Over the past month, two major developments have placed the constitutionally protected rights of prisoners front and centre in the Canadian press.
The first of these developments is at the heart of two lawsuits initiated in the Canadian provinces of British Columbia and Ontario, challenging the constitutionality of the Correctional Service Canada’s (“CSC”) practice of subjecting prisoners to solitary confinement.
The practice is defined as the physical and social isolation of a person for 22-24 hours per day, regardless of the intended purpose. According to the British Columbia Civil Liberties Association, one of the organizations involved in the legal proceedings, one in four prisoners have spent time in solitary confinement.
Both lawsuits seek to ban the practice in Canada on the basis that it violates numerous rights under the Canadian Charter of Rights and Freedoms. In particular, the petitioners in both suits assert that the practice violates the rights of prisoners to be free from cruel and unusual punishment. To succeed on this front, the petitioners will have to convince their respective courts that the practice of solitary confinement is “so excessive as to outrage standards of decency”.
The practice of solitary confinement gained notoriety in Canada in 2007 after 19-year-old prisoner Ashley Smith took her life while in isolation. Three years later, federal prisoner Edward Snowshoe committed suicide after spending 162 consecutive days segregated from his fellow inmates.
In the weeks leading up to the lawsuits, former Supreme Court of Canada justice Louise Arbour labelled CSC’s use of solitary confinement as an “addiction” and opined that judges should review any use of segregation extending beyond three days.
While prisoner conditioners are being challenged in court, the release of prisoners forms the second major development, soon to be debated in Canada’s Parliament.
On Monday, members of the Conservative Party indicated that the federal government plans to bring forth legislation which will remove the opportunity of release from prison for some individuals convicted of committing certain forms of murder. Last year, Canada recorded its lowest homicide rate in nearly 50 years.
Canadian Parliamentarians will soon, then, have to grapple with an everlasting issue in the criminal justice system: can the state permanently restrict a person’s liberty for committing a heinous crime?
Under current Canadian law, individuals convicted of second-degree murder may apply for parole after serving between 10 to 25 years of their sentence, while those convicted of first-degree murder may only apply after 25 years.
If the proposed legislation is passed, Canada would join the United States and the United Kingdom in permitting indefinite detention for prisoners. While in the United States the practice has continued largely without challenge since being deemed constitutional by the United States Supreme Court in 1974, it has been scrutinized more closely in Europe.
Schedule 21 of the of the Criminal Justice Act 2003 permits judges to make the starting point for reviewing sentences of “exceptionally high” seriousness as the life of the order, foregoing any possibly of parole. In 2013, the Grand Chamber of the European Court of Human Rights held that these orders violated Article 3 of the European Convention of Human Rights, which prohibits inhuman or degrading treatment or punishment.
Critics of the proposed changes in Canada consider them to be an unwarranted deprivation of prisoners’ rights to life and liberty which lack any substantive foundation.
The proposed changes come in the wake of the erosion of rights for individuals convicted of first and second degree murder. In 2011, the federal government abolished the “faint hope clause” in Canada’s Criminal Code, which allowed individuals convicted of second and first-degree murder to apply for earlier parole eligibility after serving 15 years of their sentence. The provision was thought to provide prisoners serving indefinite sentences with some hope of release, thereby promoting rehabilitation.
Parole decisions are made by the Parole Board of Canada, an independent administrative agency.