Ontario Court of Appeal orders end to prolonged solitary confinement

Date Closed

March 28, 2019

Lead Office

Toronto

On March 28, 2019, the Ontario Court of Appeal ("OCA") ordered the end of prolonged solitary confinement of inmates in Canada's prisons, the first specific limit imposed by a Canadian court. The OCA concluded that holding inmates for over 15 days in administrative segregation outrages standards of decency and amounts to cruel and unusual punishment.

The decision relates to a challenge first brought by the Canadian Civil Liberties Association ("CCLA") in January 2015. The CCLA argued that sections 31-37 of the Corrections and Conditional Release Act violated the Canadian Charter of Rights and Freedoms ("the Charter'). In December 2017, the Ontario Superior Court of Justice allowed the CCLA’s application and struck down the impugned legislation, but on the basis that it breached section 7 of the Charter, not section 12. The CCLA appealed from the finding on section 12, arguing that prolonged solitary confinement amounted to cruel and unusual punishment.

On appeal, the OCA found that prolonged solitary confinement causes foreseeable and potentially permanent harm, including altered brain activity, depression and suicidal ideation, confusion and hallucinations, paranoia, self-mutilation, and declines in mental functioning. The OCA also found that no level of medical monitoring could prevent these harms.

The OCA granted the CCLA's request to place a cap of 15 consecutive days of solitary confinement for all inmates. The OCA also found that mentally ill inmates should not be detained in solitary confinement for any period of time. The decision came into force on April 13, 2019.

McCarthy Tétrault LLP advised the CCLA, as appellant, with a team led by Michael Rosenberg that included Charlotte-Anne Malischewski and Natalie Kolos.

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