Revised isolation techniques for prisoners remain unconstitutional, lawyers argue

Nearly five years after the John Howard Society of Canada used court action to force the government to overhaul its unconstitutional prisoner segregation techniques, the prisoners’ rights organization says federal prisons continue to isolate inmates illegally, foreshadowing another possible legal battle with Ottawa.

A John Howard-sponsored report set for release on Thursday highlights a series of problems with structured intervention, the prisoner segregation practice Ottawa introduced in 2019 to replace administrative segregation, which multiple courts had struck down for violating the Charter of Rights and Freedoms.

But the new regime, which places prisoners in what are known as structured intervention units, or SIUs, perpetuates many of those Charter breaches, the report says.

“SIUs cannot be said to have resolved the problems that rendered administrative segregation unconstitutional,” writes Rebecca Rabinovitch, the report’s author and a fellow with the David Asper Centre for Constitutional Rights at the University of Toronto. “These constitutional violations, and the SIU system that permits them, should not be permitted to continue.”

Under administrative segregation, prisoners could be held in cells the size of hotel bathrooms for upward of 22 hours a day without meaningful human contact. There was little oversight of decisions to prolong prisoners’ time in segregation, leading to scores of people spending more than a year in conditions that met the UN’s definition of prolonged solitary confinement, something the international body equates to torture.

In 2015, the John Howard Society, along with the B.C. Civil Liberties Association, challenged the administrative segregation regime in a British Columbia court, resulting in a judicial declaration that the practice was unconstitutional. A 2019 B.C. Court of Appeal ruling in the case coincided with a similar decision in Ontario court. Judges in both provinces said placing prisoners in solitary confinement required an external review process and a cap on the number of days people could be placed in isolation.

The cases forced Ottawa to scrap administrative segregation and introduce SIUs.

In SIUs, prisoners are supposed to be offered at least four hours a day outside their cells, including two hours of interaction with other people. In effect, the Correctional Service of Canada (CSC) could argue that it no longer practised solitary confinement.

But the report says these thresholds are not always met. It cites figures from the SIU Implementation Advisory Panel, an independent body struck by the federal government to monitor the new regime, which found that only 34.5 per cent of prisoners were offered their four-hour allotments every day they spent in SIUs. The data also show that 56.5 per cent of SIU stays exceeded 15 days, which is prohibited under the UN Standard Minimum Rules for the Treatment of Prisoners, also called the Nelson Mandela Rules. Those rules are broadly accepted by the international community, but they are not binding on Canada.

The report recommends that the federal government amend prison legislation to define solitary confinement as 22 or more hours a day in a cell with no meaningful human interaction, in accordance with the Mandela rules; prohibit solitary confinement lasting more than 15 days; bar prisoners with serious mental-health issues from being segregated; and ensure prisoners receive adequate time outside their cells.

“The report tells us that the Charter abuses found by two courts of appeal in this country have not been addressed through structured intervention,” said Catherine Latimer, executive director of the John Howard Society.

Ms. Latimer said it’s possible the organization could mount another legal challenge against Canada’s segregation practices, and she predicted that other lawsuits will begin to mount. Late last month, a Quebec court authorized a class-action lawsuit alleging that SIU placements of more than 15 days amount to cruel and unusual punishment.

Rather than expensive and prolonged litigation, Ms. Latimer said she would like to see some direction from the government to bring Canada in line with UN rules.

Other critics of SIUs say judicial oversight may be necessary to force federal prisons to comply with the Charter.

“The SIUs have been yet again proof that CSC and the government really cannot be trusted to enforce the rule of law and to ensure basic rights are respected,” said Adelina Iftene, a law professor at Dalhousie University’s Schulich School of Law.

In an e-mailed statement, CSC said SIUs are used only as a last resort for prisoners who can’t be managed safely in mainstream prisoner populations.

“CSC remains strongly committed to the successful implementation of this model,” the statement said, “and we welcome the ongoing contributions from our partners and oversight bodies.”

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