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Federal government's appeal of solitary confinement decision in B.C. to be heard

Last Updated Nov 12, 2018 at 6:40 pm EST

A solitary confinement cell is shown in a handout photo from the Office of the Correctional Investigator. British Columbia's top court is set to hear the federal government's appeal of a ruling that said indefinite solitary confinement of prisoners is unconstitutional and causes permanent harm. THE CANADIAN PRESS/HO- Office of the Correctional Investigator MANDATORY CREDIT

VANCOUVER – British Columbia’s top court is set to hear the federal government’s appeal of a ruling that said indefinite solitary confinement of prisoners is unconstitutional and causes permanent harm.

The B.C. Court of Appeal hearing Tuesday follows a lower-court decision in January that gave the government one year to draft new legislation with time limits on segregation.

Ottawa filed an appeal of the B.C. Supreme Court ruling in February, saying it needed clarity because an earlier decision by the Ontario Superior Court also struck down parts of the so-called administrative segregation law but it was a more limited judgment.

The Court of Appeal for Ontario will hear a separate challenge by the Canadian Civil Liberties Association, which argues the lower court in Ontario court should have imposed independent oversight for how long prisoners can be segregated.

The British Columbia legal challenge was launched by the B.C. Civil Liberties Association and the John Howard Society of Canada in 2015, and they say the ruling to strike down the law must be upheld.

Josh Paterson, executive director of the B.C. Civil Liberties Association, said there does not appear to be any basis for the federal government’s appeal.

“Our decision goes further than the one in Ontario but they’re not contradictory so there was no need to appeal in order to get clarity,” he said Monday.

“We don’t understand why it is that they are dragging us back to court.”

The two groups are also fighting Ottawa’s introduction of a bill last month that the government says would end the Correctional Service of Canada’s use of solitary confinement for 22 or more hours a day.

However, the segregation regime does not include hard caps on how long people can be isolated from the general prison population.

Under Bill C-83, prisoners who pose risks to security or themselves would instead be moved to new “structured intervention units” and offered the opportunity to spend four hours a day outside their cell, with a minimum of two hours to interact with others.

Before the B.C. Supreme Court trial began, Ottawa introduced another bill that put a 15-day cap on the number of consecutive days an inmate could spend in segregation. However, it was never debated and will no longer be pursued.

“We have deep concerns about the new bill and we remain flabbergasted that for a government that says they want to put a end to these harmful practices, they’re going to try and challenge, or overturn, a judgment that forces them to act,” Paterson said.

He said a warden would still have the final say in decisions and the bill would not prevent cases such as the 2007 in-custody death of 19-year-old Ashley Smith of Moncton, N.B., who spent 1,000 days in segregation in various correctional facilities.

“While there is an internal review of placement that goes up to regional and then commissioner level, there is no external review on placements in these units,” Paterson said, adding the B.C. Supreme Court decision that is being appealed stated the lack of an outside decision maker was unconstitutional.

A nine-week trial last year heard from former inmates who continue to experience mental health issues after being released and from the father of a 37-year-old man who hanged himself at Matsqui Institution in Abbotsford, B.C., following his placement in a segregation cell.

Paterson said the federal government is expected to apply for a delay in the appeal court to the one-year timeline that B.C. Supreme Court Justice Peter Leask provided for the introduction of new legislation.

“A few weeks ago the minister said he hoped with this new legislation we might be able to avoid the continuation of litigation and yet they are proceeding with their appeal,” he said of Public Safety Minister Ralph Goodale.

— Follow @CamilleBains1 on Twitter.