Solitary confinement necessary in some cases, federal government argues at trial

VANCOUVER – A lawyer for the Canadian government is urging a judge not to strike down the country’s solitary confinement law, saying the practice can be necessary to protect the safety of people and the institution.

Mitchell Taylor delivered closing arguments Wednesday at a trial for a constitutional challenge of indefinite segregation filed by the British Columbia Civil Liberties Association and the John Howard Society of Canada.

Prisoners need to be isolated at times, Taylor argued, including when they pose a threat to others or are in danger of being harmed in the general population.

“Administrative segregation is, in our submission, a reasonable, necessary tool for the safety and security of people — inmates and staff — and for the institution,” he said in B.C. Supreme Court.

The current regime limits the practice to certain situations, for the shortest possible amount of time and as a last resort after all other alternatives have been ruled out, he said.

Taylor said if Justice Peter Leask finds problems with the law, he should not strike it down, but rather identify the issues with it and allow Parliament to address them.

The federal government introduced a bill in June that would set an initial time limit for segregation of 21 days, with a reduction to 15 days once the legislation is law for 18 months.

It attempted to stop the trial, saying the bill addressed the concerns raised by the lawsuit, but the judge rejected the argument. Therefore the trial has focused on the current system, not the proposed law.

Joe Arvay, a lawyer for the civil liberties association and the John Howard Society, has asked Leask to strike down the current law and instruct the government to set a 15-day limit and establish external oversight.

Arvay said the law violates the Charter of Rights and Freedoms and there are many inmates in Canada that have been in solitary confinement for months or years, including one who has been segregated for 18 years.

But Taylor argued there should not be a hard limit on how long a prisoner can be kept in isolation.

“A hard time cap is an arbitrary setting of a certain amount of time that is not sensitive to the particulars of a given situation,” he said.

He also said a time cap opens up charter issues for inmates who must associate with the prisoner who has just been released from segregation, as well as for prisoners who wish to stay isolated for their own safety.

Leask questioned, however, whether inmates who were voluntarily segregated were the subject of the case.

Taylor argued the current solitary confinement regime, which is a mixture of law and regulations, is robust.

“It’s not a situation where they’re put in and there are no parameters that govern what has to be done. There are.

Taylor said the law requires segregated inmates to be visited once a day by a mental health professional as well as by a warden, and also gives them a right to legal representation at review hearings, which determine whether they should remain in isolation.

But Leask replied that there was no evidence before him that a segregated prisoner had ever been able to access a lawyer. Further, Leask said, a Correctional Services Canada representative testified that lawyers were not allowed at the hearings.

Inmates in solitary confinement generally lack the funds to hire a lawyer, the judge added.

“The right of a penniless prisoner to retain and instruct counsel without delay seems pretty empty.”

— Follow @ellekane on Twitter.