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PRISON ADMINISTRATION - Segregation of prisoners

Friday, April 26, 2019 @ 6:13 AM  

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Appeal by the Canadian Civil Liberties Association from a decision finding that the provisions of the Corrections and Conditional Release Act authorizing administrative segregation violated s. 7 of the Charter but not ss. 12 and 11(h) of the Charter. The application judge rejected the appellant’s submissions that administrative segregation of young adults aged 18-21 and inmates suffering from mental illness, as well as prolonged administrative segregation of any inmate beyond 15 days, constituted cruel and unusual treatment or punishment contrary to s. 12. The application judge concluded that prolonged administrative segregation did not amount to cruel and unusual punishment or treatment in part because monitoring could identify when an inmate’s condition was deteriorating. He was not satisfied that the evidence proved that because the brain of a person aged 18 to 21 continued to develop, that person was vulnerable to severe termination of development if exposed to administrative segregation. The appellant also argued that the practice of segregating inmates for their own protection amounted to an additional form of punishment, contrary to the prohibition against double jeopardy enshrined in s. 11(h) of the Charter. The application judge rejected the argument that placing an inmate in administrative segregation changed the nature of the inmate’s incarceration and imposed a harsher sanction than that contemplated at sentencing.

HELD: Appeal allowed in part. The provisions in the Act authorizing segregation beyond 15 consecutive days infringed s. 12 and the infringement could not be justified under s. 1. Prolonged administrative segregation caused foreseeable and expected harm which could be permanent, and which could not be detected through monitoring until it had already occurred. The distinguishing feature of administrative segregation was the elimination of meaningful social interaction or stimulus with the result that social stimulus was insufficient to allow the individual to remain in a reasonable state of mental health. The application judge erred in relying on the monitoring of inmates in administrative segregation to find the Act constitutionally compliant. Monitoring only detected harm once it had already occurred but did not predict or prevent it. The application judge also engaged in the wrong comparative exercise in assessing whether there was a s. 12 breach by comparing the actual treatment to the purpose for the treatment rather than following the comparative analysis. A proper comparative exercise must consider the effects of prolonged administrative segregation against incarceration in an ordinary prison range. Compared to the treatment of inmates in general population, the evidence revealed that inmates held in prolonged administrative segregation were at risk of severe and often enduring negative health consequences. The safeguards in the legislation were inadequate, such that the legislation itself infringed s. 12. The application judge did not err in dismissing the s. 12 claim with respect to persons aged 18-21 in segregation up to 15 days as there was no evidence of termination of brain development before 15 days. Although those with mental illness should not be placed in administrative segregation, the evidence did not provide the court with a meaningful way to identify those inmates whose particular mental illnesses were of such a kind as to render administrative segregation for any length of time cruel and unusual. A cap of 15 days would reduce the risk of harm to inmates who suffered from mental illness, at least until the court had the benefit of medical and institutional expert evidence to address meaningful guidelines. As the provisions of the Act authorizing administrative segregation of inmates aged 18-21 and inmates with mental illness up to 15 days were found not to infringe s. 12, they could not infringe s. 7. Section 7 could not find a treatment or punishment disproportionate where it passed the test under s. 12. There was no error in the application judge’s analysis with respect to s. 11(h).

Canadian Civil Liberties Assn. v. Canada (Attorney General), [2019] O.J. No. 1537, Ontario Court of Appeal, G.R. Strathy C.J.O., M.L. Benotto and L.B. Roberts JJ.A., March 28, 2019. Digest No. TLD-April222019009