Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M A R C H 2 0 1 8 31 While there is still a commitment to amend the rules around pardons, the fed- eral government is not indicating when these changes will be introduced. Another issue that has been subject to Charter challenges and has arguably received a higher public profile is the rules around solitary confinement in federal prisons. The Canadian Civil Liberties Associa- tion in Ontario and the B.C. Civil Liberties Association, along with the John Howard Society, initiated proceedings challenging the constitutionality of indefinite "admin- istrative segregation" of inmates in federal institutions. Public Safety Minister Ralph Goodale introduced legislation last June that would impose an initial cap of 21 days at a time for this type of confinement. The maxi- mum would be reduced to 15 days within 18 months after the measures became law. That bill also did not advance beyond first reading after it was introduced. Once the bill was introduced, though, lawyers for the federal government unsuc- cessfully argued that this was sufficient reason to adjourn the B.C. proceeding, which was larger in scope and had more evidence that was going to be presented to the court than the Ontario proceeding. In both cases, the existing rules for plac- ing inmates in solitary confinement for non-disciplinary reasons were vigorously defended by the federal government. One of the arguments, rejected both by B.C. Supreme Court Justice Peter Leask and Ontario Superior Court Justice Frank Marrocco, was that, when the Correc- tional Service of Canada decided to put an inmate in administrative segregation, that did not meet the legal test of "solitary confinement." Both judges stated that under the "Nel- son Mandela rules" — the name for the United Nations Standard Minimum Rules for the Treatment of Prisoners — the conditions for these inmates in Canadian prisons was solitary confinement. During the B.C. proceeding, an expert witness for the federal government sug- gested that the maximum cap for segrega- tion should be 60 days. Alison Latimer, co-counsel for the plaintiffs in the B.C. case, says the federal government was sending a "conflicting message" in terms of its position on soli- tary confinement. She notes that the man- date letter issued by Trudeau to the Justice minister suggested it would implement the recommendations of the Ashley Smith inquest. The jury in the inquest looking into the death of the young woman in 2007 in an Ontario prison called for strict limits on solitary confinement. "There was a conflict between what was said publicly and how the legisla- tion was being defended in court," notes Latimer, partner at Arvay Finlay LLP in Vancouver. The impugned sections in the Correc- tions and Conditional Release Act were found to be unconstitutional in both cases. The judges also suspended their declara- tions of invalidity for 12 months to give the federal government time to amend the statute. The CCLA has filed an appeal of the Ontario ruling because it concluded that reviews of decisions to keep inmates in solitary could still be considered indepen- dent if conducted by an outside individual within the correctional service. Leask, in his ruling, disagreed with his Ontario counterpart and found that any reviews must be done externally and also have enforcement power. Scott Bardsley, a spokesman for the Public Safety minister, says the T he federal government introduced long-awaited changes to the Access to Information Act, which were passed by the House of Commons last December. The legislation, the responsibility of Treasury Board president Scott Bri- son, was later than promised, but the Liberal cabinet minister said at the time that it was a matter of getting it right. However, the reaction from freedom of information advocates has been less than positive. At best, the impact of the amendments is "neutral," says Mary Francoli, a profes- sor at the school of journalism and communications at Carleton University, who focuses on open government issues. "It is perplexing. There was so much rhetoric about openness and transparency. This was a real opportunity," Francoli suggests. Instead, the legislation includes "additional grounds" for federal agencies to decline access to information requests and does not clarify what kind of total fees might be imposed beyond that of the initial application charge, she says. "No one thinks that everything in government should be 100-per-cent open. But there is so much information that is not made public," says Francoli. She adds that she does not believe the changes will result in more access to government records or administrative institutions. The right of government departments or agencies to seek a review in Federal Court of an order by the Information Commissioner may negatively impact its work. "Resources have always been an issue," Francoli says. Toby Mendel, a lawyer and president of the Centre for Law and Democracy in Halifax, says the legislation (which was in the Senate at press time) are not the "quick wins" the Liberal government promised. "This law is woefully in need of improvement," says Mendel. His organization is involved in compiling a global "right to information" rat- ing for countries with respect to its legal framework for access to information and a number of other factors. Canada ranks 49th out of 111 countries in the survey, Mendel notes. The exceptions to access in the legislation are "massively overbroad," says Men- del. "Every exception should have a public interest override." The one area of faint praise is in comparison to the former Conservative govern- ment. "The previous government was horrible on access to information. It is better than the previous government," Mendel says. ACCESS TO INFORMATION

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