The practice of isolating a prisoner for over five days, a process called administrative segregation, has been ruled as unconstitutional by an Ontario judge in Canada.
Superior Court Justice Frank Marrocco however noted that banning it immediately outright may be prove to be disruptive and therefore has suspended the ruling for one year, allowing time to Parliament to fix the issue.
Lack Of Independent Review Violates Fundamental Justice
Sections 31 to 37 of the Corrections and Conditional Release Act allow a warden to implement administrative segregation when any inmate is at risk of being harmed by others or poses a risk to the prison’s security.
Under this process, inmates spend around 22 hours of the day in a cell without any human “meaningful” contact . The warden is required to review the placement decision within five days of the order but the only the warden has the rights to change the decision.
Judge Marrocco said this was not sufficient, as the review fails to provide ” procedural safeguards required by the principles of fundamental justice” . According to him the lack of any independent review of the decision meant that there was “virtually no accountability for the decision to segregate.”
Data from correctional services, shows that in any given year, nearly 4,500 inmates are put into administrative segregation for an average of 24 days. This practice is different from being isolated for disciplinary reasons.
Isolation Causes Severe Psychological Harm
Correctional Service Canada has stated that segregation is a suitable last resort option for managing dangerous or difficult prison population.
However, the Canadian Civil Liberties Association, believes that extreme isolation arising out of the order can result in severe psychological harm in just two days’ time. The agency has challenged the provisions pointing out that it empowers a warden to segregate prisoners and allows only him or her to review the decision.
The federal government has defended the law stating that any rights violations occurring were because of poor implementation
Marrocco however has disagreed with this stating that the law was lacking because it failed to mandate an “an effective and independent review” of decisions.
He accepted government’s position that an abrupt change in the rules could cause disruption.
In his ruling the associate chief justice pointed out that without the ability to administrative segregation and lack of timeline for changes would create “unacceptable risks for Correctional Service of Canada personnel and inmates”.
Marrocco therefore his decision on hold for a period of year stating that it was reasonable time frame for the Parliament to enact changes to the system .
Practice Of Administrative Segregation Constitutional
The judge noted in his ruling, that isolating inmates was introduced as a progressive development when it was first introduced 200 years ago, as it helped rehabilitate inmates, replacing the practice of death penalty or limb amputations.
Marrocco has ruled that administrative segregation itself is constitutional, even in cases where the inmates are aged 18 to 21 or are the mentally ill.
He also refused to rule that placing inmates in segregation for over 15 days was unconstitutional, stating that regular monitoring by a health professional of an inmate is “sufficient to negate the potential cruelty of indefinite segregation.”
The justice rejected the government’s arguments that segregation wasn’t in violation of international norms considering prisoners get to interact with the guards, stating that the interaction wasn’t “meaningful” in nature.
