Finally, a Canadian court has reached a conclusion that long seemed inevitable: putting a prison inmate in solitary confinement for more than 15 days constitutes cruel and unusual punishment, in violation of Section 12 of the Charter of Rights and Freedoms.
Not only did the Ontario Court of Appeal make this landmark ruling last week, it also gave Correctional Service Canada an April 13 deadline to bring the new limit into effect. Barring a stay of the ruling based on a request by Ottawa to appeal the decision to the Supreme Court, it has barely two weeks to implement a major policy change.
Given that an appeal is expected, the CSC may have more time than that. But also given the evolution of this issue, it is now fairly certain that the days of isolating federal inmates for weeks, months or even years are officially over.
The ruling joins two other recent ones that put the federal solitary regime into doubt. Last year, a B.C. court said parts of the law governing solitary violated the Charter; last week, federal inmates won a class-action lawsuit against the CSC, when a judge found that the practice of isolating seriously mentally ill inmates was cruel and unusual.
Those rulings are an extension of a decades-old international movement to end the use of solitary confinement around the world.
In 2012, the United Nations Committee Against Torture called on Canada to abolish solitary for youths and prisoners with mental-health issues. The UN considers solitary a form of torture that should only be used in exceptional circumstances, and never as a routine aspect of prison life.
As well, federal and provincial human-rights and prison watchdogs have repeatedly called out the CSC, as well as provincial prison systems, for the dangerous overuse of solitary confinement as a convenient means of segregating unruly or dangerous inmates.
And then, of course, there were those two shocking deaths in federal prisons: Ashley Smith, a teenager who displayed obvious signs of mental illness but still spent more than 1,000 days in solitary before taking her own life in 2007, at the age of 19; and Edward Snowshoe, an Indigenous man who took his own life in 2010 after 162 consecutive days in solitary.
At the provincial level, no story better illustrates the psychological harm of long stays in solitary than that of Adam Capay. He spent 1,647 days in isolation in an Ontario prison, most of them in a cell that was perpetually lit. This inhumane treatment exacerbated his mental illness to the point that he began mutilating his face, torso and genitals with a pencil.
And so now the CSC has a short window to figure out how to manage its inmate populations without reflexively resorting to lengthy stays in solitary confinement.
It’s hard not to sympathize with the CSC. Like all prison systems, it is handed convicted criminals and told to rehabilitate them while overseeing their sentences. It has no control over how many people it must manage, and little control of its budgets. Some of the inmates have mental illnesses that may have been behind the reason for their incarceration. Prison officials have to keep all inmates safe, and so must find a way to segregate the most dangerous ones from the general population.
It’s not easy, and it wasn’t helped by the tough-on-crime years of the last Conservative government, with its emphasis on mandatory minimum sentences that put more pressure on the federal prison system.
And yet, the CSC has responded to calls to reduce the number of inmates in solitary, cutting the total from 800 in 2014 to 322 as of last week. As well, the Trudeau government is closing in on the adoption of Bill C-83, a proposed law that would create separate units for inmates who can’t be housed with the general population, whether for their safety or that of others, while offering them more health and rehabilitation services than are currently available.
If that came with enough money, it could be a workable solution. If it simply amounts to the cosmetic renaming of one part of every prison, it will be yet another failed attempt to address a pressing issue.
And C-83 does not respond to what now appears to be inevitable, and which could come into effect in a matter of weeks: a constitutional ban on stays in federal solitary that exceed 15 days. The court ruling is welcome, because it will finally force Ottawa and the CSC to do something they could, and should, have done long ago.