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'Modern-day dungeons:' Administrative solitary confinement ruled unconstitutional

Supreme Court of B.C. rules that indefinitely throwing inmates in 'the hole' violates their rights. Now Canada has one year to end practices described as 'torture'.

A solitary confinement cell is shown in a undated handout photo from the Office of the 

Correctional Investigator.

Office of the Correctional Investigator / CP

A solitary confinement cell is shown in a undated handout photo from the Office of the Correctional Investigator.

British Columbia rights groups have declared victory after the province's Supreme Court struck down Canadian prisons' use of indefinite, sometimes years-long, solitary confinement.

The B.C. Civil Liberties Association, which launched the lawsuit two years ago with the prisoner rights John Howard Society, said throwing inmates into small, often filthy cells often with just a food hole for human contact amounts to "torture."

"These are terrifying places to be found for 15 minutes, let alone 15 weeks, 15 months, or several years," said BCCLA executive director Josh Paterson at a press conference Wednesday. "We heard in court about restraining mechanisms that experts compared to torture racks in the Middle Ages.

"People have a hard time imagining the conditions we're talking about here … These are modern-day dungeons."

The historic ruling gives Canada one year to replace its laws before the practice of "administrative segregation" — solitary confinement not for disciplinary reasons — is outlawed as unconstitutional.

In a scathing ruling released Wednesday Justice Peter Leask declared that, "Many inmates are likely to suffer permanent harm as a result of their confinement."

Several such inmates testified during the nine-week trial, revealing a rare public glimpse of the world behind bars, and the devastating effects extended solitary can have long after returning to society.

One testified about her first experience of segregation; she was just 14, and instead of a youth facility she was placed in a solitary cell in an adult men's federal prison.

"A child … was sent to a federal institution with all men," recounted staff lawyer Jay Aubrey. "[What] she has described to me, when she was out of prison, it's scary.

"She can't be in big spaces, she has panic attacks … She realized she was losing her ability to speak or to communicate with other people. When she was released into the general population, she would hide by the walls."

An Indigenous woman was thrown into solitary for 747 consecutive days. Another spent 3.5 years of her six-year sentence in segregation.

The judge explained his 12-month grace period is because "an immediate declaration would pose a potential danger to the public or threaten the rule of law." But his judgment offered harsh words for a system that allows a prison warden "to be the judge and prosecutor of his own cause," while prisoners are deprived of their right to legal counsel in review hearings.

"There is an absence of any rational connection between the infringement and the objective of preserving safety and security within the institution

And he singled out the particular impact on Indigenous inmates, who are over-represented in Canadian prisons, ruling "the procedure that results in discrimination against Aboriginal inmates."

Because disciplinary segregation for punishment is capped at a maximum 30 days, 45 in some cases, Paterson alleged that guards are abusing the no-limits "administrative" rules "to avoid having to go through the hoops".

In fact, the court heard, the disciplinary version — which many people wrongly assume is the main use of solitary — was only used 230 times, compared to 8,000 instances of administrative segregation.

According to research BCCLA presented in the case, long-term solitary confinement can cause "psychosis, hallucinations, insomnia and confusion" and even "create mental illness where none previously existed," the organization stated in a release. But the court heard that Canada doesn't even keep detailed records on the mental health of its prisoners.

"Canadians," Aubrey concluded, "would be appalled" if they knew the extent and conditions thousands are placed in. She described Wednesday's ruling as "stunning" and "the most significant prison law decision from a trial court in Canadian history."

The federal government now has a month to decide if it will appeal the ruling — or spend the next year redrafting legislation. Although a reform bill was introduced last year in Parliament, the BCCLA said it fails to address the core rights violations the court demanded be fixed.

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