Author: Lauren Salim, MA
August 28, 2024
The adult prison population in Canada is roughly 35,000 across 216 institutions (43 federal and 173 provincial or territorial institutions). This number excludes the roughly 500 youth in youth correctional facilities, as those facilities are governed by provincial child and youth services ministries.
The adult incarceration system in Canada is divided into federal and provincial or territorial jurisdictions. Federal correctional institutions are operated by the Correctional Service of Canada and house people who have been convicted and sentenced to two or more years. Provincial facilities hold people who are either awaiting trial or sentencing otherwise known as being held “on remand”, or people serving sentences that are two years or less in duration. Provincial facilities also have immigration detainees in instances where immigration holding centers are full or there is not a center locally or their file includes a history of criminal activity.
Tracking (In)Justice is a law enforcement and criminal justice data and transparency project focused on Canada. According to their data set, there have been 1,944 deaths in custody since 2000, and deaths in Ontario facilities have been on the rise since 2015. In fact, 41 people died in Ontario correctional institutions in 2021 which is double those that died in 2020. A representative from Tracking(In)Justice asserts that this rise is not significantly attributed to the COVID-19 pandemic given increased isolation within prisons. Instead, she asserts that this increase can be attributed to “declining mental health, inhumane conditions inside correctional institutions, lack of compliance from correctional officers and staff and inadequate health care."
In addition to concerns regarding inmate deaths, several other human rights issues have come to light as increasing attention is put on the criminal justice system, namely equal access to health care, the use of provincial prisons for immigrants across Canada, the overuse of remand, the over-representation of Indigenous inmates in correctional facilities, and excessive lockdowns and segregation in Ontario facilities.
Equal Access to Quality Health Care
When a person is federally incarcerated, they are no longer covered by the Canada Health Act until they are released. Provincial health plans also do not apply to them during their sentence. The Canada Health Act is the federal legislation in Canada for publicly-funded health insurance. It asserts the objective of Canadian health care policy, which is "to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers."
The United Nation’s Nelson Mandela Rules clearly state that the quality of health care provided to prisoners must align with the quality of care that is made available to the general population. By excluding federally incarcerated prisoners from the Canada Health Act, Canada is not compliant.
If federal inmates are not covered by the Canada Health Act, the provision of health services falls on the correctional system which means they would be responsible for either sending inmates out to hospitals for care [1] [2] which the correctional facility would then have to pay for, or providing health care and resources inside correctional facilities. As Catherine Latimer, the executive director of the John Howard Society of Canada, points out, if the facility is responsible for providing health care, “Security issues will always trump the health needs of the individuals.” The exclusion of inmates from Canada Health Act coverage has significant impacts on the care inmates receive, which is especially important given the correlation between incarceration and the need for mental health services. One former inmate and current researcher at Tracking(In)Justice stated, "If you don't come into jail with a mental health issue, depending on how you spend your time, you're definitely walking out with one."
Despite the exclusion of federal inmates from Canada Health Act coverage, provincial institutions in Nova Scotia, Alberta and British Columbia have ensured that provincial health care departments are responsible for prisoner care, instead of the correctional facilities. Hopefully, other provinces follow suit.
Immigrant Detention
The Canadian Border Services Agency (CBSA) has high levels of police powers and can arrest, detain, and conduct search and seizure. Unfortunately, CBSA remains “the only major law enforcement agency in Canada without independent civilian oversight to review policies or investigate misconduct,” according to Human Rights Watch.
Pre-pandemic, CBSA had been steadily increasing the number of immigrant detainees in detention centers. In the 2019-2020 fiscal year, over 8,000 people were in immigration detention across the country.
CBSA houses detainees in different types of centers. There are dedicated immigration holding centers that resemble medium-security prisons and are based in Ontario, Quebec, and British Columbia. Around two-thirds of detainees in 2016, 2017, 2019, and 2020 were held in these immigration holding centers. Many others were housed in provincial jails, most of which are maximum security facilities, alongside inmates serving short sentences and criminally accused individuals awaiting trial.
According to a 2021 report by Human Rights Watch, “Immigration detainees who are from communities of colour, particularly detainees who are Black, appear to be incarcerated for longer periods in immigration detention and they are often detained in provincial jails rather than immigration holding centers.”
At the start of the pandemic, CBSA increasingly released individuals in immigration detention in unprecedented numbers, indicating that detention centers are not the only way to manage concerns. Hopefully, positive change is on the horizon. Amnesty International and Human Rights Watch jointly created the advocacy campaign #WelcometoCanada to abolish immigration detention in the country.
Since the start of the campaign, all 10 provinces have opted not to renew their detention contracts with the Canadian Border Services Agency (CBSA). Prince Edward Island is the only one remaining with a current contract, which will end in September.
Excessive Use of Remand
The overuse of remand has been a frequent topic at the Canadian Supreme Court. Remand, as previously mentioned, refers to the practice of holding people who are either awaiting trial or sentencing. The Supreme Court has found that bail, a constitutional right, is not being sufficiently granted.
In Canada, arrested individuals have the right to a bail hearing within 24 hours. At the bail hearing, the judge or Justice of the Peace will decide if the person can be released on bail to reappear for trial and if they need to pose any limitations, or if the person is to remain in custody in what is called pre-trial detention, likely in a provincial jail.
The Canadian Supreme Court has also acknowledged that pre-trial detention has significant impacts on individuals including on mental health, loss of livelihood, and on their families and loved ones.
Provincial jails are maximum security facilities and most commonly house people who are serving small amounts of time. Because of this, they lack programs like recreational activities, school, and work opportunities that federal prisons have.
An increasing number of people are being held on remand in Canada. According to the John Howard Society, the “rate of pre-trial detention has more than doubled in the past 40 years and the number of people in pre-trial detention has quadrupled over the same period.”
The Canadian Charter of Rights and Freedoms Section 11 states that arrestees should be considered innocent until proven guilty and have the right not to be denied reasonable bail without a valid reason.
The Criminal Code of Canada Section 515(10) lays out the valid reasons why someone would be denied bail and held in pre-trial detention:
For public protection
To ensure attendance in court
To maintain public confidence in the justice system
If someone was held on bail awaiting trial, the time they were held can go towards their sentence should they be convicted. However, those found not guilty cannot get that time back. In the province of Ontario, “nearly 40% of those held on remand are not found guilty” and about 80% of the population in Ontario facilities consists of individuals being held on remand.
Indigenous Over-representation
Indigenous inmates comprise roughly one-third of the federal prison population despite only making up 5% of the Canadian population, according to the 2021 Census which asked people to self-identify. Indigenous women are even more severely over-represented in the federal prison system and account for “nearly half of the federal female inmates.
Indigenous peoples are also over-represented in maximum security facilities and in segregation units - a practice that was officially outlawed in 2019 because it creates or worsens mental health crises but continues on in practice - and Indigenous prisoners are less likely to receive parole, and are more likely to engage in self-harm and suicidal behaviours.
It’s not hard to draw parallels from the over-representation of Indigenous persons in Canada’s prisons to the not-so-distant past of residential schools and the 60s scoop and the lasting impacts these actions have on poverty rates and substance use.
The Corrections and Conditional Release Act of 1992 allows for the federal government to contract with Indigenous organizations to provide correctional services to Indigenous offenders in a culturally enriched and supportive environment on Indigenous land, called healing lodges. These lodges are more successful than prisons in addressing substance use issues. Unfortunately, in practice, these healing lodges are not as available or financially supported as one would hope - only 2% of inmates are housed in healing lodges and these lodges do not exist in Ontario or Atlantic Canada (the provinces of New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador).
A recent report calls for Indigenous offenders to be exclusively housed in healing lodges or other Indigenous supports, and for more federal support to be directed to such centers.
Lockdowns and Segregation in Ontario Correctional Facilities
The province of Ontario is in the spotlight for the overuse of lockdowns in provincial correctional facilities. A lockdown refers to “when inmates or detainees are kept in their cells for an extended period of time — possibly hours or days — and are unable to participate in daily activities, such as outdoor exercise, showers, phone calls or programs”. Lockdowns can happen during security incidents, but the province is under scrutiny primarily for the use of lockdowns as a solution for chronic staffing shortages.
There are currently two class actions, with more than 100,000 claimants between the two, against Ontario related to the use of lockdowns related to staffing shortages between 2009 and 2017. CBC Toronto filed a freedom of information request which showed that “there were an average of 440 full facility staffing-related lockdowns reported across the province each year between 2010 and 2017. That's on top of hundreds more "partial" lockdowns, where only certain sections of a facility were affected”.
Michael Weinrath, a criminal justice professor at the University of Winnipeg, stated that he hasn’t seen this practice as a solution for staffing shortages in other Canadian provinces. Weinrath is one of the experts listed in the class actions who submitted reports to the court. These reports also highlighted the long-term health effects of frequent lockdowns which can worsen mental health conditions and even create new conditions in prisoners.
Alongside lockdowns, the province is also being looked at for the use of segregation for inmates with mental health disabilities. The practice of segregation or solitary confinement was officially abolished by the Canadian government in 2019. It was replaced by structured intervention units where “inmates must be granted at least four hours a day outside their cells, including two hours of ‘meaningful’ human contact”. However, these units have still been found to be harmful to prisoners.
The Ontario Human Rights Commission is advocating the Ontario Human Rights Tribunal for a provincial ban on solitary confinement, or “segregation” in structured intervention units for those with a mental health disability alongside the development of an independent monitor to ensure compliance.
Concluding Comments
To improve the correctional system in Canada, the federal government needs to ensure prisoners and those being held on remand have equal access to health care. The federal government also needs to increase financial and moral support for healing houses as an alternative for Indigenous prisoners. Across all provinces, there needs to be continued momentum to ensure that provincial prisons are not being used to house immigrants. Finally, Canada must end the overuse of remand, excessive lockdowns, and segregation in all facilities.
Glossary
The 60’s Scoop refers to the mass removal of Indigenous children from their families where they were placed into the child welfare system to distance them from their culture. It is estimated that 20,000 Indigenous children were taken from their families and fostered or adopted out primarily to white middle-class families. The practice was at its height between the 1960s and 1980s.
Bail is “when a person charged with a criminal offence is released from custody while awaiting their trial. An individual can be released with or without conditions that they must follow during their release.”
A correctional facility refers to “a jail, prison, or other detention facility used to house people who have been arrested, detained, held, or convicted by a criminal justice agency or a court.”
A lockdown refers to “when inmates or detainees are kept in their cells for an extended period of time — possibly hours or days — and are unable to participate in daily activities, such as outdoor exercise, showers, phone calls or programs”.
Remand refers to holding persons (defendants) who have been charged with an offense and ordered by the court to remain in custody while awaiting a further court appearance.
Residential schools were “government-sponsored religious schools that were established to assimilate Indigenous children into Euro-Canadian culture”.
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