Court of Appeal for Ontario

Date: 2018-12-17

Docket: M49819 (C64841)

Panel: Strathy C.J.O., Benotto and Roberts JJ.A.

Between

Corporation of the Canadian Civil Liberties Association

Appellant

and

Her Majesty the Queen as represented by the Attorney General of Canada

Respondent

Counsel

For the Appellant: Jonathan Lisus, H. Michael Rosenberg, Larissa Moscu and Charlotte-Anne Malischewski

For the Respondent: Kathryn Hucal, John Provart and Bradley Bechard

For the Intervener Attorney General of Ontario: Michael S. Dunn and Andrea Bolieiro

For the Intervener Ontario Human Rights Commission: Matthew Horner and Nika Farahani

Heard: November 21, 2018

Reasons for Decision

[1] On November 21, 2018, this court reserved judgment on the appellant's appeal from the Order of Marrocco A.C.J.S.C. (the "application judge"), dated February 6, 2017 (the "Order"). The Order declared that ss. 31 - 37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("CCRA") contravene s. 7 of the Canadian Charter of Rights and Freedoms and are of no force and effect.

[2] The application judge found that the "fifth working day review" for administrative segregation was inconsistent with the principles of fundamental justice and breached s. 7 of the Charter, because s. 33(1) of the CCRA did not provide for meaningful independent review of administrative segregation decisions: Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, 2017 ONSC 7491, 358 C.C.C. (3d) 1.

[3] The Order provided for the suspension of the declaration of invalidity for 12 months from December 18, 2017. The application judge was satisfied that a suspension of the declaration of constitutional invalidity was necessary to enable Parliament to enact an appropriate legislative response. To give immediate effect to the declaration, or even to suspend its operation for 6 months as the appellant suggested, would create "unacceptable risks for Correctional Service of Canada personnel and inmates": at para. 275.

[4] There was another challenge to the constitutionality of the CCRA in British Columbia. On January 17, 2018, the Supreme Court of British Columbia granted a declaration that ss. 31 and 33 - 37 of the CCRA infringed ss. 7 and 15 of the Charter: see British Columbia Civil Liberties Association v. Canada (Attorney General), 2018 BCSC 62, 402 C.R.R. (2d) 53. It ordered that the declaration of invalidity be suspended for a period of 12 months. The order was appealed to the Court of Appeal for British Columbia and the appeal was heard on November 13-14, 2018. The decision is under reserve. We were informed that counsel for the Attorney General of Canada applied for an extension of the declaration of invalidity in those proceedings and that the decision on that issue is also under reserve.

[5] At the hearing of the appeal in this matter the respondent, the Attorney General of Canada, brought a motion, pursuant to s. 134 of the Courts of Justice Act, R.S.O 1990, c. C.43, to extend the suspension of the declaration of constitutional invalidity.

[6] The purpose of the proposed extension is to enable Parliament to consider Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, which was introduced in the House of Commons on October 16, 2018. Bill C-83 has received first and second reading in the House of Commons and is currently before the Standing Committee on Public Safety and National Security.

[7] According to the respondent, Bill C-83 would eliminate administrative segregation and replace it with "structured intervention units", which "emphasize opportunities for meaningful human contact, participation in programs and access to services …". The respondent suggests that the characteristics of a fair and independent review of placement decisions under Bill C-83 may be different from those under the current legislation.

[8] The respondent suggests that in this context, with the legislation evolving in Parliament, and in the absence of any regulations and policy developments, the court should be cautious and should not prejudge the constitutionality of Bill C-83. Indeed, in its written submissions dated November 28, 2018, the respondent referred to remarks in Parliament from the previous day, in which the Minister of Public Safety and Emergency Preparedness stated that he was "amenable" to "some form of independent review mechanism" in Bill C-83.

[9] At the conclusion of the hearing of the motion, we advised counsel for the respondent that we were concerned by the absence of any explanation for Canada's delay in addressing the constitutional infirmity identified in the judgment of the Superior Court of Justice; the absence of information concerning any interim measures that have been or might be taken to address or mitigate the breach of Charter rights pending the implementation of new legislation; and the absence of any explanation of how the proposed legislation would address the constitutional infirmity identified by the application judge. We requested and have now received additional written submissions from both parties. The submissions on behalf of the respondent included an affidavit, filed in the proceedings in the Court of Appeal for British Columbia, setting out certain commitments by Canada to improve the conditions of administrative segregation prior to July 31, 2019.

[10] The material filed by the respondent does not address the concerns raised by this court. It does not explain Canada's delay in responding to the Order. It does not propose interim measures to address the breach of Charter rights identified by the application judge. It does not adequately explain how Bill C-83 would address the constitutional infirmity in the CCRA identified by the application judge.

[11] Instead, the respondent asserts that the precise nature of the review process in Bill C-83 is a work in progress. The legislation may be modified and the regulatory scheme is yet to be established.

[12] While Canada's failure to address the concerns identified by the court is disappointing, we are satisfied that an extension of the declaration is necessary to enable the legislative process to be completed. Giving immediate effect to the declaration of invalidity, without any measures in place to protect those currently held in administrative segregation and Correctional Service of Canada personnel, would pose an unacceptable danger to such individuals and, ultimately, to the public.

[13] This court orders that, subject to further order of the court, the declaration of invalidity set out in paragraph 2 of the Order is extended to and including April 30, 2019.

"G.R. Strathy C.J.O."

"M.L. Benotto J.A."

"L.B. Roberts J.A."