Canada's correctional service continued to use indefinite solitary confinement for prisoners despite decades of policy-reform recommendations and a call for change from the prime minister, a lawyer said Tuesday.
Joe Arvay told a B.C. Supreme Court judge that change did not come after the Liberals won the election in the fall of 2015, when Prime Minister Justin Trudeau ordered the justice minister to implement recommendations from a coroner's inquest into the suicide death of a young inmate who'd been isolated.
Arvay is representing the B.C. Civil Liberties Association and the John Howard Society of Canada in a lawsuit launched against the federal government in January 2015. He told the court that even a bill Ottawa introduced two weeks ago to impose a time limit on what prison officials call administrative segregation falls short.
"Instead, through the course of this litigation there has been policy tinkering, and at the 11th hour the introduction of a bill that may one day but has not yet amended the laws that govern solitary confinement in Canada," he said in his opening submission.
The federal legislation was introduced after several high-profile cases emerged involving extended isolation, including that of Moncton, N.B., resident Ashley Smith, an emotionally disturbed 19-year-old who died in custody in 2007 after tying a strip of cloth around her neck.
In his mandate letter to Justice Minister Jody Wilson-Raybould, Trudeau tasked her to take a second look at the Smith inquest’s recommendations "regarding the restriction of the use of solitary confinement and the treatment of those with mental illness."
Among the recommendations from the 2013 inquest was a call to end indefinite solitary confinement and the use of segregation beyond 15 days for female inmates with mental health issues.
Under the current law, Correctional Service Canada is required to release prisoners from administrative segregation at the earliest possible time. The new law would establish an initial time limit of 21 days, with a reduction to 15 days once the legislation has been law for 18 months.
However, Caily DiPuma, acting litigation director of the B.C. Civil Liberties Association, said wardens will retain the final decision-making power despite a proposed independent review process and there would be no caps on how long an inmate can be held in a solitary cell.
"But we have seen far too much abuse under a system that has more guidelines than guarantees," she said outside the court.
"We say that what's really critical to understand about this proposed law is that what happened to Ashley Smith can still happen under this proposed bill."
Correctional Service Canada has said administrative segregation is used when inmates are difficult to manage, their safety may be at risk in the general population, or if there is no reasonable alternative to maintain the safety and security of an institution.
Arvay quoted the 2014-2015 correctional investigator's annual report that says 14 of 30 suicides during that time involved inmates who were segregated.
Mentally ill and aboriginal prisoners are segregated more often and women tend to inflict more self-harm when isolated, Arvay said.
Several current and former inmates are expected to provide evidence during the nine-week trial, including a woman who spent 3-1/2 years in solitary confinement.
Mitch Taylor, a lawyer representing the government, said prison life is stressful and inmates who end up in administrative segregation fare no worse than those in the general population because staff ensure their mental health and other needs conform to professionally accepted standards.
"Under no circumstance is an inmate expected to be subjected to cruel and inhumane treatment," Taylor said.
Current practices based on recent reforms comply with the charter and don't infringe on inmates' rights, he said, adding: "It's not a historical review. It is about the here and now."
Taylor said the number of people in solitary confinement has fallen from 800 in 2014 to about 400 on an average day this year.
Reforms as of Aug. 1 mean certain categories of inmates will no longer be placed in solitary confinement, including pregnant women, people at risk of suicide or those with serious mental disorders, he said.
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