The federal government anticipates it will miss a court-imposed deadline to revise the laws governing solitary confinement in prisons, leaving less than four weeks before the legal underpinning of the practice disappears.
Crown lawyers appeared before the Court of Appeal for Ontario on Wednesday requesting a seven-month extension to a 2017 court order that gave the government one year – until Dec. 18, 2018 – to make its solitary-confinement oversight process compliant with the Charter of Rights and Freedoms.
If no extension is granted, statutes governing prisoner isolation will be struck from law, throwing federal prisons, which house about 350 inmates in segregation every day, into legal turmoil.
The Crown said the government would pass Bill C-83 to fix the oversight issues by next July, but an appeals court justice on Wednesday questioned whether the bill would do anything to address a Charter violation identified by a lower court.
The Liberal government introduced Bill C-83 last month, giving itself just two months to see the bill through to law before the deadline.
Crown counsel John Provart told the court that the extension was necessary to “allow the current Parliamentary process to unfold.”
But Chief Justice George Strathy asked whether the proposed legislation would be worth the wait.
“If I could cut to the chase on this issue,” he interjected, “how does the proposed legislation address the defect [identified by the lower court]? I don’t see how it does that.”
Mr. Provart attempted to sketch out a new oversight process that could be used under C-83, but Justice Strathy said he needed written evidence of how the new model would operate. The court gave the Crown one week to come up with new submissions and an additional week for the plaintiff, the Canadian Civil Liberties Association (CCLA), to submit a response.
The 2017 order, issued by Ontario Superior Court Associate Chief Justice Frank Marrocco, came out of a case brought by the CCLA that has tested the constitutionality of a federal prison practice called administrative segregation – better known as solitary confinement.
Justice Marrocco ruled against the CCLA on a number of major issues, but agreed that the review process for segregation decisions breaches Section 7 of the Charter of Rights and Freedoms, which requires the state to follow a fair and just process to deprive a person’s liberty or security.
The Crown had originally requested the one-year timeline over the objections of the CCLA, which had argued that six months was sufficient to fix the law.
Bill C-83 would strip administrative segregation from the act governing federal prisons. In its place, the government proposes creating Structured Intervention Units in each prison where prisoners could access better health care and rehabilitation programming than exists in current segregation wings. As well, they would get four hours a day outside their cells – double the current allotment – and two hours a day of “meaningful human contact.”
The bill is currently at the committee phase where it has faced withering criticism from the likes of the CCLA and Senator Kim Pate, who have characterized it as creating administrative segregation by another name and said it will do nothing to bring external oversight to the prisoner isolation process.
Under the current segregation review system, the decision to segregate a prisoner ultimately rests with the institutional head, or warden. That decision is reviewed after five days by a staff member designated by the warden. It is that system of internal self-review that Justice Marrocco called “procedurally unfair.”
The extension request came as the CCLA is appealing Justice Marrocco’s decision. Lawyers for the group are pushing for a prohibition on the segregation of young inmates, mentally ill inmates and inmates requiring protection, as well as a 15-day limit on all segregation placements.
Justice Marrocco ruled that correctional staff can adequately prevent harm to inmates by fully considering their state of health in all segregation decisions, already a requirement under existing statues.
But CCLA lawyer Jonathan Lisus argued that actively monitoring for changes in the health and mental state of segregated inmates is impossible within a prison setting. “This is a practice so sad and so unnecessary that there can’t be a question that it shocks the conscience," he said.