Ottawa allowed 4-month reprieve to amend solitary confinement law struck down as unconstitutional

TORONTO – The federal government eked out a four-month reprieve for its solitary confinement law on Monday despite criticism from Ontario’s top court about Ottawa’s failure to address concerns around segregation practices over the past year.

A judge had struck down the law as unconstitutional a year ago, but put his ruling on hold for 12 months to give the government time to fix things. However, Ottawa said it was working on legislation and unable to meet Tuesday’s looming deadline.

It asked for an extension until the end of July 2019. The Canadian Civil Liberties Association, which is pressing the case, argued against any extension.

In its decision, the Ontario Court of Appeal extended the deadline until April 30, 2019.

“While Canada’s failure to address the concerns identified by the court is disappointing, we are satisfied that an extension of the declaration is necessary to enable the legislative process to be completed,” the Appeal Court said.

“Giving immediate effect to the declaration of invalidity, without any measures in place to protect those currently held in administrative segregation and Correctional Service of Canada personnel, would pose an unacceptable danger to such individuals and, ultimately, to the public.”

Administrative segregation is used to maintain security when inmates pose a risk to themselves or others and no reasonable alternative is available.

Last year, Superior Court Justice Frank Marrocco ruled that isolating prisoners for more than five days was unconstitutional. The system, Marrocco said, lacked proper safeguards. However, he also said banning the practice immediately would have been disruptive and dangerous, so he suspended his ruling for one year.

In asking for an extension, the government pointed out that Bill C-83, introduced in October, was currently before a Parliamentary committee. It argued the legislation, if passed, would eliminate administrative segregation and replace the practice with “structured intervention units” that, among other things, emphasize “meaningful human contact” for inmates and enhance their access to programs and services.

Placement decisions, the government said, would also be subject to a fair and independent review process – a key issue Marrocco found with the current law.

The civil liberties association, for its part, argued the government had done nothing to deal with the Marrocco ruling over the past 12 months and was now asking the court to “perpetuate an unconscionable system.” Bill C-83 would not deal with the problem, the group said.

The Appeal Court on Monday also expressed concern at Canada’s failure to explain the delay in tackling Marrocco’s decision or to take steps in the interim to limit the breach of inmates’ charter rights. The court also questioned Ottawa’s failure to lay out exactly how the proposed legislation would address the constitutional problem.

The government responded by promising to improve conditions in administrative segregation by July 31, 2019, but the Appeal Court was not impressed.

“The material filed by the (government) does not address the concerns of this court,” Chief Justice George Strathy wrote for the court.

Michael Rosenberg, an association lawyer, said he was heartened by the Appeal Court’s comments. The relatively short extension of the stay, he said, signals that the courts are watching Parliament’s progress.

“Far too many continue to languish for far too long in deplorable conditions of extreme isolation,” Rosenberg said. “Canada’s lack of meaningful action on an issue of such profound importance is indeed disappointing.”

The Appeal Court has yet to rule on a challenge by the civil liberties association to part of Marrocco’s judgment that the harms of severe isolation – even when the mentally ill or young adults were involved – can be mitigated by appropriate monitoring.

The association wants a ban on isolation for mentally ill and young adult inmates, and a general hard cap of 15 days for others.

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