UPDATE: Thursday, March 28, 2019
In an extraordinary decision, the Ontario Court of Appeal has ordered an end to prolonged solitary confinement in Canada’s prisons – in 15 days. Prolonged solitary is the confinement of a person for over 15 consecutive days in extreme isolation. In effect, the Court has ordered an end to the practice of housing inmates in these horrendous conditions. The decision states that solitary is capable of producing serious permanent negative mental health effects including altered brain activity, depression and suicidal ideation, confusion and hallucinations, paranoia, self-mutilation, and declines in mental functioning. The Court concludes that holding people in solitary for over 15 days “outrages standards of decency and amounts to cruel and unusual treatment,” and is unconstitutional.
This decision will come into effect in 15 days. This is an unusual remedy. Most constitutional victories nonetheless grant the government many months to create alternative laws. Here, however, the Court has put an end to the practice of prolonged solitary almost immediately.
Read the court’s decision here.
Monday, Nov. 19, 2018
For immediate release — TORONTO — The federal government has failed to meet its Ontario court-imposed deadline of tomorrow to fix its solitary confinement laws. So it has to beg the Ontario Court of Appeal for an extension this week.
“The feds have really bungled it this time,” said Michael Bryant, Executive Director of the Canadian Civil Liberties Association. “Not only did they break their election campaign promise to end indefinite solitary confinement, but now they broke their promise to Ontario courts to fix a law by tomorrow that the Ontario Superior Court found to be unconstitutional a year ago. The court gave them a year to fix their broken laws, and they’ve failed.”
Rights groups who have won court challenges against indefinite solitary confinement were in courts last week in BC and this week in Ontario, fighting the Crown’s botched plans to fix the law of solitary confinement in Canada. Tomorrow (11/20/18) at 10 a.m. the Canadian Civil Liberties Association (CCLA) will argue before the Ontario Court of Appeal that the federal government has run out of time, and CCLA will also appeal various findings of the Ontario Superior Court from 2017.
Courts in Ontario and British Columbia concluded that Canada’s existing law on solitary confinement violates s.7 of the Charter of Rights and Freedoms as it places prisoners at increased risk of self-harm and suicide and causes psychological and physical harm. The B.C. Court further held that that the laws are unconstitutional because they discriminate against the mentally ill and disabled, and against Indigenous prisoners. Each court suspended the effect of its judgment for a year to give Parliament time to comply.
But they didn’t. The feds “arrogantly bided their time, introducing a new bill a month before the deadline, knowing full well that Parliament couldn’t pass it in time. It’s maybe even too late to pass it before the next election,” said Bryant.
The federal Crown is asking the Court tomorrow to extend the one-year suspension of the 2017 order for a further seven months to permit Parliament to consider legislation “that has no prospect of addressing the Constitutional deficiency,” CCLA argues in its written brief to the Court, adding: “Canada makes this request without any evidence to explain either its delay in taking action or its failure to implement any interim measures to mitigate its continuing Charter breach.”
Last week, the BC Court of Appeal had the federal Crown squirming in its justification for failing to meet the deadline. Tomorrow, it’s their turn to face the Ontario Court of Appeal. Representing CCLA pro bono is Jonathan Lisus and Michael Rosenberg (details below).
Read CCLA’s Factum here.
Executive Director and General Counsel
McCarthy Tétrault LLP
Lax O’Sullivan Lisus Gottlieb LLP
Jonathan C. Lisus