On November 13^th and 14^th, BCCLA was at the BC Court of Appeal to defend our case on behalf of the many prisoners subject to the systemic injustice of Canada’s current solitary confinement regime. These injustices are created by the unconstitutional provisions of the Corrections and Conditional Releases Act (CCRA). Despite recent promises to end solitary confinement, the federal government continues to fight to overturn our BC Supreme Court ruling that Canada’s current practices are unconstitutional and violate fundamental human rights.

Our Articling Student Latoya Farrell was in court, to report back on the arguments for our supporters.

The Appellant AG (Canada)

Canada argued that the problem is not with the law itself, but with the way it is carried out. The evidence merely highlights the unjust administration of a constitutionally compliant law. They submitted that the trial judge conflated the unjust administration of the law in some cases with an actual unconstitutional law.

The CCRA allows for a prisoner to be placed in “administrative segregation” (a type of solitary confinement) if there is no reasonable alternative and if, on reasonable grounds, the institutional head believes that it’s necessary for security reasons. Canada argued that the Act presents administrative segregation as a tool of last resort and that there is a reasonable limit on the duration because prisoners are to be released “at the earliest appropriate time.” This, Canada urged, upholds the Act’s purpose by ensuring the safety of the prisoners and integrity of the prison.

On the topic of independent review, Canada argued that a review would be adequate if done by an internal reviewer who is separate from the warden’s circle of influence. However, as the BCCLA pointed out, allowing Corrections to conduct their own review means that there is a lack of oversight and accountability, which facilitates the violation of prisoners’ rights.

The Respondents – BCCLA and John Howard Society

The BCCLA and John Howard Society affirmed that because certain provisions of the CCRA authorize prolonged and indefinite solitary confinement causing serious and irreparable harm to life and security of the person, these sections must be struck down. It is not just the purpose but the effect of the law that must be examined. The appeal court recognized that the problem is systemic, and that the effect of the law must be examined in addition to its purpose.

We argued that isolation exacerbates certain mental illnesses, and prevents the administration of mental health treatments. Broad discretionary powers given to decision-makers leaves prisoners vulnerable to extreme periods in solitary confinement, causing grievous harm to their mental health. This harm flows directly from the law, which simply requires a “consideration [of] an offender’s state of health and health care needs”. We argue that this is not enough to address mental health needs.

Additionally, the current law has a disproportionate impact on Indigenous people who are overrepresented in prisons and in administrative segregation, often spending longer periods segregated than their counterparts. The additional burden suffered by Indigenous and mentally ill prisoners widens the gap between incarceration and rehabilitation.

We argued for the following minimum solutions:

1. The implementation of the United Nations standard 15 day time limit;
2. That no person with mental illness should ever be placed in administrative segregation;
3. That independent oversight is essential to accountability and dismantling the institutional bias that has allowed for these rights violations to continue.

Application for Extension of the Suspension

Relying heavily on the proposed Bill C-83, Canada requested an extension to the suspension of invalidity. Our ruling at the BC Supreme Court gave the government one year to end indefinite solitary confinement, to ensure that people with mental health challenges are never placed in solitary, to provide independent oversight, and to address the disproportionate impact on Indigenous people. Canada has requested an extension until July 31^st, 2019. They argued that this timeline would accommodate Parliament’s enacting Bill C-83 which, they say, institutes wide sweeping change to the current regime.

Even assuming the new Bill is passed, the Court was concerned about the reality of the timeline in light of the upcoming Federal election. Meanwhile people will continue to have their rights violated under the current solitary regime, so the court requested that the Government explain what it will do in the meantime to address the systemic problems.

Unfortunately, Canada was not prepared to provide this information at the time, so the court gave Canada two weeks to consult and make written submissions. We will then have one week to respond to their plan.