by Derek Gilna

A Justice of the British Columbia, Canada Supreme Court has effectively gutted the province's solitary confinement policy as violative of prisoners’ human rights. Portions of the court's order were stayed for one year to give the province's department of corrections time to make the required changes. The court also found that the plaintiffs were entitled to attorneys’ fees and costs, although the amount had yet to be determined.

            In its sweeping order, authored by Justice Leask, the court found that "administrative segregation ... is a form of solitary confinement that places all Canadian federal inmates subject to it at significant risk of serious psychological harm, including mental pain and suffering, and increased incidence of self-harm and suicide. Some of the specific harms include anxiety, withdrawal, hypersensitivity, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, rage, paranoia, hopelessness, a sense of impending emotional breakdown, self-mutilation, and suicidal ideation and behaviour."

            "The risks of these harms are intensified in the case of mentally ill inmates. However, all inmates subject to segregation are subject to the risk of harm to some degree," the court continued. "The indeterminacy of administrative segregation is a particularly problematic feature that exacerbates its painfulness, increases frustration, and intensifies the depression and hopelessness that is often generated in the restrictive environments that characterize segregation."

            The court proceeding, initiated by the named plaintiffs John Howard Association of Canada, as well as the British Columbia Civil Liberties Association and the West Coast Women's Legal Education and Action Fund, was noteworthy in that it incorporated expert opinions of several correction experts, who found that "Negative health effects can occur after only a few days in segregation, and those harms increase as the duration of the time spent in segregation increases. The 15-day maximum ... is a generous standard given the overwhelming evidence that even within that space of time an individual can suffer severe psychological harm. It is, nevertheless, a defensible standard."

            The court rejected the findings of the defense experts, whom the Justice called, "outliers," when almost all contemporary studies have shown that "solitary confinement creates pain, suffering, and psychological damage focused primarily on the social rather than the sensory deprivation dimension of the experience, while recognizing that sensory deprivation is a factor in causing the harm."

            The court found that the challenged segregation and solitary confinement policies of the province were invalid, noting that they "authorize ... the institutional head to be the judge and prosecutor of his own cause," and discriminate against the mentally ill and disabled, as well as Aboriginal inmates.

            However, the Justice concluded, "I am prepared to grant a 12-month suspension of my declaration of invalidity on the basis of the first two reasons enumerated in Schachter v. Canada, [1992] 2 S.C.R. 679, that is that an immediate declaration would pose a potential danger to the public or threaten the rule of law."

See: British Columbia Civil Liberties Association v. Canada, 2018 BCSC 62, Supreme Court of British Columbia, 2017.

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