Segregation a last-resort measure, court told

The federal government recognizes potential harms of solitary confinement

The federal government argued in court on Wednesday that its use of administrative segregation is necessary and the practice is regulated by strict guidelines that consider the safety of the institution and the wellbeing of the prisoner.

Justice Department lawyers are responding to a constitutional challenge by the Canadian Civil Liberties Association, which argues that Canada’s practice of administrative segregation is harmful to inmates and unconstitutional.

The lawyers argued on day two of the four-day hearing that there is no evidence that the mental health of all inmates in administrative segregation will be harmed and that it is just a possibility.

That possibility is one reason why the civil liberties group wants an end to the practice.

Justice Department lawyer Peter Southey described the practice of isolating people as a last-resort practice used to ensure the safety of inmates and the institution.

“Penitentiaries are difficult and dangerous places,” Southey told Superior Court. “The law and policy very carefully balance the competing issues.”

Administrative segregation is allowed if a jail superintendent believes the inmate is in need of protection, if the inmate is a threat to the security of the institution or other inmates, if the inmate was alleged to commit serious misconduct or upon their own request.

The civil liberties group launched the constitutional challenge two years ago, arguing the practice does not meet international standards and amounts to cruel and unusual punishment because of the mental and physical health risks.

Lawyers with the association argued that administrative segregation should be illegal in several circumstances, including when it goes beyond 15 days — a time frame that would be in accordance with United Nations guidelines — and also when there is no independent arbiter.

It also calls for the end of the practice for inmates younger than 21, those suffering from mental illness and for inmates who are admitted for their “own protection.”

Southey told the court that the government does recognize the potential harms of administrative segregation and introduced changes in August to end the segregation of inmates who suffer from serious mental-health issues, those engaged in self-injury and inmates at an imminent risk for suicide.

As part of the changes inmates in segregation can also be outside their cells for up to two hours each day and have a shower.

“The changes to Correctional Services Canada administrative policies show that it is very aware of the potential harm that can occur from segregation,” Southey told the court.

Southey also argued that not using this practice for the mentally ill and younger prisoners would make it more difficult for prison officials and administers to keep the institutions safe, adding that an inmate’s healthcare needs, both mental and phys- ical, are monitored and supported.

The civil liberties group wrapped up their submissions Wednesday morning. The association’s lawyer, Michael Rosenberg, told the court that the focus should not be on whether “every” inmate in segregation will suffer, but rather that the mental and physical health risks exist at all.

“The statute is tilted ultimately in favour of the security of the institution and what is completely absent is the recognition of the harm to inmates and balancing that harm,” Rosenberg said. “Current safeguards do not provide a level of procedural fairness that is commensurate with the extreme deprivation of liberty.

“The harm done to the person is grossly disproportionate to the concept of keeping the institutions safe,” Rosenberg said, adding that the system around segregation is flawed in that prisoners are subjected to windowless cells with little meaningful human contact and sometimes lights the inmate cannot control. “There is no reason why they need to be in those circumstances,” he said.

The hearing continues Thursday.