In 2018, Justice Leask issued a declaration that the sections of the Corrections and Conditional Release Act that authorize the placement and maintenance of inmates in solitary confinement are unconstitutional. He suspended the declaration for one year to allow Parliament to enact replacement legislation. The Attorney General appealed and applied for an extension of the suspension to July 31, 2019, to allow Parliament more time to enact new legislation.
Today the BC Court of Appeal ruled that “government must take steps to deal with constitutional concerns” raised in the lawsuit. Inordinate delays justified the Court’s intervention given the Attorney General does not seriously dispute that current practices of solitary confinement do not conform to constitutional requirements.
Therefore, while the Court granted a shorter extension than that sought by the Attorney General, it did so only on specific conditions. Those conditions aim to reduce or eliminate violations of inmates’ constitutional rights pending the enactment of new legislation.
The Attorney General is required to report to the Court on its progress in respect of certain conditions prior to February 28, 2019. The Court reserved the power to impose additional conditions on the continuation of the suspension of the declaration. Those conditions concern, among other things, the health of inmates in solitary confinement, the treatment of indigenous inmates in solitary confinement, time out of cell of those held in solitary confinement, access to counsel, and procedural safeguards for those in solitary confinement.
The decision is available here.
Joseph J. Arvay, Q.C., O.C. and Alison M. Latimer act for the British Columbia Civil Liberties Association and the John Howard Society.
