A Nova Scotia judge has upbraided a notorious provincial jail for an increasingly common practice known as segregation light, where inmates are held in solitary conditions but are denied some legal protections entitled to offenders in solitary confinement.
In a 17-page decision, Nova Scotia Supreme Court Justice Gerald Moir called the Central Nova Scotia Correctional Facility's decision to house two offenders in a modified form of solitary confinement "unreasonable" and "arbitrary."
His decision comes at a time when the use of solitary confinement in prisons across North America is under intense scrutiny. In Canada, Prime Minister Justin Trudeau has asked his Justice Minister to implement a series of recommendations arising from an inquiry into the segregation death of Ashley Smith, including several concerning limits on solitary confinement.
And on Wednesday, New York State's correctional system ceded to sweeping reforms that will reduce the number of inmates in solitary, cut the maximum time an inmate can be segregated and improve living conditions.
Two federal offenders, Dylan Roach and Dylan Gogan, prompted the Nova Scotia case by filing habeas corpus applications seeking a judge's review of their incarceration at Central Nova, where they were recently transferred on a temporary basis for provincial court matters.
In December of last year, Central Nova adopted a policy of keeping federal inmates out of the institution's recreational day-rooms to alleviate overcrowding, according to the judge's written decision.
For Mr. Gogan and Mr. Roach, the policy meant they were locked in cells measuring two metres by three metres for 23 hours a day, even though they had not been formally assigned solitary status.
"It is unreasonable to make prisoners pay for overcrowding, whether it results from fiscal restraint or minimum sentences or both, by making them submit to the agony of solitary confinement," the judge said. "All prisoners are forced to pay for the government's choice of overcrowding by being housed in overcrowded jails and prisons. To compound that with solitary confinement when on remand is unreasonable because it is so unfair."
Normally, inmates in solitary confinement – termed "close confinement" in the Nova Scotia correctional system – can lobby for a transfer during periodic staff reviews. Mr. Gogan and Mr. Roach, however, had no access to the review process.
"This is something that I'm finding increasingly common and increasingly frustrating," said Howard Sapers, the federal correctional ombudsman. "In the federal system, we have commented on what we have referred to as 'segregation light' where the Correctional Service of Canada has created housing options for offenders that look like and feel like segregation only without the legal safeguards. And that appears to be what happened at Central Nova."
A spokeswoman for the Nova Scotia Department of Justice said the province respects the Supreme Court's decision, but also took issue with aspects of the ruling, saying that "federal inmates are not confined to their cells and they have access to their regular privileges."
Central Nova has repeatedly made local headlines for recurring problems with violence, overcrowding and understaffing. "It's a delicate balance between officer safety and offender rights," said Jason MacLean, 1st vice-president of the NSGEU, the union representing jail staff. "People can get out more often if there are more staff available. We understand what the judge has done. What we're worried about is safety. We need to go home at the end of the day."