In January 2015 the BC Civil Liberties Association (BCCLA) and the John Howard Society filed a lawsuit against the Attorney General of Canada challenging the use of solitary confinement in Canadian prisons. The lawsuit charges that solitary confinement is cruel and unusual punishment, leads to prisoner suffering and deaths, and is discriminatory against prisoners with mental health illnesses and Aboriginal prisoners.

Solitary confinement, also known as segregation, is the practice of confining a prisoner to a cell and depriving them of meaningful human contact for up to 23 hours a day. In Canadian federal prisons, solitary confinement is used in two ways. ‘Disciplinary Segregation’ is used when a prisoner is found guilty after a hearing then ‘sentenced’ to a maximum of 45 days of segregation as punishment. With ‘Administrative Segregation,’ however, there is no hearing. The prisoner is placed into solitary confinement based solely on the opinion of a prison administrator that the prisoner’s presence in the general population is a risk to security or safety of others or to the prisoner themself. Significantly, here is no limit on the amount of time a prisoner may be held in administrative segregation.

Currently in Canada, prisoners spend months or even years in administrative solitary confinement without a hearing. The Office of the Correctional Investigator’s March 2013 report found that nearly a quarter of Canada’s federal prison population spent some time in solitary. Forty percent of those offenders were held in segregation for longer than thirty days, and 16.5% for more than four months.

Overwhelmingly, those most subjected to administrative segregation (those deemed by an institutional head to be a threat to their own safety or the safety of others) are Indigenous prisoners and prisoners with mental health illnesses. The BCCLA and John Howard Society’s constitutional challenge addresses this injustice, claiming the use of segregation is discriminatory.

Prisoners with mental health illnesses are stuck in a particularly cruel and punitive institutional trap. According to the BCCLA, “increasingly, solitary confinement is being used as a means to warehouse prisoners with mental health problems.” Canada’s Chief Correctional Investigator estimates that over a third of new prisoners have mental health conditions. In 2015 the Canadian Alliance on Mental Illness and Mental Health wrote “Canada’s jails and penitentiaries are rapidly becoming the largest mental health providers in the country.” Further, as the BCCLA states, the conditions in solitary confinement “can create mental illness where none previously existed, or exacerbate pre-existing illness.” The prison system is catching those who have been dropped by mental health program funding cuts, and trapping them in conditions that make their health worse. In 2012, following a recommendation from the Canadian Human Rights Commission, the United Nations Committee Against Torture explicitly criticized Canada’s use of solitary confinement, calling upon Canada to abolish the use of solitary confinement for persons with serious mental illness.

By conservative estimates, Indigenous people constitute only 3.8% of the general population of Canada but 23.2% of the total inmate population. The Correctional Investigator reports that Indigenous prisoners are placed in solitary confinement at a rate that is disproportionate to their rate of incarceration. These numbers are even higher in women’s prisons where most of the women serving long sentences in solitary confinement are Indigenous.

BobbyLee Worm’s case, a young Indigenous woman from Saskatoon, highlights the faults in the system. Ms. Worm is a survivor of serious abuse and trauma who entered the prison system at age 19, never received support or counseling, and was kept in solitary confinement for more than three and a half years. Her former lawyer Grace Pastine explained that Corrections “subject[ed] BobbyLee to one of the harshest and most psychologically damaging punitive measures that they have available to them.” In 2011, the BC Civil Liberties Association (BCCLA) sued the government of Canada on behalf of BobbyLee Worm. Two days after the organization filed the lawsuit BobbyLee Worm was released and shortly after the federal government announced it would eliminate the Management Protocol program they used to hold her in solitary for so long. Pastine says BobbyLee Worm’s treatment is “not atypical” of how Indigenous women and people with mental health illnesses are treated in prisons in Canada.

BobbyLee Worm’s case successfully took away one discriminatory tool used by Corrections Canada in the detention of people with mental health illnesses and Indigenous people. The 2015 lawsuit launched by the BCCLA and John Howard Society steps up their opposition to the use of segregation in prisons for these and all prisoners in Canada.