Supreme Court of Canada to examine solitary confinement in federal prisons

OTTAWA — The Supreme Court of Canada will revisit provincial court rulings that declared federal provisions on the solitary confinement of prisoners to be unconstitutional — an examination that could have implications for new legislation intended to improve procedures for separating inmates from others.

The high court agreed Thursday to jointly hear the federal government’s challenges of the provincial appeal-court decisions.

The Supreme Court also said it would hear cross-appeals from civil liberties groups in each case that argue the provincial decisions did not go far enough.

The Ontario Court of Appeal ruled last March that prolonged solitary confinement constitutes cruel and unusual punishment, violating the Charter of Rights and Freedoms.

It placed a hard cap on the practice, saying inmates could no longer be isolated for more than 15 days due to “foreseeable and expected harm which may be permanent” from lengthy segregation.

In June, the British Columbia Court of Appeal said the practice breached the right to life, liberty and security of the person in allowing indefinite isolation and failing to provide external review of decisions to segregate inmates.

Although it asked the Supreme Court for permission to contest the provincial decisions, the federal government brought in new legislation it said would end the practice of segregating prisoners who pose risks to security or themselves. Bill C-83 came into force Nov 30.

The government says inmates requiring isolation will now be kept in “structured intervention units” that allow better access to programming and mental-health care and ensure human contact.

An advisory panel, chaired by University of Toronto criminologist Anthony Doob, has been appointed to monitor implementation of the new intervention units, said Mary-Liz Power, a spokeswoman for Public Safety Minister Bill Blair.

Independent, outside decision-makers with expertise in human rights, criminal law, Indigenous issues and administrative decision-making are able to review cases of inmates in the units, she added.

Rights organizations have criticized the changes as a mere rebranding of long-standing practices.

As usual, the Supreme Court gave no reasons Thursday for agreeing to hear legal arguments about the previous regime. But the high court’s coming review, for which no date has been set, will give the federal government, civil liberties groups and other concerned parties an opportunity to stake out their positions on the highly controversial issues.

The government is appealing to the Supreme Court because the B.C. and Ontario decisions on the former provisions “make statements on the law, including the charter, that have impacts beyond the case at hand,” said Power.

“It is important to have clarity in the law.”

The Canadian Civil Liberties Association, which took the federal government to court in the Ontario case, has argued the new measures will not end the cruel practice of prolonged solitary confinement.

The government, by pursuing its appeal in the Supreme Court, has made it clear that it will continue to fight for the ability to hold people in solitary for extended periods, the association said Thursday.

“The harms of keeping a person in isolation can include panic, depression, rage, hallucinations, self-mutilation and worse,” said Noa Mendelsohn Aviv, the association’s equality program director. “This is a terrible way to treat human beings, and it is contradictory to the goal of community safety.”

It is time to end the “broken and dangerous system” that leaves prisoners more damaged and less able to lead productive lives, said Grace Pastine, litigation director of the British Columbia Civil Liberties Association.

The association teamed up with the John Howard Society of Canada, which advocates for changes in the criminal justice process, to pursue the case against the government in the B.C. courts.

“We are heading to the country’s top court to argue that long-term, indefinite solitary confinement must be abolished in Canada,” Pastine said.

This report by The Canadian Press was first published Feb. 13, 2020.

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Jim Bronskill , The Canadian Press