For five years, the Trudeau government fought a legal battle to maintain the use of solitary confinement in federal prisons. Last week, it stopped fighting. Its officials said the government would drop a Supreme Court appeal of two lower-court rulings, effectively making it illegal to hold a person in solitary for more than 15 consecutive days.
That ought to be cause for celebration. Separating prisoners from others is a tool that sometimes must be used in prisons, but in Canada’s jails it has been terribly misused.
The infamous cases of Ashley Smith, a teenager who took her own life in 2007 after spending a total of more than 1,000 days in solitary, and Edward Snowshoe, an Indigenous man who took his life in 2010 after 162 consecutive days in solitary, were only the worst examples.
And it wasn’t just the federal system that was being medieval. A young Indigenous man named Adam Capay spent a mind-numbing 1,647 days in isolation in an Ontario prison, most of them in a cell that was perpetually lit. He had never been convicted of a crime, but was instead awaiting trial on a murder charge.
Those types of grotesque abuses are unlikely to ever be repeated in Canada, in either federal or provincial prisons.
The country was already headed that way last week, thanks in part to calls from the United Nations to end solitary confinement lasting 15 days or more, which it considers a form of torture.
Between 2014 and 2019, Correctional Service Canada (CSC) cut the number of federal inmates in solitary by more than half, from 800 to closer to 300.
Now, by deciding not to challenge a 2019 Ontario Court of Appeal ruling that said more than 15 days of solitary confinement is cruel and unusual punishment under the Charter of Rights and Freedoms, and an earlier ruling from a British Columbia court that came to the same conclusion, Ottawa would seem to have put an ugly past behind it.
But there is a catch. When the Trudeau government announced last week that it was dropping its appeal, it argued it was doing so because the abusive form of solitary targeted by the courts no longer exists in Canada, thanks to a reform that came into effect last year.
Under Bill C-83, the CSC can still segregate violent or mentally ill prisoners who are a threat to themselves or others, or whose lives are in danger, and they can still be held in segregation for an indefinite period.
But instead going into what the CSC used to call “administrative segregation," they will be sent to the same parking-space sized cells in what is now called a “structured intervention unit," or SIU.
In an SIU, inmates will be given a minimum of four hours a day outside their cell, with at least two of those hours dedicated to “meaningful human contact,” such as social programs or mental-health care that could help them return to the general population.
That means the kind of abuse condemned by the UN – 22 hours or more hours in a cell without meaningful human contact – and which was the basis for the court challenges, technically no longer exists in federal prisons.
Except that it still could. The new law also says that a case review of an inmate held in an SIU will only be triggered if the inmate does not get his or her minimum hours out of a cell, or minimum hours of meaningful human contact, for five straight days, or for 15 days out of 30.
Put another way, an inmate could remain locked in a cell for 14 non-consecutive days a month, with no meaningful human contact, for months on end.
There is no question that prisons must have some way to isolate inmates who are at risk, or a danger to others. And there are sometimes lockdowns in jails that can make it impossible for inmates to leave their cell for several days.
But Ottawa refused to consider proposed amendments to its law that would have moved mentally ill inmates from federal prisons into provincial psychiatric facilities, and let some Indigenous inmates in segregation return to the care of their communities.
The Trudeau government’s new law only does enough to make two court rulings irrelevant on a technicality. Yes, the absolute worst abuses of the past are unlikely to repeat themselves. That is not nothing. But it’s only a halfhearted, half reform.
Know what is happening in the halls of power with the day’s top political headlines and commentary as selected by Globe editors (subscribers only). Sign up today.