Canada's segregation laws under microscope as constitutional challenge gets underway

Canada's prison system lacks the rule of law when it comes to the use of solitary confinement, a court heard Monday.

A lawyer for the Canadian Civil Liberties Association called the system of administrative segregation unconstitutional and said a key statute must be rewritten to protect inmates from harm.

The association, which argues the practice amounts to indefinite solitary confinement, submitted evidence of several inmates kept isolated for years. The current law is flawed because it does not take into account the harm caused, Jonathan Lisus said.

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"The statute does not require one to turn its mind to the impact on the inmate or the reasons for the isolation," Lisus told
Superior Court Associate Chief Justice Frank Marrocco at the start of the week-long hearing. "There is no statute against the mentally ill, or against those who have done nothing and are placed in isolation because of incompatibility."

1 inmate in segregation for 138 straight days

No independent review of a segregation decision exists because the "isolator" can review itself, he said, adding that
"incompatibility" is too broad and generic.    

A variety of Canadian medical organizations argue solitary confinement for as little as 48 hours can cause psychosis,
hallucination, depression, anxiety, post-traumatic stress disorder and suicide, court heard. Long-term effects include impaired memory and confusion.

"There is no serious debate or controversy about the harm caused," Lisus said. "One of the roles of the justice system is
about rehabilitation and reintegration into society (and) this certainly doesn't help."

The lawyer cited an example of an inmate placed in administrative segregation for 23 hours a day, for 138 days "without doing anything." Another prisoner who needed protection from other inmates was sent to administrative segregation where he spent more than 580 straight days, court heard.

"There was nowhere else to go," said Lisus's co-counsel, Michael Rosenberg. "These are inmates who are in segregation through nothing they've done."

Practice should be banned for those under 21, group says

While there are no current limits to administrative segregation, disciplinary segregation is limited to 30 days.

In July, Marrocco rejected the federal government's attempt to delay the challenge because Parliament had proposed legislation to address the issues.

Two years ago, the liberties association and the Canadian Association of Elizabeth Fry Societies launched the constitutional challenge, arguing the practice amounts to cruel and unusual punishment, and means offenders are effectively punished more than once for the same crime.

The association wants administrative segregation to be limited to 15 consecutive days, and never used for the mentally ill or a person aged 18 to 21 years old.

In response to the challenge, and a similar one ongoing in  British Columbia, the Liberal government introduced Bill C-56
several months ago. The bill would limit administrative segregation to 21 days — a limit that would fall to 15 days 18 months after the legislation took effect.

The federal government is expected to detail its position later in the week. 

In their court factum, the government's lawyers say administrative segregation is a necessary, but restricted tool used
to maintain the safety of a person and the security of a penitentiary.

The hearing continues Wednesday.