Canada’s solitary-confinement laws are unconstitutional, judge rules

An Ontario Superior Court judge has ruled that current laws governing the use of solitary confinement in Canadian prisons are unconstitutional, concluding a landmark Charter application launched three years ago.

In a 39-page ruling, Associate Chief Justice Frank Marrocco, declared that the country's prisoner-isolation statutes violate individual liberty and security provisions guaranteed by section 7 of the Charter of Rights and Freedoms.
Implementation of the ruling will be delayed for 12 months to give Parliament time to amend the Corrections and Conditional Release Act.
Those section 7 violations could be tolerable so long as the prison system maintained a robust and independent review system that ensured each and every decision to place a prisoner in solitary confinement was done in accordance with the principles of fundamental justice, the judge ruled.
But instead, Justice Marrocco said, the federal system for reviewing segregation placements in Canadian prisons is unfair and unlawful – siding with the applicant, the Canadian Civil Liberties Association.
Prison wardens, or institutional heads, ultimately control the decision to place an inmate in solitary and the review process in place to determine the validity of that decision.
The process makes the warden both investigator and adjudicator, ruled Justice Marrocco, opening the entire review system to a level of bias that doesn't adequately protect an inmate's liberty and security rights.
"I am satisfied that the statutory review of the decision to segregate is procedurally unfair," ruled Justice Marrocco, "and contrary to the principles of fundamental justice because the procedure chosen provides that the Institutional Head is the final decision maker for admission, maintenance and release from administrative segregation and is the final institutional decision-maker of required reviews and hearings which occur immediately after an inmate is segregated."
The Canadian Civil Liberties Association launched the constitutional application in January, 2015, shortly after the British Columbia Civil Liberties Association and the John Howard Society of Canada filed a similar but unrelated lawsuit in Vancouver.
Together, the two cases have exposed the internal workings of prison policy to the public and sought to have the Correctional Service of Canada practice called administrative segregation ruled unconstitutional.
Administrative segregation is roughly analogous to solitary confinement, the controversial incarceration practice of isolating inmates in bathroom-sized cells for up to 23 hours a day with little meaningful human contact.
The CCLA argued throughout the case that sections 31 to 37 of the Corrections and Conditional Release Act, the legislation governing administrative segregation, are unconstitutional.
The government responded that while individual prisons may violate inmate rights from time to time, the legislation itself was sound.
Justice Marrocco agreed with the CCLA that placing an inmate in administrative segregation amounts to a significant deprivation of liberty and "imposes a psychological stress, quite capable of producing serious permanent observable negative mental health effects."
Justice Marrocco also sided with the CCLA in ruling that Canada does use solitary confinement as defined by the United Nations – isolation for "22 hours or more a day without meaningful human contact." Federal lawyers had debated the point, saying that Canadian prisons don't technically employ solitary confinement because a recent rule change allows inmates in segregation two hours a day outside of their cell plus a shower.
Several other key arguments put forward by the CCLA were less successful. Lawyers for the group had asked Justice Marrocco to prohibit solitary confinement for the mentally ill and inmates aged 18 to 24. They had also argued that the practice should be limited to 15 days, a threshold that would accord with United Nations guidelines.
While he presented an extensive critique of conflicting laws and regulations governing the admissibility of mentally ill inmates to solitary, Justice Marrocco said it didn't constitute cruel and unusual punishment, therefore falling short of a section 12 Charter violation.
He came to the same conclusion concerning the 15-day limit and the ban on younger inmates in segregation.
In June, the Liberal government introduced a bill proposing changes to the country's solitary confinement regimen. Government lawyers tried to derail both the CCLA and BCLA cases, saying the legislation would address key concerns raised in the lawsuits. Judges in both provinces tossed out those arguments.
The judge in the B.C. case has yet to release a ruling.

Patrick White
Globe & Mail
Dec 18, 2017