Issue 1 | 17 October 2018
Welcome Message from the Chair
It is with great pleasure and anticipation that I present the inaugural Newsletter of the Expert Network on External Prison Oversight and Human Rights. As you are aware, earlier this year I looked to join an existing network to improve my knowledge and expertise of prison oversight mechanisms (Canada committed to ratify the Optional Protocol to the UN Convention Against Torture [OPCAT], but has not done so yet). I discovered a few domestic and regional networks, but I found no international organization that brought together various agencies responsible for independent external prison oversight. I therefore weighed various options and decided to formally approach the International Corrections & Prisons Association (ICPA). This was a logical choice as, over the years, I attended a few ICPA conferences (including the very first conference in Budapest in 1999), and was always impressed by the quality of sessions.

ICPA has a strong commitment to highlight correctional research, evidence-based policies, and best practices in corrections at its annual conferences. ICPA also offers a unique opportunity for oversight agencies to discover best correctional policy and practice, and prison reform from around the world. This is invaluable information to oversight organizations. In our business, it’s important to know how other correctional authorities around the world have successfully implemented reforms and overcome barriers. To remain credible and effective, prison oversight organizations must have a great deal of correctional expertise, and examples of best practices in other jurisdictions can be helpful when calling for domestic reform.

The ICPA Board of Directors was very receptive and supportive of the creation of this new network. The Board developed new policy to allow the establishment of a new network, and endorsed our Terms of Reference. This endorsement is important as senior correctional professionals dominate ICPA membership. I appreciate and must acknowledge this openness to embrace a professional and constructive dialogue between organizations responsible for prison oversight and prison authorities subject to their oversight. 

This network will provide a unique platform to enable organizations involved in prison oversight to share information and exchange best practices and lessons learned. Two core activities will help meet these objectives. First, the ICPA will be hosting its 2018 Annual Conference in Montreal, Canada on October 21-26 (see https://icpa.ca/montreal2018/ ). I will moderate a plenary session entitled “Prison Oversight and Human Rights,” which will include Mr. Peter Clarke (HM Chief Inspector of Prisons, UK), Mr. Michael Horowitz (Inspector General for the Department of Justice, USA), and Ms. Michele Deitch (Senior Lecturer at University of Texas). In addition, another member of our network, Mr. Howard Sapers, Independent Advisor on Ontario Corrections, will be on a panel on Tuesday, October 23, at 13:30, to discuss significant reforms undertaken in corrections in Ontario, Canada.

A meeting of the members of this network will also be held on Tuesday October 23, 2018 at 8:15-9:15 AM in the Neufchatel Room. We are also delighted that Mr. Francisco Mugnolo, National Prisoners Ombudsman, Argentina, will participate in this meeting because next year’s ICPA annual conference will be held in beautiful Bueno Aires – Please mark your calendar! I hope that several of you will attend the 2019 ICPA annual conference and organize panel presentations.

Second, in addition to activities at ICPA conferences, this newsletter will provide an effective way to share and exchange information and best practices in prison oversight and human rights. Over the next year, with your support and collaboration, my Office will help produce three newsletters. If interest among members continues, I will consider increasing publication to quarterly newsletters. Given that Canada is hosting this year’s ICPA conference in Montréal, the short timeframe and the initial challenge of developing an e-newsletter template, this first newsletter focuses primarily on Canada. The success of this network will be measured in part by the success of our newsletter. Therefore, I need your feedback and contributions so we can improve the newsletter and make it as insightful and relevant as possible. I am thinking that the next newsletter (March/April 2019) could focus on a theme, perhaps conditions of confinement – specifically solitary confinement. This newsletter would showcase the work of prison oversight agencies in advocating for reforms consistent with the Mandela Rules. I would also like to continue the Featured Jurisdiction section, and would be looking for an organization willing to contribute an article or two on its respective mandate and mechanisms.
 
On a final note, I am pleased that the Network now has representation from the following jurisdictions:

  • Argentina
  • Austria
  • Australia (New South Whales, South Australia, & Queensland)
  • Canada (Federal, Ontario, Newfoundland, Nova Scotia, Québec, & Yukon)
  • Ireland
  • Japan
  • New Zealand
  • Poland
  • Portugal
  • Scotland
  • Switzerland
  • United Kingdom
  • United States (Federal, Iowa, & Washington)

We have 28 members thus far and I anticipate an increase in membership after the ICPA conference in Montréal. I hope to have representatives from all continents, so please forward this newsletter to representatives of other jurisdictions not listed above or individuals with proven expertise in prison oversight and human rights. I would be happy to add them to our growing expert network.

With appreciation,

Ivan Zinger, Correctional Investigator of Canada.
Contents

  • Featured Jurisdiction.
  • Selected Contributions.
  • Selected Academic Articles.
  • Prison Ombuds...in the News!
  • Events Calendar.
  • New Publication!
Featured Jurisdiction: Canada

As Canada is hosting this year's International Corrections & Prisons Association (ICPA) conference, it seemed appropriate to focus the first issue of our newsletter on Canada.

Canada is a federation composed of ten provinces and three territories. Under the Canadian constitution , the power to establish criminal law and rules of investigation is vested in the federal Parliament. Criminal law is governed by the Criminal Code , a federal statute. The maximum determinate sentence is a life sentence with a 25-year parole ineligibility period. There are also options for an indeterminate sentence. The administration of justice by the courts is under provincial jurisdiction.

A defendant can serve their sentence in a federal penitentiary or a provincial jail, depending on the length of their sentence. If the total sentence is two years or more (including life sentences), the defendant will serve their sentence in a federal penitentiary managed by the Correctional Service of Canada , and under community supervision when released on parole. If the total sentence is less than two years, the sentence will be served in a provincial jail.

The Office of the Correctional Investigator is Canada's federal prison ombudsman. Each province has their own oversight mechanism that oversees the jails under their jurisdictions. In most provinces, the oversight is conducted by an ombudsman of general jurisdiction.
Selected Contributions
Op Ed: The Functions of Prison Oversight Bodies ( and why more power isn't always better )

by Lisa Kerr
Assistant Professor at Queen's University,
Faculty of Law.

Each year, Canadian prison lawyers eagerly await the report of the Office of the Correctional Investigator. The official function of the OCI is to investigate systemic issues in the prison system, resolve inmate complaints, and make recommendations to the prison service. For lawyers working with inmates on conditions of confinement, the work of the OCI has an additional, latent function that is extremely important: to help them see the forest beyond the trees.
 
Lawyers may have a sense that the experiences of individual clients – which can range from being placed in segregation to struggling to access programs – may be systemic and widespread. What’s more, the nature and scope of a systemic problem may well affect the strategies lawyers employ and the remedies they seek in individual cases. They use the OCI report as a roadmap and to set priorities. It is, quite simply, the most reliable and independent review and analysis of our prison system. The facts that the OCI identifies are likely to be the facts found at trial. The analysis of a particular issue in an OCI report is likely to be persuasive to a judge.
 
One hears the occasional complaint about the limited powers of the OCI, but these complaints tend to neglect the benefits these limits ensure. While the OCI lacks the ability to make binding recommendations, the prison service is legislatively required to issue a response. While the office cannot order the necessary legislative fix or allocation of resources, it can and does engage national attention on an issue. While the legislation makes clear that the OCI cannot be called as an expert witness in court, its annual reports often motivate and inform lawsuits. Each of these limits protects the office from straying beyond its mandate and jeopardizing the relationships and culture necessary to its work. Keeping the OCI out of the fray of politics and adversarial litigation means the office stays legitimate and effective. 
 
These features are particularly important when we remember the limits of litigation as an institutional reform mechanism. Constitutional cases can typically only insist on constitutional minima, which tend to reflect only the boundaries of the unacceptable rather than a code of best practices. As the leading US prison law scholar Margo Schlanger notes, decades of American prisoner litigation has led to some undesirable consequences. In some ways, Schlanger has noted, prisons are “more idle, more dehumanizing” today than before Eighth Amendment litigation began in earnest in the 1960s. Many of the issues that matter most to prisoners, such as educational programming, work and other activities, don’t lend themselves neatly to judicial remedy. Even though today’s paradigmatic prison failings are deeply troubling, they may not violate current Legal understandings of “prisoner rights.” An independent prisoner ombudsman, with powers of inspection, reporting and recommendation, may have more potential to create lasting change.
 
One recent case study confirms both the powers and limits of the OCI. In 2003, the Canadian prison service developed a specific policy of solitary confinement for federally sentenced women: the Management Protocol. Federal law governing the use of segregation on both male and female prisoners was already in place, but for reasons that were never clear, this additional policy program was designed for women only. The Protocol imposed new and exacting behavioural standards that segregated women had to meet in order to be released. Women held under the Protocol were locked in their cells for up to 23 hours per day, denied ordinary prison programming and subjected to enhanced security and isolation, in some cases for years at a time. The OCI criticized the Protocol at all relevant stages: during its development, implementation, and decade-long administration.
 
Within a few years of its operation, the Protocol had generated the problems that the OCI had predicted at inception. Women placed on the Protocol, who were almost exclusively Indigenous, could not achieve release. The OCI stayed focused on the issue. In 2008, the OCI recommended in its Annual Report that the Management Protocol be immediately rescinded, pending further review by an external expert in women’s corrections. Among other problems, the OCI noted that it was “particularly troubling” that since March 31, 2009, four out of the five women on the Protocol were Indigenous, and the other woman was a member of a visible minority. Since 2003, only one woman had been able to work herself off the Protocol.
 
At that time, the prison service issued a largely defensive response, asserting that “the decision to place a woman on the Management Protocol is not one that is taken lightly or without just cause.” But the response also indicated that the service agreed with some of the critique. While refusing the OCI’s direction to immediately rescind the program, it admitted to be “currently reviewing its strategy for managing higher risk women with a view to moving away from the Management Protocol.” This was the first official acknowledgement of problems. It seems unlikely that this acknowledgement would have come but for the OCI’s urging.
 
In May 2010, the assessment demanded by the OCI was finally completed. The prison service released its review chronicling deficiencies in the Management Protocol. The concerns noted in the report were extensive and serious, including problems of discrimination, unrealistic standards imposed on women that were unrelated to risk, a lack of meaningful incentives, and self-sabotage due to fear exacerbated by isolation. Eventually, and as a result of these reports, the BC Civil Liberties Association (BCCLA) filed a constitutional challenge in March, 2011 on behalf of a woman held on the Protocol, Bobby Lee Worm . The prison service reacted in the press immediately, promising to revise the policy. In May, 2011, the prison service stated that it had cancelled the Protocol, and that all women held on the Protocol would be formally removed from it.
 
Strikingly, when CSC cancelled the Management Protocol, their official position was that they did so in response to recommendations from the OCI. It may have been more comfortable to appear to be responding to the federal bureaucracy – of which the OCI is a part – rather than to civil rights litigators. The service wrote to the OCI as follows: “As you are aware, following extensive consultation on the Management Protocol and our commitment to you to move away from it, CSC reviewed its framework for managing the highest-risk women inmates in offender institutions with a view to implementing a more comprehensive approach. Over the last several months, a number of options were developed and analysed and as a result, I wish to inform you that effective May 1, 2011, CSC will rescind the Management Protocol.”
 
The prison service must have known that the longstanding critiques and multiple recommendations from the OCI to rescind the Protocol would form part of a damning trial record. Moreover, the evidence dating back to 2002 would have revealed that the OCI advised the Service about the legal flaws of the Protocol before it was even implemented. The filing of litigation was essential to the outcome, but the grounds for the litigation were generated by work done by the OCI. The combination of measures secured cancellation of the Protocol. The story is one of both OCI initial ineffectiveness and eventual success. It’s a subtle story that discloses the essential function of prison oversight, performed by bodies with independence, endurance, and limited but key powers.
 
But prison reform doesn’t tend to have tidy endings. In June, 2018, the OCI wrote to Canada’s Minister of Public Safety, Ralph Goodale, to advise that women residing in maximum security continue to experience arbitrary, discriminatory, and unlawful treatment. The OCI documents a restrictive system that continues to make unreasonable demands of women who face an array of health challenges and are disproportionately Indigenous. There are unmistakable echoes of the defunct Management Protocol, including a movement level system that the OCI calls a “gender-based discriminatory restriction unique to the women’s sites.” The OCI sets out seven reform measures, for the prison service to heed the contemporary Parliamentary consensus on the need to do better for Indigenous people in custody. The work goes on.
The Québec Ombudsman

by Marie Rinfret
La protectrice du citoyen, Québec.

The Québec Ombudsman (or La protectrice du citoyen ) prevents and corrects rights violations, abuse, negligence, inaction or mistakes that affect citizens in their interaction with Government of Québec departments or agencies, or with health and social services network institutions. It is an impartial institution independent from the government. It receives its authority from the Public Protector Act. Marie Rinfret was appointed Ombudsperson by the National Assembly of Québec in 2017.

Among the Québec Ombudsman’s mandates is that of correctional ombudsman. As such, it handles complaints from detainees in the 17 correctional facilities that report to the Direction générale des services correctionnels of the Ministère de la Sécurité publique. 

The Québec Ombudsman is empowered to intervene concerning, for example, the holding cells in courthouses and the correctional workers who monitor sentences served in the community. The Commission québécoise des libérations conditionnelles (Québec’s Parole Board) is also one of the bodies within the Québec Ombudsman’s jurisdiction.

The Québec Ombudsman will respond to complaints, and will also launch its own investigations. It also visits correctional facilities. While it has no decision-making power, more than 98% of its recommendations are accepted by the bodies about which complaints are made.

The Québec Ombudsman’s correctional service investigation team has 11 people, namely, a coordinator, three professional delegates, four assistant delegates, two front-line agents and a receptionist. 

Every correctional facility has a direct toll-free line for detainees to contact the Québec Ombudsman.

In the last fiscal year (from April 1, 2017 to March 31, 2018), the Québec Ombudsman handled 4,983 requests concerning correctional services and the Commission québécoise des libérations conditionnelles. It found 462 of them to be substantiated.

Among the problem areas of particular concern to the Québec Ombudsman is prison overcrowding. This phenomenon has existed for several years and the Ministère de la Sécurité publique is hard-pressed to make the required changes, basically relying on the opening of new facilities to solve the problem. Because of a lack of planning of the logistics of these operations, the "triple occupancy" that the Québec Ombudsman has seen since 2015 persists in some correctional facilities.

Other subjects, which have been covered in special reports, also engage the Québec Ombudsman in its capacity as the correctional watchdog:


In a report tabled on February 18, 2016, the Québec Ombudsman concluded that the detention conditions of detainees in Nunavik are unacceptable and that crime prevention measures are woefully lacking.

These are the findings of a sweeping investigation conducted in three Nunavik villages—Puvirnituq, Akulivik and Kuujjuaq—located north of the 55th parallel.

Although the investigation was aimed at determining if detention conditions respect detainees’ rights, the Québec Ombudsman was quick to see that the deficiencies in places of detention stemmed from a much broader problem that affects both the administration of justice and crime prevention. As a result, these three aspects were the subject of the Québec Ombudsman’s special report.

Further to the investigation it conducted, the Québec Ombudsman made 30 recommendations to the Ministère de la Sécurité publique and the Ministère de la Justice. 


On March 21, 2018, the Québec Ombudsman released a special investigation report on the consequences of the increase in intermittent sentences in Québec correctional facilities. Its findings included the following:

  • Inadequate detention conditions (overcrowding, incarceration in premises not intended for that purpose, insufficient bathroom facilities);
  • Even worse conditions for female detainees;
  • Increased risk for tension and violence;
  • Harmful conditions for all detainees due to overcrowding during peak periods;
  • High number of detainees shuttled from one facility to another; and
  • More strip searches.

In its report, the Québec Ombudsman made 17 recommendations, most of them to the Ministère de la Sécurité publique and two to the Ministère de la Justice. They were aimed at making the detention conditions of people serving intermittent sentences tolerable.


A person incarcerated in a Québec correctional facility must obey certain rules designed to foster a safe and orderly living environment. Detainees who fail to comply face a disciplinary process.

The Québec Ombudsman saw that there were problems with the disciplinary process in certain facilities: lack of access to documents that enable clear understanding of the nature of the alleged breaches; ignorance of disciplinary process rules by the staff who are supposed to enforce them; arbitrary reporting of violations; failure to specify maximum deadlines for seeking recourse; failure to summon detainees; and restrictive interpretation of the right to a witness or to an attorney. But, most importantly, the composition of the discipline committee provided for in the normative framework is not adequate to guarantee impartiality or the appearance thereof.

To ensure respect of the principles of procedural fairness in the disciplinary process, the Québec Ombudsman made fifteen recommendations to the Ministère de la Sécurité publique.
The Canada OPCAT Project: Shining a spotlight on Canada

by Matthew Pringle
Initiator - The Canada OPCAT Project.

It is frequently said that even the grandest of projects generally start off small. As civil society initiatives go, the Canada OPCAT Project is unquestionably small, minuscule even (comprising just one part-time voluntary person with somewhat challenged IT skills), yet it still has a significant way to go to prove its mettle. Nonetheless, in its newly assumed role as an online information hub seeking to promote the merits of the OPCAT in Canada, interest in the website has been pronounced, both at home and abroad. 

The Canada OPCAT Project came to see the light of day over the past summer and in its short lifetime has hearteningly generated no end of positive feedback among detention monitoring and human rights experts alike. In the coming months the project is seeking to build on these modest, but promising beginnings and gradually widen the scope of its activities.   

A primary motivating reason for the creation of the Canada OPCAT Project website was the spectacular paucity of information in the public domain about any on-going developments about Canada’s repeatedly stated intention to ratify the OPCAT (as the Optional Protocol to the UN Convention against Torture is affectionately known to most of us). 

After conducting in-depth research into the state of OPCAT ratification in Canada earlier in 2018, it became immediately apparent to this writer how little up-to-date information about the instrument existed in the public sphere in the country, particularly outside specialized circles. 

Mind the ‘OPCAT Information’ Gap.

In a nutshell, it is this gap in information which the Canada OPCAT Project seeks to plug. Quite simply, it aims to do so by harvesting as much information as possible about the on-going steps to implement the OPCAT in Canada and place such information in the public domain, where it reasonably belongs.
 
An expedient means of obtaining such information has been through liaising with other national actors engaged in the issue, but also through the use of requests under the Access to Information Act. While the resort to such requests has not been unproblematic, they have, to date, elicited some useful
OPCAT-related information from government sources.

A secondary aim of the initiative is to corral in one domain as much relevant information as possible about available OPCAT related resources. Publications and tools about the putting in place of National Preventive Mechanisms as well as about detention monitoring/torture prevention are presented in the website’s ever lengthening and increasing digital pages.

In doing so, the website pulls together in one online location materials produced by specialist organizations as diverse as Amnesty International, Association for the Prevention of Torture, Dignity, European Committee for the Prevention of Torture, ICRC, Ludwig-Boltzmann Institute for Human Rights, OSCE-ODIHR, Penal Reform International, UN Subcommittee on Prevention of Torture and others. As the website has no affiliation with any particular organization, it is free to showcase materials from different sources in one place, like a one-stop torture prevention shop no less (for which there is never an invoice at the end).

The website also features a small, albeit expanding array of audio-visual and campaign materials, which will hopefully fire the imagination of more activist readers. Thus, even if you are not especially riveted by Canada-related OPCAT developments, the website may still be of distinct interest as an online information hub on the OPCAT and torture prevention. 

Big plans, little time.

As to the future, in the mid-term the Canada OPCAT Project aims to publish longer, slightly more academic policy papers on the OPCAT and Canada. While one such paper has more-or-less been completed, an application has recently been made for a small research grant to help finance another, requiring more in-depth research and travel. The project is also in the throes of undertaking a mapping-exercise of the magnitude and diversity of places of detention distributed across the vast territory of Canada, the results of which will be published on the website in the next month or so.

As a final point, even though the project acts primarily as an information hub and not an NGO, some limited direct lobbying activities are nevertheless anticipated, particularly vis-à-vis relevant UN human rights bodies. Contact has already been established with the UN Subcommittee on Prevention of Torture, while a short OPCAT-focused shadow-report will be submitted to the UN Committee against Torture in light of its scheduled examination of Canada in late November 2018 in Geneva, Switzerland.  

If anything, as a voluntary initiative the main limitation on the project is time! Like many readers, this writer has bills to pay and children to amuse, limiting its scope in practice. Having said that, the project seems to be serving a useful purpose in the Canadian context, and so is set to continue in its current modest shape and form.  

Canada to ratify the OPCAT…again?!

The bigger, more important question, however, of when Canada is likely to ratify the OPCAT remains entirely open. Simply put, your guess is as good as mine!

In May 2016, the then Canadian Minister of Foreign Affairs, Stéphane Dion, announced that "the OPCAT will no longer be optional for Canada." One might take this high-profile ministerial statement as a reason for optimism; disappointingly, however, Canada has been repeating a similar line for years, at the very least since it used the pledge of OPCAT ratification during its candidacy to the UN Human Rights Council in 2006.

Just a few short weeks ago Canada once again stated publicly before the international community that it would consider ratifying the OPCAT. On this occasion it did so during the UN Human Rights Council’s 39 th session on 21 September 2018 in Geneva when it reported back on its Universal Periodic Review (UPR) from earlier in the year. Astonishingly, during the May 2018 UPR, some 27 countries urged Canada to either ratify the OPCAT or consider the ratification of the instrument.

No doubt this same position will be repeated by Canada to the ten members of the UN Committee against Torture during its examination of Canada’s seventh periodic report scheduled for 21-22 November 2018. It can therefore only be hoped that the UN Committee drives home the message that the Canadian authorities should make good on any such commitments sooner rather than later.

Notwithstanding the slow pace of ratification, the Canada OPCAT Project is set to track the process in the months and years to come and remains intent on publishing information about any OPCAT related developments. If and when requested, it will happily provide interested domestic parties with advice and help make linkages with other centres of expertise. 

As an enthusiastic member of the ICPA’s newly established Network on External Prison Oversight & Human Rights this contributor also very much looks forward to collaborating with its readers in this as well as other human rights/country contexts. For the moment, however, please do visit the website and feel free to establish direct contact via email ( copcatproject@gmail.com ). Suggested materials for inclusion in the website would always be very much welcome.
Ombudsman Oversight and Correctional System Transformation in Ontario

by Paul Dub é
Ombudsman of Ontario.

Canada’s federal and provincial correctional systems have recently benefited from renewed focus on the human rights and mental well-being of inmates, particularly those held in solitary confinement – known as “segregation” in Ontario. The Office of the Ombudsman of Ontario has more than 43 years of experience in investigating and resolving complaints from inmates in the province’s correctional facilities (people serving sentences of two years or less). We were therefore uniquely placed to contribute to the province’s newly passed Correctional Services Transformation Act, 2018 , which promises to finally limit the use of segregation, among other important reforms.

There are roughly 8,000 inmates in Ontario’s correctional system, and like any other citizen, they have access to complain to their Ombudsman if they have an unresolved issue with a public sector body within our jurisdiction. The provincial correctional system is, collectively, the largest generator of complaints to my Office every year: In 2017-2018, we received 21,154 complaints in total, and 5,010 of them (almost one-quarter) were related to correctional facilities.

Most of these complaints – like those we receive about other public sector bodies throughout the province – can be quickly resolved, often by referring the complainants back to the institution in question. My Office has a team of some 22 people who deal with complaints about correctional facilities, and they prioritize any urgent matters involving inmate health and safety. This team includes early resolution officers, who handle the frontline intake of calls and letters from inmates, investigators who deal with more complex matters that cannot be quickly resolved, and members of our legal team as needed.

Along with senior managers, they work proactively with the facilities and the Ministry of Community Safety and Correctional Services to track complaint trends and nip issues in the bud. As part of this, members of our senior management team meet with top Ministry officials and facility staff on a regular basis to alert them of any brewing problems we have heard about in corrections. In addition, I visit correctional facilities around the province in person, along with members of our dedicated corrections team. I consider these regular visits to be an important part of our oversight role.

Our Office has a good, collaborative relationship with the Ministry and those who work in its facilities. Our staff are able to access inmate records, for example, to assess complaints and determine whether inmates are receiving appropriate medical care (the most common type of complaint we receive). We can also monitor whether institutions respond adequately to the issues raised.

Through this approach, we are able to identify and investigate potential systemic problems – as we did recently when we noticed persistent gaps in the Ministry’s placements and tracking of inmates in segregation. We began monitoring the issue in 2013, when we were contacted by an inmate who had been held in segregation for more than three months without a valid reason. Our inquiries determined that neither the facility or the Ministry could document that the required reviews of the inmate’s placement had been done. 

Over the next three years, we received more than 550 complaints from inmates along these lines. One man had been in segregation for more than three years at various facilities, and was becoming suicidal. Several others said their mental health was at risk. A number did take their own lives. When we flagged these and other cases to senior staff at the Ministry and the institutions, we found some were not even aware of the legal requirements for reviewing and reporting such placements.

In the spring of 2015, the then Minister announced a review of segregation policy, and my Office made a submission to this review, recommending that indefinite segregation be abolished, and that new ways of housing inmates be developed, along with an independent review and oversight system to monitor their placements and well-being. Other expert stakeholders, including the federal Office of the Correctional Investigator of Canada and the Ontario Human Rights Commission, made similar recommendations, reflecting the minimum standards set out by the United Nations in its Nelson Mandela Rules, which prohibit indefinite (15+ days) placements in solitary confinement.

In October 2016, my Office became aware of an inmate who had been in segregation for more than four years, awaiting trial on a murder charge – without the proper reviews and oversight by the Ministry. After reviewing this case and the systemic issues underlying the hundreds of other complaints we had received on this issue, I announced a formal investigation.

We found that on any given day, about 560 inmates in Ontario were segregated for 22 hours per day or more – including many who are merely awaiting trial; not convicted of any crime. We found that the Ministry’s systems for tracking segregation placements were error-ridden and inaccurate, and that oversight was severely lacking. Numerous vulnerable inmates were left isolated for long periods without the proper reviews, contrary to law. For example, whenever any inmate is in segregation for more than 60 days over a 12-month period, a detailed report is supposed to be sent to senior Ministry staff, identifying any potential adverse effects on the inmate. But our investigation revealed no such report had ever been done.

My report, Out of Oversight, Out of Mind , was issued in April 2017, and the Ministry accepted all 32 of my recommendations. These included that “segregation” be clearly defined, strictly limited, rigorously tracked and publicly reported, and that the Ministry improve the training and technology available to staff for tracking placements.

Several of these recommendations have since been addressed by the Ministry, and others are expected to be implemented through the new Correctional Services Transformation Act, 2018 , which was passed in May 2018 but has not yet been proclaimed in force. The new law codifies the definition of “segregation,” and establishes a cap on the length of placements, as well as independent reviews to scrutinize them.

Senior Ministry officials continue to report back to my Office on the status of my recommendations, as the new government and Minister (elected in June 2018) complete their review of the new legislation prior to bringing it into force. Our monitoring of complaints from inmates is also ongoing, as we look for ways to assist facilities and the Ministry in implementing these reforms.

Ontario’s advances in this area may have been years in the making, but they have the potential to make this province a world leader in progressive corrections administration. As it always has, my Office will be there for those in all aspects of the correctional system, to hear their concerns, monitor changes, and offer constructive proposals to ensure it is functioning as it should. 
Independent Review of Ontario Corrections: Backgrounder

by Howard Sapers
Independent Advisor, Independent Review of Ontario Corrections.

The Independent Review of Ontario Corrections provides arm’s length advice and recommendations on reforming Ontario’s adult correctional system. The Independent Review Team is led by Mr. Howard Sapers who was appointed to the position of Independent Advisor in October 2016 following a number of high profile media reports highlighting alarming conditions of confinement in Ontario’s provincial correctional facilities. Some of these issues included:

  • Inhumane conditions of incarcerations such as inmates sleeping in shower cells and inadequate health services;
  • Overcrowding and the increased incarceration of inmates with mental health concerns;
  • Numerous lawsuits including class action suits; and, 
  • An alarming increase in segregation numbers with some individuals simply forgotten in segregation.  

The public outcry related to segregation reached new heights in the fall of 2016 when the media reported on the case of Adam Capay – a 23-year-old Indigenous man who had spent over 1,500 days in segregation waiting for his trial. Both the former Minister of Community Safety and Correctional Services and the former Premier of Ontario publicly denounced his treatment.

Soon thereafter, the Independent Review of Ontario Corrections was formed. Mr. Sapers officially began his appointment in January 2017 and was tasked with identifying opportunities to reform Ontario’s adult correctional system by closely examining both the use of segregation in Ontario and broader correctional practices in need of transformation. The activities of the Independent Advisor are independent of the government and have played a significant role in reforming Ontario’s correctional system. As per his public Terms of Reference, the Independent Advisor’s mandate is threefold:

  • To provide a report with advice and recommendations on immediate steps that can be taken to address pressing issues related to segregation, including advice and options on an external oversight function; 

  • To provide a second report that supports comprehensive corrections reform and the objectives of integrated service delivery, rehabilitation, and reintegration including recommendations on legislative and regulatory reform; and, 

  • To work with the ministry on developing a phased implementation plan.

To date, the office of the Independent Review of Ontario Corrections has publicly released three reports emphasizing the values of safety, respect, dignity and legality while providing written advice that helped inform the legislative drafting process of the new Correctional Services and Reintegration Act, 2018 . Currently, the Independent Review of Ontario Corrections is working on a fourth report related to institutional violence in Ontario’s correctional institutions.

Segregation in Ontario

The Independent Review of Ontario Corrections’ first report, Segregation in Ontario , was completed within 60-days of the commencement of the Independent Advisor’s appointment. The report was publicly released by the Ministry of Community Safety and Correctional Services in May 2017. This report made 63 concrete recommendations based on a number of key findings related to Ontario’s segregation policy and practice including a lack of clear definitions and standards, disproportionate impacts on vulnerable populations, issues with current ministry data collection and records management practices, as well as challenges regarding correctional infrastructure and staffing. The 63 segregation-focused recommendations included:

  • The need for a new legal and policy framework;
  • Improved procedural safeguards, transparency and oversight including the introduction of an Inspector General for corrections;
  • Elimination of indefinite segregation;
  • The need for a definition of segregation and conditions of confinement;
  • Enhancing respect for human rights within corrections;
  • Resources for staffing, infrastructure and information management; and,
  • Segregation placement restrictions for mentally ill and other vulnerable populations.

Corrections in Ontario: Directions for Reform

The Independent Review of Ontario Corrections’ second report, Corrections in Ontario: Directions for Reform , was publicly released in September 2017 following a 90-day review and analysis of Ontario’s adult correctional system more broadly. This report was based on a targeted examination of select correctional practices in Ontario that, when done properly, amplify a commitment to human rights. It reflected on Ontario law, policies, and practices in light of the evidence of “what works” in corrections and the underlying values of dignity, respect, and legality. The report contained 62 recommendations under the following themes:

  • The need for a principled and rights-based approach to all correctional operations, including searches, the inmate complaints process, inmate visits and the response to deaths in custody;
  • Enhanced evidence-based correctional practice, including appropriate institutional placement and community supervision, targeted and effective programming, and enhanced discharge planning and gradual, supported release;
  • The need to bring the management of pre-trial and immigration detainees in line with their legal status;
  • Addressing the over-representation of Indigenous peoples in Ontario’s correctional system; and,
  • The need for a new governance and service delivery framework for correctional health care.

Legislative Outline and Background Document

In late spring 2017, the Independent Review of Ontario corrections provided a detailed legislative outline and a background document to the Ministry of Community Safety and Correctional Services to help inform the legislative drafting process of a new correctional services act.

Throughout much of the fall and winter of 2017/18 the Independent Review of Ontario Corrections worked closely with the ministry on the drafting of the new correctional services act to ensure that many of the recommendations made by the Independent Review of Ontario Corrections were incorporated into the new legislation.

On May 3 2018 the Correctional Services and Reintegration Act, 2018 received Royal Assent.
Once proclaimed, it will repeal and replace the Ministry of Correctional Services Act.

Institutional Violence in Ontario: Interim Report

During Third Reading of the Correctional Services and Reintegration Act, 2018 , the Independent Advisor was tasked by the former Minister of Community Safety and Correctional Services to conduct an independent review of institutional violence in Ontario’s correctional facilities. It was requested that an initial report be delivered within 90 days. The Independent Review Team began its examination of institutional violence in Ontario correctional facilities in May 2018 and, in accordance with the former Minister’s request, undertook this review in consultation and collaboration with frontline staff and their elected representatives.

On August 13, 2018, the Independent Review of Ontario Corrections submitted its third report, Institutional Violence in Ontario: Interim Report to the Minister of Community Safety and Correctional Services. This report was publicly released in September 2018 and focused specifically on reported incidents of inmate-on-staff violence. It presented findings under the following themes:

  • Understanding Ontario institutional violence in context;
  • Data management, statistical trends, and reporting practices; and,
  • Exploration of evidence-based responses to mitigate institutional violence.

In writing the interim report, the Independent Review Team identified a number of areas in need of additional study and wanted to further engage Ontario’s correctional employees before any clear recommendations could be made to the ministry. The final report on Institutional Violence in Ontario will provide an in-depth analysis of some of the issues that emerged in the interim report.
Nova Scotia Office of the Ombudsman

by W.A. (Bill) Smith
Ombudsman - Province of Nova Scotia.

The Nova Scotia Office of the Ombudsman is an independent office of the legislature that oversees concerns or complaints regarding provincial or municipal government departments, agencies, boards and commissions. The Office has a broad and unique mandate, with its authority flowing from the Ombudsman Act and the Public Interest Disclosure of Wrongdoing Act , and their associated Regulations.

Concerns or complaints brought forward to the Office may be complex and sensitive, requiring investigation which generally focuses on individual complaint resolution, and improvements to policies and procedures. Own-Motion investigations (investigations initiated by the Ombudsman) address systemic concerns and may be initiated when the Ombudsman becomes aware of a pattern developing within a government agency or department. This type of investigation enables the Ombudsman to pursue issues and matters that may not necessarily be complainant driven but require an in-depth review. Policy reviews assist government bodies by Ombudsman Representatives reviewing policies and proposed revisions to legislation and regulations prior to implementation.

In addition to its traditional ombuds investigative and review role, the Office places emphasis on reaching out to potentially vulnerable populations to ensure they are aware of the Office and its specialized services. These populations include youth (with an added focus on children and youth in care and custody), seniors, and inmates of provincial correctional facilities. The proactive outreach includes regularly scheduled site visits to residential child-caring facilities (RCCFs), secure care, adult/youth correctional facilities, and provincially licensed long-term care (LTC) facilities.
Most of the work undertaken by the Nova Scotia Office of the Ombudsman falls under two service units within the Office - Investigation & Complaint Services (I&CS), and Youth & Seniors Services (Y&SS). Under I&CS, the Complaint and Assessment Analyst provides initial intake, assessment, and referrals, and creates records of all inquiries. Ombudsman Representatives conduct investigations, including Own Motion and systemic reviews. The I&CS unit addresses departmental services, adult corrections, municipal services, and many other inquiries and complaints. Under Y&SS, Ombudsman Representatives review, investigate, and report on the concerns of children, youth, parents, guardians, and those working in government child and youth residential care and custodial facilities. Ombudsman Representatives also examine issues and complaints affecting senior citizens, particularly those who reside in provincially licensed LTC facilities.

Eleven percent of all complaints handled by the Office of the Ombudsman in 2017-18 relate to complaints made by provincial adult inmates. In Nova Scotia, there are four adult correctional facilities incarcerating both sentenced inmates, and those remanded to custody pending trial. These facilities are the Central Nova Scotia Correctional Facility (CNSCF), the Southwest Nova Scotia Correctional Facility (SNSCF), the Northeast Nova Scotia Correctional Facility (NNSCF), and the Cape Breton Correctional Facility (CBCF). The Nova Scotia Youth Centre (NSYC) holds young people serving custodial sentences and remands, and the Cape Breton Youth Detention Centre (CBYDC) provides overnight/weekend detention services. Both the adult and youth facilities are visited on a regular basis by Ombudsman Representatives. The adult and CBYDC visits are scheduled on a quarterly and “as needed” basis, and the NSYC is visited on a monthly and “as needed” basis. During visits Ombudsman Representatives meet with inmates, Young Persons, staff, receive complaints, provide information or referrals, and promote the resolution of complaints through Correctional Services’ internal complaint process.

As part of their duties, Ombudsman Representatives educate inmates and Young Persons on Correctional Services’ internal complaint procedures and encourages use of existing complaint resolution mechanisms or appeal processes first, prior to making a complaint with the Office of the Ombudsman. In working with inmates, Young Persons, and Correctional Services staff to ensure an effective internal complaint resolution process, the number of complaints to the Ombudsman involving correctional services was reduced. Fewer complaints of this nature enable Ombudsman staff to address more complex or systemic issues.

The Office also has responsibility under the Public Interest Disclosure of Wrongdoing Act (PIDWA) and Regulations since 2011. The PIDWA provides provincial government employees and members of the public, with a reporting process to disclose allegations of government wrongdoing. A wrongdoing is defined as a contravention of provincial or federal statutes or regulations if the contravention related to official activities of the employee or any public funds or assets; a misuse or gross mismanagement of public funds or assets, (the Regulations further define gross mismanagement); an act or omission that creates a substantial and specific danger to the life, health or safety of persons or the environment; or directing or counselling someone to commit a wrongdoing. The PIDWA also provides protection from reprisal for persons making a disclosure.
Yukon Investigations and Standards Office.

by Eric Stevenson
Deputy Correctional Investigator, Yukon.

The Investigations and Standards Office (ISO) is a statutorily created office located within the Yukon Department of Justice. The Office carries out oversight of Yukon Corrections.

ISO is mandated by the Corrections Act 2009 to conduct complaint investigations, special and own motion investigations, hear appeals of inmate discipline and conduct inspections of the Whitehorse Correctional Centre (WCC).

The ISO consists of the Director Jeff Ford and Deputy Correctional Investigator Eric Stevenson. ISO draws upon additional investigative resources, intake and administrative support as needed.

ISO is functionally independent, reporting to the Deputy Minister of Justice. ISO publically releases annual reports and inspection reports on its webpage.
ISO had recently established an Early Case Resolution procedure, in order to more expeditiously review and resolve correctional client inquiries and complaints.
ISO is currently developing an inspection framework based on a preventative and human rights approach. This approach is intended to be similar to that taken by inspectorates in the United Kingdom, Australia and New Zealand.

Inspection and Annual Reports can be found at the following link:

Canada's Office of the Correctional Investigator

by Emad Talisman
Research & Policy Analyst, Office of the Correctional Investigator.

“There is a very high degree of tension at Kingston Penitentiary at this time. In fact, it appears to be almost at the point of explosion. We are doing all in our power to lessen the tension and to control the inmate population. There are, however, too many factors outside of our jurisdiction, which affect the situations, over which we have no control. […] Unless some immediate action is taken … I expect many serious incidents to occur in the very near future.”

From a letter dated January 18, 1971 from the Warden of Kingston Penitentiary to the Regional Director.

Three months after these words were penned, from April 14 - 18, 1971, a violent riot erupted at Kingston Penitentiary: six staff were taken hostage, two inmates were murdered, and most of the cell-blocks were destroyed. After an escalation of violent institutional disturbances in the late 1960s and early 70s, the Kingston Penitentiary riot forced Canadian lawmakers to closely examine the need for independent prison oversight.

On April 24, 1972, the Solicitor General of Canada, Honourable Warren Allmand, published the report of the Commission of Inquiry into the disturbances at Kingston Penitentiary . Among the Commission’s findings, “there was in the opinion of many of the inmates a necessity of recourse to violence as a means of redressing long-standing grievances and of calling those grievances to the attention of the public.”
Further, the Commission found that the Canadian Penitentiary Service (as the Correctional Service of Canada was known at the time) lacked a transparent and impartial outlet for inmate complaint: there was no effective system to air or redress legitimate grievances; no recourse to review the actions or decisions of institutional authorities; no mechanism to bring public attention to prison conditions; and treatment was often callous, abusive or degrading.

On June 1, 1973, in response to the Commission of Inquiry, the first Correctional Investigator for federally sentenced inmates was appointed. In 1992, the role of the Office of the Correctional Investigator (OCI) and its mandate as Ombudsman for federal offenders were enshrined in Part III of the Corrections and Conditional Release Act .
The primary function of the OCI is to investigate and bring resolution to individual offender complaints related to “decisions, recommendations, acts or omissions,” of the Correctional Service of Canada (CSC). The OCI also has a responsibility to review and make recommendations on CSC’s policies and procedures associated with the areas of individual complaints to ensure that systemic areas of concern are identified and appropriately addressed. As provided for in the Corrections and Conditional Release Act , the Correctional Investigator reports annually through the Minister of Public Safety and Emergency Preparedness to both Houses of Parliament ( click here for last year’s Annual Report ).

In 2017-18, the OCI had a budget of $4.7 million and employed 36 full-time staff. Investigators spent 352 days in penitentiaries, received 5,846 inmate complaints, conducted 1,828 inmate interviews, and had roughly 25,000 toll-free phone contacts (82,000 hours on the toll-free line). Additionally, the OCI conducted 1,487 use of force reviews as well as 137 deaths in custody and serious bodily injury reviews.
In 2018, the OCI received additional funding in order to increase investigative capacity to respond to the volume and complexity of mandated reviews and individual complaints, as well as to increase its focus on Indigenous corrections. As a result of this funding, the OCI will staff five new positions.

The OCI has six corporate priorities:

  1. Access to physical and mental health care.
  2. Deaths in custody.
  3. Conditions of confinement.
  4. Aboriginal issues.
  5. Safe and timely reintegration.
  6. Federally sentenced women.

In addition to the Annual Report, the OCI issues reports on systemic areas of concern. Last year, the Office carried out two key systemic investigations (see summaries below). In the coming months the OCI, in partnership with the Canadian Human Rights Commission, will be releasing a systemic report on older inmates in federal corrections.

Systemic Investigations from 2017/18


The OCI partnered with Ontario’s Office of the Provincial Advocate for Children and Youth (OPACY) in conducting an investigation examining the experiences and vulnerabilities of young adults 18 to 21 years of age in federal custody.
The partnership provided perspective on the trajectories of young people, how they come into conflict with the criminal justice system and how some “graduate” from the youth to the adult correctional system.
The report makes 20 recommendations. One recommendation was made by the Advocate’s Office and another was jointly supported by both offices. The CSC rejected the OCI’s recommendations.

Just recently a mandate letter was issued by the Minister of Public Safety to the newly appointed CSC Commissioner. This letter highlighted the importance of tailoring “services, interventions, assessment tools and correctional approaches” to address the needs of young adults in federal corrections.


Matthew Ryan Hines, age 33, died unexpectedly in federal custody following a series of use of force incidents at Dorchester Penitentiary on May 26, 2015. This report contains an assessment of what went wrong in this case, the adequacy of the corrective measures that had been taken, and how such events might be averted in the future.

Based on the information that was available, the OCI concluded that Matthew Hines’ death while in the care and custody of the federal Correctional Service was preventable. This investigation resulted in 10 recommendations. All the recommendations were accepted, including revising the use of force model to reflect a person-centered approach. 

Additional Resources: Website / Reports and Investigations
Selected Academic Articles
Deitch, M. (2010). Independent correctional oversight mechanisms across the United States: A 50-State inventory. Pace Law Review.

Abstract
This state-by-state inventory of independent oversight mechanisms for correctional institutions was initiated to provide a baseline understanding about the extent of such oversight in the United States. This project was a monumental undertaking as it involved identification and analysis of prison and jail oversight mechanisms in all 50 states and the federal system. This information has never been compiled previously. [...] The purpose of this report is to provide a quick reference guide for those stakeholders
interested in models of prison and jail oversight, and to show major gaps in the systems we have in the United States for monitoring prison and jail conditions and the treatment of prisoners. [ Link to Article ]

Padfield, N. (2018). Monitoring prisons in England and Wales: Who ensures the fair treatment of prisoners? Crime Law and Social Change.

Abstract
It is difficult to say whether prison life is ‘well’ supervised by judicial and other legal authorities in England and Wales. This article explores a number of important bodies which all have a role in monitoring what goes on in prisons: HM Chief Inspector of Prisons, Independent Monitoring Boards, the Prison and Probation Ombudsman, NGOs as well as the formal courts (including coroners’ inquests). It is particularly difficult to ensure the fair treatment of prisoners within a system which gives wide and discretionary powers to those who run prisons. The challenge is all the greater at a time when prisons are increasingly privatised, and services are subject to increasing competition. Prisons are run behind substantial walls, both solid and metaphorical. The subject is under-explored in the literature – little has been written on the effectiveness of prison monitoring, especially in the academic literature, and empirical studies are even rarer. This article seeks to question what effective monitoring might look like, questioning how ‘visible’ prisons and prisoners are to the outside world. There are many eyes looking inside the prison: but what do they see, and what are they meant to do about what they see? [ Link to Article]

Sapers, H., & Zinger, I. (2010). The Ombudsman as a monitor of human rights in Canadian federal corrections. Pace Law Review.

Abstract
An important challenge for many countries, including advanced democracies, is guaranteeing the human rights of its prisoners. The quality of regard to, and respect for, human rights may impact on the success of prisoners' reintegration and participation in society. A good balance between internal and external monitoring can prevent human rights breakdowns, detect violations when they occur, and rectify the situation to ensure that they do not happen again. Striking the appropriate balance between internal and external monitoring is not easy. Canada, like many other countries, has struggled with establishing and maintaining this balance. Even so, accountability and transparency in decision-making remains a fundamental challenge of a compliant human rights monitoring system. [ Link to Article]

Simon, J. (2018). Penal monitoring in the United States: Lessons from the American experience and prospects for change. Crime Law and Social Change.

Abstract
While independent penal monitoring has a history as old as the prison itself, the United States has historically lacked a robust system of monitoring at the federal, state and local level. Studies of the protection of human rights in prisons, and growing experience with robust monitoring systems, like those promoted by the United Nations through the Optional Protocol to the Convention Against Torture (OPCAT) and the Council of Europe highlight the peril for the United States which is not a signatory to OPCAT and has largely failed to create adequate independent systems of monitoring. When practiced routinely monitoring creates conditions that make extreme turns in penal policy less likely and protect human rights in prisons when populist pressures do build. [...] Instead of routine independent monitoring, the US has relied almost exclusively on judicial decrees, some of which involve independent monitoring. [...] As the US carceral state enters profound crisis of legitimacy monitoring, in prisons and in analog form across the carceral state institutions, can play a crucial role in making correctional governance both more legitimate and more effective at promoting the human rights of prisoners. [ Link to Article]

Zinger, I. (2016). Human rights and federal corrections: A commentary on a decade of tough on crime policies in Canada. Canadian Journal of Criminology and Criminal Justice.

Abstract
The present commentary documents how correctional authorities can capitalize on law-and-order politics, find new ways to advance their own agenda, and enjoy a certain degree of immunity from public scrutiny. It examines the impact on federal corrections of a decade of tough on crime policies in Canada, reviews correctional and conditional release statistics, and analyses trends that shaped federal corrections over that period. It also highlights how law and-order politics can influence the internal culture of correctional authorities and human rights compliance. [ Link to Article ]
Prison Ombuds... in the News!
Events Calendar
4th International Conference on Law Enforcement & Public Health / Oct. 2018 / Details
Asian and Pacific Conference on Prison Health / Nov. 2018 / Details
National Conference on Higher Education in Prison / Nov. 2018 / Details
American Correctional Association's 2019 Winter Conference / Jan. 2019 / Details
Correctional Medicine Workshop / Jan. 2019 / Details
Academic Consortium on Criminal Justice Health / Mar. 2019 / Details
Spring Conference on Correctional Health Care / Apr. 2019 / Details
Correctional Mental Health Care Conference / July 2019 / Details
American Correctional Association's 148th Congress of Correction / Aug. 2019 / Details
ICPA 21st AGM and Conference / Oct. 2019 / Details to be confirmed
National Conference on Correctional Health Care / Oct. 2019 / Details
ICPA 22nd AGM and Conference / Oct. 2020 / Details to be confirmed
New Publication!
The Omega Research Foundation and University of Essex recently published a guide titled Monitoring Weapons and Restraints in Places of Detention: A Practical Guide for Detention Monitors .

We thank the Canada OPCAT Project for bringing this publication to our attention, and for providing this useful summary: Click Here.

This publication along with the pocket book can be found in English, French, and Spanish: Click Here.
Phone: 1 (613) 990 8904 | Email | Fax: 1 (613) 990 9091