Noa Mendelsohn Aviv is director of the equality program at the Canadian Civil Liberties Association.
There was a time when an unconstitutional government policy was not something lamented then simply rebranded. Once a court found it unconstitutional, the practice just ... ended, especially when politicians had campaigned against it. Not so solitary confinement – an old practice that today’s Parliament loves to hate, hates to love, but just keeps on doing.
Reading the latest court decision on solitary confinement (R v. Prystay, from Alberta), one doesn’t know whether to sigh with relief that another court got it so right, or cry over what took place. How could it be that a person in our country was held for 400 days in the deplorable conditions and extreme isolation that make up solitary confinement?
Justice Dawn Pentelechuk held that placing an inmate in solitary confinement for 400 days – where he suffered physical and psychological harms – was cruel and unusual punishment in violation of Section 12 of the Charter of Rights and Freedoms. She wrote:
"Societal views on what is acceptable treatment or punishment evolve over time. Forced sterilization, residential schools, lobotomies to treat mental disorders, corporal punishment in schools and the death penalty are all examples of treatment once considered acceptable. Segregation ravages the body and the mind. There is growing discomfort over its continued use as a quick solution to complex problems.”
And yet our federal government intends to maintain the practice of solitary confinement – now rebranded as “administrative segregation.” While the recently introduced Bill C-83 declares that it would “eliminate the use of administrative segregation,” the actual provisions of the bill would do no such thing. It is true that Bill C-83 would change the name of the “segregation unit” to the “structured intervention unit.” It would add a few daily hours out of cell for some inmates. And it would offer most inmates a shower and a few other minor improvements. However, Bill C-83 also would allow our penitentiaries to keep people in conditions of extreme isolation for at least 22 hours a day for undefined, perhaps indefinite periods.
But Bill C-83 has not yet been passed. The government can amend it, or better yet, introduce a new bill that truly eliminates solitary confinement. In doing so, the government could still seek to include any exceptions it thought necessary. If the government had evidence to support specific, rare, and very brief situations of isolation, this is something reasonable people could discuss.
Instead, unfathomably, Parliament is doubling down on Bill C-83 and fussing over what kind of independent review process is needed to keep someone in the newly named structured intervention units. To be sure, the concern about independent review is important, and is no doubt the government’s response to court decisions that struck down the administrative segregation regime in two recent constitutional challenges by the Canadian Civil Liberties Association and the B.C. Civil Liberties Association, respectively. The courts in Ontario and B.C. took issue with the lack of an independent review process when determining if someone should stay in solitary. However, this was not the only constitutional issue before the courts. CCLA and BCCLA also challenged the long, indefinite durations, segregation of people with mental illness, youth and those who simply asked to be safe, and the discriminatory use of segregation against Indigenous people. Many of these issues were accepted by the B.C. court. Most are back before the courts on appeal.
In striking down the administrative segregation regimes, the Ontario and B.C. rulings spend pages detailing the many harms, sometimes irreversible and permanent. These include hallucinations, depression, anxiety, loss of control, paranoia, self-mutilation and suicidal thoughts. These harms were researched and established by doctors and psychologists over many years.
Justice Pentelechuk’s recent Alberta decision attributes these harms to the extreme isolation faced by people in solitary. She wrote:
“Arguably, it is the lack of meaningful human contact that is the most pernicious consequence of placement in segregation. Human beings are not meant to be isolated, particularly not for extended periods. The longer a person is isolated, the more challenging it is to relate to others in an acceptable way.”
In her view: “Informed Canadians also realize that indefinite placement in segregation thwarts an inmate’s chance of successfully re-integrating into society.”
After all, as the Ontario court found, inmates leave solitary confinement deeply traumatized and socially disabled. Since most return to society, how can a practice that disables them in this manner be justified on the basis of safety?
Courts in Alberta, Ontario and B.C. have all found Charter breaches in relation to segregation, and all expressed grave concern over the harms associated with keeping people in extreme isolation. Even our federal government appears to concede these harms and recognize the need to eliminate this practice. Why else change the name of the unit? Why else would the government announce that its new bill will “eliminate the use of administrative segregation”? All we need now is for the government to keep this promise in a meaningful way.