If solitary confinement has to exist in Canada, it must come with clearer limits, such as a hard cap on how long inmates can be held, external oversight and better conditions, including more time out of cells, a lawyer in a high-profile prison case said as he wrapped his closing argument.
The BC Civil Liberties Association and the John Howard Society of Canada have sued Ottawa over the use of solitary confinement in federal prisons, arguing it is unconstitutional, increases inmates' suffering and discriminates against offenders who are Indigenous or have mental illness.
Counsel for the Attorney-General of Canada has called segregation a "necessary and appropriate tool" that is only to be used when there is no reasonable alternative to protect the safety of a person or institution.
Joseph Arvay, one of the lawyers for the plaintiffs, told B.C.'s Supreme Court on Tuesday that the plaintiffs wish solitary confinement wasn't used in Canada at all.
"But to the extent that there is going to be administrative segregation, there has to be a hard cap. We're saying that the international standard of 15 days is entirely an appropriate standard," he said.
The trial has focused on the current solitary-confinement regime, not Bill C-56, which was introduced by the federal government in June. The BCCLA has said both the current system and the new bill fail to guarantee an individual will not be held in solitary for years.
Mr. Arvay said he would like to see Canada's Corrections and Conditional Release Act struck down, but he worried about what would follow.
One of the plaintiffs' concerns, he said, is if the legislation is simply struck down, "then it goes back to Parliament and what Parliament then pulls out is Bill C-56."
"The judgment would be a complete Pyrrhic victory for us if all you did was strike it down," Mr. Arvay told Justice Peter Leask. "We don't want a Pyrrhic victory, we want a real victory."
Mr. Arvay said the judge should make clear to Parliament the need for fixed time limits, as well as independent external reviews.
"I'm going to urge you to say 15 days, but maybe you don't want to say 15 days, you might want to leave it to Parliament to make it 16 days, or 20 days, or 12 days, or what have you. But we say there has to be a cap," he said.
The United Nations' Mandela Rules define prolonged solitary confinement as a period lasting more than 15 days. Solitary refers to the confinement of prisoners for 22 hours or more a day without meaningful human contact.
Prison-rights advocates have said C-56 still leaves too much discretion with a federal prison agency that has a long history of neglecting inmates in segregation.
C-56 says a federal inmate can spend no more than 21 consecutive days in segregation unless a warden specifically orders otherwise. Eighteen months after the bill's passage, that cap would drop from 21 days to 15 days.
An independent external reviewer, appointed by the Minister of Public Safety, would review the cases of inmates ordered to stay in solitary beyond the cap. However, the reviewer would have no power to release them.
The trial opened in early July and closing arguments started this week. Counsel for the federal government is to begin its submission Wednesday.
Mr. Arvay on Monday told the court solitary confinement causes psychological harm to nearly everyone who endures it and has been a factor in several prison suicides. He said putting prisoners in a small cell for up to 23 hours a day without meaningful human contact violates the rule of law and basic human dignity.
Mr. Arvay finished his closing argument on Tuesday morning and the court then heard from the two intervenors in the case – the West Coast Women's Legal Education and Action Fund and the Criminal Defence Advocacy Society.
Raji Mangat, the lawyer representing West Coast LEAF, said women – particularly those who are Indigenous or have mental illness – have unique needs and can arrive in prison with longer histories of abuse, trauma and poverty.
"Administrative segregation fails to respond to the distinct needs of those groups, with the result that together it widens the equality gap for these particular groups," she said.
Ms. Mangat said striking down the legislation would be entirely justified.
Thomas Arbogast, counsel for the Criminal Defence Advocacy Society, told the court "administrative segregation improperly invades upon the function of the trial judges across this country in terms of meting out sentences, and that's because it amounts to further punishment."