Lawyers tell Ottawa solitary confinement bill is unconstitutional

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A group of nearly 100 lawyers and law professors is warning the federal government that a landmark solitary-confinement bill working through the Senate is unconstitutional in its current form.

In a letter sent to senators on Thursday, many of the country’s top prison-law scholars contend that Bill C-83 creates “solitary confinement under a different name” rather than achieving the government’s intent of abolishing the practice.

“It’s upsetting to see the government try to pass a law they know would be unconstitutional,” said one of the authors, Adelina Iftene, an assistant professor of law at Dalhousie University who specializes in prison law.

When the government announced C-83 in October of last year, it declared the bill would end the long-standing practice of administrative segregation, which had become the subject of two long-running lawsuits and years of denunciation from lawyers, judges, civil-rights advocates and prisoners. Those groups said the practice could cause irreparable mental-health problems among prisoners and amounted to torture under international law.

C-83 proposes to quash administrative segregation and replace the practice with the use of “structured intervention units” where prisoners would get at least four hours free from their cells, double their current entitlement, including two hours of “meaningful human interaction.”

In late 2017 and early 2018, courts in Ontario and British Columbia concurred that aspects of the law governing administrative segregation – roughly analogous to solitary confinement – violated sections of the Charter of Rights and Freedoms and gave Ottawa one year to implement fixes. Subsequent extensions have bumped that deadline to June 17.

The letter states that C-83 fails to address two major holes in current legislation identified by the two courts: the lack of binding independent oversight and the absence of limits on the amount of time prisoners can spend in isolation. In March, Ontario’s appeal court ruled that placing inmates in solitary confinement for more than 15 days constitutes cruel and unusual punishment, echoing the United Nations’ Mandela rules on the use of solitary confinement.

“With respect, we submit that passing a bill while knowing full well that it is unconstitutional is not only a waste of taxpayers’ money, but it also raises questions regarding Canada’s commitment to the rule of law,” the letter states.

At committee, parliamentarians added clauses to the bill that would create “independent external decision-makers," responsible for reviewing cases where prisoners don’t receive their required human contact or time outside of cells. In certain circumstances, these decision-makers would have the power to decide whether an inmate should remain in the structured intervention units.

A spokesman for Public Safety Minister Ralph Goodale said the U.N. rules don’t apply to C-83 because prisoner segregation practices under the proposed legislation would no longer fit within the international body’s definition of solitary confinement.

“To fit [the U.N.'s] definition, the person must be both confined and denied meaningful human contact for 22 hours,” said Scott Bardsley in an e-mail. “Under C-83, prisoners will be confined for a maximum of 20 hours a day.”

The letter says that several amendments recently approved by a Senate committee could save C-83. The amendments would require Correctional Service Canada to apply to a superior court any time it wanted to detain a prisoner in excess of 48 hours.

Mr. Goodale has said that judicial oversight of segregation decisions would create “considerable and unnecessary burden on the court system.”

But Senator Kim Pate, a long-time advocate for the incarcerated, said the burden would be minuscule compared with the number of bail reviews, search warrant applications and other oversight matters currently before the courts.

“It’s a bit of a red herring to say this would be unduly burdensome on the Correctional Service of Canada or the courts,” she said. “Nothing less than judicial oversight is likely to change the culture within corrections.”