An Ontario judge has rejected the federal government's attempt to delay a constitutional challenge of Canada's solitary-confinement regime, ruling Ottawa's proposed legislation does not fully address the lawsuit's concerns about the use of segregation in federal prisons.
Superior Court Justice Frank Marrocco ruled that the case, which is well under way and scheduled to resume in the fall, would not interfere with the government's plan to pass legislation limiting the use of solitary. Ottawa was also unsuccessful in its attempts to delay a similar case in British Columbia last week, where a trial has now begun.
"This is the first time that a court has commented on the scope of the proposed Bill C-56 and the bottom line is that it doesn't go far enough to address any of the constitutional concerns," said Michael Rosenberg, a lawyer working on the case for the Canadian Civil Liberties Association (CCLA) in Ontario.
The CCLA launched the lawsuit in 2015 to challenge administrative segregation in prisons across the country. A great deal of evidence in the case has been filed and cross-examinations were completed last week.
After introducing Bill C-56 in late June, which would place some restrictions on solitary confinement, the federal government filed to adjourn the constitutional challenge so that Parliament has time to consider and debate the bill in the fall.
In his decision, released on Thursday, the judge said the amendments in the bill do not address the concerns raised in the lawsuit and therefore rejected the government's request for adjournment.
The decision was met with approval by prisoners' rights groups that argue the new legislation does not go far enough and that Canada remains committed to a broken and dangerous system that is not adhering to international standards.
"The important point is that we are talking about human beings in a deplorable situation caused by our government," said Noa Mendelsohn, acting executive director at CCLA. "To ask people to hold and wait on the basis of a bill that may or may not pass, or may or may not be amended, and doesn't resolve the issues, would have been so grossly unjust."
The B.C. trial, which opened this week, slowed on Thursday as a federal government lawyer spent several hours challenging the expertise of a law professor who has studied prisoners' rights for decades. The judge rejected the government's challenge and the witness will testify on Friday.
Earlier this week, the trial heard from the father of Christopher Roy, who hanged himself in a federal prison in 2015. Robert Roy said his son did not show any signs of being suicidal before he was placed in solitary confinement.
Counsel for the plaintiffs has said Canada's use of solitary confinement constitutes cruel and unusual punishment – and even torture. A lawyer representing the federal government, however, has insisted that administrative segregation is a necessary and appropriate tool.
As of today, there are 355 inmates in segregation in federal prisons, 165 of whom have been in solitary confinement for more than 15 days, according to numbers provided by the Office of the Correctional Investigator.
Lawyers with the CCLA argued that administrative segregation should be illegal in several circumstances, including when it exceeds 15 days; when there is no independent arbiter; when it isolates inmates under the age of 21; when it affects those suffering from mental illness and for inmates who are admitted for their "own protection." The judge found on Thursday that all these concerns were not addressed in the new bill.
A spokesperson for the Minister of Public Safety and Emergency Preparedness said the federal government can't directly comment on a matter before the court.
The new bill promises that an inmate would spend no more than 21 days in indefinite solitary confinement unless a warden specifically orders otherwise and where there are safety and security concerns and no reasonable alternative. The decision would be externally reviewed by the Minister of Public Safety but that person would have no power to release the inmates. Eighteen months after the bill's passage, the cap would drop to 15 days.
"For the first time, there will be a legislative framework that establishes a presumptive time limit for inmates confined in administrative segregation," said Scott Bardsley, a spokesman with the ministry. "These investments and legislation are important steps in addressing the needs of the most vulnerable in the federal correctional system."
The lawsuit states that the government needs to place a hard cap of 15 days in which a person can stay in solitary confinement. This, it says, would adhere to the the United Nations' Mandela Rules. According to those guidelines, solitary confinement is defined as segregation in the absence of meaningful human contact for 22 hours or more a day.
The court in Ontario has heard from a range of mental-health workers, Correctional Service Canada managers and professors.
Many of the witnesses spoke about the link between solitary confinement and several lasting psychological effects.
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.
With a report from Sunny Dhillon in Vancouver