B.C. Appeal Court gives Ottawa more time to fix solitary confinement law

VANCOUVER - The Court of Appeal of British Columbia has given the federal government more time to fix its solitary confinement law after a lower court declared indefinite prisoner segregation unconstitutional.

The B.C. Supreme Court ruling last January gave Ottawa a year to enact replacement legislation, and the Appeal Court has now extended the deadline to June 17, with conditions to protect prisoners' constitutional rights in the meantime.

“While we are prepared to extend the suspension of the declaration of constitutional invalidity, that cannot be a justification for the federal government to maintain unchanged the conditions of inmates kept in administrative segregation,” a three-judge panel wrote in a joint ruling released Monday.

The conditions to protect prisoners include that health-care professionals must complete daily visual observations of inmates in solitary confinement and advise the institutional head within 24 hours if they believe the inmate must be removed from segregation.

The institutional head must then either remove the prisoner from solitary confinement “without delay,” or provide a written explanation of why the recommendation is not being implemented, the court said.

Segregated inmates must also be offered an extra 30 minutes of daily yard time, bringing their total time allowed outside their cells to 2 1/2 hours a day.

The court also ordered the Correctional Service of Canada to direct staff to inform segregated prisoners of their right to a lawyer and to allow lawyers to make submissions on behalf of inmates at solitary confinement review board hearings.

The correctional service must also take steps to have Indigenous elders routinely visit segregation units and offer counselling to Indigenous inmates, the court said.

The deadline to have most of the conditions in place is Jan. 18.

The B.C. Civil Liberties Association and the John Howard Society of Canada launched the legal challenge.

A nine-week trial in 2017 heard from former inmates who continue to experience mental health issues after being released and from the father of a 37-year-old man who hanged himself at Matsqui Institution in Abbotsford, B.C., following his placement in a segregation cell.

Jay Aubrey, litigation counsel for the civil liberties association, said Monday that prolonged solitary confinement causes severe psychological distress, causing some inmates to take their lives.

“This is the cost of solitary confinement. It's human lives. It's people that we love,” she said.

The advocacy groups also oppose a bill introduced in October. Bill C-83 would mean prisoners who pose risks to security or themselves would instead be moved to new “structured intervention units” and offered the opportunity to spend four hours a day outside their cells, with a minimum of two hours to interact with others.

However, the bill does not include hard caps on how many days or months inmates can be isolated from the general prison population.

Josh Paterson, executive director of the B.C. Civil Liberties Association, said he expects a further decision from the Appeal Court on the substance of the federal government's appeal, which is whether the B.C. Supreme Court got it right when it struck down provisions of the current law.

He said the federal government did not challenge some aspects of the lower court ruling, including that the government's actions might have violated the constitution and infringed the rights of Indigenous people.

He said his group has been raising its concerns about the new bill directly with Ottawa and plans to meet with government officials next week.

“We're going to continue to fight in Ottawa to make sure that this bill hopefully gets fixed, so it can bring real change that's meaningful for prisoners,” he said.

The Canadian Civil Liberties Association launched a separate case against solitary confinement in Ontario, and the Court of Appeal in that province has given the federal government until April 30 to enact new legislation.

Paterson said it's unclear which deadline the government must respect and Ottawa could ask the Ontario court to align itself with B.C.

A spokesman for Public Safety Minister Ralph Goodale welcomed the B.C. Appeal Court's decision in a statement on Monday.

“This additional time will be important as Parliament continues its consideration of Bill C-83, which will eliminate segregation and establish a fundamentally different system focused on rehabilitative programming and mental health care,” said Scott Bardsley.

He said policy changes have reduced administrative segregation placements by 57 per cent, from 780 in April 2014 to 340 in March 2018.