Court Dismisses Canada’s Application for a Further Suspension of the Declaration that the Laws that Authorize Solitary Confinement Are Unconstitutional

On January 17, 2018, the trial judge held that ss. 31, 32, 33, and 37 of the Corrections and Conditional Release Act  violate ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. He declared the impugned sections to be unconstitutional, but suspended the declaration for a period of one year. On November 13 and 14, 2018, a panel of the BC Court of Appeal heard an appeal from that decision. At the conclusion of the hearing, the panel granted an extension of the suspension to June 17, 2019.

The extension was subject to a number of conditions, that were put in place to ensure that the government dealt with particular constitutional concerns during the period of suspension.

On May 17, 2019, Canada filed for a further extension of the suspension of the declaration of invalidity to November 30, 2019.

The panel dismissed the application. The panel took note of separate proceedings in Ontario where the Ontario Superior Court and Ontario Court of Appeal have declared ss. 31-37 of the Act to be of no force or effect. The panel further observed: “the material before us does not provide any assurance that Bill C-83 will be passed, nor does it provide details of any contingency plans Canada may have to deal with exigent circumstances if the bill does not pass. In our view it does not provide a basis for an extension of the suspension.”

Canada is at liberty to re-apply once it ascertains whether Bill C-83 will pass, and is able to provide concrete details of its plans for implementation of legislated reforms or for the implementation of a contingency plan.

The full judgment is available here.

Joseph Arvay and Alison Latimer act for the respondents who opposed this application.