Judge urged to avoid putting hard limit on soli­tary con­fine­ment

Winnipeg Free Press - - NEWS - LAURA KANE

ANCOUVER — A lawyer for the Cana­dian gov­ern­ment is urg­ing a judge not to strike down the coun­try’s soli­tary con­fine­ment law, say­ing the prac­tice can be nec­es­sary to pro­tect the safety of peo­ple and the in­sti­tu­tion.

Mitchell Tay­lor de­liv­ered clos­ing ar­gu­ments Wed­nes­day at a trial for a con­sti­tu­tional chal­lenge of in­def­i­nite seg­re­ga­tion filed by the Bri­tish Columbia Civil Lib­er­ties As­so­ci­a­tion and the John Howard So­ci­ety of Canada.

Pris­on­ers need to be iso­lated at times, Tay­lor ar­gued, in­clud­ing when they pose a threat to oth­ers or are in dan­ger of be­ing harmed in the gen­eral pop­u­la­tion.

“Ad­min­is­tra­tive seg­re­ga­tion is, in our sub­mis­sion, a rea­son­able, nec­es­sary tool for the safety and se­cu­rity of peo­ple — in­mates and staff — and for the in­sti­tu­tion,” he said in B.C. Supreme Court.

The cur­rent regime lim­its the prac­tice to cer­tain sit­u­a­tions, for the short­est pos­si­ble amount of time and as a last re­sort after all other al­ter­na­tives have been ruled out, he said.

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

The fed­eral gov­ern­ment in­tro­duced a bill in June that would set an ini­tial time limit for seg­re­ga­tion of 21 days, with a re­duc­tion to 15 days once the leg­is­la­tion is law for 18 months.

It at­tempted to stop the trial, say­ing the bill ad­dressed the con­cerns raised by the law­suit, but the judge re­jected the ar­gu­ment. There­fore the trial has fo­cused on the cur­rent sys­tem, not the pro­posed law.

Joe Ar­vay, a lawyer for the civil lib­er­ties as­so­ci­a­tion and the John Howard So­ci­ety, has asked Leask to strike down the cur­rent law and in­struct the gov­ern­ment to set a 15-day limit and es­tab­lish ex­ter­nal over­sight.

Ar­vay said the law vi­o­lates the Char­ter of

VRights and Free­doms and there are many in­mates in Canada that have been in soli­tary con­fine­ment for months or years, in­clud­ing one who has been seg­re­gated for 18 years. But Tay­lor ar­gued there should not be a hard limit on how long a pris­oner can be kept in iso­la­tion.

“A hard time cap is an ar­bi­trary set­ting of a cer­tain amount of time that is not sen­si­tive to the par­tic­u­lars of a given sit­u­a­tion,” he said.

He also said a time cap opens up char­ter issues for in­mates who must as­so­ciate with the pris­oner who has just been re­leased from seg­re­ga­tion, as well as for pris­on­ers who wish to stay iso­lated for their own safety.

Leask ques­tioned, how­ever, whether in­mates who were vol­un­tar­ily seg­re­gated were the sub­ject of the case.

Tay­lor ar­gued the cur­rent soli­tary con­fine­ment regime, which is a mix­ture of law and reg­u­la­tions, is ro­bust.

“It’s not a sit­u­a­tion where they’re put in and there are no pa­ram­e­ters that gov­ern what has to be done. There are.”

Tay­lor said the law re­quires seg­re­gated in­mates to be vis­ited once a day by a men­tal health pro­fes­sional as well as by a war­den and also gives them a right to le­gal rep­re­sen­ta­tion at re­view hear­ings, which de­ter­mine whether they should re­main in iso­la­tion.

But Leask replied that there was no ev­i­dence be­fore him that a seg­re­gated pris­oner had ever been able to ac­cess a lawyer. Fur­ther, Leask said, a Cor­rec­tional Ser­vices Canada rep­re­sen­ta­tive tes­ti­fied that lawyers were not al­lowed at the hear­ings.

In­mates in soli­tary con­fine­ment gen­er­ally lack the funds to hire a lawyer, the judge added.

“The right of a pen­ni­less pris­oner to re­tain and in­struct coun­sel with­out de­lay seems pretty empty.”


A new fed­eral bill could re­duce the time limit for prison seg­re­ga­tion to 15 days after the bill is law for 18 months.

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