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Court grants Canada administrative segregation extension ‘with great reluctance’

Monday, April 29, 2019 @ 9:44 AM | By Amanda Jerome

In a decision released April 26, the Ontario Court of Appeal granted “one final extension” for the suspension of invalidity of ss. 31-37 of the Corrections and Conditional Release Act, which allows the Correctional Service of Canada (CSC) to place inmates in “administrative segregation.”

The extension will last until June 17, the court determined, “on the condition that the independent fifth day review be implemented.”

In Canadian Civil Liberties Association v. Canada (Attorney General) 2019 ONCA 342, the Attorney General of Canada (AGC) brought a motion to extend the suspension of invalidity until Nov. 30, 2019. The suspension was originally granted by Associate Chief Justice Frank Marrocco on Dec. 18, 2017, after he determined the relevant sections contravene s. 7 of the Canadian Charter of Rights and Freedoms.

According to court documents, Justice Marrocco found the provisions in the Act to be “inconsistent with the principles of fundamental justice because they did not provide for meaningful independent review within five working days of the decision to place an inmate in administrative segregation.”

However, he suspended his declaration of invalidity until Dec. 18, 2018.

Since that judgment, Canada has requested two further extensions, despite the Court of Appeal condemning the use of prolonged solitary confinement.

The first request was made in November 2018 when the government pointed to the review of Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, as the need for an extension. The bill was introduced in October 2018 to “overhaul the administrative segregation regime.” The court granted the extension until April 30, 2019.

Chief Justice George Strathy, writing for the Court of Appeal, noted at the time of the first extension the court was “concerned by the absence of any explanation for Canada’s delay in addressing the constitutional infirmity identified in the application Judge’s [Justice Marrocco’s] decision; the absence of information concerning any interim measures that have been or might be taken to address or mitigate the breach of Charter rights pending the implementation of new legislation; and the absence of any explanation of how the proposed legislation would address the constitutional infirmity identified by the application judge. We requested additional written submissions from both parties.”

The Attorney General’s submissions did not address the court’s concerns, Justice Strathy stressed.

“The delay was not explained, interim measures to remedy the constitutional breach identified were not proposed, and it was not clear how Bill C-83 would address the problem. Instead, the AGC asserted that the precise nature of the review process in Bill C-83 was work in progress and the regulatory scheme had yet to be established,” he added.

The second extension was requested just before the April 30 deadline, with the AGC again relying on Bill C-83, which received its second reading in the Senate on April 4, as the need for further extension.

According to court documents, the AGC’s factum noted that Bill C-83 is “complex legislation proposing to bring about important changes to Canada's federal correctional regime. The significant legal, policy, operational, infrastructure and resource considerations involved in the development and implementation of the Bill, as well as the time Parliament has used to fully debate and consider submissions on it, including from interested stakeholders, are due their proper deference.”

Despite the “complexity” of Bill C-83 presented by the AGC, Justice Strathy explained that “this court remains where we were when the first extension was argued: we have virtually nothing to indicate that the constitutional breach identified by the application judge is being or will be addressed in the future.”

The Court of Appeal noted that it remains “unclear” how Bill C-83, if enacted, will remedy the constitutional breach. It also explained that if the AGC's motion was granted it would extend the suspension of the Justice Marrocco’s “declaration of invalidity to nearly two years from the date the breach was found.”

“This is unacceptable,” wrote Justice Strathy. “In all the circumstances outlined above, a remedy to the lack of an independent fifth day review of segregation placement decisions does not require the lengthy extension the AGC is seeking.”

Justice Strathy, with Justices Mary Lou Benotto and Lois Roberts in agreement, granted “with great reluctance” the brief extension until June 17 so “that the fifth working day review can quickly begin.”

The Court of Appeal concluded that CSC “must establish a system of review whereby no inmate will be kept in administrative segregation for more than five working days without the placement decision being reviewed and upheld by a senior official who is neither the institutional head of the institution where the inmate is incarcerated nor a person who is subordinate to that institutional head.”

Michael Rosenberg image

Michael Rosenberg, McCarthy Tétrault LLP

Michael Rosenberg, of McCarthy Tétrault LLP and counsel for the Canadian Civil Liberties Association (CCLA) with Jonathan Lisus, Larissa Moscu and Charlotte-Anne Malischewski, said the Court of Appeal used strong language to express its “deep disappointment in Canada’s failure to comply with Associate Chief Justice Marrocco’s order.”

“As the court clearly states, this is Canada’s last chance to comply,” he added, noting that much of the court’s frustration arises from the fact that “Canada waited more than a year before it even began to discuss the ways in which it would comply with this decision and remedy the constitutional defect.”

Rosenberg said Canada will need to “implement remedial legislation that corrects the constitutional defect, failing which it will lose the legal authority to subject any inmates to administrative segregation for any period of time because sections 31-37 of the Corrections and Conditional Release Act will be struck and will be of no force and effect.”

“In the CCLA’s view,” he added, “this breach was recognized in December 2017 and Canada’s refusal to take any meaningful steps to comply with the court’s decision really brings the administration of justice into disrepute and that’s what the court is clearly sensitive to here.”

“The time to comply is now. Justice cannot wait,” Rosenberg stressed, noting that the CCLA has continued to work on this issue with the support of the British Columbia Civil Liberties Association and the John Howard Society.

“This is a battle. This is Canada refusing to accede to the direction of every court that considers the legality of prolonged solitary confinement,” he added. “The CCLA certainly calls on Canada to heed the directions of the courts, and rather than continue to fight this matter, to do the right thing.”

Scott Bardsley, spokesperson for the Department of Public Safety and Emergency Preparedness, said the Court of Appeal noted “the validity of effectiveness of C-83 is not before us.”

According to Bardsley the bill makes two “important changes while still allowing inmates to be separated when necessary to maintain safety.” He explained that under Bill C-83, there will be “no more administrative or disciplinary segregation.”

“It eliminates segregation and establishes a fundamentally different system focused on targeted interventions, programs and mental health care,” he said via e-mail, adding that the bill also “creates a system of independent review of the placement of inmates in Structured Intervention Units.”
“We allocated $448 million to safely implement the new system, which will involve hiring approximately 950 new staff and making adjustments to institutional infrastructure,” Bardsley explained, noting it will take time to recruit and train new staff, make the necessary infrastructure changes and establish the external independent review process.
“In the meantime, CSC has been implementing policy changes to safely reduce administrative segregation placements. As of March 28, 2019, there were 322 offenders nationally in administrative segregation — a reduction of almost 59 per cent compared to April 2014 (780 to 322),” he said.