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Solitary Confinement Case Heads to the SCC

Updated: Jan 27, 2022

The Supreme Court of Canada announced that it will hear Attorney General of Canada v. British Columbia Civil Liberties Association, et al., a case challenging the constitutional validity of prolonged, indefinite solitary confinement.

On June 24, 2019, the BC Court of Appeal ruled that Canada's laws governing administrative segregation violate the Charter because they permit prolonged, indefinite solitary confinement and fail to provide independent and external review of segregation placements. The Court also found there had been discrimination against mentally ill and indigenous inmates. The Court declared that CSC failed to meaningfully consider the health care needs of mentally ill and/or disabled inmates and failed to ensure inmates in solitary confinement are given a reasonable opportunity to retain and instruct counsel without delay and in private.

Last fall, the federal government attempted to overturn this historic judgment by seeking leave to appeal the decision to the Supreme Court of Canada. The British Columbia Civil Liberties Association (BCCLA) and the John Howard Society of Canada (JHSC) sought leave to cross-appeal, arguing the BC Court of Appeal did not go far enough to protect the rights of prisoners. In particular, they argued that Court of Appeal should have imposed a hard cap on the number of days an inmate can spend in solitary confinement and should have granted different remedies for the breach of equality rights.The Supreme Court of Canada has chosen to hear both the appeal and cross-appeal.

The Supreme Court of Canada also granted leave in Attorney General of Canada v. Corporation of the Canadian Civil Liberties Association today, an Ontario case also challenging the constitutionality of the federal administrative segregation law. The appeals will be heard together.

Alison Latimer acts for the BCCLA and JHSC together with Joseph J. Arvay, OC, OBC, QC.

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