On January 17, 2018 the Supreme Court of British Columbia ruled in favour of the British Columbia Civil Liberties Association (“BCCLA”) and the John Howard Society of Canada (“JHSC”) in their constitutional challenge of legislation concerning administrative segregation practices in federal penitentiaries.1 The BCCLA and JHSC argued2 that ss. 31 to 33 and 37 of the Corrections and Conditional Release Act3 were contrary to ss. 7, 9, 10, 12 and 15 of the Canadian Charter of Rights and Freedoms.4 Justice Leask determined that the impugned provisions breached ss. 7 and 15 of the Charter and could not be saved by s. 1, thereby rendering them invalid.5 The declaration of invalidity was suspended for twelve months to allow for protection of the public and the rule of law.6 This decision, in addition to a recent Ontario ruling,7 has left the Government of Canada to re-assess and reconfigure its policies on administrative segregation in light of constitutional limits.8
The controversial nature of administrative segregation, as opposed to disciplinary segregation, is its indefinite nature. Subsection 44(1)(f) of the CCRA lists segregation as a possible sanction for the commission of a serious disciplinary offence, though for a maximum of thirty days.9 The statutory limits with respect to administrative segregation are less clearly stated. Subsection 31(2) of the CCRA states that inmates placed in administrative segregation are to be released at the “earliest appropriate time.”10 Although there are additional statutory safeguards against unjustified segregation, including specified grounds for confinement,11 review processes,12 and visitation requirements by health professionals and the head of the institution,13 the submissions made by the BCCLA and JHSC argued that these safeguards were insufficient and did not meet constitutional standards. Evidence adduced by the plaintiffs successfully demonstrated that these statutory measures were insufficient to prevent administrative segregation from being implemented in a manner which could cause severe harm to inmates and, furthermore, that the policies could not be justified by their objective “to maintain the security of the penitentiary or the safety of any person.”14
Section 7 of the Charter guarantees the “right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”15 Leask J. concluded all three s. 7 rights were infringed by the impugned provisions. First, the plaintiffs successfully demonstrated that, despite the various factors at play, administrative segregation increased the risk of suicide and self-harm, thereby engaging the right to life.16 Ashley Smith and Edward Snowshoe were discussed as examples of the risks the impugned provisions created for inmates.17 Ashley Smith took her own life in 2007 after more than a year of continuous segregation between several federal institutions. Smith’s death sparked an inquiry from the Office of the Correctional Investigator, whose report identified abuse of administrative segregation as one of the contributing factors to her death.18 Two years after the Smith inquiry, Edward Snowshoe, a 22 year-old Indigenous man, committed suicide in an Edmonton facility after 162 days in segregation.19 Second, Leask J. accepted the plaintiffs’ evidence of the risks and harms of prolonged segregation and concluded indefinite segregation constituted state interference with bodily and psychological security, and rejected the government’s evidence that existing safeguards were sufficient protective measures.20 Third, interference with liberty was conceded and was not a point of contention in the case.21 Leask J. concluded that as far as the impugned provisions allowed prolonged administrative segregation, the policies in question had the effect of exacerbating mental illness and undermining inmate security.22 These effects made the impugned provisions overbroad and grossly disproportionate to their purpose of institutional security, and therefore contrary to the principles of fundamental justice.
Regarding s. 15 of the Charter, which guarantees equal treatment before and under the law,23 Leask J. concluded the impugned provisions had a disproportionate effect on Indigenous inmates and inmates with mental illness. Indigenous people are not only disproportionately represented within Canadian prison populations, but they are also further over-represented among those placed in administrative segregation.24 Leask J. found this over-representation, in combination with the lack of consideration of Gladue25 factors in institutional decision making,26 denied Indigenous inmates rehabilitative programming and imposed burdens to “the effect of perpetuating their disadvantage and thus violating s. 15.”27 When considering mental illness, the Court also found that the CCRA “fails to respond to the actual capacities and needs of mentally ill inmates and instead imposes burdens in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage.”28 The CCRA provisions were held to be not rationally connected to the law’s purpose and were deemed invalid.
It will be interesting to see what implications the recent decisions in Ontario and British Columbia will have in Saskatchewan given recent reports of problematic uses of administrative segregation in the province.29 An interim government report obtained by the Leader-Post demonstrated the use of administrative segregation in provincial penitentiaries may also be problematic and referred to uses which did not appear to serve security objectives or follow legislated limits.30 These practices may indicate that provincial limitations are similarly insufficient to protect inmates against prolonged and indefinite segregation and the risks that it carries. Regina lawyer Tony Merchant has since filed class actions against the federal and provincial governments, alleging Charter breaches for repeated use of prolonged administrative segregation causing physical and psychological harm.31 Saskatchewan’s policies on administrative segregation are fairly similar to the CCRA, if not more vague, and could likely be found unconstitutional if the approach and evidence of the BCCLA v. Canada decision were adopted.
The Correctional Services Act, 201232 states, inmates can be placed in administrative segregation only if the staff member is “satisfied that there is no reasonable alternative.”33 Similar to the CCRA, Saskatchewan’s CSA does not have a specific time limits and instead has safeguards to prevent unjustified uses of administrative segregation, including review and appeal mechanisms.34 However, BCCLA v. Canada has demonstrated that these types of protections may be inadequate to protect constitutional rights or prevent abusive practices. Furthermore, as identified by Leask J., the problematic organizational culture of Correctional Service Canada (CSC) is not unique to the CSC.35 If the non-deferential approach to institutional decision making adopted in BCCLA v. Canada is adopted by Saskatchewan courts, current provincial policies and practices may also be found to fail to meet constitutional standards.
* BA Hons (University of Saskatchewan), JD Candidate (University of Saskatchewan). Any errors are mine.
1 British Columbia Civil Liberties Association v Canada (Attorney General), 2018 BCSC 62 [BCCLA v Canada]. Notice of appeal has been filed by the federal government (see Ian Burns, “Shock, Disappointment Over Federal Appeal of Solitary Confinement Decision” The Lawyers’ Daily (23 February 2018), online: <https://www.thelawyersdaily.ca/articles/5962/shock-disappointment-over-federal-appeal-of-b-c-solitary-confinement-decision>, archived: <https://perma.cc/3SVN-3X4R>).
2 Ibid at para 2.
3 SC 1992, c 20 [CCRA].
4 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
5 BCCLA v Canada, supra note 1 at para 609.
6 Ibid at para 610.
7 Corporation of the Canadian Civil Liberties Association v Her Majesty the Queen, 2017 ONSC 7491. In this case the Court held that ss. 31-37 of the CCRA were invalid as the provisions lacked adequate review mechanisms and did not protect against uses of administrative segregation in a manner contrary to the principles of fundamental justice (ibid at paras 167, 273). An application for appeal has also been made on this decision, though in this case by the challenger, the Canadian Civil Liberties Association. (Burns, supra note 1).
8 Jason Proctor, “Indefinite Solitary Confinement in Canadian Prisons Ruled Unconstitutional by BC Court”, CBC News (17 January 2018), online: <http://www.cbc.ca/news/canada/british-columbia/charter-solitary-confinement-bc-ruling-1.4491526>, archived: <https://perma.cc/5FEP-2FXA>.
9 Supra note 3.
11 Ibid, s 31(3).
12 Ibid, s 33.
13 Ibid, s 36.
14 Ibid, s 31(1).
15 Supra note 4.
16 BCCLA v Canada, supra note 1 at paras 263-74.
17 Ibid at para 270.
18 Ibid at para 41.
19 Ibid at para 44.
20 Ibid at paras 306-307.
21 Ibid at paras 261-262.
22 Ibid at paras 326-328.
23 Supra note 4.
24 BCCLA v Canada, supra note 1 at paras 464-66.
25 R v Gladue  1 SCR 688, 171 DLR (4th) 385. In this case, the Supreme Court of Canada clarified s 718.2(e) of the Criminal Code (RSC 1985, c C-46) and held that sentencing judges are required consider the “unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts” as well as the types of sentencing appropriate in light of “his or her particular aboriginal heritage or connection” (ibid at para 93).
26 BCCLA v Canada, supra note 1 at paras 477-79.
27 Ibid at para 489.
28 Ibid at para 522.
29 Arthur White-Crummey, “Sask Jails Not Meeting Requirements on Solitary Confinement, Says Internal Review” Regina Leader-Post (8 January 2018), online: <http://leaderpost.com/news/saskatchewan/sask-jails-not-meeting-legal-requirements-on-solitary-confinement-says-internal-review>, archived: <https://perma.cc/K9N5-V5FR>.
30 Ibid. The report indicated administrative segregation had in some cases been implemented for disciplinary purposes rather than security purposes and not always as a last resort, as required by provincial legislation.
31 Alicia Bridges, “Province, Feds Breaching Inmates’ Charter Rights with ‘Administrative Segregation’: Class-Action Lawsuits” CBC News (2 February 2018), online: <http://www.cbc.ca/news/canada/saskatchewan/inmates-saskatchewan-class-action-administrative-segregation-1.4517909>, archived: <https://perma.cc/W7CJ-GTBC>.
32 SS 2012, c C-39.2 [CSA].
33 Ibid, s 58(b).
34 Ibid, ss 60-61. Interestingly, the CSA’s section on administrative segregation has fewer safeguards in place than the CCRA and does not include requirements for daily health visitations as does the CCRA (supra note 3, s 36(1)).
35 BCCLA v Canada, supra note 1 at para 387.