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PRISON ADMINISTRATION - Segregation of prisoners

Tuesday, July 30, 2019 @ 9:36 AM  


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Appeal by the Crown from an order declaring the administrative segregation provisions of the Corrections and Conditional Release Act (CCRA) unconstitutional. The respondents submitted that ss. 31-33 and 37 of the CCRA authorizing the indefinite confinement of federal penitentiary inmates in administrative segregation for safety or security reasons violated ss. 7 and 15 of the Canadian Charter of Rights and Freedoms (Charter). The trial judge found that inmates confined in segregation were isolated and deprived of meaningful human contact. He found that administrative segregation, as currently practised in Canada, permitted resort to a form of prolonged solitary confinement contrary to UN standards that put inmates at increased risk of self-harm and suicide. The judge concluded that the impugned provisions engaged inmates’ interests in life and security of the person. The impugned provisions were overbroad and violated s. 7 of the Charter on the basis that prolonged confinement undermined the maintenance of institutional security and overall rehabilitation objectives. Additionally, the judge found that prolonged confinement in administrative segregation was not necessary to achieve the safety or security objectives that triggered its use, with less harmful measures available. The judge also found that the impugned provisions violated s. 15 of the Charter to the extent that they authorized administrative segregation for the mentally ill and/or disabled and discriminated against Indigenous inmates. The impugned provisions were declared of no force and effect. The Crown appealed.

HELD: Appeal allowed in part. The trial judge did not err in finding that solitary confinement was the inevitable consequence of the administrative segregation legislative regime. No error arose from the conclusion that the impugned provisions were overbroad and violated s. 7 of the Charter on the basis that prolonged and indefinite segregation inflicted harm on inmates and ultimately undermined the goal of institutional security, and on the basis that a lesser form of restriction would achieve the provisions’ objectives. Further, the prolonged administrative segregation authorized by the impugned provisions was grossly disproportionate to the statutory objective. The conclusion that the provisions could not be saved by s. 1 was supported by factual findings that were not contested on appeal. The trial judge correctly concluded that procedural fairness required external and independent review of administrative segregation decisions, with inmates represented by counsel during such review. To the degree that the impugned provisions did not provide for representation, a declaration to that effect was more appropriate than declaring the related provision of no force and effect. With respect to the s. 15 analysis, the trial judge’s order did not identify which provisions infringed Indigenous inmates’ s. 15 rights, the basis for such finding, or that the legislative regime was incapable of constitutional administration in that context. The related declaration was set aside. Similarly, the declaration with respect to mentally ill or disabled inmates could not stand, as the impugned provisions did not draw discriminatory distinctions as applied to mentally ill inmates. The declarations were amended to specify breaches of statutory obligations in the context of administration of the impugned provisions for mentally ill or disabled inmates.

British Columbia Civil Liberties Assn. v. Canada (Attorney General), [2019] B.C.J. No. 1151, British Columbia Court of Appeal, H. Groberman, P.M. Willcock and G.J. Fitch JJ.A., June 24, 2019. Digest No. TLD-July292019004