Administrative Segregation as Cruel, Inhuman or Degrading Treatment: The Relationship Between Canadian Charter’s Section 12 and the International Covenant on Civil and Political Rights’ Article 7

Résumé

This legal analysis compares and contrasts the application of the Charter’s section 12, regarding “cruel and unusual treatment or punishment,” in the Canadian justice system to the International Covenant on Civil and Political Rights’ Article 7, regarding “cruel, inhuman, and degrading treatment or punishment. These legal concepts are integral to the Canadian Federal Government’s contemporary policy on the use of administrative segregation (also known as solitary confinement) in the Canadian prison system. Thus, what is the relationship between the Charter’s s. 12 and the ICCPR’s Article 7 regarding incarcerated persons facing administrative segregation? The use of expert evidence from international actors shows the potential effects of international treaties on domestic justice systems; the segregation cases of British Columbia Civil Liberties Association v. Canada (BCCLA) and Canadian Civil Liberties Association v. Canada (CCLA), and subsequent cases like R. v. Capay (Capay) and Reddock v. Canada (Reddock) specifically present how the use (or lack thereof) of section 12 and international expert evidence can affect the outcomes of domestic legal cases. The cases of BCCLA, CCLA, Capay, and Reddock, occurring from 2018-2019, are selected and analyzed to show that the use of expert evidence and decisions of justices in section 12 cases creates a section 12 that begins to replicate the ICCPR’s Article 7 and improve the conditions and rights of incarcerated persons.