Court rejects Ottawa's bid to adjourn B.C. solitary confinement lawsuit

A British Columbia judge has rejected Ottawa's last-minute attempt to adjourn a landmark lawsuit challenging the use of solitary confinement in federal prisons, clearing the way for the trial to begin next week.

The BC Civil Liberties Association and the John Howard Society of Canada sued the federal government in January, 2015, over the use of solitary. The two groups said Canada remained committed to a broken and dangerous system that increased inmates' suffering, even as jurisdictions around the world scaled back its use.

The federal Liberal government introduced a bill last week that would impose limits on how long an inmate can be placed in solitary, though critics charged it does not go far enough. The government then filed an application in B.C. Supreme Court to have the lawsuit adjourned, arguing the proposed bill would render the litigation superfluous if passed. Justice Peter Leask ruled against the government at a hearing on Tuesday.

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He said it would be improper to adjourn the case given the claims the plaintiffs have raised about the current legislation not being in compliance with the Charter. He stressed he has not made a finding on that issue.

Caily DiPuma, the civil-liberties group's acting litigation director, said she was pleased with the judge's decision.

"The problems with the practice have been apparent for decades and we're happy that Canada's 11th-hour introduction of what we say is an unconstitutional law won't derail this case," she told reporters outside court.

The Globe and Mail has reported extensively on the prevalence and devastating effects of solitary confinement, beginning with a 2014 investigation into the death by suicide of Edward Snowshoe after 162 days in a solitary cell.

The new bill, C-56, fell short of what some prison-rights advocates had expected: They argued it still leaves too much discretion with a federal prison agency that has a long history of neglecting inmates in segregation.

The bill states that a federal inmate can spend no more than 21 consecutive days in administrative segregation – a Correctional Service Canada term for indefinite solitary confinement – unless a warden specifically orders otherwise. Such decisions would be subject to external review. Eighteen months after the bill's passage, that cap would drop from 21 days to 15 days, a threshold recommended in the United Nations' Mandela Rules. These standard minimum rules define solitary confinement as "the confinement of prisoners for 22 hours or more a day without meaningful human contact."

An independent external reviewer, appointed by the Minister of Public Safety, would review the cases of inmates ordered to stay in solitary beyond the cap. However, the reviewer would have no power to release them.

Justice Leask said on Tuesday he does not want the trial to turn into a debate over the new bill. He said it will instead be "an examination of the statute as it now exists."

Ms. DiPuma said the plaintiffs will not argue the proposed law is deficient, although they believe it is.

She said the plaintiffs will instead focus on what is currently on the books.

"We say that the challenge is to the legal regime that's been in place for at least 25 years. And what people will hear in terms of evidence is the way that that law has been applied in a manner that's inconsistent with Charter rights," she said.

Ms. DiPuma said about half a dozen inmates will testify in the case, and up to a dozen experts.

The adjournment application marked the second time Ottawa sought a delay in the case. The trial had been slated to start in January but was pushed to July after the government said new legislation could render the issues at the heart of the lawsuit moot.

But the court heard in May that little progress had been made on the issues relevant to the case and the trial was given the go-ahead for July.