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Canada Abandons Solitary Confinement Appeal to SCC

After five years of tireless litigation, Ottawa abandons a Supreme Court appeal of a decision recognizing that solitary confinement is unconstitutional.

The case was brought by the BCCLA and JHSC, represented by Alison Latimer and Joseph Arvay.

The appeal was from a decision of the Court of Appeal of British Columbia that upheld the trial judge’s order that ss. 31–33 and 37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 unjustifiably infringe s. 7 of the Charter which protects the rights to life, liberty and security of the person. Those provisions are of no force and effect because they authorize indefinite and prolonged administrative segregation in conditions that constitute solitary confinement, and authorize internal rather than external review of decisions to segregate inmates in solitary confinement. 

The Court of Appeal also found that there had been discrimination against mentally ill and indigenous inmates, contrary to s. 15 of the Charter which protects equality. The Court made declarations that Corrections has, in its implementation of the administrative segregation provisions: breached its obligation under the Act to give meaningful consideration to the health care needs of mentally ill and/or disabled inmates before placing or confirming the placement of such inmates in segregation; and breached its obligation under the Act to ensure that inmates placed in administrative segregation are given a reasonable opportunity to retain and instruct counsel without delay and to do so in private.

Canada's decision to abandon the appeal is long over-due. Alison Latimer has published a number of articles and chapters advocating that rather than pursuing such appeals, this case presented an optimum opportunity for a legislative correction of an outdated, inhumane legislative regime that Canada has - since 2015 - publicly avowed to remedy.

Some of those publications are:

  • Alison M. Latimer, “Solitary Confinement: A Test Case Litigation Story” (2019), 90 S.C.L.R. (2d) 393

    • Arvay & Latimer, “Solitary Confinement in Canada” in Jules Lobel & Peter Scharff Smith, eds., Solitary Confinement: Effects, Practices, and Pathways toward Reform (Oxford: Oxford Scholarship, 2019) at Chapter 20.

The Globe and Mail has reported on Canada's recent decision to abandon the appeal here:

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