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The long slog to fix solitary confinement in Canada

With no cap on time and no guarantee of independent judicial oversight over placement of prisoners in confinement, Bill C-83 could do little to make the practice constitutional.

Locked cell

The federal government has finally succeeded in passing a new legal regime for solitary confinement in Canadian prisons, the same week that another appeals court established that the existing regime is unconstitutional and amounts to torture.

There is no set schedule for when the new law — heavily amended at the 11th hour by a number of independent Senators — will come into force. But thanks to an extension from the Supreme Court of Canada, the government now has until this fall to draw up what those regulations and policies look like.

Last year, CBA National wrote about the slow going efforts to respond to the courts’ orders to end Canada’s use of solitary confinement and, more recently, whether or not its legislative package even passes muster with their findings.

The years-long legal saga, it seems, will continue.

Bill C-83 gets in under the wire

When Bill C-83 made it through the House of Commons earlier this year, there were calls to nix the bill entirely.

The legislation purported to put an end to solitary confinement — euphemistically referred to in the existing law as “administrative segregation” — opting instead for “structured intervention units.” Critics said it was a change in name only.

The new regime would allow inmates four hours outside their cell per day, with two hours of human contact. But there were concerns that such minimums were insufficient and, even then, not necessarily guaranteed.

The Canadian Bar Association wrote to the committee that the statutes establishing these units “are too vague and do not provide the necessary procedural safeguards to address any abuse of this new configuration of conditions of confinement.”

Indeed, many critics pointed out that C-83 puts no real limit on how long someone could be left in one of these units. International standards regarding the use of solitary confinement specifically call for a hard, 15-day cap on the isolation.

Improvements were made concerning oversight of prisoners' placement in these units. But critics wanted it to be done more independently.

The Liberal-majority committee allowed for some amendments to the bill at the House public safety committee. It reintroduced the principle that a facility ought to use the “least restrictive measures” — a measure supported by the CBA and others. However, there was no substantive change as to how inmates could be placed into these units, for how long, and whether independent oversight existed.

En route to the Senate, the 'bill's future was far from certain. Senators, including independent Kim Pate, signalled they would rather see the bill defeated than amended. (“Fixing up C-83 is more work than 'it's worth,” Pate told CBA National in March.)

But Pate and others did have a go at fixing it up.

At the Senate Committee on Social Affairs, Science and Technology, senators adopted a raft of amendments to the bill. These required superior court oversight for any inmate kept in a structured intervention unit for more than 48 hours, forbade the use of strip searches without reasonable grounds, and enshrined alternatives to prison in the law itself. Beyond that, the committee used its report to express general concern to the House of Commons that the staff and programming of these new units remained insufficient to handle the mental health toll isolation can visit on prisoners.

The wide-ranging report sparked a rare but increasingly common standoff between both chambers.

The Senate amendments were sent back to the House for debate. The government, ultimately, approved some changes, nixed others, and rewrote others down.

The House approved more mental health oversight for inmates, especially those being admitted to the units. It agreed with allowing more rehabilitation support but dismissed the suggestion there ought to be more community-based release programs. It also rejected a proposal to have superior court oversight of those in the structured intervention units.

However, the government inserted an external oversight process, by way of an external review committee, designed to be separate from the institutions or the prisons commissioner. The committee would review each case of a prisoner in a structured intervention unit one month after being placed there, and would continue to review their case. The committee can also intervene if the inmate has not received their requisite time outside their cell.

All of which amounts to more than what was in the first draft of the bill, though it remains well below judicial oversight. 'It's a framework that could still allow for long stretches spent mostly cut off from human contact.

It put the bill in a bind — amended, but not to the satisfaction of legislators in the upper chamber.

“If Bill C-83 does not include the 'Senate's amendments, prisoners will be better off if it does not pass,” Pate told her colleagues during debate. She and 25 other senators would vote against the bill when it came to its final vote. It still passed comfortably, with 56 votes.

Renaming an old practice

A week after C-83 passed through the Senate, the Court of Appeal of British Columbia handed down its ruling, mostly upholding a lower court ruling finding the existing law unconstitutional.

“The Act plainly authorizes indefinite and prolonged confinement in administrative segregation,” the appeals court wrote. It remarked upon the absence of “hard or soft caps...on the length of time an inmate can remain in administrative segregation.”

According to the B.C. Civil Liberties Association, which brought the case forward, the existing regime violates the rights of inmates and offends international prohibitions on torture. Also, some kind of cap on the amount of time spent in isolation is needed.

'Ontario's courts came to similar conclusions. The Ontario Court of Appeal went so far as to conclude that any legislative remedy must include a 15-day cap.

Alison Latimer, a partner at Arvay Finlay, represented the BCCLA before the B.C. appeals court, which reversed the lower 'court's declaration of invalidity on section 15, but upheld its findings concerning section 7.

“What I take heart from, in the decisions of both the B.C. Court of Appeal and the Ontario Court of Appeal, is that it makes really clear that prolonged, indefinite, solitary confinement offends constitutional rights in Canada,” she says.

Ottawa appears nervous about that prospect. It is appealing the Ontario Court of Appeal decision, asking the Supreme Court to reverse the opinion that a 15-day cap on segregation needs to be enforced. Bill C-83, now law, has no such cap. Finlay says that puts the new law on the firing line.

She says the government, effectively, is doing little more than renaming an old practice. “You can imagine that will also be unconstitutional — and for the same reasons that the courts have found,” she says.

What comes next?

While C-83 may be law, structured intervention units will not appear overnight. 'That's part of the reason the Attorney General filed for an extension on the declaration of invalidity until November of this year, which the Supreme Court granted.

Public Safety says they will likely need every day between now and then to get ready. “It is anticipated that by November 2019 the necessary infrastructure changes and staff hiring for implementation will be complete,” a spokesperson told CBA National. “The provisions that repeal administrative and disciplinary segregation and introduce Structured Intervention Units (SIUs), independent external decision-makers and health care units are anticipated to be in force by this time.”

That is unlikely to end this fight altogether, however.

As Latimer noted, there remains significant opposition to C-83, and many fear the new regime will be plagued by the same constitutional problems as the current regime, especially when it comes to Indigenous inmates and those living with mental illness.

Still, court rulings over the past few months have charted a path forward on improving conditions in Canadian prisons. Even if “they're not run by Ottawa — we know that conditions are often worse in provincial institutions," she says.

"I hope that the provincial institutions have been watching this litigation and hopefully they will be guided by the 'courts' articulation."