A Quebec court has given the go-ahead for a class-action lawsuit that will test the constitutional validity of prisoner-segregation techniques introduced in federal prisons in 2019 as a humane replacement for previous isolation practices that were deemed illegal.
In a July 28 judgment, a Quebec Superior Court judge authorized a suit brought by Daniel Fournier, a federal prisoner serving a 14-year sentence for robbery and use of an imitation firearm. He alleges that his 40 continuous days in one of the Correctional Service of Canada’s new structured intervention units amounted to cruel and unusual punishment.
The federal government introduced structured intervention units (SIUs) in 2019. The class-action will be the first to consider the constitutional validity of the new units, according to Marie-Claude Lacroix, Mr. Fournier’s lawyer.
“If we win this case it would basically say that SIUs are unconstitutional,” she said. “So the government’s solution for unconstitutional segregation is also unconstitutional.”
Under the previous practice, called administrative segregation, prisoners could be locked in cells the size of hotel bathrooms for upward of 22 hours a day with no meaningful human contact. The stays were indefinite, leaving scores of prisoners to spend more than a year in isolation. Their plight prompted lawsuits in Ontario and B.C. that shed light on the country’s endorsement of prolonged solitary confinement, a practice considered torture under the United Nations’ Standard Minimum Rules for the Treatment of Prisoners (commonly known as the Nelson Mandela Rules).
Ottawa lost in both jurisdictions. The courts ruled that placements in administrative segregation needed to be capped at around 15 days and have a binding external oversight mechanism to comply with the Charter of Rights and Freedoms.
Rather than appeal to the Supreme Court, the federal government scrapped administrative segregation and introduced SIUs, which grant prisoners the option of spending four hours outside their cell every day, including at least two hours of interaction with other people.
Notably, however, the SIU legislation lacked any cap on the number of days prisoners could be isolated – the Nelson Mandela Rules prohibit anything more than 15 days – and failed to implement binding independent oversight.
Mr. Fournier was transferred to the SIU at Donnacona Institution, 45 kilometres west of Quebec City, on Dec. 14, 2019, after displaying threatening behaviour toward a nurse, according to the court decision. In total, he spent 40 continuous days in the SIU without knowing when he would return to the general population, circumstances he calls prolonged and indefinite solitary confinement.
For most of that time, he was offered his legally required four hours of time outside the cell, but Mr. Fournier still maintains that 15 days or more in the SIU constitutes cruel and unusual punishment, a violation of Section 12 of the Charter. He alleges that his 40-day placement caused depressive symptoms and anxiety attacks that require psychological follow-up.
As compensation, Mr. Fournier wants $1,500 for each day he was detained in the SIU beyond 15 days and $10,000 in punitive damages.
The class action includes anyone who’s been placed in a SIU in Quebec since Nov. 30, 2019.
Countless court decisions have found that solitary confinement for even short periods can result in irreversible psychological and physical disorders, including paranoia, delusions and psychosis. A panel created to oversee the implementation of the SIU regime has repeatedly found that the new SIU laws have failed to end solitary confinement, as defined by the UN.
“I think such a challenge was inevitable,” said Catherine Latimer, executive director of the John Howard Society of Canada, which led the B.C. court challenge against solitary confinement. “Our research shows that the Charter violations regarding administrative segregation identified by the appellate courts have not been corrected in the Structured Intervention Units.”
The Correctional Service of Canada did not provide a response Tuesday. CSC has said there are roughly 150 prisoners in SIUs on any given day, or about 1.2 per cent of the federal prison population, many of whom have complex needs and require prolonged separation from other prison populations.
“CSC will continue to make improvements to the implementation and management of SIUs, based on internal analysis, best practices and external reviews and recommendations,” CSC spokesman Jordan Crosby told The Globe and Mail in June.