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opinion

Noa Mendelsohn Aviv is the director of the equality program at the Canadian Civil Liberties Association

A tremendous victory for basic humanity was achieved last week when the Ontario Court of Appeal ruled that prolonged solitary confinement is cruel and unusual treatment and that it violates Canada’s Charter of Rights and Freedoms. Justice Benotto’s decision in the appeal by the Canadian Civil Liberties Association has significant implications for the treatment of inmates in Canada’s prisons, and society.

Most importantly, by declaring that the state cannot hold inmates in solitary confinement beyond 15 days, the court in effect orders an end to the practice of housing people in extreme isolation. This decision is a significant win.

While the law never intended for prisons to use solitary confinement as anything but a last resort and only for the shortest possible duration, unfortunately, the practice in Canadian prisons has been otherwise. Far too frequently, prisons hold individuals in solitary for weeks, months and even years. Indeed, Canada’s new bill (C-83) proposes the creation of “structured intervention units” that would continue to house people in extreme isolation – with limited, inadequate relief for some.

Ordering an end to prolonged solitary confinement is a tremendous decision, but not a surprising one. Solitary confinement can result in depression, paranoia, hallucinations and suicidal ideation, to name just a few of its devastating harms.

Anyone who has experienced, or supported a loved one through, depression, hallucinations, or cognitive decline will understand the intense mental anguish they cause. It is not surprising that the court found it shocking that a government institution would continue to inflict treatment that can harm individuals’ mental health and functioning in this manner, especially when solitary can cause permanent, irreversible harm. Faced with reams of evidence to this effect, the court concluded that this amounted to cruel and unusual treatment.

Ensuring that individuals in Canada’s correctional institutions do not deteriorate mentally or decompensate is not just a matter of humanity, love and compassion. Cool-headed rationality suggests that if almost everyone in Canada’s prisons is ultimately released – and they are – then we will all live in a safer and better society if incarcerated individuals receive appropriate treatment and programming.

That this is the best possible outcome is evident even before we consider the traumas experienced by many people who find themselves in the criminal justice system, and even before we address the gross over-representation of racialized and Indigenous people in the system and Canada’s prisons.

Another astonishing yet unremarkable aspect of last week’s decision relates to the amount of time the court has given the government to change its ways. In most constitutional victories, where a court strikes down a law or practice because it violates fundamental rights and freedoms, the court gives the government many months (often a year or more) to fix the problem.

Not so in the ruling into CCLA’s appeal. Justice Benotto’s decision ordered that the end to prolonged solitary confinement take effect within 15 days. This outcome is astonishing only relative to other constitutional decisions. It is the only plausible conclusion. How could the court determine that prolonged solitary causes mental anguish and permanent harms to people’s mental health and still allow it to continue?

In any event, it is not as if Canada had no warning. Justice Arbour’s report with recommendations addressing solitary came out in 1996. The Ashley Smith inquest released its recommendations in 2013. The Ontario Superior Court in CCLA’s initial challenge invalidated the solitary confinement regime (for another reason) in 2017 and gave the government a full 12 months to create new legislation – which it did not do. Before missing that deadline, the government asked for an extension of time and was granted until April 30 of this year.

There have been other important cases as well. Just last week in the Brazeau class action, an Ontario court ordered the government to pay $20-million in damages for having confined people with mental illness in solitary. In January, an Alberta court found that the prolonged confinement of an individual in solitary amounted to cruel and unusual treatment in his case. And in British Columbia, in 2018, the BC Superior Court held in favour of the British Columbia Civil Liberties Association and the John Howard Society, invalidating the administrative segregation regime in Canada’s prisons on several grounds, including the finding that indefinite solitary is unconstitutional.

The devastating harms of solitary are well-documented, well-known, and have been so for a long time. The court in Brazeau makes this point nicely. It cites a passage which refers to “an immense amount of torture and agony which this dreadful punishment [solitary confinement], prolonged for years, inflicts upon the sufferers.” The passage is from the works of Charles Dickens, published in 1850.

It is high time the government stop fighting in the courts, stop harming people in Canada, and start reforming its institutions. No appeal is going to change the overwhelming evidence that extreme isolation of inmates as practised in Canada’s prisons is a devastating and shocking form of treatment – and it must come to an end.