Liberals move to halt landmark legal challenge to solitary confinement of prisoners

The federal government is making a last-minute bid to halt a trial set to challenge its solitary confinement prison policies as "cruel and unusual punishment." The application comes one day after the government tabled a bill to reform solitary confinement.

Application to toss the case comes one day after government tables bill putting 15-day cap on segregation

This shows the solitary confinement range in the Springhill Institution in Nova Scotia. The federal government is applying to halt a trial challenging its segregation practices. (Office of Canada's Correctional Investigator/Supplied photo)

The federal government is making a last-minute bid to halt a trial set to challenge Canada's solitary confinement prison policies as "cruel and unusual punishment."

A short-notice application filed with the Supreme Court of British Columbia argues that going ahead with the case would be a waste of court resources, since concerns about prolonged segregation are being addressed in new government legislation. 

It was filed in Vancouver Tuesday, just one day after the government tabled a bill setting a 15-day limit for segregation, and just two weeks before the landmark case was set to begin.

The government wants to throw out the case, or at least delay it until its legislation passes through Parliament. 

​"A Charter challenge to a statutory scheme that is subject to a legislative process for the purpose of significant changes is no longer an efficient and worthwhile use of the court's scarce resources," reads the application from the attorney general of Canada.

The lawsuit, launched by the B.C. Civil Liberties Association and the John Howard Society of Canada in January 2015, argues current practices cause prisoner suffering and deaths, deprive fundamental protections, and discriminate against mentally ill and Indigenous inmates.

The trial is scheduled to begin July 4 and last about nine weeks.

Under the new bill C-56, Correctional Service Canada (CSC) will have an 18-month transition period, during which time the cap will be set at 21 days. 

Bill addresses concerns

The government's application says the new statutory scheme will be significantly different from the one now being challenged. An adjournment would allow Parliament to debate the proposed changes, along with new CSC policies that address concerns raised by the challenge.

New directives that come alongside the bill say inmates with serious mental disorders — who are engaging in self-injury or are at risk of suicide, are pregnant, have mobility issues or are in palliative care — should not be placed in segregation unless "exceptional circumstances are identified."

No certainty bill will pass

A swift response to the application filed today argues the case should proceed because there are gaps in the bill and no certainty it will even pass.

A response signed by lawyer Joseph Arvay on behalf of the John Howard Society and BC Civil Liberties Association says, "Bill C-56 has so far only received first reading. It may yet be amended. It may yet die on the Order Paper. It is therefore uncertain whether it will be enacted and if so, in what form."

If the Attorney General's position is accepted, where "the mere tabling of a bill on the eve of trial could derail a trial with a bill that does not actually resolve the litigation but actually prolongs it," the adjournment presents a serious impediment to access to justice, the response says.

The court document says it is "all the more troubling" that there is no explanation for the late introduction of Bill C-56, and that if the adjournment is granted, costs should be awarded to lawyers who have worked on the case pro bono.

Calls to limit the segregation of prisoners grew louder after the death of teen prisoner Ashley Smith in 2007. (Photo courtesy of Ashley Smith's family)

Calls for tighter restrictions over solitary confinement grew louder after the high-profile inquest into the death of teen prisoner Ashley Smith.

Smith died in a segregated prison cell at the Grand Valley Institution for Women in Kitchener, Ont., in 2007. A coroner's jury ruled that her self-inflicted choking death was a homicide and made 104 recommendations to prevent similar deaths in the future. 

The government's application to adjourn will be heard Friday in Vancouver.