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Keeping inmates in isolation 'not reasonable', Alberta judge rules

An Alberta judge concluded that prison staff, which did not provide inmates with reasons for segregating them, did not base their decisions on credible information.

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In a ruling that places further pressure on Canada's prison agency to refine its rules around solitary confinement, an Alberta judge has freed three federal inmates from segregation cells, concluding prison authorities ignored factors around procedural fairness, aboriginal identity and mental-health history before isolating them.

The decision represents a rare legal victory for self-represented inmates and an admonition of the justifications the Correctional Service of Canada employs to segregate thousands of inmates every year.

Related: Who killed Eddie Snowshoe: The fatal sentence of solitary confinement

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"Given the basis on which the inmates were sent to solitary confinement, and the individual mental health and aboriginal circumstances of each inmate, the decisions to send each of them to solitary confinement is not reasonable," states Alberta Court of Queen's Bench Justice Joanne Veit in a decision released last week.

On June 28, staff at the maximum-security Edmonton Institution placed Matthew Hamm, Shawn Keepness and Taylor Tobin in solitary confinement after a manager heard from a confidential informant that the men were conspiring to assault a group of guards.

When inmates are placed in solitary confinement, staff are legally obliged to provide the inmates with detailed reasons behind the decision. Feeling they were denied any such procedural fairness, the inmates, working without lawyers, filed an application of habeas corpus, forcing a judicial review of the decision to isolate them.

In general, the judge agreed with their argument, reasoning that the "institution has essentially provided conclusions, rather than reasons, for its actions."

Upon reviewing all the information that the Correctional Service withheld from the inmates, Justice Veit found it dubious. "In the totality of the evidence on this application, I am unable to conclude that the institution had available reliable and credible information that these applicants were planning a serious assault on three identified guards," she said in her decision.

As further support for that conclusion, she noted that the institution had never laid any criminal or institutional charges against the inmates for their alleged infraction.

Just as concerning, she found that despite the Correctional Service's stated commitment to the accommodation of aboriginal identity and mental-health issues, there was no consideration given to those factors when the Edmonton Institution placed the three men in solitary confinement.

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Mr. Hamm suffers from bipolar disorder. Both Mr. Keepness and Mr. Tobin are aboriginal.

"What's interesting is the court has very clearly laid out some expectations and obligations on the part of the CSC, both in regard to aboriginal social history, but also in terms of information sharing and notification for inmates," said federal correctional ombudsman Howard Sapers.

The landmark Gladue case, handed down by the Supreme Court in 1999, advised that the lower courts must consider an aboriginal offender's social history during sentencing. But the recent Alberta decision reinforces the idea that Gladue considerations don't evaporate the moment an aboriginal steps behind prison walls.

"Other people in the same situation as my son can now use this decision, and that's very important to him," said Dale Hamm, mother of Matthew Hamm. "Imagine doing all this legal work from segregation like he did. It was hard work. He told me he was tired of seeing them take the law into their own hands."

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