The Supreme Court of Nova Scotia recently ruled in a pair of decisions that it is unlawful to lock down imprisoned people due to staff shortages. Lockdowns are a practice of restrictive confinement that has become increasingly common. This is despite the fact that, under the United Nations Nelson Mandela Rules, those lockdowns meet the criteria for torture.
In November 2023, the East Coast Prison Justice Society raised alarm over institutional lockdowns at the Central Nova Scotia Correctional Facility in Dartmouth. One of the prisoners the society spoke with said, “things are worse than they have ever been.”
Lockdowns are common not just in Nova Scotia, but across Canada. Perhaps most notoriously, the Toronto South Detention Centre has been subject to numerous investigations surrounding its abuse of restrictive confinement.
Recent data collected by Ontario’s Ministry of the Solicitor General further demonstrates the extent of the problem in provincial institutions (no data is available on Nova Scotia). Between April 1, 2021 and March 31, 2022, 15,929 individuals, out of a total of 29,693 people in custody, spent at least one day in a unit that was regularly locked down for 17 hours or more per day. These trends are relatively stable and consistent across provinces.
The East Coast Prison Justice Society said they were increasingly concerned by the impact these conditions have on the physical and mental health and well-being of prisoners. Given the ongoing problem of lockdowns across prisons in Canada, what is the significance of the court’s rulings, and do they go far enough?
Loss of liberty and habeas corpus
The pair of rulings from the Nova Scotia Supreme Court found that the routine use of institutional lockdowns in the province’s jails to address staffing shortages is unlawful.
Two habeas corpus petitions were filed by Durrell Diggs and Ryan Wilband, both low-risk prisoners, who were subjected to cell confinement for 51 and 29 days respectively, often with no time out of their cells. These petitions argued the use of lockdowns was a violation of their Charter rights.
In Diggs’s case the court ruled: “It is not a ‘privilege’ to be out of one’s cell,” it is something imprisoned people are entitled to. The court ruled that the near-daily decision to put the jail on partial or total lockdown is unlawful and unreasonable.
The Mandela Rules state that being held in confinement for more than 15 days without at least four hours per day out of cell, two of which must include meaningful human contact, is prolonged solitary confinement and constitutes torture.
Nova Scotia’s correctional regulations state prisoners are entitled to fresh air for a minimum of just 30 minutes every day, which falls below the Mandela Rules threshold. According to the recent court ruling, Wilband likely received that minimum on only five occasions over 28 days.
Another man imprisoned at the facility told researchers:
“We are locked down every second day because of staff shortages. They let us out of cells in groups, sometimes two or three, sometimes eight. One time the whole range at once was let out, but not usually. Some days no one gets out of their cell at all. The guards say how many people will be let out, but it is up to the prisoners as to who it is who gets out. The younger weaker guys do not even ask to get out because they know they will get beaten up if they take a spot from someone higher in the pecking order.”
Impacts of lockdowns
Research finds these kinds of lockdowns can have severe impacts on an inmate’s mental and physical health and well-being. Lockdowns disrupt communication with lawyers, contact with loved ones, access to programs, spiritual and cultural practice, hygiene and medical treatment. Inadequate time out of their cell is associated with worse mental health and higher suicide risk.
In another recent decision, Nova Scotia’s Supreme Court stated:
“Confining persons in custody — many of whom may have pre-existing mental health issues — to their cells for exorbitant periods of time does nothing to assist and support their rehabilitation…Even a person with robust mental health would find it challenging to be regularly confined to a cell, often for more than 20 hours per day, with little notice and no ability to earn more time out. This practice is dehumanizing, and it is setting these individuals up to fail. They deserve better.”
Why this ruling is important
Lockdowns are not new, although reliance on lockdowns in response to institutional issues including staffing and maintenance problems, has increased substantially since the onset of the COVID-19 pandemic. In our research we examine these practices and caution that without adequate oversight, they are likely to become a new normal.
Importantly, our research finds that lockdowns often replicate the torturous conditions of solitary confinement, a practice which was ended federally through Bill C-83, an amendment to the Corrections and Conditional Release Act, which received royal assent in 2019.
The recent Nova Scotia rulings are significant in that they state operational problems at the institutional level are not sufficient to justify lockdowns. Because a majority of lockdowns are caused by institutional operational issues, not prisoners’ behaviour, lockdowns constitute a “pain of imprisonment” which exceeds the conditions and objectives of custodial sentences.
Lockdowns compound the pains associated with imprisonment, including poor mental and physical health, which impacts community release, reintegration and recidivism.
More lockdowns mean people are subject to practices that amount to torture. Almost 80 per cent of the provincial prisoner population in Nova Scotia are in jail awaiting trial, presumed innocent of charges and denied pre-trial release for reasons as simple as a lack of community housing and other supports.
Recommendations
Many of the recommendations in the court’s ruling are about ensuring adequate staffing to avoid lockdowns. However, this does not address other operational issues that can trigger lockdowns. An alternative is decreasing prison numbers rather than increasing prison staff, and abolishing solitary confinement altogether.
In 2020, prison numbers were significantly decreased in Nova Scotia. In total, over 40 per cent of the provincially incarcerated population was released.
The judiciary, corrections, crown and defense counsels, along with community organizations, collaborated to cut provincial prison numbers. Some imprisoned people went to new supported community residency options, which proved successful even for people with the most complex needs.
Beyond ending these lockdowns, a whole-of-government approach must be taken to foster and sustain community-based alternatives to pre-trial detention and to support other initiatives preventive of imprisonment.