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Canada On solitary confinement, Ottawa seeks leave to appeal court ruling of 15-day limit

The federal government has applied to the Supreme Court of Canada for leave to appeal a recent ruling that imposed a 15-day limit on solitary-confinement placements within the Canadian penitentiary system, prolonging a four-year case that has put prisoner isolation on trial.

In court documents filed on Tuesday, the government seeks leave to appeal a lower court ruling last month that said placing prisoners in solitary confinement for more than 15 days constitutes cruel and unusual punishment, violating Section 12 of the Charter of Rights and Freedoms.

The earlier decision from the Court of Appeal for Ontario was the first time a Canadian court had placed a specific time limit on solitary confinement, and was hailed as a resounding win for the Canadian Civil Liberties Association.

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The rights group launched its challenge of solitary confinement in January, 2015, shortly after The Globe and Mail began an examination of prisoner isolation methods, starting with an investigation into the death of Edward Snowshoe after 162 days in solitary.

The lower court order is to go into force on April 13. Lawyer Michael Rosenberg, who is representing the CCLA in the case, said the government is also seeking an interim stay of the deadline.

“Canada’s application is nothing more than an effort to continue a practice that the Court of Appeal found to be cruel and unusual,” Mr. Rosenberg said in an e-mail. “The Court of Appeal ordered an end to prolonged solitary confinement in Canada’s prisons because this treatment is wholly inconsistent with the values of a free and democratic society.”

The Correctional Service of Canada did not respond to a request for comment sent late on Tuesday.

In its court filings, the government says the appeal court’s order interferes with other elements of the legislation governing the federal prison system, the Corrections and Conditional Release Act.

“The judgment will have the effect of creating a legislative void in respect of circumstances where the safety and security of the penitentiary continues to be in jeopardy beyond 15 days...” the government’s application states. “There is currently no alternative recourse to address these situations placing the safety and security of all federal institutions, the inmates and the staff at high risk. This concern does not appear to have been considered by the Court of Appeal.”

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The government also states that the appeal court’s decision will create a new standard for determining if a law is “grossly disproportionate” under Section 12 of the Charter.

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An appeal is pending in a parallel case in B.C., raising the possibility that a contrary judgment could create an uneven application of the law from province to province, the government application states. “This will lead to further confusion as to the state of the law," it says.

In December, 2017, Superior Court Justice Frank Marrocco struck down a portion of the law governing solitary confinement on the grounds it violated Section 7 of the Charter of Rights and Freedoms because it did not provide for independent review of segregation decisions.

But Justice Marrocco rejected the CCLA’s argument that the practice constituted cruel and unusual punishment, a Section 12 violation. He countered that the potential harms of prisoner isolation were not “inevitable” and could be avoided through proper administration of the laws on monitoring inmates’ health.

The CCLA appealed, arguing that Justice Marrocco erred in ruling that harm must be inevitable to engage Section 12. The appeals court overruled much of the Superior Court decision, with Justice Mary Lou Benotto writing that the Correctional Service’s use of prolonged administrative segregation can cause permanent harm that no level of medical monitoring can prevent.

“Legislative safeguards are inadequate to avoid the risk of harm,” she wrote. “In my view, this outrages standards of decency and amounts to cruel and unusual treatment.”

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