Parliament takes the law seriously when it is crafting legislation that will apply to ordinary Canadians. But things are different when the law requires Parliament to inconvenience itself.Sean Kilpatrick/The Canadian Press
Anthony Doob is a professor emeritus at the University of Toronto. Jane Sprott is a professor at Toronto Metropolitan University. Catherine Latimer is the executive director of the John Howard Society of Canada. Dr. Doob and Dr. Sprott are currently members of an independent panel reviewing the use of solitary confinement for federal inmates.
Canadians must follow the laws that Parliament makes whether it is convenient or not. For example, if a person is charged with a crime, they must show up for court even if it is inconvenient. If they don’t appear when required, they can be charged with a new criminal offence – 45 per cent of those found guilty of failure to appear in court in Canada go to prison.
Parliament takes the law seriously when it is crafting legislation that will apply to ordinary Canadians. But things are different when the law requires Parliament to inconvenience itself.
For example, in 2019, when a law creating a new form of solitary confinement (in an amendment to the Corrections and Conditional Release Act) was passed by both Houses of Parliament, the legislature created a provision stating unambiguously that starting in 2023, Parliament “must” undertake a comprehensive review of this legislation. They didn’t say the legislature “may” consider carrying out a review, but that a comprehensive review “must be undertaken.”
It’s now 2024, and the review that Parliament legislated – that “must” begin in 2023 – hasn’t started yet.
The justification for this required review is obvious. The new law created in 2019 made substantial changes to the manner in which solitary confinement in our penitentiaries is to be carried out. The new legislation abolished a long-standing isolation practice in federal prisons called “administrative segregation” and replaced it with a new regime called “structured intervention.” Structured intervention units (or SIUs) in prisons are meant to reduce isolation time and increase the prisoner’s time spent outside their cell. The changes were spurred on by the government’s loss in two important Court of Appeal cases (in Ontario and B.C.), in which the government defended its previous legislation for solitary confinement, but lost when both courts ruled that the old provisions violated the Charter of Rights and Freedoms. By changing the law in 2019, the government avoided having the issue decided by the Supreme Court of Canada, where they almost certainly would have lost. However, legal experts appearing before Parliament doubted that the proposed reforms were adequate to protect the identified Charter rights that had previously been violated. Thus, a rigorous review requirement was added to the bill.
Ten empirically dense reports we took part in writing have been publicly released on this matter, with each clearly demonstrating that Parliament’s intent to change the parameters of solitary confinement in Canada has not come to fruition. In the face of clear-cut evidence, it is incomprehensible to us why Parliament has failed to initiate its own legally required review of the law. Apparently, Parliament feels no obligation to ensure that it should act in a lawful manner, especially if the timing is not politically convenient. So much for their commitment to law and order.
This isn’t an academic issue. We know from the data in these 10 reports on the new solitary confinement regime that there are problems with the law, that it is not being administered properly and, importantly, that the intent of the law is not being achieved. Many prisoners are being treated in a manner that the courts have prohibited because the conditions violate the United Nations’ Nelson Mandela Rules for the treatment of prisoners. These rules state that prolonged solitary confinement (defined as two hours or less spent out-of-cell per day for longer than 15 days) amounts to “torture or other cruel, inhuman or degrading treatment.” We also know that Indigenous and Black Canadian prisoners, and those prisoners with mental-health challenges, are especially likely to receive inferior treatment in our solitary confinement settings.
These are not going to be easy problems to fix. But in 2019, legislators anticipated that there might be problems with the legislation and required a later review. The purpose of doing so was clearly to examine how the legislation was working after an initial trial period.
Hence, one might have thought that by now, in 2024, the Parliament of Canada – and those MPs and Senators responsible for these laws – might show some concern about how the law is working and how Canadian prisoners are being treated. You might think they would be eager to carry out the required review and recommend improvements. But you’d be wrong.
Ordinary Canadians are expected to follow the law. But there appears to be no expectation that Parliament should do the same – especially when it is politically inconvenient.