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Rights groups end litigation at SCC on solitary confinement

Wednesday, May 27, 2020 @ 12:38 PM | By Amanda Jerome

On May 27, the cross appeals at the Supreme Court of Canada brought by the British Columbia Civil Liberties Association (BCCLA), the John Howard Society of Canada (JHSC), and the Canadian Civil Liberties Association (CCLA) in respective solitary confinement cases were ended, which brought the litigation to a close.

According to a statement released by the CCLA, the rights groups have been “challenging the use of solitary confinement in federal prisons for years” and in 2019 they “secured significant victories when the top courts of British Columbia and Ontario ruled that federal laws authorizing prolonged, indefinite solitary confinement were inhumane and unconstitutional.”

The statement acknowledged that in April the federal government “finally abandoned its attempt to overturn these historic decisions at the Supreme Court of Canada.”

“These cases have shown that Canada must change the way it uses solitary confinement in its prisons. Time limits and independent external oversight are constitutionally required,” said Alison Latimer, counsel for the BCCLA and the JHSC in a statement.

“In the wake of these decisions, solitary confinement should no longer be used to warehouse prisoners with mental health issues and greater care must be taken to ensure conditions of confinement do not exacerbate inequality for Indigenous inmates. While these cases challenged federal laws, the reasoning should pave the way for significant change in both federal and provincial institutions across the country,” she added.

The rights groups have advocated in various cases, including: Canadian Civil Liberties Assn. v. Canada (Attorney General) 2017 ONSC 7491; British Columbia Civil Liberties Assn. v. Canada (Attorney General) 2018 BCSC 62; Brazeau v. Canada (Attorney General) 2019 ONSC 1888; and Reddock v. Canada (Attorney General) 2019 ONSC 5053.

The CCLA’s statement noted that the challenged legislation, ss. 31-37 of the Corrections and Conditional Release Act, has been repealed and the decisions from the Courts of Appeal in B.C. and Ontario “have been relied on in successful class actions brought by prisoners held in isolation.”

On the other hand, the statement explained, the rights groups are still concerned that Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, which was enacted in 2019 “will continue to allow prolonged, indefinite solitary confinement in federal prisons under a different name.”

“Additionally, a recent report from the Office of the Correctional Investigator indicates that the Correctional Service of Canada is placing prisoners in solitary confinement to limit the risk of transmission of COVID-19. Further, prolonged solitary confinement continues to be used in provincial jails,” the statement added.

Michael Bryant, the executive director of the CCLA, noted that the rights groups are “separate organizations that banded together to co-ordinate a powerful change to Canadian law, fought tooth and nail by both Harper and Trudeau governments, until this 11th hour withdrawal by the feds.”

Jessica Magonet, staff counsel at the BCCLA, stated that the groups will “continue to monitor the implementation of Bill C-83 to ensure the federal government is not circumventing the strong rulings from the B.C. and Ontario Courts of Appeal.”

“We are also monitoring the use of prolonged solitary confinement in provincial institutions. We will fight to ensure that prisoners are no longer subjected to this cruel and unconstitutional practice. We are extremely disturbed by the numerous reports that the Correctional Service of Canada is using lengthy solitary confinement to isolate prisoners during the COVID-19 pandemic. The health of inmates can and must be protected without resorting to this cruel practice,” she stressed.

Michael Rosenberg, of McCarthy Tétrault LLP and counsel for CCLA, stated that when the CCLA got involved with this issue there was a “law on the books that saw people locked away in tiny, sometimes windowless cells, for 23 hours a day or more, every day, indefinitely.”

“Too often they stayed locked away long after they were broken, and tragically, too many took their own lives to escape. The courts have unanimously condemned the practice of prolonged solitary confinement as cruel and unusual treatment that has no place in this country. Because the CCLA, BCCLA and JHS took a stand, there is now a 15-day hard cap with no exceptions. In abandoning its appeal to the Supreme Court, Canada has finally acknowledged this outside limit on human suffering,” he said.