The federal government is making the case that it no longer practises solitary confinement in its prisons on account of a series of recent changes to the way it isolates prisoners.
During the second day of a four-day hearing, a lawyer for the Attorney-General of Canada stated that administrative segregation – long considered bureaucratic jargon for solitary confinement – has undergone such a radical overhaul of late that it no longer resembles the United Nations definition of the controversial incarceration method.
The argument illustrates just one of the challenges that has faced the Canadian Civil Liberties Association since it launched its constitutional challenge of administrative segregation back in January, 2015: Their case rests upon the constantly shifting sands of federal correctional policy.
Since the CCLA challenge was filed, Correctional Service Canada has overhauled its rules governing inmate segregation twice and introduced an array of new procedures.
Just last month, the Correctional Service implemented new rules that provide segregated inmates with two hours, plus time for a shower, to spend out of their cells every day, up from one hour previously.
It also declared that isolated inmates must have access to hygiene, spiritual services, daily visits from medical staff and non-electronic personal items, such as photographs and phone cards.
Taken together, the new provisions "constitute the kind of thing that takes administrative segregation out of the definition of solitary confinement," government lawyer Peter Southey said on Wednesday, citing the UN definition of solitary confinement as the isolation of "prisoners for up to 22 hours a day or more without meaningful human contact."
Mr. Southey mounted a spirited defence of administrative segregation throughout the afternoon session of the hearing. He declared it an exceptional and Charter-compliant practice necessary to uphold the safety and security of federal prisons.
"I don't think I need to persuade you that prisons are dangerous and difficult places," he told Chief Justice Frank Marrocco.
"There are gangs, there are underground economies, there is an inmate code of conduct that requires violent responses to certain behaviours. All of this combines to make an extraordinarily dynamic and infinitely problematic environment for the Correctional Service to carry out its duty to make everyone safe."
He portrayed the association's demand that administrative segregation placements be capped at 15 days as dangerous and naive because of the complex security considerations that exist within most prisons.
During the morning session, a lawyer for the liberties association rejected the government's position that it no longer practises solitary confinement because key interactions with health workers and other staff often take place through a steel door.
"Contact with a nurse at the cell door is not meaningful human contact," Michael Rosenberg said. "A warden walking past the door is not meaningful human contact."
Mr. Rosenberg emphasized the need for an independent adjudicator to make segregation placement decisions, which currently rest with wardens. "It does not meet test of fundamental justice," he said.
The Canadian Civil Liberties Association challenge is one of two major cases focusing on Correctional Service of Canada's use of solitary confinement currently winding through the courts.
The other is a suit brought by the John Howard Society of Canada and the British Columbia Civil Liberties Association in B.C. Supreme Court.
Both cases argue that Ottawa should restrict placements in solitary to 15 days – a time frame that would accord with UN guidelines, appoint an authority outside Corrections Canada to adjudicate individual cases of inmate segregation and prohibit mentally ill inmates from being isolated. The CCLA application also asks for a ban on the segregation of prisoners needing protective custody and inmates between the ages of 18 and 21.
The hearing continues on Thursday.