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Ontario court strikes down prison segregation regime

|Written By Alexia Kapralos

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.”

  • The entire Judicial system; Police, Courts and Corrections needs a complete review

    Mike Laderoute
    To whom this concerns, With all due respect to this decision by the courts it is very obvious to me that no-one in this article has ever worked in a Correctional Facility. I have work in the Ontario Correctional system fior almost 40 years as an Officer. It is fine for all these external stakeholders to share their thoughts of what could or should be. The realities of working in a "jail" are much different then what these supposed experts are saying. There are many extremely dangerous persons in jail. As Correctional Officers and Public employees we have a legal duty to protect as much as we can every person within. You cannot have some of these people within the general population even for 5 minutes due to the nature of their personalities. There are predators of every kind in jails and we are held responsible for what they are able to do. There is violence of every kind within Institutions. These are not boy scouts that we are dealing with. The government has underfunded Corrections in Ontario since I began in 1978 even after the Shapiro Commission made sweeping recommendations that have really never happened. The judicial system needs to take a hard look at how they sentence menatlly ill people because jail is not the answer for them. I have seen the worst decisions made by judges or justice of the peace by sending a 19 year old from a group home who had the mental ability of a 3 year old to my facility. We gave him crayons and a colouring book so he wouldn't cry as much. You can't put him in any population so he had to stay in a segregation cell. This was a violation of every human right I could think of, but we can't say anything unless like another Officer recently did, get suspended. These court decisions should encompass the true experts in these hearings, the employees and have the people that work in these facilities provide facts and have the management explain their decisions or non-decisions. Corrections is the destination of these people after the Police and judges are done with them. They have responsibilities to ensure this is the right destination for that person. I propose that like the National Health Care strategy, the Judicial system needs something like that also for the entire country, because these people do get out to live on the streets again.




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