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Canada Ottawa fails to act in time to stop lawsuit on solitary confinement

Trial over use of solitary confinement in federal prisons was delayed to July after Ottawa said it needed time to address lawsuit’s claims. But a B.C. judge on Monday says there’s still no sign of legislation.

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Ottawa is backing away from a pledge to introduce legislative reforms to the practice of solitary confinement in federal prisons this spring, putting a major lawsuit aimed at prison segregation back in play after a five-month adjournment.

The B.C. Civil Liberties Association and the John Howard Society of Canada sued the federal government in January, 2015, over the use of solitary confinement in prisons, contending that the practice violates the Charter of Rights and Freedoms. The trial had been scheduled to begin in January, but was pushed to July after the federal government applied in November, 2016, for it to be adjourned because new legislation could address many of the lawsuit's claims. But a B.C. Supreme Court judge said on Monday, in a proceeding related to the lawsuit, that there is no sign of legislation.

"There is no bill and there is no provision in the budget dealing specifically with commitments to remedy the problems that this case is about," Justice Peter Leask said.

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Read more: How a tweet led to unlocking Adam Capay's stint in solitary

Read more: Who killed Eddie Snowshoe: The fatal sentence of solitary confinement

Outside the court, Caily DiPuma, acting litigation director for the B.C. Civil Liberties Association, said it is "extremely disappointing" the federal government has not taken action. She said it publicly committed to do so and the parties have been awaiting progress.

Last fall, the federal government committed to bringing in new legislation governing solitary confinement.

Public Safety Minister Ralph Goodale on Monday rejected any suggestion the government is stonewalling the lawsuit and said he is looking for ways to move forward on the issue.

"Obviously, there have been consultations with the parties in the formal court process, but we are hard at work at the various options that could serve to achieve the objective," he said. "We're not in a position yet where we can formally announce the result, but the work is going on unabated."

Mr. Goodale said legislation "may well be" part of the plan.

"We're looking at other options as well," he said. "We know the plaintiffs in the case feel the legislative option is the most secure from their point of view, so that is actively one of the items that's under very real consideration."

The plaintiffs say legislative reform is the only way to address the many problems they see in the way federal prisons isolate inmates. The John Howard Society of Canada, for instance, has called for independent oversight of segregated inmates, a limit of 15 consecutive days on solitary admissions and an absolute prohibition on placing inmates with serious mental illness in solitary confinement.

Similar recommendations came out of a 2013 coroner's inquest into the death of Ashley Smith.

When Justin Trudeau led the Liberal Party to power two years later, he instructed Minister of Justice Jody Wilson-Raybould in her mandate letter to implement those recommendations.

The Department of Justice referred a request for comment to Correctional Service of Canada, which said it will not comment on the case while it remains before the courts.

Mr. Goodale, who oversees the Correctional Service, said last October he was working on a number of reforms that would overhaul the use of solitary confinement. The minister said at the time the new measures would include prison renovations, programming improvements and, potentially, a 15-day limit on segregation placements. The changes had been expected to go to cabinet before the spring budget.

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Joseph Arvay, one of the lawyers for the plaintiffs, said he doubts the government will fulfill the mandate letter. "… If they're not going to do it now, when would they possibly do it?" he said.

Justice Leask noted the federal government included an extra $58-million in the 2017 budget over five years to expand mental-health care capacity for federal inmates.

But Mr. Arvay said many of the issues at the root of the case have nothing to do with the budget.

"How much money do they need to impose a cap on solitary confinement? That's not a budgetary matter. How much money do they need to have independent external review? That's not a budgetary matter," he said.

The Globe and Mail has written extensively on the use of solitary confinement in Canada, including the 2010 death of Eddie Snowshoe after 162 consecutive days in segregation, and the more recent plight of Adam Capay, who was isolated in an acrylic glass-lined cell for more than four years without trial. The United Nations has said more than 15 consecutive days in solitary confinement constitutes torture.

Upon filing their lawsuit, the B.C. Civil Liberties Association and John Howard Society called Canada's solitary-confinement regime unconstitutional and argued it led to the deaths of prisoners and discriminated against mentally ill and aboriginal inmates.

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The Attorney-General of Canada, in its response to the notice of civil claim, denied the Charter rights of inmates had been violated. It said research on the effects of long-term segregation was inconclusive, and the legal action should be dismissed with costs.

With a report from Patrick White

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