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PRISON ADMINISTRATION - Conditions and treatment - Duty of fairness - Rights of prisoners - Segregation of prisoners

Tuesday, February 20, 2018 @ 8:32 AM  


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Action by the plaintiffs, British Columbia Civil Liberties Association and the John Howard Society of Canada, for an end to administrative segregation as it was presently practised in federal penitentiaries in Canada. The plaintiffs contended that ss. 31 to 33 and 37 of the Corrections and Conditional Release Act (CCRA) authorizing administrative segregation were contrary to ss. 7, 9, 10, 12 and 15 of the Canadian Charter of Rights and Freedoms (Charter). They said that the impugned provisions permitted indeterminate and prolonged solitary confinement. Segregation, especially when endured for extended periods, had significant adverse effects on the physical, psychological, and social health of inmates, and there was no independent oversight of placements. The plaintiffs further alleged that the impugned provisions had a disproportionate impact on Aboriginal inmates and those with mental illness. The Attorney General of Canada (Canada) responded that administrative segregation as it was practised in federal correctional facilities was not solitary confinement since inmates had daily opportunity for meaningful human contact. Moreover, the psychological effects of segregation on inmates remained the subject of ongoing and vigorous scientific debate. Canada submitted that maintaining institutional security and inmate and staff safety was a complicated task, and that administrative segregation was a necessary tool when no other reasonable alternatives existed. The length of placements was not indeterminate as alleged, but rather determined by the time required to eliminate the safety or security issue that triggered its use. Canada argued that the plaintiffs failed to establish that the impugned provisions were unconstitutional on their face or in their application, and that their claims were therefore to be dismissed.

HELD: Action allowed. Administrative segregation as enacted by s. 31 of the CCRA was a form of solitary confinement that placed all Canadian federal inmates subject to it at significant risk of serious psychological harm, including mental pain and suffering, and increased incidence of self-harm and suicide. The risks of those harms were intensified in the case of mentally ill inmates. However, all inmates subject to segregation were subject to the risk of harm to some degree. The indeterminacy of administrative segregation was a particularly problematic feature that exacerbated its painfulness, increased frustration, and intensified the depression and hopelessness that were often generated in the restrictive environments that characterized segregation. Many inmates were likely to suffer permanent harm as a result of their confinement. The harm was most commonly manifested by a continued intolerance of social interaction, which had repercussions for inmates' ability to successfully readjust to the social environment of the prison general population and to the broader community upon release from prison. The impugned provisions engaged an inmate’s right to life, liberty and security of the person under s. 7 of the Charter. To the extent that the impugned provisions authorized the isolation of inmates in circumstances where that was not necessary to achieve institutional and personal safety and security, it was overbroad. The existing statutory regime permitted the warden to be the judge in his or her own cause with respect to placement decisions. The lack of impartiality in the review process was contrary to the principle of procedural fairness guaranteed by s. 7. The party reviewing a segregation decision should be independent of Correctional Service Canada (CSC). Such an independent reviewer must have the authority to release an inmate from segregation, not simply make recommendations that the warden could override or disregard. Procedural fairness also required that any inmate who wished to be represented by counsel at an ISRB hearing was entitled to such representation. Canada acknowledged that placement in administrative segregation constituted a new detention that engaged s. 10(b) of the Charter. The current CSC practice failed to accord segregated inmates their proper s. 10(b) rights. No declaration was issued with respect to s. 10(b). The impugned provisions did not have a disproportionate effect on women. They did have a significant and disproportionate effect on Aboriginal inmates, both men and women. The CSC was to make a concerted effort to improve the assessment tools and programs for Aboriginal inmates. The most serious deficiency in dealing with administrative segregation placements was the inadequacy of Canada’s processes for dealing with the mentally ill. The law failed to respond to the actual capacities and needs of mentally ill inmates and instead imposed burdens in a manner that had the effect of reinforcing, perpetuating or exacerbating their disadvantage. The plaintiffs established a breach of s. 15 of the Charter. There was no basis for finding a breach of s. 12. While individual circumstances of administrative segregation could amount to cruel and unusual punishment, that was not the case in every application of the impugned legislation. The infringements of s. 7 and s. 15 of the Charter could not be justified under s. 1. The impugned provisions were not minimally impairing of the rights of segregated inmates and there were less impairing alternatives such as voluntary disassociation, other subpopulations or treatment. Sections 31, 32, 33, and 37 of the CCRA were declared invalid. The declaration of invalidity was suspended for 12 months.

British Columbia Civil Liberties Assn. v. Canada (Attorney General), [2018] B.C.J. No. 53, British Columbia Supreme Court, P.D. Leask J., January 17, 2018. Digest No. TLD-Feb192018002