TORONTO – A constitutional challenge to Canada’s segregation laws scheduled to be heard in September should be put on ice in light of proposed legislation and policy changes that will address the issues raised, the federal government argued on Thursday.
In seeking the adjournment in Ontario Superior Court, a government lawyer insisted the courts should defer to Parliament and allow the legislative process to proceed.
“Parliament is now considering improvements to the statutory framework,” lawyer Peter Southey told Associate Chief Justice Frank Marrocco. “The attorney general asks you to adjourn this application, while parliament carries out its legislative responsibilities.”
At issue is the practice known as administrative segregation that civil liberties groups, who opposed the adjournment request, argue can amount to indefinite solitary confinement. The isolation is frequently used to manage difficult inmates, especially those whose safety may be at risk in the general population.
Two years ago, the Canadian Civil Liberties Association and the Canadian Association of Elizabeth Fry Societies launched the constitutional challenge. They argue the practice is harmful, amounts to cruel and unusual punishment, and means offenders are effectively punished more than once for the same crime. The associations want any administrative segregation stay beyond 15 days outlawed.
In response to the challenge, and a similar one pending in British Columbia, the Liberal government introduced Bill C-56 earlier this month. Among other things, the bill would limit administrative segregation to 21 days — a limit that would fall to 15 days 18 months after the legislation took effect. The bill also seeks to set up a quick, independent review process.
In addition, court heard that policy changes set for Aug. 1 would divert some vulnerable inmates — those with significant mental-health disorders, the self-harming or suicidal — from segregation to medical observation and care.
But CCLA lawyers argued the government’s “late-breaking initiatives,” even if they came to fruition, would still allow a prison warden to ignore recommendations to the contrary and keep someone in segregation beyond the presumptive limits. The proposed legislation also doesn’t specifically address keeping adults aged 18 to 21 in segregation, court heard.
“There is no end to indefinite administrative segregation in this bill, even if it becomes law,” CCLA lawyer Michael Rosenberg told Marrocco. “When the rubber hits the road, there’s no difference.”
Rosenberg called it an affront to the Constitution to punish people with 23-hour-a-day isolation just because other inmates may do them harm. But Southey maintained that administrative segregation is a last resort used in an “extremely complicated” prison environment. Hard caps on how much time someone could be kept in solitary could end up costing prisoners’ their lives, he said.
“You can’t put a fixed amount of time on the removal of a threat,” Southey said, noting that prison authorities need flexibility.
While the government lawyer suggested 18 months would be an appropriate hiatus for the proceeding, Rosenberg pointed out the case was already far advanced in terms of evidence gathering, and that pre-hearing witness examinations were almost wrapped up. Judicial guidance on an issue that currently affects hundreds of prisoners is vital, he said.
“Nothing in these proposed changes speaks to the kind of reorganization that the Canadian Civil Liberties Association says is so vitally necessary,” Rosenberg said. “We can’t wait.”
Earlier this week, British Columbia’s top court rejected Ottawa’s request for an expedited appeal of a decision refusing an adjournment of a similar but unrelated segregation challenge launched by the B.C. Civil Liberties Association and John Howard Society of Canada. That case is scheduled for an eight-week hearing starting July 4.
Marrocco said he would issue a brief written decision in the “next little while.”