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Canada Top Ontario court reaffirms decision on solitary-confinement, sets seven-week limit

The ruling places additional legal pressure on the Correctional Service of Canada to overhaul its use of administrative segregation, an internal term for solitary confinement, that isolates inmates in their cells for up to 22 hours a day without meaningful human contact.

/The Canadian Press

Ontario’s top court has granted Canada’s prisons agency just seven weeks to establish a new oversight model for the placement of inmates in solitary confinement.

In a strongly worded decision released on Friday, a three-member Court of Appeal panel ruled that Canada’s request for another seven months to impose new oversight rules was “unacceptable.”

The ruling places additional legal pressure on the Correctional Service of Canada to overhaul its use of administrative segregation, an internal term for solitary confinement, that isolates inmates in their cells for up to 22 hours a day without meaningful human contact. The federal prison agency is appealing two other court decisions that have rendered administrative segregation unconstitutional.

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“This is a strong signal from the highest court in the province that Canada cannot continue to turn a blind eye to the serious harm caused by its continued practice of solitary confinement,” said Michael Rosenberg, one of the lawyers arguing the case against administrative segregation on behalf of the Canadian Civil Liberties Association. “The time has come for meaningful change, and not a moment too soon.”

As it stands, the federal government has already had one year and four months to comply with a lower court order to impose a more rigorous oversight mechanism.

Under the current process, the institutional head, or warden, is ultimately responsible for placing an inmate in solitary and for reviewing that placement decision five days later during something called a fifth working day 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.

“Any continued use of administrative segregation that relies on the fifth working day review is unconstitutional,” Justice Marrocco ruled. He suspended his ruling for one year to give the federal government ample time to devise a more independent oversight system where the person reviewing the institutional head’s segregation decision does not also report to the institutional head.

Since then, the government has twice argued to extend the suspension. Most recently, it asked to have until Nov. 30 to impose a legislative fix, which it insists will be contained in Bill C-83, proposed legislation currently before the Senate. The Court of Appeal called the November extension request “unacceptable” and said it has seen little evidence "to indicate that the constitutional breach identified by the application judge is being or will be addressed in the future.”

The bill would replace administrative segregation with structured intervention units, where inmates would be provided at least four hours a day outside their cells, twice what they are currently offered in administrative segregation.

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“While we are working to get the new system in place as quickly as possible, it will take some more time to recruit and train new staff, make the necessary infrastructure changes and establish the external independent review process,” explained Scott Bardsley, spokesman for Public Safety Minister Ralph Goodale. “In the meantime, CSC has been implementing policy changes to safely reduce administrative segregation placements.”

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