COURT FILE NO.: CV-15-53262500-CP

DATE: 2019/03/25

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHRISTOPHER BRAZEAU and DAVID KIFT

Plaintiffs

• and -

THE ATTORNEY GENERAL OF CANADA

Defendant

James Sayce and Janetta Zurakowski for the Plaintiffs

Greg Tzemenakis, Stephen Kurelek, Sean Stynes, and Diya Bouchedid for the Defendant

Proceeding under the Class Proceedings Act, 1992

HEARD: February 13, 14, 15, 20, and 21, 2019

PERELL, J.

REASONS FOR DECISION

A. Introduction and Overview

[1] Through the Correctional Service of Canada, sometimes referred to as “CSC”, the Federal Government operates penitentiaries and related penal institutions across Canada. Pursuant to the Class Proceedings Act, 1992,[^1] the Plaintiffs Christopher Brazeau and David Kift sue the Federal Government of Canada about the operation of those penitentiaries.

[2] On behalf of a class of inmates who are seriously mentally ill, Messrs. Brazeau and Kift allege that by placing mentally ill inmates in “administrative segregation,” the Federal Government has breached the Class Members’ rights under the Canadian Charter of Rights and Freedoms.[^2]

[3] By administrative segregation, the inmate is removed from his or her cell at the penitentiary within the ranges of cells for the general inmate population and isolated in a segregated area in a solitary cell with very limited access to others. Messrs. Brazeau and Kift say that administrative segregation is a euphemism for what is, in truth, solitary confinement, which is a type of confinement defined by jurists and by criminologists and penologists, i.e., by social scientists that study the punishment of crime and prison management, to be twenty-two hours or more a day of confinement without meaningful human contact.

[4] In their class action, on behalf of the seriously mentally ill inmates, Messrs. Brazeau and Kift seek Charter damages and also punitive damages. They seek these damages in the aggregate to be awarded to the Class. After an aggregate base award to the Class Members, Messrs. Brazeau and Kift propose that there would be individual damage assessments of compensatory damages for each Class Member whose Charter rights have been violated and who have suffered pecuniary and non-pecuniary personal injuries.

[5] By the design of Class Counsel, the Class Members are defined as inmates who have very serious mental illnesses. Appendix A of the Class Definition, set out below, uses the Global Assessment of Functioning scale (GAF), which is a numeric scale (1 to 100) used by mental health professionals to rate the social, occupational, and psychological functioning of adults. The lower the score, the worse the functioning. As defined, the Class Members have serious mental diseases, serious impediments, and low GAF scores; they are the sickest of the inmates suffering from mental illness.

[6] In 2016, on consent, the action was certified as a class proceeding.[^3]

[7] During the course of the hearing of the summary judgment motion, because they discontinued certain claims that did not involve administrative segregation but were concerned about the CSC’s alleged failures in providing health care to the Class Members, Messrs. Brazeau and Kift were granted leave to amend the Class Definition. After the hearing, there was a further amendment on consent to carve out from the Class Definition certain inmates in Québec penal institutions because they are Class Members in a parallel class action.[^4] As a result, Messrs. Brazeau and Kift are the Representative Plaintiffs for the following class:

All offenders in federal custody, who were placed in administrative segregation in a federal institution situated outside Québec after February 24, 2013, or who placed in administrative segregation in a federal institution anywhere in Canada before February 24, 2013 were diagnosed by a medical doctor with an Axis I Disorder (excluding substance use disorders) or Borderline Personality Disorder, who suffered from their disorder, in a manner described in Appendix A, and reported such during their incarceration, where the diagnosis by a medical doctor occurred either before or during incarceration in a federal institution and the offenders were incarcerated between November 1, 1992 and the present, and were alive as of July 20, 2013.

[8] Appendix "A" of the class definition lists the ways in which inmates diagnosed with an Axis I Disorder (excluding substance use disorders) or Borderline Personality Disorder (“BPD”), suffered from their disorder and can be identified as Class Members. Appendix A states:

(a) significant impairment in judgment (including inability to make decisions; confusion; disorientation); (b) significant impairment in thinking (including constant preoccupation with thoughts, paranoia; (c) delusions that make the offender a danger to self or others); (d) significant impairment in mood (including constant depressed mood plus helplessness and hopelessness; (e) agitation; (f) manic mood that interferes with ability to effectively interact with other offenders, staffs or follow correctional plan); (g) significant impairment in communications that interferes with ability to effectively interact with other offenders, staff or follow correctional plan; (h) significant impairment due to anxiety (panic attacks; overwhelming anxiety) that interferes with ability to effectively interact with other offenders, staff or follow correctional plan; (i) other symptoms: hallucinations; delusions; (j) severe obsessional rituals that interferes with ability to effectively interact with other offenders, staff or follow correctional plan; (k) chronic and severe suicidal ideation resulting in increased risk for suicide attempts; (l) chronic and severe self-injury; or, (m) a GAF [Global Assessment of Functioning scale] score of 50 or less.

[9] The class action was commenced on July 20, 2015, and the start date of the Class Period is November 1, 1992, which is the date the Corrections and Conditional Release Act (“CCRA”)[^5] came into force. The CCRA prescribes the current regime of administrative segregation. There is no prescribed end date for the Class Period, and it remains a running Class Period. The July 20, 2013 date by which a Class Member must have been alive is predicated upon the applicable provisions in the Trustee Act[^6] to maintain actions for torts by executors and administrators. The Federal Government, however, submits that there are federal or provincial limitation periods from two to six years that apply and that would foreclose many claims and shorten the Class Period.

[10] On consent, the following common issues were certified:

1. By its operation and management of the Federal Institutions from November 1, 1992 to the present, did the Defendant breach the Class Members' rights under section 7 of the Charter?

2. If so, were its actions saved by section 1 of the Charter?

3. By its operation and management of the Federal Institutions from November 1, 1992 to the present, did the Defendant breach the Class Members' rights under section 9 of the Charter?

4. If so, were its actions saved by section 1 of the Charter?

5. By its operation and management of the Federal correctional facilities from November 1, 1992 to the present, did the Defendant breach the Class Members' rights under section 12 of the Charter?

6. If so, were its actions saved by section 1 of the Charter?

7. If the answer to any of common issues (1), (3), or (5) is "yes", and the answer to any of (2), (4) and (6) is no, are damages available to the Class under section 24 of the Charter?

8. If the answer to common issue (7) is "yes", can the Court make an aggregate assessment of the damages suffered by all Class Members as a part of the common issues trial [summary judgment motion]?

[11] Messrs. Brazeau and Kift bring a summary judgment motion for answers to all of the common issues. With the discontinuance of the claims involving health care but not involving administrative segregation, the summary judgment motion is dispositive of the action save for the individual issues trials. If Messrs. Brazeau and Kift succeed on their summary judgment motion, then the class proceeding would proceed with individual damages assessments for the Class Members for compensation for their personal injuries.

[12] Messrs. Brazeau and Kift submit that there are no genuine issues requiring a trial because the evidence establishes that every Class Member, all of whom suffer from a diagnosed severe mental illness, are too sick for any time in solitary confinement. They submit that it follows that there no genuine issues for trial that the Class Members’ rights have been contravened: (a) under section 7 of the Charter to not be deprived of the right to life, liberty and security of the person except in accordance with the principles of fundamental justice, (b) under section 9 of the Charter not to be arbitrarily detained or imprisoned; and (c) under section 12 of the Charter not to be subjected to any cruel and unusual treatment or punishment.

[13] Further, Messrs. Brazeau and Kift submit that there are no genuine issues requiring a trial that all the Class Members are entitled to both Charter damages and also punitive damages, which, damages they submit, the evidence establishes are capable of being calculated and of being awarded in the aggregate pursuant to s. 24 of the Class Proceedings Act, 1992.

[14] The Federal Government submits that the case is not appropriate for a summary judgment.

[15] In the alternative, the Federal Government submits that administrative segregation is not the equivalent of solitary confinement. It submits that while in individual cases, administrative segregation may have been used in a way that contravenes an individual Class Member’s Charter rights, administrative segregation for Class Members was (there is pending legislation that will stop the practice for some seriously mentally ill inmates) never a class-wide Charter breach. The Federal Government submits that administrative segregation is a legislatively authorized and appropriate and necessary last resort for managing a difficult and dangerous prison population and in accordance with the principles of fundamental justice. The Federal Government submits that individual cases of maladministration where the Correctional Service violates an inmate’s Charter rights does not prove that there has been a class-wide or systemic Charter breach. Further, the Federal Government denies that the Class Members have any entitlement to Charter damages or that damages can be awarded in the aggregate.

[16] For the reasons that follow, I grant the summary judgment motion - in part - and I dismiss it - in part.

[17] The answers to the common issues are as follows:

a. By its operation and management of the Federal Institutions from November 1, 1992 to the present, the Federal Government breached the Class Members’ rights under section 7 of the Charter by the absence of an adequate review process for placements in administrative segregation. In other words, there is a class-wide breach of section 7 (misdescribed by Messrs. Brazeau and Kift as a breach of s. 9) of the Charter because the review process for administrative segregation contravened the Charter.

Without prejudice to any individual Class Member’s claim at an individual issues trial to assert that his or her treatment was contrary to section 7 of the Charter in his or her particular circumstances, by its operation and management of the Federal Institutions from November 1, 1992 to the present, the Federal Government breached the rights under section 7 of the Charter of those Class Members: (a) who were involuntarily placed in administrative segregation for more than thirty days; and (b) who were voluntarily placed in administrative segregation for more than sixty days.

i. In other words, while individual Class Members may have suffered a violation of section 7 of the Charter by his or her placement in administrative segregation for less than thirty days, there was only a common or systemic breach suffered by two subclasses comprised of Class Members: (a) who were involuntarily placed in administrative segregation for more than thirty days; or, (b) who were voluntarily placed in administrative segregation for more than sixty days.

ii. As the discussion below will explain, involuntary placements include both placements made at the request of the inmate (genuine voluntary placements) and also placements in which the inmate contrives or engineers an involuntary placement into administrative segregation.

b. For the subclasses (which may also be represented by Messrs. Brazeau and Kift as representative plaintiffs), the breach of section 7 of the Charter is not saved by section 1 of the Charter.

c. By its operation and management of the Federal Institutions from November 1, 1992 to the present, the Federal Government did not breach the Class Members’ rights under section 9 of the Charter.

d. There being no breach, the question of whether the breach of section 9 of the Charter is saved by section 1 of the Charter need not be answered.

e. Without prejudice to any individual Class Member’s claim at an individual issues trial to assert that his or her treatment was cruel and unusual, by its operation and management of the Federal Institutions from November 1, 1992 to the present, the Federal Government breached the rights under section 12 of the Charter of those Class Members (a) who were involuntarily placed in administrative segregation for more than thirty days; and (b) who were voluntarily placed in administrative segregation for more than sixty days.

i. In other words, while individual Class Members may have suffered a cruel and unusual treatment by his or her placement in administrative segregation for less than thirty days, there was only a common or systemic breach suffered by the two subclasses comprised of Class Members: (a) who were involuntarily placed in administrative segregation for more than thirty days; or, (b) who were voluntarily placed in administrative segregation for more than sixty days.

f. For the subclasses, the breach of section 12 of the Charter breach is not saved by section 1 of the Charter.

g. Notwithstanding the principles from Mackin v. New Brunswick (Minister of Finance),[^7] vindication and deterrence damages are available to the whole class under section 24 (1) of the Charter for the breach of section 7 of the Charter regarding the inadequate review procedure (misdescribed by Messrs. Brazeau and Kift as a breach of s. 9). In any event, vindication and deterrence damages are available to the subclasses that suffered a breach of sections 7 and 12 of the Charter.

h. The court can make an aggregate assessment of the Charter damages suffered by the whole class for the breach of section 7 of the Charter and of the Charter damages of the subclasses that suffered a breach of sections 7 and 12 of the Charter. The court assesses those damages as $20 million, which is to be distributed, less Class Counsel’s approved legal fees and disbursements, in the form of additional mental health or program resources for structural changes to penal institutions as the court on further motion may direct.

i. The Federal Government is not liable for punitive damages on a class-wide basis but may be liable for punitive damages after the Charter damages are determined at the individual issues trials.

ii. How the $20 million, less Class Counsel’s approved fees and disbursements, shall be distributed for the benefit of the class and the subclasses shall be determined by a distribution motion brought by Class Counsel.

[18] In addition to answering the common issues, as set out above, I conclude that subject to individual Class Members rebutting the statute-bar, there is a six-year limitation period that applies to all claims, and, thus, the start date for the Class Period is July 20, 2009 for all but the Estate claimants, for which the start date is July 20, 2013. This means that without prejudice to the claims of Class Members that have an individual rebuttal to the tolling of the limitation period, Class Members’ claims as a class from a placement in administrative segregation before July 20, 2009 are statute-barred.

[19] Having regard to these answers, as I shall explain later in these Reasons for Decision, I recommend that the Representative Plaintiffs consider bringing a motion to amend the class definition. I shall recommend that the words: “All offenders in federal custody who were diagnosed by a medical doctor with an Axis I Disorder …” in the class definition be replaced with the words: “All offenders in federal custody who had an Axis I Disorder …”. And I recommend that the words: “where the diagnosis by a medical doctor occurred” be replaced with the words: “where the diagnosis occurred or could have occurred.”

[20] As I shall explain, in my opinion, the current Class Definition is under-inclusive. If the Class Member can prove that he or she had an undiagnosed Axis I Disorder or that a medical doctor ought to have diagnosed them as suffering from an Axis I Disorder, he or she should be included in the class unless they opt out of the class action. (While it is highly unlikely that a new Class Member would opt-out, since the class definition is being amended, the new Class Members have a right to opt out.)

[21] There are Class Members that have claims that require individual issues trials for completion. The findings of fact made on this summary judgment motion carry forward as issue estoppels into any individual issues trials. While I shall make some observations in these Reasons for Decision, the procedural nature of those individual issues trials remains to be determined under s. 25 of the Class Proceedings Act, 1992. Depending on the quantum of each individual inmate’s claim, the principles of proportionality in procedure may require dispute resolution procedures ranging from a simple claims-qualification procedure to conventional trials pursuant to the Rules of Civil Procedure. I direct a motion to settle the procedures for the individual issues trials.

[22] It further follows from the above answers that a distribution scheme is required for the $20 million, less Class Counsel’s approved fees and disbursements, awarded as vindication and deterrence Charter damages for the class and for the subclasses of Class Members. While I shall make some observations in these Reasons for Decision about the distribution plan, the nature of the distribution plan remains to be determined under s. 26 of the Class Proceedings Act, 1992. I direct a motion to settle the distribution plan.

B. Methodology of the Reasons for Decision

[23] To understand these Reasons for Decision, it shall prove helpful at the outset to explain the structure and the methodology of the Reasons for Decision, which must address complex substantive and procedural legal problems, some of them novel and exploratory of unexplored legal territory for class actions.

[24] These Reasons for Decision are structured under the following twenty-six major headings.

• A. Introduction and Overview

• B. Methodology of the Reasons for Decision

• C. The Correctional Service of Canada, Prison Demographics and Culture, the Placement of Inmates, Mental Health Care, and Administrative Segregation

• D. A Survey History and Historiography of Solitary Confinement and Administrative Segregation

• E. Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen

• F. British Columbia Civil Liberties Association v. Canada (Attorney General)

• G. Res Judicata, Issue Estoppel, and Abuse of Process.

• H. Evidentiary Record

• I. The Correctional Investigator of Canada

• J. The Correctional Investigator’s Reports

• K. The Battle of the Experts

• L. Messrs. Brazeau and Kifts’ Expert Evidence

• M. The Federal Government’s Expert and Correctional Service Evidence

• N. The Nature of Administrative Segregation and its Relationship to Solitary Confinement

• O. Discussion and Analysis: Methodology

• P. Jurisdiction to Grant Summary Judgment

• Q. Did the Federal Government Breach section 7 of the Charter?

• R. Did the Federal Government Breach section 9 of the Charter?

• S. Did the Federal Government Breach section 12 of the Charter?

• T. Limitation Periods

• U. Charter Damages and Aggregate Damages

• V. Punitive Damages

• W. The Distribution Plan

• X. Amending the Class Definition

• Y. The Individual Issues Trials

• Z. Summary and Conclusion

[25] Parts A and B are introductory and provide an overview of the outcome.

[26] Part C (The Correctional Service of Canada, Prison Demographics and Culture, the Placement of Inmates, Mental Health Care, and Administrative Segregation) identifies the parties, sets out the legal and factual framework that governs administrative segregation, provides the general factual background of the circumstances of the Class Members and identifies some of the legal and factual disputes between the parties.

[27] Part D provides a survey history and historiography of solitary confinement and administrative segregation.

[28] Parts E to J provide the evidentiary background to the summary judgment motion and resolve a number of issues about the admissibility of evidence. Although Parts E to J contain some findings of fact, Parts C and D, and Parts K to N are the main factual background to the summary judgment motion and include the major findings of fact.

[29] Parts O to V are the legal analysis and the discussion and explanation of the answers to the common issues along with a discussion of the additional matter of limitation periods.

[30] Parts X to Y discuss important consequential procedural matters associated with Messrs. Brazeau and Kifts’ action being a class action.

[31] Part Z is a summary and a conclusion.

C. The Correctional Service of Canada, Prison Demographics and Culture, the Placement of Inmates, Mental Health Care, and Administrative Segregation

[32] Canada is a confederation of the federal and provincial governments, and under the Constitution Act, 1867,[^8] (formerly the British North America Act) legislative authority is distributed between the governments. Pursuant to s. 92, paragraph 6, provincial governments have the legislative authority with respect to “The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province.” Pursuant to s. 91 paragraph 28, the Federal Government has legislative authority for “The Establishment, Maintenance, and Management of Penitentiaries.”

[33] Federal Government penitentiaries are currently regulated by the Corrections and Conditional Release Act (“CCRA”) and SOR/92-620 (Corrections and Conditional Release Regulations).[^9]

[34] Under the CCRA, a Commissioner of Corrections is appointed by the Governor in Council (CCRA s.6). Under the direction of the Minister of Public Safety and Emergency Preparedness, the Commissioner has the control and management of the Correctional Service of Canada (“CSC”), which operates federal penitentiaries and associated facilities across the country.

[35] The Commissioner by order declares any prison defined in the Prisons and Reformatories Act[^10] or any hospital to be a penitentiary. The Governor in Council may declare any place to be a penitentiary. (CCRA s. 7). The person who is normally in charge of a penitentiary is its “institutional head,” and he or she is typically known and described as the warden of the penitentiary. Where a person convicted of a crime receives a sentence of two or more years in duration, the sentence is served in a federal penitentiary.

[36] The Commissioner may make rules for the management and administration of the Correctional Service (CCRA s. 97). The Commissioner may designate any or all rules as Commissioner’s Directives (CCRA s. 98). The Commissioner’s Directives and Standing Operating Practices establish the operational policies of the Correctional Service. In the immediate case, the most important of these is Commissioner's Directive 709 Administrative Segregation (“CD 709”), which is the current policy guideline governing the use of administrative segregation.

[37] The Commissioner may designate any staff member of the Correctional Service to be a peace officer (CCRA s. 10). The Commissioner may appoint a person or persons to investigate and report on any matter relating to the operations of the Correctional Service (CCRA s. 20).

[38] Not including contract services, the Correctional Service has approximately 18,000 employees. There are approximately 1,725 heath care staff, including 1,329 health care professionals. Mental health services are provided by Interdisciplinary Mental Health Teams, the composition of which varies among sites but may include behavioural science technicians, behavioural counsellors, mental health clinicians, nurses, occupational therapists, physicians, psychologists, psychiatrists, and social workers.

[39] The purpose of the Correctional Service is to contribute to the maintenance of a just, peaceful and safe society by: (a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and (b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community (CCRA s. 3). The Correctional Service is responsible, among other things, for the care and custody of inmates and for providing them with programs that contribute to their rehabilitation and their successful reintegration into the community (CCRA s. 5).

[40] The paramount consideration for the Correctional Service is the protection of society (CCRA s. 3.1).

[41] The principles that guide the Correctional Service are set out in s. 4 of the Corrections and Conditional Release Act. Those principles include using measures that are consistent with the protection of society, staff members, and offenders and that are limited to only what is necessary and proportionate to attain the purposes of the Act. The principles include recognizing that inmates retain the rights of all members of society except those that are, as a consequence of their sentence, lawfully and necessarily removed or restricted.

[42] Over five regions, CSC operates ninety-one parole and sub-parole offices, forty-three penal institutions, including fifteen community correctional centres, and five Regional Treatment Centres (“RTC”). The RTCs are a hybrid of a penitentiary and a psychiatric treatment centre under provincial legislation. The RTCs purpose is to deal with the most significant impairments and mental health disorders. They provide interdisciplinary treatment to offenders with mental and physical health care needs.

[43] There are different types of penitentiaries. There are maximum-security, medium-security, and minimum-security penitentiaries. There are multi-level security penitentiaries, which are some combination of maximum, medium, and minimum-security institutions. There are penitentiary clusters, a form of multi-level institution where separate penitentiaries are located on the same site.

[44] Of the forty-three penal institutions, there are six maximum-security, nine medium-security, five minimum-security, twelve multi-level security and eleven clustered institutions. Included within the forty-three penal institutions are six institutions for women and thirty-seven institutions for men. Included within the forty-three penal institutions are three Aboriginal healing lodges that accommodate Aboriginal men with minimum-security classifications and one healing lodge for Aboriginal women with minimum and medium-security classifications.

[45] There are approximately 14,000 inmates (also referred to as offenders or prisoners) in federal penitentiaries, the overwhelming majority of which are men. Over 70% were sentenced for violent crimes (20% murder; 50% manslaughter, robbery, assault, sexual assault). Many inmates have mental problems.

[46] There is a dispute between the parties about the number of inmates who qualify for class membership as being diagnosed with an Axis I Disorder or Borderline Personality Disorder (“BPD”). With the dispute between the parties, the estimates are that class size varies between 7% to 18.3% of the inmate population over the Class Period.

[47] Intolerance, bigotry, prejudice, hatred, and hostility are common in penitentiaries and inmates organize themselves into groups, whose members are compatible and protective of one another but antagonistic to other inmates. Some of these groups are “Security Threat Groups” (STGs), including: Aboriginal gangs, hate groups, outlaw motorcycle gangs, organized crime groups, prison gangs, street gangs, subversive groups, terrorist organizations, and white supremacy groups. Certain inmates in the prison population, such as pedophiles, perpetrators of heinous crimes, informants, Crown witness, and former police officers are ostracized and are targets for retaliation, revenge, and mob justice by other inmates.

[48] Violence and criminal activities persist inside penitentiaries. Security Threat Groups use psychological intimidation and violence to ensure control and influence. The violence is often associated with an underground economy developed by inmates for the sale of contraband materials such as tobacco, drugs, and alcohol that are smuggled into the penitentiary or that are available and horded inside the penitentiary, for example, inmates may stash their medicines and sell them to other inmates.

[49] Inmates reside in cells and may be double and even triple bunked. The Correctional Service decides where to place each inmate. Typically, the cells of the general population of inmates in a penitentiary are in ranges of cells. Section 70 of the Corrections and Conditional Release Act directs that the Correctional Service take all reasonable steps to ensure that penitentiaries, the penitentiary environment, the living and working conditions of inmates and the working conditions of staff members are safe, healthful and free of practices that undermine a person’s sense of personal dignity. In which institution and where in an institution to house an inmate is a serious and difficult problem for the CSC. One of the major problems for the Correctional Service is how to safely accommodate the incompatible groups of inmates who pose dangers one to another and to the staff of the penitentiary.

[50] Each inmate is classified in accordance to his or her dangerousness and risk of escape. Approximately 20% of inmates are classified as minimum security. Approximately 60% of inmates are medium security. Approximately 15% of inmates are maximum security. The classification of the security risk is used to place the inmate in minimum-security, medium-security, or maximum-security penitentiaries.

[51] Section 69 of the CCRA provides that no person shall administer, instigate, consent to or acquiesce in any cruel, inhumane or degrading treatment or punishment of an offender. Section 73 prescribes that inmates are entitled to reasonable opportunities to assemble peacefully and associate with other inmates within the penitentiary, subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons. Section 75 prescribes that an inmate is entitled to reasonable opportunities to freely and openly participate in, and express, religion or spirituality, subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons.

[52] Sections 85 to 89 of the the Corrections and Conditional Release Act and Commissioner’s Directives CD 800 (Health Care) and CD 843 (Interventions to Preserve Life and Prevent Serious Bodily Harm) address the matter of providing health care including psychiatric care, for inmates. Section 87, which is a provision of particular significance to the case at bar, states:

Service to consider health factors

87. The Service shall take into consideration an offender’s state of health and health care needs

(a) in all decisions affecting the offender, including decisions relating to placement, transfer, administrative segregation and disciplinary matters; and

(b) in the preparation of the offender for release and the supervision of the offender.

[53] The Correctional Service provides four levels of mental health care for inmates: (1) Primary Care, which is provided by mental health teams in the penitentiary and includes screening, triage, individual and group interventions; individual treatment planning and implementation, and monitoring and assessing inmates in administrative segregation; (2) Intermediate (Moderate Intensity) Care, which is care provided by the mental health team to inmates who require additional mental health care, including clinical care, psychiatric symptom management, and therapeutic recreation; (3) Intermediate (High Intensity) Care, clinical care etc., available twenty-four hours every day by the mental health team at the penitentiary or at a Regional Treatment Centre (RTC); (4) Psychiatric Hospital Care, which is provided at a RTC (as noted above, there are five across Canada) or at an external psychiatric hospital.

[54] The inmate may be placed in Intermediate Care or Psychiatric Hospital Care but must consent to treatment unless a treatment order is made by a court. If an inmate does not have the capacity to consent, provincial mental health legislation governs how a person may be held as an involuntary patient and be provided treatment without consent. Involuntary treatment of inmates adheres to provincial legislation.

[55] The Correctional Service decides where; i.e., in what type of penitentiary, the inmate should be placed. The criteria for placement and transfers are set out in sections 28 to 30 of the Act. Each inmate is assigned a security classification of maximum, medium, or minimum (CCRA s. 30). Section 28 sets out the criteria for selection of a particular type of penitentiary for an inmate. Once assigned to a particular type of penitentiary, an inmate will be placed in a cell amongst the general population of inmates at the penal institution. As noted above, the Correctional Service decides on the level of mental health care for that inmate.

[56] An inmate may be placed in a cell isolated from the general population. Sections 31 to 41 of the Corrections and Conditional Release Act along with sections 19 to 23 of SOR/92-620 (Corrections and Conditional Release Regulations) provides for administrative segregation and for a disciplinary system at Federal Government penitentiaries, which includes as one of its punishments, disciplinary segregation. When an inmate is placed in administrative or disciplinary segregation, he or she is separated and isolated from the general population of inmates.

[57] The isolation from the general population, the physical configuration of the inmate’s cell, and the daily experience of administrative segregation and disciplinary segregation are essentially the same. However, the policies and procedures of administrative segregation are different from the policies and procedures of disciplinary segregation, which, as already noted, is an outcome of the disciplinary system of isolating an inmate who offends the rules. Disciplinary segregation is a form of punishment; administrative segregation is a means to provide security amongst the inhabitants of the penitentiary.

[58] Disciplinary segregation is a sanction imposed at the end of a disciplinary proceeding for a serious offence committed at the penitentiary. It results from a decision made by an Independent Chairperson. Disciplinary segregation is time limited and may not exceed thirty days for a single offence or forty-five days for multiple offences. In contrast, administrative segregation is administered and reviewed differently and may be for extended and indeed may be for an indefinite duration. As the discussion below will reveal, the potential indeterminacy of administrative segregation makes it a greater hardship and actually more punishing than disciplinary segregation.

[59] Under s. 31 (3) of the CCRA, if the institutional head reasonably believes an inmate’s safety is at risk then, the Institutional Head can administratively segregate that inmate for his or her own safety or until it can be determined how safety can be ensured.

[60] The Federal Government’s witnesses deposed that administrative segregation is necessary for the safety and security of the penitentiary and their inmates, CSC staff, visitors, and the public. The Federal Government’s witnesses deposed that administrative segregation is used to maintain the security of the penitentiary and the safety of Correctional Service staff and of inmates by not permitting particular inmates to associate with other inmates for periods of time. They deposed that sometimes an inmate is placed in administrative segregation to secure his or her safety or the institution’s safety pending a relocation of the inmate at a different institution sometimes with a different security rating where the inmate can be safely housed.

[61] On the summary judgment motion, the Federal Government’s witnesses deposed that the decision to place an inmate in administrative segregation was dependent on multitude of factors and circumstances including: the particular circumstances of the immediate situation that posed a security threat; the inmate’s health, behaviour, and history inside and outside the penitentiary; the inmate’s attitude and wishes; the inmate’s security rating; the relationship of the inmate to other inmates; the nature of the penitentiary’s facilities; the availability of CSC staff and resources; and the size and demographics of the inmate population. The Federal Government’s witnesses noted that some placements in administrative segregation are voluntary in the sense that the inmate requests for his or her own protection to be segregated from the general inmate population.

[62] Under the Corrections and Conditional Release Act, an inmate in administrative segregation must be released at the earliest appropriate time. However, the Federal Government’s witnesses deposed that release might be inappropriate where there was a high degree of risk that the inmate would carry out assaults or retaliation and where the inmate refused to leave segregation even though it has been determined by CSC that it was safe for them to do so. The Federal Government’s witnesses deposed that the Warden has a responsibility to encourage the inmate to consider other options that would allow release from segregation; however, some inmates refuse to leave segregation. As there are inmates that voluntarily are placed in administrative segregation for their own protection, they may not wish to leave administrative segregation.

[63] The number of placements in administrative segregation has decreased from over 8,000 per year to 6,000 per year between 1998 and 2017. Approximately 5% of inmates were segregated for interfering with an investigation (CCRA s. 31(3)(b)). Approximately 30% of inmates were segregated for their own safety (CCRA s. 31(3)(c). Approximately 65% of inmates were segregated for the safety of others (CCRA s. 31(3)(a)). The Federal Government’s evidence was that between 30%-50% of those in administrative segregation are placed there at their own request.

[64] The majority of administrative segregation placements (76% in 2016-2017) had a duration of less than 30 days. The median duration of administrative segregation has decreased from fifteen days to 11 days.

[65] After an inmate is placed in administrative segregation, the placement is reviewed by the Institutional Segregation Review Board (“ISRB”) at a hearing within five days after admission and then again within thirty calendar days and at least once every thirty calendar days thereafter. A review hearing may also be held at any time when the ISRB receives information that challenges the reasons for the inmate’s admission in segregation. The ISRB makes a recommendation to the Institutional Head.

[66] The Regional Segregation Review Board (“RSRB”) reviews cases after thirty-eight days of administrative segregation and then every thirty days thereafter. It also reviews cases specifically referred to it to determine whether the administrative segregation should not be continued. The RSRB makes a recommendation to the Regional Deputy Commissioner.

[67] For an inmate who has spent sixty days or more in administrative segregation, the case is reviewed by the National Long-Term Segregation Review Committee (“NLTSRC”). The NLTRC reviews cases where the inmate has been in segregation for sixty days and will review the case every thirty days thereafter. It also reviews the cases of inmates who have reached four placements in a calendar year or ninety cumulative days in a calendar year and it will review such cases at least once every thirty days thereafter.

[68] Commissioner’s Directive 709 was amended in August 2017, and under the amended CD 709: (a) the Senior Deputy Commission must review the case when an inmate reaches sixty days of administrative segregation or who has reached four placements in a calendar year or ninety cumulative days in a calendar year; (b) the RSRB must review all cases where the inmate has been in segregation for thirty-eight days; and (c) the Regional Deputy Commissioner is required to review all recommendations of the RSRB at the forty-day mark and determine whether the placement in administrative segregation should continue. Under the amended CD 709, responsibility to chair the NLTSRC has been elevated from the Director General, Security to the Senior Deputy Commissioner, who now has the responsibility to determine whether an inmate is to be maintained in or released from administrative segregation.

[69] The regulatory provisions and the policies associated with administrative segregation address the matter of the special needs of inmates with mental health problems. Commissioner’s Directive 709, Administrative Segregation requires that before an inmate is placed in administrative segregation, the case is reviewed by a mental health professional to provide a written opinion as to whether there are mental health issues that could preclude the placement in segregation. When an inmate is placed in administrative segregation outside of regular health services hours, the case must be reviewed by a health professional within twenty-four hours.

[70] While, until recently, it was not expressly a part of any Commissioner’s Directives, the historic policy, which was not universally practiced, of the Correctional Service has been not to place inmates who were suicidal or self-harming into administrative segregation.

[71] Commissioner’s Directive 709 was amended in August 2017 to expressly state a prohibition on the use of administrative segregation for inmates: (a) with a serious mental illness with significant impairment; and (b) who are either actively engaging in self-injury that is likely to result in serious bodily harm or are at elevated or imminent risk for suicide. These inmates are “flagged” in the Offender Management System (“OMS”) and cannot be placed into administrative segregation until they are “unflagged”. Also, in August 1, 2017, Commissioner’s Directive 843 (Interventions to Preserve Life and Prevent Serious Bodily Harm) was modified to expand the policy from the management of suicidal or self-injurious inmates to also address the needs of inmates with serious mental illness with significant impairment.

[72] Under administrative segregation under the Corrections and Conditional Release Act, the inmate is out of his or her cell for a minimum of two hours daily, including the opportunity to exercise outdoors for at least one hour, and he or she may take a daily shower in addition to the two-hour period. The inmate may have books, a radio, and a TV. The inmate has or may have visits from: from an advocate (immediately upon placement); a health care professional (daily, usually a nurse); the Institutional Head (daily); a correctional manager (once per shift) to inspect the conditions of confinement; legal counsel (periodically); the inmate’s Parole Officer to prepare the inmate’s Reintegration Action Plan (periodically); visits by family and friends (periodically, on scheduled days); elders or religious advisors (as requested); teachers to provide homework and books for self-study (periodically). The inmate may make telephone calls to friends and family on the inmate’s approved calling list and may attend appointments with health professionals.

[73] An inmate in administrative segregation is visited by a health care professional every day to assess their physical and mental health. A mental health professional provides a written opinion on the inmate’s mental health status and about whether there should be a referral to mental health services within the first twenty-five days of placement and there is an assessment of current mental health status once every subsequent sixty days.

[74] A health care professional (normally a nurse) must visit each inmate in administrative segregation every day: (a) to determine physical health care needs and any mental health concerns, including suicide or self-injury; (b) to report any information that might have an impact on the safety and security of staff, inmates and/or the institution with the appropriate staff; and (c) to refer the inmate to mental health services if appropriate.

[75] Messrs. Brazeau and Kift submit that administrative segregation is the equivalent of what is known as solitary confinement, isolation, separation, cellular, lockdown, Supermax, the hole, or Secure Housing Unit (“SHU”), which is the confinement of a prisoner for twenty-two hours or more a day without meaningful human contact. They submit that by placing a Class Member in administrative segregation, the Corrections Services breaches its obligations under the CCRA. They submit that administrative segregation is often used as a means of punishment that circumvents the regime for regulating disciplinary segregation. Messrs. Brazeau and Kift submit that administrative segregation violates their Charter rights.

[76] On the summary judgment motion, there was a highly contentious issue about whether administrative segregation qualifies as solitary confinement as it is defined by the United Nations, other organizations, and by academics, criminologists, mental health professionals, and jurists.

[77] In the immediate case, how real and substantial or conversely how fictional and superficial was the human contact available to an inmate in administrative segregation and how clean and comfortable was the accommodation in administrative segregation or conversely how filthy and uncomfortable were the physical conditions were matters of controversy. Messrs. Brazeau and Kift submitted that the evidence showed that the physical conditions were deplorable and that there was no meaningful or authentic human contact. The evidence of the inmates was that much of the communication with them even by health care providers was by speaking through the food slot in the door to the segregation cell.

[78] Messrs. Brazeau and Kift submitted that the evidence established that a placement in solitary confinement, i.e., administrative segregation is harmful to every Class Member because: (a) every Class Member is too sick to be placed in administrative segregation; (b) a placement into solitary confinement deprives every Class Member of needed psychiatric treatment; (c) a placement in administrative segregation causes psychiatric harm to every Class Member by exacerbating the Class Member’s disease and by causing new mental diseases; and (d) a placement in administrative segregation causes permanent harm to every Class Member and is deleterious to the purpose of rehabilitating the inmate and returning him or her to the society outside the penitentiary.

[79] There was a major dispute between the parties about the adequacy of the health care and most particularly about the adequacy of the psychiatric care for inmates with pre-existing serious mental health problems whom, it was submitted by Messrs. Brazeau and Kift, cannot receive therapy or adequate care while in administrative segregation and whom needed it more because solitary confinement makes mentally ill inmates more ill.

[80] There was a highly contentious argument about whether the evidence showed that the Correctional Service used administrative segregation as a form of punishment and as a way to avoid the regime of disciplinary segregation.

[81] The Federal Government asserted that by legislative, regulatory, and policy design, administrative segregation was meant to be different and was in fact different from solitary confinement. The Federal Government submitted that that there was no breach of the Charter.

[82] The Federal Government’s witnesses deposed that the psychological effects of administrative segregation were idiosyncratic even for the most seriously mentally ill inmates and that the effects depended on the personality of the inmate, whether the segregation was voluntary or involuntary, the conditions of the confinement cell, and the duration of the placement. Relying largely on the assertion that the Correctional Service complies with the CCRA and its regulations, the Federal Government denies that administrative segregation is the equivalent of solitary confinement, and it denies any breach of the Class Members’ Charter rights.

[83] On June 19, 2017, Bill C-56, An Act to Amend the Corrections and Conditional Release Act and the Abolition of Early Parole Act was tabled in Parliament. The Bill introduced a presumptive time limit for confinement in administrative segregation and a system of independent, external review. The Bill did not proceed beyond first reading.

[84] On October 16, 2018, Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, was tabled for first reading in the House. Bill C-83 will eliminate the use of administrative segregation but authorize Correctional Services to designate a structured intervention unit (“SIU”) where inmates who cannot be accommodated in general population will be placed and allowed to spend at least four hours per day outside their cells to interact with other inmates and a minimum of two hours per day for programs, interventions, and services. Bill-C-83 also introduces patient advocacy services and will also establish a different review process for placements in administrative segregation.

D. A Survey History and Historiography of Solitary Confinement and Administrative Segregation

[85] The history of solitary confinement and the study of its use in Canada and around the world are important parts of the factual background to this summary judgment motion and to Messrs. Brazeau and Kifts’ class action and particularly relevant to their claims for Charter damages. This history is surveyed in this part of the Reasons for Decision.

[86] As it happens, the history and historiography of solitary confinement and the history of the juridical, sociological, penological, and medical studies of solitary confinement are part of a body of scientific knowledge that is also a part of the factual narrative for the immediate case. And, as it happens, several witnesses, such as Dr. Grassian, Professor Jackson, Professor Mendez, Dr. Rivera, and Dr. Morgan, apart from their involvement in the immediate case as experts, had roles to play in the history and historiography of solitary confinement.

[87] The early history of solitary confinement and its effect on prisoners is described by Justice Miller in the 1890 decision of the U.S. Supreme Court in Re Medley[^11], Justice Miller stated:

Solitary confinement as a punishment for crime has a very interesting history of its own, in almost all countries where imprisonment is one of the means of punishment. In a very exhaustive article on this subject in the American Cyclopsedia, Volume XIII, under the word "Prison" this history is given. In that article it is said that the first plan adopted when public attention was called to the evils of congregating persons in masses without employment, was the solitary prison connected with the Hospital San Michele at Rome, in 1703, but little known prior to the experiment in Walnut Street Penitentiary in Philadelphia in 1787. The peculiarities of this system were the complete isolation of the prisoner from all human society and his confinement in a cell of considerable size, so arranged that he had no direct intercourse with or sight of any human being, and no employment or instruction. Other prisons on the same plan, which were less liberal in the size of their cells and the perfection of their appliances, were erected in Massachusetts, New Jersey, Maryland and some of the other States. But experience demonstrated that there were serious objections to it. A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane, others, still, committed suicide, while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community It became evident that some changes must be made in the system, and the separate system was originated by the Philadelphia Society for Ameliorating the Miseries of Public Prisons, founded in 1787.

[88] In 1829, the Philadelphia Prison in Pennsylvania, U.S. was one of the early adopters of the notion that prisoners could be rehabilitated by confinement in conditions of extreme isolation and separation from other prisoners in the penitentiary. It was theorized that the solitary confinement would inspire reflection and penitence and lead to the rehabilitation of the convicts. As practiced in the Philadelphia Prison solitary separation was very severe. Inmates were hooded when brought into the institution so as not to see or be seen by other inmates as they were led to their cells where they were to reside in isolation.

[89] After his tour of North America, Charles Dickens in 1850, in his American Notes for General Circulation wrote about the penitentiaries in Philadelphia:[^12]

In the outskirts, stands a great prison, called the Eastern Penitentiary: conducted on a plan peculiar to the state of Pennsylvania. The system here, is rigid, strict, and hopeless solitary confinement. I believe it, in its effects, to be cruel and wrong.

In its intention, I am well convinced that it is kind, humane, and meant for reformation; but I am persuaded that those who devised this system of Prison Discipline, and those benevolent gentlemen who carry it into execution, do not know what it is that they are doing. I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers; and in guessing at it myself, and in reasoning from what I have seen written upon their faces, and what to my certain knowledge they feel within, I am only the more convinced that there is a depth of terrible endurance in it which none but the sufferers themselves can fathom, and which no man has a right to inflict upon his fellow-creature. I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body: and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface, and it extorts few cries that human ears can hear; therefore I the more denounce it, as a secret punishment which slumbering humanity is not roused up to stay. I hesitated once, debating with myself, whether, if I had the power of saying ‘Yes’ or ‘No,’ I would allow it to be tried in certain cases, where the terms of imprisonment were short; but now, I solemnly declare, that with no rewards or honours could I walk a happy man beneath the open sky by day, or lie me down upon my bed at night, with the consciousness that one human creature, for any length of time, no matter what, lay suffering this unknown punishment in his silent cell, and I the cause, or I consenting to it in the least degree.

[90] A less extreme version of isolated confinement was adopted in New York State and at Canada’s Kingston Penitentiary, which opened in 1835. However, because of experience from countries around the world that solitary confinement was causing psychiatric and physical illness and disease, by the 1900s the practice of solitary confinement as an institution-wide practice fell out of use in North America and elsewhere.

[91] Although the scientific explanation for the harm caused by solitary confinement is a product of the later part of the twentieth century, that solitary confinements could have dire psychiatric consequences has been appreciated for well over a century.

[92] Although solitary confinement declined as a general practice for all inmates in a penitentiary, it continued to be used as a special practice within penitentiaries in the United States, Canada, and across the world.

[93] Prompted, in part, by events during the Second World War and the Korean War associated with the treatment of prisoners of war, the use of solitary confinement was heavily scrutinized and investigated by social scientists, and a consensus began to build that it was a harsh practice that in some places and in some conditions was tantamount to torture.

[94] The scientific study of solitary confinement can be placed within the larger study of the psychological significance of social contact and on medical and psychiatric study of the effects of isolation and small group confinement. The study of the psychiatric effects of restricted environmental stimulation have been studied, among others, by the military (submarine service, polar exploration, brainwashing, and interrogation), by the aeronautical industry (long-term flight and space travel), and medical practitioners (patients in long-term traction, in iron lungs, and in blinding eye-patches following surgery). In Canada, funded by the United States’ Central Intelligence Agency, researchers at McGill University (and at Harvard University) studied the medical effects of sensory deprivation. There is an enormous academic literature about solitary confinement and associated topics.

[95] The prison conditions of captured combatants and of civilians was studied by world organizations. In 1957, the UN Economic and Social Counsel adopted the Standard Minimum Rules for the Treatment of Prisoners for the humane operation of prisons in accordance with human rights and the rule of law.

[96] In Canada, under the now repealed Penitentiary Act, the practice of segregating and isolating an inmate was known as “dissociation,” and it was governed by the now repealed Penitentiary Service Regulations. It took some time, but eventually, administrative segregation became the subject of judicial scrutiny and of law reform.

[97] In the 1970s, in McCann v. The Queen,[^13] Jack McCann, an inmate of the British Columbia Penitentiary, who had been in administrative segregation (dissociation) for 754 days in what was sardonically known as the “Penthouse” of the British Columbia Penitentiary and seven other inmates who had been placed in administrative segregation for extended periods of time successfully challenged the practice as cruel and unusual punishment contrary to s. 2(b) of the Canadian Bill of Rights. Professor Jackson was the academic advisor to the plaintiffs’ counsel and interviewed a group of prisoners who had been placed in the Penthouse, which was located at the top floor of the penitentiary. Professor Jackson’s account of the interviews reads like a non-fiction version of Kafka’s the Penal Colony.

[98] Around the same time as the McCann litigation, the matter of the use of segregation in particular and the management of penitentiaries generally became the subject of study and law reform by the Federal Government. In the 1970s, the Solicitor General appointed James Vantour to deliver a report on the use of segregation, and after riots at the Kingston Penitentiary, an all-party House of Commons subcommittee chaired by Mark MacGuigan delivered a report about the federal penitentiary system. The subcommittee endorsed a recommendation of the Vantour Report that placements in segregation be reviewed by review boards.

[99] In 1980, in Martineau v. Matsqui Disciplinary Bd.,[^14] the Supreme Court held that the decisions of penitentiary authorities were subject to judicial review oversight and an administrative law duty to act fairly.

[100] After the enactment of the Charter in 1982, the Federal Government ordered a review of the federal laws regarding penitentiaries. The Correctional Law Review reported that the regulation of administrative segregation, then known as dissociation, was deficient.

[101] In 1983, Dr. Grassian (a witness for Messrs. Brazeau and Kift in the immediate case) published his very influential article in the American Journal of Psychiatry entitled Psychopathological Effects of Solitary Confinement.[^15] The article reported on the effects of solitary confinement on inmates and identified a syndrome caused by solitary confinement.

[102] On December 10, 1984, the United Nations General Assembly adopted the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (1465 UNTS 85), which Canada ratified on July 24, 1987. The Convention prohibits torture and cruel, inhuman, or degrading treatment or punishment and imposes on each state party affirmative obligations to prevent such acts in any territory under its jurisdiction.

[103] In 1985, in Cardinal v. Director of Kent Institution,[^16] the Supreme Court held that the duty to act fairly applied to decisions about administrative segregation.

[104] In 1990, the Federal Government released a comprehensive consultation package about amendments to the corrections law, which was followed by the enactment in 1992 of the Corrections and Conditional Release Act and its regulations.

[105] In 1996, the Honourable Louise Arbour released the report of Commission of Inquiry into Certain Events at the Prison for Women in Kingston. The Arbour Commission investigated an incident in the Prison for Women in Kingston. In the incident, four Correctional Service officers were attacked by a group of inmates, five staff members were taken hostage, two inmates were killed, the institution was locked down, and the inmates were effectively left in administration segregation for an extended time because the officers refused to unlock the range of cells.

[106] In her report, Justice Arbour set out the report of the penitentiary’s psychologists of the effect of prolonged segregation on the mental health of the women inmates. The psychologists report stated:

Many of the symptoms currently observed are typical effects of long-term isolation and sensory deprivation. […] The following symptoms have been observed: perceptual distortions, auditory and visual hallucinations, flashbacks, increased sensitivity and startle response, concentration difficulties and subsequent effect on school work, emotional distress due to the extreme boredom and monotony, anxiety, particularly associated with leaving the cell or seg area, generalized emotional lability at times, fear that they are “going crazy” or “losing their minds” because of limited interaction with others which results in lack of external frames of reference, low mood and generalized sense of hopelessness.

[107] The Arbour Commission, found that the rule of law was not a feature of the administration of the penitentiary, and, among other things, the Commission recommended: (a) for administrative segregation, the initial segregation be for a maximum of three days followed by a review for further segregation up to a maximum of thirty days; (b) an inmate not spend more than sixty non-consecutive days in segregation in a year; (c) after thirty days or if the days served in segregation during a year approached sixty, the Correctional Service should employ other options or the Correctional Service should apply to a court for a determination of the necessity of further segregation.

[108] Following the Arbour Commission, the Correctional Service established the Task Force on Administrative Segregation. From 1998-2006, Professor Jackson was an independent member of the Task Force, an advisory group for the Commissioner. The Task Force’s mandate was to address the recommendations of the Arbour Commission. The Task Force visited every segregation unit within the Correctional Service and provided advice to the Commissioner. The task force made findings about the operational realities of administrative segregation and made recommendations for practice reforms. In his expert’s report for the case at bar, Professor Jackson stated that the systemic problems that the Task Force identified in relation to the treatment of mentally ill inmates were by and large not implemented and the problems continued.

[109] There were other investigations of penitentiary practices in the years following Justice Arbour's report that made recommendations similar to those made by Justice Arbour’s Commission including the Correctional Services Working Group on Human Rights chaired by Max Yalden (1997); the House of Commons Standing Committee on Justice and Human Rights which produced a report in 2000, and the Canadian Human Rights Commission, which in 2003 released a report entitled Protecting Their Rights: A Systemic Review of Human Rights in Correctional Services for Federally Sentenced Women.

[110] In 2006, Dr. Grassian published an article entitled Psychiatric Effects of Solitary Confinement.[^17] The article was an extensive review of the academic literature about the medical effects of solitary confinement and it updated the work that he had completed for his journal article in 1983.

[111] On December 13, 2006, the United Nations General Assembly adopted the Convention on the Rights of Persons with Disabilities (GA. Res. 61/106), which Canada ratified on March 11, 2010. Article 14 of the Convention provides that State parties should ensure that "the existence of a disability shall in no case justify a deprivation of liberty" and that persons with disabilities who are deprived of their liberty "shall be treated in compliance with the objectives and principles in the present Convention, including by provision of reasonable accommodation."

[112] On October 19, 2007, Ashley Smith, who was nineteen year’s old and an inmate at the Grand Valley Institution for Women committed suicide in her segregation cell. There was a coroner’s inquest. Ms. Smith committed suicide after extended periods in administrative segregation. In 2013, the coroner’s jury delivered over a hundred recommendations including: (a) improving the conditions of administrative segregation; (b) requiring that both the institutional head of the penitentiary and also a mental health professional visit the inmate daily; (c) abolishing indefinite solitary confinement; (d) prohibiting placing a female inmate in segregation for periods in excess of fifteen days and for more than sixty days in a calendar year; (e) that female inmates with serious mental health issues be placed in a treatment facility not a security-focused penitentiary.

[113] The Correctional Service rejected the jury’s recommendations in the Ashley Smith inquiry. The CSC stated that the adoption of the recommendations would cause undue risk to the safe management of the correctional system. In its Response to the Coroner's Inquest Touching the Death of Ashley Smith, the Federal Government did, however, accept that long periods in administrative segregation was not conducive to the inmate’s health or to meeting the goals of the correctional planning process.

[114] In 2008, the Corrections Investigator (then Howard Sapers) did an investigation of the Ashley Smith tragedy, and he released a report dated June 28, 2008, entitled A Preventable Death. The Corrections Investigator concluded that Ms. Smith’s death was preventable. He stated that had there been an independent adjudicator and a detailed review of the case alternatives would have been implemented to placing Ms. Smith in administrative segregation. He recommended that the immediate implementation of independent adjudication of segregation placements of inmates with mental health concerns, to be completed within 30 days of the placement, with the adjudicator's decision to be forwarded to the regional deputy commissioner.

[115] In his 2009-2010 Annual Report, the Corrections Investigator noted the continuing problems associated with mentally ill inmates being placed in administrative segregation. The report stated:

In the past year, I have been very clear on the point that mentally disordered offenders should not be held in segregation or in conditions approaching solitary confinement. Segregation is not therapeutic. In too many cases, segregation worsens underlying mental health issues. Solitary confinement places inmates alone in a cell for 23 hours a day with little sensory or mental stimulation, sometimes for months at a time. Deprived of meaningful social contact and interaction with others, the prisoner in solitary confinement may withdraw, “act out” or regress. Research suggests that between one-third and as many as 90% of prisoners experience some adverse symptoms in solitary confinement, including insomnia, confusion, feelings of hopelessness and despair, hallucinations, distorted perceptions and psychosis.

[…] There is growing international recognition and expert consensus that the use of solitary confinement should be prohibited for mentally ill prisoners and that it should never be used as a substitute for appropriate mental health care.

[116] Corrections Canada declined to implement the recommendations of the Correctional Investigator. Instead, it undertook to arrange an external review of its practices associated with administrative segregation. It retained, Dr. Rivera (another witness in the immediate proceeding for Messrs. Brazeau and Kift) to prepare a report.

[117] In May 2010, Dr. Rivera published her findings and recommendations in a report entitled Operational Examination of Long-Term Segregation and Segregation Placements of Inmates with Mental Health Concerns in the Correctional Service of Canada. She recommended, among other things, a reduction in the use of administrative segregation, particularly for prisoners with mental health issues, the development of alternatives to administrative segregation, and improvements to the physical and operational conditions of segregation.

[118] While Dr. Rivera was undertaking her review, on August 13, 2010, Edward Snowshoe, a 22-year-old Aboriginal man who suffered from serious mental illness, committed suicide in a segregation cell at Edmonton Institution after spending 162 days in administrative segregation. The Honourable Justice James K. Wheatley, an Alberta Provincial Court Judge, conducted an inquiry and reported to the Minister of Justice and Attorney General of Canada. He concluded that the review procedure for administrative segregation had not functioned properly and that Mr. Snowshoe’s plight while in administrative had gone unnoticed.

[119] In August 2011, Professor Mendez, the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment submitted an interim report to the United Nations General Assembly with respect to solitary confinement. (Cruel Inhuman and or Degrading Treatment is referred to as “CIDT”.) Solitary confinement was defined as the physical and social isolation of individuals who are confined to their cells for twenty-two to twenty-four hours a day. The Special Rapporteur concluded that in certain circumstances solitary confinement constituted torture as defined in Article 1 of the of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or constituted CIDT as Defined in Articles 1 and 16 of the Convention and Article 7 of the International Covenant on Civil and Political Rights.[^18]

[120] Here it may be noted that as a matter of international law, the Federal Government has agreed to be bound by the provisions of both the Convention against Torture and the International Covenant on Civil and Political Rights.

[121] In his 2011 Report to the General Assembly, the Special Rapporteur stated that solitary confinement reduces meaningful social contact to an absolute minimum and that the resulting level of social stimulus is insufficient to allow the individual to remain in a reasonable state of mental health. He states that, if the insufficient social stimulus is occurs for even a few days, brain activity shifts toward an abnormal pattern. The Special Rapporteur wrote:

Negative health effects can occur after only a few days in solitary confinement and the health risks rise with each additional day spent in such conditions. Experts who have examined the impact of solitary confinement have found three common elements that are inherently present in solitary confinement: social isolation, minimal environmental stimulation and “minimal opportunity for social interaction”. Research can include anxiety, depression, anger, cognitive disturbances, perceptual distortions, paranoia, and psychosis and self-harm.

[122] The Special Rapporteur specified that the circumstances where solitary confinement amounted to torture or CIDT were: (a) where the physical conditions were so poor and the regime so strict that they lead to severe mental and physical pain or suffering of individuals subject to the confinement; (b) the confinement was of indefinite duration; and (c) the confinement was prolonged. The Special Rapporteur reported that the placement in solitary confinement of any duration of persons with mental disabilities was CITD.

[123] The Special Rapporteur concluded that given the negative psychological and physiological effects of solitary confinement, which can manifest after only a few days, the practice should only be used in exceptional circumstances, as a last resort, for as short a time as possible, and subject to minimum procedural safeguards. He recommended an absolute prohibition on indefinite solitary confinement and on placements exceeding fifteen consecutive days and the abolition of its use for persons with mental disabilities.

[124] In the 2010-2011 Annual Report of the Correctional Investigator, the Correctional Investigator stated that: the practice of placing mentally ill offenders or those at risk of suicide or serious self-injury in prolonged segregation must stop; the Correctional Service’s approach to preventing deaths in custody must change; that inmates with mental health issues in long-term administrative segregation (beyond 60 days) were not being independently and expertly monitored; and there was not enough practical alternatives such as intermediate mental health care units to end the practice of placing inmates with mental health problems in long-term segregation.

[125] In the 2011-2012 Annual Report, the Correctional Investigator recommended an absolute prohibition of placing mentally ill offenders and those at risk of suicide or serious self-injury in prolonged segregation. He said that this was in keeping with Canada’s domestic and international human rights commitments.

[126] In the 2014-2015 Annual Report, the Correctional Investigator recommended prohibiting segregation in excess of fifteen days for inmates suffering from serious mental illness. The Correctional Investigator objected to the fact that administrative segregation was being used as a punitive measure to circumvent the more onerous due process requirements of the disciplinary segregation system.[^19] He recommended that the Corrections and Conditional Release Act be amended to significantly limit the use of administrative segregation for young offenders and for the mentally ill and to impose a maximum of no more than 30 continuous days of administrative segregation with judicial oversight or independent adjudication for a subsequent stay beyond the initial thirty day placement.

[127] In 2015, the United Nations General Assembly acted on the reports of the Special Rapporteur. His opinions informed the United Nations’ decision to update the Standard Minimum Rules for the Treatment of Prisoners. The revised rules were unanimously adopted by the UN General Assembly in 2015. These rules are known as the Nelson Mandela Rules” in honor of Mandela who spent twenty-seven years in prison, the first eighteen of which were on Robben Island, South Africa, where Mandala was placed in solitary confinement.

[128] Rule 43 of the revised Mandela Rules state:

Rule 43

(1) In no circumstances may restrictions or disciplinary sanctions amount to torture or other cruel, inhuman or degrading treatment or punishment. The following practices, in particular, shall be prohibited:

(a) indefinite solitary confinement;

(b) prolonged solitary confinement;

(c) placement of a prisoner in a dark or constantly lit cell ...

[129] Although it did not involve a federal penitentiary, the most recent, and a distressing and disgraceful, incident in the history of administrative segregation in Canada is the matter of Adam Capay, a young member of Lac Seul First Nation whose murder charges in R. v. Capay,[^20] were dismissed because of his experience in administrative segregation at a provincial prison pending his trial. His plight in solitary confinement was discovered and revealed by the Ontario Ombudsman who published a report on segregation practices in provincially run institutions.

[130] For decades, the Federal Government’s regime for administrative segregation has been criticized for the absence of a robust and timely adjudicative review process for placements in administrative segregation infused with the rule of law. The Arbour Commission of Inquiry and the Task Force on Administrative Segregation recommended that a placement in administrative segregation be reviewed within three days to determine whether it should be continued.

[131] For decades, the Federal Government’s regime for administrative segregation has been criticized for the failure to adequately monitor the segregated inmate’s current mental health status, with a special emphasis on the evaluation of the risk for self-harm.

E. Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen

[132] In Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen,[^21] on January 27, 2015, in Ontario, the Canadian Civil Liberties Association, a national organization established in 1964 to protect and promote respect for and observance of fundamental human rights and civil liberties, sued the Federal Government.

[133] In its action, the Association submitted that the legislation that authorizes administrative segregation is contrary to the Charter. The Association sought a declaration that sections 31-37 of the Corrections and Conditional Release Act, which permit the Correctional Service to remove an inmate from the general population of inmates in a penitentiary for a non-disciplinary reason are invalid because they infringe sections 7, 11 (h) and 12 of the Charter.

[134] In December 2017, Associate Chief Justice Marrocco held that the administrative segregation sections of the CCRA contravened section 7 of the Charter, and the contravention could not be saved under section 1 of the Charter. [^22] Associate Chief Justice Marrocco held that every inmate suffered a section 7 breach because of the Federal Government’s failure to provide an independent review of the decision to place an inmate in administrative segregation.

[135] Because he accepted that the security of the institution was a legitimate concern and because he accepted that the Correctional Service could adequately monitor inmates who are in administrative segregation to identify when an inmate’s physical and mental health is deteriorating, Justice Marrocco concluded that the current legislative scheme that permitted prolonged administrative segregation did not inevitably result in treatment of an inmate that constitutes a cruel and unusual punishment contrary to section 12 of the Charter. Thus, he concluded that the legislation was contrary to section 7 but was not contrary to section 12 of the Charter.

[136] I pause to foreshadow that based on the evidentiary record in the immediate case, I agree with Justice Marrocco’s decision with respect to section 7 of the Charter, but I disagree with his finding that there is no breach of section 12 of the Charter with respect to the seriously mentally ill inmates that are the Class Members of the case at bar.

[137] In Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, the Federal Government was directed to redraft the legislation within twelve months of the decision. The Federal Government did not appeal the decision, but it applied for and was granted an extension of time to revise the legislation to April 30, 2019.[^23] The Canadian Civil Liberties Association did appeal the decision.

[138] Associate Chief Justice Marrocco made the following factual and legal findings that are relied on by Messrs. Brazeau and Kift on this summary judgment motion: (a) the Mandela Rules promulgated by the United Nations represent an international consensus of proper principles and practices in the management of prisons and the treatment of those confined; (b) the placing of an inmate in in administrative segregation imposes a psychological stress, quite capable of producing serious permanent observable negative mental health effects; (c) reputable Canadian medical organizations such as the Canadian Medical Association, the College of Family Physicians of Canada, the Registered Nurses Association of Ontario regard administrative segregation as a harmful practice; (d) the harmful effects of sensory deprivation caused by solitary confinement can occur as early as forty-eight hours after segregation; (e) administrative segregation can change brain activity and becomes symptomatic within seven days or less; (f) administrative segregation of fifteen days duration posed a serious risk of psychological harm; (g) administrative segregation exacerbates existing mental illness; (h) prolonged administrative segregation poses a serious risk of negative psychological effects; (k) keeping a person in administrative segregation for an indefinite prolonged period exposes that person to abnormal psychological stress and will if the stay continues indefinitely result in permanent psychological harm; (l) the practice of keeping an inmate in administrative segregation for a prolonged period is harmful and offside responsible medical opinion; (m) lack of independent review of the warden’s decisions amounted to virtually no accountability for the decision to segregate; (n) there was an inherent conflict between the administrative segregation sections of the CCRA and the mental health section of the Act (s. 87(a)) that entailed that the mental health of inmates could not be considered within the administrative segregation decision-making process; and, (o) CD 709 created a risk that the Institutional Head would exercise his or her discretion in a way that would contravene 87(a) of the Act and not consider mental health risk in the decision to release from administrative segregation.

[139] Messrs. Brazeau and Kift also rely on the fact that in his decision, Associate Chief Justice Marrocco rejected the Colorado Study, the Zinger Study, and parts of Dr. Morgan's evidence.[^24] These were the primary research studies relied on by Dr. Glancy in the immediate case

F. British Columbia Civil Liberties Association v. Canada (Attorney General)

[140] In 2017, in British Columbia, in British Columbia Civil Liberties Association v. Canada (Attorney General), the British Columbia Civil Liberties Association and the John Howard Society of Canada sued the Federal Government challenging the administrative segregation legislation as contrary to the Charter.

[141] I pause to note that the British Columbia action, which involved a 36-day trial with viva voca cross-examinations before Justice Leask, seems to have been used by Class Counsel and counsel for the Federal Government in the immediate case as a kind of litigation template for the five-day summary judgment motion. Some of the witnesses in the immediate case gave evidence in the British Columbia action and the evidence and the arguments in the cases were similar.

[142] On January 17, 2018, Justice Leask held that the administrative segregation sections of the Corrections and Conditional Release Act contravened section 7 and section 15 of the Charter, and the contraventions could not be saved under section 1 of the Charter.[^25] He did not find a breach of sections 9 and 12 of the Charter. The Federal Government was directed to redraft sections of the Act within twelve months of the decision. The Federal Government appealed the decision, which was heard by the British Columbia Court of Appeal on November 13-14, 2018 and is currently under reserve.[^26] The Federal Government was granted an extension of time to redraft its legislation until June 17, 2019.[^27]

[143] Justice Leask made the following factual and legal findings that are relied on by Messrs. Brazeau and Kift on this summary judgment motion: (a) administrative segregation conforms to the definition of solitary confinement found in the Mandela Rules; (b) administrative segregation is a form of solitary confinement that places all Canadian federal inmates subject to it at significant risk of serious psychological harm, including mental pain and suffering, and increased incidence of self-harm and suicide; (c) some of the specific harms of administrative segregation include anxiety, withdrawal, hypersensitivity, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, rage, paranoia, hopelessness, a sense of impending emotional breakdown, self-mutilation, and suicidal ideation and behaviour; (d) the risks of these harms are intensified in the case of mentally ill inmates; however, all inmates subject to segregation are subject to the risk of harm to some degree; (e) the indeterminacy of administrative segregation is a particularly problematic feature that exacerbates its painfulness, increases frustration, and intensifies the depression and hopelessness that is often generated in the restrictive environments that characterize segregation; (f) while many of the acute symptoms of mental illness caused by administrative segregation are likely to subside upon termination of segregation, many inmates are likely to suffer permanent harm as a result of their confinement; (g) the harm of administrative segregation is most commonly manifested by a continued intolerance of social interaction, which has adverse repercussions for an inmates’ ability to successfully readjust to the social environment of the prison general population and to the broader community upon release from prison; (h) negative health effects from administrative segregation can occur after only a few days in segregation, and those harms increase as the duration of the time spent in segregation increases; (i) although the fifteen-day maximum prescribed by the Mandela Rules is a generous standard given the overwhelming evidence that even within that space of time an individual can suffer severe psychological harm; nevertheless, it is a defensible standard; (j) the history of solitary confinement in the United States and more particularly in Germany, demonstrates that these harmful effects have been recognized since the late 19th and early 20th centuries; (k) inmates with mental disabilities are over-represented in administrative segregation; (l) CD 709 is deficient because its definition of serious mental illness was both unclear and too narrow and intermingled symptoms and diagnoses; and (m) the Federal Government’s processes for dealing with mentally ill inmates were deficient and failed to appreciate the size and seriousness of the health issue.

[144] Messrs. Brazeau and Kift also rely on the fact that in his decision, Justice Leask rejected the Colorado Study, the Zinger Study, and a meta-analysis co-authored by Dr. Morgan, which are the studies that Dr. Glancy relied on in the immediate case. (Dr. Morgan was a witness in the immediate case.)

G. Res Judicata, Issue Estoppel, and Abuse of Process

[145] Res judicata, issue estoppel, and abuse of process, which are related and partially overlapping legal doctrines, are bars to litigation that preclude a party from re-litigating a claim, a defence, or an issue that has already been determined. Cause of action estoppel, which is a branch of res judicata, precludes a litigant from asserting a claim or a defence that: (a) it asserted; or (b) it had an opportunity of asserting and should have asserted in past proceedings, which is the rule from Henderson v. Henderson.[^28] Issue estoppel, another branch of res judicata, precludes a litigant from asserting a position that is inconsistent or contrary to a fundamental point already decided in a proceeding in which the litigant participated.

[146] The requirements for an issue estoppel are: (1) the parties must be the same; (2) the same question must be involved in the initial and subsequent hearing; (3) the question must have been actually litigated and determined in the first hearing and its determination must have been necessary to the result; and (4) the decision on the issue must have been final.[^29]

[147] Abuse of process is a doctrine that a court may use to preclude re-litigation of a cause of action or an issue. The court has an inherent jurisdiction to prevent the misuse of its process that would be manifestly unfair to a party to the litigation or would in some other way bring the administration of justice into disrepute, and the court can and has used this jurisdiction to preclude re-litigation when the strict requirements of res judicata or issue estoppel are not satisfied.[^30]

[148] In Danyluk v. Ainsworth Technologies Inc.[^31] and in Penner v. Niagara (Regional Police Services Board),[^32] the Supreme Court added a discretionary element to res judicata and to the flexible doctrine of abuse of process. The Supreme Court held that where a party establishes the pre-conditions for an issue estoppel or an abuse of process, a court must still determine whether, as a matter of discretion, issue estoppel ought to be applied. The court should stand back and, taking into account the entirety of the circumstances and consider whether an estoppel in the particular case would work an injustice.

[149] In Danyluk v. Ainsworth Technologies Inc. and in Penner v. Niagara (Regional Police Services Board) the Court recognized that there may be situations where re-litigation would enhance the integrity of the judicial system; for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. In these instances, the subsequent proceeding would not be an abuse of process.

[150] In the immediate case, Messrs. Brazeau and Kift submit that there are estoppels binding on the Federal Government arising from Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen[^33] and British Columbia Civil Liberties Association v. Canada (Attorney General).[^34] In particular, Messrs. Brazeau and Kift submit that it is res judicata that: (a) solitary confinement takes place in Canada; (b) solitary confinement is harmful, generally; (c) the harms of solitary confinement are amplified for people who suffer from mental illness; (d) Class Members suffered a section 7 breach when they could not access an independent review of the warden's decision to segregate; and, (e) the CCRA contains a legislative conflict that negatively impacts the Charter rights of the mentally ill.

[151] In the immediate case, Messrs. Brazeau and Kift, however, submit that they are not bound by the findings in Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen and British Columbia Civil Liberties Association v. Canada (Attorney General) that s. 31 of the Corrections and Condition Release Act does not violate section 9 of the Charter and does not violate section 12 of the Charter.

[152] Messrs. Brazeau and Kift submit that these decisions are not binding on them because they are not privy to the applicants in those cases and the courts in those cases did not consider the seriously mentally ill. Therefore, Messrs. Brazeau and Kift submit that the claims of the Class Members in the immediate case have not been already determined and require separate scrutiny. They submit that the Class Members are a highly vulnerable group for whom administrative segregation will be an arbitrary detention or imprisonment and will constitute cruel and unusual treatment notwithstanding the findings in these cases.

[153] In the immediate case without relying on res judicata and its related doctrines but based on the evidence and my own weighing of the evidence, I shall make my own findings of fact and law. In other words, I make my findings on the substantive merits and I exercise my discretion not to invoke any issue estoppels.

[154] It was all of unnecessary and late-arriving opportunism for Messrs. Brazeau and Kift to raise an issue estoppel based on the findings Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen[^35] and British Columbia Civil Liberties Association v. Canada (Attorney General).

[155] It is oxymoronic to submit, as Messrs. Brazeau and Kift submit – with hindsight and after the fact - that the results in the immediate case have been predetermined except with the issues that were not decided favorably for them. The extensive evidence for the case was prepared before these decisions and what actually was predetermined is that the parties would repeat evidence and arguments that were being tested in other courts in judgments that were under reserve. It was and is too late to prevent re-litigation, and no purpose would now be served by imposing an issue estoppel, and it would not be fair nor in the interests of justice to do so.

[156] Therefore, as I shall elucidate below, without evoking any issue estoppels, I find as a fact that: (a) administrative segregation as practiced by the Corrections Service is a form of solitary confinement; (b) administrative segregation is harmful and may cause psychiatric injuries; and (c) the harms of administrative segregation are amplified for people who suffer from mental illness. I find as a matter of stare decisis, which is a different doctrine than res judicata, and based on my own analysis of the facts in the immediate case, I concluded that Class Members suffered a section 7 breach when they could not access an independent review of the warden's decision to place them in administrative segregation. I also without evoking any issue estoppels make the findings set out later particularly in Part N of these Reasons for Decision.

[157] For the purposes of the immediate case, on the issue of whether the CCRA contains a legislative conflict that negatively impacts the Charter rights of the mentally ill, it is not necessary on the merits for me to comment about Justice Marrocco’s decision in Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen on this point. I, therefore, shall say nothing more about it.

[158] While I do not agree with Messrs. Brazeau and Kifts’ submission that the Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen decision is distinguishable on the issue of whether administrative segregation is cruel and unusual treatment for the Class Members who are the sickest of the mentally ill inmates, I shall come to a decision on the merits of this issue, and, once again, I shall not rely on any issue estoppel. As noted in the introduction to these Reasons for Decision, I do find that section 12 of the Charter has been breached for a subclass of Class Members.

H. Evidentiary Record

[159] Not counting the compendiums prepared for the argument of the motion, the evidentiary record for this summary judgment motion is approximately 31,000 pages. Messrs. Brazeau and Kift proffered: a five-volume motion record of 3,512 pages, a three-volume reply motion record of 2,129 pages, and a ten-volume brief of answers to undertakings of 6,196 pages. The Federal Government proffered a responding motion record of thirty-eight volumes and 14,288 pages. The six-volume transcript brief of the cross-examinations was 4,981 pages long.[^36]

[160] Messrs. Brazeau and Kift supported their summary judgment motion with the evidence of the following nineteen affiants:

• James Austin swore affidavits dated July 21, 2017 and January 29, 2018 and was cross-examined. He is an American sociologist with a Ph.D. in sociology from the University of California, at Davis. His expertise is in the management of prison populations, including the use of administrative segregation. He is the president of the JFA Institute which is non-government organization that works in partnership with federal, state, and local government agencies, and philanthropic foundations to evaluate criminal justice practices and design research-based policy solutions. He previously was the Director of the Institute of Crime, Justice and Corrections at the George Washington University (1999 to 2003) and the Executive Vice President for the National Council on Crime and Delinquency (1982 - 1998). From 1970 – 1975, he was employed by the Illinois Department of Corrections at the Stateville and Joliet prisons as a correctional sociologist. He has been an expert witness in three American cases about the segregation of inmates with significant mental illnesses. He has been retained as a consultant by the U.S. Federal Bureau of Prisons. Mr. Austin provided an opinion on the appropriateness of placing mentally ill inmates into administrative segregation and what alternatives to existing policies and practices should be pursued. Mr. Austin also responded to the affidavits of Drs. Morgan and Glancy and Messrs. Turgeon and Ryan, who provided evidence for the Federal Government.

• Anthony Paul Blais of Campbellford, Ontario, swore an affidavit dated July 17, 2017. Although he has serious mental health problems from childhood and throughout his life, the Federal Government disputes whether he satisfies the criteria for class membership. He was in penitentiary from 1990 to 1995, 2002 to 2007 and since 2014. He has been incarcerated at Millhaven Institution in Ontario, Kingston Penitentiary in Ontario, the Regional Treatment Centre (“RTC”) in Saint-Anne-Des Plaines in Québec, Port-Cartier Institution in Québec, Donnacona Institution in Québec, Cowansville Institution in Québec, Edmonton Institution in Alberta, Bowden Institution in Alberta, Joyceville Institution in Ontario, Stoney Mountain Institution in Manitoba, Beaver Creek Institution in Ontario, and Warkworth Institution in Ontario. In his affidavit, Mr. Blais describes his experiences in prison, his confinements in administrative segregation, and the nature of the mental health care he received. He describes the effects on him of his experiences while in penitentiary.

• Christopher Brazeau of Kelona, British Columbia, one of the Representative Plaintiffs, swore an affidavit dated July 12, 2017. Mr. Brazeau has had serious mental health problems from childhood. In his affidavit, he describes his twelve-year incarceration between 2004 and 2016 at the following institutions: Stoney Mountain Institution in Manitoba, Saskatchewan Penitentiary, Kent Institution in British Columbia, a Regional Treatment Centre in British Columbia, Edmonton Institution in Alberta, Grand Cache Institution in Alberta, and Matsqui Institution in British Columbia. Mr. Brazeau described his frequent and prolonged confinements in administrative segregation and the nature of the treatment he received for his mental health problems. Among other experiences, he was transferred from administrative segregation to a Regional Treatment Centre for intensive psychiatric treatment for a year only to be returned to administrative segregation for a year’s confinement. He described the severe adverse effects on him of having been in administrative segregation. The Federal Government denies that Mr. Brazeau’s placements in administrative segregation were related to his mental health conditions. On a grievance by Mr. Brazeau, the Deputy Commissioner of Correctional Service Canada concluded that Kent Institution did not endeavor to release him from segregation at the earliest appropriate time. By the time of his release in 2016, Mr. Brazeau was placed in administrative segregation on twenty-five occasions for a total of three years.

• Gary Chaimowitz swore affidavits dated July 28, 2017 and January 11, 2018 and was cross-examined. He is a psychiatrist, a professor in the Department of Psychiatry and Behavioral Neurosciences at McMaster University, and the Head of Forensic Psychiatry at St. Joseph’s Health Care Centre in Hamilton. He was a member of the expert panel in the Ashley Smith Inquiry, which concerned Ms. Smith’s death while in administrative segregation. Dr. Chaimowitz was an expert witness in In Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, discussed below. In his report for the immediate summary judgment motion, Dr. Chaimowitz opined that there is a methodology to assess the Charter damages in the aggregate for Class Members who have been subjected to solitary confinement, and he described that methodology.

• Darek Chandler of Calgary, Alberta swore an affidavit dated June 9, 2017. Mr. Chandler has suffered from severe paranoid schizophrenia, Post Traumatic Stress Disorder (“PTSD”), and generalized anxiety disorder. He was incarcerated at the Bowden Institution in Alberta. He did not spend time in administrative segregation. In his affidavit, he describes his experiences while in prison, and the nature of the mental health care he received. He describes the effects on him from his experiences while in penitentiary.

• Christopher Gismondi of Fort Saskatchewan, Alberta, swore an affidavit dated July 14, 2017. Although from adolescence, he has suffered from Attention Deficit Hyperactivity Disorder ("ADHD"), PTSD, Conduct Disorder, and Oppositional Defiant Disorder ("ODD"), the Federal Government disputes whether he satisfies the criteria for class membership. Mr. Gismondi has been convicted of numerous offences, and he has been incarcerated at Millhaven Institution in Ontario, Saskatchewan Penitentiary, and Edmonton Institution in Alberta. In his affidavit, he describes his experiences while in prison, his confinements in administrative segregation and the nature of the mental health care he received. He describes the effects on him from his experiences while in penitentiary.

• Stuart Grassian swore affidavits dated July 7, 2017 and January 29, 2018 and was cross-examined. Dr. Grassian is a board-certified psychiatrist, licensed to practice medicine in Massachusetts, United States with over 40 years of experience, including a 25-year tenure at Harvard Medical School. He is a scholar about the psychiatric effects of solitary confinement on inmates, having assessed over 400 inmates and having written a seminal article in the American Journal of Psychiatry. He opined about the psychiatric effects of solitary confinement and on the extent to which the availability of psychiatric care (both psychotherapy and psychiatric medication) in Canadian federal penitentiaries would have an impact on Class Members’ health and wellbeing. Dr. Grassian also responded to the expert’s reports of Drs. Glancy and Morgan, who provided evidence for the Federal Government and whose reports were critical of Dr. Grassian’s work studying the psychiatric effects of solitary confinement.

• Craig Haney swore an affidavit dated January 26, 2018 and was cross-examined. He is a professor of psychology at the University of California with a PhD and a M.A. in psychology from Stanford University. He also has a J.D. from Stanford University. His specialization is psychology and law. His area of research is the psychological effects of prison conditions, including solitary confinement. He has been retained as a consultant by government agencies. He has inspected prisons in the Canada, Cuba, England, Hungary, Mexico, Russia, and the United States. He testified as an expert witness in British Columbia Civil Liberties Association v. Canada (Attorney General).[^37] Dr. Haney was retained to review and to respond to the expert reports of Dr. Glancy and Dr. Morgan, who provided evidence for the Federal Government.

• Scott Glenn Hastman of Lockport, Manitoba swore an affidavit dated July 6, 2017. He was incarcerated at Stony Mountain Institution in Manitoba, Drumheller Institution in Alberta, and Bowden Institution in Alberta from 2003 until 2009 for armed robberies, trafficking cocaine, and property-related offences. Although he has been diagnosed with severe attention ADHD and PTSD, the Federal Government disputes whether he satisfies the criteria for class membership. In his affidavit, he describes his experiences while in prison, his confinements in administrative segregation, and the nature of the mental health care he received. He describes the effects on him from his experiences while in penitentiary.

• Michael Jackson, Q.C. swore an affidavit dated July 4, 2017 and was cross-examined. He is a professor emeritus of the law faculty at the University of British Columbia, a lawyer, and the president of the West Coast Prison Justice Society. He was an advisor for the 1996 Commission of Inquiry into Certain Events at the Prison for Women in Kingston headed by the Honourable Louise Arbour, and a member of the Task Force on Administrative Segregation in 1997, which was a consultation and study group formed by the Correctional Service. From 1998-2006, he was a member of the Commissioner of Corrections Forum, an independent advisory group to the Commissioner of Corrections. For over 40 years, Professor Jackson has conducted research in the area of correctional law, policy and practice in Canadian prisons and has also been a member of government task forces and committees addressing correctional matters. He was given expert evidence on correctional standards in the Federal Court and in the superior courts of British Columbia, Alberta, and Ontario, including most recently in R. v. Capay.[^38] Professor Jackson is regarded as one of the leading Canadian scholars in his field.

• David Allan Kift swore an affidavit dated July 12, 2017. Mr. Kift, the other Representative Plaintiff, is a former RCMP officer who suffered from PTSD caused by the grim and disturbing aspects of his work such as his involvement with the Clifford Olsen murder investigations and the death of a fellow officer during an investigation. He also suffers from sleep-related ailments and serious depression and anxiety. He was discharged from the RCMP on a medical discharge. After the career was over, he was convicted of gun-possession crimes. In his affidavit, he describes his incarcerations at Millhaven Institution in Ontario, Bath Institution in Ontario, Joyceville Institution (formerly Pittsburgh Institution) in Ontario, Quinte Regional Detention Centre in Ontario, Fenbrook Institution in Ontario, and at a Regional Treatment Centre in Ontario. Mr. Kift was twice placed in administrative segregation, and he allegedly spent long periods without medications for his mental health problems. Mr. Kift was placed in administrative segregation in 2013 for seven days at his own request, which he denies, because of fears of being harmed by other inmates and again in 2016 for fourteen days because he was alleged to be misusing his medications. In making the second placement, the Warden of Joyceville did not follow the recommendation of medical staff that Mr. Kift was too ill for the placement. He decompensated while in administrative segregation and after fourteen days in administrative segregation, he was transferred to a Regional Treatment Centre for intensive psychiatric care for a year. In his affidavit, he describes his experiences while in prison, his confinements in administrative segregation, and the nature of the mental health care he received. He describes the effects on him from his experiences while in penitentiary. The Federal Government disputes that Mr. Kift was harmed by his time in administrative segregation.

• Kevin Knight, who is serving a twenty-year sentence for manslaughter at Beaver Creek Institution in Ontario, swore an affidavit dated June 28, 2017. Mr. Knight has been diagnosed with Attention Deficit Disorder (“ADD”), depression, anxiety, substance abuse, and mood disorders. Mr. Knight has numerous convictions and has been incarcerated in Kent Institution in British Columbia, William Head Institution in British Columbia, Saskatchewan Penitentiary, Matsqui Institution in British Columbia, Kingston Penitentiary in Ontario, Warkworth Institution in Ontario. In his affidavit, he describes his experiences in prison, his confinements in administrative segregation, and the nature of the mental health care he received. He describes the effects on him from his experiences while in penitentiary.

• Catherine MacDonald swore affidavits dated July 28, 2017 and January 30, 2018. She is a Legal Assistant/Clerk with Koskie Minsky LLP, Class Counsel. She attached to her affidavit numerous documents (approximately seventy documents) including: the Annual Reports of the Correctional Investigator from 1993 to 2016; several special reports of the Correctional Investigator; the Report of the Honourable Louise Arbour entitled Commission of Enquiry Into Certain Events At The Prison Women Kingston; and several reports of the Correctional Service Canada.

• Juan E. Mendez swore an affidavit dated June 28, 2017 and was cross-examined. He is a law professor and was the United Nations Special Rapporteur on Torture from 2010 to 2016. As Rapporteur, he reports on solitary confinement as it is practiced across the world and he makes recommendations to prison authorities about compliance with international standards. In 2011, Professor Mendez delivered a report to the United Nations General Assembly that recommended a complete prohibition of solitary confinement for inmates with psychological disabilities and he recommended a complete prohibition on any solitary confinement in excess of fifteen days.

• James Mustard of Campbellford Ontario, swore an affidavit dated July 17, 2017. He had a psychotic breakdown in 2004 and was committed to a psychiatric hospital. The Federal Government disputes whether he satisfies the criteria for class membership. In 2008, he was convicted of possession of firearms and amphetamine. He was rearrested in 2012 and 2016. He has been incarcerated at Millhaven Institution in Ontario, Frontenac Institution in Ontario, Collins Bay Institution in Ontario, Joyceville Institution in Ontario, Fenbrook Institution in Ontario, and Warkworth Institution in Ontario. In his affidavit, he describes his experiences in prison, his confinements in administrative segregation, and the nature of the mental health care he received. He describes the effects on him from his experiences while in penitentiary.

• Dalibor Orsag, who is serving a life sentence for second degree murder. He is now incarcerated at the Bath Institution in Ontario. He swore an affidavit dated July 20, 2017. Mr. Orsag has been diagnosed with multiple mental illnesses, including severe depression, anxiety disorder, PTSD, Schizoaffective Disorder, and Borderline Personality Disorder. He has been incarcerated at Millhaven Institution in Ontario, Kingston Penitentiary in Ontario, the Ontario Regional Treatment Centre, Collins Bay Institution in Ontario. He did not spend time in administrative segregation. In his affidavit, he describes his experiences in prison and the nature of the mental health care he received. He describes the effects on him from his experiences while in penitentiary.

• Frank Ouimet, who is serving a twenty-five-year to life sentence at Bath Institution in Ontario for first-degree murder, swore an affidavit dated July 5, 2017. He has been diagnosed with Bipolar Disorder, severe depression, anxiety disorder, ADD, PTSD, Obsessive Compulsive Disorder ("OCD"), and a sleep disorder. He has been incarcerated at Millhaven Institution in Ontario, Kingston Penitentiary in Ontario, Beaver Creek Institution in Ontario, Ontario’s Regional Treatment Centre, and Bath Institution in Ontario. He did not spend time in administrative segregation. In his affidavit, he describes his experiences in prison and the nature of the mental health care he received. He describes the effects him from his experiences while in penitentiary.

• Shawn Alfred Angelo Pugliese of Toronto Ontario swore an affidavit dated June 23, 2017. Mr. Pugliese’s mother is Cree, and Mr. Pugliese is a survivor of Indian Residential Schools in North Bay and London, Ontario. Although an adolescent, Mr. Pugliese suffered from depression, and although he has serious mental health problems, including Bipolar Personality Disorder, the Federal Government disputes whether he satisfies the criteria for class membership. He has been diagnosed as a psychopath. He had been convicted of robbery, firearm offences, and first-degree murder and has been incarcerated at Kingston Penitentiary in Ontario, Warkworth Institution in Ontario, Millhaven Institution in Ontario, Collins Bay Institution in Ontario, and Fenbrook Institution in Ontario. In his affidavit, he describes his experiences in prison, his placements in administrative segregation and the nature of the mental health care he received. He describes the effects on him from his experiences while in penitentiary.

• Margo Rivera swore an affidavit dated June 20, 2017 and was cross-examined. She is an Associate Professor and the Director of Psychotherapy in the Department of Psychiatry at Queen’s University at Kingston, Ontario. In 2010, she authored a report for CSC entitled "Segregation ls Our Prison Within the Prison": Operational Examination of Long-Term Segregation and Segregated Inmates with Mental Health Problems. Her 2010 report was appended to her 2017 affidavit.

[161] The Federal Government resisted the motion for summary judgment with the evidence of the following sixteen affiants: (In the description below, warden refers to warden, assistant warden, deputy warden, acting warden, acting assistant warden, etc.)

• Sawinder Bains of White Rock, British Columbia swore an affidavit dated December 1, 2017 and was cross-examined. Mr. Bains began work as a Correctional Officer in 2002 and was promoted to positions of Program Manager, Regional Administrator, Senior Project Manager, Warden, Executive Assistant to Senior Deputy Commissioner, Strategic Advisor and District Director, and Area Director. He is currently the Acting Regional Director, Health Services and the Warden of Fraser Valley Institution for Women in British Columbia.

• Shawn Bird of Prince Albert, Saskatchewan swore an affidavit dated December 1, 2017 and was cross-examined. He began work with the Correctional Service in 1997 in Saskatchewan Penitentiary as a Correctional Supervisor and rose through the ranks to be a warden at Saskatchewan Penitentiary and Okimaw Ohei Healing Lodge in Saskatchewan. He was Executive Director of the Regional Psychiatric Centre – Prairie Region. He is currently the Warden of the Saskatchewan Penitentiary

• Julie Blasko swore an affidavit dated December 7, 2017 and was cross-examined. Ms. Blasko began work with CSC in 1988 in administrative positions and then was promoted to be a warden at Collins Bay Institution in Ontario and to a series of Project Manager or Policy positions at National Headquarters in Ottawa. She is now the warden at Joyceville Institution in Ontario, after serving as Acting Assistant Commissioner of Correctional Operations for the Ontario Region.

• Julie Cobb of Sainte-Anne-des-Plaines, Québec, swore an affidavit dated December 4, 2017. Ms. Cobb is the Warden at Archambault Institution in Québec and began her career at the Correctional Service in 1988. During her career, she has been an Executive Director of a Regional Treatment Centre (“RTC”), a warden, a Unit Manager, a Parole Officer, and a Correctional Officer.

• Patricia Leanne (Anne) Connell swore two affidavits both dated December 1, 2017 and was cross-examined. She is the Senior Project Officer with the Correctional Service. She has a Ph.D. and M.A. in Criminological and Legal Psychology (University of Cambridge, 1991, 1996), and a Bachelor of Arts (Honours, Psychology, Queen's University). She is a Chartered Forensic Psychologist and an Associate Fellow of the British Psychological Society. She has employed by CSC since 1996, and her postings include Psychologist at Frontenac Institution in Ontario and at the RTC-Ontario. She deposed about six inmate case studies about health services for inmates with mental health problems. In her second affidavit, after a review of the CSC files of Messrs. Blais, Mustard, Orsag, and Pugliese, she responded to their affidavits.

• Louise Desjardins swore an affidavit dated December 7, 2017 and was cross-examined. She was a Nursing Project Manager with the Correctional Service. She has a BScN from the University of Ottawa (2005). She began work for CSC in 2010 in the position of Nursing Project Manager. After reviewing their affidavits and their files, Ms. Desjardins responded to the affidavits of Messrs. Brazeau, Chandler, Gismondi, Hastman, Kift, Knight, and Ouimet.

• Graham David Glancy swore affidavits dated December 12, 2017 and December 13, 2017 and was cross-examined. He is an associate professor in the Department of Psychology at the University of Toronto and an assistant clinical professor at McMaster University. He is the co-head of the Division of Forensic Psychiatry at the University of Toronto. He also teaches Trial Advocacy at the Faculty of Law of the University of Toronto. He is a founding member of the PSILEX GROUP, which provides consultation to the legal/medical community, and correctional facilities. He is the co-author of Mental Health and Social Work in Canada, (Oxford University Press, 2010, 2015). He opined on whether, how, and when placement in administrative segregation causes psychological effects and what is the baseline for comparative purposes. He also opined on the reports of Mr. Austin, Dr. Grassian, Mr. Jackson, and Dr. Rivera who provided evidence for Messrs. Brazeau and Kift.

• Mike Hayen of Ottawa, Ontario swore an affidavit dated December 8, 2017 and was cross-examined. He is the manager in the Statistical Data Analysis unit in the Policy Sector at Correctional Service’s headquarters in Ottawa. He manages a team of five analysts who analyze Offender Management System (OMS) data to respond to requests for information about the administration and operation of federal penitentiaries. He graduated from Mount Allison University in 1987 with a B. Comm. (economics). He began work with the Correctional Service in 1988 as an analyst at the Ottawa headquarters.

• Curtis Jackson swore an affidavit dated December 1, 2017 and was cross-examined. He is the Assistant Deputy Commissioner Correctional Operations, Ontario Region. He began his career at the Correctional Service in 2004, and served as a parole officer, parole supervisor, area director, and warden at Millhaven Institution in Ontario, Kingston Penitentiary in Ontario, and Collings Bay Institution in Ontario.

• James D. Livingston swore an affidavit dated December 17, 2017 and was cross-examined. He is an Assistant Professor in the Department of Criminology at Saint Mary's University, an Adjunct Professor in the School of Criminology, Simon Fraser University, and a former Clinical Instructor in the Department of Psychiatry, University of British Columbia. He has a M.A. and a Ph.D. in criminology from Simon Fraser University (2001, 2011) and a B.A. (Hon.) (psychology, 1999) from the University of Prince Edward Island in 1999. He has collaborated with correctional institutions in Australia, England, Ireland, and New Zealand to develop correctional service model in mental health. Dr. Livingston’s report to a Parliamentary Committee became the basis for the Federal Government’s mental health strategy for CSC. Dr. Livingston evaluated the quality of the Correctional Service’s delivery of mental health services.

• Robert D. Morgan swore two affidavits dated December 12, 2017 and was cross-examined. Dr. Morgan is an American psychiatrist and is a Professor, Director and Chair of the Department of Psychological Sciences at Texas Tech University. He has a B.S. (psychology, 1991) from the University of Nebraska at Kearney, a M.S. (clinical psychology, 1993) from Fort Hays State University (Kansas), and a Ph.D. (psychology, 1999) from Oklahoma State University and completed a predoctoral internship in correctional psychology at the Federal Correctional Institution-Petersburg, Virginia in 1998-1999, and a postdoctoral fellowship in forensic psychology at the Department of Psychiatry, University of Missouri-Kansas City School of Medicine and Missouri Department of Mental Health in 1999-2000. He has approximately 20 years of research experience and has authored numerous publications regarding the effects of incarceration on inmates’ mental health functioning and about prison mental health services. Dr. Morgan was retained to opine as to the appropriateness of mental health services provided to six inmates and whether the services were commensurate with professional standards. Dr. Morgan was also a witness in other Canadian proceedings where he deposed about the effects of solitary confinement on the mentally ill.

• Jay Pike swore an affidavit dated December 5, 2017 and was cross-examined. Mr. Pike is currently the Warden of Collins Bay Penitentiary in Ontario. Previously has been a warden Joyceville Institution in Ontario, and Kingston Penitentiary in Ontario. Commencing his employment with the Correctional Service in 1999, he has also been a Correctional Officer, Parole Officer, and a Unit Manager.

• Michael Ryan of Kingston Ontario swore an affidavit dated December 8, 2017 and was cross-examined. Before his retirement from the Correctional Service in 2017, Mr. Ryan was Regional Deputy Commissioner in the Québec Region. Before that posting, in 32 years’ employment with CSC, he held various positions including Deputy Commissioner and Assistant Deputy Commissioner of Ontario, Director General of Security and he was a Warden at several penitentiaries.

• Kevin Sneddon of Ottawa Ontario swore an affidavit dated December 6, 2017 and was cross-examined. Mr. Sneddon has been employed with the Correctional Service since 1995 and is a Regional Deputy Commissioner and Director General Security posted at National Headquarters. He has been a Warden at the Regional Treatment Centre (Ontario), Joyceville Institution in Ontario, Warkworth Institution in Ontario, Collins Bay Institution in Ontario, and Millhaven Institution in Ontario.

• Crystal Thompson of Kingston Ontario swore an affidavit dated December 7, 2017 and was cross-examined. An employee of the Correctional Service since 1993, she is the Executive Director of the Regional Treatment Centre (Ontario). She has been warden at Millhaven Institution in Ontario, Collins Bay Institution in Ontario, Kingston Penitentiary in Ontario, Pittsburgh Institution in Ontario, and the Grand Valley Institution for Women in Ontario.

• Clarence Turgeon of Ottawa, Ontario swore an affidavit dated December 6, 2017 and was cross-examined. In 1986, Mr. Turgeon graduated with a diploma in psychiatric nursing, and he obtained a B.A. in social work in 1998, after which he began his career at the Correctional Service, where he held positions as a psychiatric nurse, a clinical social worker, a program director of the psychiatric rehabilitation unit, a project managers at national headquarters, deputy warden at Regional Psychiatric Centre – Prairies, area director Saskatchewan Parole Services. He has been the Advisor to the Assistant Commissioner Health Services since 2017.

I. The Correctional Investigator of Canada

[162] In this summary judgment motion, Messrs. Brazeau and Kift and their expert witnesses relied on the Correctional Investigator’s reports for the truth of their contents and as evidence of what and when the Federal Government knew about the use and abuse of administrative segregation and about what the Federal Government did or did not do as a result of what they knew about the effects of administrative segregation on the physical and mental health of inmates in federal penitentiaries. They rely on the Correctional Investigator’s reports for proof of the facts about administrative segregation and its effects on seriously mentally ill inmates who are placed in either administrative segregation or disciplinary segregation.

[163] Pursuant to sections 158 to 196 of the Corrections and Conditional Release Act, the Governor in Council may appoint a person to be known as the Correctional Investigator of Canada (CCRA s. 158). The function of the Correctional Investigator is to conduct investigations into the problems of offenders related to decisions, recommendations, acts or omissions of the Commissioner or any person under the control and management of, or performing services for or on behalf of, the Commissioner that affect offenders either individually or as a group. (CCRA s. 167).

[164] In the course of an investigation, the Correctional Investigator may hold a hearing and make inquiries as he or she considers appropriate, but no person is entitled as of right to be heard by the Correctional Investigator (CCRA s. 171). In the course of an investigation, the Correctional Investigator may require any person to furnish information and documents (CCRA s. 172) and may summon and examine persons under oath (CCRA s. 173). The Correctional Investigator may, on satisfying any applicable security requirements, at any time enter any premises occupied by or under the control and management of the Commissioner and inspect the premises and carry out therein any investigation or inspection. The Correctional Investigator’s authority to make findings, reports and recommendations is set out in sections 175-181 of the Act.

[165] The Correctional Investigator may on his or her own initiative investigate the implementation of administrative segregation and disciplinary segregation, and as the discussion below will reveal, the Correctional Investigator has done so on several occasions and made recommendations to the Commissioner.

[166] Annually, the Correctional Investigator is obliged to submit a report to the Minister about the Correctional Investigator’s activities. The report is submitted to Parliament (CCRA s. 192). Pursuant to s. 196 of the Act, some Correctional Investigator’s reports are confidential and protected by Crown Privilege.

[167] The Correctional Investigator prepares its annual and special reports through direct access to the Correctional Services staff, facilities, and records.

[168] The office of the Canadian Federal Correctional Investigator was established in 1973, and the Correctional Investigator at the time of the enactment of the Corrections and Conditional Release Act was Ronald R. Stewart, who had been appointed to office in 1977 under the old legislation. Mr. Stewart served until October 2004. He was succeeded by Howard Sapers, a lawyer, politician, and civil servant, who was appointed the Correctional Investigator in April 2004. Mr. Sapers served until November 2016, when he resigned to take office as the Independent Advisor on Corrections Reform to the Ontario provincial government. Dr. Ivan Zinger, a lawyer, adjunct law professor, civil servant with a Ph.D. in psychology of criminal conduct is the current Correctional Investigator, having been appointed in 2016. Dr. Zingler’s thesis and published paper was one of the reports considered by the expert witnesses in the immediate case

J. The Correctional Investigator’s Reports

[169] There is no genuine issue that the Correctional Investigator’s Reports are admissible for having been made and having been received by the Federal Government, which is relevant evidence, at least, with respect to the claims for Charter and punitive damages, which claims turn, in part, on what the Federal Government knew and when it knew it. As I shall describe below, the Correctional Investigator’s investigations and reports are part of the factual narrative of Messrs. Brazeau and Kifts’ claim against the Federal Government.

[170] However, Messrs. Brazeau and Kift also rely on the Correctional Investigator’s Reports as proof of as admissions by the Federal Government of the truth of the report’s factual assertions and conclusions.

[171] The Federal Government disputes that the Correctional Investigator’s Reports are admissions or that the reports are admissible for the truth of their contents. The Federal Government makes the categorical assertion that the reports are not admissible for the truth of their contents.

[172] I disagree. In my opinion, depending on the material issue, the Correctional Investigator’s may be relevant and admissible evidence.

[173] The relevance and admissibility of the reports depends upon what material issue is being addressed, and as I have already noted, independent of the truth of their contents, the Correctional Investigator’s Reports are relevant and admissible with respect to several issues associated with the knowledge and activities of the Correctional Service and the Federal Government and with respect to the factual narrative of Messrs. Brazeau and Kifts’ claims on behalf of the Class Members.

[174] Thus, for some issues, the Correctional Investigator’s Reports are admissible simply for having been made and provided to the Federal Government, and for some issues, the delivery of a report from the Correctional Investigator is part of the factual narrative. Further, some of the factual content of the Correctional Investigator’s Reports is uncontroversial and much of their factual content is confirmed by the evidence of other witnesses who were directly involved in the management of penitentiaries and of administrative segregation.

[175] It is true that some of the factual content of the Correctional Investigator’s Reports is hearsay, and while I agree with the Federal Government’s submission that the Correctional Investigator’s comments cannot be treated as admissions made by the Federal Government,[^39] nevertheless, in my opinion, much of the hearsay statements made by the Correctional Investigator are admissible for the truth of the hearsay’s content pursuant to the principled approach to hearsay exceptions[^40] or pursuant to the public document exception to the rule against hearsay.[^41]

[176] Thus, depending on the issue, I shall admit the Correctional Investigator’s Reports as relevant evidence and depending on the issue, I shall treat the report as proof of the truth of its content. Where the Correctional Investigator expresses a legal argument or a conclusion on a legal issue, I shall come to my own conclusion about the matter.

K. The Battle of the Experts

[177] Messrs. Brazeau and Kift supported their summary judgment motion with expert evidence from Drs. Austin, Chaimowitz, Grassian, Haney, Rivera, and from Professors Jackson and Mendez. The Federal Government supported their defence of the summary judgment motion with expert evidence from Drs. Glancy, Livingston, and Morgan.

[178] I find as a fact that all of the experts are qualified to provide expert evidence and they all provided some relevant and informative evidence. I am not persuaded by the arguments respectively made that Dr. Glancy, Dr. Haney, and Professor Jackson should be disqualified because of partisanship.

[179] However, I place very little weight on Dr. Glancy’s review and analysis of the academic literature or on his opinion about the psychiatric effects of solitary confinement. His review of the literature was unreliable and methodologically unsound, and the evidence of Messrs. Brazeau and Kifts’ experts persuaded me that Dr. Glancy’s opinion about the effects of administrative segregation was not sound.

[180] Among other problems, Dr. Glancy relied heavily on a research assistant who was not trained in scientific research, and he relied on research studies that were not pertinent or that had very serious methodological problems with ultimately unintelligible data and findings. In his review, Dr. Glancy relied on scientists who might be taken to be supporters of the use of administrative segregation as a therapy for some mental illness, which is absurd. Administrative segregation exacerbates and causes mental illness and is not a cure for anything. Dr. Glancy’s analysis of the academic literature was flawed, and he failed to note the problems in the studies he relied on, and in other respects, he misread the literature.

[181] Dr. Morgan was retained to give evidence about the quality of psychiatric care for inmates in administrative segregation, and he was not actually called to give evidence about his own research on the effects of administrative segregation or about his own meta-analysis of the academic literature made in a review article entitled Quantitative Synthesis of the Effects of Administrative Segregation on Inmates’ Well Being.[^42] Nevertheless, Dr. Morgan was extensively cross-examined on this work and heavily critiqued by Drs. Grassian and Haney for his review article.

[182] The heavy criticism followed, in part, because Dr. Glancy had relied on Dr. Morgan’s studies and so the rebuttal to Dr. Glancy also involved a substantial refutation of Dr. Morgan’s meta-analysis. Once again, for the same reasons that I give very little weight on Dr. Glancy’s review of the academic literature or to his opinion about the psychiatric effects of solitary confinement, I do not give much weight to Dr. Morgan’s meta-analysis conclusions. In cross-examination, while Dr. Morgan defended his research, he also conceded that Dr. Glancy’s opinions derived from the meta-analysis were incorrect.

[183] Dr. Haney’s and Dr. Grassian’s reviews of the academic literature were far more persuasive as were their opinion about the effects of administrative segregation on inmates generally and mentally ill inmates in particular. Their reports and conclusions were based on personal extensive research. Their opinions were consistent with the academic literature and with the overwhelming consensus positions of the professional organizations that have taken positions about the effects of solitary confinement. Their opinions were also consistent with the experiential evidence of Messrs. Brazeau and Kifts’ affiants who had personally experienced administrative segregation.

[184] However, even with respect to Dr. Glancy or Dr. Morgan, on many issues, the opinions of the rival experts were in accord or not that far apart. During the argument and in the competing factums, it was ironic that an opponent’s experts’ evidence was frequently relied on at the same time as submissions were made that the expert’s evidence should be rejected.

[185] As the discussion below will reveal, I do not reject the totality of the evidence of any of the witnesses. However, some of the opinions expressed or parts of the opinions expressed were not persuasive and I accorded them less weight or no weight.

[186] It will become apparent from the discussion below, what opinions I found persuasive. I foreshadow to say that it was the opinions of Messrs. Brazeau and Kifts’ expert witnesses that persuaded me about the adverse effects of administrative segregation on mentally ill inmates who are placed in administrative segregation. For present purposes, I need only add that while the battle of the experts raised genuine issues, none of them required a trial to resolve.

L. Messrs. Brazeau and Kifts’ Expert Evidence.

1. Overview

[187] As already noted above, Messrs. Brazeau and Kift supported their summary judgment motion with expert evidence from Drs. Austin, Chaimowitz, Grassian, Haney, Rivera, and from Professors Jackson and Mendez.

[188] Messrs. Brazeau and Kift submitted that their expert evidence established that:

a. It is widely accepted by experts and by reputable professional organizations in the medical community that mentally ill prisoners should not spend any time in solitary confinement because it is not a therapeutic setting and is harmful to the inmates’ mental health and to their treatment for their mental health problems.

b. Mentally ill prisoners are psychologically harmed by any time spent detained in solitary confinement. Solitary confinement denies the seriously mentally ill the treatment they require, and solitary confinement poses a particularly acute harm to the seriously mentally ill, who comprise the class in the immediate case.

c. The Federal Government's policies and practices, including the recent changes to CD 709, regarding administrative segregation fall below the accepted standard for this type of confinement because the Federal Government does not exclude serious mentally ill inmates from solitary confinement.

d. The Federal Government's policies and practices regarding solitary confinement fall below the accepted standard because the Federal Government has never placed a limit on the time an individual can spend in solitary confinement

e. The Federal Government's policies and practices regarding solitary confinement fall below the accepted standard because the Federal Government has never implemented reasonable and independent checks involving psychiatrists or other staff on the front-end admission process to solitary confinement, leaving excessive discretion with non-medically trained prison personal.

f. The Federal Government's policies and practices regarding solitary confinement fall below the accepted standard because the Federal Government’s ongoing reviews of those serving time in solitary confinement lack particularity or thoroughness and fail to ensure meaningful and medically substantive reviews of the inmates’ mental health.

2. James Austin

[189] Dr. Austin's opinion was that the placement of any inmate with mental illness into administrative segregation is inappropriate and should be forbidden in policy and practice, which was the situation in many states in the United States. He said that the prison authorities with which he had worked in the United States had made a concerted effort to remove all inmates with severe mental health orders from administrative segregation units, which he said should not be confused with protective custody units, where with same rights as inmates in the general population, inmates are housed for their own protection.

[190] Dr. Austin said that before any inmate is admitted to segregation, they should be screened by a psychiatrist to ensure placement will not cause psychiatric harm. He opined that if an inmate already suffers from serious mental illness, then he or she should never be placed in solitary confinement.

[191] Dr. Austin stated that it appeared that some of the inmates placed in administrative segregation by the Correctional Service would by inmates that in the United States would be placed in protective custody rather than in administrative segregation. He opined that inmates who are seeking protection from other inmates should be assigned to a protective custody unit and not a punitive administrative segregation unit and that protective custody units should provide, as much as possible, the same privileges afforded prisoners in the general population.

[192] Dr. Austin opined that before and after the August 2017 changes to CD 709, the Correctional Service’s policies were sub-standard because they did not include independent scrutiny in the form of an independent review, typically by a board at a central office with the assistance of a psychiatrist’s report. He said that Correctional Service left too much discretion to inadequately trained prison personnel.

[193] Dr. Austin said that the review made by the Correctional Service after a placement in administrative segregation was deficient. He said visits without a detailed procedure were not meaningful or productive. He said a psychiatrist should be making the assessment and re-assessment of inmates in administrative segregation.

3. Gary Chaimowitz

[194] Dr. Chaimowitz said that he had personally seen the detrimental effects of solitary confinement and although he recognized that security risk issues are a priority for the Correctional Service, placements in administrative segregation of a mentally ill inmate without treatment can produce long-lasting adverse psychiatric effects. It was his clinical opinion that symptom can intensify the longer the duration of the confinement. He said that if a mentally ill inmate is placed in administrative segregation, then he or she should receive adequate psychiatric care within one day and a determination should be made whether the inmate can receive adequate psychiatric treatment in the correctional facility or whether the inmate should be transferred to an acute mental health service.

[195] Dr. Chaimowitz's opinion was that solitary confinement for more than fifteen days posed a serious risk of psychological harm to an inmate and that the placement in segregation cells of mentally ill inmates without adequate psychiatric treatment can produce long-lasting negative psychological effects.

[196] He stated that inmates in administrative segregation would not have the appropriate level of psychiatric treatment. He said that apart from the occasional need briefly to place a highly agitated and violent inmate in segregation, there are no other situations that would justify placing a mentally ill person in administrative segregation without providing active psychiatric treatment. He, therefore, said that solitary confinement was inappropriate for those suffering from acute mental illness.

[197] He opined that although there is some idiosyncratic variation, the majority of individuals in solitary confinement, suffer significant negative psychological consequences. He opined that Class Members would invariably all suffer serious harm as a result of being placed in solitary confinement. He opined that the administrative segregation of mentally ill inmates without psychiatric medical care can have long-lasting negative psychological effects.

[198] Dr. Chaimowitz said that his own clinical experience corresponded with the overwhelming consensus of mental health professionals that extended periods of solitary confinement was deleterious and caused and exacerbated mental illness.

[199] Dr. Chaimowitz opined that given the medical certainty of common damages, a base level of damage would be suffered by every member in the class. In his view, damages above the base level could be quantified by two factors: (1) the length of time in solitary confinement; and, (2) the severity of symptoms of the mental illness as ranked using Global Assessment of Functioning Score (GAF Score) which ranks severity between 0-100.

[200] In other words, it was Dr. Chaimowitz’s opinion that a damages graph could be developed with the severity of illness on the x-axis of the graph and the length of time in administrative segregation on the y-axis of the graph. In his opinion-letter report, he stated:

If the prisoner was in solitary confinement, they would suffer some harm. The longer they are in solitary confinement, the more severe the harm. Hence on the length of time in axis (variable) would be the length of in solitary confinement. The Court could also take into account the increasing time in solitary confinement as double the time may necessitate an exponential increase in damages assigned. This is because the harm increases.

So, in summary, the methodology I would recommend to arrive at an assessment of damages for class members would place the level of illness on the one axis and the length of time in solitary confinement on another axis. Points would be given in ranking the class members under Global Assessment of Functioning on the one scale versus the length of time in solitary confinement.

The courts would then be able to assign a value to the damages that each individual sustains by this methodology. The group can be defined as indicated, and the two variables would provide an ultimate value of damage.

[201] Dr. Chaimowitz reviewed the revised CD 709 issued in August 2017, and he opined that too much discretion remains with the Correctional Service. He opined that it was possible that inmates with major mental disorders would be placed in administrative segregation, notwithstanding the need for hospital treatment. He said removal from segregation still depended on the discretion of Correctional Service staff as opposed to being based on a clinical assessment of the extent of the inmate’s psychiatric health.

[202] Dr. Chaimowitz said that the 2017 version of CD 709 failed to prevent a “revolving door” where a person becomes acutely symptomatic after being placed in administrative segregation, is released for treatment, returned to the general population, but then the process repeats itself with another placement in administrative segregation.

4. Stuart Grassian

[203] Dr. Grassian stated that it has long been known that the severe restriction of environmental and social stimulation associated with solitary confinement has a profoundly deleterious effect on mental functioning. Numerous researchers, including himself, have observed and reported that after even a relatively brief period of time in such a situation, an individual will begin to descend into a mental torpor - a "fog" - in which alertness, attention and concentration all become impaired. These impairments can become severe enough to result in massive confusion and disorientation. After a relatively short period of time but intensifying over time, a person in conditions of solitary confinement will experience impairments and disturbances in thinking, thought content, concentration, and memory. He or she will become hyper-responsive and sensitive to external stimulation and may experience perceptual distortions, illusion, and hallucinations. He or she will experience affective disturbances including anxiety, depression, panic attacks, impulse control, and paranoia.

[204] He deposed that adverse health effects can occur after only a few days and the risk of harm is acute for mentally ill inmates. He said that where the placement in segregation is indeterminate and the inmate does not know when he or she will be released, the harm of the placement is intensified. He said that while not all individuals will become serious ill after fifteen days of solitary confinement, all will suffer greatly as a consequence of experiencing it.

[205] Dr. Grassian’s opinion was that administrative segregation exacerbates pre-existing mental illness, is harmful and is a counter-productive treatment for mentally ill inmates. He said that persons with serious mental illness have poor and primitive means of copying with stress and are less resilient in the face of psychiatric stress. The already mentally ill are more readily symptomatic; more severely symptomatic and their functioning and behavior becomes more impaired by stress. He stated that the mentally ill will suffer more, and more permanent psychiatric harm from any psychiatric stress. The risks of harm from segregation are greater for inmates with mental illness.

[206] In his reports, Dr. Grassian incorporated his 2006 article published in the Washington University Journal of Law & Policy,[^43] which concludes as follows:

The restriction of and social isolation associated with confinement in solitary are strikingly toxic to mental functioning, producing a stuporous condition associated with perceptual and cognitive impairment and affective disturbances. In more severe cases, inmates so confined have developed florid delirium -a confusional psychosis with intense agitation, fearfulness, and disorganization. But even those inmates who are more psychologically resilient inevitably suffer severe psychological pain as a result of such confinement, especially when the confinement is prolonged, and especially when the individual experiences this confinement as being the product of an arbitrary exercise of power and intimidation. Moreover, harm caused by such confinement may result in prolonged or permanent psychiatric disability, including impairments which may seriously reduce the inmate's capacity to reintegrate into the broader community upon release from prison.

Many of the prisoners who are housed in long-term solitary confinement are undoubtedly a danger to the community and a danger to the corrections officers charged with their custody. But for many they are a danger not because they are coldly ruthless, but because they are volatile, impulse-ridden, and internally disorganized. As noted earlier in this statement, modem societies made a fundamental moral division between socially deviant behavior that was seen as a product of evil intent, and such behavior that was seen as a product of illness. Yet this bifurcation has never been as simple as might at first glance appear. Socially deviant behavior can in fact be described along a spectrum of intent. At one end are those whose behavior is entirely "instrumental"-ruthless, carefully planned, and rational; at the other are individuals whose socially deviant behavior is the product of unchecked emotional impulse, internal chaos, and often psychiatric or neurological illness.

It a great irony that as one passes through the levels of incarceration-from the minimum to the moderate to the maximum-security institutions, and then to the solitary confinement section of these institutions-one does not pass deeper and deeper into a subpopulation of the most ruthlessly calculating criminals. Instead, ironically and tragically, one comes full circle back to those who are emotionally fragile and, often, severely mentally ill. The laws and practices that have established and perpetuated this tragedy deeply offend any sense common human decency.

[207] Dr. Grassian opined that the circumstances of administrative segregation made it impossible for a medical practitioner to be able to diagnose and provide appropriate psychiatric care. He said that the availability of television, books, exercise and other stimuli without meaningful human interaction did not ameliorate the experience of solitary confinement. He said that the harmful effects of solitary confinement have been recognized since the later part of the 19^th century.

[208] Dr. Grassian severely critiqued Dr. Glancy and Dr. Morgan’s analysis of the academic literature and their opinions that there were no ill effects of solitary confinement. He stated that they ignored or unjustifiably disregarded relevant literature and that the reports that they relied on were irrelevant or fundamentally flawed methodologically.

5. Craig Haney

[209] Dr. Haney’s opinion was based on forty years of personal research on evaluating conditions of isolated prison confinement. He said that his conclusions were observational and empirical based on data that he collected from his inspections of isolation units. Dr. Haney also reviewed the academic literature on the psychological impacts of solitary confinement. Dr. Haney was asked to review the reports of Dr. Glancy and Dr. Morgan.

[210] Dr. Haney’s deposed that administrative segregation was a type of solitary confinement and that the practice of administrative segregation in Canada was within the internationally accepted definition of solitary confinement, known as the Mandela Standard.

[211] Dr. Haney stated that the overwhelming consensus of the academic literature was that isolation was harmful. He said that there was a consensus that: (a) the duration that a person is exposed to solitary confinement must be kept to an absolute minimum; (b) the risks of harm are so great that solitary confinement should be used only when it is absolutely necessary and as a last resort; and (c) the added risk of harm to vulnerable groups or individual prisoners means that they should be exempted entirely from prolonged solitary confinement.

[212] Dr. Haney said that the experience of solitary confinement is not only painful but also places prisoners at significant risk of serious psychological harm and of risk self-harm and suicide. He said that to be harmful, solitary confinement does not require complete isolation from human contact without books, TV or outside time. His opinion was that the the scientific literature, as well as his own research indicated that isolation creates a significant risk of serious psychological harm and that the harm is worse for prisoner’s suffering from pre-existing vulnerabilities, such as mental illness. He said that the risks of psychological harm increased as a function of the duration of the isolation and that when the duration of segregation is indeterminate, the suffering of the inmate is severe. He said that the data showed that after between thirty to sixty days of isolation segregated prisoners were in psychologically worse condition and declining on most measures of their mental health.

[213] He said that while the risks of psychological harm do depend in part on the personality of the inmate, mentally ill prisoners are generally more vulnerable to psychological stressors and prolonged segregation of inmates with serious mental illness with rare exceptions should be avoided due to the potential of severe, long-lasting, even permanent harm and in some instances suicide.

[214] He stated that virtually every study had documented that all isolated prisoners suffer from their confinement and are exposed to serious psychological harm and the harms are far greater and dangerous for mentally ill prisoners. In his opinion, he stated:

More recent studies have identified other symptoms that appear to be produced by those conditions. Those symptoms include: appetite and sleep disturbances, anxiety, panic, rage, loss of control, paranoia, hallucinations, and self-mutilation. Moreover, direct studies of prison isolation have documented an extremely broad range of harmful psychological reactions. These effects include increases in the following potentially damaging symptoms and problematic behaviours: anxiety, withdrawal, hypersensitivity, ruminations, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, rage, paranoia, hopelessness, a sense of impending emotional breakdowns, self-mutilation, and suicidal ideation and behavior.

Not every prisoner housed in solitary-type confinement will suffer all of these adverse psychological reactions. However, the nature and magnitude of the negative psychological reactions that I have documented in my own research and that have been reported by others in the literature underscore the stressfulness and painfulness of this kind of confinement, the lengths to which prisoners must go to adapt and adjust to it, and the risk of harm that it creates. The potentially devastating effects of these conditions are reflected in the characteristically high numbers of suicide deaths, and incidents of self-harm and self-mutilation that occur in many of these units.

[215] In his report, in the context of critiquing a 1999 study by Dr. Ivan Zinger, which focused on Canadian penitentiaries, Dr. Haney discusses the significance of an inmate volunteering to be placed in solitary confinement and how data about the effect of solitary confinement can be skewed by co-mingling data from voluntary and involuntary placements. He stated:

[…] Of course, people who choose to be in administrative segregation (and who were presumably relieved to be in “safekeeping”) would not be expected to report suffering to prison authorities. There are usually comparative few “voluntary” prisoners in solitary confinement or administrative segregation units and, because of their especially complicated situation (i.e., they not only want to be there but are fearful of being returned to the mainline prison housing units for which they came), are typically not the focus of most of the studies that have been done of isolated prisoners. They certainly cannot and should not be lumped together in studies of adverse psychological effects of isolation.

An additional issue with the study is that, although Zinger was relatively terse about the actual conditions of confinement that in the Ad Seg units that he studied (aside from the dry reporting of cell dimensions, etc.), he did mention the recommendations of a Canadian Task Force at the time that suggested making the country's Ad Seg units much tougher because too many prisoners were actually "requesting segregation. It is impossible from the written to know why so many Canadian prisoners were "requesting segregation" at the time, and Dr. Zinger did not discuss the issue at further length. It seems possible, however, that this "preference" for administrative segregation was caused by especially onerous, dangerous conditions inside Canadian mainline prisons, ones from which prisoners wanted to escape by entering administrative segregation. If so, the prisoners "relief” from escaping even more dangerous mainline prison conditions would mask the psychological pains of isolated confinement and their apparent "preference" for administrative segregation would mean only that they preferred the relative safety of isolation to even worse conditions elsewhere in the Canadian prison system. It would be a measure of how frightening and intolerable mainline conditions were, a demonstration that administrative segregation was not equally or more harmful (but in ways that might have been difficult for frightened prisoners to recognize or acknowledge given the more tangible threats they faced in the dangerous mainline prisons from which they had come. The point is that the fact that Canadian prison officials were concerned about the fact that too many prisoners were “volunteering” to go into otherwise harsh units that most prisoners try to avoid is something that might have affected the results that Zigler obtained and required a more extended discussion and explanation. None was provided.

[216] Dr. Haney said that depriving people of normal social contact and meaningful social interaction over long periods of time can damage or distort their social identities, destabilize their sense of self and, for some, destroy their ability to function normally in free society. He said that prisoners may develop habits, tendencies, perspectives, and beliefs that are difficult or impossible to relinquish once they are released. It was his view that over time the social deprivations of isolation caused a social pathology.

[217] Dr. Haney stated that penal practices have changed to lessen the reliance on segregation. He testified that many states in the U.S. have significantly reduced solitary confinement and completely excluded the mentally ill from solitary confinement.

[218] Dr. Haney was very critical of the Dr. Glancy’s report and on his reliance on four studies namely: (1) a 1982 study lead by Dr. Peter Sudenfeld; (2) the 1999 study by Dr. Ivan Zinger, which focused on Canadian penitentiaries; (3) a 2010 study lead by Maureen O’Keefe, often referred to as the "Colorado Study;" and a 2016 meta-analysis review lead by Dr. Morgan, one of the Federal Government’s witnesses in the immediate case.

[219] In his report, Dr. Haney, at some considerable length, explained why methodologically these four studies were fundamentally flawed and why their data was unreliable and essentially uninterpretable or meaningless. Moreover, Dr. Haney said that the conditions of solitary confinement studied in the Colorado Study were different than the conditions of administrative segregation in Canada. Further, Dr. Haney said that Dr. Glancy's literature review omitted significant important studies and that Dr. Glancy’s opinion for the Federal Government could not be trusted.

6. Michael Jackson, Q.C.

[220] Professor Jackson, who has over four decades of experience studying Canadian penitentiaries, said that notwithstanding the denials and protestations of the Correctional Service, administrative segregation was a form of solitary confinement.

[221] Professor Jackson, who had interviewed hundreds of prisoners in the segregation unit of Kent Maximum-Security Institution and other penitentiaries, said that the essential elements of the accepted definition of solitary confinement fit the reality of administrative segregation and that the Correctional Service’s denials were based upon a formulaic recitation of provisions in the Corrections and Conditional Release Act that extended rights and protections to inmates, but, he said that the quotidian reality was that inmates’ experience was the experience of solitary confinement.

[222] Professor Jackson’s opinion was that the use of administrative segregation for extended periods of time had a detrimental impact on the wellbeing of inmates. It was his opinion that segregation of the Class Members aggravated their pre-existing conditions, unnecessarily compounded the pains of imprisonment, limited inmates’ access to appropriate psychological or psychiatric care, interfered with their abilities to interact positively with staff and other prisoners, and undermined their already difficult journey to safe reintegration into the community outside the penitentiary.

[223] Professor Jackson testified that the disapproval and criticism of administrative segregation made by the Honourable Louise Arbour acting as a commissioner in 1996 in the Commission of Inquiry into Certain Events at the Prison for Women in Kingston (Arbour Commission) were repeated again by the Task Force Task Force on Segregation in 1996-1997. He deposed that the systemic problems identified in the Task Force’s report were also identified again in the 2010 report of Dr. Margo Rivera and that the problems continue to this day.

[224] It was Professor Jackson’s opinion that the attempts at reform by the Correctional Service have been inadequate to effect substantive change. With respect to the 2015 CD 709, he stated:

As a comprehensive reform the new Commissioner's Directive falls short of the recommendations that both I, the Arbour Commission, and the Correctional Investigator have made; more specifically, they do not provide for the independent adjudication of all administrative segregation cases, do not prohibit the segregation of mentally ill offenders and do not place limited on the amount of time that offence can spend in segregation. […]

[225] With respect to the changes made in August 2017 to CD 709, Professor Jackson's opinion after reviewing the draft was that:

In my opinion the prohibition on placing mentally ill prisoner based on the best evidence available to correction authorities, should have been entrenched in law many decades earlier and had it been, it is likely that prisoners within the class of prisoners defined in the Fresh as Amended Statement of Claim may have been spared the pains of a punishment that Charles Dickens in 1842 denounced 'as a secret punishment which slumbering humanity is not roused to stay.

7. Juan E. Mendez

[226] In his 2011 Report to the United Nations, Professor Mendez stated that solitary confinement reduces meaningful social contact to an absolute minimum and that the consequence is an insufficient stimulus and the inmate cannot maintain a reasonable state of mental health. He said these consequences had been confirmed by research that indicated that when a person is deprived of sufficient social stimulus, he or she becomes incapable of maintaining alertness and attention and that within even a few days brain activity becomes abnormal.

[227] Professor Mendez testified that the internationally accepted definition of solitary confinement, known as the Mandela Standard, is the confinement of prisoners for twenty-two hours or more a day without meaningful human contact. The Nelson Mandela Rules defines prolonged solitary confinement as any period of solitary confinement in excess of fifteen consecutive days.

[228] Professor Mendez said the Mandela Standards dates back to 1955, and he said that the most recent Mandela Standards reflect up-to-date minimum international law standards for the treatment of prisoners and for prison administration concerning accommodation, medical services, discipline, punishment, and solitary confinement. He noted that Rule 43 of the Mandela Rules prohibits indefinite solitary confinement and prolonged solitary confinement, defined as a period exceeding fifteen days. Rule 45 provides that solitary confinement shall be used in exceptional cases as a last resort and should be subject to an independent review. Rule 45 also prohibits solitary confinement in the case of prisoners with mental or physical disabilities when the confinement would exacerbate their disabilities.

[229] Professor Mendez said that even though solitary confinement may be cruel, segregation can be used in exceptional circumstances under strict regulation to protect the institution, staff or inmates.

[230] Professor Mendez deposed that for solitary confinement to not be considered cruel and inhuman, the practice must meet the following standards: (a) it should not be imposed as a means or modality of execution of a sentence; (b) it may legitimately be used as a disciplinary sanction for the more serious breaches of prison discipline, and then for a definite term and after a hearing with meaningful opportunity to challenge the decision; (c) it may not be imposed on the basis of an administrative determination of status of the inmate as dangerous in the absence of specific illegal behavior on the inmate's part that breaches prison regulations; (d) it must be subject to review and controls and safeguards, both internal and external, especially of a medical nature, that are frequent (i.e., daily), impartial, independent and professional enough to prevent serious mental or physical pain and suffering; (e) it must never be imposed for an indefinite or prolonged period (defined as a period exceeding fifteen days), and the length of time spent in isolation should be limited so that it does not inflict severe pain or suffering on the inmate; (f) it must never be imposed, for any duration, on children, pregnant women, or persons with a psycho-social disability.

[231] Professor Mendez opined that administrative segregation as practiced by the Federal Government violates minimum international standards because: (a) there is no limit on confinement beyond fifteen days; (b) there is no prohibition on the confinement of those with mental disabilities; and (c) administrative segregation is comparable to disciplinary segregation without any of the due process afforded to punitive segregation.

[232] He said as practiced by the Federal Government, administrative segregation was cruel, inhuman and degrading treatment. Further, it was torture to place an inmate in solitary confinement as a result of behaviour that is symptomatic of his or her mental illness and must be prohibited. Here it may be noted that Messrs. Brazeau and Kift submit that Mr. Kift’s second placement in solitary confinement was an example of Corrections Canada torturing an inmate because Mr. Kift conduct of hoarding pills was a symptom of his mental illness and lead to his placement.

[233] Professor Mendez suggested that the Federal Government’s placement of mentally ill inmates in administrative segregation violated the United Nations’ Convention against Torture. However, under cross-examination, Dr. Mendez agreed that, under the Convention there are four possible purposes of torture: (1) to obtain information or a confession from an inmate or third person; (2) to punish an inmate or a third person for an act they are alleged to have committed; (3) to intimidate or coerce an inmate or third person, and (4) for any discriminatory basis where the torture is inflicted at the instigation, consent, or acquiescence of a public official. He conceded that the Correctional Service did not use administrative segregation for the first, second, or third purposes but he asserted that Correctional Services resorts to administrative segregation for certain inmates simply because they suffer from mental disabilities or psychological disabilities.

[234] Professor Mendez, who did not look at any individual cases in Canadian penitentiaries, had no evidence to support his assertion and there was no evidence that on a class-wide basis, the Correctional Service tortures Class Members as a form of discrimination tortures inmates that are Class Members. I, therefore, do not accept Professor Mendez’s opinion on the matter of torture under the United Nations’ Convention against Torture.

8. Margo Rivera

[235] Dr. Rivera was called as a witness for Messrs. Brazeau and Kift. She had previously done consulting work for the Correctional Service. As noted above, in 2010, she was retained by Correctional Service to prepare a report reviewing administrative segregation in federal prisons. Her report was entitled Within the Prison: Operational Examination of Long-Term Segregation and Segregation Placements of Inmates with Mental Health Concerns in the Correctional Service of Canada.

[236] To prepare her report, Dr. Rivera examined the experiences of seventy-eight men and six women inmates who resided in long-term administrative segregation units in ten correctional facilities. She also interviewed and examined the experiences of the correctional staff.

[237] Dr. Rivera found that 46% of the placements in administrative segregation were voluntary and 54% of the placements were involuntary, the majority of which were placements because the inmate was jeopardizing the safety of themselves, others, or the institution. A smaller number of placements were to facilitate the investigation of an incident.

[238] In her 2010 report, she stated that: (a) inmates with serious mental issues were being harmed by administrative segregation; (b) Correctional Service staff indicated that they needed a higher level of education about mental health; and (c) the shortage of psychologists meant that that they were unable to deliver more than assessment services and crisis management.

[239] Dr. Rivera recommended that: (a) the number of inmates in solitary confinement be reduced; (b) before an inmate can be admitted to segregation, a staff member, who may be a mental health nurse, elder or psychologist, should be involved in the process; (c) protocols be developed for the prevention of and assessment of "isolation syndromes"; and (d) Correctional Service should improve recruitment and retention of psychologists to ensure those in segregation can access treatment.

[240] Dr. Rivera said that there were better alternatives to administrative segregation and that salutary effects could be obtained if prisoners were separated otherwise than in solitary confinement. Dr. Rivera opined that alternatives such as increasing the level of intervention by mental health professionals, engaging in dynamic security, or creating day programs could also be used to address the problems associated with the segregation of inmates.

M. The Federal Government’s Expert and Correctional Service Evidence.

1. Overview

[241] As noted above, the Federal Government supported their defence of the summary judgment motion with expert evidence from Drs. Glancy, Livingston, and Morgan. The Federal Government’s expert evidence was closely connected to the evidence given by the witnesses from the Correctional Service that reported on the administration of federal penitentiaries and related institutions. Based on this evidence, the Federal Government submitted that administrative segregation is not solitary confinement because inmates have daily opportunities for meaningful human contact.

[242] The Federal Government submitted that the psychological effects of segregation on inmates remain the subject of ongoing and vigorous scientific debate, and it disagreed with the categorical assertions of Messrs. Brazeau and Kift that administrative segregation was always harmful for the seriously mentally ill or that Class Members should never be placed in administrative segregation.

[243] The Federal Government denied that administrative segregation adversely affects inmates to the extent as alleged by Messrs. Brazeau and Kifts’ expert witnesses and by the inmates that swore affidavits. It submitted that the idiosyncratic circumstances of each placement meant that it was not true that administrative segregation was harmful to all Class Members.

[244] Through its experts, the Federal Government submitted that maintaining institutional security and inmate and staff safety is a complicated task, and that administrative segregation is a necessary and appropriate tool. It submitted that while there were on an individual basis Charter breaches, it could not be categorically asserted that the Charter rights of the Class Members had been violated. The Federal Government submitted that the expert evidence and the evidence of the Correctional Service representatives revealed that administrative segregation did not contravene the Class Members’ Charter rights.

2. Graham David Glancy

[245] For the reasons expressed earlier, I do not place significant weight on the evidence of Dr. Glancy where it conflicts with the evidence of other expert witnesses.

[246] It was Dr. Glancy’s opinion that most inmates, with or without mental illness, do not automatically deteriorate or decompensate by a placement in administrative segregation. Dr. Glancy said that the O’Keefe study and his own research revealed that segregated inmates with mental illness may be quite psychologically disturbed upon admission to segregation, however within a short time, they tend to improve and stabilize. He said that it is an extremely rare case to have somebody decompensate as a result of their placement in segregation. It was Dr. Glancy’s opinion that solitary confinement is not universally damaging or intolerable.

[247] After identifying what he regarded as reliable academic studies, Dr. Glancy reviewed the academic literature and concluded that Dr. Morgan’s 2016 meta-analysis was the most comprehensive analysis of research to determine if administrative segregation had an effect on the physical and mental health functioning of inmates.

[248] Dr. Glancy agreed with Dr. Morgan that the O’Keefe and Zinger studies were significant studies and amongst few studies that had sound methodologies. Dr. Glancy reported that Dr. Morgan’s conclusion was that the research did not support the propositions that administrative segregation produced lasting psychiatric damage.

[249] As already noted above, I did not find Dr. Glancy’s review of the academic literature and his opinions based on that review persuasive. Rather, I was convinced that his opinion about the effects of administrative segregation on inmates, especially mentally ill inmates, was unreliable and incorrect.

3. James D. Livingston

[250] Dr. Livingston was retained to respond to Messrs. Brazeau and Kifts’ case about the quality of psychiatric care provided to Class Members regardless of whether the Class Member had been placed in administrative segregation. For the purposes of the summary judgment motion, this evidence, however, became less significant when Messrs. Brazeau and Kift abandoned the claims of Class Members who had not been placed in administrative segregation.

[251] Similarly, some of the evidence of some of the inmate affiants who had not experienced administrative segregation, but who had experienced poor health care, became less significant. All this evidence, remained relevant, but it no longer went to the heart of the issues of the summary judgment motion that focused on Class Members who had been placed in administrative segregation.

[252] For present purposes, all I need say is that Dr. Livingston evaluated the delivery of mental health care by the Correctional Service. Based on a comparison with the mental health delivery models of Australia, England, Ireland, and New Zealand, he concluded that the Correctional Service’s mental health delivery model was comparable to the models used in these countries.

4. Robert D. Morgan

[253] In assessing the weight to be given Dr. Morgan's evidence, it is important to repeat that although as part of his practice as a psychiatrist and as an academic he had done research on the effects of solitary confinement, for the purpose of the immediate class action, he was not retained to provide an opinion on that issue. His views about the effects of solitary confinement were enlisted largely through being cross-examined. Dr. Morgan’s actual retainer was to comment on the quality of care that mentally ill inmates receive in Canadian penitentiaries.

[254] With the discontinuance of the claims of Class Members who were not placed in administrative segregation, the general matter of the psychiatric care of the Class Members has a different significance than it did in the run up to the summary judgment motion. The focal point now is on the adverse effects of administrative segregation on the psychiatric health of the Class Members and when those adverse effects would present themselves.

[255] In furtherance of his retainer, Dr. Morgan conducted site visits of four Canadian penitentiaries: Joyceville Institution, (Medium and Minimum Units), Collins Bay Institution, and Millhaven Institution, where he also toured the Regional Treatment Centre. The visits included a tour of the institution, and interviews. He interviewed three inmates placed in administrative segregation, and he reviewed six inmate case studies, all selected by the Correctional Service. Dr. Morgan opined that that the care provided to these prisoners was adequate.

[256] Messrs. Brazeau and Kift were critical of Dr. Morgan’s opinion for a variety of reasons including the criticism that his sample of inmates was not adequate to extract any conclusions.

[257] In my opinion, once the nature of Dr. Morgan’s retainer is understood, some of this criticism is