Relevant laws and policies re: confinement in Ontario jails

In this section, we outline the laws and policies that govern the conditions of confinement for immigration detainees held in provincial jails in Ontario. We focus specifically on conditions that affect those with mental health issues.

a. Access to healthcare

82

to immigration detainees on the basis that they are covered under the definition of “inmate” in the MCSA.409

Regulation 778provides that there shall be one or more health care professionals in each institution responsible for the provision of health care services and treatment,410 _{including a medical examination upon admission,}411 _{and reporting}

serious illness immediately to the superintendent.412 _{Where an inmate requires medical treatment that cannot be}

supplied at the correctional institution, the superintendent must arrange for the inmate to be transferred to a hospital or other health facility,413 _{or to a psychiatric facility pursuant to the OntarioMental Health Act.}414 _{The superintendent}

may direct that an inmate undergo an examination by a psychiatrist or psychologist for the purpose of assessing his/ her emotional and mental condition.415

A central theme of our interviews with counsel is that mental health support in provincial jails is woefully inadequate.

This view is confirmed by recent independent studies. In April 2015, the Public Services Foundation of Canada’s report,

“Crisis in Correctional Services: Overcrowding and inmates with mental health problems in provincial correctional facilities,” found that “incarcerated individuals are primarily serving out their time without access to any programs or assistance”416 _{and that “for those inmates with mental health and addictions problems the environment is almost}

guaranteed to further exacerbate these problems.”417

In 2013, Ontario settled a complaint file by prisoner Christina Jahn to the Ontario Human Rights Tribunal wherein she

alleged that she was placed in segregation for over 210 days at the Ottawa-Carleton Detention Centre because of her mental health issues, and was discriminated against on the basis of her mental health-related needs.418 _{As part of the}

settlement, MCSCS commissioned an independent study by Optimus/SBR Management Consultants on how to best serve female inmates with mental health issues [Optimus report].

The Optimus report notes that “the prevalence of mental health issues in correctional facilities represents a challenge for correctional facilities across Canada,” and that “there is general acceptance that a high percentage of inmates in Canada have a mental health issue, and that the percentage is continuing to increase.”419 _{The report was based in part}

on consultations with numerous stakeholders within and outside government, and states that, “across stakeholder groups it was recognized that there have been numerous challenges in responding to the needs of females with Major Mental Illness within the correctional system, and that currently, the system if not equipped to effective meet the needs and provide the right ‘care’ for these women.”

The Optimus report further noted that provincial jails were overly focused on control over care:

Acknowledging that the focus of corrections is ‘care, custody and control’, stakeholders across the board felt that too much emphasis was placed on ‘control.’ Control was seen by stakeholders as a trigger to the maladaptive behaviours that are often symptomatic of Major Mental Illness, which in turn, it was suggested, leads to ineffective responses such as seclusion and restraint. Behaviours, attitudes,

and the overall approach and framework need, it was suggested, to be reframed and transitioned from a punitive and custodial model to one that focused on recovery, rehabilitation, and engagement.420

Importantly, the stakeholders noted that “the first call of action should be to provide appropriate resources, prevention

and support in the community, and to divert these women out of the correctional system.”421 _{While the Optimus report was} particularly focused on female prisoners, it is arguable that the findings regarding the culture of provincial corrections

are equally applicable to men.

Transfer of migrants to provincial jails is also problematic because the social science evidence suggests that mental

health deterioration among detainees in jails is widespread; this was unanimously confirmed by the counsel we

interviewed. Access to programs and medical services lacks consistency. Furthermore, even where treatment is provided, it often consists of management of disruptive behavior through sedatives or antipsychotics, as opposed to addressing the underlying mental health issue. The focus is not on detainees’ well-being, but on controlling them for the purposes of managing the institution.

b. Segregation

Ministry of Correctional Services Act Regulation 778 outlines the rules for the segregation of an inmate in a provincial jail from the rest of the jail population.422 _{The Superintendent has the discretion to place an inmate in segregation for}

several reasons: if the inmate is in need of protection; for the purpose of protecting the security of the institution or the safety of other inmates; for alleged misconduct of a serious nature; or at the inmate’s request.423

Where an inmate is placed in segregation for alleged misconduct, the Superintendent shall review the case within 24 hours, and may release the inmate from segregation if it is no longer warranted.424 _{If segregation continues after} this preliminary review, the Superintendent shall review the case at least once every five-day period to determine

whether continued segregation is warranted.425 _{Where an inmate is not released from segregation after thirty days,}

the case must be reported to the Minister.426 _{Importantly, an inmate who is placed in segregation must retain, “as far} as practicable, the same benefits and privileges as if [he or she] were not placed in segregation.”427

A 2015 report from Amnesty International investigating immigration detention in the Netherlands notes:

Isolation is problematic both from a human rights and a medical perspective – especially in immigration detention. Human rights standards impose strict requirements on the use of isolation. It may only be applied in exceptional circumstances, if it is absolutely necessary, proportionate and non-discriminatory. Moreover, such cases require consistently good accountability. Medical research shows that isolation – even if short-term – can be detrimental to mental health. For this reason the mental health sector aims to reduce and eventually eliminate the use of isolation.428

As noted above, detainees with deteriorating mental health issues are sometimes placed in segregation, and they

may only be returned to general population when a psychiatrist determines that they are fit to do so. One counsel

84 A LEGAL BLACK HOLE: CANADA’S TREATMENT OF MIGRANTS WITH MENTAL HEALTH ISSUES