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Setting limits on solitary confinement

This week, the Honourable Justice Mr. Leask of the B.C. Supreme Court ruled that indefinite solitary confinement in Canadian prisons is unconstitutional.
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This week, the Honourable Justice Mr. Leask of the B.C. Supreme Court ruled that indefinite solitary confinement in Canadian prisons is unconstitutional. Already the decision has been called "bold" and, as Lisa Kerr argued in the Globe and Mail, it will likely bring about considerable change or rethinking by Correctional Service Canada of the way that prisoners are to be treated in terms of long-term solitary confinement.

What I thought I would tackle in my column is the way that the court applied the Charter of Rights and Freedoms to the decision and explain some of the components of the law that justices use in their rulings.

In a case where the constitutionality of a particular law comes into question, the court is responsible for asking a number of questions. Does the law violate a particular section of the Charter? If the law does violate one or more sections, can the law be upheld under the Section 1 of the Charter? Section 1 explicitly states that our rights and freedoms can be limited if the limitation is "reasonable" and can be demonstrable justified in a free and democratic society.

As you might expect, that Section 1 clause had to be interpreted in order to give meaning to what would be considered "reasonable" and "justified in a free and democratic society." So a few years after the Charter became law, the Supreme Court of Canada devised a test to help judges answer those questions.

The Oakes Test, as it was called, sets out two standards:

"First, the objective [of the law... ] must be sufficiently important to warrant overriding a constitutionally protected right or freedom."

Second, the limitation must be "reasonable" and "proportional" to the stated objective.

The test says that there must be a "rational connection between the limitation and the objective." The limitation must be "fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to that objective. In addition, the means should impair the right in question as little as possible. Lastly, there must be a proportionality between the effects of the limiting measure and the objective, the more severe the deleterious effects of a measure, the more important the objective must be."

In the ruling this week, Justice Leask cited an example of "gross disproportionality" in order to explain the principle: "Th[e] idea [of gross disproportionality] is captured by the hypothetical of a law with the purpose of keeping the streets clean that imposes a sentence of life imprisonment for spitting on the sidewalk. The connection between the draconian impact of the law and its object must be entirely outside the norms accepted in our free and democratic society."

In the case that came before the BC Supreme Court, "the British Columbia Civil Liberties Association and the John Howard Society of Canada ask[ed] the Court to end administrative segregation as it is presently practised in federal penitentiaries in Canada." In other words, the practice of long-term solitary confinement was challenged on the view that it contravenes sections of the Charter including 7 (legal rights) and 15 (equality rights).

On the other side, "the Attorney General of Canada (the "Government") respond[ed] that administrative segregation as it is practised in federal correctional facilities is not solitary confinement since inmates have daily opportunity for meaningful human contact. Moreover, the psychological effects of segregation on inmates remain the subject of ongoing and vigorous scientific debate."

The judgment in this case is lengthy and considers several potential violations of the Charter. For my purposes here I want to explain the position of the judge on the issue of "minimal impairment." So the basic facts are that correctional facilities argue they use solitary confinement for the safety and security of the inmates and the staff. The judge said that this rationale demonstrates that there is a rational connection between the objective of the law (safety and security) and the method to achieve the objective (segregation of inmates).

However, the judge argued that even though there is a rational connection, the extent of the limitation on the individual right is "overly broad." The judge argued that "based on evidence" long periods of solitary confinement actually undermine security because of the deleterious effects on the mental health of a person being deprived of human interaction. The judge cited one expert who said that "extended placements in segregation "generate in prisoners a powerful and toxic mix of bitterness, resentment and anger that undermines respect not only for correctional authority but also for lawful society to which most inmates will return."

This case is an excellent example of how a judge thinks about the complex issues of reasonable limits on individual rights. It is not just a matter of saying that the state can limit rights if they have a good objective in mind. The state must also limit the rights as little as possible in order to meet their goals.