Top court to ex­am­ine soli­tary con­fine­ment

Vancouver Sun - - CITY -

The Supreme Court of Canada will re­visit pro­vin­cial court rul­ings in B.C. and On­tario that de­clared fed­eral pro­vi­sions on the soli­tary con­fine­ment of pris­on­ers to be un­con­sti­tu­tional — an ex­am­i­na­tion that could have im­pli­ca­tions for new leg­is­la­tion in­tended to im­prove pro­ce­dures for sep­a­rat­ing in­mates from oth­ers.

The high court agreed Thurs­day to jointly hear the fed­eral gov­ern­ment’s chal­lenges of the pro­vin­cial ap­peal court de­ci­sions.

The Supreme Court also said it would hear cross-ap­peals from civil lib­er­ties groups in each case that ar­gue the pro­vin­cial de­ci­sions did not go far enough.

The On­tario Court of Ap­peal ruled in March that pro­longed soli­tary con­fine­ment con­sti­tutes cruel and un­usual pun­ish­ment, vi­o­lat­ing the Char­ter of Rights and Free­doms.

It placed a hard cap on the prac­tice, say­ing in­mates could no longer be iso­lated for more than 15 days due to “fore­see­able and ex­pected harm which may be per­ma­nent” from lengthy seg­re­ga­tion.

In June, the B.C. Court of Ap­peal said the prac­tice breached the right to life, lib­erty and se­cu­rity of the per­son in al­low­ing in­def­i­nite iso­la­tion and fail­ing to pro­vide ex­ter­nal review of de­ci­sions to seg­re­gate in­mates.

Al­though it asked the Supreme Court for per­mis­sion to con­test the pro­vin­cial de­ci­sions, the fed­eral gov­ern­ment brought in new leg­is­la­tion it said would end the prac­tice of seg­re­gat­ing pris­on­ers who pose risks to se­cu­rity or them­selves. Bill C-83 came into force Nov. 30.

The gov­ern­ment says in­mates re­quir­ing iso­la­tion will now be kept in “struc­tured in­ter­ven­tion units” that al­low bet­ter ac­cess to pro­gram­ming and men­tal-health care and en­sure hu­man con­tact.

An ad­vi­sory panel, chaired by Univer­sity of Toronto crim­i­nol­o­gist An­thony Doob, has been ap­pointed to mon­i­tor im­ple­men­ta­tion of the new in­ter­ven­tion units, said Mary-Liz Power, a spokes­woman for Pub­lic Safety Min­is­ter Bill Blair.

In­de­pen­dent, out­side de­ci­sion mak­ers with ex­per­tise in hu­man rights, crim­i­nal law, In­dige­nous is­sues and ad­min­is­tra­tive de­ci­sion mak­ing are able to review cases of in­mates in the units, Power added.

Rights or­ga­ni­za­tions have crit­i­cized the changes as a mere re­brand­ing of long-stand­ing prac­tices.

As usual, the Supreme Court gave no rea­sons Thurs­day for agree­ing to hear le­gal ar­gu­ments about the pre­vi­ous regime.

But the high court’s com­ing review, for which no date has been set, will give the fed­eral gov­ern­ment, civil lib­er­ties groups and other con­cerned par­ties an op­por­tu­nity to stake out their po­si­tions on the highly con­tro­ver­sial is­sues.

The gov­ern­ment is ap­peal­ing to the Supreme Court be­cause the B.C. and On­tario de­ci­sions on the for­mer pro­vi­sions “make state­ments on the law, in­clud­ing the char­ter, that have im­pacts be­yond the case at hand,” said Power. “It is important to have clar­ity in the law.”

The Cana­dian Civil Lib­er­ties As­so­ci­a­tion, which took the fed­eral gov­ern­ment to court in the On­tario case, has ar­gued the new mea­sures will not end the cruel prac­tice of pro­longed soli­tary con­fine­ment.

The gov­ern­ment, by pur­su­ing its ap­peal in the Supreme Court, has made it clear that it will con­tinue to fight for the abil­ity to hold people in soli­tary for ex­tended pe­ri­ods, the as­so­ci­a­tion said Thurs­day.

“The harms of keep­ing a per­son in iso­la­tion can in­clude panic, de­pres­sion, rage, hal­lu­ci­na­tions, self-mu­ti­la­tion and worse,” said Noa Men­del­sohn Aviv, the as­so­ci­a­tion’s equal­ity pro­gram di­rec­tor. “This is a ter­ri­ble way to treat hu­man be­ings, and it is con­tra­dic­tory to the goal of com­mu­nity safety.”

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