Court File and Parties

COURT FILE NO.: CV-17-570771-00CP DATE: 2019/08/29

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Jullian Jordea Reddock Plaintiff

– and –

Attorney General of Canada Defendant

COUNSEL: H. Michael Rosenberg, James Sayce and Charlotte-Anne Malischewski for the Plaintiff Eric Lafreniere, Susan Gans, Negar Hashemi, and Lucan Gregory for the Defendant

Proceeding under the Class Proceedings Act, 1992

HEARD: July 22-26, 2019

PERELL, J.

REASONS FOR DECISION

A. Introduction and Overview

[1] This is a summary judgment motion.

[2] Pursuant to the Class Proceedings Act, 1992,[^1] Jullian Jordea Reddock sues the Attorney General of Canada, which is to say that he sues the Federal Government of Canada. The Reddock Case arises out of the use of administrative segregation in the Federal Government’s penitentiaries, which are administered by the Correctional Service of Canada, sometimes referred to as “CSC”.

[3] Because of the use of administrative segregation, Mr. Reddock alleges that the Federal Government breached the inmates’ rights under the Canadian Charter of Rights and Freedoms, [^2] including their rights under s. 7 (life, liberty, and security of the person), s. 9 (arbitrary detention), s. 11 (h) (double jeopardy) and s. 12 (cruel and unusual treatment). Mr. Reddock also advances a systemic negligence claim against the Federal Government. Mr. Reddock moves for a summary judgment of the common issues in his action.

[4] The Reddock Case is closely connected with Brazeau v. Attorney General (Canada),[^3] a case that I recently decided, which has been appealed to the Ontario Court of Appeal. The appeal has been expedited and is scheduled to be heard on November 6, 2019.

[5] In turn, the Reddock Case and the Brazeau Case are also closely connected to British Columbia Civil Liberties Association v. Canada (Attorney General),[^4] a recent decision of the British Columbia Court of Appeal, and to Canadian Civil Liberties Association v. Canada,[^5] a recent decision of the Ontario Court of Appeal, for which the Federal Government and the Canadian Civil Liberties Association are seeking leave to appeal to the Supreme Court of Canada.

[6] Thus, the Reddock Case is closely connected to three recent lower court decisions and two very recent appellate court decisions about administrative segregation. Taken together, but not uniformly, these decisions hold that administrative segregation’s enabling legislation, the Corrections and Conditional Release Act (“CCRA”) [^6] and also the manner of its operation are contrary to the Charter.

[7] In the summary judgment motion in the Reddock Case, whether the alleged breaches of the Charter were: (a) the exclusive product of the enabling statute, the CCRA; or (b) arose from maladministration of the statute was a significant controversy between the parties with significant legal repercussions that will preoccupy much of the discussion below.

[8] As the discussion below will reveal, the Cdn Civil Liberties Assn, BC Civil Liberties Assn, Brazeau, and Reddock Cases raise profoundly complex and difficult problems for the appellate courts to eventually resolve about Charter violations, Charter remedies, and common law remedies for Charter violations. And, the interconnection amongst the cases is a very problematic feature for the summary judgment motion in the Reddock Case.

[9] Indeed, I was asked to adjourn the motion to await the outcome of the Brazeau Case’s appeal and the Cdn Civil Liberties Assn Case’s leave to appeal motion and if leave be granted the appeal to the Supreme Court of Canada. However, I declined to wait,[^7] and I proceeded to hear the summary judgment motion in the Reddock Case over five days in July 2019. Since my decision in the immediate case will be appealed by one or the other or both of the parties, I felt it preferable to decide the Reddock Case promptly so the appeals of these interconnected cases, with their very similar and factual footprints, could, if possible, be heard together.

[10] On the summary judgment motion, in light of the interconnection amongst the Cdn Civil Liberties Assn, BC Civil Liberties Assn, Brazeau, and Reddock Cases, Class Counsel made the following main arguments:

i. Class Counsel argued that I should grant summary judgment in the Reddock Case based on res judicata or issue estoppels, or based on stare decisis, arising from the interconnected cases.

ii. Further, Class Counsel argued that regardless of the principles of res judicata, issue estoppel, or stare decisis and based just on the evidentiary record in the immediate case (which record substantially replicated the evidence in the interconnected cases), I should grant Mr. Reddock and the Class Members summary judgment for each of the various Charter breaches.

iii. Further still, notwithstanding that the claim had been unsuccessful in the Cdn Civil Liberties Assn Case, Class Counsel argued that the Class Members’ rights under s. 11(h) of the Charter had been breached and that the Federal Government should also be found liable on this account as well.

iv. Further still, given that a systemic negligence claim was not a factor in the interconnected cases, Class Counsel argued that based just on the evidentiary record in the immediate case, I should grant Mr. Reddock and the Class Members summary judgment for systemic negligence.

v. Further still, Class Counsel argued that the systemic negligence claim provided an alternative basis to award compensatory aggregate damages. As the discussion below will reveal, the systemic negligence claim also provides a way for Class Counsel to circumvent the Federal Government’s argument based on the principle from Mackin v. New Brunswick (Minister of Finance),[^8] which principle would immunize the Federal Government from liability under s. 24 (1) of the Charter to pay damages for a Charter breach.

vi. As for remedies, without suggesting that I had erred in the Brazeau Case, Class Counsel submitted that unlike the result in the Brazeau Case, where I made an aggregate Charter damages award only for vindication and deterrence that was not payable directly to the Class Members, I should in the Reddock Case make an award directly to the Class Members that included a base level award for deterrence, vindication and also compensatory damages for each Class Member. Class Counsel submitted that if a Class Member wished more than the base award of damages, then he or she would be entitled to make a claim at an individual issues trial.

vii. In the alternative, as for remedies, Class Counsel submitted that if I did not make a base level award for Charter damages as aforesaid, then I should employ the approach that I used in the Brazeau Case and award the Class Members aggregate Charter damages for just vindication and deterrence, which award would be distributed, less Class Counsel’s approved legal fees and disbursements, in the form of a legal aid program for inmates seeking to have reviewed their placement in Structured Intervention Units (“SIUs”), which is the recently introduced replacement for administrative segregation units. Once again, the Class Members’ claims for additional compensatory damages would proceed by individual issues trials.

[11] For its part, on the summary judgment motion, in addition to arguing that there were genuine issues requiring a trial and that the Reddock Case and most particularly its systemic negligence claim was therefore inappropriate on jurisdictional grounds to be decided summarily, the Federal Government made the following main arguments:

i. The Federal Government argued that if the summary judgment motion was to proceed to a decision on the merits, it should not be decided on the basis of res judicata, issue estoppel or stare decisis arising from the interconnected cases.

ii. The Federal Government argued for a variety of discrete reasons associated with the Classes’ discrete claims or causes of action for breaches of the Charter or for the discrete claim of systemic negligence, that the Federal Government was not liable to the Class Members.

iii. For examples of the discrete defences, the Federal Government argued that policy factors foreclosed a duty of care and negated the Classes’ systemic negligence claim, and it argued that there was a defence to each of the discrete alleged Charter breaches, most particularly defences under s. 1 of the Charter that the infringement was a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society.

iv. Further, as for remedies, the Federal Government argued that based on the principles from Vancouver (City) v. Ward [^9] and Mackin v. New Brunswick (Minister of Finance),[^10] Charter damages were not available in the Reddock Case. I had rejected this argument in the Brazeau Case, but based in part on the appellate decisions in the Cdn Civil Liberties Assn and BC Civil Liberties Assn Cases, the Federal Government submitted that I had erred in the Brazeau Case. Thus, the Federal Government denied liability, but assuming there was a Charter breach, it submitted that the Class was bereft of any compensatory remedy and that the Federal Government was immune from having to pay Charter damages under s. 24(1) of the Charter.

v. Also, as for remedies, the Federal Government argued that I erred in awarding aggregate damages in the Brazeau Case, even for vindication and deterrence damages and would err again if I made such an award on a summary judgment motion. It submitted that under s. 24 (1) of the Class Proceedings Act, 1992, aggregate damages for vindication, deterrence, and compensation were not available in the circumstances of the Reddock Case for any of the claims.

vi. Further still, as for remedies, the Federal Government, in what I regard as an ironical argument, submitted that one of its grounds of appeal in the Brazeau Case was that I did not have the jurisdiction to make the distribution plan order for the aggregate damages, and it argued that I ought not make a similar error in the Reddock Case. (I shall explain the irony of this submission later in this decision.)

[12] Thus, in the Reddock Case, there is a large amount of factual and legal territory to cross including unexplored terrain with respect to the systemic negligence claim. Moreover, during the argument of the summary judgment motion, both parties added to the factual background the history of recent government initiatives to replace administrative segregation with the SIUs. Both parties thought it necessary to update Parliament’s legislative initiatives impelled by the decisions in the Cdn Civil Liberties Assn and BC Civil Liberties Assn Cases.

[13] By way of a map to traverse this enormous factual and legal territory, my Reasons for Decision will be organized under the following headings:

A. Introduction and Overview.. 1

B. Issue Estoppel Background. 7

C. Procedural Background to the Class Action and Class Member Demographics. 8

D. Evidentiary Record. 10

E. Factual Background. 16

1. The Correctional Service of Canada, Prison Demographics and Culture, and the Placement of Inmates 16

2. The Correctional Investigator of Canada. 20

3. Administrative and Disciplinary Segregation. 20

4. A Survey History and Historiography of Solitary Confinement and Administrative Segregation 25

5. The Abolition and Replacement of Disciplinary Segregation and Administrative Segregation 34

6. Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen. 36

7. British Columbia Civil Liberties Association v. Canada (Attorney General) 39

8. Brazeau v. Attorney General (Canada) 43

9. The Harm Caused by Prolonged Administrative Segregation. 46

(a) The Evidence about the Harm of a Placement in Administrative Segregation. 46

(b) The Academic Literature on the Harm Caused by Solitary Confinement 49

F. Discussion and Analysis: Jurisdiction to Grant Summary Judgment 50

G. Discussion and Analysis: Res Judicata, Issue Estoppel, Abuse of Process, and Stare Decisis 54

H. Discussion and Analysis: Limitation Period for the Class Members’ Claims. 57

I. Discussion and Analysis: The Class Members’ Charter Claims. 59

1. Section 9 of the Charter. 59

2. Section 11 (h) of the Charter. 59

3. Section 7 of the Charter. 60

4. Section 12 of the Charter. 68

5. Section 1 of the Charter 69

6. Charter Remedies. 73

(a) Introduction. 73

(b) Charter Remedies. 75

7. The Availability of Charter Damages in the Reddock Case. 81

8. Quantification of Charter Damages. 89

J. Discussion and Analysis: Administrative Segregation and Systemic Negligence. 92

1. Introduction. 92

2. Duty of Care. 93

3. Standard of Care. 101

4. Causation and a Base Level of Damages. 104

K. Discussion and Analysis: Punitive Damages. 105

L. Discussion and Analysis: Aggregate Damages. 106

M. Housekeeping, Class Definitions, Reconciling the Reddock, Gallone, Brazeau, BC Civil Liberties Assn, Cdn Civil Liberties Assn Cases, and the Distribution Plan. 109

N. The Protocol for Individual Issues Trials. 111

O. Conclusion. 112

[14] To complete this introduction and by way of an overview, I foreshadow my decision. For the reasons that follow, I grant the Class Members’ summary judgment motion. I make the following answers to the common issues that are the precise subject matter of this summary judgment motion:

i. 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 March 3, 2011. This means that without prejudice to the claims of Class Members that have an individual rebuttal to the tolling of the limitation period, their claims arising from a placement in administrative segregation before March 3, 2011 are statute-barred.

ii. 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 11 (h) of the Charter

iii. By its operation and management of the Federal Institutions from March 3, 2011 to the present, the Federal Government breached the Class Members' rights under s. 7 of the Charter by the absence of an adequate review process for placements in administrative segregation.

iv. By its operation and management of the Federal Institutions from March 3, 2011 to the present, the Federal Government breached the Class Member’s rights under s. 7 of the Charter by placing inmates in administrative segregation for more than fifteen days.

v. By its operation and management of the Federal Institutions from March 3, 2011 to the present, the Federal Government breached the Class Member’s rights under s. 12 of the Charter by placing inmates in administrative segregation for more than fifteen days.

vi. The Federal Government’s contraventions of sections 7 and 12 of the Charter are not saved by s. 1 of the Charter.

vii. The Class Members are entitled to damages under s. 24 (1) of the Charter. Notwithstanding the principles from Mackin v. New Brunswick (Minister of Finance),[^11] damages are available under s. 24 (1) of the Charter for the breaches of sections 7 and 12 of the Charter.

viii. The court can make a partial aggregate assessment for Charter damages for the breaches of sections 7 and 12 of the Charter. The value of the partial Charter damages award, which incorporates a partial award for systemic negligence damages, is $20 million.

ix. Pursuant to sections 24 (2) and 24 (8) of the Class Proceedings Act, 1992, I order the aggregate damages award to be applied so that all Class members share in the award equally.

x. The damages award is without prejudice to the Class Member’s claiming at individual issue’s trials: (a) punitive damages, and (b) additional Charter damages for the contraventions of the Charter or for systemic negligence.

xi. For the systemic negligence claim, it has been proven on a class-wide basis that: (a) the Federal Government has a duty of care in its operation and management of the Federal Institutions from March 3, 2011 to the present; (b) that it breached the duty of care; (c) that the Federal Government’s breach caused damages; and (d) each Class Member suffered a base level of compensable damages.

xii. 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 or the damages for systemic negligence are determined at the individual issue’s trials.

B. Issue Estoppel Background

[15] As noted above, Class Counsel submits that I should grant summary judgment in the Reddock Case based on res judicata or issue estoppels or based on binding precedents, stare decisis, arising from the interconnected cases. I shall discuss this argument much later in these Reasons for Decision. In this part of my Reasons for Decision, I shall simply set out the chronology of the interconnected cases. As it happens, the chronology is a part of the factual background to the Reddock Case.

[16] On January 27, 2015, in Ontario, the Cdn Civil Liberties Assn Case was commenced.

[17] On July 17, 2015, in Ontario, the Brazeau Case was commenced.

[18] In 2017, in British Columbia, the BC Civil Liberties Assn Case was commenced.

[19] On March 3, 2017, the Reddock Case was commenced.

[20] On December 18, 2017, Associate Chief Justice Marrocco released his decision in the Cdn Civil Liberties Assn Case.

[21] On January 17, 2018, Justice Leask released his decision in the BC Civil Liberties Assn Case.

[22] On March 23, 2019, I released the decision in the Brazeau Case.

[23] On March 25, 2019, the Ontario Court of Appeal released its decision in the Cdn Civil Liberties Assn Case.

[24] On June 24, 2019, the British Columbia Court of Appeal released its decision in the BC Civil Liberties Assn Case.

[25] On July 22-26, 2019, the summary judgment motion in the Reddock Case was argued.

C. Procedural Background to the Class Action and Class Member Demographics

[26] As noted above, Mr. Reddock commenced this action on March 3, 2017.

[27] Co-Class Counsel are Koskie Minsky LLP and McCarthy Tétrault LLP.

[28] There is a parallel action in Québec that has been authorized as a class action: Gallone c. Canada (Procureur général).[^12]

[29] In 2018, on consent the Reddock Case was certified as a class proceeding.[^13] On June 24, 2019, there was a supplemental consent certification order. That order certified the systemic negligence common issues.

[30] The class definition is as follows:

All persons, except Excluded Persons, as defined below, who were involuntarily subjected to a period of Prolonged Administrative Segregation, as defined below, at a Federal Institution, as defined below, between November 1, 1992 and the present, and were alive as of March 3, 2015 (“the Class”);

Excluded person are:

i. All offenders incarcerated at a Federal Institution who were diagnosed by a medical doctor with an Axis I Disorder (excluding substance abuse 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; and

ii. All persons who were involuntarily subjected to Prolonged Administrative Segregation, as defined below, only at a Federal Institution situated in the Province of Quebec after February 24, 2013. Persons who were involuntarily subjected to Prolonged Administrative Segregation at Federal Institutions situated in Quebec and another Canadian province, or at a Federal Institution situated in Quebec prior to February 24, 2013, are not Excluded Persons.

“Administrative Segregation” is defined as sections 31 to 37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20.

“Prolonged Administrative Segregation” is defined as the practice of subjecting an inmate to Administrative Segregation for a period of at least fifteen (15) consecutive days.

“Federal Institutions” are defined as the system of Federal correctional facilities across Canada that is administered by the Correctional Service of Canada, a Federal Government body.

[31] The Class is made up of prisoners who have spent more than fifteen consecutive days in administrative segregation. The Class definition was reached on consent to exclude Brazeau Case Class Members and the Class Members in the parallel Gallone v. Canada action, which concerns claims for damages suffered in Québec from February 24, 2013 onward. The Reddock Case includes claims for damages that were suffered by inmates in Québec before that date.

[32] Between November 1, 1992 and April 7, 2019, excluding segregation placements in Québec that continued past February 24, 2013, The Federal Government placed 27,817 inmates in administrative segregation for more than fifteen days for a total of 79,605 placements. The individual inmates were, on average, placed in segregation three times. The placements lasted an average of 71 days.

[33] Before the application of limitation periods barring claims and removing the Brazeau Case Class Members, the Reddock Class comprises 24,229 Class Members.[^14]

[34] Applying a presumptive six-year limitation period, excluding placements in Québec that continued past February 24, 2013, the Federal Government placed 10,247 inmates in administrative segregation for more than fifteen days between March 3, 2011 and April 7, 2019 for a total of 21,641 placements. The inmates were, on average, placed in segregation twice. The placements lasted an average of 59 days.

[35] Applying a presumptive six-year limitation period, the Reddock Class comprises 8,934 Class Members.

[36] It is necessary and helpful to keep in mind that the class definition does not include all inmates who have been placed in administrative segregation. Inmates who were placed in administrative segregation for less than fifteen days are not Class Members.

[37] One consequence of the class definition in the Reddock Case is that notwithstanding the finding that has been made in the interconnected cases and again in the immediate that there has been a breach of s. 7 of the Charter by reason of the absence of an adequate review process, inmates that were placed in administrative segregation for less than fifteen days are not Class Members and they do not participate in this class action even though a proven breach of s. 7 of the Charter affects them and the breach has nothing to do with the duration of their placement in administrative segregation.

[38] I point out this consequence because it dampens an argument made by the Federal Government that the Class Members cannot demonstrate that they have been caused harm by the absence of an adequate review process because they will have been harmed in any event for other reasons. While there are reasons to reject the Federal Government’s argument on its merits, which I shall discuss later, the argument is thus dampened by the fact that regardless of whether the Class Members can show causation of harm for this particular s. 7 breach, they will have been caused harm by the other contraventions of sections 7 and 12 of the Charter.

[39] Another consequence of the class definition is that notwithstanding my conclusions explained below that there has been systemic negligence causing damages, inmates that were placed in administrative segregation for less than fifteen days are not Class Members and, once again, they do not participate in the systemic negligence claim.

[40] The following certified common issues are the subject matter of this summary judgment motion:

i. By its operation and management of the Federal Institutions from November 1, 1992 to the present, did Canada [the Federal Government] breach the Class members' rights under ss. 7, 9, 11(h), or 12 of the Charter?

ii. If so, were its actions saved by s. 1 of the Charter?

iii. If the answer to (i), is yes, and the answer to (ii), is no, are damages available to the Class under s. 24 (1) of the Charter?

iv. Does Canada [the Federal Government] owe a duty of care to the Class Members by virtue of its operation and management of Federal Institutions from November 1, 1992 to the present?

v. If the answer to (iv) is yes, what is the nature of that duty of care?

vi. If the answer to (iii) and/or (iv), is "yes", can the Court make an aggregate assessment of all or part of the damages suffered by Class members?

vii. If the answer to any common issue is “yes”, does Canada’s [the Federal Government’s] conduct justify an award of punitive damages, and if so, in what amount?

D. Evidentiary Record

[41] The evidentiary record for the summary judgment motion was extensive comprising approximately 22,500 pages. Mr. Reddock’s six volume Motion Record was 3,399 pages. The Federal Government’s eighteen volume Motion Record was 8,873 pages. The eight volumes of Transcript and Evidence Brief was 6,020 pages. The eight volumes of Undertaking Briefs was 3,970 pages. The Admissions Brief was 418 pages.

[42] Mr. Reddock supported his summary judgment motion with the evidence of the following twelve affiants, and he summoned Emily Greenfield, Acting Director Facility Planning & Standards of the Correctional Service, for cross-examination for the summary motion pursuant to Rule 39.03 of the Rules of Civil Procedure.

[43] Mr. Reddock’s witnesses for the summary judgment motion were:

• Carson Graham Campbell - Mr. Campbell was first imprisoned in 2010. He has been incarcerated at Dorchester Penitentiary, the Springhill Institution, and the Westmorland Institution. He deposed that on one occasion, he spent 55 days in administrative segregation and that on another occasion, his placement in administrative segregation lasted for more than a year. He described the harm he suffered as a result of his placements in administrative segregation. The Federal Government, however, disputes that Mr. Campbell was ever detained in administrative segregation.

• Jeffery Cansanay - Mr. Cansanay began a federal sentence in late 2009 or early 2010. He has been incarcerated at Collins Bay Institution, Edmonton Institution, Saskatchewan Penitentiary, and Stony Mountain Institution. He has been subject to administrative segregation placements longer than fifteen days on more than a dozen occasions, including a placement for two months and a placement for almost two years. He described the harm he suffered as a result of his placements in administrative segregation.

• Gary Chaimowitz – Dr. Chaimowitz 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. He has worked extensively with inmates who have been detained in administrative segregation, including more than ten years under contract for the Correctional Service. In his current role at the health centre in Hamilton, the majority of his patients have spent time in correctional facilities.

• Robert Clark – Mr. Clark is a retired Deputy Warden with more than thirty years of experience at Corrections Canada at seven different penitentiaries. From 1991 to 1996, he served as the manager in charge of administrative segregation at both the Joyceville Institution and the Millhaven Institution. From 2004 until 2007, he was the Deputy Warden at Bath Institution, and he had final authority on all placements in administrative segregation. From 2007 to 2009, he was the Deputy Warden at the Regional Treatment Center, which provides treatment for inmates with acute mental health problems, including crisis referrals arising out of prolonged administrative segregation. In 2017, he authored a book entitled Down Inside: Thirty Years in Canada’s Prison Service, which describes his experiences with the Correctional Service.

• Andrew Coyle - Dr. Coyle is a former Governor (Warden) of prisons in the United Kingdom. He holds a Ph.D.in Law, is Emeritus Professor of Prison Studies at the University of London, and is the author of a manual on prison operations. He was founding Director of the International Centre for Prison Studies at the University of London from 1997 to 2005. He has served as a consultant on prison matters for international organizations and governments including Australia, Brazil, Chile, China, Colombia, Ireland, New Zealand, Russia, South Africa, Spain, and Sweden. Dr. Coyle testified as an expert at the Ashley Smith Inquiry, and he has been qualified as an expert witness about the operation of prisons by the courts of the U.K., Ontario, and British Columbia.

• Stuart Grassian - Dr. Grassian is a board-certified psychiatrist, licensed to practice medicine in Massachusetts, U.S. 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 on the effects of solitary confinement on inmates, which he identified as a clinical syndrome. Dr. Grassian has been involved in the observation and assessment of over 400 inmates while in solitary confinement or after release. In 2006, Dr. Grassian published an article reviewing the academic literature on solitary confinement. Dr. Grassian has been qualified to give expert evidence on the harms of solitary confinement by the courts of Ontario and British Columbia. He was a witness in the BC Civil Liberties Assn Case and the Brazeau Case and his scholarly work was referred to in the Cdn Civil Liberties Case.

• Ruth Martin - Dr. Martin is a Clinical Professor at the University of British Columbia School of Population and Public Health. She is a family physician with a master’s degree in Public Health. She has worked extensively in prisons and with prisoners. From 1994 to 2011, Dr. Martin served as a physician at the Burnaby Correctional Centre for Women, the Alouette Correctional Centre for Women in Maple Ridge, and the Surrey Pre-Trial Services Centre. Dr. Martin is currently conducting research at Mission Correctional Facility in Fraser Valley, a men’s penitentiary. Since 2011, Dr. Martin has been Chair of the Prison Health Program Committee of the College of Family Physicians of Canada. The Committee released a position paper on solitary confinement that is discussed below.

• David McMath - Mr. McMath was first incarcerated around 1982 or 1983. He has been incarcerated at Bowden Institution, Cowansville Institution, Drumheller Institution, Edmonton Institution, Kent Institution, Matsqui Institution, Mountain Institution, Pacific Institution in Abbotsford, Port-Cartier Institution, Saskatchewan Penitentiary, and Warkworth Institution. He had numerous placements in administrative segregation, including two placements that lasted approximately eight months and one that lasted approximately a year. Mr. McMath has spent almost five years in administrative segregation. He described the harm he suffered as a result of his placements in administrative segregation.

• Juan E. Méndez – Professor Méndez is a Professor of Human Rights Law at American University’s Washington College of Law, where he is also the Faculty Director of the Anti-Torture Initiative at the Center for Human Rights and Humanitarian Law. Professor Méndez has dedicated his legal career to the defense of human rights after being subject to torture during his time as a political prisoner of the Argentinean military dictatorship. From 1996 to 1999, Professor Méndez served as the Executive Director of the Inter-American Institute of Human Rights. From 2000 to 2003, he was a member of the Inter-American Commission on Human Rights of the Organization of American States. He 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 Méndez 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.

• Kelly Hannah-Moffat - Dr. Hannah-Moffat, who has a Ph.D. in criminology, is a Vice-President of the University of Toronto, a professor of sociology and criminology, and the former director of the Centre of Criminology and Sociolegal Studies at the university. She was a policy advisor to Madame Justice Arbour on the Commission of Inquiry into Certain Events at the Prison for Women in Kingston and an expert witness for the Office of the Ontario Coroner in the Ashely Smith Inquest. Dr. Hannah-Moffat has published several books that focus on prison policy and punishment.

• Jullian Jordea Reddock - Mr. Reddock is the Representative Plaintiff. He was imprisoned in federal penitentiaries beginning in 2012. He was released in 2018. He has been incarcerated at the Bowden Institution, the Donnacona Institution, Kent Institution, Kingston Penitentiary, Millhaven Institution, Mountain Institution, Saskatchewan Penitentiary, and Stony Mountain Institution. He spend more than seventeen months in administrative segregation. He described the harm he suffered as a result of his placements in administrative segregation.

• Jasmine Rhandawa – Ms. Rhandawa is a law clerk with Class Counsel. She delivered a brief of documents about the operation of the penitentiaries and about solitary confinement.

• Cory Edward Spence – Mr. Spence began a federal sentence in 2005. He has been incarcerated at Drumheller Institution, Grand Cache Institution, Saskatchewan Penitentiary, and Stony Mountain Institution. He has been subject to administrative segregation placements longer than fifteen days on several occasions, including a placement that lasted six months and one which lasted almost two years. In total, Mr. Spence has spent more than four years in administrative segregation. He described the harm he suffered as a result of his placements in administrative segregation.

[44] The Federal Government cross-examined Drs. Grassian, Chaimowitz, Hannah-Moffat and Martin, and Professor Méndez. The Federal Government did not cross-examine Campbell, Cansanay, Clarke, Coyle, McMath, Reddock, and Spence.

[45] The Federal Government responded to the summary judgment motion with the evidence of the following eleven affiants, all of whom were cross-examined with the exception of Professor Glancy. By the time of the summary judgment hearing, The Federal Government had withdrawn the affidavit of Professor Glancy.

[46] The Federal Government’s witnesses for the summary judgment motion were:

• Julie Bédard - Ms. Bédard has worked for the Correctional Service for more than twenty years. She holds a Masters of Psychology. She was appointed as the Executive Director of the Regional Treatment in the Atlantic Region in 2016. She also sits on CSC’s National Medical Advisory Committee, where she provides advice and recommendations to the Assistant Commissioner, Health Services, on matters such as the quality of the health services provided to inmates.

• Kelley Blanchette - Dr. Blanchette has worked for the Correctional Service for more than twenty years. She holds a PhD in psychology. Since 2017, Dr. Blanchette has served as Deputy Commissioner for Women. In that capacity, she has responsibility for research and policy and for program development and implementation. Previously, Dr. Blanchette was a CSC researcher, and she served as Director, Women Offender Research, and Senior Director, Correctional Research. Dr. Blanchette also served as Director General, Women Offender Sector and Director General, Mental Health.

• Graham David Glancy – Professor Glancy 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 the co-author of Mental Health and Social Work in Canada, (Oxford University Press, 2010, 2015). (As noted above, the Federal Government withdrew Mr. Glancy as a witness.)

• Emily Greenfield - Ms. Greenfield has worked for the Correctional Service for nearly 20 years. She currently serves as the Acting Director Facility Planning & Standards. As Acting Director, Ms. Greenfield oversees consultants contracted to design the physical space inside the penitentiaries, including segregation units. Ms. Greenfield was previously a designer for the Correctional Service and her responsibilities included planning, development, and supporting the implementation of long-term planning studies, as well as projects related to maintenance or construction at institutions. Class Counsel summonsed Ms. Greenfield for cross-examination on this summary motion under Rule 39.03.

• Mike Hayden - Mr. Hayden has worked for the Correctional Service since 1988. For more than thirty years, he has worked in data operations, where he manages the collection and the analysis of data about the inmates. Since 2006, Mr. Hayden has served as Manager, Statistical Data Analysis and he has responsibility for the Offender Management System.

• Ian Irving – Mr. Irving, who is a registered nurse, has served as the Correctional Services Regional Manager for Clinical Services for the Ontario Region since 2007. Mr. Irving has held various management roles, including Chief of Health Services and Acting Regional Director Health Services. As Regional Manager, he is responsible for clinical health care in all of the penitentiaries in Ontario. In this role, he also analyzes internal reports, external reports, audits, and the reports of investigations. He previously worked as a front-line nurse. In 2006, he was a Deputy Warden responsible for admitting inmates to administrative segregation.

• Curtis Jackson – Mr. Jackson has worked for the Correctional Service for twenty-five years. Since May 2016, he has served as the Assistant Deputy Commissioner of Correctional Operations, Ontario Region. Beginning in April 2018, he became Acting Regional Deputy Commissioner for Ontario. In this capacity, he is responsible for the preparations for the implementation of Bill C-83: An Act to amend the Corrections and Conditional Release Act and another Act. Mr. Jackson has held a variety of increasingly senior roles with the Correctional Service. He served as Warden of Collins Bay Institution from 2012 to 2016 and was Warden of Millhaven Institution from 2009 to 2012. He also served as a Deputy Warden and a Unit Manager. Mr. Jackson spent twelve years as a parole officer, parole supervisor, and acting area director. As a Deputy Warden and Warden, Mr. Jackson admitted inmates to administrative segregation, and as Acting Regional Deputy Commissioner for Ontario he now conducts the regional reviews of placements in administrative segregation.

• David Nussbaum - Dr. Nussbaum is a retired Lecturer in the Department of Psychology at the University of Toronto. He holds a PhD in Psychology. His work focuses on linking psychology to neurobiological processes. Dr. Nussbaum is a psychologist who had experience assessing inmates in provincial pretrial custody while practicing at CAMH (the Centre for Addiction and Mental Health) in Toronto. Dr. Nussbaum has been qualified as an expert in young adult brain development by the courts of Ontario.

• Jay Pyke - Mr. Pyke has worked for the Correctional Service since 1995, when he was hired as correctional officer. He was a Warden at the Collins Bay Institution when he was examined in the Cdn Civil Liberties Assn Case and he is presently the Regional Deputy Commissioner for the Atlantic Region. Mr. Pyke served as Warden of the Kingston Penitentiary before its closing in 2013. As Warden, Mr. Pyke was responsible for admitting inmates to administrative segregation. Mr. Pyke was a witness in the Cdn Civil Liberties Assn Case, the BC Civil Liberties Case, and the Brazeau Case. The parties agreed that Mr. Reddock could file the transcript of his cross-examination in the Cdn Civil Liberties Assn Case.

• Lee Redpath – Ms. Redpath worked for the Correctional Service for thirty years in a variety of increasingly senior roles. She served as Director of Security Operations at National Headquarters until April 2018. At the headquarters, she is responsible for the development, monitoring, and maintenance of the policy concerning security operations with respect to administrative segregation. Ms. Redpath is charged with implementing the Structured Intervention Units (“SIUs”), which will replace administrative segregation. She previously served as: Director General of Security Branch; Director of Departmental Security; Director of Institutional Reintegration Operation; Director Federal of Women Offender Sector; Director of Operations for the Women Offender Sector; Director of Intergovernmental Relations, and Director of Reintegration Programs. Earlier in her career, she also served as a Warden, Deputy Warden, Parole Officer, and Correctional Officer. She has placed inmates into administrative segregation and has conducted reviews of administration segregation placements.

• Kevin Snedden - Mr. Snedden has worked for the Correctional Service for more than twenty years. He currently is Director General for Security, National Headquarters and is responsible for the policy infrastructure around the security operations for the Correctional Service, including administrative segregation policies. Mr. Snedden has held a variety of senior roles with the Correctional Service. He served as Acting Regional Deputy Commissioner for the Atlantic Region, as a Warden, and as a Deputy Warden. As Warden and Deputy Warden, he placed inmates into administrative segregation, and as Acting Regional Deputy Commissioner, he conducted reviews of administrative segregation placements.

• Ralph Serin – Dr. Serin has been a Professor in the Department of Psychology at Carleton University since 2003. He holds a PhD in Psychology. At Carleton University, he is the Director of the Criminal Justice Decision Making Laboratory and is a member of the Forensic Psychology Research Centre. Dr. Serin previously worked at the Correctional Service for twenty-seven years in various research and clinical capacities, and he served as Director Operations & Programs Research.

[47] Class Counsel cross-examined all of the Federal Government’s witnesses.

[48] The following chart sets out the evidentiary overlap of the BC Civil Liberties Assn, Cdn Civil Liberties Assn, Brazeau, and Reddock Cases.

Cdn Civil Liberties Assn

BC Civil Liberties Assn

Brazeau

Reddock

Dr. Chaimowitz

Dr. Chaimowitz

Dr. Chaimowitz

Dr. Glancy

Dr. Glancy

Dr. Glancy

Dr. Grassian

Dr. Grassian

Dr. Grassian

Mr. Hayden

Mr. Hayden

Mr. Curtis Jackson

Mr. Curtis Jackson

Prof. M. Jackson

Prof. M. Jackson

Dr. Martin

Dr. Martin

Dr. Martin

Prof. Méndez

Prof. Méndez

Prof. Méndez

Dr. Nussbaum

Dr. Nussbaum

Mr. Pyke

Mr. Pyke

Mr. Pyke

Mr. Pyke

Dr. Rivera

Dr. Rivera

Mr. Sneddon

Mr. Sneddon

[49] The chart actually understates the interconnections amongst the cases, because different witnesses in the respective proceedings provided identical or similar evidence. A simple example of the overlap is that the background documents in the Reddock Case were proffered by Ms. Rhandawa, a law clerk with Class Counsel, and this role was played in the Brazeau Case by Catherine MacDonald, another law clerk with the same Class Counsel, who provided virtually the same brief of documents.

[50] Similarly, although the inmate Class Member witnesses in the Reddock Case were not the same as the inmate Class Members of the Brazeau Case, their evidence about the experience of being in administrative segregation was similar, and while the witnesses from the Correctional Service were not the precisely the same in the Brazeau and Reddock Cases, their accounts of the administration and management of Canadian penitentiaries was consistent and similar.

E. Factual Background

1. The Correctional Service of Canada, Prison Demographics and Culture, and the Placement of Inmates

[51] Canada is a confederation of the federal and provincial governments, and under the Constitutional Act, 1867[^15] (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”.

[52] Federal Government penitentiaries are currently regulated by the Corrections and Conditional Release Act (“CCRA”)[^16] and SOR/92-620 (Corrections and Conditional Release Regulations).[^17]

[53] 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. 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.

[54] The Commissioner by order declares any prison defined in the Prisons and Reformatories Act[^18] 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.

[55] 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. The most important of these is Commissioner's Directive 709 Administrative Segregation (“CD 709”), which was the policy guideline governing the use of administrative segregation.

[56] 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).

[57] 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).

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

[59] 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 CCRA. 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.

[60] 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.

[61] 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.

[62] 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.

[63] 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.

[64] 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% of the inmates were sentenced for violent crimes (20% murder; 50% manslaughter, robbery, assault, sexual assault). Many inmates have mental problems.

[65] 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.

[66] 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. Participation in the prison subculture and underground economy is detrimental to an inmate’s progress in their correctional plan, their rehabilitation and their potential for reintegration into society. Despite the Correctional Service’s efforts to change the prison sub-culture, criminal activities and the underground economy continue and violence remains prevalent.

[67] Management of the safety and security of the inmate population is further complicated by the fact that inmates have a legislatively prescribed right to be provided with copies of their prison files. The files contain information about the inmate’s criminal record, criminal affiliations, and how the inmate has served his or her sentence, including whether the inmate has sought any form of protective custody. This information becomes widely known amongst the inmate population and may result in an inmate being a target for violence by other inmates.

[68] 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 of the CCRA sets out the criteria for selection of a particular type of penitentiary for an inmate.

[69] Each inmate is classified in accordance to his or her dangerousness and risk of escape as well as the level of supervision he or she requires within the penitentiary. To assess these factors, the Correctional Service considers the nature of the offence committed, whether there are outstanding charges, an inmate’s behaviour while detained, the inmate’s social and criminal history, his or her potential for violent behaviour, and the inmate’s continued involvement in criminal activity.

[70] 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.

[71] 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. Inmates reside in cells and may be double and even triple bunked. The Correctional Service decides where to place each inmate.

[72] 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.

[73] In which institution and where in an institution to house an inmate is a serious and difficult problem for the Correctional Service. 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.

2. The Correctional Investigator of Canada

[74] 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).

[75] 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.

[76] 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.

[77] 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).

[78] 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

3. Administrative and Disciplinary Segregation

[79] 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 the penitentiaries. Under the disciplinary regime, one of the punishments is 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.

[80] Section 31 of the Corrections and Conditional Release Act authorizes administrative segregation; it states:

Administrative Segregation

Purpose

31 (1) The purpose of administrative segregation is to maintain the security of the penitentiary or the safety of any person by not allowing an inmate to associate with other inmates.

Duration

(2) The inmate is to be released from administrative segregation at the earliest appropriate time.

Grounds for confining inmate in administrative segregation

(3) The institutional head may order that an inmate be confined in administrative segregation if the institutional head is satisfied that there is no reasonable alternative to administrative segregation and he or she believes on reasonable grounds that

(a) the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person and allowing the inmate to associate with other inmates would jeopardize the security of the penitentiary or the safety of any person;

(b) allowing the inmate to associate with other inmates would interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of a serious disciplinary offence; or

(c) allowing the inmate to associate with other inmates would jeopardize the inmate’s safety.

[81] 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. Under s. 31 (2) of the Corrections and Conditional Release Act, an inmate in administrative segregation must be released at the earliest appropriate time. The Warden has a responsibility to encourage the inmate to consider other options that would allow release from segregation.

[82] 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. 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.

[83] Placements pursuant to s. 31(3)(a) (jeopardizes the security of the penitentiary) are the most common (68% in 2016-2017). Placements under s. 31(3)(b) (interference with an investigation) are the least common at 5%. Segregation for the purpose of ensuring the inmate’s own safety under s. 31(3)(c) account for 28% of placements

[84] The decision to place an inmate in administrative segregation is dependent on multitude of factors and circumstances including: the particular circumstances of the immediate situation that posed a security threat; the inmate’s health: the inmate’s 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 staff and resources; and the size and demographics of the inmate population.

[85] Under s. 32 of the CCRA, the same criteria are relevant in deciding whether to release an inmate from administrative segregation; section 32 states:

All recommendations to the institutional head referred to in paragraph 33(1)(c) and all decisions by the institutional head to release or not to release an inmate from administrative segregation shall be based on the considerations set out in section 31.

[86] It is to be noted that the institutional head - the person who made the initial placement order - generally decides whether and when an inmate should be released from administrative segregation.

[87] The Correction Service uses the same cells for administrative and disciplinary segregation, despite the fact that the latter constitutes the harshest punishment known to prison discipline, while the former is a security measure.

[88] The Correctional Services design requirements stipulate that segregation cells must be seven square meters in size. The photographic evidence, which was reviewed by the Court of Appeal in the Cdn Civil Liberties Assn appeal, reveals the austerity and bleakness of the accommodation. The Court of Appeal, at paragraph 20 of its decision, described the segregation cells as follows:[^19]

20. … the distinguishing feature of administrative segregation is the elimination of meaningful social interaction or stimulus. The photographic evidence adduced by the CCLA in this case depicts a small cell where the inmate is held. It contains a narrow platform with a thin mattress overtop, a toilet, a sink, maybe or maybe not a small table, maybe or maybe not a small window. The heavy steel door has a small food slot a few feet off the ground. It is often through this food slot that interactions with staff and health personnel take place.

[89] Many of the administrative or disciplinary cells are very-very poorly maintained. They are filthy and unsanitary. In some circumstances, the conditions of the segregation units have been appalling. At the Edmonton Institution, the exercise yard for segregated inmates resembled a dog kennel. The kennel was dismantled when the Correctional Investigator released photos to the media. In the case at bar, Ms. Greenfield admitted that the kennels did not conform to design standards, and she did not know how and why they had been installed.

[90] 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.

[91] The inmate may have books, a radio, and a TV. The inmate has or may have visits from: fan 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.

[92] Mr. Reddock deposed that while in administrative segregation, he spent about twenty-three hours of every day in his cell, sometimes more. He said that some days, he never left the cell. He testified that there were long periods in which he did not see the outdoors; on some days, yard time would not be offered, and on other days, especially in winter, the weather made the yard inaccessible.

[93] Mr. Hall deposed that he was alone during yard time. On very rare occasions, he could speak to another inmate in an adjacent yard, but always through a chain-link fence.

[94] Mr. Reddock and Mr. McMath deposed that at some penitentiaries, they were not offered any educational programs while in administrative segregation.

[95] In the case at bar, Dr. Blanchette and Mr. Snedden confirmed that being in segregation hinders access to programming. Dr. Hannah-Moffat testified that segregated prisoners are often not permitted to leave their cells for classes, or to use the library or a computer and their motivation to continue schooling under these conditions diminishes and some inmates stop participating.

[96] Segregated inmates’ interactions with penitentiary staff is minimal and usually as brief as possible. Many of the interactions with nurses, psychologists, parole officers, and others occurs through the food slot. It was not until the introduction of Bill C-83, discussed below, in October 2018 that the Federal Government sought to mandate a daily health assessment that would not be conducted through the cell door.

[97] Under CD-709, wardens are charged with responsibility for conducting daily visits to inmates in administrative segregation. Mr. Clark deposed, however, the visits are typically delegated to lower ranking staff, sometimes as low as the Correctional Manager. According to Mr. Clark, the interactions are usually as short as possible, occur through the food slot, and that conversations can be heard by other inmates.

[98] 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.

[99] 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.[^20] Section 44 (1)(f) of the CCRA states:

44 (1) An inmate who is found guilty of a disciplinary offence is liable, in accordance with the regulations made under paragraphs 96(i) and (j), to one or more of the following:

(f) in the case of a serious disciplinary offence, segregation from other inmates — with or without restrictions on visits with family, friends and other persons from outside the penitentiary — for a maximum of 30 days.

[100] In contrast, administrative segregation is administered and reviewed differently and may be for prolonged periods and indeed may be for an indefinite duration. Although s. 31 (2) of the Corrections and Conditional Release Act requires that an inmate be released at the earliest appropriate time, there are no caps on the length of time an inmate may be confined in administrative segregation. Although measures have been taken in recent years to reduce the length of time inmates spend in administrative segregation, many inmates spend months and some years confined in administrative segregation.

[101] In the Brazeau Case, I held that the potential indeterminacy of administrative segregation makes it a greater hardship and is actually more punishing than disciplinary segregation. In the BC Civil Liberties Assn Case, Justice Leask came to a similar conclusion.[^21] At paragraph 248 of his decision, he stated: “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.”

[102] In the immediate case, Mr. Reddock deposed:

I became extremely anxious in solitary confinement, and particularly administrative segregation, because I never knew when I would get out. Sometimes, I thought that I might stay in there forever. […] I would get my hands on something we called "Buspar." It was Buspirone, a drug used to treat anxiety. I would crush it and would inhale the powder to knock myself unconscious. I just wanted to pass out. I was so depressed. When I would wake up, I just inhaled more Busiprone and lost consciousness again. All I wanted was to pass out cold for as long as possible, again and again. It was all I could think to do to cope with the hopelessness of not knowing when they would let me out.

[103] Mr. Spence deposed that being placed in administrative segregation was especially hard to deal with because:

I only receive vague reasons from the guards for why I keep being put in solitary confinement. … At this point I wake up every day feeling that it is hopeless — I have no way of knowing if I'm closer to freedom or not. It doesn't matter how well-behaved I am, … My family and I feel that we are waiting indefinitely.

[104] In the Brazeau Case, I concluded that administrative segregation is often used as an informal disciplinary measure to avoid the formal procedural requirements and time caps of disciplinary segregation. The 2014-2015 Annual Report of the Office of the Correctional Investigator described this practice:

[O]ne of the most disturbing elements in the evolving administrative segregation framework, is that it is used as a punitive measure to circumvent the more onerous due process requirements of the disciplinary segregation system.

[105] The affiants in the Reddock Case confirm the observations of the Correctional Investigator. Mr. Spence was detained in administrative segregation for 102 days to investigate an allegation that he had been involved in a variety of disciplinary offences, including threatening other inmates. However, he was never subject to any disciplinary proceedings. If he had been convicted of a serious disciplinary offence, he could have been sentenced to disciplinary segregation for a maximum of thirty days.

[106] 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 days and at least once every thirty 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.

[107] 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.

[108] 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.

[109] 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.

[110] 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.

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

[111] In paragraphs 85-131 of my decision in the Brazeau Case, I set out a survey history and historiography of solitary confinement and administrative segregation based on historical documents. This survey applies equally to the Reddock Case where the documentary evidence was virtually the same. I, therefore, shall incorporate my discussion from the Brazeau Case into these Reasons for Decision with some additional new paragraphs as follows:

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 Méndez, 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[^22], 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:[^23]

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,[^24] 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.,[^25] 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.[^26] 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,[^27] 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.

[new] The Arbour Commission recommended that there should be a limit on the duration of administrative segregation for all inmates of no more than thirty consecutive days or sixty non-consecutive days. Justice Arbour wrote:

In my opinion the most objectionable feature of administrative segregation, at least on the basis of what I have learned during this inquiry, is its indeterminate, prolonged duration, which often does not conform to the legal standards. The management of administrative segregation that I have observed is inconsistent with the Charter culture which permeates other branches of the administration of criminal justice. In keeping with the notion that a sentence served in unduly harsh conditions may deserve to be reconsidered by the courts, I would recommend that there be a time limit imposed on an inmate being kept in administrative segregation …. The segregation review process that I have examined in this case was not operating in accordance with the principles of fundamental justice. The literature suggests that this is not unusual.

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.

[new] The Task Force recognized that administrative segregation is harmful to inmates’ mental health and social functioning and found that the Correctional Service demonstrated a casual attitude toward segregation placements, segregating inmates when less restrictive housing was available. The Task Force stated that convenience and security considerations had all but eclipsed the delivery of programming for inmates.

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.[^28] 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."

[new] In 2007, to address the increasing use of solitary confinement and its harmful effects, a working group of 24 international experts in psychiatry, medicine, forensic medicine, torture, criminology, and imprisonment at the International Psychological Trauma Symposium (December 9, 2007), released the Istanbul Expert Statement on the Use and Effects of Solitary Confinement. The Statement called on states to limit the use of solitary confinement to very exceptional cases, for as short a time as possible, and only as a last resort. The expert working group concluded that the negative health effects can occur after only a few days in solitary confinement.

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.

[The balance of s. 112 has been moved below]

113. [moved below]

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 Méndez, 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.[^29]

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.

[112. - moved from above.] 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.

[new] The coroner recommendations included recommending that in accordance with the Recommendations of the United Nations Special Rapporteur's 2011 Interim Report on Solitary Confinement, indefinite solitary confinement should be abolished. should be defined as any period in excess of 15 days.

[113. – moved from above] 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.

[new] In 2013, the Inter-American Commission on Human Rights reported that after fifteen days the harmful psychological effects of isolation can become irreversible. It concluded that prolonged or indefinite isolation through solitary confinement may never be a legitimate instrument in the hands of the state.

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.[^30] 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 ...

[new] Rules 44 and 45 of the Mandela Rules state:

Rule 44

For the purpose of these rules, solitary confinement shall refer to the confinement of prisoners for 22 hours or more a day without meaningful human contact. Prolonged solitary confinement shall refer to solitary confinement for a time period in excess of 15 consecutive days.

Rule 45

Solitary confinement shall be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review, and only pursuant to the authorization by a competent authority. It shall not be imposed by virtue of a prisoner’s sentence.

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,[^31] 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.

[new] The Correctional Service was aware of the need for an independent review process as early as 1983. This recommendation can be found in: (a) Professor Jackson’s 1983 book Prisoners of Isolation: Solitary Confinement in Canada”; (b) a 1988 Report of the Canadian Bar Association; (c) the 1996 Arbour Report; (d) a 1997 Correctional Service Task Force Report, (e) a 2004 Department of Public Safety and Emergency Preparedness Canada evaluation; and (f) a 2005 report of the Office of the Correctional Investigator. 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.

[new] On December 18, 2017, in the Cdn Civil Liberties Assn Case, Associate Chief Justice Marrocco ruled that ss. 31-37 of the CCRA breached s. 7 of the Charter insofar as there was no adequate review of administrative segregation. He did not find that s. 12 of the Charter had been breached.

[new] On January 17, 2018, in the BC Civil Liberties Assn Case, Justice Leask declared, among other things, that, to the extent that ss. 31-33 and s. 37 of the CCRA authorize and effect prolonged, indefinite administrative segregation for any inmate; authorize internal review; and authorize and effect the deprivation of inmates’ right to counsel at segregation hearings and reviews, the provisions breached s. 7 of the Charter.

[new] On March 25, 2019, in the Brazeau Case, I ruled that segregation of inmates with serious mental illness involuntarily placed in administrative segregation for longer than thirty days breached sections 7 and 12 of the Charter as did voluntary segregation of inmates with serious mental illness for longer than sixty days.

[new] On March 28, 2019, the Ontario Court of Appeal varied Associate Chief Justice Marrocco’s decision in the Cdn Civil Liberties Assn Case. The Court ruled that segregation of any inmate for longer than 15 days breaches s. 12 of the Charter.

[new] On June 24, 2019, the British Columbia Court of Appeal varied Justice Leask’s decision in the BC Civil Liberties Assn Case. The Court upheld the decision that the administrative segregation sections of the CCRA violate s. 7 but rather than striking down the statutory provisions, it declared that they violated the Charter. The issue of whether administrative segregation contravenes s. 12 of the Charter was not before the Court.

5. The Abolition and Replacement of Disciplinary Segregation and Administrative Segregation

[112] In the fall of 2015, Prime Minister Justin Trudeau directed then-Minister of Justice Jodi Wilson-Raybould to implement the recommendations from the Ashley Smith coroner’s inquest.

[113] On June 19, 2017, the Federal Government introduced in Parliament Bill C-56, An Act to Amend the Corrections and Conditional Release Act and the Abolition of Early Parole Act. The Bill specified a presumptive time limit for confinement in administrative segregation and a system of independent, external review. CD-709 was also to be amended. In light of this legislation, the Federal Government sought an adjournment of the hearings in the Cdn Civil Liberties Assn and the BC Civil Liberties Assn Cases. The adjournment requests, however, were refused.

[114] Bill C-56 did not proceed beyond first reading.

[115] Subsequently, as noted above, in December 2017 and January 2018 respectively, Associate Chief Justice Marrocco and Justice Leask declared the legislation authorizing administrative segregation contrary to s. 12 of the Charter and each suspended their rulings to allow the Federal Government to draft Charter-compliant law. Associate Chief Justice Marrocco suspended his declaration for twelve months to December 18, 2018. Justice Leask suspended the effect of his declaration until January 18, 2019.

[116] On October 16, 2018, the Federal Government tabled Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, for first reading in Parliament. Bill C-83 will eliminate the use of both administrative segregation and disciplinary segregation but authorize Correctional Services to use a structured intervention unit (“SIU”). Inmates who cannot for security purposes be accommodated in general population may be placed in a SIU, where they will be allowed to spend at least four hours per day outside their cells to interact with other inmates and there will be a minimum of two hours per day for programs.

[117] In the fall of 2018, the Correctional Service began preparing for the enactment of Bill-C-83 ant the discontinuance of the use of administrative segregation. In Ontario, the population management committee began looking at strategies for integrating Collins Bay, closing segregation units at the various institutions and making the arrangements for Millhaven Institution to have the first SIU in the province. These plans did not require infrastructure changes but required changes to staffing, training, programming, and space allotment for SIUs.

[118] Meanwhile with the introduction of Bill C-83, the Federal Government moved to extend the suspension of the declarations of constitutional invalidity in Ontario and British Columbia. In November 2018, the Federal Government applied to the Ontario Court of Appeal for an extension of the suspension to November 30, 2019.

[119] In asking for an extension, in the interim, the Federal Government promised to implement an independent review process for administrative segregation at the fifteenth day of segregation.

[120] On December 17, 2018, the Court of Appeal for Ontario extended the suspension until June 17, 2019, but the Court expressed disappointment that the proposed legislation did not appear to adequately deal with the s. 7 Charter breach identified by Associate Chief Justice Marrocco.[^32]

[121] Meanwhile also in November, the appeal in the BC Civil Liberties Case was argued and the Court reserved judgment. Following the hearing of this appeal, in December 2018, the Federal Government applied for an extension of the suspension to July 31, 2019.

[122] On January 5, 2019, the British Columbia Court of Appeal granted an extension until June 17, 2019, or until further order of the Court. [^33] The Court made its order subject to some conditions that ameliorated the conditions of the inmates still being subjected to administrative segregation. One of the condition was that the Correctional Service implement a fifteenth day independent review of administrative segregation.

[123] In compliance with the condition, the Correctional Service delegated the authority to release inmates to the Assistant Deputy Commissioner, Correctional Operations or Assistant Deputy Commissioner, Integrated Services. This delegation was implemented only for the Pacific Region, which includes British Columbia. The delegation was implemented by way of a memorandum from the Regional Deputy Commissioner; i.e.. it was carried out without any amendment to the Corrections and Conditional Release Act, the regulations, or CD-709.

[124] On March 18, 2019, Bill C-83 passed third reading in the House of Commons.

[125] In March 2019, the applicants in the BC Civil Liberties Assn Case applied for the imposition of additional terms ameliorating the conditions of administrative segregation during the suspension. The Court of Appeal reserved judgment on this request.

[126] On May 21, 2019, the British Columbia Court of Appeal added more conditions to the suspension order.[^34] Meanwhile, the Federal Government applied again to the Court for an extension of the suspension, this time to November 30, 2019.

[127] On June 6, 2019, the British Columbia Court of Appeal dismissed the extension request without prejudice to the Federal Government’s right to re-apply once it was known whether and in what form Bill C-83 would be enacted.[^35]

[128] On June 12, 2019, in Parliament, the Senate passed an amended version of Bill C-83.

[129] Meanwhile, the Federal Government still was unable to meet the June 17, 2019 deadline, and on June 12, 2019, with the declaration of invalidity to take effect imminently, the Federal Government made an emergency motion to the Supreme Court of Canada to obtain a temporary stay of Associate Chief Justice Marrocco’s declarations of constitutional invalidity. The Federal Government also delivered a notice of appeal of the Ontario Court of Appeal’s refusal to grant an extension to November 30, 2019.

[130] Justice Côté granted an interim extension of the suspension in Ontario until November 30, 2019 to permit the Associations to respond to the Federal Government’s motion for an extension of the suspension.

[131] On June 21, 2019, Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, was enacted by Parliament. The Federal Government did not accept the amendments proposed by the Senate with respect to the review process for placements in administrative segregation. Bill C-83, has not yet been proclaimed in force.

[132] On June 24, 2019, the British Columbia Court of Appeal released its decision in the BC Civil Liberties Case and substituted its own declarations of constitutional invalidity for those of Justice Leask, and the Court suspended the operation of its own declarations to June 28, 2019.[^36] The Federal Government then obtained a further extension of the declaration of constitutional invalidity from the British Columbia Court of Appeal until November 30, 2019.[^37]

[133] As noted above, Bill C-83 will eliminate the use of both administrative segregation and disciplinary segregation but authorize SIUs. Because Bill C-83 still contemplates circumstances where the inmate receives no time out of cell, and it does not actually end Canada’s ability to order solitary confinement.Bill C-83 provides for review by an independent external decision-maker with authority to release an inmate from segregation but the independent review is triggered only where an inmate is being denied his or her entitlements for five consecutive days, or for 15 days in total. If the independent reviewer is not satisfied that the Correctional Service has taken all reasonable steps to provide the entitlements, the reviewer can order the inmates’ release after a further seven days.

[134] The current situation is that pending the coming into force of Bill C-83, administrative segregation continues to operate under the unamended Corrections and Conditional Release Act because the orders made in the Cdn Civil Liberties Assn and the BC Civil Liberties Case are under suspension at least until November 30, 2019. The Correctional Service has made changes to the review process in British Columbia but did not make any change to the review process in Ontario.

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

[135] On January 27, 2015, in Ontario, In Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen,[^38] 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.

[136] 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.

[137] In December 2017, Associate Chief Justice Marrocco held that the administrative segregation sections of the CCRA contravened s. 7 of the Charter, and the contravention could not be saved under s. 1 of the Charter.[^39] He concluded, however, that the legislation authorizing administrative segregation was not contrary to sections 11 (h) and 12 of the Charter. Based on the s. 7 violation, he directed the Federal Government to redraft the legislation to make it compliant with the Charter.

[138] For reasons that will become particularly important to the discussion later about Charter damages, it is important to note the analytical framework for Associate Chief Justice Marrocco’s conclusion that the administrative segregation provisions of the CCRA should be redrafted. He began by finding that the Association as a litigant with public interest standing could not seek a remedy under s. 24 (1) of the Charter because its own constitutional rights were not engaged. He held that the Association could seek only declaratory relief under s. 52 (1) of the Constitutional Act, 1992 that would be available if the Association could demonstrate that the CCRA itself and not the implementation of the CCRA was contrary to the Charter. Next, Citing Little Sisters Book and Art Emporium v. Canada (Minister of Justice),[^40] he held that, as a matter of law, Parliament was entitled to assume that its enactments will be applied constitutionally by the public service and he concluded that the administration of the statutory scheme was not the source of the problem and that it was possible for the Correctional Service to administer the statutory scheme in a constitutionally proper way. The issue then was whether the CCRA itself was Charter compliant.

[139] Associate Chief Justice Marrocco made the following factual and legal findings: (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) as practiced by Corrections Canada, administrative segregation was what the Mandela Rules referred to as solitary confinement; (c) the placing of an inmate in in administrative segregation imposes a psychological stress, quite capable of producing serious permanent observable negative mental health effects; (d) 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; (e) the harmful effects of sensory deprivation caused by solitary confinement can occur as early as forty-eight hours after segregation; (f) administrative segregation can change brain activity and becomes symptomatic within seven days or less; (g) administrative segregation of fifteen days duration posed a serious risk of psychological harm; (h) administrative segregation exacerbates existing mental illness; (i) prolonged administrative segregation poses a serious risk of negative psychological effects; (j) 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; (k) the practice of keeping an inmate in administrative segregation for a prolonged period is harmful and offside responsible medical opinion; (l) lack of independent review of the warden’s decisions amounted to virtually no accountability for the decision to segregate; (m) 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, (n) 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.

[140] In reaching his conclusions, Associate Chief Justice Marrocco accepted the evidence of Drs. Martin and Chaimowitz , and Hannah-Moffat, (all witnesses in the Reddock Case) that a prolonged placement in administrative segregation causes harm to the inmate. Relying on their evidence, Associate Chief Justice Marrocco found that: administrative segregation was (a) a significant deprivation of liberty; (b) was harmful and imposed a psychological stress capable of producing serious permanent observable negative mental health effects; (c) caused sensory deprivation with harmful effects as early as 48 hours after the placement; (d) can alter brain activity with symptoms within seven days; (e) poses a serious risk of negative psychological effects when prolonged; and (f) as a practice is contrary to responsible medical opinion.

[141] The Association appealed the dismissal of the claims that were based on sections 11 (h) and 12 of the Charter, and on the appeal, it submitted that the Corrections and Conditional Release Act contravened s. 7 of the Charter for the additional reasons that it was grossly disproportionate and overbroad. The Federal Government did not cross-appeal.

[142] On the appeal, the Ontario Court of Appeal agreed with Associate Chief Justice Marrocco that there was no violation of s. 11 (h) of the Charter but reversing him, the Court held that the provisions in the Corrections and Conditional Release Act that authorized prolonged administrative segregation infringed s. 12 of the Charter and the infringement was not justified under s. 1 of the Charter. The Court held that a remedy pursuant to the superior court’s inherent jurisdiction and pursuant s. 52 (1) of the Constitution Act, 1982 was appropriate.

[143] The Court of Appeal did not find an additional violation of s. 7 of the Charter in part because the issue was subsumed by the s. 12 analysis[^41] and in part because, generally speaking, an appellate court will not entertain arguments not advanced in the court below.[^42]

[144] On the appeal, the Court of Appeal addressed the arguments about whether administrative segregation was contrary to s. 12 of the Charter. In making their original argument before Associate Chief Justice Marrocco that administrative segregation was a cruel and unusual treatment contrary to s. 12 of the Charter, the Association had argued that the evidence established that inmates aged 18-21, inmates with mental illness, and inmates placed in segregation for their own protection were harmed by any placement in administration regardless of its duration. On the Association’s appeal, the Court of Appeal, however, accepted Associate Chief Justice Marrocco conclusions that it could not be categorically shown that inmates aged 18-21, those with mental illness, and those placed in segregation for their own protection were harmed by any placement in administrative segregation. But, disagreeing with Associate Chief Justice Marrocco the Court of Appeal concluded categorically that prolonged administrative segregation of any inmate for more than fifteen consecutive days was unconstitutional as a cruel and unusual treatment contrary to s. 12 of the Charter.

[145] The Court of Appeal accepted that prolonged administrative segregation poses a serious risk of negative psychological effects and that these negative effects although not always observable are a foreseeable and expected result from the abnormal psychological stress of administrative segregation that will cause permanent psychological harm if the placement continues indefinitely. The Court found that prolonged administrative segregation has the potential to cause serious harm that could be permanent.

[146] Once again for reasons that will become particular important to the discussion later about Charter damages, it is important to note that the Court of Appeal disagreed with Associate Chief Justice Marrocco’s analytical framework that posited that it was possible for the Correctional Service to administer the statutory scheme in a constitutionally proper way. On this point, Justice Benotto stated at paragraphs 116-119 of her decision for the Court:

116. As I have mentioned, the application judge considered Little Sisters Book and Art Emporium v. Canada (Minister of Justice) and concluded that any problems with the scheme of administrative segregation were the results of maladministration, not unconstitutionality of the legislation. At para. 26, the application judge concluded:

Individual cases of maladministration where Correctional Service of Canada personnel contravene Correctional Service of Canada policies and in so doing violate an inmate's Charter rights do not prove that the Corrections and Conditional Release Act is incapable of constitutional administration.

117. I disagree that this is a case of maladministration. In my view, this is not a Little Sisters situation.

118. The court in Little Sisters found that discrimination suffered by the appellants was not the result of an unconstitutional statute and that the statutory provisions, on their face, did not infringe s. 15. The problem in Little Sisters was the manner in which the provisions were enforced. There, the Supreme Court of Canada concluded that the appellant's s. 15 rights had been breached because of how the statute was administered but found that the statute was itself valid.

119. Such is not the case here. Prolonged administrative segregation subjects inmates to grossly disproportionate treatment. As I have explained, ss. 31-37 of the Act authorize and do not safeguard against such treatment. Thus, the Act infringes s. 12.

[147] As noted above, both parties are at present seeking leave to appeal the Court of Appeal’s decision to the Supreme Court of Canada.

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

[148] 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.

[149] On January 17, 2018, Justice Leask held that the administrative segregation sections of the Corrections and Conditional Release Act contravened s. 7 and s. 15 of the Charter, and the contraventions could not be saved under s. 1 of the Charter.[^43] He declared ss. 31-33 and 37 of the CCRA to be of no force and effect. He did not find a breach of sections 9 and 12 of the Charter. Justice Leask suspended his declaratory order for twelve months and ordered the Federal Government to redraft the legislation within twelve months. It is worth noting that Justice Leask went further then Associate Chief Justice Marrocco in concluding that review process for placements in administrative segregation was inadequate because he required the initial review to be conducted by an external adjudicator; i.e., someone independent of the Correctional Service.

[150] For present purposes, it is not necessary to discuss Justice Leask’s findings with respect to s. 15 of the Charter other than to note that the they were connected to his findings with respect to sections 7 and 12 of the Charter.

[151] With respect to s. 7 (and also s. 15) of the CharterJustice Leask made the following factual and legal findings: (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; (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; (n) isolating inmates was not necessary to achieve the safety and security objectives of administrative segregation; and (o) prolonged periods of administrative segregation was unnecessary to eliminate the safety and security issues and this could be achieved by alternative measures.

[152] At the BC Civil Liberties Assn trial, the Federal Government conceded that sections 31-33 and 37 of the CCRA engaged the inmates’ liberty interest, but Justice Leask concluded that their interests in life and security of the person were also engaged. Justice Leask concluded that the impugned sections of the CCRA authorized the indefinite and prolonged use of administrative segregation and the inmate’s rights under s. 7 of the Charter were violated. He concluded that the impugned provisions contravened s. 7 because their interference with life, liberty, and the security of the person were overbroad because: (a) the harm caused by prolonged confinement in administrative segregation undermines the maintenance of institutional security as well as the ultimate goal of achieving public protection by fostering the rehabilitation of offenders and their successful reintegration into the community; (b) prolonged confinement in administrative segregation is not necessary to achieve the safety or security objectives that trigger its use and less harmful measures would achieve the objectives underlying the legislation; and (c) there was no rational connection between the legitimate security needs and the authority to keep inmates in what amounts to solitary confinement for prolonged months or even years.

[153] In the BC Civil Liberties Assn Case, Justice Leask found that administrative segregation causes serious harm. He stated at paragraphs 247-250 and 252 of his decision:[^44]

247. I find as a fact that administrative segregation as enacted by s. 31 of the CCRA 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. Some of the specific harms 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. 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.

248. 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.

249. While many of the acute symptoms are likely to subside upon termination of segregation, many inmates are likely to suffer permanent harm as a result of their confinement. This harm is most commonly manifested by a continued intolerance of social interaction, which has repercussions for inmates' ability to successfully readjust to the social environment of the prison general population and to the broader community upon release from prison.

250. Negative health effects can occur after only a few days in segregation, and those harms increase as the duration of the time spent in segregation increases. The 15-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. It is, nevertheless, a defensible standard.

251. I accept that the early 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.

[154] Pausing here, for the discussion later in these Reasons for Decision about remedies, it is worth pointing out that Justice Leask did not address the application of s. 24 (1) of the Charter to the circumstances of the BC Civil Liberties Case. The remedy sought by the Association was a declaration of invalidity pursuant to s. 52 (1) of the Constitution Act, 1982.

[155] The Federal Government appealed Justice Leask’s decision, but it did not appeal his ruling that the review provisions of the CCRA did not pass Charter scrutiny. There was no cross-appeal of Justice Leask’s decision that the impugned provisions of the CCRA did not violate s. 12 of the Charter. So that issue was not before the British Columbia Court of Appeal.

[156] More precisely, the Federal Government appealed Justice Leask’s conclusions that the impugned provisions of the CCRA contravened s. 7 of the Charter. It submitted that he had erred by failing to conclude that any Charter violations were justified under s. 1 of the Charter.

[157] Unlike the situation in the Reddock Case, on the appeal, the Federal Government did not dispute that the inmate’s rights to life and security of the person were engaged in addition to the inmate’s liberty interest.

[158] On the appeal, the Federal Government submitted that the CCRA itself was sound. It submitted that the CCRA did not authorize indefinite and prolonged confinement in administrative segregation and if there were Charter breaches, they were found in the Correctional Service’s misapplication of a constitutionally compliant regime for administrative segregation.

[159] Thus, the Federal Government submitted that Association was not entitled to a declaration of constitutional invalidity under s. 52 (1) of the Constitution Act, 1982. The Federal Government, relying on R. v. Ferguson,[^45] also argued that the Association was not entitled to a remedy for the Correctional Service’s misapplication of the CCRA. The Federal Government argued that even if there were individual Charter breaches, s. 24 (1) of the Charter, the remedies provision, provides a remedy only to a party suffering an infringement of his or her own Charter rights. The Association’s Charter rights were not engaged, and, therefore no s. 24 (1) remedy was available to the Association.

[160] The British Columbia Court of Appeal in a judgment written by Justice Groberman,[^46] (Justices Willcock and Fitch concurring) varied Justice Leask’s decision on matters not pertinent to the immediate case.

[161] On the pertinent issues, the British Columbia Court of Appeal concluded that the CCRA authorized indefinite and prolonged confinement in administrative segregation. The Court rejected the Federal Government’s argument that the indefinite and prolonged confinements of administrative segregation were caused by the Correctional Service misapplying the statute. The Court concluded that the Charter violations were a product of the CCRA itself. At paragraph 160 of his judgment, Justice Groberman said:

160. While decisions by CSC staff in particular cases to maintain the confinement of inmates in segregation for lengthy periods may have been imprudent or short-sighted, or simply hamstrung by the operational realities within which CSC must work, those decisions cannot be characterized as running afoul of the requirements of the Act.

[162] Although he preferred to analyze the violation of the principles of fundamental justice through the lens of gross disproportionality, Justice Groberman found no error in Justice Leask’s findings that: (a) the provisions of the CCRA that authorized indefinite and prolonged solitary confinement were overbroad and violated s. 7 of the Charter; and (b) the impugned provisions could not be justified under s. 1 of the Charter. At paragraph 167 of his judgment, Justice Justice Groberman stated:

167. In my respectful view, a legislative provision that authorizes the prolonged and indefinite use of administrative segregation in circumstances that constitute the solitary confinement of an inmate within the meaning of the Mandela Rules deprives an inmate of life, liberty and security of the person in a way that is grossly disproportionate to the objectives of the law. In addition, the draconian impact of the law on segregated inmates, as reflected in Canada's historical experience with administrative segregation and in the judge's detailed factual findings, is so grossly disproportionate to the objectives of the provision that it offends the fundamental norms of a free and democratic society.

[163] Turning to the matter of remedies, the British Columbia Court of Appeal held that the plaintiffs and the intervenors, who were public interest litigants whose own Charter rights had not been violated, were not entitled to a remedy under s. 24 (1) of the Charter.

[164] The Court held that the superior court has an inherent jurisdiction to grant a declaration that will strike down legislation or to declare that a statute was being applied in a way that violates the Charter. Justice Groberman noted that 52 (1) of the Constitution Act, 1982 recognized the superior court’s jurisdiction to make declaratory judgments.[^47] He said that the availability of common law declaratory relief provided an important remedy where relief under s. 24 (1) of the Charter was unavailable.[^48]

[165] In the end result, the British Columbia Court of Appeal substituted its declarations for the declarations of Justice Leask, which it had suspended to June 28, 2019 and the Court suspended the substitute declarations also to June 28, 2019. As described above, the declarations have been further suspended at least until November 30, 2019.

8. Brazeau v. Attorney General (Canada)

[166] On July 17, 2015, in Ontario, the Brazeau Case was commenced as a class action under the Class Proceedings Act, 1992. On behalf of a class of inmates who are seriously mentally ill, Christopher Brazeau and David Kift alleged that by placing mentally ill inmates in administrative segregation, the Federal Government breached the inmate’s rights under sections 7, 9, and 12 of the Charter. The Class Members sought an aggregate award of Charter damages without prejudice to their right to claim more at individual issues trials. In 2016, on consent, the action was certified as a class proceeding.[^49]

[167] After a summary judgment motion that was argued over five days in February 2019, on March 25, 2019, I concluded that:

i. 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;

ii. there was no breach of s. 9 of the Charter;

iii. there was a class-wide breach of s. 7 of the Charter because the review process for administrative segregation contravened the Charter;

iv. there was a breach of s. 7 and of s. 12 of the Charter for those Class Members who were involuntarily placed in administrative segregation for more than thirty days;

v. there was a breach of s. 7 and s. 12 of the Charter for those Class Members who were voluntarily placed in administrative segregation for more than sixty days;

vi. Notwithstanding the principles from Mackin v. New Brunswick (Minister of Finance),[^50] vindication and deterrence damages are available to the whole class under s. 24 (1) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to