Ottawa is making a last-minute attempt to adjourn a landmark lawsuit challenging the use of solitary confinement in federal prisons, arguing that a bill tabled earlier this week would render the entire litigation superfluous if passed.
The 10-page adjournment application, filed on Tuesday and set to be heard in B.C. Supreme Court on Friday, marks the second time the federal government has tried to stall a legal action that seeks to have the use of solitary confinement in federal prisons ruled unconstitutional.
The two groups pursuing the lawsuit, which is scheduled to commence trial on July 4, have not be swayed. In a response filed on Wednesday, they contend that Bill C-56, tabled on Monday, “still does not comply with the Constitution.”
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The BC Civil Liberties Association and the John Howard Society of Canada sued the federal government in January, 2015. They argue that the practice of administrative segregation, as well as the legislative statutes that authorize it, violate multiple sections of the Charter.
Administrative segregation is the Correctional Service Canada term for the practice of isolating inmates up to 23 hours a day for an indefinite period of time. The Globe and Mail has published a series of stories about the adverse effects of administrative segregation beginning with a 2014 investigation into the death by suicide of Edward Snowshoe after 162 days in a solitary cell.
Both the BCCLA and the John Howard Society have long insisted that administrative segregation violates a host of Charter protections because it is prolonged and indefinite, lacks independent judicial oversight and unfairly targets mentally ill and aboriginal prisoners. They remain steadfast in that position despite this week’s developments.
“Bill C-56 … still does not comply with the Constitution,” states the response, signed by Joseph Arvay, lawyer for the plaintiffs. “Without hard caps and an independent external review with real power, the proposed law still permits exactly the kind of indefinite, prolonged and arbitrary decision making that the present law allows.”
In its adjournment application, the government claims that it has addressed those contentions.
Bill C-56 proposes a 21-day segregation threshold for all inmates locked away in segregation. Once the threshold is passed, inmates would need to be released from segregation, unless the prison warden commands otherwise in writing.
The bill would also create an independent reviewer who would examine all cases where inmates are kept in solitary longer than 21 days and make a recommendation to the warden on whether the inmate should be released.
Eighteen months after the legislation is passed, the threshold would drop to 15 days.
Meanwhile, Correctional Service Canada is tweaking internal policies to prohibit the placement of certain vulnerable populations in segregation, including those who are pregnant, physically disabled, suicidal or suffering form a serious mental disorder.
The adjournment application argues that those combined legislative and policy measures amount to a statutory overhaul that addresses “each of the aspects of the existing scheme about which the plaintiffs complain.”
An adjournment, the government asserts, is necessary for Parliament to “consider, explain and debate the proper parameters of a new administrative segregation regime” and prevent a costly duplication of efforts in the Commons and in the courts.
In December, the lawsuit judge delayed the trial date to give Ottawa time to introduce its long-promised segregation bill.
Government lawyers had argued the bill would render the litigation moot and that to move ahead with the lawsuit before the bill was announced would be counterproductive.
By early May, however, the bill had still not been tabled, prompting Justice Peter Leask to forge ahead with the trial.
Soon after Bill C-56 was tabled, many prisoner-rights activists deemed it insufficient. Many have called for a 15-day limit on segregation placements, a policy seemingly endorsed by Prime Minister Justin Trudeau when he instructed his Justice Minister to implement the recommendations of the Ashley Smith recommendations two years ago.
The jury in that inquest called on CSC to restrict the use of segregation to 15 consecutive days up to a maximum of 60 days in a calendar year, a limit supported by the United Nations.
The federal Liberals have characterized C-56 as setting a “presumptive time limit,” but prisoner-rights advocates say they are far too weak, requiring no more than a warden’s pen-stroke to be overridden.
“There is virtually nothing new there,” said Senator Kim Pate, former executive director of the Canadian Association of Elizabeth Fry Societies, which advocates for incarcerated women and girls. “My worry is that this proposed legislation might be perceived as changing significantly what will happen in prisons. My reading and my experience tell me it will not achieve that goal.”
Follow Patrick White on Twitter: @Nut_Graf
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