The Court of Appeal for British Columbia has given the Canadian government more time to enact new legislation to replace its solitary confinement law.
A year ago, the BC Supreme Court ruled sections of the Corrections and Conditional Release Act that authorize the administrative segregation, also known as solitary confinement, to be unconstitutional. The government was given one year to enact replacement legislation. It filed an appeal with the BC Court of Appeal last November while also introducing Bill C-83 to amend the current Act.
On Tuesday. The Court of Appeal for BC dismissed the appeal but extended the deadline for the government to enact new legislation to June 17. The Court also imposed new conditions on how solitary confinement can be implemented in prisons in the meantime.
Why were the solitary confinement laws found unconstitutional?
The government has argued solitary confinement is a necessary evil in order to segregate violent inmates from the general prison population. It says it is only used when all other avenues to protect the safety of prisoners and prison staff have failed. It also argued inmates in solitary confinement are still afforded “meaningful” contact with other people every day.
The British Columbia Civil Liberties Association and The John Howard Society of Canada, who filed the original constitutional challenge, argue that solitary confinement does more harm than good by harming inmates’ mental health. They argue it defeats the purpose of prisons to rehabilitate criminals and, as a result, they pose a greater risk to public safety upon release.
Ultimately, the BC Supreme Court found solitary confinement laws, as they are currently conducted, to violate Charter Rights, such as Section 7, which protects “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. Another key finding was that the process whereby prisoners were put in solitary lacked oversight and inmates lacked the right to legal representation at segregation hearings.
The Court of Appeal for BC decision
The three-judge appeal court panel found that the concerns that lead to the solitary confinement laws being struck down continued to have “considerable force”. The concerns included a “significant risk of serious psychological harm” that it places on inmates. The law was also found to discriminate against Indigenous prisoners as well as those with mental illnesses.
The Court of Appeal was left in a bit of a bind with this decision. It had to weigh the BC Supreme Court’s function as guardian of the constitution against public safety concerns. Allowing the government to delay would mean the constitutional breach would continue in prisons across the country. Doing so could also undermine the effectiveness of the courts as guardians of the constitution. Dismissing the government’s request, however, would amount to a sudden and complete ban on solitary confinement and put the security of prisoners and prison workers at risk.
The Court balanced these two arguments by giving the government another six months to enact new legislation while stipulating a number of conditions that must be imposed until replacement laws are in place.
What conditions did the Court of Appeal impose?
The conditions the Court of Appeal for BC imposed on the Correctional Service of Canada include:
- Daily visits of health care professionals with inmates in administrative segregation must include a visual observation of the inmate, unless, due to exceptional circumstances, such observation would jeopardize the safety of Correctional Service of Canada personnel.
- Inmates in solitary confinement must be offered an additional 30 minutes of yard time each day, and have an opportunity to leave their cells for a minimum of two-and-a-half hours per day.
- Prisoners must be allowed to have legal counsel at hearings related to their placement in solitary confinement, and must be informed of that right.
- The government must ensure that Indigenous Elders routinely visit segregation units and be able to offer one on one counselling to Indigenous prisoners.
- The government must start to open units outside of solitary confinement for prisoners who do not wish to integrate into the mainstream prison population or who are assessed as being unable to integrate safely.
- A system of review of solitary placements must be created whereby “no inmate will remain in administrative segregation for more than fifteen days without such continued detention being authorized by a senior official who is neither the institutional head of the institution where the inmate is incarcerated nor a person who is subordinate to that institutional head.
These conditions answer many of the concerns raised at the original BC Supreme Court hearing while also allowing solitary confinement to continue in its current form until new legislation can come into place. The pressure is now on the government to do so before its deadline and, crucially, before the federal election.