Prisoner isolation, declared unconstitutional 18 months ago, will remain legal for now after Canada’s top court granted Ottawa’s urgent request to allow the current law to stay in force for the time being.
The reprieve from the Supreme Court, pending a full hearing on the issue, sets aside a lower court order that would have made administrative segregation illegal after Monday.
The stay gives the Liberal government yet more time to enact a replacement regime aimed at fixing problems that prompted several courts to declare the current system a violation of the Constitution.
“It is disappointing that the attorney general is going to such lengths to perpetuate a practice that has been declared cruel and unusual,” said Michael Rosenberg, lawyer for the Canadian Civil Liberties Association, which successfully fought the law.
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In its request to set aside the deadline the Ontario Court of Appeal set in April, the government warned that banning solitary confinement without a practical alternative in place would create a dangerous situation in prisons.
Supreme Court Justice Suzanne Cote agreed the government had solid preliminary arguments and granted the stay request on Friday until the legal situation can be thrashed out “on an expedited basis.” That will be sometime after July 2.
Administrative segregation, authorized by the Correctional and Conditional Release Act, entails extreme isolation of inmates prison authorities deem a risk to themselves or others _ when no reasonable option exists.
Experts say segregation can have mental-health consequences that become more severe the longer a prisoner is isolated.
In December 2017, Ontario Superior Court Justice Frank Marrocco declared parts of the act unconstitutional due to a lack of independent oversight of inmate placement in solitary. Ottawa did not appeal that ruling.
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Marrocco also gave Ottawa a year to fix the problem but the government twice persuaded a reluctant Ontario Court of Appeal to allow it yet more time to remedy the situation through Bill C-83, currently before Parliament.
The government has steadfastly maintained the bill would address the court-identified problems by creating “structured intervention units” that would, among other things, give prisoners more meaningful contact with other people.
Legal and human-rights activists branded Bill C-83 as window dressing.
Last week, the Senate passed the bill with several changes designed to address the criticism. The government is now deciding whether to accept the amendments and it remains unclear when the proposed law might take effect.
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Scott Bardsley, a spokesman for Public Safety Minister Ralph Goodale, disputed suggestions the bill preserves solitary confinement under a different name.
“C-83 allows for the separation of inmates when that’s necessary for safety reasons, while providing programs, interventions, mental health care and meaningful human contact on a daily basis — all subject to binding external review,” Bardsley said. “As the summer recess approaches, it is vital that Parliament be seized with the future of our correctional system”
The bill would also scrap disciplinary segregation. Punishment instead would involve a loss of privileges, a fine, or the performance of extra duties.