A corrections officer opens the door to a cell in the segregation unit at the federal Fraser Valley Institution for Women in Abbotsford, B.C., in 2017.DARRYL DYCK/The Canadian Press
Simon Rolston is the author of Prison Life Writing: Conversion and the Literary Roots of the U.S. Prison System. He teaches at Langara College.
Joey Toutsaint is an Indigenous man currently serving an indeterminate sentence in a maximum-security prison. He’s spent more than seven years in different forms of solitary confinement, and isolation has had a profoundly damaging effect on him. His body’s covered with scars from his many incidents of self-harm, which have included trying to chew through his arm to open an artery.
When Mr. Toutsaint would self-harm, he’d be placed in an observation cell, which is another form of isolation – solitary confinement but under a different name. His mental health deteriorated, and as a result he spent more, not less, time in isolation. Eventually, he often refused to leave isolation because he’d grown so accustomed to it.
Mr. Toutsaint’s story is sadly not unique in Canada’s prison system. Far too many prisoners continue to be subjected to isolation conditions that constitute torture under the United Nations’ “Mandela Rules” and infringe on prisoners’ Charter rights, even after Bill C-83 was passed into law in 2019. Bill C-83 promised to eliminate the use of excessive isolation in prisons, and it introduced structured intervention units (SIUs), seemingly more humane forms of solitary confinement.
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But multiple government studies have demonstrated that SIUs are ineffective. As an influential 2021 report on SIUs concluded, “We think that the time has come for Canada to acknowledge that it still has solitary confinement and torture by another name.” SIUs have become a Potemkin village, masking human-rights abuses that disproportionately affect Indigenous peoples, Black Canadians, and mental-health sufferers.
This is why Canada needs S-205 (An Act to amend the Corrections and Conditional Release Act), which is known as Tona’s Law and is currently under consideration in the Senate. Tona’s Law – named after Tona Mills, an Indigenous woman who spent a decade in solitary confinement – seeks to make four crucial amendments to the SIU regime. First, it requires prison officials to seek court approval to keep someone in isolation beyond 48 hours, after which time irreversible psychological harm can occur. Oversight practices currently exist, but Correctional Service Canada (CSC) often simply ignores them. Judicial oversight, by comparison, would have teeth.
Second, Tona’s Law broadens the definition of SIUs so any form of isolation, like Mr. Toutsaint’s time in an observation cell, would fall under the jurisdiction of SIU regulations. Rules that applied to SIUs would therefore also apply to the different forms of isolationary practices that proliferated after SIUs were implemented, like dry cells, voluntary limited association ranges, and temporary detention ranges, which aren’t subject to the same monitoring and safeguards as SIUs and could be open to abuses.
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Third, Tona’s Law would prohibit the isolation of people like Mr. Toutsaint who have “disabling mental health issues.” The aforementioned 2021 report found that 28 per cent of prisoners who entered SIUs had a “mental health need.” Moreover, the government’s SIU advisory panel found that people with “deteriorating mental health” were subject to considerably longer stays in isolation. In other words, the worse someone’s mental health, the more likely they would be in an SIU cell – and quite possibly for a long duration – which can cause mental-health crises, including self-harm or even suicide attempts, as experienced by Mr. Toutsaint.
Finally, by more effectively using Sections 81 and 84 of the Corrections and Conditional Release Act, which provide pathways for Indigenous prisoners like Mr. Toutsaint to instead serve time in Indigenous communities or facilities, Tona’s Law would reduce the Indigenous population in Canada’s prisons and ensure fewer are held in SIUs – a system disproportionately affecting the mental health of people already suffering the effects of intergenerational trauma.
Repeated studies of SIUs have demonstrated that an amendment like Tona’s Law is needed to protect Canada’s imprisoned population – almost all of whom will, it should be noted, eventually be released. Is it not better and safer for Canadian society to release people from prison rehabilitated rather than profoundly traumatized by the state?