BCCA confirms administrative segregation provisions are unconstitutional
- Kate Mitchell
- No comments
On June 26, 2019, the British Columbia Court of Appeal confirmed that the administrative segregation provisions of the Corrections and Conditional Release Act, S.C. 1992, c. 20, ss 31-37 are unconstitutional.
The Court of Appeal upheld the trial judge’s finding that the provisions violate section 7 of the Charter and should be struck down.
The Court of Appeal agreed that the provisions violate section 7 because they allows for indefinite and prolonged administrative segregation in solitary confinement conditions and authorize internal (rather than external review) of segregation decisions. However, the Court of Appeal disagreed with the trial judge that it was necessary to strike down the legislation because it did not provide an express right for inmates to be represented by a lawyer at segregation review hearings.
Furthermore, the Court of Appeal found that the trial judge erred in finding the provisions violate section 15. To the extent that Indigenous, mentally ill, and/or disabled inmates are discriminated against, this is the result of maladministration rather than the act itself.
The Court of Appeal also granted declarations recognizing that CSC has
- Breached its obligation to give meaningful review of the health needs of mentally ill and/or disabled inmates before placing them (or confirming their placement in) segregation
- Breached its obligation to ensure that inmates placed in segregation are given a reasonable chance to retain and instruct a lawyer without delay and in private. A further declaration was granted recognizing that inmates have the right to be represented by a lawyer at segregation review hearings.
The British Columbia Court of Appeal reached the same conclusion the Ontario Court of Appeal did with respect to the (un)constitutionality of the administrative segregation provisions. Notably, the British Columbia Court of Appeal did not endorse the 15 day maximum imposed by the Ontario Court of Appeal, leaving the issue for another day:
[148] I agree with the Attorney General’s position that the order goes no further than declaring the practice of prolonged, indefinite confinement in administrative segregation to be unconstitutional. I do not read the order, standing alone or in the context of the reasons as a whole, as mandating, in all circumstances, adherence to a hard cap of 15 days in order to bring the provisions within constitutional bounds. I appreciate that the Ontario Court of Appeal in Canadian Civil Liberties Assn. (ONCA) concluded in the context of s. 12 that prolonged confinement of an inmate in administrative segregation constituted cruel and unusual treatment. In that case, “prolonged” confinement was expressly defined in the reasons as segregation for more than 15 consecutive days.
…
[151] I take no issue with the judge’s conclusion that a 15‑day limit on resort to administrative segregation in conditions that constitute solitary confinement is a defensible standard. In my view, we need not decide on this appeal whether strict adherence to a 15‑day limit is the only constitutionally defensible standard. For example, whether a soft cap of 15 days with legislative authority to modestly extend the confinement in narrowly defined circumstances might pass constitutional muster is not before us. That issue should only be determined in the context of a reformulated legislative regime in which the issue squarely arises.
See British Columbia Civil Liberties Association v Canada (Attorney General), 2019 BCCA 233.