September 2017
​ISBN: 978-1-4868-0703-1 (HTML)

Independent Review of Ontario Corrections team

Core members

Howard Sapers – Independent advisor
Andrea Monteiro – Review team manager
Nathalie Neault – Senior advisor
Abby Deshman – Corrections advisor
Erin McConaghy – Administrative coordinator
Simrit Athwal – Administrative assistant

Contract support

Anthony Doob
Alexandra Hunter
Teja Rachamalla
Jane Sprott
Cheryl Webster

Ontario correctional services consulting support

Gregory Dranitsaris (on assignment from Richmond Hill Probation and Parole Office)
Francine Poulin (on assignment from Ottawa-Carleton Detention Centre)

Indigenous consulting support

Mandy Wesley (on assignment from the Ministry of the Attorney General)

Preface

Dignity. Respect. Legality. These values are integral to the delivery of correctional services. When paired with principles such as restraint in the use of state authority and a default to the least restrictive measure, the outcome is safe, effective correctional practice. Much has been written about the relationship between how people are treated and how they behave. Time and again the conclusion is the same – you reap what you sow. If the purpose of corrections is to contribute to a peaceful and just society by assisting those in conflict with the law to learn to live within it, then the work of corrections must be done in a way that models ethical, legal and fair behaviour.

Another way of saying this is corrections is all about human rights. In our free and democratic society, liberty is one of the most protected and valued rights. Our right to free movement and association, coupled with the protection from arbitrary interference with these rights, are enshrined in our constitution. International standards, the Canadian Charter of Rights and Freedoms and our courts are clear: individuals in conflict with the law retain all rights other than those necessarily limited by lawfully imposed restrictions or sanctions.

Public safety is the outcome of a criminal justice process that is focused on fair, proportionate responses to crime. The chances of achieving this outcome are greatly enhanced when every component of our justice system plays its part in a coordinated way, reinforcing the principles and values that define our society. This means that corrections, where perhaps the greatest risk of excessive use of power and state control exist, must be constantly vigilant to minimize this risk.

This report follows these themes. Within these pages, I identify some key areas of correctional practice that, when done right, amplify a commitment to human rights. The areas of practice are not exhaustive, nor are they meant to be. Not all of the issues examined are big and complex. Sometimes it is important to sweat the small stuff. Getting small problems fixed can help prevent big problems, or at the very least, mitigate the impacts of larger concerns. The recommended changes and enhancements can be thought of as springboards or levers. For example, getting family engagement right automatically means a number of other practices, such as information sharing, respectful visiting practices, and management and security routines, will change. Better defining search policy will impact attitudes about other inmate-staff interactions. There will not be a "mission accomplished” moment after which we can say the job is done. Ensuring fair, safe, and humane corrections requires commitment every day.

Howard Sapers, Independent Advisor

Executive summary

The present report provides a targeted examination of select correctional practices in Ontario. In each section I reflect 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 contains 62 recommendations under the following themes:

  • human rights and correctional operations
  • corrections and the presumption of innocence
  • evidence-based correctional practice
  • Indigenous people and Ontario corrections, and
  • health care service and governance in corrections

Correctional operations: An exercise in human rights

Correctional institutions control the most basic aspects of an individual's life, and as such have the power to directly and dramatically impact human rights. Each and every operational decision made by correctional authorities must be infused with the values of respect, dignity, and legality. This report examines five operational areas that should clearly reflect these core values: searches, inmate complaints processes, visits and family supports, inmate trusts, and responding to deaths in custody.

Searches

There is a clear need for a renewed legal and policy framework governing searches in Ontario correctional facilities that recognizes Charter rights as its starting point.

Compared to other Canadian jurisdictions, Ontario law imposes few limits on a wide range of institutional searches. Most inmate correspondence, for example, is subject to random interception and search, regardless of whether there is any reasonable belief that the communication conveys evidence of a crime or a security threat. Superintendents are granted broad authority to delete or refuse to send inmate correspondence. Despite the fact that Ontario law and policy does not permit censorship of letters to a range of elected representatives, inmates are told that this correspondence will be checked and returned to them if it contains, in the subjective opinion of the censor, "bad language,” or "unsuitable content.”

The use of strip searches in Ontario's institutions is particularly troubling. The Canadian Charter of Rights and Freedoms strictly limits the use of strip searches due to their inherently humiliating and degrading nature, and most jurisdictions in Canada have legislative provisions that limit the use of these searches in correctional institutions. Ontario does not. In fact, ministry policy requires Ontario's correctional institutions to carry out regular, routine strip searches of all inmates on a bi-weekly basis. Policy also requires segregation cells to be searched daily, and states that inmates must be strip searched when a cell search occurs.

Inmate complaints processes

A fair and expeditious complaints process that allows inmates to raise concerns about improper or illegal treatment without fear of reprisal is a critical component of a rights-respecting correctional system.

Establishing such a grievance system requires clear legislation and policy guidance. Unfortunately, there is almost no law directing how inmate complaints are to be handled in Ontario. There are a variety of internal ministry policies relevant to handling complaints, however, these policies lack clarity and coherence and do not align with the information provided to inmates regarding the complaints process. Most institutions do not have dedicated complaint forms, and when a written complaint is filed inmates are not generally given a copy and are not able to retain any written record of the complaint having been received, read, or dealt with. Despite the fact that policy specifically directs that verbal complaints must be logged in writing, this rarely occurs.

The vast majority of inmate complaints are not centrally collected or tracked either at the institutional or corporate level. At the institutional level, the entire system depends on individual slips of paper being handed to individual correctional officers who must pass on these pieces of paper to the appropriate individual manager. This makes it impossible for senior administrators to perform any type of trend analysis or use the information to identify areas of systemic concern. Although correspondence directed to the highest levels of the ministry is tracked for administrative purposes, there is no analysis conducted on the subject, source, outcome, or volume of inmate complaints.

In my Segregation in Ontario report, I introduced the notion of an independent corrections inspectorate to enhance the oversight of the province's correctional system. Quickly moving forward with this recommendation would provide a means to improve accountability for addressing issues that are repeatedly raised about the existing inmate complaints process in particular and overall policy compliance more broadly.

Visits and family support

Canadian correctional policy has long recognized the importance of maintaining an inmate's connections with friends and family. Correctional institutions in Canada and around the world have put in place a range of measures to help facilitate family contact and support, including child-friendly play spaces, open visiting areas that allow for barrier-free interactions, private family visiting accommodations for longer stays, and mother-child programs that prevent the separation of mothers and young children.

Ontario's correctional institutions offer almost none of these opportunities. The vast majority of visits between inmates and their loved ones in Ontario are limited to 20- or 40-minute sessions during which visitors and inmates are physically separated by a barrier. Ministry policy states that "in maximum security institutions, including jails and detention centres, open visits are not routinely approved”; 25 of the ministry's 26 correctional institutions are classified as maximum security. In many institutions, the visit areas are cramped and offer only closely spaced side-by-side fixed stools for both the inmate and the visitor. This makes it difficult and uncomfortable for children, the elderly, or those with mobility issues to visit and provides absolutely no privacy. The momentum in Ontario in recent years has been to decrease in-person visiting: Ontario's two newest institutions have almost completely replaced in-person visits with remote video visitation.

Ontario has no mother-child programs, limited prenatal and postpartum support, and inadequate policy about issues as basic as breast feeding. Women who give birth while provincially incarcerated will be separated from their newborns as soon as they are medically cleared to leave hospital.

Inmate trust accounts

Inmates must surrender all personal property in their possession – including money – to the superintendent upon admission. The institution is responsible for operating an inmate trust account for each individual; money in this account can be used to purchase personal items from the institutional canteen on a weekly basis. Traditionally the process of receiving money has been labour-intensive and prone to human error. While the ministry has leveraged technology to improve its ability to manage inmates' funds, inmates themselves cannot deposit money. There is no way to set up automatic deposits, and friends and family members who wish to put money into an inmate's account must do so in person or by mail. Numerous provinces have established systems whereby individuals can deposit money into inmates' accounts remotely over the internet or through community-based kiosks. While these systems are not without their flaws (concerns have been raised regarding the appropriate and convenient placement of kiosks, high user fees, and timely servicing of equipment), they represent an improvement over the status quo in Ontario.

Deaths in custody

Over 150 people have died in Ontario's correctional institutions over the past decade. A responsible and responsive correctional system must treat every death in custody as both a tragedy and an opportunity to prevent similar deaths in the future.

The majority of deaths in custody in Ontario are not subject to a thorough, fully arms-length, and independent review. Even where this does take place, the extent to which the findings lead to systemic reflection or change is limited. Aside from specific ministry-wide policy updates that might flow from individual inquests there is no process that allows for the identification of broader trends, analysis, or shared learning between institutions.

The Office of the Chief Coroner is required to investigate the circumstances of every death that occurs when an individual is in the custody of a correctional officer and must hold a full inquest if, as a result of the investigation, the coroner is of the opinion that the person may not have died of natural causes. In 2009, the Coroners Act was amended to remove the requirement for a mandatory inquest in cases of in-custody natural deaths. This has left a significant gap in the oversight of inmate deaths within Ontario's correctional institutions.

There is also almost no direction given to institutions regarding the information and supports that should be provided to families whose loved ones have died. Ministry policy and memoranda provide conflicting directions regarding whether superintendents must contact the next of kin when an inmate dies. There are no ministry directions, resources, or policies regarding a number of other relevant issues, including funeral, burial, or cremation costs.

Finally, the Independent Review Team was unable to find definitive figures on the number of individuals who have died while in custody in Ontario. The legislative definitions of a death in custody are narrow, and there are a variety of circumstances where the ministry and the Office of the Chief Coroner consider that an inmate death is not a death in custody.

Corrections and the presumption of innocence

Most of the people behind bars in Ontario's provincial institutions are legally innocent, awaiting trial or a determination of their bail. On any given day in 2015/16 two-thirds of Ontario's incarcerated population was on remand. Despite dropping crime rates and declining crime severity, the rate of pre-trial detention in Ontario has seen a long-term increase, rising by 137% over the past 30 years.

The treatment of the remand population should accord with their legal status: innocent. Instead, ministry policy and practice require that pre-trial detainees be held under highly restrictive – and ultimately punitive – conditions of confinement, regardless of their individual circumstances. Currently in Ontario, almost all remand inmates are presumptively classified as maximum security and held under maximum security conditions. Maximum security classification also means that many remand inmates have limited access to programs and other activities. Moreover, despite clear legislative authority for superintendents or the Ontario Parole Board to grant any inmate permission to temporarily leave an institution for medical, humanitarian, or rehabilitative purposes, ministry policy significantly restricts this discretion. Escorted temporary absences for remand inmates will only be considered "for medical or humanitarian reasons or other exceptional circumstances.” Unescorted absences are even more limited: they are only available if the remand inmate is on life support.

The treatment of immigration detainees also raises concerns. In 2016/17, there were over 1,200 immigration admissions to Ontario's provincial correctional institutions. Despite not having been accused or convicted of any crime, immigration detainees face indefinite periods of detention in maximum security settings where they are regularly strip searched, confined to their cells, and can receive only limited personal visits. Maintaining contact with family members overseas can be difficult: long distance overseas calls are not generally permitted. At least one institution excludes immigration detainees facing deportation from participating in work programs and ministry policy significantly restricts immigration detainees' access to temporary absences. Only one institution has dedicated units for immigration holds; in all other institutions, contrary to international standards, immigration detainees are held on units with other inmate populations.

Evidence-based correctional practice

There are decades of research and evidence about what works in corrections. An effective, evidence-based and humane correctional system must deploy targeted rehabilitative interventions based upon the principle of restraint and provide individuals with linkages to necessary social services. This report explores three areas of correctional practice: initial intake to institutions and community supervision, identifying and meeting programming needs, and gradual release and community integration.

Initial intake to institutions and community supervision

A thorough and careful intake process is a crucial first step in fulfilling the correctional system's mandate to provide appropriate care and custody. Every new admission must be subject to an individualized security risk assessment so that institutional placement and community supervision decisions can accord with the principle of restraint. The intake process must also identify the services an individual will need while under supervision or in custody.

Ontario does not have a province-wide institutional security risk assessment tool. Almost all inmates are placed in maximum security by default. Unlike other provinces, almost all Ontario institutions are maximum security: the province has no minimum-security institutions and the only medium-security institution is a specialized treatment facility.

The institutional intake process should also serve as the start of wrap-around service provision and discharge planning. For the majority of individuals, however, Ontario's institutional intake and admissions process captures only the most basic personal information. Placement on specialized units, including mental health units, special needs units and segregation, is often based on personal intuition and unverified information from previous custodial terms, a process that can easily reinforce stereotypes and result in both individualized and systemic discrimination. The vast majority of inmates in Ontario do not have access to effective discharge planning. Discharge planning services are not consistently provided and, where available, vary in their quality and form.

While the intake process for those supervised in the community is better, there are instances where policy or law applies mandatory conditions or supervision requirements that do not align with evidence-based practice or the use of least restrictive measures. Conditions and levels of supervision should be responsive to individualized risk assessments, not blanket policy prescriptions.

Identifying and meeting programming needs

Ensuring access to appropriate programming is a critical component of evidence-based correctional practice. General programs and activities – education, recreation, and work opportunities, for example – should be open to all. More intensive rehabilitative programs and interventions, however, must be carefully targeted. Evidence shows that providing this type of rehabilitative programming to individuals who do not present a significant risk to reoffend actually decreases their likelihood of successfully exiting the criminal justice system.

In Ontario participation in generalized programs is hampered by inconsistent availability and delivery. There is little dedicated funding for either staff or materials. The majority of general programs are run by community service providers, organizations, and volunteers who are usually required to supply the personnel, programming content, and any necessary supplies. Often, there is inadequate program space in institutions. Programing may be offered in hallways, chapels, "multi-purpose rooms”, converted cells, gymnasiums, or, most troubling, inside of wire mesh enclosures. Even when there is purpose built space, the space is subject to being "re-purposed” for pressing operational and administrative needs.

Programs can be cancelled or interrupted on short notice due to "operational requirements”. It is uncommon for a full slate of programs to be run on a firm or recurring schedule and neither inmates nor the staff can typically predict when a program will be offered. Ministry policy itself is a barrier for remand inmates and immigration detainees who collectively represent the majority of inmates. These populations are presumptively ineligible for custodial work opportunities and community programming.

For those who have higher risk profiles and are subject to longer custodial or community supervision terms, rehabilitative programming should be a core component of their sentence. Ontario's correctional institutions, however, do not offer a full range of rehabilitative programming, and the vast majority of inmates are not being proactively provided with individualized information regarding which programs would be most appropriate for their participation. Individuals supervised within the community do have personalized programming plans. However, program access is uneven and gaps exist for those with complex needs.

The ministry has recently taken steps to reinforce effective and evidence-based community supervision by initiating the Strategic Training Initiative in Community Supervision program. It is encouraging that the province is investing in evidence-based practices and supporting staff in delivering services.

Gradual release and community integration

Most individuals under the jurisdiction of Ontario's correctional system are supervised in the community. Of those who are incarcerated, the vast majority will be returning to their home communities within a matter of months, if not days. Even the briefest stay in custody, however, can result in a range of collateral consequences including loss of employment, loss of housing, missed medication and medical follow up, and the need for emergency care of dependents. All individuals who are incarcerated should be offered support to mitigate these impacts during custody and upon their release. For those subject to medium- to longer-terms of incarceration, the return to the community should be both gradual and supported.

Ontario's correctional system has a variety of tools that it could be using to enhance connections with the community and to provide for gradual, supported release. For example, inmates can be granted temporary absences from institutions to assist with their rehabilitation or for humanitarian or medical reasons. Despite the evidence of their utility, Ontario has dramatically decreased its use of temporary absences over the past few decades. In 1991/92 about 25,000 Ontario provincial inmates were granted temporary absences – a figure that dropped to 8,481 in 2016. The vast majority of the temporary absences that occur in Ontario's correctional system are for medical reasons, not for rehabilitation.

There are a number of structural factors that may be contributing to the low use of temporary absences. First, despite the broad legislative authority and wide range of possible purposes for temporary absences, ministry policy significantly restricts inmate eligibility. The process surrounding temporary absence applications and reviews also represents a significant barrier. With the exception of medical temporary absences, the inmate normally bears responsibility for initiating the temporary absence process, including compiling the extensive supporting information required by the ministry or the Ontario Parole Board. In addition, the timelines for compiling and reviewing these applications are often longer than an individual's time in custody.

Parole, which allows for the early release of a sentenced, incarcerated inmate subject to conditions and supervision, has traditionally been a cornerstone of gradual, structured release and reintegration. Throughout the 1980s and early 1990s, average supervision counts ranged between 1,200 and 1,800 parolees per month. Starting in 1993, however, there was a dramatic decline in the number of people being granted parole, and within 10 years the number of parolees in the province had dropped by 91.8%. Parole numbers never recovered: in 2015, an average of 207 individuals a month were supervised on Ontario provincial parole.

There are legislative provisions that appear to be designed to move individuals out of correctional institutions and into supervised parole release. Unfortunately, they are not working as intended. There is a mandatory legal obligation to determine whether parole would be appropriate for all inmates sentenced to six months or more. Although inmates can waive their right to a parole board hearing, this does not alleviate the duty of the board to determine the inmate's parole suitability. The Ontario Parole Board has not been conducting these proactive parole reviews and the ministry has not been forwarding the supporting information. Instead, board policy directs that if an inmate signs a hearing waiver, refuses to sign a waiver, or refuses to appear at the hearing, communicate with the board or relevant institutional staff, all parole consideration activity ceases.

The procedural fairness of Ontario's parole process is also a concern. The parole board is expected to provide written reasons for a decision as a basic component of procedural fairness. Parole applicants, however, are only given a "brief decision document” that does not include a full rationale for the parole decision. There are also concerns regarding whether the information placed before the board prior to a hearing is shared with the inmate – another core requirement of constitutional procedural fairness guarantees.

Parole procedure creates obstacles to timely gradual release. There are outstanding issues regarding the quality, timeliness and completeness of information placed before the Ontario Parole Board. The supports provided to inmates in the parole application process are inadequate. The expectation that inmates will be able to arrange and appropriately document a comprehensive release plan – from inside a correctional institution and within a short timeframe – is unrealistic. The timelines associated with preparing and reviewing parole applications are also a significant barrier: the majority of inmates will be released before they can even have a parole hearing.

The parole board has recognized many of these significant concerns and has initiated conversations with the Ministry of Community Safety and Correctional Services (MCSCS) as well as the Ministry of the Attorney General to ensure it has the required information and resources to properly fulfill its statutory mandate. New resources and a firm commitment to transformation will be required to ensure provincial parole in Ontario fulfills its role in supporting gradual release, reintegration and community safety.

A variety of community resources could be leveraged to increase the use of temporary absences and parole, and to assist with release and reintegration. In the 1990s the ministry funded a number of "Community Resource Centres” which operated as halfway houses. These community facilities were closed in the mid-1990s. Despite numerous recommendations for their reintroduction, the ministry has not taken any concrete steps in this direction.

The ministry has concluded a number of Community Residential Agreements (CRAs) with community agencies to provide housing and residential treatment or programming for inmates and community-supervised clients. Space at these facilities, however, is extremely limited. The few spaces that do exist are used almost exclusively by individuals who are already being supervised in the community. A wide range of community organizations, programs, and services have a wealth of experience assisting at-risk, marginalized populations. Ontario's correctional system could significantly increase its integration with existing community services and programs, enhancing rehabilitation, service provision, continuity of care and public safety.

Indigenous people and Ontario corrections

Indigenous people account for approximately 2% of the total population in Ontario and yet in 2016 represented 13% of those in provincial custody. The over-representation of Indigenous peoples in the correctional system has been well documented and is just one symptom of centuries of colonialism and discrimination.

Although the Truth and Reconciliation Commission's (TRC) findings and Calls to Action have breathed new life into efforts to meaningfully address systemic discrimination within corrections, much work is left to be done. The specific commitments made by Ontario's Correctional Services in response to the TRC's focus exclusively on service delivery for Indigenous inmates and those under community supervision. The TRC's findings and Calls to Action regarding Indigenous peoples and the correctional system went much further than simply embedding Indigenous services and supports, and included calls to eliminate the overrepresentation of Indigenous people in custody, create additional Indigenous healing lodges and increase supports for Indigenous programming in halfway houses and parole services. While some of the Calls to Action are directly aimed at the federal government, they remain relevant to provincial corrections and should be considered as Ontario moves forward with modernization of the provincial system.

All recommendations in this Report must be examined through an Indigenous lens to identify particular barriers and measures to mitigate their impact on Indigenous individuals. Considerations regarding the circumstances of Indigenous people and the ongoing impacts of colonialism and systemic discrimination in the justice system must also be proactively applied to decision-making processes within corrections. In the 1999 decision R v. Gladue, the Supreme Court of Canada directed courts to pay attention to the particular circumstances of Aboriginal offenders in all sentencing decisions. Despite clear legal decisions specifying that Gladue principles apply whenever an Indigenous person's liberty is at stake, it is unclear when and how Gladue factors are actually taken into consideration in the Ontario correctional context.

The current organizational structure for addressing Indigenous issues within corrections has limitations. Recommendations that the ministry create a permanent, central Indigenous unit have not been implemented. It is questionable whether, in the absence of a central and permanent Indigenous division with dedicated, high ranking leadership and decision-making authority, the necessary fundamental change will occur.

Native Inmate Liaison Officers (NILOs) provide services to Indigenous inmates within correctional institutions. These positions, however, are not consistently staffed and NILO caseloads vary considerably across institutions. Interviewees reported that NILOs carry heavy caseloads, receive little training, relatively low pay, operate without back-up staff to cover vacation or sick days, and have little to no administrative support. Policy differences between NILO' employers (often community organizations) and the ministry can undermine the underlying rationale for engaging external service providers in the first place.

Outside of institutions, the ministry contracts with individuals and First Nations communities to employ Community Correctional Workers (CCWs) who assist with community supervision in remote areas. There is no ministry policy outlining the role, responsibilities, or functions of CCWs, and the terms and conditions of the individual CCW contracts vary significantly. There are also significant staffing challenges: of the 44 available CCW positions in the Northern Region, only 18 (41%) are currently filled.

Health care service and governance

Despite laudable effort on the part of the clinical professionals working in corrections, Ontario struggles to meet the complex health needs of the incarcerated population. Important gaps exist in the health care services provided in provincial correctional facilities, with health care provision in some instances falling below the standards available in the community. The system is largely reactive, geared mainly at addressing the most acute and urgent medical conditions. At its root, it is a system that views health care as merely one among a number of services or programs offered to inmates, rather than as an essential right and a distinct government obligation.

At least part of the problem in Ontario can be traced to the current governance and service delivery structure. In Ontario the Ministry of Health and Long-Term Care (MOHLTC) is responsible for the vast majority of health care in the province. For the adult correctional population, however, responsibility for health care accrues to MCSCS, a ministry whose principal mandates lie in community safety and correctional services, not health.

The Government of Ontario has recognized the need for change in the way health care is provided in its correctional facilities. This is a welcome and encouraging development. There is an international and academic consensus that the responsibility for health care in correctional facilities must rest with the government authority in charge of health. Many jurisdictions around the world, including four provinces in Canada, have moved to transition responsibility for health care in their correctional facilities to their respective health authorities.

Reforming health services for this population and transitioning responsibilities to the MOHLTC is a complex, multi-step process. The relevant question, however, is not whether this should occur, but how. Ontario needs to clearly articulate a high level commitment to this transfer, set out a clear path to mapping the new system design, and develop a phased implementation plan.

Any proposed governance and service delivery models should be evaluated against their ability to provide a principled, health-focused approach to care in corrections and an enhanced accountability structure. Key principles against which proposed models must be measured include:

  1. a broad definition of health and health care
  2. ensuring equivalency, accessibility and continuity of care
  3. clinical independence
  4. integration with the provincial health care system
  5. robust accountability mechanisms, and
  6. a stable, health-focused employment environment for health care service providers within corrections

My preliminary review of the models identified to date suggests that some level of centralized governance through the MOHLTC will be necessary. Ultimately, however, this is a decision that will necessitate broader and more in-depth consultation, study and research. The need for more reflection and study, however, should not unduly delay progress.