silhouette of person in dark cell, single beam of light on them.

At a Crossroads on Solitary Confinement

  • June 05, 2019
  • Michael Rosenberg

Indefinite solitary confinement remains an unfortunate reality in Canadian prisons. The purpose of so-called “administrative segregation” is to separate inmates whose continued presence in the general population of the prison would pose a threat to security.  In practice, however, segregated inmates are confined to tiny, sometimes windowless cells, for all or almost all their day.  There is no limit on the length of time that inmates can be held in solitary confinement, and there is no independent review of segregation placements.

Represented by McCarthy Tétrault and Lax O’Sullivan Lisus Gottlieb, the Canadian Civil Liberties Association challenged the practice of prolonged solitary confinement in Canada’s prisons. The CCLA led evidence from inmates, as well as experts in medicine, prison management, and human rights. Associate Chief Justice Marrocco of the Ontario Superior Court of Justice found that “there is no serious question the practice of keeping an inmate in administrative segregation for a prolonged period is harmful and offside responsible medical opinion.” He struck down the statutory provisions authorizing administrative segregation.

Justice Leask of the Supreme Court of British Columbia reached similar conclusions in a parallel action commenced by the British Columbia Civil Liberties Association and the John Howard Society. However, the declarations of constitutional invalidity in Ontario and British Columbia were suspended for one year to allow time to implement remedial legislation. Canada moved twice to extend the suspension, and “with great reluctance” the Court of Appeal for Ontario gave Canada until June 17, 2019 to comply. 

In the meantime, however, the Court of Appeal rendered its own decision on the CCLA’s challenge, expanding the findings of unconstitutionality. Justice Benotto found that solitary confinement in excess of 15 days amounts to cruel and unusual treatment that cannot be condoned in a free and democratic society. Rather than accept that holding, however, Canada has applied for leave to appeal to the Supreme Court of Canada, together with an interim stay that will permit it to continue its current practices.

Today we stand at a crossroads. Parliament is debating Bill C-83, which purports to end solitary confinement by replacing segregation with so-called structured intervention units. This change promises to increase inmates’ time out of cell and expand programming to provide meaningful human contact. While the details of these new units remain to be determined, they have the potential to improve the lives of segregated prisoners.

Unfortunately, Bill C-83 would continue the practice of extreme isolation for an indefinite period. Furthermore, Bill C-83 does not mandate independent review after the fifth working day of a placement, as Associate Chief Justice Marrocco required. Nor does it limit solitary confinement to 15 days, as the Court of Appeal required.  Additionally, Bill C-83 falls short of excluding from segregation vulnerable groups like the mentally ill, the young, and those seeking protection.  There is therefore reason for concern that Bill C-83 is already unconstitutional.

The CCLA recently shared its concerns with a Senate committee considering Bill C-83. It remains to be seen whether Canada will continue to resist the medical and legal consensus in an effort to maintain prolonged solitary confinement. Canada has an opportunity to end a barbaric practice and bring itself into conformity with international standards for the treatment of prisoners. In order to do so, however, it must abandon its application for leave to appeal, accept the courts’ findings, and turn the page on a dark chapter in correctional administration. For the hundreds of inmates who remain in solitary confinement today, such a change cannot come a moment too soon.

About the author

Michael Rosenberg, 2019 recipient of the OBA's Heather McArthur Memorial Award, is a partner in the litigation group of McCarthy Tétrault and an adjunct professor at the University of Toronto’s Faculty of Law. He is a member of the team representing the CCLA on its challenge to the constitutionality of prolonged solitary confinement, together with Jonathan Lisus, Larissa Moscu, and Charlotte-Anne Malischewski.