SCC to hear appeals to rulings striking down indefinite use of solitary confinement

The Supreme Court of Canada has agreed to hear appeals to a B.C. court ruling last spring striking down the indefinite use of solitary confinement in Canadian prisons. 

The court on Thursday announced it would jointly hear the appeals to that ruling along with a similar case from Ontario that had also declared keeping an inmate in solitary confinement — known formally as administrative segregation — for longer than 15 days infringed on the charter prohibition on cruel and unusual treatment or punishment.

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In the B.C. case, the province’s Court of Appeal struck down indefinite use of solitary confinement under section 15 of the charter, which ensures equality rights, arguing the administrative provisions used by the Correctional Service of Canada (CSC) placed discriminatory burdens on Indigenous and mentally ill prisoners.

Under the current system, CSC officials are responsible for reviewing the use of segregation of prisoners in federal institutions.

The federal government petitioned the Supreme Court last fall to seek permission to appeal the ruling, while the British Columbia Civil Liberties Association and the John Howard Society of Canada sought leave to cross-appeal, arguing the B.C. ruling didn’t go far enough to protect the rights of prisoners. In particular, they wanted the court to impose a hard cap on the number of days an inmate can spend in solitary confinement and argued that they should have “granted different remedies for the breach of equality rights.”

The Supreme Court has agreed to hear both the government’s appeal and the opposing cross-appeal. 

The B.C. ruling upheld a decision from a lower court earlier in 2019, that, among other requirements, ordered the government to create a new review system that would require authorization from a senior official (that is not the head of the respective institution or their subordinate) to keep an inmate in segregation for more than 15 days.

The Trudeau government, however, passed Bill C-83 last spring that replaces administrative segregation in federal prisons with structured intervention units (SIU).

According to the government, inmates sent to SIUs are entitled to four hours outside of their cells daily, instead of two under the current system, and two hours of “meaningful human contact” every day, as well as access to mental programs and other supports.

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In the legislation, which partly came into force on Nov. 30, the head of the correctional facility must rule on whether to keep a prisoner in an SIU after five days of their admission and the corrections commissioner would then need to approve of keeping an inmate in an SIU 30 days after that decision and every 60 days afterwards.

An external decision-maker appointed by the public safety minister would need to review an inmate’s confinement in an SIU in certain circumstances.

In June, a spokesperson for then-public safety minister Ralph Goodale told iPolitics that the B.C. court decision did not make “any findings about the constitutionality of C-83,” noting the ruling specifically mentioned the legislation was not before the court and would abolish administrative segregation.

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