Ontario court strikes down prison segregation regime

The Ontario Superior Court of Justice has declared the country’s solitary confinement laws unconstitutional in a decision released today in Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen.

Associate Chief Justice Frank Marrocco issued the decision.

“This decision to strike down the solitary confinement regime is an important and positive development, but our work is far from over,” said Noa Mendelsohn Aviv, acting director with the Canadian Civil Liberties Association. “We will continue to fight and advocate for meaningful and systemic remedies in the federal and provincial/ territorial systems, and are prepared to go all the way to the Supreme Court of Canada.” 

Medical professionals studying prisons, including the former UN special rapporteur on torture, found that putting inmates in solitary confinement causes more harm than good when it comes to mental health and symptoms of harmful effects could start to show at 48 hours of the experience. Often, the damage of isolation can be life-long.

“Independent review of the placement of prisoners in solitary confinement is long overdue and has been repeatedly called for. The imposition of this kind of oversight is an important step towards bringing the rule of law into our penitentiaries,” said Jonathan Lisus, partner with Lax O’Sullivan Lisus Gottlieb LLP, who was one of six lawyers representing the association.

Regardless of the findings presented, the legislation surrounding inmate segregation was not declared unconstitutional by the court on “any other grounds,” according to the CCLA.

The court has concluded that the other constitutional remedies requested by the association were needless, which includes a ban on young offenders, mentally ill inmates, inmates seeking safety and prolonged segregation etc. These specific instances are not recognized by the court, even though the overall regime has been struck down on one ground.

The CCLA is of the position that a “hard cap” must be put on solitary confinement — no more than 15 days — and not allowing certain vulnerable groups to be confined (for instance, mentally ill inmates, young people, etc.).

“This is an important step forward in the fight to ensure that people in Canadian prisons are not subjected to brutal treatment that offends our standards of decency. Solitary confinement has harmed vulnerable people for far too long,” said Michael Rosenberg, partner, McCarthy Tetrault LLP, also counsel for the CCLA.

The association said in a press statement that it continues to assess the decision and are “considering next steps.”

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