Canada: The Fight Against Solitary Confinement

Last Updated: July 4 2017
Article by Katelyn Bell (Summer Law Student)

The issue of solitary confinement has been long-standing in Canada. Solitary confinement is meant to be ordered on a temporary basis, not on an indefinite one. In recent years, the issue has come to the forefront, after several Canadian inmates committed suicide while in solitary.

Ten years ago, Ashley Smith, a 19 year-old inmate in solitary, strangled herself to death in her cell while prison guards watched and videotaped it. Smith spent a total of 1,047 days in solitary confinement, and had been placed on high suicide watch. Unquestionably, Smith's lengthy stay in solitary was a contributing factor in her suicide.

Calls to limit the segregation of prisoners grew much louder after Smith's 2007 death, but unfortunately, the problem has persisted.

Last fall, a prison guard's tip-off to Ontario's chief human-rights commissioner revealed that Adam Capay – a 23 year old inmate – had spent over four years in solitary confinement, totalling 1,636 days: segregation analogous to torture.

Without question, the rights of those individuals confined to a single cell for such long periods of times violates their rights under the Canadian Charter of Rights and Freedoms. Under the Charter, Canadians have the right to life, liberty and security of the person, the right against unfair detainment, and the right to be free from cruel and unusual punishment.

In British Columbia, a trial seeking to challenge Canada's solitary confinement prison policies as "cruel and unusual punishment" is scheduled to begin on July 4, 2017. However, the Liberals are looking to halt this trial.

Why? Because the government is finally working on a solution to the inappropriate use of segregation.

An application filed with the Supreme Court of British Columbia on June 20, 2017 argues that proceeding with the July trial would be a waste of court resources, because the concerns about prolonged segregation are being addressed in new legislation – Bill C-56.

So, how are they being addressed?

The legislation introduced by the Liberals limits the amount of time federal inmates can be held in segregation cells. If Bill C-56 is passed, inmates would not be allowed to be held more than 15 days in solitary. But before the 15-day limit, Correctional Service Canada will have an 18-month transition period, during which time the cap will be set at 21 days.

These proposed time limits will of course be subject to safety and security requirements, and also, it must be ensured that other reasonable alternatives are available.

But 15 days is a long time...

Most of us have experienced "one-of-those-days," where whether at work, home, or anywhere, the day seems to go on forever. Imagine 15 of those. In a row. Although the new legislation will limit inappropriate segregation, 15 days still seems to be far too long to be in solitary. Again, the analogy can be drawn to torture.

While some argue to lessen the allotment from 15 to 5, others demand a total ban on segregation, calling it cruel and unusual punishment, and thereby a violation of the Charter. (see s. 12)

Ultimately, the bill is a step in the right direction. But because the bill has only received its first reading, there is no guarantee that the bill will be enacted. And if it is enacted, its form remains uncertain, as Parliament may choose to amend the legislation.

For this reason, those behind the lawsuit – the John Howard Society and the B.C. Civil Liberties Association – want the July 4 trial to proceed.

The government's application to adjourn the trial was heard on Friday in Vancouver. Justice Peter Leask reserved his decision, and the parties are due back in court tomorrow.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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