Court’s segregation cap positive step, more precaution needed for vulnerable inmates, lawyer and senator say

Law360 Canada (April 1, 2019, 10:36 AM EDT) -- The Ontario Court of Appeal’s decision to put a hard cap on the number of days Canadian inmates are held in administrative segregation is a “step in the right direction,” Sen. Kim Pate said. However, she and counsel for the appellant said more needs to be done to define which vulnerable inmates should be kept out of segregation altogether.  

In Canadian Civil Liberties Association v. Canada (Attorney General) 2019 ONCA 243, the court determined that prolonged administrative segregation of more than 15 consecutive days, of “any inmate,” is unconstitutional under s. 12 of the Canadian Charter of Rights and Freedoms, effectively putting a hard cap on time allowed in segregation in Canadian prisons.

“I reach this conclusion because prolonged administrative segregation causes foreseeable and expected harm which may be permanent and which cannot be detected through monitoring until it has already occurred,” wrote Justice Mary Lou Benotto, for the Court of Appeal, adding legislative safeguards are “inadequate to avoid the risk of harm.”

“In my view, this outrages standards of decency and amounts to cruel and unusual treatment. I conclude that the provisions in the [Corrections and Conditional Release] Act authorizing prolonged administrative segregation infringe s. 12 and the infringement cannot be justified under s. 1. It follows that a remedy under s. 52(1) of the Constitution Act, 1982 is appropriate,” she noted in a decision released March 28, with Justices George Strathy and Lois Roberts in agreement.

Under ss. 31-37 of the Corrections and Conditional Release Act, the Correctional Service of Canada (CSC) can put inmates in “administrative segregation.” Prisoners held in segregation are allowed out of their cells for a “a minimum of two hours per day plus time for a daily shower.”

This Charter challenge began at the court below when the appellant, Canadian Civil Liberties Association (CCLA), applied to the Superior Court of Justice arguing that ss. 31-37 of the Act violate ss. 12, 11(h) and 7 of the Charter.

According to court documents, the application judge, associate Chief Justice Frank Marrocco, acknowledged that serious risks of negative psychological harm can occur after only 48 hours of segregation and these risks can be “exacerbated by prolonged segregation.” However, he determined that lengthy segregation “did not amount to cruel and unusual punishment or treatment in part because monitoring can identify when an inmate’s condition is deteriorating.”

Justice Marrocco rejected the CCLA’s s. 11(h) claim, but found the provisions did breach of s. 7 because “there was no independent review of the decision to segregate an inmate and the breach was not saved by s. 1.” According to court documents, the judge declared ss. 31-37 of no force and effect. He suspended the declaration of invalidity until Dec. 18, 2018, so Parliament could have time to pass an “appropriate legislative response.”

The Court of Appeal acknowledged that Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, amends ss. 31-37 of the Act and is currently before the Senate. The bill was introduced in the House of Commons on Oct. 16, 2018, and passed third reading on March 18, 2019. According to court documents, Bill C-83 allows the Commissioner of Corrections to designate any area as a “structured intervention unit,” which would function similarly to “administrative segregation.”

According to court documents, the change in legislation directed by Justice Marrocco had not been completed by the deadline he imposed, so the respondent, the Attorney General of Canada, moved to extend the deadline. Therefore in 2018, the Court of Appeal suspended Justice Marrocco’s declaration of invalidity until April 30, 2019.

The CCLA continued its challenge at the Court of Appeal, with support from the Ontario Human Rights Commission (OHRC) as an intervener, seeking a declaration that “ss. 31-37 of the Act infringe s. 12 of the Charter, or alternatively s. 7, and are of no force and effect to the extent that they authorize administrative segregation of persons aged 18-21 and those diagnosed with a mental illness, as well as prolonged administrative segregation (more than 15 consecutive days) of any person;” and that “s. 31(3) of the Act infringes s. 11(h) of the Charter and is of no force and effect to the extent that it authorizes administrative segregation of persons for their own protection.”

Michael Rosenberg, of McCarthy Tétrault LLP and counsel for the appellant with Jonathan Lisus, Larissa Moscu and Charlotte-Anne Malischewski, is hopeful this decision will change the way that Canada runs its prisons.

“The courts have clearly signalled that Canada’s practice of solitary confinement is unacceptable and it must stop, and it must stop now,” he stressed.

Rosenberg noted that part of the decision lost in the discourse is that the court accepted “in principle” that mentally ill inmates should not be admitted to segregation at all.

“The justices did not have sufficient evidence before them to determine where you draw the line as to how ill an inmate must be before they’re precluded from admission to segregation for even a single day, but that’s an important piece here of this decision. I think it speaks to the fact that there are some inmates who simply can never be admitted to solitary confinement,” he explained.

Rosenberg is optimistic that Canada, having received this decision, will “take it to heart, will implement the change that the court has mandated, and we can turn the page on a sorry chapter in the administration of our prisons.”

“I think it’s important to remember that this decision comes as a result of years of work both by the Canadian Civil Liberties Association, but also by the British Columbia Civil Liberties Association and the John Howard Society and their parallel challenge before the courts of British Columbia. I think in many ways it represents a groundswell of support for the notion that solitary confinement is harmful and that our past uses of it are no longer acceptable given what we know about the harms it causes,” he added.

Pate, the former executive director of the Elizabeth Fry Societies and an advocate for incarcerated women, said that although mentally ill inmates are significantly among those in segregation, there are other groups that this decision will impact as well.

“There are certainly groups who have been separated because of allegations, or their own assertions that they require safety because of the nature of their charges, and so it will require dynamic types of intervention and security that historically was provided and needs to be reinstated in many of the prisons, particularly the maximum-security prisons. It will impact, in particular, Indigenous and racialized prisoners as well as they tend to be both overclassified and over-represented in segregation,” she explained.

Pate doesn’t know if this decision will impact Bill C-83 but said if she were “in the government’s shoes” she would be taking “a long hard look at this bill.”

“I certainly recommend that they [the government] pull it back and start again and really focus on what a series of courts have been saying to them,” she added, stressing the need to end segregation altogether.

“I think it’s a very important decision and it’s a step in the right direction. There are groups who could be desegregated right away and without the need for even a 15-day limit,” she explained.

On the appeal, Justice Benotto noted evidence showing the “horrific effects of administrative segregation that — it is submitted — outrages Canadian standards of decency.”

“The photographic evidence adduced by the CCLA in this case depicts a small cell where the inmate is held. It contains a narrow platform with a thin mattress overtop, a toilet, a sink, maybe or maybe not a small table, maybe or maybe not a small window. The heavy steel door has a small food slot a few feet off the ground. It is often through this food slot that interactions with staff and health personnel take place,” she wrote, adding that for years the international community has urged limitations on the use of solitary confinement.

She acknowledged that the court below had turned to expert evidence provided by Juan Méndez, a professor of human rights law at the Washington College of Law, that showed individuals deprived of social stimulation “become incapable of maintaining an adequate state of alertness and attention to their environment. If this occurs for even a few days, brain activity shifts toward an abnormal pattern.”

Justice Benotto determined that Justice Marrocco erred in “relying on the monitoring of inmates in administrative segregation to find the Act constitutionally compliant.”

“The practical effect of monitoring combined with a proper application of s. 87(a) is that it allows the CSC to remove an inmate from administrative segregation only after they have detected decompensation which has already occurred. In other words, monitoring, while effective at identifying inmates who have suffered harm, is ineffective at preventing it,” she wrote, adding that Justice Marrocco’s error in relying on the effectiveness of monitoring “undermines his conclusion that ss. 31-37 do not breach s. 12 insofar as they permit prolonged segregation.”

The court found that Justice Marrocco had also applied the wrong comparative approach in his s. 12 analysis noting that the decisions in Ogiamien v. Ontario (Community Safety and Correctional Services) 2017 ONCA 667 and Toure v. Canada (Public Safety & Emergency Preparedness) 2018 ONCA 681 make clear that the “proper comparison is between the actual treatment against what would be appropriate in the circumstances.”

Justice Benotto explained that a “proper comparative exercise must consider the effects of prolonged administrative segregation against incarceration in an ordinary prison range.”

“This is precisely what the expert evidence adduced in this case addresses. Compared to the treatment of inmates in general population, the evidence reveals that inmates held in prolonged administrative segregation are at risk of severe and often enduring negative health consequences,” she noted.

The court also concluded that Justice Marrocco’s reliance on s. 87(a) to determine the legislative scheme does not breach s. 12 was “misplaced.”

Under s. 87(a), Justice Benotto noted, the institutional head “need only ‘consider’ the inmate’s health in deciding whether to place an inmate in, or remove an inmate from, administrative segregation.”

“The word ‘consider’ is significant,” she wrote. “It implies that the inmate’s health is merely one consideration among others. It is not the paramount consideration. By structuring the institutional head’s discretion in this way, s. 87(a) authorizes prioritizing other considerations over the inmate’s health, so long as the inmate’s health forms part of the decision-making process. Thus, even when properly applied, s. 87(a) does not protect against the risk of an inmate suffering cruel and unusual treatment.”

Therefore, the court determined that the legislative safeguards are “inadequate to render the Act constitutional.”

The Attorney General of Canada submitted on appeal that administrative segregation is a “rational way to prevent potential death, injury, or jeopardy to security” and that the statutory safeguards ensure that any Charter infringement is “minimal.”

However, Justice Benotto determined the respondent had not met the onus to justify prolonged segregation noting the provisions in the Act authoring segregation “expose the inmates to the risk of severe and potentially permanent psychological harm.”

“Consequently, the infringement is not justified under s. 1,” she wrote.

In her analysis, Justice Benotto also wrote that, in principle, she agreed with the CCLA that those with mental illnesses should not be placed in administrative segregation at all.

“However,” she wrote, “the evidence does not provide the court with a meaningful way to identify those inmates whose particular mental illnesses are of such a kind as to render administrative segregation for any length of time cruel and unusual. I take some comfort in my view that a cap of 15 days would reduce the risk of harm to inmates who suffer from mental illness — at least until the court has the benefit of medical and institutional expert evidence to address meaningful guidelines. This issue therefore remains to be determined another day.”

The court dismissed the s. 11(h) and 7 arguments, allowing the appeal in part. The court’s declaration on capping administrative segregation will take effect on April 13, 15 days from the release of judgment.

The OHRC noted in a news release that “the latest Ontario data shows that in April and May 2018 alone, at least 778 placements exceeded 15 days in provincial correctional institutions.”

“Solitary confinement is cruel and inhuman treatment. It causes harm to prisoners whether they are held in a federal penitentiary or a provincial institution. Ontario’s constitutional obligations require it to implement a 15-day hard cap on solitary confinement,” said Renu Mandhane, the OHRC’s chief commissioner, in a statement.

Esther Mailhot, a communications adviser with CSC, said in an e-mail that the CSC is “considering the court’s decision.”

“We remain committed to ensuring that federal correctional institutions continue to provide a safe and secure environment for staff and inmates,” she added.

The Ministry of Attorney General of Ontario, an intervener in the case, declined to comment on the decision.

Correction: A typo has been corrected. The court concluded that the legislative safeguards are “inadequate to render the Act constitutional.”