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| John L. Hill |
Counsel for the attorney general sought to make a similar distinction in opposing the certification of a proposed class-action lawsuit, Roberts v. Canada (Attorney General), 2025 BCSC 995. The lawsuit aimed to compensate federal penitentiary inmates who, between March 11, 2020, and the date of certification, were incarcerated in a CSC institution during a declared COVID-19 outbreak; were confined for over 20 hours per day; and were denied more than two hours of daily interaction for at least 15 consecutive days.
Counsel for the Attorney General of Canada attempted to draw a distinction, arguing that this was not solitary confinement but medical isolation. Justice Michael Tammen of the British Columbia Supreme Court also had difficulty making the distinction.
Counsel for the lead plaintiff Dean Christopher Roberts contended that the distinction was inconsequential. The CSC’s application of medical isolation measures constituted solitary confinement, restricting inmates to their cells for more than 22 hours a day without meaningful human interaction, occasionally for stretches of 15 or more consecutive days.
Roberts relied on recent cases affirming that solitary confinement causes foreseeable harm and that extended segregation breaches Charter rights. The United Nations’ Mandela Rules define solitary confinement as 22 hours or more per day with no meaningful contact. Confinement beyond 15 days constitutes cruel and unusual punishment. These principles have been upheld in Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 243 and British Columbia Civil Liberties Association v. Canada (Attorney General), 2019 BCCA 228.
Solitary confinement has been challenged in cases from Ontario and British Columbia, where the extended isolation was found to breach Charter ss. 7 and 12 (Brazeau v. Canada (Attorney General), 2020 ONCA 184; Francis v. Ontario, 2021 ONCA 197; and North v. British Columbia (Attorney General), 2020 BCSC 2044).
The arguments advanced by the government of Canada against the certification of a class action centred on the distinction and definition of medical isolation and punitive solitary confinement. However, on this distinction, Justice Tammen reasserted the “same bed” lack of differentiation. He concluded that the courts have emphasized that the treatment experienced is what matters, not the label (“medical isolation” vs “solitary confinement”).
Department of Justice lawyers had additional arguments to present against allowing the class action to proceed, such as that the proposed class was overly broad and lacked clarity. No common legal issues or systemic negligence were demonstrated. Counsel argued that an individualized analysis was necessary for Charter breaches. There was no factual basis for aggregate damages or for proceeding as a class action. Finally, Roberts is not a suitable representative.
Nonetheless, the court found that the issues in the certification motion do not concern merits but rather whether the claim can proceed as a class action. The form of the claim met the criteria outlined in the Class Proceedings Act, and the judge determined that objections from the Attorney General of Canada are best addressed at trial rather than at the preliminary stage.
Only one issue raised by the defendant appeared meritorious. Other lawsuits concluding that solitary confinement was unconstitutional were justified, as the awarding of compensation could be seen as a form of behaviour modification for the actions of the correctional service. No such justification could be made in this case, the Department of Justice argued. Justice Tammen concurred, stating that this was the only factor weighing against a class proceeding, but it was insufficient to tip the scales against certification.
Ultimately, the court certified the class action, permitting it to move forward to trial, where the central issues — including the legality and justification of CSC’s pandemic-related isolation measures — will be thoroughly examined.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing). The Rest of the [True Crime] Story has been shortlisted for a prestigious Brass Knuckles Award, which is the Crime Writers’ of Canada’s prize for best nonfiction crime book of the year. Contact him at johnlornehill@hotmail.com.
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