Appeals to the Supreme Court of Canada on Administrative Segregation

Date: April 27, 2020

Classification: Unclassified

Branch/Agency: CSC

Issue:

The Government has decided not to pursue appeals to the Supreme Court of Canada in the BCCLA and CCLA court challenges regarding administrative segregation.

Proposed Response:

Background:

Administrative Segregation Constitutional Challenges

In 2015, the Government received two constitutional challenges (known as “BCCLA” and “CCLA”) to the federal legislative scheme for administrative segregation under the Corrections and Correctional Release Act (CCRA).  

In December 2017 and January 2018, the courts released the CCLA and BCCLA decisions, finding violations of the Charter and declaring the legislation invalid.

The Ontario Court of Appeal (ONCA) rendered its decision in CCLA on March 28, 2019. The Court found that administrative segregation longer than 15 consecutive days (prolonged administrative segregation) as provided for in ss. 31-37 of the CCRA violates s. 12 of the Charter and the breach cannot be justified under s. 1. The ONCA declared those sections to be of no force and effect to the extent of that infringement and suspended its declaration for 15 days. Pursuant to the ONCA’s order endorsed on June 6, 2019, the extension of the suspension of the declaration of constitutional invalidity (conditional upon CSC implementing an independent 5th day review of segregation placements) was set to expire on June 18, 2019.

On April 9, 2019, Canada filed an Application for Leave to Appeal the March 28, 2019 decision of the ONCA with the Supreme Court of Canada (SCC). On June 17, 2019, the SCC granted Canada an interim extension of the suspension of the declaration of constitutional invalidity of ss. 31-37 of the CCRA. The SCC also granted an interim stay of the ONCA’s condition that the extension be granted upon an independent fifth day review being implemented.

On June 24, 2019, the British Columbia Court of Appeal (BCCA) upheld the lower court’s declaration that the administrative segregation provisions of the CCRA violates s. 7 of the Charter as it authorizes prolonged, indefinite administrative segregation and does not require external review starting at the fifth working day. The BCCA made a declaration: 1) that CSC breached its statutory obligations to ensure that inmates in administrative segregation have a reasonable opportunity to retain and instruct counsel and 2) that inmates can be represented by counsel at segregation review hearings. It disagreed with the finding of the lower court that the impugned provisions violate s. 15 of the Charter in respect of Indigenous or mentally ill and/or disabled inmates. It declared CSC had breached statutory obligations to give meaningful consideration to the health care needs of mentally ill and/or disabled inmates before placing or confirming the placement of them in administrative segregation. On September 23, 2019, Canada appealed the BCCA’s decision to the SCC.

The SCC granted leave in CCLA and BCCLA on February 13, 2020 and ordered that the two appeals be heard together.

The AGC filed a notice of discontinuance of BCCLA and CCLA with the SCC on April 21, 2020.

Administrative Segregation Class Actions

In addition, there are three certified  class actions seeking damages in relation to the use of administrative segregation, Brazeau, Gallone, and Reddock.

Brazeau and Reddock are certified national class actions brought by inmates placed in administrative segregation. The Brazeau class is comprised of seriously mentally ill inmates, with significant impairment, placed in administrative segregation between July 20, 2009 and March 25, 2019. There are between 1,460 and 2,000 offenders in the Brazeau class action. Further detailed file review is required to determine the exact class size. The Reddock class is comprised of all other inmates placed in administrative segregation for a period of 15 days or more between March 3, 2011 and August 29, 2019. There were 8,963 offenders in the Reddock class action as of June 2019. Both classes exclude members of a third certified class action, known as Gallone, which similarly challenges the use of administrative segregation in federal institutions in Quebec. There are approximately 3,777 offenders in the Gallone class action. Gallone has not progressed as far as Brazeau and Reddock and no trial dates have been set.

Brazeau is a class action brought by inmates with serious mental illness who were placed in administrative segregation in federal correctional institutions.  Reddock is a class action brought by all other inmates who were in administrative segregation for 15 days or longer. 

In both Brazeau and Reddock, the motion judge granted summary judgment in favour of the class members, finding that damages were warranted because the class members’ rights under sections 7 and 12 of the Charter were breached.  In Reddock, negligence was also alleged.  The motion judge agreed with the Plaintiffs that CSC was negligent, but concluded that the damages awarded were for both the negligence claim and the Charter breaches. 

Canada appealed Brazeau and Reddock, and in boththe Ontario Court of Appeal found that the lower Court’s findings of breach of s. 7 and s. 12 Charter rights were supported by the evidence and case law (CCLA). The Court found Canada’s liability for Charter damages was not offset by good governance considerations given that there had been clear disregard of Charter rights in CSC failing to alter administrative segregation practices in the face of mounting criticism.  

In Brazeau, Canada’s appeal was allowed with respect to the aggregate damages award. The Court found that the lower Court’s order of $20 million in damages for “additional mental health or program resources for structural changes to penal institutions as the court on further motion may direct” amounted to an unjustifiable assumption of judicial control over a public institution. Given the seriousness of this error in law, the Court did not maintain the $20 million award, and remitted the issue of damages back to the lower Court to be determined anew.

In Reddock, Canada’s appeal was allowed with respect to liability for negligence. The Court agreed that the lower Court erred in its analysis of the duty of care in relation to systemic negligence.  However, the Court found the damages awarded for negligence to be sustainable as Charter damages. The $20 million dollar damages award against Canada made by the lower Court was maintained.

As Canada’s appeal was only successful in part, the Court has awarded Brazeau and Reddock costs in the amount of $75,017.31 inclusive of disbursements and taxes.

Canada will not seek leave to appeal this decision to the Supreme Court of Canada.

Contacts:

Prepared by: Jessica Martineau, Officer, Parliamentary Relation, 613-943-1726

Approved by: Kirstan Gagnon, Assistant Commissioner, Communications and Engagement, 613-995-6867

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