The federal government is appealing the B.C. Supreme Court’s ruling that laws providing for the use of solitary confinement by the Correctional Service of Canada in federal penitentiaries are unconstitutional.
Justice Peter Leask, formerly of the B.C. Supreme Court, now retired, heard the case and earlier this year found that solitary confinement was counter to s.7 and s.15 of the Charter, declaring its use invalid. The case now moves to the B.C. Court of Appeal.
“The court’s remedy was the correct one, to strike down the law and require Parliament to fix it,” said Josh Paterson, executive director of the BCCLA, during a press conference Tuesday. “Frankly, it’s offensive that the government is requiring us to continue this fight.”
After the 2007 suicide of Ashley Smith, who was in solitary confinement for more than one year, the Ontario government initiated a coroner’s inquest and, in 2015, Prime Minister Justin Trudeau called on the Minister of Justice to apply its recommendations.
Still before Parliament is Bill C-56, which would put a 21-day limit on solitary confinement, moving to a 15-day limit 18 months after the legislation takes effect. The bill would appoint “independent external reviewers” to those held in solitary confinement for more than 21 days or 90 days in a year.
According to the government’s factum, the number of inmates in solitary confinement has dropped to 430 in 2017 from 815 in 2011, with the Indigenous population held in solitary confinement also dropping to 166 from 266. In 2017, there were 14,316 inmates in federal institutions.
Section 15 applies to equality before the law, without discrimination based on factors including race or mental or physical disability. Leask wrote in the decision that Correctional Service Canada’s use of solitary confinement “fails to respond to the actual capacities and needs of mentally ill inmates and instead imposes burdens in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage” and “fails to respond to the needs of Aboriginal inmates . . . perpetuating their disadvantage and thus violating s. 15.”
Leask’s decision includes data from a CSC report that states that “Aboriginal inmates consistently have an average length of stay in segregation that is greater than that for Black or Caucasian inmates” and that, while one-quarter of non-Indigenous men spent time in solitary confinement, one-third of Indigenous men did.
The government argues that Leask was incorrect in finding that solitary confinement was counter to s. 15 for inmates with mental illness or disability because Leask was relying on the notion that any period of solitary confinement for inmates with mental illness or disability infringed their s. 15 rights.
In the B.C. case, both sides had experts testify on the psychological effects of solitary confinement.
Those called by the plaintiffs said solitary confinement causes “delirium, psychosis, major depression, hallucinations, paranoia, aggression, rage, loss of appetite, self-harm, suicidal behaviour and disruption of sleep patterns,” according to the B.C. court’s decision.
The two psychologists called by the government countered, one testifying that “segregated inmates without mental illness do not experience debilitating psychological or psychiatric symptoms,” and the other that the effect is “much milder” than claimed by the plaintiff’s witnesses.
Leask sided with the plaintiff’s experts, writing: “I find the main body of scientific opinion on the subject of solitary confinement is that it is psychologically harmful to inmates.”
Section 7 guarantees “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
Leask found that review regime, which put the warden in charge of determining when solitary confinement should be employed, prolonged or stopped, was contrary to the principle of procedural fairness guaranteed by s. 7 and concluded that an inmate’s solitary confinement ought to be subject to a review independent from the institution administering it, invoking nemo judex in causa sua debet esse — no one should be a judge in his own cause.
According to the CSC report, between 2011 and 2014, 14 of the 30 inmate suicides in federal penitentiaries were of those in solitary confinement.
Regarding “life” and “security of the person,” Leask wrote that, given “the disproportionate number of suicides in segregation” and the findings of numerous studies, the causal link between solitary confinement and suicide “was a matter of common sense.”
According to the factum, the government will argue that Leask erred in his s. 7 analysis, “in considering isolated instances in which the provisions may have been improperly administered, rather than examining the legislation itself.” The factum states that “. . . any shortcomings in CSC’s application of the administrative segregation provisions are not an inevitable consequence of the [Corrections and Conditional Release Act]. Rather, if the CCRA is interpreted and applied in accordance with the principles and requirements set out above, it is Charter-compliant.”
Paterson said the BCCLA and the John Howard Society, which were also plaintiffs in the case, said they reject that the unconstitutionality of solitary confinement exists in the misapplication of the law and not in the law itself.
“We just fundamentally reject the idea that this is a problem of the administration of the law. And we do not place any trust in the government, because implicit in that claim is ‘OK, we recognize there are problems. We’ll fix them through better administration.’ No one has any reason whatsoever to trust that they would do that now when they have failed in doing that over decades,” he said.
Solitary confinement had already been ruled unconstitutional by the Ontario Superior Court in December of 2017. After ruling in Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, Justice Frank Marrocco set a 12-month delay for the decision to take effect, so Parliament will have to act by December.
“We obviously hope that the British Columbia Court of Appeal upholds and strengthens that ruling of British Columbia and my hope is that it's backed by a similarly strong ruling from the Court of Appeal for Ontario. That sends a very clear message to the federal government that the practice of prolonged administrative segregation — prolonged solitary confinement — is unacceptable in Canadian prisons,” says Michael Rosenberg, partner at McCarthy Tétrault LLP, who represented the CCLA in the Ontario case.
Rosenberg says it will be interesting to see whether the Ontario ruling is stayed pending the B.C. appeal.