Content area
Full Text
The issue of solitary confinement in Canadian prisons - popularly understood as the isolation of prisoners in small cells without any meaningful human contact for protracted periods - has become one of the few prison issues for which the public and the human rights community have had any serious concern. The reality is that the inhumanity of solitary confinement is part and parcel of the inhumanity that surrounds the administration of Canadian prisons more generally.
On this past 17 January 2018, Justice Leask of the British Columbia Supreme Court declared Canada's current laws governing the administrative segregation of federal prisoners to be unconstitutional. To be clear, and as was generally found by the Court, segregation is what is commonly thought of as solitary confinement.2 What must be understood is that the Court did not outlaw the practice of solitary confinement in Canada's prisons but merely declared that the laws currently governing its use violated the Canadian Charter of Rights and Freedoms. Indeed, the administrative segregation laws were suspended by the Court for one year so that the federal government could have the opportunity to rewrite the statute in a manner that would allow its continued use so long as it conformed to constitutional standards. The implications of this for counsel and the community is that the inhumanity of solitary confinement is something that will have to be grappled with on an ongoing basis for years to come.
It must be acknowledged that the judgment in BCCLA andJHSC v. Canada is a landmark ruling. Simply put, it will save lives. The decision paves the way towards effectively ending the improper and inhumane use of solitary confinement in Canada's prisons. And it can be said that the Court went as far as it could, in the context of what a superior court can permissibly do, in outlawing the inhumanity of how solitary confinement has been administered. However, the judgment also makes it clear that the unconstitutionality of the administration of solitary confinement was as much a result of how the law was being used as it was of the law itself. What this makes starkly apparent is that, no matter what new laws are written, only persistent advocacy and oversight of solitary confinement will ensure that it...