On January 19, 2015, the BCCLA and John Howard Society sued the Federal government over issues regarding solitary confinement in Canadian prisons.

The lawsuit describes that the use of solitary confinement – subjecting a prisoner to isolation for up to 23 hours a day for often months or years at a time – results in cruel and unusual punishment. The UN has even stated that more than 15 consecutive days of solitary confinement amounts to a form of torture.

In Canada, the solitary confinement regime offends fundamental procedural safeguards.Prisoners are hardly informed as to their reasons for their isolation and do not have the ability to instruct counsel (speak to a lawyer) without delay. They are not aware of their rights and are not able to have external oversight concerning their confinement.

Solitary confinement has detrimental effects to those who have pre-existing mental health conditions or those who have a background of trauma. Its effects have been noted as discriminatory against mentally ill prisoners as well as Aboriginal prisoners as it exacerbatesexisting issues. This had led to thousands of deaths – particularly due to suicide.

Lawsuit Claims

The lawsuit claims that sections 31, 32 and 33 of the Corrections and Conditional Release Act that maps out the framework of “administrative segregation” violates:

  • Section 7 – protection of life, liberty and security of the person and ss. 9 and 10 (protections against arbitrary detention)

It also violates the following sections of the Canadian Charter of Rights and Freedoms:

  • Section 12 – prohibition against cruel and unusual treatment
  • Section 15 – Protection of equality

Other Factors

An issue discussed among lawyers at this time is the lack of transparency. Reforming this has presented difficulties because the statistics are not clear, and there is hardly any reliable data on the state of this situation. The only information that has been available was through litigation and many lawyers believe that we can’t fix this problem until we truly understand it.

The problem according to Lisa Kerr, an assistant Professor of Law at Queens University, is that prisons are some of the least scrutinized institutions in Canada. It has also been learned that easy-to-implement measures like segregation are how workers are taught to manage prisoners. There is no mental health training or education and workers are not attuned to protocol regarding social needs. As a result, they are forced to rely on inhumane techniques because they do not know any better.

The case is to be heard at the Supreme Court of British Columbia, represented by Joseph Arvay, QC, and Alison Latimer of Farris, Vaughan, Wills & Murphy LLP.