Earlier this week, the BC Court of Appeal (“BCCA”) released its judgment in the solitary confinement case. The case concerned the federal government’s appeal of the successful constitutional challenge of Canada’s use of solitary confinement by the BC Civil Liberties Association and John Howard Society of Canada.

While we welcome aspects of the Court’s decision, we are disappointed with how the BCCA has significantly diminished the meaningfulness of the trial judge’s findings that solitary confinement discriminates against Indigenous prisoners and against prisoners with mental illness and/or disability. The BCCA unanimously upheld the trial judge’s ruling that laws allowing prolonged and indefinite solitary confinement violate prisoners’ rights to life, liberty and security of the person under s. 7 of the Charter. After hearing extensive evidence, the trial judge found that Canada’s use of solitary confinement harms the mental and physical health of prisoners and increases their risk of self-harm and suicide.

The BCCA did correct the trial judge’s erroneous and unnecessary “finding” that female prisoners are not discriminated against by the solitary confinement regime. While we were involved in the case to ensure that the court understood the unique gendered impacts of solitary confinement, the issue of sex discrimination was never squarely before the judge and should not have been decided.

Despite these positive aspects of the BCCA’s decision, we are frustrated that its judgment effectively erases discrimination against Indigenous people—who are vastly overrepresented in prisons and in solitary confinement. The BCCA failed to order a specific remedy to address the trial judge’s finding that the Correctional Service of Canada has systemically discriminated against Indigenous prisoners—a finding that even the government of Canada admitted was accurate.

At the Court of Appeal, we intervened with the Native Women’s Association of Canada to again argue the intersecting dimensions of discrimination and to advocate for a meaningful remedy.

West Coast LEAF supported the plaintiffs in making their discrimination claims at the trial by focusing on the need for courts to understand and address the particular harms of isolation for Indigenous women and women with disabling mental health impairments. These groups of women are more likely to be deemed high-risk by the prison system, be imprisoned in more high-security and restrictive environments, and be subjected to solitary confinement. Further, these populations often enter prison with intergenerational and personal histories of abuse and trauma, which can make the effects of solitary confinement all the more dangerous and devastating.

Despite acknowledging these facts, the BCCA decided that any declaration it could make about discrimination against Indigenous prisoners would necessarily be vague because neither the trial judge nor Canada identified how such discrimination occurred.

This is a devastating erasure of the experience of Indigenous people in prisons.

The BCCA has agreed that Canada’s system of solitary confinement is unconstitutional because it warehouses prisoners for prolonged and indeterminate periods of time under conditions recognized as torture. Yet, the BCCA has also denied Indigenous prisoners substantive equality.

The use of solitary confinement only deepens the injustices Indigenous people already face: it leaves them less likely to be paroled, to have access to Elders and appropriate cultural and spiritual resources, or to have opportunities for meaningful rehabilitative and vocational programming and training. We also know that solitary confinement harms Indigenous women in additional, distinctly gendered ways.

Unconstitutional laws like this one are how discrimination actively harms society’s most vulnerable. As this case inevitably moves to the next stage of appeal, we will continue to fight for the rights of Indigenous women and gender-diverse people.