to ensure that there is adequate monitoring of the isolation of prisoners anywhere in any CSC institution. The practice that should be monitored is the reduction of movement and human contact of any prisoner anywhere in our penitentiaries, not just in the SIUs.

It may well be that certain kinds of short stays need little special monitoring. The review of the 2019 legislation should include the study of what kind of documented monitoring is needed for different groups of prisoners. We must look for solutions to those problems rather than look for new ways to isolate such people from others. This is not easy, but the starting point should not be "how can we create a legal form of solitary confinement that the courts won't find to constitute cruel and unusual punishment."

The Panel's Conclusions

The most obvious conclusion from the eleven previous reports on the SIUs and the review and new analyses contained in this one is that Canada has not eliminated the experience of solitary confinement with the construction and operation of the SIUs. Indeed, in terms of relatively long stays, we have repeatedly presented data that the rate of long stays in SIUs is comparable to the rate of long stays in segregation in Canada's penitentiaries prior to the implementation of the SIU regime. Moreover, we see that many prisoners are not receiving their minimum hours out of cell and thus, a practice that SIUs were supposed to eliminate and that the courts prohibited, continues.

Nevertheless, it does need to be remembered that a long stay in an SIU does not necessarily automatically translate into long periods of solitary confinement. However, as reported in Appendix Tables 4 and 5, more than half of the prisoners with long stays in SIUs (16 days or more) did not get their 4 hours out of cell on at least three quarters of their days in the SIU. Similarly, looking again at those individuals with SIU stays of at least 16 days, roughly 47% failed to get their 2 hours of meaningful human contact on at least half of their days in the SIU. Said differently, a practice that SIUs were supposed to eliminate continues under a new name.

Some Final Thoughts

  1. SIUs have not eliminated the experience of solitary confinement in federal penitentiaries. We can see this by looking at several different indicators. These have been covered in detail in the first section of this report and in our three previous annual reports. A few of the most central of these failures are the following:
    1. The use of SIUs for long stays is comparable to the rates in the use of Administrative Segregation in the final years of that practice
    2. Concerns around the length of time in an SIU are heightened when one sees the prevalence of "split stays" (being released and then placed back into an SIU within a few days)
    3. The legislated "time out of cell" provisions (4 hours per day overall, two hours of which are supposed to involve meaningful human interaction) have largely not been achieved and little correctional programming appears to be provided. If what differentiates "structured intervention confinement" from "solitary confinement" is, in part, time out of cell and actual "interventions", then SIUs are closer to solitary confinement than "structured interventions"
    4. Many prisoners are being moved from one institution/region to another, and people with mental health issues tend to experience more SIU stays in different SIUs, in different regions. The disruption to programming and stability that this creates for people who clearly need stability and programming is alarming
    5. It is unreasonable to conclude that these failures are the prisoners' fault since there are no plausible data available to suggest this. One might have thought that CSC had more ability to ensure that the intent of the law is followed than prisoners do under these circumstances
    6. Dramatic regional/institutional differences on many measures suggest that, at certain times in the history of the SIUs, prisoners have been more likely to receive the time out of cell (and meaningful human interaction) that is contemplated by the law. These findings suggest improvement on these dimensions is possible
    7. CSC has not articulated and/or published any specific outcomes or milestones that allow for a measure of progress toward the desired transformation
    8. The introduction of Independent External Decision Makers has failed to provide a timely or effective review of SIU operations
  2. The SIUs have not "transformed" federal corrections in Canada. This was inevitable because the focus of CSC, our Panel, and much of the commentary, has been on SIUs as a 'special' part of CSC rather than being a part that is integrated into CSC
    1. The findings that we have uncovered – e.g., the movement of prisoners from one institution/region to another, the splitting of stays in SIUs into several almost consecutive shorter stays – demonstrate the need to look carefully at what is happening with CSC generally, inside and outside of the SIUs. Our focus has been almost exclusively on what is going on in the SIUs. Information from the Office of the Correctional Investigator as well as an examination of our own data (on matters such as the movement of prisoners from one institution or region to another) suggest that there are problems that transcend the operation of the SIUs. Likewise, the racial disparity in placing people in the most restrictive form of custody and the over-representation of people with mental health issues being placed in the most restrictive form custody speaks to broader problems – and failures – within CSC
    2. We also see no evidence that CSC responses to the 11 previous empirical reports from this Panel and others (or their own research) have led – or will lead – to improvements. Indeed, although CSC describes the SIUs as if they involve substantial amounts of programming and interaction with others,Footnote 53 the reality is substantially different
  3. The twelve empirically based reports on Canada's SIUs make it clear that SIUs are operating in a manner that is inconsistent with the intent of the law or the law itself. The reports also point to a second important conclusion: There is no indication that the operation of the SIU model is improving. Third, it is clear that focusing solely on the operation of the SIUs misses the point: the problems with the SIUs both reflect and are intimately linked to the operation of the penitentiary as a whole. Many of the problems faced by certain groups in the SIUs – e.g., Indigenous and Black prisoners as well as those facing mental health challenges – are not just "SIU problems." In this context we once again raise our frustration that the government failed to appoint a Panel member with the lived experience of incarceration. Not only does this reflect the abandonment of a commitment, but it also deprived Parliament and Canadians of valuable and important insights into the nature of the "transformation" that SIUs were supposed to create. It also made it more difficult to understand the relationship between the operation of the SIUs and the existence of solitary confinement-like conditions in other parts of Canada's penitentiaries
  4. The responses provided by CSC and Public Safety Canada to the recommendations we have made are largely inadequate. CSC has indicated that many recommendations have been satisfied (or "completed" in their language) simply because they have provided a response. And CSC and Public Safety Canada continue to refer to the potential of SIUs to be "a historic transformation of Canada's federal correctional system" without making any reference to the gaps, challenges, and inadequacies identified in our reports
  5. As we have pointed out, the government did not include independent external oversight when the SIU legislation was tabled in the House of Commons. It was an afterthought and only found its way into the law through amendments made in Committee. Independent external oversight of isolating conditions of confinement is not a new issue, even in the era of the CCRA. Going back almost 30 years, binding oversight of segregation was discussed by the Office of the Correctional Investigator in its 1995-1996 report, while commenting on the report of Madame Justice Louise Arbour's Commission of Inquiry into Certain Events at the Prison for Women in Kingston. More recently, independent external oversight by the courts is part of the proposals in Senate Bill S-230
  6. It should be remembered that Clause 40.1 of Bill C-83 (An Act to amend the Corrections and Conditional Release Act and another Act, 42nd Parliament, 1st Session) provides that a comprehensive review of the provisions enacted by Bill C-83 must be undertaken by a parliamentary committee at the start of the fifth year (mid-2023) after the day on which this section comes into force

    The oversight of what goes on "behind the walls" of our penitentiaries must be a central feature of the still-to-start (but promised in law) Bill C-83 Parliamentary review. The Government of Canada must demonstrate it is serious about ensuring CSC operations are lawful and Charter compliant. It must demonstrate that it understands that this requires ongoing and focused oversight of isolating conditions of confinement wherever that occurs, as well as accountability and assurance mechanisms to support actions taken to address identified gaps and failures. And it must find and implement a mechanism to ensure that conclusions coming from independent oversight are actually implemented.

    The oversight of prisons operations around the world is carried out in a variety of ways by a variety of different mechanisms and publicly appointed officials. Enhanced oversight of CSC (not just the SIUs) can be achieved in a number of ways, and while this is beyond the mandate of the SIU IAP, it must be central to the work of the legally required Parliamentary review of the SIUs and the prisons in which they exist.

Appendix Tables

Appendix Table 1: Length of time in SIU over time, by race/ethnicity
Race/Ethnicity Year in which SIU stay started 1 thru 15 days in SIU 16 thru 61 days in SIU 62 thru 769 days in SIU Total Percent Total Number
White 2020 52.8% 28.4% 18.8% 100% 798
2021 42.7% 29.6% 27.7% 100% 494
2022 40.1% 42.2% 17.6% 100% 516
2023 43.5% 40.6% 15.9% 100% 779
2024 to 30 June 44.0% 37.8% 18.2% 100% 368
Total 45.3% 35.4% 19.3% 100% 2,955
Black, Caribbean, Sub-Sahara African 2020 48.5% 28.5% 23.1% 100% 295
2021 44.0% 31.5% 24.5% 100% 184
2022 40.1% 38.2% 21.7% 100% 207
2023 35.2% 38.7% 26.0% 100% 315
2024 to 30 June 26.5% 33.1% 40.4% 100% 136
Total 39.9% 34.1% 25.9% 100% 1,137
Indigenous 2020 43.9% 36.0% 20.0% 100% 883
2021 30.6% 41.1% 28.3% 100% 621
2022 33.7% 42.0% 24.3% 100% 612
2023 36.7% 41.2% 22.1% 100% 872
2024 to 30 June 32.0% 41.9% 26.1% 100% 444
Total 36.3% 40.1% 23.6% 100% 3,438
All others 2020 55.1% 23.9% 21.0% 100% 176
2021 39.4% 33.0% 27.7% 100% 94
2022 38.2% 42.7% 19.1% 100% 89
2023 40.2% 42.5% 17.2% 100% 174
2024 to 30 June 32.3% 41.9% 25.8% 100% 93
Total 42.8% 35.8% 21.4% 100% 626
Total 2020 48.7% 31.2% 20.1% 100% 2,152
2021 37.3% 35.2% 27.6% 100% 1,393
2022 37.2% 41.6% 21.2% 100% 1,424
2023 39.3% 40.7% 20.0% 100% 2,140
2024 to 30 June 35.5% 39.3% 25.2% 100% 1,041
Total 40.6% 37.2% 22.2% 100% 8,150
Appendix Table 2: Length of time in SIU over time by Mental Health Needs
Mental Health Needs Year in which SIU stay started 1 thru 15 days in SIU 16 thru 61 days in SIU 62 thru 769 days in SIU Total Percent Total Number
None 2020 51.0% 29.1% 19.9% 100.0% 1,531
2021 37.5% 33.8% 28.7% 100.0% 928
2022 39.1% 40.2% 20.7% 100.0% 927
2023 40.1% 38.8% 21.2% 100.0% 1,432
2024 to 30 June 35.9% 36.9% 27.2% 100.0% 658
Total 42.0% 35.3% 22.7% 100.0% 5,476
Some 2020 41.7% 37.9% 20.5% 100.0% 391
2021 36.3% 38.9% 24.8% 100.0% 311
2022 30.4% 45.6% 24.0% 100.0% 329
2023 35.6% 44.5% 19.9% 100.0% 508
2024 to 30 June 32.6% 44.3% 23.1% 100.0% 273
Total 35.7% 42.3% 22.1% 100.0% 1812
Considerable or higher 2020 45.7% 33.5% 20.9% 100.0% 230
2021 37.7% 35.7% 26.6% 100.0% 154
2022 40.5% 41.1% 18.5% 100.0% 168
2023 42.5% 45.0% 12.5% 100.0% 200
2024 to 30 June 40.9% 40.9% 18.2% 100.0% 110
Total 41.9% 39.0% 19.1% 100.0% 862
Total 2020 48.7% 31.2% 20.1% 100.0% 2,152
2021 37.3% 35.2% 27.6% 100.0% 1,393
2022 37.2% 41.6% 21.2% 100.0% 1,424
2023 39.3% 40.7% 20.0% 100.0% 2,140
2024 to 30 June 35.5% 39.3% 25.2% 100.0% 1,041
Total 40.6% 37.2% 22.2% 100.0% 8,150
Appendix Table 3: Length of time in SIU over time by Mental Health Status
Mental Health Status Year in which SIU stay started 1 thru 15 days in SIU 16 thru 61 days in SIU 62 thru 769 days in SIU Total Percent Total Number
Low-some needs; not getting worse 2020 51.0% 29.2% 19.8% 100.0% 1,822
2021 40.0% 34.5% 25.5% 100.0% 1,114
2022 39.5% 40.5% 20.0% 100.0% 1,139
2023 41.8% 39.3% 18.9% 100.0% 1,763
2024 to 30 June 36.1% 38.9% 25.1% 100.0% 854
Total 42.9% 35.9% 21.2% 100.0% 6,692
High needs, not getting worse 2020 51.3% 34.0% 14.7% 100.0% 197
2021 43.8% 33.8% 22.3% 100.0% 130
2022 48.1% 37.4% 14.5% 100.0% 131
2023 46.2% 43.6% 10.3% 100.0% 156
2024 to 30 June 47.3% 37.4% 15.4% 100.0% 91
Total 47.7% 37.2% 15.2% 100.0% 705
Various mental health needs and getting worse 2020 13.5% 54.1% 32.3% 100.0% 133
2021 10.7% 41.6% 47.7% 100.0% 149
2022 11.0% 53.2% 35.7% 100.0% 154
2023 14.0% 50.2% 35.7% 100.0% 221
2024 to 30 June 19.8% 44.8% 35.4% 100.0% 96
Total 13.4% 49.1% 37.5% 100.0% 753
Total 2020 48.7% 31.2% 20.1% 100.0% 2,152
2021 37.3% 35.2% 27.6% 100.0% 1,393
2022 37.2% 41.6% 21.2% 100.0% 1,424
2023 39.3% 40.7% 20.0% 100.0% 2,140
2024 to 30 June 35.5% 39.3% 25.2% 100.0% 1,041
Total 40.6% 37.2% 22.2% 100.0% 8,150
Appendix Table 4: Percent of days where four hours out of cell was not achieved (over time)
Days in SIU Year in which SIU stay started missed 75% or less of their days missed 76% or more of days Total Percent Total Number
Up to 15 days available to be out of cell 2022 37.1% 62.9% 100.0% 555
2023 43.1% 56.9% 100.0% 853
2024 to 30 June 46.8% 53.2% 100.0% 372
Total 42.0% 58.0% 100.0% 1,780
16 thru 748 days available to be out of cell 2022 45.9% 54.1% 100.0% 859
2023 46.2% 53.8% 100.0% 1276
2024 to 30 June 43.3% 56.7% 100.0% 669
Total 45.4% 54.6% 100.0% 2,804
Total 2022 42.4% 57.6% 100.0% 1,414
2023 45.0% 55.0% 100.0% 2,129
2024 to 30 June 44.6% 55.4% 100.0% 1,041
Total 44.1% 55.9% 100.0% 4,584
Appendix Table 5: Percent of Days where two hours of meaningful human contact was not achieved (over time)
Days in SIU Year in which SIU stay started missed 50% or less of their days missed 51% or more of days Total Percent Total Number
Up to 15 days available to be out of cell 2022 40.7% 59.3% 100.0% 555
2023 44.9% 55.1% 100.0% 853
2024 to 30 June 50.5% 49.5% 100.0% 372
Total 44.8% 55.2% 100.0% 1,780
16 thru 748 days available to be out of cell 2022 55.3% 44.7% 100.0% 859
2023 51.4% 48.6% 100.0% 1,276
2024 to 30 June 52.5% 47.5% 100.0% 669
Total 52.9% 47.1% 100.0% 2,804
Total 2022 49.6% 50.4% 100.0% 1,414
2023 48.8% 51.2% 100.0% 2,129
2024 to 30 June 51.8% 48.2% 100.0% 1,041
Total 49.7% 50.3% 100.0% 4,584
Appendix Table 6: Mental Health Status by Type of Stay (over time)
Year in which SIU Stay Started Mental Health Status Short Stay Long Stay / Received four and two hours Long Stay / Did not receive four and/or two hours Total Percent Total Number
2022 Low-some needs; not getting worse 41.3% 23.5% 35.2% 100.0% 1132
High needs, not getting worse 50.4% 11.6% 38.0% 100.0% 129
Various mental health needs and getting worse 14.4% 50.3% 35.3% 100.0% 153
Total 39.3% 25.3% 35.4% 100.0% 1,414
2023 Low-some needs; not getting worse 42.5% 23.7% 33.8% 100.0% 1,754
High needs, not getting worse 47.7% 19.4% 32.9% 100.0% 155
Various mental health needs and getting worse 15.5% 41.8% 42.7% 100.0% 220
Total 40.1% 25.3% 34.7% 100.0% 2,129
2024 to 30 June Low-some needs; not getting worse 36.3% 23.9% 39.8% 100.0% 854
High needs, not getting worse 47.3% 22.0% 30.8% 100.0% 91
Various mental health needs and getting worse 19.8% 42.7% 37.5% 100.0% 96
Total 35.7% 25.5% 38.8% 100.0% 1,041
Total Low-some needs; not getting worse 40.7% 23.7% 35.6% 100.0% 3,740
High needs, not getting worse 48.5% 17.3% 34.1% 100.0% 375
Various mental health needs and getting worse 16.0% 44.8% 39.2% 100.0% 469
Total 38.8% 25.3% 35.8% 100.0% 4,584

Short Stay = 15 or fewer days available to be out of cell

Long Stay = 16 or more days available to be out of cell

Not receiving 4hrs = Did not receive 4hrs out of cell in 76% or more of days

Not receiving 2hrs = Did not receive 2hrs of meaningful human contact in 51% or more of days

Appendix Table 7: Correctional Programming Hours Provided by Length of Stay (over time)
Days available to be out of cell Year in which SIU stay started zero hours of correctional programming less than an hour up to 5hrs of correctional programming over 5hrs to 10hrs of correctional programming over 10hrs of correctional programming Total Percent Total Number
Up to 30 days available 2022 66.5% 28.8% 3.7% 1.0% 100.0% 781
2023 67.7% 30.0% 1.9% 0.3% 100.0% 1,205
2024 to 30 June 68.3% 29.5% 2.0% 0.2% 100.0% 549
Total 67.5% 29.5% 2.5% 0.5% 100.0% 2,535
31+ days available 2022 20.4% 33.3% 18.3% 28.0% 100.0% 633
2023 22.7% 40.7% 19.9% 16.7% 100.0% 924
2024 to 30 June 22.0% 39.6% 20.1% 18.3% 100.0% 492
Total 21.8% 38.2% 19.5% 20.5% 100.0% 2,049
Total 2022 45.8% 30.8% 10.3% 13.1% 100.0% 1,414
2023 48.2% 34.7% 9.7% 7.4% 100.0% 2,129
2024 to 30 June 46.4% 34.3% 10.6% 8.7% 100.0% 1,041
Total 47.1% 33.4% 10.1% 9.5% 100.0% 4,584
Appendix Table 8: Percent of Days where four hours out of cell was not achieved across regions, over time (only stays that had 16+ days available to be out of cell)
Region Year in which SIU stay started missed 75% or less of their days missed 76% or more of days Total Percent Total Number
Atlantic 2022 33.3% 66.7% 100.0% 120
2023 30.2% 69.8% 100.0% 182
2024 to 30 June 27.0% 73.0% 100.0% 89
Total 30.4% 69.6% 100.0% 391
Quebec 2022 18.5% 81.5% 100.0% 146
2023 32.7% 67.3% 100.0% 315
2024 to 30 June 39.7% 60.3% 100.0% 174
Total 31.3% 68.7% 100.0% 635
Ontario 2022 52.0% 48.0% 100.0% 152
2023 42.2% 57.8% 100.0% 258
2024 to 30 June 50.0% 50.0% 100.0% 144
Total 46.9% 53.1% 100.0% 554
Prairies 2022 77.7% 22.3% 100.0% 292
2023 77.6% 22.4% 100.0% 352
2024 to 30 June 56.1% 43.9% 100.0% 180
Total 72.9% 27.1% 100.0% 824
Pacific 2022 14.1% 85.9% 100.0% 149
2023 29.6% 70.4% 100.0% 169
2024 to 30 June 29.3% 70.7% 100.0% 82
Total 23.8% 76.3% 100.0% 400
Total 2022 45.9% 54.1% 100.0% 859
2023 46.2% 53.8% 100.0% 1,276
2024 to 30 June 43.3% 56.7% 100.0% 669
Total 45.4% 54.6% 100.0% 2,804

Footnotes

Footnote 1

See Mandela Rules 43 and 44: https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-ebook.pdf.

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Footnote 2

C-83, 42nd Parliament, 1st Session "An Act to amend the Corrections and Conditional Release Act and another Act".

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Footnote 3

Justin Ling, the author of a 2021 Maclean's article on federal corrections noted that "While CSC Commissioner Anne Kelly declined to be interviewed for this story, Maclean's asked her about the state of solitary confinement in Canada's prisons during an unrelated press conference. "We do not have solitary confinement any longer," she said, insisting that the structured intervention units had been successfully implemented, aside from 'some hiccups early on'." [Justin Ling "Houses of hate: How Canada's prison system is broken" Maclean's February 21, 2021. https://macleans.ca/news/canada/houses-of-hate-how-canadas-prison-system-is-broken/.

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Footnote 4

See, for example, sections 32(3), 34(2), 37, 37.3(4).

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Footnote 5

https://oci-bec.gc.ca/en/content/office-correctional-investigator-annual-report-2021-2022#s12.

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Footnote 6

The Panel has made specific recommendations to CSC about the practice of isolating confinement occurring elsewhere in institutions. CSC's replies largely focus on the fact that they have quarterly meetings with the Office of the Correctional Investigator and have internal monitoring – both of which fail to address the problem of the practice of solitary confinement occurring.

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Footnote 7

In one selection of IEDM decisions that we received from one IEDM. (See pages 410-429).

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Footnote 8

On October 27, 2024, the Panel Chair received correspondence sent by Eastern Region IEDM Janine Lespérance forwarding a 548-page document containing 46 (out of 1,241) anonymized decisions made since 2019. The decisions were released pursuant to s.37.77 of the CCRA. Most of the decisions involved cases where the prisoner did not receive their time out of cell (vs. the decision to end the SIU stay). The cases were chosen by this IEDM to illustrate features she believed they routinely saw, along with the caution that her decisions may not be representative of all decisions made by all IEDMs. After studying these 46 cases carefully, we believe that the Parliamentary Committee that is supposed to be formed to review the SIU regime should examine a truly representative sample of these decisions as many concerning issues are raised. The document, including the 46 redacted decisions, can be accessed here: https://johnhoward.ca/wp-content/uploads/2024/11/JL-IEDM-info-publication-publication-info-DEI-2024-10-27.pdf.

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Footnote 9

See the four papers listed here: https://www.crimsl.utoronto.ca/news/reports-canada%E2%80%99s-structured-intervention-units.

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Footnote 10

These are available at https://www.publicsafety.gc.ca/cnt/cntrng-crm/crrctns/siuiap-ccuis-en.aspx.

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Footnote 11

As noted in the text, in addition to this report, the Panel has produced and released three annual reports, one early update, and three thematic reports. [Four other reports were produced and released by independent researchers, using CSC data, in 2020-2021.] We have not included in this report updates on all the findings reported in these previous 11 reports. This report has the benefit of new data only from the first half of 2024 which is probably too short a period to have confidence in any apparent change that might be discovered. Nevertheless, as is evident in the key areas in which reform was to be expected in the SIU regime (short stays and time out of cell), nothing much has changed. This is hardly surprising given that the problems with the SIUs have existed since their formal opening in late 2019 and there was no consistent sign of improvement in their operation evident in our last annual report. Some short-term changes have taken place, but consistent improvement on important factors cannot be found. There was, therefore, no evidence that a "transformation" of federal corrections took place during the first half of 2024.

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Footnote 12

S. 32 (1) The purpose of a structured intervention unit is to

  1. provide an appropriate living environment for an inmate who cannot be maintained in the mainstream inmate population for security or other reasons; and
  2. provide the inmate with an opportunity for meaningful human contact and an opportunity to participate in programs and to have access to services that respond to the inmate's specific needs and the risks posed by the inmate.

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Footnote 13

S. 33: An inmate's confinement in a structured intervention unit is to end as soon as possible.

36 (1): The Service shall, every day, between the hours of 7:00 a.m. and 10:00 p.m., provide an inmate in a structured intervention unit

  1. an opportunity to spend a minimum of four hours outside the inmate's cell; and
  2. an opportunity to interact, for a minimum of two hours, with others, through activities including, but not limited to,
    1. programs, interventions and services that encourage the inmate to make progress towards the objectives of their correctional plan or that support the inmate's reintegration into the mainstream inmate population, and
    2. leisure time.

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Footnote 14

Correctional Service of Canada, Commissioner's Directive 711, Paragraph 5.

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Footnote 15

S. 34 (1) A staff member may authorize the transfer of an inmate into a structured intervention unit under subsection 29.01(1) only if the staff member is satisfied that there is no reasonable alternative to the inmate's confinement in a structured intervention unit and the staff member believes on reasonable grounds that:

  1. the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the safety of any person or the security of a penitentiary and allowing the inmate to be in the mainstream inmate population would jeopardize the safety of any person or the security of the penitentiary;
  2. allowing the inmate to be in the mainstream inmate population would jeopardize the inmate's safety; or
  3. allowing the inmate to be in the mainstream inmate population would interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of a serious disciplinary offence.

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Footnote 16

We decided to look at these very long stays for a very simple reason. The shortest stays described by CSC in the annual Corrections and Conditional Release Statistical Overview that is produced by Public Safety Canada (the source of the Segregation figures in this table) is "less than 30 days" (or about twice the "solitary confinement" period described by the Mandela Rules). Since CSC, therefore, apparently focused its attention on quite "long stays" in segregation, we thought it best not to challenge their decision. Hence, we are presenting here the SIU equivalents for segregation stays that are 61 days or more and over 120 days.

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Footnote 17

Rates – in this case the number of long stays per 1,000 prisoners – require estimates of the size of the CSC institutional population. A one-day census is a reasonable estimate, as are, when available, the data from CSC or Statistics Canada on the average population. This table, expanded from that in this Panel's 3rd annual report, varies in completely trivial ways from a previously published table because more recent estimates of the population size are used.

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Footnote 18

CSC readily notes that prisoners do not "avail themselves" of opportunities to leave their SIU cell. However, the absence of context in such statements renders them meaningless.

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Footnote 19

Although we do have data for the whole history of the SIUs (from late 2019 through September 2024), CSC suggested to us that we focus on data for 2022 onwards when looking at time out of cell. The reason for this is that they have a more 'exact' count of the days 'available' to be out of the cell from 2022 onwards. We examined the difference between what we had used earlier and this "new and improved" measure and found that they were, in most cases, almost identical. The differences were more likely to show up in very short stays where, for example, a person would go into an SIU late one day and leave early in the day, two days later. How those days were counted varied between the two measurement schemes. For long stays (stays of 16 days or longer), there were no substantive differences, though we use the "days available" measure from 2022 onwards in keeping with CSC's preferences. This results in some differences in numbers when looking at simply the number of days in an SIU (e.g. see Appendix Table 3) vs. the number of "days available" to be out of cell, where those with zero days "available" are removed (e.g. Appendix Table 6).

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Footnote 20

CCRA s.32.1(b) and s.36.1(b).

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Footnote 21

See Rule 43: https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-ebook.pdf.

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Footnote 22

https://www.canada.ca/en/correctional-service/programs/offenders/correctional-process/structured-intervention-units.htm.

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Footnote 23

R. v. Gladue, [1999] 1 S.C.R. 688.

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Footnote 24

See, for example Dagan, Netanel & Sharon Shalev (2021). The Role of Israeli Judges in Authorizing Solitary Confinement Placements: Balancing Human Rights and Risk, or Neutralizing Responsibility? Punishment & Society https://journals.sagepub.com/doi/10.1177/14624745211019112.

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Footnote 25

CCR Regulation 23.02: For the purposes of section 37.77 of the Act, a representative sampling of information related to any determination of the independent external decision-maker may be published in print and electronically and those publications are to be made available to offenders, staff members and the public.

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Footnote 26

Please see footnote 8.

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Footnote 27

An earlier freedom of information request redacted the entire IEDM decision, leaving only identifying information about the prisoner. See https://www.crimsl.utoronto.ca/sites/www.crimsl.utoronto.ca/files/SIU_Report4-IEDM%28SprottDoobIftene%2910May21.pdf.

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Footnote 28

The flexibility available to CSC in complying with an "order" from an IEDM to release a prisoner from an SIU is perhaps encouraged through Commissioner's Directives 711-1, which states that:

66. Where the decision-maker approved an inmate's transfer out of an SIU to a mainstream population at the same site, the transfer will be effected immediately…

69. Where an SIU inmate is approved for a transfer to another institution, but the inmate cannot be immediately physically transferred, they will remain in the SIU until the transfer can be effected.

Thus, it appears that someone could languish in an SIU indefinitely if CSC determines that they need to move to a different institution.

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Footnote 29

Restricted Movement (RM) cells are short term (5 days maximum) solitary-confinement-like temporary holding cells in institutions without SIUs. After 5 days, prisoners are supposed to be released back to the mainstream population or moved to an SIU. Typically, there are few prisoners identified as being in RM cells. On 15 September 2024, for example, there were 9 prisoners in RMs, 266 in SIUs, and 13,775 in the mainstream institutional population.

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Footnote 30

https://www.statcan.gc.ca/en/dai/smr08/2023/smr08_270 [accessed 6 June2024].

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Footnote 31

https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2024-siu-iap-nnlrpt-2023-24/index-en.aspx#s223.

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Footnote 32

See, for example, Canada's Black Justice Strategy (https://www.justice.gc.ca/eng/cj-jp/cbjs-scjn/index.html) and CSC Strategic Plan for Aboriginal Corrections (https://www.canada.ca/content/dam/csc-scc/migration/aboriginal/092/002003-1000-eng.pdf).

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Footnote 33

We used the "first half" in addition to the one-day census in order to get a more stable estimate of the mental health status of SIU prisoners, given that they are a relatively small group compared to the total population.

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Footnote 34

https://www.canada.ca/en/correctional-service/programs/offenders/correctional-process/structured-intervention-units.html#our_infographic.

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Footnote 35

https://www.canada.ca/en/correctional-service/programs/offenders/correctional-process/structured-intervention-units.html.

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Footnote 36

Some of this variation is very difficult to interpret. For example, in our first annual report (Table B), we included a table on the use (person-stays) per 1000 prisoners in a region of the SIUs in that region. Although the numbers are accurate, the problem is that some of this variation may well be related to inter-regional transportation of prisoners. If the regions, or National Headquarters, prefers to house certain types of prisoners in certain SIUs, these numbers could be affected in important ways and would reflect factors other than the willingness to use SIUs.

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Footnote 37

As shown in Appendix Table 8, there is variation across time in all regions. However, pooling across region, the proportion that did not receive their four hours out of cell on most days changed very little, though as CSC noted in its correspondence, there is less variation in the first half of 2024 compared to 2023. Given that, their suggested interpretation was that "CSC has reported documenting and sharing good and promising practices, and some evidence suggests that the gap between the worst and the best SIUs is closing". However, the range across regions in the percentage of prisoners who did not get their hours decreased in the first half of 2024 in large part because the performance of one region (the Prairies) was much worse in the first half of 2024 than it had been in previous years. We find it difficult to see how the deterioration of a region should be applauded or interpreted as learning from "best practices".

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Footnote 38

https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2024-siu-iap-nnlrpt-2022-23/index-en.aspx.

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Footnote 39

https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2024-siu-iap-nnlrpt-2023-24/index-en.aspx#s222.

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Footnote 40

Lespérance, p. 118.

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Footnote 41

Ibid, p. 303-308.

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Footnote 42

Ibid, p. 418-419.

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Footnote 43

See Appendix Table 26: https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2024-siu-iap-nnlrpt-2023-24/index-en.aspx#s7.

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Footnote 44

In the days of administrative segregation, transfers of difficult prisoners to other institutions and regions were frequent. Transferring challenging cases has contributed to tragic outcomes (e.g., the death of Ashley Smith). Another concern with all this movement is the operation of the policy that governs transfers. Institutional managers have reported to this Panel that the approval process is "constipated" because there are so many requests. This frustrates attempts to implement timely transfer decisions to move a prisoner who is ready to integrate into the general population out of an SIU.

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Footnote 45

https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2024-siu-iap-nnlrpt-2023-24/index-en.aspx#s21.

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Footnote 46

On their secure access website (to which the Panel had access), the following statement appears: "Note that data for the indicator Median number of days from decision to transfer an offender out of the Structured Intervention Unit to the actual transfer is no longer being updated as of June 22, 2024, due to changes to the data architecture in version 1.12 of the Structured Intervention Unit application. All data prior to June 22, 2024, remains available within this indicator." We have no idea how to interpret the explanation other than the obvious fact: the median is no longer the message.

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Footnote 47

https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2024-siu-iap-nnlrpt-2022-23/index-en.aspx.

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Footnote 48

See Table 2 (above).

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Footnote 49

CSC's "SIU Performance Review" 2024 performance report is not available publicly.

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Footnote 50

See the 2021-2022 report of the Office of the Correctional Investigator which found "a number of areas – outside of SIUs and temporary medical isolation measures in place for COVID-19 – where prisoners were experiencing fewer than four hours of out-of-cell time". https://oci-bec.gc.ca/en/content/office-correctional-investigator-annual-report-2021-2022#s12

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Footnote 51

Now members of this Panel.

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Footnote 52

As part of the "Errors and Omissions" review of this report, the CSC acknowledged that they "could" have said "ongoing instead of completed". The Panel does not find this acknowledgement helpful. Ongoing, unfortunately, can translate into "never".

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Footnote 53

The information on the web from CSC describes the SIU experience in the following words. These words do not describe the SIUs that seem to exist today.

A typical day:

  • work with a parole officer and engage with health care staff.
  • participate in correctional programs and interventions
  • participate in coaching sessions with an Indigenous Elder, Spiritual Advisor or Chaplain

https://www.canada.ca/en/correctional-service/programs/offenders/correctional-process/structured-intervention-units.html#our_infographic [downloaded 4 September 2024].

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