Independent Oversight of Structured Intervention Units in Canada’s Penitentiaries
An Update - Structured Intervention Unit Implementation Advisory Panel -
20 December 2022
When proposals to amend the Corrections and Conditional Release Act in 2019 to replace Administrative and Disciplinary Segregation with “Structured Intervention Units” (SIUs) were tabled by the government, the Parliamentary Committee reviewing the bill insisted that some form of independent oversight of key decisions related to prisoners’ confinement in the SIUs be part of the bill. The key legislated oversight, added to the bill through amendment, was to be carried out by newly created Independent External Decision Makers (IEDMs) who, among other things, would have binding powers to order that a prisoner’s period in the SIU should end. Said differently, Parliament felt that the length of a prisoner’s stay in an SIU could not be determined solely by those employed directly by Correctional Service Canada (CSC).
Thus, in CSC’s own words,
IEDMs review inmate cases on an ongoing basis, in real-time, and provide recommendations related to an inmate’s conditions and duration of confinement. Their decisions are binding.Footnote1
The difficulty with these assertions begins with a simple fact. In this panel’s first annual report, we reportedFootnote2 that many prisoners who had experienced very long stays in these SIUs did not have their stays in SIUs reviewed by the Independent External Decision Makers.Footnote3
Because the data for the annual report included cases only through early 2022, the Panel thought it was important to review, with more complete data, whether anything had changed over time in the manner in which reviews of stays in SIUs take place. Hence the Panel is releasing this update.
There are a number of internal reviews of stays in SIUs.Footnote4 If a prisoner has been in an SIU for more than 60 days and has not been released from the SIU as a result of the review by the Commissioner of CSC (or the person designated to act as the Commissioner for this purpose), the case is supposed to be sent (immediately) to an IEDM for review. The IEDM’s decision is supposed to be rendered within 30 days (i.e., by the time the prisoner has been in the SIU for 90 days).
In order to give CSC some leeway on these deadlines, we looked at whether a prisoner’s case had been sent for review within 75 days of the prisoner’s entry into the SIU. Comparing the first 16 months of operation of the SIUs to the most recent 16 months, we see (Table 1) that in both periods, almost a third of the cases in which prisoners had spent 75 days or more in the SIU had not been sent for review. We (in our first annual report) had no explanation for what appears to be non-compliance with the law. CSC, in response to our report, also provided no explanation for this. Equally concerning, perhaps, is the regional variation around this unexplained non-compliance. Almost half of the cases in the Atlantic and Ontario regions that are 75+days long were not sent to IEDMs compared to “only” about 13% of such cases in the Prairie region.
|Was the case ever sent to an IEDM for a review of the length of stay?||
|Case was never sent to an IEDM||Case sent one or more times|
|When the person’s SIU stay started||Nov. 2019 thru March 2021||160 (32.9%)||326 (67.1%)||486 (100%)|
|April 2021 thru July 2022||98 (30.6%)||222 (69.4%)||320 (100%)|
|Total||258 (32.0%)||548 (68.0%)||806 (100%)|
The first column of numbers (“Case was never sent to IEDM”) needs to be understood in the context of the law governing CSC’s actions on this matter. It states that:
37.8 Thirty days after each of the Commissioner’s determinations under section 37.4 that an inmate should remain in a structured intervention unit, an independent external decision-maker shall, in accordance with regulations made under paragraph 96(g.1), determine whether the inmate should remain in the unit.
According to the law, then, cases should be sent to IEDMs by around 60 days into the stay and the IEDMs then have about 30 days to render a decision on whether or not a prisoner should be released from the SIU. This is an interesting length of time given that the UN Standard Minimum Rules (the “Mandela Rules”) refer to 15 days as the maximum time that a person can be held in solitary confinement before it can be described as a treatment that is prohibited.Footnote5
At around 90 days, IEDMs are required to render their decisions. However, during this time – as cases are sent to IEDMs, but before decisions are rendered (i.e., between Day 60 and Day 90 of a stay in an SIU) – a fair number of prisoners (33.5% in the first period and 46.7% in the second time period) had been transferred out of the SIU.
We see, in Table 2, that when IEDMs make decisions about whether a prisoner should be transferred out of the SIU, they, for the most part, decide that the prisoner should remain in the SIU. This finding was remarkably consistent across time.
|Time period||Prisoner should not remain in the SIU||Prisoner should remain in the SIU||Total|
|Feb 2020 to April 2021||54 (14.1%)||329 (85.9%)||383 (100%)|
|May 2021 to September 2022||35 (14.4%)||208 (85.6%)||243 (100%)|
|Total||89 (14.2%)||537 (85.8%)||626 (100%)|
NB: The 36 “pending” decisions have been removed since they are disproportionately located (26 of the 36) in the second time frame (i.e., they had just sent to IEDM at end of September 2022 when the data were made available to the panel). These are in addition to the prisoners transferred out of the SIU after the case had been referred to the IEDM but before a decision had been release.
In its first annual report, this Panel noted that on a number of different dimensions, there were substantial differences in the manner in which the SIUs were operating across the five Correctional Service regions of Canada. We see this variation in the decisions handed down in each region by the IEDMs (See Table 3).
Prisoners who have been in an SIU for 90 days are dramatically more likely to be ordered out of the SIU if they are in Ontario, Quebec, or the Atlantic regions than they are if they happen to be in the Prairies or the Pacific regions. These differences are not small and may in part be the result of variations in the quality of the information that is collected and in what is shared with IEDMs. For CSC to suggest that this might be an inevitable consequence of having independent external decision makers is, we believe, simplistic.
|Prisoner should NOT remain in SIU||Prisoner should remain in SIU||Not applicable: prisoner had been transferred out|
|The region in which the prisoner was located at the time of the transfer to the IEDM||Atlantic||16 (15.0%)||53 (49.5%)||38 (35.5%)||107 (100%)|
|Quebec||33 (14.2%)||106 (45.5%)||94 (40.3%)||233 (100%)|
|Ontario||19 (20.9%)||41 (45.1%)||31 (34.1%)||91 (100%)|
|Prairies||17 (3.6%)||269 (57.5%)||182 (38.9%)||468 (100%)|
|Pacific||4 (3.0%)||68 (51.1%)||61 (45.9%)||133 (100%)|
|Total||89 (8.6%)||537 (52.0%)||406 (39.3%)||1032 (100%)|
These regional differences are important given that we have a single national correctional service for those serving sentences of two years or more, not separate correctional services for each region of Canada.
However, the variation shown in Table 3 is only one way in which the fate of the prisoner being held in the SIU would appear to have less to do with their own behaviour and more to do with factors completely outside of their control such as the region they were placed in by CSC.
Table 4 examines the variation across individual IEDMs in their decisions that a prisoner being reviewed should remain in the SIU or should be transferred out.
Prisoner should not remain in the SIU
Prisoner should remain in the SIU
|IEDMs #2 and 13||
|IEDMs #3 and 8||
|All other IEDMs (n=8) with at least 40 length of stay decisions||
Looking at Table 4, we see that if a case was assigned to IEDM#2 or IEDM#13, prisoners appear to have had no chance of being released by the IEDM to the general penitentiary population. On the other hand, if the case was assigned to IEDM#3 or IEDM#8, they had a reasonable chance (43.2%) of benefiting from an IEDM order to release. Obviously, IEDM decisions, like judicial at sentences, are going to vary somewhat. However, unlike judges nothing about the IEDM decisions – the ‘facts’ that were put before the IEDM, the decision itself, or the reasons for the decision – is public. Hence there can be no meaningful detailed overseeing the process of providing oversight of the decisions to keep prisoners in SIUs.
Finally, there is a problem that we – and CSC – have known about for some time. In our first annual report, we referredFootnote6 to a memo (dated 16 June 2020) that is posted on the website of the House of Commons Standing Committee on Public Safety and National Security. In that memo, a senior CSC official noted, when briefing senior officials in CSC, that
“There are currently 24 IEDM, 11 SDC [Senior Deputy Commissioner] and 44 IH [Institution Head] decisions wherein there has been a decision to transfer the inmate out of the SIU and the decision has not been effected. This is a significant risk to the SIU scheme as well as government and CSC reputation if it is perceived CSC “ignores” the IEDM decisions.”
That was June 2020 when the SIU review process was only about 6 months old. On one matter, the author of the memo was clearly wrong: there have been apparently no consequences associated with the risk of non-compliance with the law to the SIU scheme, the government, or CSC’s reputation.
It is important, therefore, to see whether anything has changed since then. In our first annual report, we notedFootnote7 that a prisoner whose length of stay was reviewed by an IEDM was more likely to be removed quickly if the IEDM had recommended that they should remain in the SIU. It is important, therefore, to see if this perverse finding – quicker transfers out of the SIU when prisoners were ordered to stay in the SIU – still existed. The findings (Table 5) demonstrate that little of substance has changed over time. The finding in the more recent time period is much the same as it was earlier.
|Time in the SIU after referring case to IEDM||
|Time period when case was referred to the IEDM||IEDM Decision||Stay ended within 30 days of referral to IEDM||Stay ended within 31-60 days of referral to IEDM||Stay ended 61 days or longer after referral to the IEDM||Total|
|February 2020 to April 2021||Prisoner should not remain in SIU||11 (28.2%)||15 (38.5%)||13 (33.3%)||39 (100%)|
|Prisoner should remain in SIU||14 (17.9%)||55 (70.5%)||9 (11.5%)||78 (100%)|
|Total||25 (21.4%)||70 (59.8%)||22 (18.8%)||117 (100%)|
|May 2021 to September 2022||Prisoner should not remain in SIU||4 (17.4%)||10 (43.5%)||9 (39.1%)||23 (100%)|
|Prisoner should remain in SIU||12 (16.0%)||61 (81.3%)||2 (2.7%)||75 (100%)|
|Total||16 (16.3%)||71 (72.4%)||11 (11.2%)||98 (100%)|
Many of the problems identified in our first annual report with the IEDM review process still exist. Perhaps more dramatic is the fact that some of these problems were identified by CSC itself in June 2020.
This update raises serious questions as to whether the independent external oversight mechanism – as defined in the Corrections and Conditional Release Act and as implemented by CSC – is capable of providing the type of oversight that is necessary.
https://www.csc-scc.gc.ca/acts-and-regulations/005006-3002-en.shtml, emphasis in the original.
Table 4 in the 2021/22 Annual Report of this Panel
As part of the process prior to the releasing of the Panel’s annual report in 2022, CSC was given an opportunity to review the report for errors, etc. They did not question the accuracy of these findings, or any other findings contained in that report. After the report was released, CSC also never challenged the accuracy of any of our findings.
In our annual report, six decisions, procedures, and reviews (prior to the case being sent to the IEDM) are outlined in the section entitled “SIU Decision-Making and the Monitoring of SIUs.”
Canadian law attempts to avoid the categorization of SIUs as solitary confinement by guaranteeing prisoners the “opportunity” to be out of their cells for four hours. This panel’s finding reported in its first annual report (Table 10) was that three quarters of prisoners who were in SIUs for 16 or more consecutive days missed getting their legislated 4 hours out of their cell at least half the time. Most of these long-stay prisoners (58%) missed getting their 4 hours during at least 75% of their days in the SIU. In a number of cases, prisoners were ‘offered’ time out of their SIU cells but did not accept the offer. These decisions on the part of prisoners raise important questions about why they chose to remain in solitary confinement rather than accepting an offer to be released from their cells for a few hours. Clearly it is necessary not only to know something about what they were being released “from” but also what the conditions were that they would be released “to” that were less attractive to them than solitary confinement.
Footnote 47, Appendix C, of our first annual report
See Table 3 of the first annual report.
Note: As mentioned above, a non-trivial number of cases were transferred out before the IEDM decision was communicated to CSC. A few others did not have definitive decisions for other reasons. In order to focus on actual decisions by IEDMs, those cases are not shown in Table 5.
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