“Administrative segregation” is the controversial regime that authorizes indefinite, prolonged solitary confinement of federal inmates. Two recent trial decisions have declared this regime unconstitutional. As appeals of these decisions begin, this comment seeks to clarify how the trial decisions dealt with one key issue: does the Charter require firm time limits on the duration of solitary confinement?
Solitary confinement1 is practiced in federal penitentiaries through two regimes: “administrative segregation” and “disciplinary segregation.”2 While these regimes differ in purpose and procedure,3 perhaps the most striking difference is the duration of solitary confinement they authorize. Disciplinary segregation is limited to a maximum of thirty days,4 but administrative segregation can be indefinite.5 This aspect of administrative segregation has come under public scrutiny through high-profile cases of inmates being held in solitary confinement for years on end.6 Ashley Smith spent over one thousand days in segregation before she took her own life in 2007.7 The inquest into Ms. Smith’s death recommended that segregation be limited to a maximum of fifteen consecutive days and sixty days total per year.8
In 2015, Prime Minister Trudeau mandated the implementation of these recommendations.9 Since then, the federal government has introduced legislation that falls short of this standard. Bill C-56 creates a presumptive limit of twenty-one days, which reduces to a fifteen-day limit eighteen months after coming into force.10 However, the Bill allows wardens to override this limit, effectively maintaining indefinite solitary confinement.11 As the legislative process continues, constitutional challenges to the current regime are progressing through the courts. Trial decisions have recently been rendered in challenges in Ontario and British Columbia.12 This comment explores one aspect of this complex problem through a comparison of these decisions’ treatment of prolonged solitary confinement.
I. PROLONGED SOLITARY CONFINEMENT
“Prolonged solitary confinement” is defined by international law as solitary confinement in excess of fifteen days.13 The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)14 prohibits prolonged solitary confinement under the rule against “treatment that amount to torture or other cruel, inhuman or degrading treatment or punishment.”15 Both Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen16 and British Columbia Civil Liberties Association v. Canada (Attorney General)17 accepted these rules as non-binding international norms that inform constitutional analysis.18
II. SECTION 12: CRUEL AND UNUSUAL PUNISHMENT
The decisions both held that the current regime does not violate the guarantee against cruel and unusual punishment19 under s. 12 of the Canadian Charter of Rights and Freedoms.20 They reasoned that while segregation could violate s. 12, such violations were not inevitable and ought to be assessed on a case-by-case basis.21 However, the two decisions differed in their s. 12 analyses of prolonged solitary confinement.
In the Ontario Decision, Justice Marrocco considered a hypothetical instance of prolonged segregation and found that it could pass s. 12 scrutiny.22 According to Marrocco J., prolonged solitary confinement could comply with s. 12 as the regime provided for adequate monitoring of segregated inmates’ health, and inmates’ health was considered when deciding whether to maintain solitary confinement.23 Furthermore, Marrocco J. held that s. 12 was the correct test by which to assess the constitutionality of prolonged solitary confinement.24 Specifically, the principles of fundamental justice under s. 7 ought not be imported into this analysis.25 Therefore, because it did not inevitably amount to cruel and unusual treatment, prolonged solitary confinement was permissible under s. 12 of the Charter.
The British Columbia Decision presents a different approach. Although the challengers raised prolonged solitary confinement in their s. 12 argument,26 Justice Leask examined the administrative segregation regime as a whole rather than a hypothetical case of prolonged solitary confinement.27 As a whole, the regime could be administered in ways that complied with s. 12, and therefore was not unconstitutional on this ground.28
III. SECTION 7: LIFE, LIBERTY AND SECRUITY OF THE PERSON
Both decisions held that the regime engaged s. 7 of the Charter,29 which protects life, liberty and security of the person.30 However, the British Columbia Decision considered prolonged solitary confinement in the principles of fundamental justice analysis,31 which the Ontario Decision declined to do.32 Leask J. held the regime as a whole was not arbitrary, but the authorization of prolonged solitary confinement rendered the regime overbroad. Prolonged segregation “inflicts harm on inmates and ultimately undermines institutional security,” and therefore lacked a rational connection to the objective of safety and security.33 Leask J. declined to consider gross disproportionality.34
Under s. 1, Leask J. held that the regime lacked a rational connection to its objective, partly due to the overbreadth caused by prolonged solitary confinement.35 He found that the regime was not minimally impairing and suggested that including “strict time limits” would be a less-impairing alternative.36 He endorsed the fifteen-day maximum set by international law.37 Finally, Leask J. found that the deleterious effects of administrative segregation outweighed its salutary benefits, citing the “severity of harms—and corresponding rights infringement” in the case of prolonged solitary confinement.38 Thus, the regime unjustifiably infringed s. 7, largely due to its authorization of prolonged solitary confinement.
In addition to their different analytical approaches, the decisions also rely on different fact-finding regarding health monitoring of inmates in prolonged solitary confinement. Marrocco J. found that institutional monitoring could effectively assess the mental health of inmates in solitary confinement.39 This monitoring could then inform Charter-compliant decision-making regarding whether to continue solitary confinement. The challenger did not persuade Marrocco J. that monitoring was ineffective because they suggested that ongoing monitoring was necessary and did not argue that monitoring was incapable of detecting inmates’ worsening condition.40
In contrast, Leask J. relied on additional fact-finding about how health monitoring occurs “in practice.”41 Mental health visits are conducted through the “meal slot” in the cell door,42 and inmates lack privacy during visits.43 There is a lack of trust between inmates and mental health professionals, based on a perception that assessments are completed merely to “sign off on … continued segregation.”44 Mental health professionals carry heavy caseloads and monitoring tends to be cursory rather than meaningful.45 Thus, Leask J. “reject[ed] the Government’s argument that there are adequate safeguards in place to prevent psychological harm to segregated inmates.”46 The conclusion that monitoring enables Charter-compliant administration of the regime may not have been available on the facts found by Leask J.
Both decisions found the current regime unconstitutional. However, the Ontario Decision based this finding on narrow grounds related to the segregation review process.47 The British Columbia Decision identified more stringent constitutional requirements, including a holding of invalidity to the extent that the regime authorized prolonged, indefinite solitary confinement.48 The federal government is appealing the British Columbia Decision, while the challengers are appealing the Ontario Decision.49 As the future of administration segregation remains uncertain, the legitimacy of prolonged solitary confinement is a crucial question. The trial decisions’ different analyses of this issue may take on increased significance as appeals progress through the courts.
* BA (Saskatchewan), MA (Alberta), JD Candidate (Saskatchewan).
1 The federal government objected to the use of the term “solitary confinement” to refer to segregation in penitentiaries, but both decisions considered in this comment found that it met the definition of solitary confinement under international law. This is because inmates in federal segregation are confined to a cell without meaningful social contact for up to twenty-two hours each day (British Columbia Civil Liberties Association v Canada (Attorney General), 2018 BCSC 62 at paras 123, 137 [British Columbia Decision]; Corporation of the Canadian Civil Liberties Association v Her Majesty the Queen, 2017 ONSC 7491 at paras 43-45 [Ontario Decision]).
2 Corrections and Conditional Release Act, SC 1992, c 20, ss 31, 44(1)(f) [CCRA].
3 The purpose of the disciplinary system is to maintain order in the institution (CCRA, ibid, s 38), and disciplinary segregation is one possible sanction for inmates who have committed serious disciplinary offences (ibid, s 44(1)(f)). In contrast, administrative segregation is used to maintain the security of the penitentiary, protect ongoing investigations, or protect the segregated inmate (ibid, s 31(3)). Disciplinary segregation is only available if the offence is established beyond a reasonable doubt at a hearing (ibid, s 43(3)), while the procedural requirements to place an inmate in administrative segregation are comparatively minimal (ibid, s 31(3)).
4 Ibid, s 44(1)(f). Where multiple sanctions are served consecutively, the maximum is forty-five days (Corrections and Conditional Release Regulations, SOR/92-620, s 40(2)).
5 There is no time limit on solitary confinement in administrative segregation, subject to the condition that “[t]he inmate is to be released from administrative segregation at the earliest appropriate time” (CCRA, supra note 2, s 31(2)).
6 See e.g. “Solitary Confinement: How Four Peoples’ Stories Have Changed Hearts, Minds and Laws on the Issue”, The Globe and Mail (20 June 2017), online: <https://www.theglobeandmail.com/news/national/solitary-confinement-canada-required-reading/article35391601/>, archived: <https://perma.cc/CNY5-CXJB>.
7 The precise number of days Ms. Smith spent in solitary confinement is unknown, but it is estimated to be 1,047 (Sylvia Stead, “Public Editor: How a Mistake Keeps Getting Repeated”, The Globe and Mail (16 December 2014), online: <www.theglobeandmail.com/community/inside-the-globe/public-editor-how-a-mistake-keeps-getting-repeated/article22102484/>, archived: <https://perma.cc/GRV2-RL9B>).
8 Ontario, Coroner’s Jury, Coroner’s Inquest Touching the Death of Ashley Smith, by Dr. John Carlisle (Toronto: Coroner’s Court, 19 December 2013) at recommendation 29, online: <www.csc-scc.gc.ca/publications/005007-9009-eng.shtml>, archived: <https://perma.cc/X8DU-CBMB>.
9 Canada, Office of the Prime Minister, “Minister of Justice and Attorney General of Canada Mandate Letter”, (Ottawa: PMO, 12 November 2015), online: <pm.gc.ca/eng/minister-justice-and-attorney-general-canada-mandate-letter>, archived: <https://perma.cc/44FD-GRRU>.
10 An Act to amend the Corrections and Conditional Release Act and the Abolition of Early Parole Act, 1st Sess, 42nd Parl, 2017, cl 35.1(1).
12 Ontario Decision, supra note 1; British Columbia Decision, supra note 1.
13 UNGAOR, 70th Sess, Annex, Agenda Item 106, UN Doc A/RES/70/175 (2015), r 44.
15 Ibid, r 43.1.
16 Ontario Decision, supra note 1.
17 British Columbia Decision, supra note 1.
18 Ontario Decision, supra note 1 at paras 49, 61, 154; British Columbia Decision, supra note 1 at paras 57-8, 560.
19 Ontario Decision, supra note 1 at para 270; British Columbia Decision, supra note 1 at para 534.
20 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
21 Ontario Decision, supra note 1 at para 271; British Columbia Decision, supra note 1 at para 533.
22 Supra note 1 at paras 264, 270.
23 Ibid at para 269.
24 Ibid at para 266. This seems to have been guided by the applicant’s approach, which challenged this aspect of the regime on the grounds that it was grossly disproportionate (ibid at paras 82-83).
25 Ibid at paras 266-67.
26 Supra note 1 at para 526.
27 Ibid at paras 533-34.
29 Ontario Decision, supra note 1 at paras 49, 61, 154; British Columbia Decision, supra note 1 at paras 57-8, 560.
30 The British Columbia Decision held that life, liberty, and security of the person were infringed (supra note 1 at paras 261, 274, 310); The Ontario Decision held that liberty and security of person were infringed (supra note 1 at paras 85, 101).
31 Supra note 1 at para 326-30.
32 Supra note 1 at para 266.
33 British Columbia Decision, supra note 1 at para 326.
34 Ibid at para 339.
35 Ibid at para 553.
36 Ibid at para 558.
37 Ibid at para 250.
38 Ibid at para 599.
39 Ontario Decision, supra note 1 at paras 233, 260.
40 Ibid at para 259.
41 British Columbia Decision, supra note 1 at para 303.
42 Ibid at para 291.
43 Ibid at para 292.
44 Ibid at para 295.
45 Ibid at paras 303-304, 306.
46 Ibid at para 306.
47 Supra note 1 at para 272.
48 Supra note 1 at para 609.
49 “Federal Government to Fight Solitary Confinement Ruling from B.C. Court”, CBC News (19 February 2018), online: <http://www.cbc.ca/news/politics/solitary-confinement-federal-gov-1.4541967>, archived: <https://perma.cc/YKQ7-XNBT>.