CCLA Segregation Challenge

September 13, 2017

This page contains CCLA’s key legal materials, previous work, key decisions, and press for our constitutional challenge of the solitary confinement regime in federal penitentiaries.

updates

Update – 30 November, 2019

Canada’s “administrative segregation” regime is “gone,” after a long hard battle in the courts and before Parliament by CCLA and others. Unfortunately, however, this regime has been replaced by a regime called “Structured Intervention Units” (SIUs), which plans to continue to house inmates in conditions of extreme isolation. The new units and the new legal provisions will hopefully provide some amelioration in the lives of inmates. What the new law does not do is to guarantee many of the Charter rights that CCLA has been, and will continue to fight for, to protect people from the terrible harms of solitary confinement.

Update – 21 June, 2019

Bill C-83 (“An Act to amend the Corrections and Conditional Release Act and another Act”) is passed by Parliament and becomes law (though many of its key provisions are not yet in force). Several significant amendments include: the solitary confinement regime formerly known as “administrative segregation” is replaced by units known as “Structured Intervention Units (SIUs). These units continue to house inmates in situations of extreme isolation, however inmates are now supposed to be provided four hours daily out of cell and (or including) two hours daily of meaningful human contact, subject to certain exceptions and exclusions. In addition, after hearing from CCLA and others, the law now includes a system of independent decision-makers to review decisions concerning keeping inmates in the SIUs, to consider their conditions, and to review the situation of people with mental health issues in the SIUs. The new law also addresses certain mental health supports and supports for Indigenous inmates.

CCLA would like to see real reforms in Canada’s correctional institutions, and any amelioration that the new law may provide in inmates’ conditions of confinement would certainly be welcome. However the new law does not guarantee the rights the CCLA has fought for in court – some of which the court has upheld: there is no prohibition against keeping people with mental illness in extreme isolation; no guarantee that inmates will be able to receive the time out of cell or human contact that they so badly need; there is no prohibition against prolonged solitary confinement; and the independent review system only kicks in long after a person is placed in the SIU..

Update – 9 April, 2019

The Attorney General of Canada has asked the Supreme Court of Canada to hear an appeal into CCLA’s challenge. The government is also asking the Supreme Court for more time to implement the reforms ordered by the Ontario Superior Court and the Ontario Court of Appeal.

Update – 28 March, 2019

Another important victory: the Ontario Court of Appeal accepts CCLA’s appeal! The court finds that prolonged administrative segregation of any inmate – more than 15 consecutive days – is unconstitutional. The court holds that prolonged segregation causes foreseeable and expected harm which may be permanent and which cannot be detected through monitoring until it has already occurred. This outrages standards of decency and amounts to cruel and unusual treatment, and as such the provisions in the law are struck down for infringing section 12 of the Charter. The Court orders the government to implement this decision within 15 days.

Update – October 16-November 20, 2018

On October 16, the federal government introduced a bill – C-83 – that “did away” with the administrative segregation regime ,but replaced it with a regime called Structured Intervention Units (SIUs). While the bill’s provisions created certain measures that could be important for inmates in these new SIUs – allowing for four hours daily out of cell and two hours daily of human contact – the bill created exceptions and exclusions from these new measures. CCLA raised these and several other concerns before the House of Commons Standing Committee on Public Safety and National Security, where CCLA’s Noa Mendelsohn Aviv and Cara Zwibel appeared on November 20th. Among other things, CCLA maintained, the bill did not bring in the necessary reforms, it continued the practice of holding inmates in extreme isolation, and it continued to isolate young inmates, those who were not a danger to anyone, and those with mental illness and disabilities.. The bill also did not prohibit prolonged and indefinite solitary, and this early draft of the bill did not create an independent review process, as required by the Ontario Superior Court.

Update – May 14, 2018

The Canadian Civil Liberties Association, the British Columbia Civil Liberties Association and the John Howard Society of Canada hold a press conference on Parliament Hill calling for an end to indefinite solitary confinement. Read the joint press release here.

Update – April 6, 2018

The Canadian Civil Liberties Association filed their written brief to the Ontario Court of Appeal, as part of its ongoing efforts to stop the unconscionable federal practice of indefinite solitary confinement. More information here

Update – January 31, 2018

The Canadian Civil Liberties Association and the British Columbia Civil Liberties Association wrote to the Minister of Public Safety and Minster of Justice to ask that the federal government “change course” and end the court fight of solitary confinement. The joint letter can be found here.

Update – January 17, 2018

The Canadian Civil Liberties Association is appealing the decision of Associate Chief Justice Marrocco on several grounds, and it will argue that sections 31-37 of the Corrections and Conditional Release Act violate section 12 of the Charter of Rights and Freedoms because the confinement of inmates with mental illness and young inmates in administrative segregation constitutes cruel and unusual punishment. For more, please see our press release here.

Update – December 18, 2017

In a victory for civil liberties, Associate Chief Justice Frank Marrocco of the Ontario Superior Court struck down Canada’s solitary confinement laws as unconstitutional, following a three-year challenge by the Canadian Civil Liberties Association. For more, please see our press release here.

Update – Week of September 11-15, 2017

This week, CCLA is in court challenging solitary confinement practices in Canadian federal penitentiaries.

Hearing details:
Date: September 11, 13, 14, 15, 2017
Time: 10:00am
Location: Osgoode Hall, Courtroom #4
               130 Queen St W, Toronto, ON

September 11, 2017

Opening statements were made by CCLA’s counsel, represented by Jonathan Lisus and Michael Rosenberg.

CCLA’s represented in the challenge by Jonathan Lisus, Larissa Moscu, and Fahad Siddiqui (Lax O’Sullivan Lisus Gottlieb LLP), and Michael Rosenberg, Paul Davis, and Charlotte-Anne Malischewski (McCarthy Tétrault LLP).

September 13, 2017

On the second day of a four-day court hearing, CCLA counsel tells Court that Canada’s prison segregation regime is ‘structurally deficient.”

September 15, 2017

Court has heard from CCLA and Corrections Canada this week, and today was CCLA’s reply. In our reply, CCLA counsel Jonathan Lisus, of Lax O’Sullivan Gottlieb LLP, said that provisions are unconstitutional. Canada says new policies and directives address this. They do not, they entrench it. Canada is exposing inmates to a regime that can cause serious harm and is dangerous to their health.

They prohibit administrative segregation for persons with “‘serious mental illness with a serious impairment’…This is not good enough.” That is not how you administer a serious and humane correctional system.

The Mandela rules prohibit solitary confinement for more than 15 days. This is the international standard and Canadian courts have recognized this. The average stay in segregation in federal prisons is 24 days, almost double this standard.

Over the last 4 days, nowhere in our discussions has there been an explanation as to why it’s necessary, when there are alternatives available, to lock a person (i.e. someone seeking protection) in a room and leave them in isolation for 23 hours a day.

“It’s simple: the legislation and this practice is an artifact, a cruel artifact, from another time when the consequences of this practice were not understood. And now that it’s become a bureaucratic reality, there’s no principled, rigorous, bureaucratic, medical, scientific or constitutional justification for 23 hours a day in a cell. There needs to be a fresh look” says Jonathan Lisus.

 

expert testimony

Testimony from CCLA expert witnesses:

Juan Mendez
Professor Mendez was the United Nations Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, when he gave his opinion. He is now a Professor of human rights and international law at the Washington College of Law at American University in Washington D.C. He was a professor at Notre Dame Law School, and has taught at the School of Advanced International Studies at Johns Hopkins University, Georgetown Law School, and Oxford University. Professor Mendez served as President of the International Center for Transitional Justice and as Special Advisor to the Secretary General of the United Nations on the Prevention of Genocide. Additionally, he was President of the Inter-American Commission on Human Rights of the Organization of American States.

In Professor Mendez’s opinion, the Mandela Rules represent “an objective standard by which states and courts can determine whether in a given case that the person has been subjected to cruel, inhuman and degrading treatment, or in certain circumstances, torture.”

“…there has been quite a solid consensus that anything beyond 15 days is in violation of international standards. I’m sorry, even with mitigating circumstances.”

Andrew Coyle
Professor Coyle is a former Governor (Warden) of prisons housing some of the UK’s most dangerous inmates, Emeritus Professor of Prison Studies at the University of London, and author of an authoritative prison manual that has been translated into 16 languages. Professor Coyle was founding Director of the International Centre for Prison Studies at the University of London from 1997 to 2005, and in that capacity, he advised on prison management and reform in all regions of the world. He served as a consultant on prison matters for international organizations and governments including Brazil, Chile, Russia, Sweden, Spain, South Africa, Australia, New Zealand, China and Colombia, and at the time he prepared his report was engaged in an intendent review of the Irish Prison Service. He has provided expert opinions in U.K., Canadian and international proceedings on prison matters.

“I do not recollect anyone disputing the fact that the treatment of Ashley Smith amounted to solitary confinement. My understanding is that a number of prisoners in CSC custody are currently held in conditions of extended administrative segregation similar to those in which Ashley Smith was held. I find it difficult to accept the Government’s assertion that solitary confinement does not exist within the Canadian correctional system.”

Dr. Ruth Martin
A family physician practicing in Vancouver, who worked as a prison doctor and is Chair of the Prison Health Program Committee, Community of Practice in Family Medicine of the College of Family Physicians of Canada:

“The effects of isolation and segregation on an individual’s mental and physical health are well documented in the medical and psychiatric literature… After a few days in isolation, symptoms included, “problems of concentration, restlessness, failure of memory, sleeping problems and impaired sense of time an[d] ability to follow the rhythm of day and night” and after a few weeks of isolation, symptoms included, “difficulties with memory and concentration”, “inexplicable fatigue”, a “distinct emotional lability” that can include “fits of rage”, hallucinations, and the “extremely common” belief among isolated prisoners that “they have gone or are going mad” This study is consistent with more recently published studies, and also consistent with my observations and experience.”

Dr. Gary Chaimowitz
Dr. Chaimowitz is the Head of Forensic Psychiatry at St. Joseph’s Healthcare in Hamilton, Ontario with experience treating and assessing inmates who are, or have been, in segregation in correctional institutions. Dr. Chaimowitz has been licensed by the College of Physicians and Surgeons of Ontario since 1979, certified in Psychiatry by the Royal College of Physicians of Canada since 1988, and is designated as a Founder in Forensic Psychiatry by the Royal College of Physicians of Canada. Dr. Chaimowitz is also certified in Psychiatry by the American Boards of Psychiatry and Neurology.

“There is ample evidence to suggest that there are a number of consequences of solitary confinement. Solitary confinement can produce longstanding, lasting psychological effects, as well as producing acute side effects such as hallucinations, psychosis, posttraumatic stress symptoms, and the potential for suicidal or self-harming behaviours. These consequences may manifest themselves in individuals who have previously suffered mental illness. Where individuals already suffer mental illness there is a real danger that solitary confinement especially prolonged solitary confinement may cause serious trauma and may lead to a marked deterioration in their mental health. There is also evidence to suggest that longer periods and indefinite periods of solitary confinement can exacerbate the harm suffered, and can increase the likelihood of the traumatic consequences. Solitary confinement in excess of 15 consecutive days poses a serious risk of the psychological effects as described above. This risk grows as solitary condiment is continued, particularly if the individual does not have the certainty of a date on which it will end.”

Dr. Kelly Hannah-Moffat
Dr. Hannah-Moffat is a professor of Sociology and the former director of the Centre of Criminology and Sociolegal Studies at the University of Toronto. Dr. Hannah-Moffat was a policy advisor to Madame Justice Arbour on the Commission of Inquiry into Certain Events at the Prison for Women in Kingston April, 1994 and an expert witness for the Office of the Ontario Coroner in the Ashely Smith Inquest.

Professor Hannah-Moffat testified about the NYC Department of Correction and Department of Health and Mental Hygiene’s plan to eliminate solitary confinement with serious mental health issues, which will place prisoners in “clinical settings where they will receive a high level of individual and group therapy aimed at promoting treatment adherence and pro-social behaviours. Exchanging a punishment model for a treatment model will allow clinical staff members to decide how best to respond to problematic behaviour…”

 

CCLA Key legal materials

 

CCLA’s previous work

 

decisions

 

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