The B.C. Supreme Court in Vancouver.
A highly anticipated trial challenging the use of solitary confinement in federal prisons opened with a lawyer for the plaintiffs invoking the names of three people who took their lives in segregation units – while also arguing solitary constitutes cruel and unusual punishment, and even torture.
The BC Civil Liberties Association (BCCLA) and the John Howard Society of Canada sued the federal government in January, 2015, over the use of solitary. The two groups said Canada remained committed to a broken and dangerous system that increased inmates' suffering even as jurisdictions around the world scaled back its use.
The Globe and Mail has reported extensively on the prevalence and effects of solitary confinement, beginning with a 2014 investigation into the death by suicide of Edward Snowshoe after 162 days in a solitary cell.
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Joseph Arvay, one of the lawyers for the plaintiffs, mentioned Mr. Snowshoe by name in his opening statement – along with Ashley Smith and Christopher Roy, who also died by suicide in solitary.
Mr. Arvay told B.C. Supreme Court that the Corrections and Conditional Release Act failed to place hard limits on how long a prisoner can be kept in solitary and did not provide external oversight. He said the act also failed to prohibit the use of solitary for those with mental-health issues and does not protect Indigenous inmates.
"Had those legislative provisions been in place when the act was first introduced in 1992, it is our submission that literally thousands of prisoners would have been saved from what the United Nations special rapporteur characterized as not only cruel and unusual punishment, but torture," he said.
"For some, like Ashley Smith and Edward Snowshoe and Christopher Roy, whose father will be testifying in these proceedings, that treatment resulted in their death."
Mr. Arvay said the plaintiffs are seeking an order that would declare provisions of the act unconstitutional. He quoted a University of British Columbia law professor and prison expert who has called solitary confinement "the most individually destructive, psychologically crippling, and socially alienating experience that could conceivably exist within the borders of this country."
But Mitchell Taylor, one of the lawyers representing the Attorney-General of Canada, said the act and the administration of the act comply with the Charter.
"Administrative segregation, in our view, is a necessary and appropriate tool that is available to federal correctional officials. It is to be used only in prescribed circumstances … and where there is no reasonable alternative to protect the safety of any person, including the inmate in question, or to safeguard the security of the institution, or to prevent interference with an investigation that is under way," he said.
Mr. Taylor said he expects the court to hear from witnesses "who speak of former practices and past instances relative to administrative segregation.
"These past instances do not represent the present, as we intend to show, and do not in our submission and view represent systemic practices or difficulties," he said.
Mr. Taylor said the number of inmates in administrative segregation has dropped considerably in recent years, from approximately 800 a day in 2014 to about 400 a day this year. He attributed the decline to changes in correctional practice.
He said about 10 female inmates are in administrative segregation a day. About 700 of the 14,100 current federal inmates are women, he said.
The trial is scheduled to run for approximately nine weeks and is to focus on the current solitary-confinement regime – not a new bill introduced by the federal Liberal government last month. The BCCLA has said both the current system and the new bill fail to guarantee an individual will not be held in solitary confinement for years.
Mr. Arvay said the death of Ms. Smith was a major impetus in launching the case. He said the plaintiffs believed their legal challenge might be rendered moot after the Liberals won the 2015 federal election. Prime Minister Justin Trudeau instructed the Attorney-General to implement recommendations from the inquest into Ms. Smith's death involving restrictions on the use of solitary confinement.
"Yet despite this now-dated public call for reform in the highest office in Canada, those recommendations have not been implemented. Instead, through the course of this litigation, there has been policy tinkering and at the 11th hour the introduction of the bill that may one day but has not yet amended the laws that govern solitary confinement in Canada," he said.
The new bill, C-56, proposes "presumptive" segregation time limits of 21 days (dropping to 15 days once the bill has been enacted for 18 months) that wardens can override.
On independent oversight, the bill provides for the creation of an external reviewer who could examine segregation decisions and make recommendations – but not an adjudicator who would have the authority to overrule Correctional Service Canada decisions.