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The judgment adds to a growing stack of court decisions that have rendered as unconstitutional the practice of confining inmates to parking-space-sized cells for upward of 22 hours a day.

The Canadian Press

Ontario’s top court has upheld a lower court ruling that federal inmates should be compensated for time spent in solitary confinement.

A three-member appellate panel agreed that placement in solitary can cause physical and mental harm within a few days and endorsed $40-million in damages awarded in two class-action cases last year.

The judgment adds to a growing stack of court decisions that have rendered as unconstitutional the practice of confining inmates to parking-space-sized cells for upward of 22 hours a day.

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“The Court of Appeal is again taking serious issue with Canada’s conduct over the past couple of decades,” said James Sayce, who argued the case for representative plaintiffs Christopher Brazeau and David Kift. “This is the third time a Canadian appellate court has come to this conclusion. Each and every one of these judges is finding serious, unconstitutional conduct.”

That consensus will face a final test later this year when the Supreme Court hears two federal government appeals in cases that struck down sections of the legislation governing solitary confinement and set a 15-day limit on the amount of time an inmate can spend in isolation.

Monday’s Ontario Court of Appeal decision considered two class-action cases: Brazeau v. Canada, which claimed Charter damages on behalf of mentally ill inmates placed in solitary since 1992; and Reddock v. Canada, which requested the same for prisoners who’d been placed in solitary in excess of 15 days since 1992.

Last year, Ontario Superior Court Justice Paul Perrell awarded $20-million in damages for each case.

On appeal, Canada disputed the awards, arguing that the courts had only recently characterized the Correctional Service of Canada’s practice of administrative segregation, which is analogous to solitary confinement, as cruel and unusual punishment, absolving it for any historical uses of the practice.

But the panel rejected that line, reviewing a long list of reports and international agreements that provided Canada with ample warning of the practice’s ill effects.

“In our view,” the decision states, "Canada’s failure to alter its administrative segregation policies in the face of this mounting and concerted criticism from the medical profession, a Royal commission, a coroner’s inquest, the Correctional Investigator, and various international agencies meets the standard of a ‘clear disregard for Charter rights.’”

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In Brazeau, the lower court judge took a double-barrelled approach to damages, committing most of the $20-million toward mental-health resources or other programming at federal prisons and then leaving class members open to making individual claims before the court.

The appellate court called that an “unusual course," largely because neither party involved in the case had asked for funds to be directed toward prison programming. The panel set aside the award and ordered the lower court to reconsider the issue based on submissions from both sides.

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