In a decision that scolds the federal government while cutting it some slack, an Ontario court is giving Ottawa just over four months to make the country’s solitary confinement laws constitutional.
That’s three fewer months than government lawyers had requested as they struggled to explain why the federal government was about to miss a Dec. 18 deadline imposed by a lower court.
A three-member panel of the Court of Appeal for Ontario called Canada’s arguments “disappointing” in a ruling released on Monday, declaring that Ottawa will have until April 30 to fix a practice that a judge ruled was a breach of the Canadian Charter of Rights and Freedoms.
The ruling means the Correctional Service of Canada can continue to isolate inmates for 22 hours or more a day without meaningful human contact, which has been the subject of two high-profile lawsuits and a Globe and Mail investigation over the last four years.
“Far too many continue to languish for far too long in deplorable conditions of extreme isolation, and Canada’s lack of meaningful action on an issue of such profound importance is indeed disappointing," said Michael Rosenberg, one of the lawyers representing the Canadian Civil Liberties Association (CCLA), the appellant.
The panel had the option of allowing sections 31 to 37 of the Corrections and Conditional Release Act to be struck down as of Dec. 18, effectively rendering solitary confinement – known within the correctional service as administrative segregation – unlawful.
But the court decided doing so “without any measures in place to protect those currently held in administrative segregation and Correctional Service of Canada personnel would pose an unacceptable danger to such individuals and, ultimately, to the public.”
A spokeswoman for Public Safety Minister Ralph Goodale said the extension would be used to pass prison legislation currently at committee phase.
“We welcome the court’s decision, which provides time for the significant reforms we have proposed to be implemented in an effective and orderly way,” Carlene Variyan said.
Ms. Variyan added that policy changes have already reduced the population of segregated inmates from 780 to 340 in recent years.
This month’s deadline was put in place in December, 2017, by Ontario Superior Court Justice Frank Marrocco, who found that the process used to review segregation placements falls short of the principles of fundamental justice enshrined in Section 7 of the Charter.
Government lawyers had asked for a seven-month extension in order to pass Bill C-83, proposed legislation they said would address all defects identified by Justice Marrocco.
But the CCLA argued that C-83 contains no provision for the meaningful, independent review prescribed by Justice Marrocco. They asked for the appeals court to immediately strike down the law and impose a series of interim measures that would have placed administrative segregation under judicial oversight.
At a hearing last month, the appeals court panel expressed concern that lawyers for the Attorney-General of Canada had failed to explain how C-83 would fix the problem with the law or why it took so long to come forward.
Lawyers filed written submissions to clarify the government’s position on both fronts, but not to the court’s satisfaction.
“The material filed by the respondent does not address the concern raised by this court,” the appeal court decision states.
The CCLA is appealing Justice Marrocco’s decision, saying it didn’t go far enough in finding fault with current laws that permit the segregation of young and mentally ill inmates.
Patrick White