The federal government is making a last-ditch application to the Supreme Court of Canada to extend the use of solitary confinement just six days before the practice is set to become illegal.
In a notice of motion filed this week, lawyers for the Attorney-General have requested leave to appeal a decision from Ontario’s top court rendering the practice of administrative segregation unconstitutional as of June 18.
Administrative segregation is roughly analogous to solitary confinement, the practice of isolating prisoners for 22 or more hours a day without meaningful human contact. The Canadian Civil Liberties Association has been litigating to end the use of administrative segregation within the Correctional Service of Canada since January, 2015.
In December, 2017, an Ontario Supreme Court judge struck down provisions authorizing the use of administrative segregation, citing a review mechanism that lacked meaningful outside oversight.
“Canada has had a year and a half to address its constitutionally defective statute,” said Michael Rosenberg, co-counsel for the Canadian Civil Liberties Association in the case. “It has failed to do so. This meritless application for leave to appeal is an outrageous attempt to prolong the suffering of prisoners in solitary confinement and perpetuate an abhorrent practice that has been thoroughly denounced by our courts.”
Under the current review process, the institutional head, or warden, is responsible for placing an inmate in solitary and for scrutinizing that placement decision during a hearing called a fifth day working review.
In effect, the institutional head acts as both investigator and adjudicator. Ontario Superior Court Justice Frank Marrocco ruled in December, 2017, that the regime violated Section 7 of the Charter of Rights and Freedoms, which protects individual liberties against arbitrary government actions.
He suspended the validity of his ruling for one year to give the federal government ample time to devise a more independent oversight system.
The Court of Appeal for Ontario twice extended that suspension, but has refused to push it beyond June 18.
The Canadian Civil Liberties Association appealed the Marrocco decision, arguing it did not go far enough in rendering administrative segregation unconstitutional. On March 28 of this year, the group earned a landmark victory when the Court of Appeal found that administrative segregation for more than 15 days violated the Charter and gave the government 15 days from the judgment to come into compliance.
On April 11, the Supreme Court temporarily stayed the 15-day order while it considers Canada’s application to appeal the decision before the country’s highest court.
But the Supreme Court stay did not touch upon the June 18 deadline.
Meanwhile, the government has proposed legislation that would significantly overhaul the entire prisoner isolation regime currently being litigated. Bill C-83 would 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.
The stay motion filed this week states next week’s deadline creates a “harmful regulatory void.”
The government wants the deadline extended until Nov. 30 or until 10 days after the Supreme Court has ruled on the leave-to-appeal application.
“If the extension is not granted, both the public interest in maintaining, and the safety and security interest of inmates and staff, in penitentiaries will be in jeopardy,” the notice of motion states.