Solitary Confinement Violates the Charter, Says Lawyer

August 31, 2017 1:03 pm Last Updated: August 31, 2017 6:05 pm

VANCOUVER—Solitary confinement is a cruel and inhumane punishment with “truly horrific” consequences including severe psychological harm and suicide, a lawyer says in arguing the law allowing the practice in Canada must be struck down.

Joe Arvay, representing the British Columbia Civil Liberties Association and the John Howard Society of Canada, delivered closing arguments in B.C. Supreme Court on Aug. 28 in a legal challenge of the use of indefinite isolation in prisons.

The constitutional lawyer argued that solitary confinement violates the Charter of Rights and Freedoms, including the right to life, liberty, and security of the person.

He named several prisoners who have killed themselves, among them 19-year-old Ashley Smith, who hanged herself in 2007. A correctional investigator found reason to believe Smith would still be alive if she had been removed from segregation and given appropriate care.

“It’s one thing if the law deprives a person of their liberty—that should be bad enough,” said Arvay. “Then you layer on top of that that it deprives a person of their psychological or physiological integrity. That’s even worse.

“And then you layer on top of that that it killed you. How much worse does it get?”

He said the so-called administrative segregation provisions of the Corrections and Conditional Release Act, which allow inmates to be locked in cells for up to 23 hours a day, are arbitrary, overly broad, and have grossly disproportionate effects on prisoners.

Some prisoners who are in solitary confinement in Canada have been there for hundreds and even thousands of days.

Arvay asked Justice Peter Leask to strike down the law and compel Parliament to establish external oversight of solitary confinement placements. Currently, segregated prisoners have a hearing after five days but its purpose is to decide whether they should be allowed out, not whether the placement was justified in the first place.

He said some prisoners who are in solitary confinement in Canada have been there for hundreds and even thousands of days, including one inmate at an unidentified prison who has been segregated for 6,273 days, or more than 17 years.

The government maintains that segregation is used when inmates are difficult to manage, their safety may be at risk, or if there is no alternative to maintain the safety and security of an institution.

The constitutional challenge was filed in January 2015. The federal government tried to stop the trial, saying legislation introduced earlier this year would impose a time limit on solitary confinement terms, but the judge allowed the case to proceed.

The proposed law would establish an initial time limit of 21 days in segregation, with a reduction to 15 days once the legislation is law for 18 months.

Mitchell Taylor, a lawyer for the government, said in his closing argument that isolating a prisoner is necessary at times, including when the inmate poses a threat to others.

He said the current law limits the practice to some cases, only when there is no reasonable alternative, and for the shortest amount of time.

Taylor said if Justice Leask finds problems with the law, he should not strike it down but rather identify the issues and allow Parliament to address them.

Arvay argued that United Nations rules for the treatment of prisoners say indefinite and prolonged solitary confinement amounts to “cruel, inhumane, or degrading treatment.” They are known as the Nelson Mandela Rules, named after the former South African president who spent 27 years in prison, including time in segregation.

He said the practice also broadly violates the principles of the charter, which include respect for the rule of law, the dignity of the human person, and a commitment to social justice and equality.

“Putting a prisoner in a cell the size of some people’s bathrooms, or what is, in fact, the prisoner’s bathroom, for 22 to 23 hours a day, without meaningful human contact, violates every one of those values,” he said.

“Putting mentally ill prisoners in those conditions must be seen as a further egregious affront to those values.”

From The Canadian Press