The Supreme Court of Canada has granted the federal prison system a temporary reprieve from a lower-court order that would have imposed a 15-day limit on solitary-confinement placements by Saturday.
In an expedited decision, Justice Suzanne Côté issued an “interim interim” stay of a March 28 order from the Court of Appeal for Ontario that set 15 days as the maximum amount of time federal prisoners can remain in administrative segregation, a method of incarceration in which prisoners spend 22 hours a day in cells the size of parking spaces.
The stay was expedited to stave off implications of the looming deadline. It will lift as soon as the court renders a decision on the government’s interim motion on a more conventional timeline. The deadline for written arguments on that motion is April 25.
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The stay requests are tied to the federal government’s broader effort to make its case for prolonged administrative segregation. Earlier this week, it filed an application to have its appeal heard before the Supreme Court. In 2018, the court took an average of 5½ months to decide on such requests, called leave applications, of which roughly 10 per cent are granted.
“The recent Ontario Court of Appeal decision raises important legal, policy and operational issues,” said Scott Bardsley, a spokesman for Public Safety Minister Ralph Goodale, in an e-mail. “The decision makes statements on the law, including the Charter, that have impacts beyond the case at hand. It is important that we have the best guidance possible, and for this reason, Canada is seeking leave to appeal.”
The Canadian Civil Liberties Association (CCLA) launched the case in January, 2015, shortly after The Globe and Mail launched an examination of prisoner isolation methods, starting with an investigation into the death by suicide of Edward Snowshoe, who spent 162 days in solitary confinement.
In a landmark ruling last month, the Court of Appeal sided with the CCLA in finding that any term of solitary longer than 15 days amounts to cruel and unusual punishment, breaching Section 12 of the Charter of Rights and Freedoms. It gave the Correctional Service of Canada just over two weeks to impose the new limit.
In court filings, the government implies that imposing a 15-day cap at any time – and especially doing so by this weekend – would throw penitentiaries into a state of chaos. In an affidavit filed with the interim stay motion, Julie Blasko, the warden of Joyceville Institution in Kingston, states that 15 days would not give staff enough time to adequately assess potentially dangerous new inmates before having to turn them loose from isolation cells and place them among other prisoners.
Ms. Blasko goes on to state that some inmates refuse to move from segregation after 15 days, forcing correctional officers to use force. “There have been instances where a forceful attempt to remove an inmate from administrative segregation has been met with violence by the inmate towards other inmates or staff members, or self-harming behaviour, with the objective of being maintained in or returned to administrative segregation.”
In a response filed on Thursday, the CCLA contends the court’s expedited consideration of the interim interim stay motion wouldn’t allow time to cross-examine Ms. Blasko or other affiants cited in Ottawa’s motion. The rights group further states Correctional Service Canada was perfectly capable of capping segregation placements at 15 days without jeopardizing institutional safety as long as it devoted adequate staff to the job.
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“There is nothing in the record to justify the continuation of a practice that causes profound suffering," the response states.
As of March 28, there were 322 prisoners in federal administrative segregation. Last year, the federal government introduced Bill C-83 to address the legal shortcomings of the legislation by replacing administrative segregation with a new housing option called structured intervention units. Under the new regime, isolated inmates would be allowed to spend at least four hours a day outside their cells.
The bill was adopted by the House of Commons and is before the Senate.
Ottawa has committed $448-million to the new system to pay for 950 new staff and building renovations.
“While we are working to get the new system in place as quickly as possible, it will take some more time to recruit and train new staff, make the necessary infrastructure changes and establish the external independent review process,” Mr. Bardsley said.