Indefinite Solitary Confinement Ruled Unconstitutional by B.C. Supreme Court

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about solitary confinement in Canada and are revisiting this issue given the recent decision from the B.C. Supreme Court striking down sections of the Corrections and Conditional Release Act (“CCRA”) that permit prolonged and indefinite solitary confinement in federal prisons.

WHAT HAPPENED?

In this case, lawyers for the British Columbia Civil Liberties Association and the John Howard Society of Canada were asking the Court to end administrative segregation in federal penitentiaries in Canada. The Plaintiffs argued that sections 31, 32, 33 and 37 of the CCRA were unconstitutional as they infringe upon an inmate’s rights and freedoms granted by the Canadian Charter of Rights and Freedoms (“Charter”).

The Correctional Service Canada (“CSC”) procedure known as administrative segregation (similar to solitary confinement) authorizes the placement of inmates in small cells for up to 23 hours a day without meaningful human contact. This type of segregation has no legislated time limits and is left to the discretion of the warden.

The B.C. Court ruled that the laws regarding administrative segregation violate section 7 of the Charter guaranteeing life, liberty and security of person. These infringing laws allow indefinite solitary confinement, prevent independent oversight of segregation decisions and deprive inmates from having a lawyer represent them at segregation review hearings.

The Court also ruled that these laws discriminate against mentally ill and Indigenous inmates contrary to section 15 of the Charter, which guarantees equality before and under the law and equal protection and benefit of the law without discrimination.

Justice Peter Leask wrote in his decision:

I am satisfied that the law … 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.

HARMFUL EFFECTS OF SEGREGATION

The B.C. Court heard extensive testimony from former prisoners, researchers and correctional officials who addressed the heath effects of administrative segregation. The Court held that solitary confinement places prisoners at significant risk of serious psychological harm and increased risk of self-harm and suicide.

Justice Leask emphasized that based on the evidence solitary confinement increases destructive symptoms and behaviours, including “anxiety, withdrawal, hypersensitivity, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, rage, paranoia, hopelessness, a sense of impending emotional breakdown, self-mutilation, and suicidal ideation and behaviour.”

The laws pertaining to solitary confinement were found by the Court to be overbroad and damaging to institutional security. Furthermore, the Court held that the laws authorizing solitary confinement do so in circumstances where lesser forms of restriction would achieve the same results.

The Court ruled that a procedure of prisoner segregation must include time limits. Time limits would “create the pressure to ensure that decisions about alleviating an inmate’s segregation were made and implemented promptly, while still allowing CSC to use the practice for short periods to address security concerns.”

International consensus has determined that 15 days is an ideal cap for segregation placements. Justice Leask did not prescribe a set number of days, but considered 15 days “a defensible standard”.

WHAT HAPPENS NEXT?

Justice Leask suspended his decision for 12 months to give the government time to draft new legislation, which must include strict limits on the amount of time an inmate can be segregated.

This B.C. decision requires broader legislative changes than the ruling made by the Ontario Superior Court last month, which we previously blogged about. In the Ontario case, the Judge held that the lack of independent review of prisoners placed in solitary confinement means that there is no accountability for the decision to segregate. Justice Marrocco put his decision on hold for a year to allow Parliament to make the legislative changes necessary. The Canadian Civil Liberties Association recently announced it would appeal this Ontario decision.

ORDER STOPPING ONTARIO FROM PLACING MENTALLY ILL INMATES IN SOLITARY CONFINEMENT

One day following this B.C. decision, Ontario announced an agreement between the Ontario government and the Human Rights Commission ensuring that inmates with mental health disabilities will no longer be placed in solitary confinement across the province.

This Order includes the process of properly identifying inmates with mental health disabilities (including those at risk of self-harm or suicide) and issuing appropriate alerts verified by professionals. The alert would indicate that alternatives to segregation must be considered for the particular inmate.

We will continue to follow the developments in the law regarding solitary confinement in Canada and will provide updates through this blog.

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please call Affleck & Barrison at 905-404-1947 or contact us online. For your convenience, we offer 24-hour phone services.