Solitary confinement violates charter right to life, liberty, security: lawyer

Putting prisoners in a bathroom-sized solitary-confinement cell for up to 23 hours a day without meaningful human contact violates the rule of law and basic human dignity, the lawyer in a high-profile case said in his closing argument Monday.

And solitary confinement causes psychological harm to nearly everyone who endures it, the lawyer argued, and has been a factor in several prison suicides, including those of Ashley Smith, Edward Snowshoe and Christopher Roy.

The BC Civil Liberties Association and the John Howard Society of Canada have sued the federal government over the use of solitary, arguing it is unconstitutional, increases inmates' suffering and discriminates against offenders who are Indigenous or have mental-health issues.

Counsel for the Attorney-General of Canada has called segregation a "necessary and appropriate tool" that is only to be used when there is no reasonable alternative to protect the safety of a person or institution.

The Globe and Mail has reported extensively on the prevalence and effects of solitary confinement, beginning with a 2014 investigation into the suicide of Mr. Snowshoe after 162 consecutive days in segregation.

The trial opened in B.C. Supreme Court in Vancouver in early July, with closing arguments beginning Monday.

Joseph Arvay, one of the lawyers for the plaintiffs, in his submission urged Justice Peter Leask to keep his mind on "the big picture." He said the consequences of solitary confinement are "truly horrific" and argued it violates the Charter right to life, liberty and security.

"It's one thing if the law deprives a person of their liberty. That should be bad enough, going to jail is bad enough," he said.

"But then you layer on top of that that it deprives a person of their psychological or physiological integrity. That's even worse. And then you layer on top of that that it kills you. How much worse does it get?"

Mr. Arvay said the evidence is "overwhelming that solitary confinement causes psychological harm to almost everybody in one degree or another, depending on their duration."

Robert Roy, Christopher Roy's father, testified in the solitary-confinement case. He said his son did not show any signs of being suicidal before he was placed in solitary. He called his son's death "entirely preventable."

BobbyLee Worm, who spent more than 1,100 days in solitary confinement, including one-near continuous stretch lasting more than two years, also was a witness and told the court she at one point attempted to hang herself in segregation because she felt "there was no other way out." Staff ultimately intervened.

The trial has focused on the current solitary-confinement regime, not a new bill introduced by the federal government in June. The BCCLA has said both the current system and the new bill fail to guarantee an individual will not be held in solitary for years.

Mr. Arvay on Monday said one inmate was held in segregation for more than 6,200 days, although further details were not provided.

He said the United Nations' Mandela Rules define prolonged solitary confinement as a period lasting more than 15 days. The rules consider indefinite and prolonged solitary confinement to be cruel and inhumane.

Mr. Arvay said the Corrections and Conditional Release Act might appear rational on its face, given its stand that a person can only be placed in segregation when there is no reasonable alternative. But he called the legislation too broad.

He said the safety of inmates in general population is given priority over the psychological and physical safety of the inmate taken to segregation.

Justice Leask said the argument was even simpler.

"If, for the protection of the security of the institution or some individual, a prisoner has to be segregated, that can't possibly be all of the time, from everyone," he said. "The normal meaning would be from some people. But what the act says is it's from everyone. So that's overbroad, isn't it?"

The judge also appeared to agree with Mr. Arvay when the latter brought up the issue of procedural fairness and how difficult it can be for inmates to challenge their confinement.

"Where does [filing a grievance] get them?" Mr. Arvay asked.

Justice Leask replied: "Two months later, you find out if your grievance was accepted."

The inmate might already have been released from solitary at that point and Mr. Arvay said the prisoner might gain nothing from the process but "moral satisfaction." He said the system is stacked against prisoners.

The plaintiffs are to continue their closing argument on Tuesday. The federal government is expected to begin its submission Wednesday.