Ottawa’s appeal of ruling on solitary confinement draws rebuke, ridicule
Prolonged solitary confinement is considered torture — “the most individually destructive, psychologically crippling and socially alienating experience that could conceivably exist within the borders of the country.”
The litany of side-effects includes anxiety, withdrawal, hypersensitivity, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, rage, paranoia, hopelessness, a sense of impending breakdown, self-mutilation and suicide ideation.
It is considered next to useless as a rehabilitative tool, yet the federal government is unconscionably appealing a historic B.C. Supreme Court ruling that struck down as unconstitutional its “administrative segregation” regime.
“Instead of now doing everything it can to stop any other human dying alone in a cell, the government is defending the practice,” lamented Jay Aubrey, staff lawyer of the B.C. Civil Liberties Association, her voice heavy with emotion at a media conference Tuesday. “For everyone who has survived solitary confinement, for those who are still locked away, for those who will never get a chance to leave, we’re not going to turn away from your suffering — we’re going to continue to fight . ... Solitary confinement is torture and we will not stand for it.”
The medieval punishment mindset of the former Conservative government must still grip the federal legal bureaucracy.
Ottawa doesn’t deny the decades of documented abuse; instead, it insisted the legislation was misapplied and the court should provide “guidance” on its interpretation, not scrub it because of mistakes by prison wardens.
“Evidence that the provisions were not administered with restraint does not lead to the provisions being constitutionally invalid,” the government asserted.
“Rather, this may show they were administered in an unfair manner in individual cases.”
It added that the two nonprofits behind the constitutional challenge — the BCCLA and the John Howard Society — weren’t victims and therefore disentitled to relief from the court.
Only individuals who had been affected could apply for a remedy, Ottawa maintained.
Josh Paterson, BCCLA executive director, ridiculed the suggestion the Liberal administration was seeking legal clarity; it was firing a broadside at the court ruling.
He was dismissive of the federal argument: “They’re essentially saying to the court, ‘Don’t worry, we’ve got this. We promise in future that we’ll administer the existing law in a way that doesn’t violate people’s constitutional rights. Just trust us.’ ... They would have us all believe they’ve learned a good lesson from this judgment but, boy, in the future they are going to do better.”
Justice Peter Leask’s 54,000word decision in January was pellucid and brutal.
He said the laws that permit prolonged solitary confinement violated the Charter of Rights and Freedoms, failed to provide an independent review of such decisions, deprived inmates of the right to counsel at the review, caused permanent harm and made prisons and society less safe.
He concluded the laws breached the right to life, liberty, and security of the person because segregation increased their risk of self-harm and suicide.
During a 36-day trial last year, experts testified that prolonged isolation can trigger mental illness where none existed and exacerbate pre-existing psychiatric conditions.
Thousands of prisoners were subjected to lengthy stints in solitary over the last 40 years — alone for up to 23 hours a day sometimes for months, sometimes years.
Victims of prolonged segregation, their families and families of individuals who have died in confinement gave passionate testimony of the anguish and suffering caused by such isolation.
The now-retired justice held the laws discriminated against the mentally ill, the disabled and First Nations, but he suspended the effect of his judgment for a year to give the government time to fix the situation.
Leask said there should be time limits of 15 days on solitary — longer periods are considered torture by the UN — and the government indicated it could implement that international standard.
There are about 14,000 inmates in federal institutions — nearly 700 women.
One in four incarcerated men and more than 40 per cent of imprisoned women spend some time in segregation annually.
The total in segregation declined from 815 in 2011-12 (five per cent of the total) to 430 in 2016-17 (three per cent of the total).
“While the average length of stay in AS in the 2015-2016 fiscal year was down 28 days, 43 per cent of inmates still stay in longer than 16 days, 26.9 per cent stay in longer than 31 days, 12.4 per cent stay in longer than 61 days, 9.1 per cent stay in longer than 91 days, and 5.7 per cent longer than 121 days,” the two groups said in their response.
The prime minister included as goals in his mandate letter to Attorney General Jody WilsonRaybould the abolition of indefinite solitary confinement and a ban on placing women in solitary for more than 15 days.
That has yet to occur.
Still, the government has a bill before Parliament that would place presumptive limits on segregation and provide for independent, external review.