Solitary confinement is a form of imprisonment in which an inmate is isolated from the general population. During this time, they are kept in a small individual cell for 22-24 hours a day and have no contact with anyone but prison staff.  Commonly referred to as “solitary,” “Security Housing Unit (SHU),” or “the hole”, inmates may be placed in solitary confinement as punishment for violating prison rules or as a form of protection either from other inmates or from harming themselves.  Terms of solitary confinement have been shown to have severe and long term detrimental psychological effects.  Further, use of solitary confinement has been criticized as being disproportionately applied on the basis of sexual orientation, gender identity, race, religion, and mental health.

The harmful effects of segregation have been recognized in the recent case of Corporation of the Canadian Civil Liberties Association (CCLA) v Her Majesty the Queen 2017 ONSC 7491. In this case the CCLA requested a declaration that sections 31 to 37 of the Corrections and Conditional Release Act (“CCRA”), which allow the Correction Service of Canada to remove an inmate from the general population for a non-disciplinary reason, are unconstitutional as they infringe upon the rights granted in sections 7, 11(h), and 12 of the Charter of Rights and Freedoms (“Charter”). Specifically, the issue was “administrative segregation” which allowed a warden to order solitary confinement when an inmate is at risk from others or poses a risk to the security of the prison, with no statutory cap on the maximum amount of time that segregation could be ordered.

The CCLA argued that these practices amounted to cruel and unusual treatment, and that deprivation of meaningful human contact breached s.12 of Canadian Carter of Rights and Freedoms. Justice Marrocco ruled that this arbitrary and potentially biased system is improper given the severe deprivation of liberty and security of the person that takes place when an inmate is segregated, and the lack of independent review of the warden’s orders under this section. Because of these reasons, sections 31 to 37 of the CCRA were ruled unconstitutional. As banning the practice immediately could be disruptive and dangerous, Justice Marrocco put his declaration on hold for a year to allow Parliament to address the situation.

Despite this ruling, and Justice Marrocco’s finding that “placing an inmate in administrative segregation imposes a psychological stress, quite capable of producing serious permanent observable negative mental health effects” he rejected the argument that solitary confinement itself amounted to cruel and unusual punishment, even when applied to inmates aged 18 to 21 or the mentally ill.

In the unrelated case of British Columbia Civil Liberties Association and the John Howard Society of Canada v Attorney General of Canada 2018 BCSC 62, released January 17, 2018, sections sections 31, 32, 33 and 37 of the CCRA were again challenged. In this case the court went a step further than before, recognizing that the laws discriminate against mentally ill and Indigenous inmates, and ruling that a procedure of prisoner segregation must include time limits, which do not currently exist. Justice Leask did not prescribe a set number of days as the maximum allowable number, but considered 15 days “a defensible standard”. Again, the decision was suspended for 12 months to allow the government time to draft new legislation, which must include strict limits on the amount of time an inmate can be segregated.

While this decision is not binding on Ontario, the hope is that Parliament will take this decision into account when drafting new, more appropriate legislation under Justice Marrocco’s ruling.

One day after this BC decision, the Ontario government and the Human Rights Commission announced an agreement ensuring that inmates with mental health disabilities will no longer be placed in solitary confinement across the province.

If you have any questions or would like to find out more about the evolving law surrounding  solitary confinement, contact Cassandra or Kristen at DeMelo Law for more information.