Federal government appealing B.C. Supreme Court decision on solitary confinement

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Ottawa will appeal a recent B.C. Supreme Court decision striking down some of its current solitary-confinement rules as unconstitutional, despite requests by two civil-liberties groups asking the federal government to work outside the courts to form more stringent limits on the practice.

The federal government filed a notice on Friday to appeal a Jan. 17 ruling by a B.C. judge that struck down Canada's law on indefinite solitary confinement, arguing it needs the legal system to give it clarity on the issue. That judgment set out tough constitutional standards for a system of solitary confinement, or "administrative segregation" as Ottawa refers to it, defined as up to 22 hours a day in a tiny cell.

"I find as a fact that administrative segregation … is a form of solitary confinement that places all Canadian federal inmates subject to it at significant risk of serious psychological harm, including mental pain and suffering, and increased incidence of self-harm and suicide," Justice Peter Leask wrote.

The appeal could add several years to the court challenge, brought three years ago by the B.C. Civil Liberties Association, which says their case presents an opportunity for the federal Liberals to live up to their stated commitment to abolish the practice in its most prolonged form.

Meanwhile, the Canadian Civil Liberties Association is appealing an Ontario ruling last December that found administrative segregation can cause deep and lasting harm for inmates, but ultimately decided the only necessary legislative fix was the adoption of independent oversight.

The provincial association and the John Howard Society launched the constitutional application in January, 2015, just a month after The Globe and Mail began a long-term examination of solitary-confinement practices in the country, starting with an investigation into the 2010 death of Eddie Snowshoe in prison after 162 days in solitary confinement.

Public Safety Minister Ralph Goodale, the lead minister on the issue, was unavailable for an interview on Monday. Scott Bardsley, his spokesman, said the appeal is necessary because the B.C. and Ontario decisions came "to different conclusions on legal questions relating to important matters of public policy."

"Given the CCLA has filed a notice of appeal in Ontario it was only prudent for us to file a similar notice in BC as we begin to seek juridical clarity on the issue," he said in an e-mailed statement.

Josh Paterson, executive director of the BCCLA, said the appeal is a surprise.

"This government has a great deal of work to do and their resources would be much better spent fixing the system than fighting for several more years [in court]," he said on Monday.

Mr. Bardsley said Ottawa could not discuss such reform with the two civil-liberties groups after one of them appealed the Ontario ruling, "as it was before the courts."

In the meantime, he said, the government is open to ideas as to how to improve its new law on solitary confinement, still before the House of Commons after being proposed last June.

Justice Leask, in his B.C. Supreme Court ruling, did not prescribe a set number of days a prisoner could be placed in solitary confinement, but described a 15-day maximum as "a defensible standard."

In the government's bill, the proposed time limit would be 21 consecutive days, reduced to 15 days after 18 months. But a senior prison official could extend the time in individual cases. And while there would be a chance for a review from someone other than the prison warden, that review would be done by an official with Correctional Service Canada.

That's not good enough, according to Mr. Paterson, who said the proposed law is unconstitutional because it still does not provide a prisoner with true independent and external oversight of their placement in solitary. As well, he said, such a review would take place after – not before – the prisoner has already spent a number of days confined alone.

"It's toothless and it comes too late," he said.

With a report from The Canadian Press