A federal lawyer arguing against a ruling that declared administrative segregation unconstitutional says the trial judge failed to properly distinguish between the management of the rules around it and the practice itself.
Mitchell Taylor told a three-judge panel of the B.C. Court of Appeal on Tuesday that the statutory provisions allowing administrative segregation, also referred to as solitary confinement, can be carried out in a restrained way that achieves their goals while respecting the rights of inmates.
The hearing comes after a January ruling gave the federal government one year to draft new legislation that included time limits on segregation. The federal government is appealing that decision and unveiled a bill last month that would end the use of solitary confinement, a practice critics have linked to mental-health problems and deaths among inmates.
“The fundamental question is whether the trial judge went too far in striking down or finding invalid the provisions in question,” Mr. Taylor told the province’s highest court on the first day of an appeal hearing that’s scheduled to finish this week.
The practice is a tool of “last resort,” he said, in a prison system of about 14,000 inmates where some must be separated from other inmates for their own safety or the safety of other prisoners.
“In this scenario, it can be necessary to quickly separate inmates to sort out the facts,” he said. “That’s the thrust and point and purpose of administrative segregation, to separate and sort things out and then, at the earliest appropriate time, get the inmate back in the general population.”
Mr. Taylor said inmates in administrative segregation are moved from the general population to a more confined part of a facility, with about 10 to 20 cells in which they spend all but one or two hours a day. They have their food in their cell. When out, they can go to other rooms in the segregation area or a yard.
Inmates are largely removed from contact with others, he said, but are not in a situation where they never see other people, noting they receive mandatory daily health-care visits.
One of the three appeal court judges asked about the daily health-care visits prisoners receive in segregation that consist of checks through a food slot in cell doors. Mr. Taylor said that’s going to the application of the rules around segregation, not whether the rules themselves are sound.
He said there is a difference between administrative segregation and disciplinary segregation, when an inmate has committed an offence involving, for example, contraband or violence.
Asked by one of the judges whether the procedure of administrative segregation is best called “solitary confinement,” Mr. Taylor said some will say that is an appropriate term.
“It’s our position that administrative segregation, as practised, does not fall within the formal solitary-confinement definition, but I am not going to get into an argument over semantics," he said. “Ultimately, what’s key is you will need to decide whether the provisions in question, whatever they are called, however they are characterized, do or don’t pass muster with the Charter.”
B.C. Supreme Court Justice Peter Leask had ruled in January that the laws administering solitary confinement violate Section 7 of the Charter of Rights and Freedoms guaranteeing life, liberty and security.
The British Columbia legal challenge was launched by the BC Civil Liberties Association and the John Howard Society of Canada in 2015, and they say the ruling to strike down the law must be upheld.
Ottawa filed an appeal of the ruling in February, leading to this week’s hearing. The federal government said it needed clarity because an earlier decision by the Ontario Superior Court also struck down parts of the so-called administrative segregation law, but it was a more limited judgement.
The Court of Appeal for Ontario will hear a separate challenge by the Canadian Civil Liberties Association, which argues the lower court in Ontario should have imposed independent oversight for how long prisoners can be segregated.
With a file from The Canadian Press