Federal prison investigators press for changes in use of 'dry cells'

Both the present and former ombudsman for federal prisoners say the Correctional Service of Canada must make changes to a prison practice called "dry celling" — a recommendation the CSC has refused to accept for eight years. 

"In Canada, we don't send people to prison to be held in demeaning, undignified and painful confinement," said Howard Sapers, the correctional investigator of Canada from 2004 to 2016. 

"You're sent to prison to serve a sentence and to be prepared for release. And you can't do that while you're isolated in a dry cell under 24-hour surveillance."

"Dry celling" is a practice where prisoners are kept in a cell with the lights constantly on, without a flushing toilet or running water, and watched through a glass window and security cameras 24 hours a day, even while using the toilet. 

The expectation is that if an inmate has ingested or hidden contraband inside their bodies, the item will come out in their bodily waste. 

Court challenge

This week, advocates for criminalized women launched a court challenge against the use of dry cells in a court in Truro, N.S. The Elizabeth Fry Society of Mainland Nova Scotia is backing the challenge by Lisa Adams, an inmate at the federal prison the Nova Institution for Women. 

Adams was held in a dry cell for 16 days in May 2020 after guards alleged she hid contraband in her vagina. 

Eventually, a doctor's examination revealed that Adams had no foreign objects in her body. Her lawyers argue she suffered extreme stress, which aggravated some mental illnesses she already had.

Adams' lawyers have said her experiences "amount to torture." The CSC has said it will not comment on Adams's case as it is before the courts. 

Adams and her lawyers are asking the court to strike down the section of corrections law that permits the use of dry cells, arguing it is cruel and unusual punishment, and discriminates against women and people with disabilities such as mental illness. 

Recommendation on cell use

In the 2011-2012 annual report of the Correctional Investigator, Sapers recommended an "absolute prohibition on dry cell placements exceeding 72 hours."

In an interview in October, Sapers said he made the recommendation after gathering evidence from prisoners and their families, medical staff at the CSC, psychologists, corrections policy and international practices.

"Dry cell placement and other forms of restricted custody were constant themes that were reported to my office and many prisoners or their families would contact our office and they would talk about the arbitrary, punitive nature of it, the inconsistent application of these kinds of interventions — almost a capriciousness about when dry cells or other forms of restriction were being imposed," Sapers said.

He said that 72 hours is in some ways "an arbitrary figure," as other international jurisdictions use different time limits. 

"But what we wanted to make sure [of] is that the human rights, the dignity and the administrative fairness issues were all being appropriately dealt with," he said. 

In response to Sapers's recommendation, the CSC declined to place any time limit on dry cells in 2012 but agreed to some policy guidance, including having the warden of the institution review the placement daily. It said there had been incidents where offenders swallowed or reinserted objects, which took the need for dry cells beyond 72 hours. 

A renewed call 

Those oversight measures have not satisfied the current correctional investigator of Canada, Ivan Zinger.

In June, Zinger reissued his predecessor's recommendation to place a 72-hour limit on dry celling in the 2019-2020 annual report. 

He made the recommendation after his office investigated an incident where a male offender was kept in a dry cell for nine consecutive days — and no drugs or contraband were ultimately found. 

In its response to the 2019-2020 report, CSC again declined to place a limit on dry cells. It said inmates in dry cells must always be provided with bedding, food, clothing and toiletries, and are given "reasonable access" to medical, spiritual and psychological help.

It also said a medical professional must visit the inmate daily, as required by the latest legislative changes in Bill C-83, which amended some prison conditions last year.

"Dry cell placements exceeding 72 hours cannot be explicitly prohibited as it is more than feasible to delay bowel movement beyond 72 hours," the CSC's response read. 

Zinger declined an interview on the topic but released a Feb. 2020 letter he sent to CSC Commissioner Anne Kelly to CBC. 

In the letter, Zinger wrote that on average, dry cell placements are shorter than seven days, but told Kelly his office continues to get complaints of dry cell placements that appear to be "stretching improperly."  

"When these placements drag on for several days, great care must be taken not to violate the basic rights of the people subject to them," Zinger wrote in French, calling the conditions in a dry cell "by far the most restrictive imaginable — even more so than the conditions of administrative segregation."

He called on Kelly to implement the recommendation put forward by Sapers eight years ago, and further recommended that if guards believed an inmate had reinserted or re-swallowed contraband that she personally should have to authorize dry celling beyond 72 hours. 

'Less effective' for women

In Lisa Adams's court challenge, she has argued the law as it stands is discriminatory because objects are not expelled from the vagina, which could lead to longer dry cell placements for people accused of hiding objects in that cavity.

In Oct. 2011, the then-warden of Edmonton Institution for Women, Andrea Markowski, testified before the federal Standing Committee on Public Safety and National Security. 

"A woman's ability to hide items in her body cavity for long periods of time can impede our interdiction efforts. It certainly makes dry cell interventions ... a less effective intervention for us," she told the committee of MPs examining how drugs and alcohol enter prisons. 

Markowski also testified that women in prison do not have the resources to move hundreds of thousands of dollars' worth of drugs. She said women who smuggle drugs or tobacco in their body cavities are usually doing so in small amounts, trying to manage their own personal withdrawal symptoms or anxiety about going to prison. 

A last resort

Howard Sapers said dry cells may play a role in safe institutions, but they should only be used as a last resort and with the strictest possible oversight. 

He is unimpressed with CSC's response to his eight-year-old recommendation. 

"The Correctional Service of Canada would acknowledge the problems that we identified. They'd even accept the solutions that we offered. And then they dragged their heels on implementation," he said.

"There's always a lot of backsliding in these things. So it's a constant negotiation with the Correctional Service of Canada to get them to comply, not just with our recommendations, but often with their own policy framework."

Sapers thinks this may be an area where the federal government has a responsibility to examine the practice, but said immediate policy change can begin with the CSC.