Appeal Court raps feds for inaction on inmate segregation; grants brief stay

TORONTO — A clearly unhappy Ontario Court of Appeal has granted the federal government another reprieve from an earlier ruling that found parts of its solitary-confinement regime to be unconstitutional.

In its judgment on Friday, the province’s top court rejected Ottawa’s request to give it until Nov. 30 to implement a proper review after an inmate has been in segregation for five days.

“This is unacceptable,” Chief Justice George Strathy wrote for the Appeal Court. “A remedy to the lack of an independent fifth day review of segregation placement decisions does not require the lengthy extension the (government) is seeking.”

Instead, the court “again with great reluctance” gave the government one final extension until June 17 — on condition the fifth-day review was implemented before then.

Separately, the federal government is fighting in the Supreme Court of Canada for a stay of an Appeal Court ruling that imposed a hard cap of 15 straight days for inmates in solitary.

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Michael Rosenberg, a lawyer for the Canadian Civil Liberties Association, applauded the latest decision.

“This is a strong signal from the highest court in the province that Canada cannot continue to turn a blind eye to the serious harm caused by its continued practice of solitary confinement,” Rosenberg said. “There could not be a clearer message: Canada must implement appropriate safeguards to prevent further abuses.”

The case began in 2015 when the civil liberties association challenged parts of the law that allows isolation to protect inmates or others in a penitentiary. The association argued such confinement could cause severe psychological harm and amounted to cruel and unusual punishment.

In December 2017, Superior Court Justice Frank Marrocco struck down some provisions. In particular, he took issue with the fact there was no meaningful, independent review within five working days of an inmate landing in solitary.

However, Marrocco said banning the practice immediately could have been disruptive and dangerous, so he suspended his ruling for one year to give Parliament a chance to fix the problem.

Ten months later, in October last year, the government said it needed more time to allow passage of Bill C-83 to address the issues Marrocco had found.

At the time, the Court of Appeal expressed its unhappiness that Ottawa had done nothing to fix the issue.

“The submissions by the (attorney general) did not address our concerns,” the court wrote. “The delay was not explained, interim measures to remedy the constitutional breach identified were not proposed, and it was not clear how Bill C-83 would address the problem.”

Nevertheless, the Appeal Court gave the government until April 30. 

This week, the government asked for yet another stay — until Nov. 30 — arguing the legislation was complex.

In rejecting the request, the Appeal Court said Ottawa had still done nothing to address Marrocco’s concerns. The government, the court noted, did not even start talking about how to remedy the constitutional defect until more than one year after Marrocco’s decision.

“This court remains where we were when the first extension was argued,” the Appeal Court said. “We have virtually nothing to indicate that the constitutional breach identified by the application judge is being or will be addressed in the future.”

The court did note the government’s newfound willingness to accept an order to conduct an internally independent fifth-working day review of segregation in the interim.

“Clearly, Canada now accepts that an independent fifth day review can be implemented pending passage of Bill C- 83,” the justices said. “Regrettably this was not the case on its first request for an extension in November 2018, and so the breach has been unnecessarily prolonged.”

Colin Perkel, The Canadian Press