Simon Says

On March 28, 2019, the Ontario Court of Appeal released Canadian Civil Liberties Association v Canada, 2019 ONCA 243. The court considered whether administrative segregation, which is used to maintain the safety and security of institutions or conduct investigations, amounts to cruel and unusual punishment.

Justice Benotto, writing for the court, held that sections 31-37 of the Corrections and Conditional Release Act, SC 1992, c 20 violate section 12 of the Charter, insofar as they permit prolonged administrative segregation beyond 15 days.

The court agreed with the CCLA that inmates with mental illness should not be placed in administrative segregation. Moreover, the court held that no inmates should be subject to administrative detention beyond 15 days.

Justice Benotto recognized that prolonged segregation (beyond 15 days) causes foreseeable and potentially permanent harm. While the monitoring system that the Correctional Service of Canada has is effective at detecting harm, it is ineffective at preventing harm.

Section 87(a) requires the institutional head to engage in a balancing exercise in which the harm to the offender is balanced against the security needs of employees and other inmates. This does not protect against cruel and unusual treatment as the inmate’s health is only one of many factors to be considered.

There are other safeguards in the legislation, in particular the act requires the institutional head to release inmates from segregation at the “earliest appropriate time”, to only use administrative segregation where there is “no reasonable alternative”, and not use “cruel, inhumane or degrading treatment or punishment”. However, Benotto JA outlined that these sections do not preclude the possibility of a prolonged administrative segregation and, therefore, the safeguards are inadequate to render the act constitutional.

The provisions were found to violate section 12, and the infringements on inmates’ rights could not be justified under section 1.

Accordingly, the court declared that sections 31-37 of the act are unconstitutional and of no force and effect to the extent they authorize prolonged administrative segregation.

For the full decision, see: https://www.canlii.org/en/on/onca/doc/2019/2019onca243/2019onca243.html?resultIndex=1.

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