Allowing a warden to place inmates in solitary confinement without any meaningful review of the decision is an unconstitutional measure, even if it is ostensibly used for the prisoners’ protection, a court heard Wednesday.
On the second day of a challenge to Canada’s administrative segregation regime, a civil rights lawyer said correctional authorities must be forced to find alternatives to the “vicious cycle” of inmate isolation.
The best way to do that, Michael Rosenberg told Superior Court, is to strike down the current “structurally deficient” law.
“Current safeguards do not provide a level of procedural fairness that is commensurate with the extreme deprivation of liberty,” said Rosenberg, who speaks for the Canadian Civil Liberties Association.
“A warden is making a decision to segregate?and then a warden is being asked to review his or her own decision.”
Administrative segregation is used when an inmate is at risk of harm from others or poses a risk to the security of the prison. It entails spending up to 23 hours a day without any meaningful human contact.
The liberties association and the Canadian Association of Elizabeth Fry Societies want the court to impose a 15-day cap on extreme isolation, saying severe psychological harm can occur even in as little as two days.
Associate Chief Justice Frank Marrocco frequently interjected, suggesting Correctional Service Canada is between a rock and hard place in dealing with inmates who need protecting from fellow prisoners or who are themselves prone to violence.
“You don’t design a system around those extreme situations,” Rosenberg said.
Segregation might be justified in some cases, Rosenberg said, but inmates should in general be isolated in a more humane fashion.
Prisoners can also be isolated for disciplinary reasons, but the procedures are much different and have more safeguards than administrative segregation, court heard.
Correctional services data indicate about 4,500 inmates are placed in administrative segregation in any given year — some more than once — for an average of 24 days.
Marrocco wondered aloud whether the problem was not that the law is unconstitutional but rather how Correctional Service Canada is interpreting it.
The lawyer, however, argued the law itself is at fault because it allows for cruel and unusual punishment and inmates have little recourse.
While prison authorities have now instituted a policy that precludes solitary confinement for the severely mentally ill, the liberties group says that’s simply not enough. Besides the 15-day limit, they also want the practice outlawed for those under 21 or anyone who is mentally ill.
If Marrocco does declare the law unconstitutional, Rosenberg suggested the declaration could be put on hold — but for less than 12 months — to allow the government a chance to come up with a new and constitutional provision.