BC Supreme Court to Review Legality of Canada’s Use of Solitary Confinement

Written on Behalf of Affleck & Barrison LLP

A trial that began in British Columbia’s Supreme Court this week could potentially impact the use of solitary confinement in Canadian prisons.

The Trial: A Brief Backgrounder

At the core of the trial is a challenged filed against the federal government by the British Columbia Civil Liberties Association (BCCLA) and the John Howard Society of Canada, who argue that current rules around solitary confinement are inhumane and unconstitutional.

The federal government recently introduced a 15-day limit on solitary confinement; however, Josh Paterson, the Executive Director of the BCCLA, has said that this limit is merely a guideline beyond which a prison warden can provide justification in order to keep someone in confinement. Mr. Paterson has stated:

It amounts to no time limit at all. What we need to see is absolute time limits and caps because as we’ve seen, without a time limit the federal government has kept people in solitary confinement for years on end on the warden’s say-so… We know the new government is trying to make some changes. We don’t think it’s good enough and that’s why we’re continuing with this court case.

Notably, the United Nations considers solitary confinement for more than 15 days to be torture.

The Use of Solitary Confinement in Canada

There are currently two types of solitary confinement used in Canadian prisons:

  • Disciplinary segregation: segregation used as a punishment. This form of segregation requires a hearing, and has a time limit of 45 days.
  • Administrative segregation: segregation used more broadly, generally where inmates are in danger, either from other inmates or from self-harm.

The challenge specifically addresses administrative segregation, and follows a settlement that the BCCLA won for a Saskatchewan woman who had been held in solitary confinement in a British Columbia prison for more than 3.5 years. This case also follows public outrage over the plight of Adam Capay, a young inmate who spent almost 4 years detained alone in a plexiglass basement cell in the Thunder Bay District Jail here in Ontario.

Experts say that women, particularly indigenous and mentally ill women, are disproportionately affected by the negative aspects of solitary confinement. While women only comprise about 20% of the Canadian prison population, they are more likely than men to self-harm, and therefore more likely to end up in administrative segregation.

We’ve regularly blogged about solitary confinement and prison conditions. The issue of solitary confinement is now being investigated at all levels of government, in multiple jurisdictions, including by the Ontario Ombudsman, the Ontario Human Rights Commission, the federal government, and now the B.C Supreme Court. We will continue to follow developments in this trial, and will provide updates as they become available.

At Affleck & Barrison LLP in Oshawa, our firm and its predecessors have been protecting client rights since 1992. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights. Whatever the nature of your offence, we can help. Call us at 905-404-1947 or contact us online for a free consultation