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Lisa Kerr is an assistant professor at Queen's University, Faculty of Law

On Monday, the Ontario Superior Court ruled that the federal laws governing "administrative segregation" or solitary confinement are unconstitutional. But in reasoning that will shape the government response, the court found surprisingly little wrong with the laws.

In recent years, evidence has been mounting from the medical community on the harms of isolation. Tales of harrowing inmate experiences have stirred a new public understanding of solitary confinement as a form of torture. Multiple tort, human rights and constitutional lawsuits have been filed as segregation cells saw high rates of suicide and needless human misery.

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While the separation of inmates from the general population is legitimate in some cases, our federal legislative regime does not come close to mandating an appropriate system. The language is broad, ambiguous and unenforced. The laws authorize prison officials to lock inmates in cells for 23 hours a day, indefinitely. Segregation can be imposed for a broad range of loosely defined reasons. Serious misconduct is not required. Vulnerable inmates can be segregated, such as pregnant women or those with disabilities.

This new ruling focuses narrowly on the lack of an appropriate check on the decision to segregate. Describing how the legislation gives all the power to the "institutional head" or warden, who acts as both investigator and adjudicator, the court concludes that the scheme is arbitrary and procedurally unfair. Given that decisions to segregate implicate both the liberty and security of the person of inmates, the lack of adequate oversight violates Section 7 of the Charter of Rights and Freedoms.

The decision doesn't go much further than that. And while the court discusses the importance of "independent" oversight at length, the decision does not actually mandate independence. The court finds that an additional internal review, conducted by the Correctional Service of Canada (CSC), will suffice.

Contrast this with the current system of disciplinary segregation. Disciplinary court is overseen by independent chairpersons who are not employed by the Correctional Service. The court declines to require a similar regime for administrative segregation. This means that inmates facing indefinite segregation for an administrative reason don't get the same protection as inmates facing a 30-day maximum period of segregation imposed because of their own misconduct. Curiously, the court cites the interests of prisoners to justify this approach, stating that an independent process would take too long.

The court made careful and important findings of fact, but the findings generate no additional constitutional rulings. The court accepts the expert evidence about the substantial harms of solitary confinement, rejecting the government's suggestion that the practice can have benign effects. And yet, in a decision that cites no evidence from inmates who have experienced indefinite segregation, the court declines to find that it constitutes cruel and unusual punishment prohibited by Section 12 of the Charter. This decision leaves us wondering what penal method, if any, could violate Section 12.

The court also declines to endorse a constitutional time limit on the number of days that inmates can be isolated. This outcome is surprising given the court's treatment of the evidence. It would be one thing to reject or minimize the evidence on the extent of harm that solitary causes, but the court doesn't do that. The court recognizes that the effects of solitary are destructive and that the CSC waits for harms to develop before supporting or removing an inmate from isolation. The court also accepts that a cap on segregation time is achievable and mandated by international norms. The court still finds no constitutional breach on this basis and no need for additional, substantive protections at this stage.

The limits of the decision flow partly from the court's conclusion that the legislation could, conceivably, be administered in a constitutionally acceptable way. The court agrees that the CSC has failed to apply the law in various ways – such as by neglecting the legislative rule that the health of offenders be considered in all decisions – but maintains that the legislation is not itself the problem. Others have argued, compellingly, that a legislative scheme that authorizes indefinite isolation, especially of a mentally ill inmate, is unconstitutional on its face. Independent or not, additional reviews will not address these defects in the legislation.

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The government asked for the effect of the court's decision to be delayed for one year. The court agreed, on the basis that this would give Parliament sufficient time to draft new laws. In fact, Parliament is already doing that. Bill C-56, tabled in June, proposes to bring in reforms that may well exceed what this judgment requires.

Correctional physician Dr. Nader Sharifi speaks to Affan Chowdhry about the changes that occur when an inmate is segregated Globe and Mail Update
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