British Columbia’s top court has given the federal government five extra months to overhaul laws governing solitary confinement, but has imposed detailed rules on the practice until Ottawa implements new legislation.
The B.C. ruling is in agreement with an Ontario Court of Appeal decision last month that gave Ottawa an extension until April 30 to change the practice of isolating inmates for 22 hours or more a day without meaningful human contact after declaring it unconstitutional. The practice has been the subject of two high-profile lawsuits and a Globe and Mail investigation over the past four years.
The B.C. Court of Appeal ruling on Monday said the government is acting in good faith to change the unconstitutional solitary laws and granted it an extension to June 17, but only if the Correctional Service of Canada complied with eight conditions immediately, including ensuring that segregated inmates get seen at least once a day by medical staff as well as be given an extra 30 minutes outside of their cells each day.
Also on Monday, a judge in the Alberta Court of Queen’s Bench gave an inmate 3.75 days' credit for each day he served in solitary confinement, calling it a form of cruel and unusual punishment prohibited by the Charter.
A spokesperson for the Public Safety Department said the federal government respects the B.C. court decision and has confirmed with Corrections that the agency intends to comply with the interim conditions.
The three B.C. judges also recognized that striking down the existing laws without replacing them would put the security of Canada’s prisons at risk, noting that separating inmates from their peers in some way is at times necessary.
“The Court recognizes that the formulation and implementation of detailed policies is ordinarily a matter to be left to the executive branch of government. However, the inordinate delays in this case justify the Court’s intervention,” the B.C. ruling states. “This is especially so, given that the Attorney General does not seriously dispute that current practices do not conform to constitutional requirements.”
Government lawyers have argued in the B.C. and Ontario cases for extensions to pass Bill C-83, proposed legislation they said would address all defects identified in previous rulings.
Bill C-83 would eliminate two forms of solitary confinement currently used in federal prisons – administrative segregation and disciplinary segregation – and replace them with specialized living units that would provide high-risk inmates at least four hours a day outside their cells and two hours a day of human interaction.
However, rights advocates fear it could lead to an expansion of a new form of incarceration that is still harmful to inmates. Both the federal correctional ombudsman and rights advocates have long called for time limits on segregation placements and for independent oversight of segregation decisions. The new bill does not contain provisions addressing either of those concerns.
The head of the B.C. Civil Liberties Association (BCCLA), which launched the B.C. challenge along with the John Howard Society advocacy group, heralded the interim conditions laid out in the decision as “really strong," but cast doubt on Ottawa’s ability to pass a bill that will fully respect the rights of inmates in solitary confinement.
“The existing bill leaves so much opportunity for discretion to correctional officials, so many opportunities for people to continue to be held in the same awful conditions,” said Josh Paterson, executive director of the BCCLA.
Scott Bardsley, a spokesperson for Public Safety Minister Ralph Goodale, confirmed the BCCLA and other stakeholders have been invited to Ottawa next week for a round table to provide feedback on how to improve the solitary confinement bill as well as hear from officials with the union representing prison staff. He also said policy changes have reduced the population of segregated inmates from 780 to 340, according to the latest data available from March, 2018.
Under the new conditions imposed by the court, all inmates in solitary confinement must now be visited each day by a health-care professional, unless such a visit would jeopardize the safety of prison staff. If the health-care worker decides that an inmate should be removed from solitary or the inmate’s conditions should be altered, then the worker must submit a written report to the head of the prison within 24 hours, the ruling states. The head of the prison must act on these recommendations “without delay” or explain in writing why they cannot be implemented.
Federal inmates in solitary confinement currently get daily visits from health-care providers, but advocates say these often constitute a brief conversation through the cell door, where there is no privacy. Monday’s ruling mandates that these visits from medical staff must include “a visual observation of the inmate.”
Lisa Kerr, an assistant professor of law at Queen’s University and an expert on solitary confinement, said these additional rules, particularly mandating that medical staff include a “visual observation," make clear “the old rules are woefully inadequate for addressing the harms of segregation and the elevated risk of suicide in segregation.”
Other new rules include giving these inmates an additional 30 minutes of daily “yard time” so that they are outside their cells at least 2½ hours every day of the week. The Corrections must also distribute bulletins to all its staff directing them to allow lawyers to attend and make submissions at their client’s segregation review board hearings as well as confirming an inmate’s right to make calls to their counsel outside their cells in a private area, according to the ruling.
The B.C. Court of Appeal ruling is the latest from provincial courts pushing the federal government to speed up the overhaul of Canada’s solitary confinement laws. A lower-court decision released last January had given Ottawa a year to change its practices, but lawyers for the federal government had argued two months ago that they needed until the end of next July to make these changes.
Also on Monday, an Alberta judge gave an inmate 3.75 days credit for each day he served in solitary confinement, calling it an unconstitutional form of cruel and unusual punishment.
“Segregation ravages the body and the mind,” Justice Dawn Pentelechuk of the Alberta Court of Queen’s Bench said in written reasons released last week for sentencing Ryan Prystay to time served, plus 77 days, on multiple charges, including possession of methamphetamine and a loaded firearm. Mr. Prystay, 36, spent more than 400 consecutive days in solitary in the Edmonton Remand Centre, after assaulting another inmate. Nine months after his placement in solitary, he was told in a review what he needed to do to be released into the general population. He was charged in August, 2016, and pleaded guilty in October, 2018.
With a report from Patrick White