Feds win ‘interim interim’ stay for 15-day cap on solitary confinement

TORONTO — The federal government won’t have to comply immediately with a court decision that limited solitary confinement to 15 consecutive days, the Supreme Court of Canada has decided.

In granting Ottawa’s urgent request for an “interim interim” stay, the country’s top court said the government had met all three needed conditions. Those factors, the court said, include whether there was a “serious issue” to be tried and whether it would cause the government “irreparable harm” if not granted.

“I am satisfied that these factors have been met for the purpose of the interim interim stay only,” Justice Suzanne Cote said. “This order will remain in effect until the determination of the motion for an interim stay, which shall be dealt with on an expedited basis.”

In a ruling last month, the Ontario Court of Appeal said placing prisoners deemed a risk to themselves or others in segregation for more than 15 days amounts to cruel and unusual punishment and was therefore unconstitutional. The court gave correctional authorities 15 days — until Friday — to comply and end the practice.

The federal government sought leave to appeal to the Supreme Court, along with a request to put the lower-court decision on hold pending the outcome. However, because the request for an interim stay would only be heard well after Friday’s deadline to comply with the ruling, Ottawa sought the interim interim stay.

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In support of its request, the federal government said the lower court did not take into account the consequences of capping administrative segregation, and warned that imposing a hard limit in all cases could be dangerous.

“There is currently no alternative recourse to address these situations, placing the safety and security of all federal institutions, the inmates and the staff at high risk,” the government said in its notice of leave to appeal.

Critics of isolation say studies indicate that depriving inmates of meaningful human contact for much of their day can cause long-term, even permanent, psychological damage.

The Canadian Civil Liberties Association, which has pursued the case, called it “deeply disappointing” that the government was seeking to appeal.

It opposed the interim interim stay request, calling it highly unusual for courts to allow practices deemed to violate the charter because they amount to cruel and unusual treatment to continue.

“Canada asks this court to prolong a dangerous practice that is ‘harmful and offside responsible medical opinion,’” the association said in its filing. “The impact on those affected is real and serious.”

Having granted the interim interim stay, Cote gave the association until April 23 to respond to the request for an interim stay, and Ottawa a further two days to reply. It’s not clear when the Supreme Court will decide on the stay motion or whether it will hear the government’s appeal.

Colin Perkel, The Canadian Press