Court rejects request to delay challenge to prison segregation

Bill will alter solitary confinement law

TORONTO — A constitutional challenge to Canada’s segregation laws should go ahead in September as scheduled despite objections from the federal government, an Ontario court ruled Thursday.

In rejecting Ottawa’s adjournment request, Superior Court Justice Frank Marrocco said the hearing would not get in the way of Parliament, which is dealing with pending legislation that aims to put limits on solitary confinement.

Even if the relevant bill were enacted, Marrocco said, the constitutional challenge would proceed anyway, so there would be no advantage to delaying a hearing.

At issue is the practice known as administrative segregation that civil liberties groups argue can amount to indefinite solitary confinement. Such isolation is frequently used to manage difficult inmates, especially those whose safety may be at risk in the general population.

The Canadian Civil Liberties Association and Canadian Association of Elizabeth Fry Societies maintain the current system subjects affected inmates to cruel and unusual punishment and violates their rights in several ways.

In response to the challenge and a similar one underway in British Columbia, the Liberal government introduced Bill C-56 last month. Among other things, the bill would limit administrative segregation to 21 days — falling down to 15 days 18 months after enactment. The bill also seeks to set up a quick, independent review process.

The government argued before Marrocco that the proposed legislation would address the constitutional concerns and that policy changes — due to take effect next month — would bar use of administrative segregation for inmates with serious mental disorders and those at risk of suicide or self-harm.

But the two groups argued, and Marrocco agreed, that the bill would not fix the impugned provisions.

“The CCLA contends that both the current and the proposed administrative segregation regimes permit indeterminate solitary confinement and are therefore constitutionally objectionable,” Marrocco said in his written endorsement.

“I am satisfied that the application challenges the constitutionality of aspects of the Corrections and Conditional Release Act that are not affected by the proposed amendments and that it is not, therefore, disrespectful of Parliament’s legislative process to continue with this application.”

While the government insisted the courts should defer to Parliament and allow the legislative process to proceed, Marrocco said it was clear the proposed changes wouldn’t affect part of the law that establishes criteria for isolating inmates.

The judge also declined to award costs, saying the government’s request for an adjournment was not meritless, even though he dismissed it.

The associations want a hard cap on any administrative segregation set at 15 days. They argue Bill C-56 would still allow a prison warden to keep someone in segregation beyond the presumptive limits. The proposed legislation also doesn’t address keeping adults aged 18 to 21 in segregation, they said. The case is already far advanced in terms of evidence gathering, and prehearing witness examinations are all but wrapped up.

“Extensive evidentiary record has been filed and cross-examinations are virtually completed,” Marrocco noted.