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The fight to end indefinite solitary confinement continues

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Josh Paterson, Executive Director, delivering remarks at a solitary confinement press conference prior to the BC Court of Appeal hearing.

On November 13th and
14th, 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 31st, 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.

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