Supreme Court Law Review
tort law; solitary confinement; prison law and policy; critical torts
The law and practice of solitary confinement continues to be a source of rights violations in Canadian prisons. The practice, formally known as administrative segregation, isolates prisoners for 23 hours a day in dehumanizing conditions of confinement. In this paper, I examine the extent to which the tort of false imprisonment can compensate prisoners for unlawful or excessive segregation placements. This analysis is new: while some scholars have examined how other branches of tort law can address harms caused by segregation none have examined the application of this tort. I argue that because of its focus on liberty, dignity, and personal autonomy, this tort is particularly well suited to address the harms of segregation. To date, however, the tort’s progressive potential has not been realized, for two main reasons. First, rather than maintain the rigorous standards required by the tort, the courts have shown significant deference to the discretionary authority or prison officials, even in cases where the courts accepted evidence that such authority was improperly exercised. In doing so, they have allowed prison authorities to circumvent liability for unwarranted segregation placements, thus effectively authorizing the very violations against which the tort is designed to protect. Second, even in successful cases, the courts have awarded only paltry general damage awards to prisoner plaintiffs, generally set at $10 for every unlawful day of segregation. Their stated rationale for doing so is that a prisoner’s retained liberty is simply not worth as much as the liberty of the free. This approach is problematic not only for its failure to appreciate the lived experience of segregation, but also for its unprincipled departure from the doctrine that governs the application of the tort. Developing these critiques by analyzing the prison cases against those involving the unincarcerated – in which violations of liberty are effectively compensated – I conclude by advocating for a judicial shift in the determination of false imprisonment cases involving segregation. Against the backdrop of the Supreme Court of British Columbia’s landmark decision in British Columbia Civil Liberties Assn. v. Canada (Attorney General), I argue that such a shift could bring a sea change in Canadian tort law, and advance the law’s promise to effectively protect dignity, autonomy, and liberty.
Efrat Arbel, "Devalued Liberty and Undue Deference: The Tort of False Imprisonment and the Law of Solitary Confinement" (2018) 84 Sup Ct L Rev 43.