Government appealing decision which found solitary confinement unconstitutional

The appeal comes after the feds recently passed a law abolishing the practice

Government appealing decision which found solitary confinement unconstitutional
Alison Latimer was counsel for the BCCLA and John Howard Society

Despite passing a law to end solitary confinement, the Government of Canada has applied for leave to the Supreme Court to fight a decision which found the practice unconstitutional.

In June, the federal Liberal government passed Bill C-83, which the government said eliminated the practice also known as administrative segregation. Also in June, the B.C. Court of Appeal found that Correctional Services Canada’s administrative segregation regime breached the s. 7 Charter rights of inmates. In September, the Government of Canada sought leave to appeal the decision to the Supreme Court.

Alison Latimer of Arvay Finlay LLP was counsel for the B.C. Civil Liberties Association, which, along with the John Howard Society, brought the case against the government. She says by arguing for the constitutionality of administrative detention at the Supreme Court, the government is showing it means to continue the practice.

Through Bill C-83 administrative segregation was abolished and replaced by “structured intervention units,” which allow inmates more freedom and human contact, “thereby addressing the concerns raised in this case,” says Latimer.

“If that was so, Canada’s appeal would be moot. It is therefore telling that Canada has sought leave to appeal in this case. That application suggests that Canada intends to continue the use of solitary confinement, including prolonged and indefinite solitary confinement, under a different name,” she says.

Bill C-83 will come into force at the end of November. A Spokesperson for Public Safety Canada told Canadian Lawyer the new system will be “fundamentally different,” that there will be independent external oversight and inmates will be entitled to minimum daily requirements of time outside their cell and opportunities for human interaction. Bill C-83 includes $448 million in funding, which will be used to hire “hundreds of new staff” and update prison infrastructure and $150 million of that funding will go to mental healthcare programs for inmates, he said.

But the Court of Appeal decision raises important legal, constitutional, policy and operational questions that will have implications beyond the case, he said.

“Canada is seeking leave to appeal to the Supreme Court in order to receive the best guidance possible in these matters, as well as to reconcile differences between the provincial court rulings,” the spokesperson said.

At the trial level, the BCCLA and John Howard successfully challenged the constitutionality of ss. 31 to 33 and 37 of the Corrections and Conditional Release Act. According to the legislation, the head of a correctional institution can place an inmate in administrative segregation if they have reasonable grounds to believe the inmate jeopardizes the security of the facility and those in it or association with other inmates will interfere with an investigation or put the inmate at risk. Decisions as to an inmate’s administrative segregation or their review are decided at a hearing arranged by the head of the institution, who can bar the inmate from attending if they are “voluntarily absent,” their presence would jeopardize the safety of other attendees or disrupt the hearing. The inmate is to be released at “the earliest appropriate time,” states the legislation.

The Attorney General of Canada appealed but the Court of Appeal affirmed the trial judge’s finding that ss. 31-33 and 37 of the act are of no force and effect under s. 7 of the Charter – granting life, liberty and security of the person.

However, the Court of Appeal disagreed with some aspects of the lower court’s findings and saw that in some cases the problem was with the administration of the act, rather than the act itself.

The lower court decided an inmate’s lack of a right to counsel in segregation review hearings and the transgression of s. 15 Charter rights for Indigenous and mentally ill or disabled inmates was enough to strike down the legislation. The Court of Appeal found the blame was on the CSC for failing its obligations under the act.

The lower court’s finding that Indigenous inmates’ s. 15 equality rights were violated was not challenged by the Attorney General on appeal. The Court of Appeal made no declaration on the issue, saying it was “unable to discern the precise basis upon which either the trial judge’s findings or the Attorney General’s concession rests,” so any declaration would be “vague.” The Court of Appeal found that the s. 15 breach against disabled and mentally ill inmates was not in the wording in of the act but the actions of the CSC.

Latimer says if leave is granted to the Supreme Court of Canada, her side will dispute the Court of Appeal’s finding that discrimination counter to s. 15 was caused by maladministration rather than the act itself.

“Inmates held in solitary confinement are deprived of meaningful human contact and caged in small cells for 22-23 hours a day. It puts Canadian federal inmates subject to it at significant risk of serious psychological harm, including mental pain and suffering, and increased incidence of self-harm and suicide,” says Latimer.

Latimer adds that despite her success with the Court of Appeal, the court did not go far enough to protect the constitutional rights of inmates. The court did not impose a limit on the number of days to which an inmate can be subject to administrative detention. If the Supreme Court grants leave to appeal, Latimer says her side will argue for a 15-day limit to the use of administrative segregation, which is what was ordered in an Ontario Court of Appeal decision in March.

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