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The worrisome political developments in the United States should serve as a reminder to Canadians to be vigilant about the rule of law here and to care for the integrity of our own institutions.

The correctional system often escapes scrutiny because of its lack of openness and the unpopularity of incarcerated people. Prisoners are constantly reproached for not taking accountability for transgressions, yet the system itself is largely unaccountable.

In 2019, the federal government amended legislation to create a new accountability mechanism for the Correctional Service of Canada (CSC) alongside other reforms. For the first time, there would be independent external decision-makers (IEDMs) with an oversight role for prisoners who are separated from others for safety and security reasons. The goal was to end solitary confinement.

Well-documented data shows this goal is far from having been met. Other issues with the implementation of IEDM oversight remain unknown to the public. There is a pressing need for a full and transparent review of this oversight structure – including the quality and impact of decisions and whether decision-makers have been able to do their job without undue obstacles or pressures.

Reforms in light of constitutional human-rights violations

At the same time as new oversight was introduced, what were formerly called “administrative segregation” units were rebranded “structured intervention units” (SIUs). The law now sets standards to ensure inmates in these units can spend time out of their cells and have meaningful human contact daily, including through programs and services.

IEDMs, appointed by the public safety minister, assess the adequacy of such opportunities in individual cases. They also examine whether prisoners can safely return to regular penitentiary populations. Apart from making recommendations, IEDMs are meant to have actual decision-making powers.

The reforms were supposed to ensure the federal correctional system respects constitutional and international standards. Courts in British Columbia and Ontario concluded that administrative segregation violated the Charter of Rights and Freedoms because conditions amounted to solitary confinement. The courts recognized that prolonged isolation severely harms mental health. It risks causing permanent damage and significant behavioural impacts.

Oversight without transparency

Despite judicial recognition of the importance of external oversight, the government seems to have had little appetite to inform the public about the work of independent external decision-makers.

I was among the 12 people initially appointed. We were told not to share the news until after an official announcement. It was never made.

After some time, Public Safety Canada created a web page presenting a muddled overview of the role. Public Safety did not publish a 2023 report by senior IEDMs, which included information on operations and challenges. The government web page does not include summaries or examples of the thousands of decisions that have been issued. I released a sampling of redacted decisions to stakeholders, but it is not on the government site.

The use of solitary confinement continues in Canada

Solitary confinement continues in Canada under a different name

It’s time to end solitary confinement

Corrections bill lacks key provisions on judicial oversight

Written decisions by IEDMs provide insight into criteria analyzed, issues with the legislation, correctional service compliance with legal obligations, data reliability, operational issues in institutions, differences between decision-makers’ approaches and outcomes, and prisoners’ views. Privacy and security considerations limit what can be shared, but it is possible to responsibly provide meaningful information to the public.

Even a ministerial panel with an official reporting mandate had limited access to IEDM decisions. This lack of transparency means independent external decision-makers have themselves been essentially unaccountable.

Persistent isolation, but questionable support for effective independent oversight

The panel’s reports document significant failings, including excessive prisoner isolation and overrepresentation of Black and Indigenous people, as well as those with known mental-health issues, in the units. Its mandate has ended and has not been renewed.

In January, then-public safety minister David McGuinty said oversight would continue through the Office of the Correctional Investigator and independent external decision-makers. He didn’t mention that previous minister Dominic LeBlanc did not renew the contracts of certain IEDMs last fall (including mine). At the time, there were already positions that had long been vacant and IEDMs were overloaded.

The recent appointment of new individuals is a positive development but does not resolve all issues.

Public Safety would not share the criteria for reappointments. This raises questions about IEDM independence and the minister’s exercise of discretion. If external oversight was meant to overcome documented problems with institutional rubber-stamping, removing IEDMs who push CSC to provide evidence and improve its practices would be contrary to the intent of the 2019 reforms.

A lack of operational independence from the correctional service is another concern. IEDMs are paid as CSC contractors, have no budget and must request CSC authorization for travel to sites or meetings. Their email accounts are on the CSC network. Their administrative assistants are CSC employees. Most IEDM training has been CSC-led rather than independent.

IEDMs are vulnerable to interference and reprisals arising from institutional resistance to external oversight. An objective inquiry is needed to examine former and current external decision-makers’ experiences, and to determine whether those whose decisions were less favourable to CSC have been pushed out.

Legislation that needs improvement

The legislation put in place in 2019 is arguably too complex and has gaps, inconsistencies and ambiguity. For example, it paradoxically encourages SIU inmates who want their case externally reviewed to self-isolate in their cell so as to trigger IEDM jurisdiction. In some situations, it requires an IEDM to order an inmate be removed from a unit regardless of security risks. By establishing special oversight and standards for CSC-designated units, the law creates a perverse incentive for CSC to avoid placing inmates in structured intervention units, while isolation continues elsewhere.

Significantly, the legislation does not require public transparency and there are no enforcement provisions. If CSC illegally withholds information from an IEDM – or ignores a legally binding decision without seeking judicial review – the agency faces no repercussions. The prisoner concerned does not get an adequate remedy.

These are real problems. A better approach would holistically address systemic issues, be suited for the context and ensure meaningful remedies.

Review of reforms is overdue

The 2019 reforms should also be looked at because it is legally required. To comply with a deadline set in law, a comprehensive parliamentary committee review should already have started. But the law is unclear as to who is responsible for starting such a review, and it has not been done.

With a new minister of public safety, Gary Anandasangaree, sworn in, and Parliament returning, the time is ripe for the government to show leadership and to ensure the transformative goals of the reforms are actually achieved.

Reducing solitary confinement contributes to protecting incarcerated people’s human dignity, mental health and constitutional rights. It is good for public safety and supports rehabilitation. After all, most prisoners will return to the community.

The criminal justice system should truly promote the rule of law by ensuring our institutions are accountable and law-abiding. I recall a prisoner’s angry declaration during an interview: “You know what we learn in here? We learn that when you have power, you can do whatever you want.” That message is not one the correctional system, nor any public institution, should be sending.