COURT FILE NO.: CV-18-591719CP

DATE: 2020/04/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CONREY FRANCIS

Plaintiff

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Defendant

James Sayce, Charles Hatt and Nathalie Gondek for the Plaintiff

Victoria Yankou, Alexandra Clark, Tanya Jemec, Andrea Bolieiro, and Hera Evans for the Defendant

Proceeding under the Class Proceedings Act, 1992

HEARD: January 20-24, 2020

PERELL, J.

REASONS FOR DECISION

People are imprisoned for years without trial, …: this is called elimination of unreliable elements. Such phraseology is needed if one wants to name things without calling up mental pictures of them. G.W. Orwell, Politics and the English Language.¹

A. Introduction. 3

B. Evidentiary Record. 8

1. Testimonial and Documentary Evidence. 8

2. The Admissibility of the Evidence of Ms. Cusack, Mr. Davidson, Ms. Ebel, Mr. Francis, and Mr. Mohamed 13

3. The Hearsay Exception for Public Documents. 14

4. The Interim and Final Reports of Professor Hannah-Moffat 15

5. The Role of Stare Decisis in the Immediate Case. 18

C. Is the Case Suitable for Summary Judgment?. 18

D. The History of Solitary Confinement 22

1. A Survey History and Historiography of Solitary Confinement and Administrative Segregation up until the Commencement of the Class Period (April 20, 2015) 22

2. The History of Administrative Segregation in Ontario after April 20, 2015. 31

E. Legal History of Administrative Segregation Jurisprudence. 36

F. Ontario’s Correctional Institutions. 45

1. The Ministry of Correctional Services Act 45

2. The Regulatory Scheme and Policy in Ontario for Administrative Segregation. 51

(a) Ontario Regulation 778. 51

(b) Ministry Policy Documents. 54

3. Inmate Demographics. 57

4. The Circumstances of Administrative Segregation. 58

5. The Inmates’ Evidence. 59

(a) Mr. Davidson. 59

(b) Ms. Ebel 59

(c) Mr. Francis. 59

(d) Mr. Mohamed. 60

(e) Ms. Cusack’s Evidence. 61

6. Administrative Segregation Placements in Practice. 61

7. The Expert Evidence on Administrative Segregation. 62

(a) Dr. Austin (plaintiff witness) 63

(b) Dr. Coyle (plaintiff witness) 64

(c) Dr. Chaimowitz (plaintiff witness) 65

(d) Dr. Dvoskin (defence witness) 66

(e) Dr. Grassian (plaintiff witness) 67

(f) Dr. Haney (plaintiff witness) 68

(g) Dr. Labrecque (defence witness) 69

(h) Dr. Morgan (defence witness) 69

G. Major Findings of Fact 70

H. The Limitation Period. 73

I. The Request to Amend the Class Period and Extend the Class Definition. 75

J. Has Ontario Contravened Sections 7 and 12 of the Charter?. 76

1. The Section 7 (Right to Life, Liberty, and Security of the Person) – Substantive Claim.. 76

2. The Section 7 (Right to Life, Liberty, and Security of the Person) – Due Process Claim.. 81

3. The Section 12 of the Charter (Cruel and Unusual Treatment) Claim.. 83

K. Section 1 of the Charter. 85

L. The Proceedings Against the Crown Act and the Crown Liability and Proceedings Act, 2019. 87

M. Is Ontario Liable for Negligence?. 88

1. Introduction and Overview of Ontario’s Arguments. 88

2. Duty of Care Analysis for Public Authorities: General Principles. 94

3. Proximity and Sources of a Duty of Care. 96

4. The Scope of Liability for Policy Decisions. 98

5. The Court of Appeal’s Decision in Reddock v. Canada (Attorney General), 107

6. Residual Policy Factors Negating a Duty of Care. 110

7. Systemic Negligence. 111

8. Duty of Care Conclusion. 114

9. Are the Class Members’ Negligence Claims Precluded by s. 5 of the Former Proceedings Against the Crown Act? 115

10. Are the Class Members’ Negligence Claims Precluded by s. 11 of the Crown Liability and Proceedings Act, 2019?. 117

11. Standard of Care Analysis. 122

12. Causation and Class-Wide Damages for Negligence. 125

N. Remedies. 125

1. Introduction. 125

2. Sections 24 and 52 of the Charter and the Availability of Charter Damages. 126

(a) General Principles. 126

(b) The Availability of Charter Damages in the Immediate Case: Part One. 134

(c) The Availability of Charter Damages in the Immediate Case: Part Two. 138

(d) Quantification of Charter Damages. 140

(e) The Interrelationship between Common Law Damages and Charter Damages. 143

3. Aggregate Damages. 144

4. Punitive Damages. 146

O. Conclusion. 148

A. Introduction

[1]. If one wants to name things without calling up mental pictures of them, call a prison a correctional institution. Pursuant to the Ministry of Correctional Services Act² and Ont. Reg. 778³, the Defendant Her Majesty the Queen in Right of Ontario (“Ontario”) operates correctional institutions across the province. Ontario’s civil servants who operate the prisons use administrative segregation. If one wants to name things without calling up mental pictures of them administrative segregation is solitary confinement. It is a dungeon inside a prison.

[2]. This is a summary judgment motion in this certified class action under the Class Proceedings Act, 1992⁴. The Class Members are prisoners of the correctional institutions. The Class Members allege that they were and are the victims of negligence and contraventions of the Canadian Charter of Rights and Freedoms.⁵

[3]. The Plaintiff, Conrey Francis, was an inmate of the Toronto South Detention Centre. He was placed in administrative segregation. In his certified class action,⁶ Mr. Francis alleges that Ontario was negligent and that Ontario breached his and other inmates' rights under sections 7 and 12 of the Charter. Mr. Francis and the Class Members seek common law damages and so-called Charter damages pursuant to section 24 of the Charter.

[4]. The Class Members are two partially overlapping subsets of the universal set of inmates at the correctional institutions. More precisely, the Class Members are: (a) inmates who had a serious mental illness and were placed in administrative segregation for any period of days (the “SMI Inmates”); and, or, (b) inmates who were placed in administrative segregation for 15 or more days (the “Prolonged Inmates”). Thus, the class is defined as follows:⁷

All current and former inmates, who were alive as of April 20, 2015:

I. Inmates with a Serious Mental Illness

(a) who were subjected to Administrative Segregation for any length of time at one of the Correctional Institutions between January 1, 2009 and the date of certification;

(b) who were diagnosed by a medical doctor before or during their incarceration with at least one of the following disorders, as defined in the relevant Diagnostic and Statistics Manual of Mental Disorders (“DSM”):

Schizophrenia (all sub-types), Delusional disorder, Schizophreniform disorder, Schizoaffective disorder, Brief psychotic disorder, Substance-induced psychotic disorder (excluding intoxications and withdrawal), Psychotic disorder not otherwise specified, Major depressive disorders, Bipolar disorder I, Bipolar disorder II, Neurocognitive disorders and/or Delirium, Dementia and Amnestic and Other Cognitive Disorders, Post-Traumatic Stress Disorder; Obsessive Compulsive Disorder; or Borderline Personality Disorder;

and who suffered from their disorder, in a manner described in Appendix “A”, and,

(c) who reported such diagnosis and suffering to the Defendant's agents before or during their Administrative Segregation (the “SMI Inmates”);

or,

II. Inmates in Prolonged Administrative Segregation

who were subjected to Administrative Segregation for 15 or more consecutive days (“Prolonged Administrative Segregation”) at one of the Correctional Institutions between January 1, 2009 and the date of certification (the “Prolonged Inmates”)

(together the “Class Members”).

“Correctional Institutions” are correctional institutions as defined in the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, excluding the St. Lawrence Valley Correctional and Treatment Centre.

“Inmates” are inmates as defined in the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22.

“Administrative Segregation” refers to segregation as outlined in section 34 of Regulation 778, R.R.O. 1990 under Ministry of Correctional Services Act, R.S.O. 1990, c. M.22.

Appendix "A" states as follows:

• Significant impairment in judgment (including all of the following: the inability to make decisions, confusion, and disorientation);

• Significant impairment in thinking (including both paranoia and delusions that make the offender a danger to self or others);

• Significant impairment in mood (including constant depressed mood plus helplessness and hopelessness; agitation; manic mood that interferes with ability to effectively interact with other offenders or staff);

• Significant impairment in communications that interferes with ability to effectively interact with other offenders or staff; hallucinations; delusions; or severe obsessional rituals that interferes with ability to effectively interact with other offenders or staff;

• Chronic and severe suicidal ideation resulting in increased risk for suicide attempts; or

• Chronic and severe self-injury.

[5]. As defined, the Class Period begins on January 1, 2009. However, as the discussion later will reveal, for limitation periods and for other matters including class size, Class Period, Class Definition, scope of the common issues, determination of the standard of care, and the calculation of damages, it shall be important to keep in mind that the action was commenced on April 20, 2017 by Statement of Claim. Thus, the limitation period tolled on April 20, 2017. Using a two-year limitation period, the resultant appropriate Class Period is the 41 months from April 20, 2015 to September 18, 2018.

[6]. The action was certified as a class proceeding on September 18, 2018.⁸

[7]. The following common issues were certified:

Systemic Negligence

(a) By the operation and management of the Correctional Institutions from January 1, 2009 to the date of certification, did the Defendant owe a duty of care to the Class Members?

(b) If the answer to (a) is yes, what is the nature of that duty of care?

(c) By the use of Administrative Segregation and/or Prolonged Administrative Segregation at the Correctional Institutions from January 1, 2009 to the date of certification, did the Defendant breach a duty of care owed to some or all of the Class Members?

Sections 7 & 12 of the Charter

(d) Did the use of Administrative Segregation deprive the SMI Inmates of security of the person under s. 7 of the Charter?

(e) Did the use of Prolonged Administrative Segregation deprive the Prolonged Inmates of security of the person under s. 7 of the Charter?

(f) If the answer to (d) or (e) is “yes”, does the deprivation fail to accord with the principles of fundamental justice for some or all of the Class Members?

(g) If the answer to either question in (f) is “yes”, does the deprivation fail to accord with the principles of fundamental justice where the Class Members were placed in Administrative Segregation or Prolonged Administrative Segregation and the reason indicated for such placement was:

(i) at their own request;

(ii) for their own protection, including protection for medical reasons;

(iii) to protect the security of the institution or safety of others, including protection for medical reasons;

(iv) for alleged misconduct of a serious nature; or

(v) for any other reason?

(h) Does the deprivation of liberty under s. 7 of the Charter fail to accord with the principles of fundamental justice for some or all of the Class Members?

(i) If the answer to (h) is “yes”, does the deprivation fail to accord with the principles of fundamental justice where the Class Members were placed in Administrative Segregation or Prolonged Administrative Segregation and the reason indicated for such placement was:

(i) at their own request;

(ii) for their own protection, including protection for medical reasons;

(iii) to protect the security of the institution or safety of others, including protection for medical reasons;

(iv) for alleged misconduct of a serious nature; or

(v) for any other reason?

(j) Did the use of Prolonged Administrative Segregation constitute cruel and unusual treatment or punishment under s. 12 of the Charter for the Prolonged Inmates where the Prolonged Inmates were placed in Administrative Segregation and the reason indicated for such placement was:

(i) at their own request;

(ii) for their own protection, including protection for medical reasons;

(iii) to protect the security of the institution or safety of others, including protection for medical reasons;

(iv) for alleged misconduct of a serious nature; or

(v) for any other reason?

(k) Did the use of Administrative Segregation constitute cruel and unusual treatment or punishment under s. 12 of the Charter for the SMI Inmates where the SMI Inmates were placed in Administrative Segregation and the reason indicated for such placement was:

(i) at their own request;

(ii) for their own protection, including protection for medical reasons;

(iii) to protect the security of the institution or safety of others, including protection for medical reasons;

(iv) for alleged misconduct of a serious nature; or

(v) for any other reason?

(l) If the answer to questions (g), (i), (j) or (k) is “yes”, were such violation(s) justified under section 1 of the Charter?

(m) If the answer to question (l) is “no”, are damages pursuant to section 24(1) of the Charter an appropriate remedy?

Aggregate damages

(n) Is this an appropriate case for an award of aggregate damages pursuant to section 24(1) of the Class Proceedings Act, 1992?

(o) If the answer to (n) is “yes”, what is the appropriate quantum of such damages?

Punitive damages

(p) Does the conduct of the Defendant merit an award of punitive damages?

(q) If the answer to (p) is “yes”, what quantum should be awarded for punitive damages?

Limitation period

(r) What limitation period or limitation periods apply to the causes of action advanced in this case?

(s) What circumstances are relevant to determining when the limitation period or limitation periods referred to in question (r) begin to run?

[8]. To answer the common issues, there are seven major topics for which I must have findings of fact and law.

a. First, there is the issue of whether the case is suitable for summary judgment. Ontario contents that this action is inappropriate for a summary judgment. I foreshadow to say, that I shall be deciding the case, and I shall not be sending it on to a trial.

b. Second, there is the matter of making findings of fact both: (a) macroscopically, which involves making findings about the history of solitary confinement, including its legal history; and also, (b) microscopically, which involves making findings about how administration segregation was practiced in Ontario and about what Ontario knew about the history of solitary confinement and its relationship to administrative segregation.

c. Third, there is the issue of what is the limitation period. Deciding this issue has an effect on the Class Period, class size, and on the determination of the common issues. I foreshadow to say that on this issue, I agree with Ontario’s conclusion, which, as I have already noted above, is that the limitation period tolled on April 20, 2017.

d. Fourth, there is the issue of whether Ontario has contravened sections 7 and 12 of the Charter. I foreshadow that my conclusion to this issue is: yes, it did.

e. Fifth, there is the issue of whether the infringements of the Charter in the immediate case are justified under section 1 of the Charter. I foreshadow that my conclusion is: no, the Charter breaches are not justifiable.

f. Sixth, there is the issue of whether Ontario is liable for negligence. I foreshadow that my conclusion is: yes, it was culpably negligent. For the negligence cause of action, there are a myriad of issues that have to be addressed, including the questions: (a) Have the elements of a common law negligence claim been proven including the duty of care element? (b) What is the difference between a policy decision and operational activity? (c) What is the nature of Crown immunity? (d) Is Mr. Francis’ negligence claim precluded by s. 5 of the Proceedings Against the Crown Act;⁹ (e) Does s. 11 of the Crown Liability and Proceedings Act, 2019,¹⁰ which replaced the Proceedings Against the Crown Act, change the law about Crown immunity? (f) Is Mr. Francis’ negligence claim precluded by s. 11 of the Crown Liability and Proceedings Act, 2019,; and, (g) What, if anything, makes the case at bar different than Reddock v. Canada (Attorney General),¹¹ where the Court of Appeal reversed my finding of systemic negligence in a comparable case against the Canadian Correctional Service (the Federal Government)?

g. Seventh, there is the issue of remedies and the availability of Charter damages and common law damages to the Class Members. I foreshadow that my conclusion is to award the Class Members an aggregate damages award of $30.0 million without prejudice to claims for further compensation at individual issues trials.

B. Evidentiary Record

1. Testimonial and Documentary Evidence

[9]. The 15,569-page evidentiary record for the summary judgment motion consisted of: (a) Mr. Francis’ seven volume Motion Record (4,258 pages); (b) Mr. Francis’ Supplementary Motion Record (70 pages); (c) Mr. Francis’s two-volume Reply Record for Summary Judgment (1,208 pages); (d) Ontario’s four-volume Responding Motion record (2,541 pages); (e) Ontario’s Cross-motion Record for limitation period issues (25 pages); (f) the nine volume Transcript and Exhibit Brief (5,818 pages); and (g) the three volume Undertakings and Exhibits Brief (1,649 pages).¹²

[10]. Mr. Francis supported his summary judgment motion with:

• the affidavits of James Austin dated December 6, 2018 and July 11, 2019. Dr. Austin was cross-examined. Dr. Austin has an over 50-year career as a sociologist studying correctional institutions in the United States. He received his PhD in sociology from the University of California at Davis. For five years, he worked as a correctional sociologist at Stateville and Joliet prisons in Illinois. He has conducted studies of the use of segregation in Alabama, California, Colorado, Georgia, Kentucky, Illinois, Maryland, Mississippi, New Mexico, New York, Ohio, Oklahoma, South Carolina, and for the U.S. Federal Bureau of Prisons. He is a former chair of the National Policy Council for the American Society of Criminology.

• the affidavit of Michael Bryan dated October 11, 2017. Mr. Bryan was an inmate of Maplehurst Correctional Complex, Elgin Middlesex Detention Centre, and Toronto East Detention Centre. He passed away before he could be cross-examined. For the purposes of this summary judgment motion, I shall disregard his affidavit.

• the affidavit of Gary Chaimowitz dated December 6, 2018. Dr. Chaimowitz was cross-examined. Dr. Chaimowitz is a professor at McMaster University, in Hamilton, Ontario, and he is the department head of the Forensic Psychiatry Program at St. Joseph’s Healthcare in Hamilton. He is a medical doctor and certified in psychiatry by the Royal College of Physicians of Canada. He has worked in forensic psychiatry since 1994. He has treated inmates of federal penitentiaries and Ontario prisons, many of whom had been placed in administrative segregation. He provided expert evidence in: Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen,¹³ Brazeau v. Attorney General (Canada)¹⁴ and Reddock v. Canada (Attorney General).¹⁵

• the affidavit of Andrew Coyle, PhD (Faculty of Law, University of Edinburgh), dated December 6, 2018. Dr. Coyle was cross-examined. Dr. Coyle is an emeritus professor of King’s College at the University of London. Before his distinguished academic career, Dr. Coyle was the warden (governor) of three major prisons in Scotland, including Peterhead Prison, a maximum-security institution for Scotland’s most dangerous prisoners. Between 1991 and 1997, he was the governor of Brixton Prison in London, a maximum-security institution. He was the founding director of the International Centre for Prison Studies, whose mission is to conduct research on prison policy, prison management, and prison reform. He has been retained by prison administrations across the world and has visited high-security prisons in over sixty countries. He drafted the European Prison Rules (2006), and he was an adviser to the United Nations in its review of the UN Standard Minimum Rules for the Treatment of Prisoners (“the Nelson Mandela Rules). He was on the drafting team for the Nelson Mandela Rules. In Canada, he was a witness at the coroner’s inquiry into the death of Ashley Smith. In Canada, he provided expert opinions in: Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen,¹⁶ British Columbia Civil Liberties Association v. Canada (Attorney General),¹⁷ and Reddock v. Canada (Attorney General).¹⁸

• the affidavit of Bernadette Cusack dated July 11, 2019. Ms. Cusack was cross-examined. Ms. Cusack is a registered nurse who was employed by the Ontario Ministry of Community Safety and Correctional Services at the North Bay Jail between November 2011 and April 2013. She has a BA (York University) in English, a Masters’ Degree (University of Mississippi) and a BSc. (nursing) from Kansas University.

• the affidavit of David Davidson dated October 10, 2017. Mr. Davidson was cross-examined. Mr. Davidson was an inmate at the Maplehurst Correction Complex.

• the affidavit of Krista Ebel dated October 11, 2017. Ms. Ebel was cross-examined. Ms. Ebel was an inmate at the Owen Sound Jail and the Vanier Centre for Women.

• the affidavit of Conrey Francis dated December 7, 2018. Mr. Francis is the Representative Plaintiff. Mr. Francis was cross-examined. He was an inmate at the Toronto South Correctional Centre.

• the affidavits of Stuart Grassian dated December 7, 2018 and July 10, 2019. Dr. Grassian was cross-examined. 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. Dr. Grassian has been involved in the observation and assessment of over 400 inmates who had experienced solitary confinement. Many of the assessments were made during an inmate’s placement in solitary confinement. Dr. Grassian is a scholar about the psychiatric effects of solitary confinement, having written in 1983 a seminal article in the American Journal of Psychiatry. In 2006, Dr. Grassian published another article reviewing the academic literature on solitary confinement. He has consulted on solitary confinement, mental health issues and conditions of confinement in Florida, New York, Ohio, Pennsylvania, Texas, and Wisconsin. 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 British Columbia Civil Liberties Association v. Canada (Attorney General),¹⁹ Brazeau v. Attorney General (Canada)²⁰ and Reddock v. Canada (Attorney General).²¹ His scholarly work was referred to in Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen.²²

• the affidavit of Craig Haney dated July 12, 2019. Mr. Haney was cross-examined. Dr. Haney is the former President of the University of California, Santa Cruz, and he is a Distinguished Professor of Psychology at that university. His specialty is psychology and law. He has a B.A. degree in psychology for the University of Pennsylvania, an M.A. and a Ph.D. in psychology and a J.D. degree from Stanford University. He has studied the psychological effects of imprisonment at correctional institutions, including solitary confinement. Amongst his published works is Reforming Punishment: Psychological Limits to the Pains of Imprisonment.²³ In Canada, he was a witness in British Columbia Civil Liberties Association v. Canada (Attorney General)²⁴ and Brazeau v. Attorney General (Canada).²⁵

• the affidavits of Catherine MacDonald dated December 7, 2018 and July 15, 2019. Ms. MacDonald is a legal assistant/clerk with Koskie Minsky LLP, Class Counsel. Ms. MacDonald delivered an extensive brief of documents about administrative segregation.

• the reports of Kelly Hannah-Moffat, which was appended to the affidavit of David Rosenberg (see below). Professor Hannah-Moffat has a Ph.D. in criminology, is a Vice-President of the University of Toronto, a professor of sociology and criminology, and she is the former director of the Centre of Criminology and Sociolegal Studies at the University of Toronto. She was a policy advisor to Madame Justice Arbour on the Commission of Inquiry into Certain Events at the Prison for Women in Kingston. Professor Hannah-Moffat was an expert witness for the Office of the Ontario Coroner at the Ashely Smith Inquest. Professor Hannah-Moffat was appointed by Ontario to be the Independent Expert on Human Rights and Corrections to provide impartial advice to assist with the implementation of the terms of the agreement in the Human Rights Commission proceedings in the matter of the complaint of Christina Jahn.

• the affidavit of Ahmed Mohamed dated October 6, 2017. Mr Mohamed was cross-examined. Mr. Mohamed was an inmate of the Niagara Detention Centre and the Central North Correction Centre (“Penetang”).

• the affidavit of Nosakhare Ohenhen dated October 12, 2017. Mr. Ohenhen was an inmate at several correctional institutions in Ontario. Class Counsel lost contact with him and was unable to produce Mr. Ohenhen for cross-examination. For the purposes of this summary judgment motion, I shall disregard Mr. Ohenhen’s affidavit.

• the affidavit of David Rosenfeld dated December 5, 2019. Mr. Rosenfeld is a partner with Koskie Minsky LLP, Class Counsel. He appended to his affidavit the reports of Professor Hannah-Moffat (see above).

[11]. Ontario resisted the summary judgment motion with:

• the affidavit of Lana Armstrong dated May 28, 2019. Ms. Armstrong was cross-examined. Ms. Armstrong is a civil servant employed by Ontario. She is the Manager of Social Work Services for the Ministry of the Solicitor General at the Toronto South Detention Centre. She supervises the social workers and staff of the Programs Department at the Centre.

• the affidavit of Joel Dvoskin dated May 29, 2019. Dr. Dvoskin was cross-examined. Dr. Dvoskin is a clinical, forensic, and correctional psychologist. He is an assistant professor in the Department of Psychiatry at the University of Arizona, College of Medicine. He is a Fellow of the American Psychological Association and also of the American Psychology-Law Society. Dr. Dvoskin has treated inmates in correctional institutions in the United States and currently has a full-time private practice of forensic psychology, which includes consultation in the provision of mental health and criminal justice services.

• the affidavit of Michael Kirk dated May 29, 2019. Mr. Kirk was cross-examined. Mr. Kirk is a civil servant employed by Ontario. He is the Supervisor of the Strategic Analysis Unit in the Research, Analytics and Innovation Branch within the Strategic Policy, Research and Innovation Division of the Ministry of the Solicitor General.

• the affidavit of Ryan Labrecque dated May 28, 2019. Dr. Labrecque was cross-examined. Dr. Labrecque is a criminologist and an assistant professor in the Department of Criminal Justice at the University of Central Florida. He has published articles on restrictive housing and was commissioned by the American National Institute of Justice to write a White Paper on the use and function of administrative segregation in the United States. He has worked in correctional institutions in the United States as a correctional officer, mental health counselor, juvenile program specialist, correctional social worker, and a probation and parole officer.

• the affidavit of Robert Dean Morgan dated May 28, 2019. Dr. Morgan was cross-examined. Dr. Morgan is a forensic psychologist, who has 20 years’ of experience providing correctional and forensic services to inmates. He is the Department Chairman and the John G. Skeleton, Jr. Regents Endowed Professor in Psychological Sciences and the Director of the Institute for Forensic Sciences at Texas Tech University. He has authored or co-authored over 95 publications, including a 2016 study of the magnitude of health and mental health effects experienced by inmates in administrative segregation. He co-developed a treatment program for inmates placed in segregated housing units. In Canada, he was a witness in Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen²⁶ and Brazeau v. Attorney General (Canada).²⁷ His academic works were discussed in the other Canadian cases about administrative segregation.

• the affidavit of Jodi Melnychuk dated May 28, 2019. Ms. Melnychuk was cross-examined. Ms. Melnychuk is a civil servant employed by Ontario, who began her career in 2003. She has held position with various ministries including: Economic Development and Trade; Citizenship and Immigration; Municipal Affairs and Housing; Health and Long-Term Care; and the Cabinet Office. She is the Director of Operational Policy and Procedures within the Corrections Modernization Division of the Ministry of the Solicitor General. She oversees the modernization of the policies governing the functioning of Ontario’s correctional institutions.

• the affidavit of Daryl Pitfield dated May 29, 2019. Mr. Pitfield was cross-examined. Mr. Pitfield is a civil servant employed by Ontario, who worked as a correctional officer at the Sault St. Marie Jail for the Ministry of the Attorney General for thirty years. He began his career with the Ministry in 1987, where he worked as a correctional officer for approximately 16 years. At present, he is the Director of Institutional Operations at the Ministry.

• the affidavit of Steven F. Small dated May 27, 2019. Mr. Small was cross-examined. Mr. Small is a civil servant employed by Ontario, who worked with the Ministry of Community Safety and Correctional Services, now the Ministry of the Solicitor General, for over thirty years. Most recently, he was the Assistant Deputy Minister of Institutional Services from 2008 until his retirement on December 31, 2015.

• the affidavit of Joy Stevenson dated May 29, 2019. Ms. Stevenson was cross-examined. Ms. Stevenson is a civil servant employed by Ontario. She is the Director of Finance/Chief Financial Officer, Business & Financial Planning Branch for the Ministry of the Solicitor General.

2. The Admissibility of the Evidence of Ms. Cusack, Mr. Davidson, Ms. Ebel, Mr. Francis, and Mr. Mohamed

[12]. Ontario submits that the affidavit evidence of Ms. Cusack, Mr. Davidson, Ms. Ebel, Mr. Francis, and Mr. Mohamed is inadmissible because it was improper reply evidence. Ontario says that in Ontario’s responding motion material, it did not introduce any new issues or enlarge any issue that could not have been reasonably been anticipated by Mr. Francis and, therefore, the reply evidence of Nurse Cusack and of the inmate affiants is not proper and should be given no weight.

[13]. To determine the merits of Ontario’s objection, it should be noted that the affidavits of these inmate witnesses were originally prepared for the certification motion. However, after certification was granted, their affidavits were not included in Mr. Francis’ motion record for the summary judgment motion. Mr. Francis believed that the evidence from these deponents was not necessary, because Ontario had already consented to the common issues, and he thought the issue of commonality had been put to bed. However, in its responding materials on the summary judgment motion, Ontario challenged the commonality of the experience of the inmates, and Mr. Francis responded by delivering the inmates’ affidavits in his reply materials and the affidavit of Nurse Cusack.

[14]. Without objecting to the delivery of the affidavits, Ontario cross-examined the affiants for the purposes of the summary judgment motion. In my opinion by doing so, Ontario waived its technical objection to the use of the evidence at the summary judgment motion.

[15]. It should also be noted that some of the evidence given by the inmates in their affidavits and under cross-examination about the circumstances of administrative segregation is corroborated by the evidence of Ontario’s own witnesses

[16]. With this background to Ontario’s objection, my view is that there is no merit at all to Ontario’s objection. The inmate’s evidence is admissible, as is Nurse Crusack’s evidence. At its highest, Ontario’s objection is a highly technically objection, and, if I needed to, I would exercise my discretion to admit their evidence for the purposes of the summary judgment motion. Ontario suffered no prejudice, and it exercised its right to cross-examine the affiants. It is a great stretch in the circumstances of the immediate case to suggest that Mr. Francis split his case. Ironically, Ontario needs the inmate’s evidence in support of its argument that there is no common experience of administrative segregation.

3. The Hearsay Exception for Public Documents

[17]. Ontario submits that the documentary evidence of Ms. MacDonald is not admissible. As noted above, Ms. MacDonald swore two affidavits, one dated December 7, 2018 and a second dated July 15, 2019. The first affidavit attaches 82 exhibits, and the second attaches 21 exhibits. Most of the exhibits are documents that are available on the Internet.

[18]. The exhibits attached to Ms. MacDonald’s affidavits include, among other things: (a) copies of Ontario’s legislative and regulatory documents; (b) transcripts of Legislative business published in Hansard; (b) documents associated with the Human Rights Commission proceedings in the matter of the complaint of Christina Jahn; (c) reports of the Ombudsman of Ontario; (d) the reports of Howard Sapers, who was Ontario’s Cabinet-appointed Independent Advisor on Corrections Reform; (e) the reports of Professor Hannah-Moffat, Ontario's Cabinet-appointed Independent Expert on human rights and corrections; (f) reports of the Ontario Human Rights Commissioner; (g) reports of the Auditor General of Ontario; (h) reports of the Federal Correctional Investigator; (i) official records or reports tabled with the United Nations' General Assembly; (j) coroner’s inquest reports; and (k) the report of Commission of Inquiry into Certain Events at the Prison for Women in Kingston.

[19]. In my opinion, all of these documents are admissible on this summary judgment motion.

[20]. All the documents in Ms. MacDonald’s affidavits are admissible as proof of Ontario’s state of knowledge about administrative segregation and about administrative segregations’ association with solitary confinement. For example, it passes beyond the borders of the preposterous for Ontario to submit that it did know about the events - which occurred in Ontario - that led to Justice Arbour’s report of Commission of Inquiry into Certain Events at the Prison for Women in Kingston. Ontario undoubtedly knew about Justice Arbour’s findings and recommendations in formulating its own policies and procedures for administrative segregation.

[21]. Most if not all of the documents are also admissible for the truth of their contents pursuant to the public document’s exception or to the principled exception to the rule against hearsay based on necessity and the reliability of the hearsay evidence.²⁸ I disagree with Ontario’s argument that the documents are unreliable. For example, the documents associated with R. v. Capay,²⁹ discussed below, including a judgment in a court proceeding in Ontario that describes Mr. Capay’s confinement at an Ontario correctional institution, are as reliable as the affair is notorious.

[22]. The criteria for the public documents exception to the rule against hearsay are: (a) the document is made by a public official; (b) the public official made the document in discharge of a public duty; (c) the document was made with the intent that it be a permanent record; and (d) the document is available to the public.³⁰ This criteria is satisfied in the circumstances of the immediate case for many of the documents proffered by Ms. MacDonald.

[23]. I appreciate that in other cases, including other class actions, the public documents exception to the rule against hearsay has not be applied to prove negligence,³¹ but all that those cases demonstrate is that the criteria for the application of the exception were not satisfied in those cases. In contrast, the criteria are satisfied in the case at bar for many if not all of the documents proffered by Ms. MacDonald.

[24]. What should not be lost sight of in a discussion of the reports and the documentary evidence about the use of administrative segregation inside or outside of Ontario is that in the immediate case, I have the viva voce evidence of the lived experience of both the inmates, who testified about their experiences in Ontario prisons, and I have the viva voce evidence of Ontario’s civil servants, who supervised, administered, or actually worked in Ontario’s prisons. Based on that evidence from inmates and civil servants; i.e., without resort to the exception to the hearsay rule for public documents, it can be found as a fact that Ontario used solitary confinement in its correctional institutions and facts can also be found about how and why Ontario used administrative segregation in such a manner.

[25]. In the immediate case, based on the evidence of the inmates and civil servants who lived in worked in Ontario’s correctional institutions, it is possible to find the facts about the why, where, when, how, by whom, and to whom of solitary confinement and administrative segregation. The documentary evidence confirms or corroborates the evidence of both Mr. Francis’ and Ontario’ witnesses.

4. The Interim and Final Reports of Professor Hannah-Moffat

[26]. As the factual narrative about events in Ontario, described later in these Reasons for Decision, will reveal, there was a settlement agreement between Ontario and the Ontario Human Rights Commission that was associated with a human rights complaint by Christina Jahn, who was an inmate in an Ontario correctional institution. As a part of the settlement, Ontario appointed Professor Hannah-Moffat Ontario as an Independent Expert on Human Rights and Corrections. As part of the settlement, Professor Hannah-Moffat delivered an interim investigative report. Her interim report was made an exhibit in Mr. Francis’ reply material for the summary judgment motion. In her interim report, Professor Hannah-Moffat made findings that criticize Ontario's operation of administrative segregation.

[27]. Before the hearing of the summary judgment motion, Professor Hannah-Moffat’s final report was pending, and Mr. Francis brought a motion to cross-examine her in aid of the motion. Although she had been a plaintiff’s witness in other proceedings, she declined to be a voluntary witness because there was a confidentiality clause in her engagement for Ontario as an Independent Expert on Human Rights and Corrections.

[28]. Ontario opposed Professor Hannah-Moffat testifying for the summary judgment motion. Ontario indicated that, if necessary, it would move to quash any summons. Ontario did not, however, oppose or it, at least, did not strenuously oppose the delivery of her Final Report for use on the summary judgment motion.

[29]. At Mr. Francis’s motion to compel Professor Hannah-Moffat’s attendance as a witness in aid of the summary judgment motion, I ordered her Final Report to be delivered to Class Counsel for filing and use on the summary judgment motion as soon as it was delivered to Ontario. I, however, did not schedule an examination of Professor Hannah-Moffat.³² In my Reasons for Decision, I stated at paragraphs 49 to 54:

49. In other words, the primary reason that Dr. Hannah-Moffat has been summonsed is that she can testify about the present and about whether Ontario has complied with the Jahn Settlements. Class Counsel submitted that only Dr. Hannah-Moffat can provide an appropriate level of detail with respect to adherence to the Jahn Settlement, whether Ontario has taken reform seriously and what remedy the Court should employ in responding to Ontario's continuing Charter breaches should Mr. Francis succeed on his summary judgment motion.

50. Class Counsel confirmed during oral argument that Dr. Hannah-Moffat was being proffered as a witness for a precise purpose. Class Counsel confirmed, however, that apart for this purpose it was not necessary to have her give evidence at all in the sense that Mr. Francis’ could succeed on his summary judgment motion based on the approaching 10,000-page evidentiary record that already exists. Dr. Hannah-Moffat’s evidence might, so to speak, guild the lily of Mr. Francis’ case, but with or without her Interim and Final Report, her testimony was not necessary evidence.

51. With this more precise understanding of the purpose of Dr. Hannah-Moffat’s evidence, if the primary reason for summonsing Dr. Hannah-Moffat is describing Ontario’s compliance or non-compliance with the Jahn Settlement as part of a discussion of continuing breaches, then all that is proportionately required is to have the Final Report made a part of the record for the summary judgment motion. The Final Report, just as her Interim Report, can speak for itself. The filing of what is a public report avoids any debate about public interest privilege and keeps the scheduling of the summary judgment motion on schedule.

52. In any event, evidence about continuing breaches presupposes a finding that Ontario has in the past systemically breached its fiduciary duties, its duties of care, and its Charter obligations. The nuclear core of Mr. Francis’ class action is about proving systemic misfeasance in the use of administrative segregation in Ontario’s prisons in a past beginning in 1985. Proportionate to the importance and complexity of the issues in the immediate case, the precise matters for which Dr. Hannah-Moffat has been summonsed can be more than adequately addressed by her just filing the Final Report.

53. If it turns out that Ontario is found liable for breaches of the Charter and the court wishes to fashion remedies other than the award of money then perhaps Dr. Hannah-Moffat might be summoned.

54. For the present purposes of the summary judgment motion, all that is required is that Dr. Hannah-Moffat deliver her report before the return of the motion. If the report cannot be delivered in time, then I will entertain an adjournment request or a request to have Dr. Hannah-Moffat summonsed as a witness at the summary judgment motion.

[30]. On the summary judgment motion, Ontario submitted that since it did not have opportunity to cross-examine Professor Hannah-Moffat, I, therefore, should give no weight to the information found in her reports. Ontario ignored the irony that it was Ontario that had opposed Professor Hannah-Moffat being a witness that could be cross-examined.

[31]. Ontario also submitted that Professor Hannah-Moffat’s reports were of limited or of no utility given that they largely concerned events after the Class Period. That submission, however, is not true given that the events associated with Ms. Jahn and her settlement occurred before and during the Class Period.

[32]. Once again, Ontario’s submission about the utility of the Hannah-Moffat reports was ironical. Although it submitted that I should give no weight to her reports, Ontario appeared to rely on them in support of its argument, discussed in more detail below, that Ontario’s failings, if any, were policy failings, for which as a public authority it is immune from tort liability, as distinct from operational failures, for which it might be liable for negligence. Moreover, Ontario relied on Professor Hannah-Moffat’s observation that Ontario had made commendable efforts to fulfill its settlement obligations and had made important and laudable changes related to its treatment of mentally ill inmates.

[33]. In my opinion, both of Professor Hannah-Moffat’s reports are admissible. I shall give Professor Hannah-Moffat’s reports the weight they deserve, and I shall endeavour not to use them for some improper purpose.

[34]. I agree with Ontario that it is not my task to determine whether Ontario breached the terms of the Jahn Settlement agreement. I agree with Ontario that any non-compliance with the Jahn Settlement agreement does not as a matter of law amount to a finding of negligence or breach of the Charter. I agree with Ontario that Professor Hannah-Moffat’s reports cannot be used as a basis to expand the Class Period and the Class Definition. I agree with Ontario that what it did or did not do after the Class Period is of little utility to determining whether it had a duty of care or whether it breached the duty of care on a class-wide basis before or during the Class Period.

[35]. I, however, do not agree that Professor Hannah-Moffat’s knowledge and information about the operation of correctional institutions is irrelevant to determining whether there is a duty of care and about the standard of care against which to measure the conduct of a government charged with the responsibility of operating penitentiaries, prisons, or jails. I agree with Ontario that Professor Hannah-Moffat has a contribution to make in the difficult issue of determining what is a policy decision and what is operational activity.

5. The Role of Stare Decisis in the Immediate Case

[36]. Mr. Frances relies on the doctrine of stare decisis, the fundamental doctrine of the common law that like cases should be decided alike in support of his summary judgment motion. He argues that the case at bar is factually and legally the same as the four cases of: (a) Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen³³; (b) British Columbia Civil Liberties Assn. v. Canada (Attorney General),³⁴ (c) Brazeau v. Attorney General (Canada);³⁵, and (d) Reddock v. Canada (Attorney General)³⁶ and, therefore, Mr. Francis submits that his case should be decided in the same ways.

[37]. Mr. Frances would indeed be entitled to rely on the doctrine of stare decisis, if I were to find as a fact that the essential facts of the immediate case are the same as the facts of those cases I, however, agree with Ontario’s submissions that I cannot use the doctrine of stare decisis to find the facts of the immediate case.

[38]. I agree with Ontario that stare decisis is a doctrine about the application of the law and not a doctrine about the finding of facts. I agree, and I am bound to agree, with what Justices Côté and Brown explained in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd.,³⁷ that questions of law forming part of the ratio decidendi of a decision are binding on lower courts as a matter of stare decisis but that stare decisis cannot relieve a judge from engaging in independent fact-finding because a lower court must apply the decisions of higher courts to the facts before it. I shall, therefore, find the facts first and I shall not rely on the doctrine of stare decisis to find the facts.

[39]. As I shall explain below, I do find the proven essential facts of the immediate case are the same as the facts in the four cases. It, therefore, would be appropriate to use the doctrine of stare decisis to decide the immediate case. That said, I do not intend to rely on stare decisis to decide Mr. Francis’ case and I shall decide it as it if were essentially a case of first instance.

[40]. I simply say that the doctrine is an alternative basis to come to the legal decisions that I have reached in the immediate case. In all events, this decision does not depend upon the doctrine of stare decisis to prove the facts.

C. Is the Case Suitable for Summary Judgment?

[41]. Ontario submits that this proceeding is not suitable for summary judgment. It submits that: (a) there are genuine issues requiring a trial; (b) there are conflicts in the expert evidence, including disagreements regarding the sufficiency of the methodology and the validity of the studies used to ground the allegations of harm; and (c) there conflicts in the parties’ evidentiary record.

[42]. Ontario submits that Mr. Francis relies on an evidentiary record that is severely lacking in reliability or in applicability across the class and, therefore, a fair determination of the merits is impossible. Ontario submits that Mr. Francis has not provided a sufficient evidentiary record for his assertions of class-wide harms and class-wide damages. Ontario submits that when a person challenges the constitutionality of state action, he or she must provide an adequate factual basis or the challenge must fail,³⁸ and Ontario submits, once again, that Mr. Francis’ evidentiary record is inadequate for a determination of the Charter issues in the immediate case.

[43]. For the reasons that follow, I disagree that there is an inadequate evidentiary record and that the case is inappropriate for a summary judgment.

[44]. Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” With amendments to Rule 20 introduced in 2010, the powers of the court to grant summary judgment have been enhanced. Rule 20.04 (2.1) states:

20.04 (2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[45]. Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial.³⁹ Thus, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment.⁴⁰

[46]. Under rule 20.02(1), the affidavits for a summary judgment motion may be made on information and belief, but on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. The principles governing the admissibility of evidence are the same as apply at trial save for the limited exception of permitting an affidavit made on information and belief.⁴¹ Where an affidavit relied upon in support of a motion for summary judgment does not state the source of the information and the fact of the deponent’s belief, the court may nevertheless rely upon the substance of the exhibits to the affidavit in evaluating the merits of the case.⁴² However, evidence of an expert witness may not be provided by the information and belief evidence of an affiant because the responding party should have the opportunity to cross-examine the expert.⁴³

[47]. In Hryniak v. Mauldin⁴⁴ and Bruno Appliance and Furniture, Inc. v. Hryniak,⁴⁵ the Supreme Court of Canada held that on a motion for summary judgment under Rule 20, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers introduced when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

[48]. If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rules 20.04 (2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole. To grant summary judgment, on a review of the record, the motions judge must be of the view that sufficient evidence has been presented on all relevant points to allow him or her to draw the inferences necessary to make dispositive findings and to fairly and justly adjudicate the issues in the case.⁴⁶

[49]. If a judge is going to decide a matter summarily, then he or she must have confidence that he or she can reach a fair and just determination without a trial; this will be the case when the summary judgment process: (a) allows the judge to make the necessary findings of fact; (b) allows the judge to apply the law to the facts; and (c) is a proportionate, more expeditious and less expensive means to achieve a just result.⁴⁷ The motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to make a fair and just determination.⁴⁸

[50]. Turning to the case at bar, although there are numerous issues, there is no paucity of evidence to resolve them, and, while there is a great deal of factual and legal work that has been done by the parties and that needs to be completed by the court, there is no need that the work be completed by a trial process. The issues are capable of being fairly and proportionately resolved by a motion procedure. I do not need the attributes of a trial process to enable me to make a fair and just determination, and I note that apart from lacking the more leisurely pace of a trial, this 5-day summary judgment motion was much like a trial. By affidavit, each side called all the witnesses they needed. The witnesses were intensely cross-examined. There were transcripts and exhibit briefs and lawyers delivered comprehensive factual and legal argument.

[51]. Associate Chief Justice Marrocco in Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen⁴⁹ decided substantial issues about administrative segregation by an application procedure, and, in my opinion, it is in the interests of justice to decide the common issues in the immediate case by a summary motion procedure.

[52]. I see no reason to depart from the decisions that I made in Brazeau and in Reddock that although there are many genuine issues, they do not for fairness or for any other reason require a trial and the genuine issues may be determined by means of a summary judgment motion.

[53]. Further, it does not follow from the indisputable truth that the Class Members, as individuals, have different personal and social histories, different mental or physical health needs, different incompatibles, and different reasons for their segregation, that a trial as opposed to a summary judgment motion is required to determine whether Ontario contravened the Charter by placing inmates in administrative segregation without a meaningful review procedure. Associate Chief Justice Marrocco and the Court of Appeal were able to decide these issues without a trial in Canadian Civil Liberties Assn., and I was able to decide similar issues in Brazeau and in Reddock on a summary judgment motion. On the appeals in Brazeau and in Reddock, the Ontario Court of Appeal held that I had not erred in deciding those cases on a summary judgment motion.

[54]. Nor is a trial required to determine the issue of the application of limitation periods, the general causation issue, the issue of the vicarious liability of Ontario, the duty of care and the breach of the duty of care issues, the issue of the availability of aggregate damages, or the issue of whether there is a base level of damages suffered when a Class Member is placed is placed in administrative segregation.

[55]. Nor does it follow that a trial is required to determine the fundamentally legal issues about the principles from Vancouver (City) v. Ward⁵⁰ and Mackin v. New Brunswick (Minister of Finance),⁵¹ about the availability of Charter damages. I have copious evidence to determine the Charter issues. The same can be said about the issues associated with the duty of care in negligence, Crown immunity, and the interpretation of the Proceedings Against the Crown Act,⁵² or the Crown Liability and Proceedings Act, 2019.⁵³

[56]. Nor is a trial required to determine whether Ontario has a duty of care to the Class Members. Indeed, this issue, which is heavily nuanced with legal principles, might have been decided on a Rule 21 motion, which depending on what branch of the rule is relied on, can be decided based on the pleadings and without evidence. In the immediate case, of course, I have had copious evidence about the Ontario’s responsibilities and the surrounding circumstances. I also have sufficient evidence to determine whether or not Ontario is liable for systemic negligence.

[57]. I conclude that the case at bar is an appropriate case for a summary judgment.

D. The History of Solitary Confinement

1. A Survey History and Historiography of Solitary Confinement and Administrative Segregation up until the Commencement of the Class Period (April 20, 2015)

[58]. Mr. Francis alleges that by the use of administrative segregation, Ontario both breached the Charter and also was negligent. To determine the merits of these claims, it is necessary to understand what Ontario knew about administrative segregation, colloquially referred to as solitary confinement, at the commencement of and throughout the Class Period, which because of limitation periods begins April 20, 2015. In this section of my Reasons for Decision, I shall provide a historiography and a history of solitary confinement and administrative segregation up until the commencement of the Class Period (April 20, 2015). In the next section, I shall continue the description of the history throughout the Class Period.

[59]. In paragraphs 85-131 of my decision in Brazeau v. Attorney General (Canada),⁵⁴ I set out a historiography and a survey history of solitary confinement and administrative segregation in Canada and in other jurisdictions based on historical documents. This survey applies equally to the immediate case, and I shall incorporate it.

[60]. I add new paragraphs to the history to reflect evidence in the immediate case that focuses on the particular situation in Ontario. Of particular importance to the findings of fact in the immediate case are: (a) the 2008 report of the Ontario Auditor General; (b) the Jahn Settlement documents with the Ontario Human Rights Commission; and (c) Ontario’s own comprehensive internal review of administrative segregation policy.

[61]. With the additional accounts of significant events in Ontario, the survey history is set out below, as follows, continuing the paragraph numbering from Brazeau and noting the new entries in unnumbered paragraphs:

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 […] 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 [New: a witness for Mr. Francis in the immediate case], Professor Jackson, Professor Mendez, Dr. Rivera, and Dr. Morgan [New: a witness for Ontario in the immediate case], 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 Medley⁵⁵, 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 Cyclopedia, 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:⁵⁶

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 [New: which is in Ontario and] 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,⁵⁷ 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.,⁵⁸ 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) [New: also a witness in Mr. Francis’s case] published his very influential article in the American Journal of Psychiatry entitled Psychopathological Effects of Solitary Confinement.⁵⁹ 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,⁶⁰ 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.

[New:] In her report, Justice Arbour commented on harm that is caused by indefinite, prolonged segregation; she stated:

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.

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

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

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

110. In 2006, Dr. Grassian [New: a witness for Mr. Francis in the immediate case] published an article entitled Psychiatric Effects of Solitary Confinement.⁶¹ The article was an extensive review of the academic literature about the medical effects of solitary confinement and it updated the work that he had completed for his journal article in 1983.

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

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

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

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

[New:] In 2008, the Auditor General of Ontario reported that more than 50% of all Ontario correctional institutions were found non-compliant with the Administrative Segregation Policy, including documenting required periodic checks on suicidal inmates and daily search requirements for segregation areas.

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

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

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

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

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

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

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

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.

[New:] Christina Jahn was an inmate in an Ontario correctional institution. In 2012, Ms. Jahn, who suffered from mental illness, substance abuse addiction, and cancer, filed a Human Rights Code complaint application about her placements in administrative segregation. In 2001 and 2012, she had been placed in administrative segregation for a collective period of 210 days.

[New:] In 2013, Ms. Jahn and Ontario signed a settlement agreement, and the parties agreed to ten public interest remedies to improve the conditions for individuals with mental illness held in provincial correctional institutions. The ten remedies were: (1) Female Inmate Report - a report on how to best serve female inmates with major mental illness; (2) implementing a Mental Health Screening Tool; (3) Physician Contract Review - reviewing the terms of the contracts with psychiatric physician; (4) the development of Physician Treatment Plans for inmates with a major mental illness ; (5) Disciplinary Segregation Policy Review - a review of policies and practices and amendment of the Inmate Management Policy on Discipline and Misconduct; (6) Administrative Segregation Policy Review – a review of policies and practices regarding the management of inmates housed in segregation and amendments segregation policies to require, among other things, that segregation of inmates with mental illness shall not be used unless the Ministry can demonstrate alternatives to segregation have been considered and rejected because they would cause undue hardship; (7) Mental Illness Assessment - providing a baseline assessment and conducting an assessment prior to each 5-day segregation review; (8) Training - delivering a training program on mental health issues to front line staff and mangers that specifically addresses, among other things, human rights obligations and the need to accommodate inmates with mental illness; (9) Handbook Revision - reviewing and revising its Inmate Handbook to reflect the rights and responsibilities of inmates; and (10) Detention Centre Report - preparing a statistical report concerning the number of female inmates at the Ottawa Carleton Detention Centre placed in segregation for 30 continuous days and/or in excess of 60 aggregate days in one year.

[New:] Under the Jahn Settlement Agreement, Ontario acknowledge administrative segregation can have an adverse impact on inmates with mental illness. It committed to completing a review of policies and practices regarding the management of inmates in administrative segregation, in consultation with a mental health expert, within 12 months; and Ontario committed to amending the Administrative Segregation Policy: (a) to preclude the segregation of inmates with mental illness, unless the Ministry could demonstrate alternatives to segregation have been considered and rejected because they would cause undue hardship; (b) to consider alternatives to 5 and 30-day reviews when the segregated inmate has mental illness and for 30-day reviews to consider whether a treatment plan is in place that could help the inmate leave segregation; (c) to require notice to the Assistant Deputy Minister, Institutional Services, whenever any inmate has been segregated in excess of 60 days in one year; and (d) to require the provision or offer of a baseline assessment by a physician for inmates with mental health issues, or a psychiatrist for inmates with major mental illness, with follow up before each successive 5-day review.

[New:] The scope of the Jahn Settlement was not limited to administrative segregation. It addressed: (a) policies related to disciplinary segregation; (b) access to mental health services; (c) mental health training; (d) mental health screening and access to treatment; (e) awareness of individuals with mental health disabilities; and (f) revisions to the Inmate Handbook.

[New:] In his 2013/14 annual report, the Ontario Ombudsman stated that in many cases, correctional institution staff do not conduct the required reviews and some senior staff were not even aware of the review and reporting requirements.

[New:] In 2014/2015, the Ombudsman received more complaints from inmates, conducted further investigations, and made similar findings. The Ombudsman's 2017/18 annual report noted that the operational problems continued.

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. 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 states:

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.

[New:] In 2015, the Ontario Human Rights Commission filed a contravention application, alleging Ontario had not complied with the 2013 Jahn Settlement. Ontario responded with an addendum to the public interest remedies requiring it to provide a two-page "Segregation Handout" to segregated inmates describing their rights, the Ministry's review and reporting requirements, and mental health requirements. Public reporting was also required under the new public interest remedies.

[New:] In March 2015, Ontario announced a comprehensive internal review of segregation policy in its correctional facilities and by September 2015, Ontario completed revisions to its Administrative Segregation policy.

2. The History of Administrative Segregation in Ontario after April 20, 2015

[62]. In this section of my Reasons for Decision, I shall continue the survey history and historiography of solitary confinement and administrative segregation during the Class Period from April 20, 2015 to September 18, 2018. I shall also mention some subsequent developments.

[63]. In this section, I shall once again note events that have a particular focus on the situation in Ontario. Of particular importance to the findings of fact in the immediate case are; (a) the Jahn Settlement documents with the Ontario Human Rights Commission including the reports of Professor Hannah-Moffat; (b) Ontario’s comprehensive internal review of segregation policy including the 2016 Internal Review; (c) the 2016 recommendation of the Ontario Ombudsman; (d) the 2017 report of the Ontario Ombudsman, Out of Oversight, Out of Mind; (e) the matter of Adam Capay, whose plight was discovered by the Ontario Human Rights Commission; and (f) the work of Howard Sapers, who was appointed by Ontario as an independent reviewer of correctional institution policies.

[64]. Thus, continuing the survey history, in January 2016, the Ontario Human Rights Commission filed a report about administrative segregation in Ontario. The report identified: (a) a lack of housing options; (b) inadequate staff; and (c) discriminatory treatment of inmates with mental health disabilities. The Commission recommended the abolition of administrative segregation at least until strict time limits and external oversight protections were implemented.

[65]. In the winter and spring of 2016, it became public knowledge that inmates at the Ottawa-Carleton Detention Centre were being housed in shower cells within the segregation units, and the practice persisted even after a task force to address it was formed.

[66]. In April 2016, the Ontario Ombudsman recommended that Ontario abolish indefinite segregation; i.e., segregation for more than 15 days. The Ombudsman was critical of the review process for placements, and the Ombudsman recommended that an independent external panel should review all segregations.

[67]. The comprehensive internal review, mentioned in the section above, that was announced in March 2015 occurred in four phases between March 2015 and August 2016. The review included: (a) improving statistical tracking of the use of segregation; (b) the completion of a literature review and jurisdictional scan; (c) a review of current practices and training; (d) external stakeholder consultations; (e) an audit check of institutional compliance; (f) a compliance review by the Correctional Services Oversight and Investigations (“CSOI”) unit; and (g) the completion of a draft report.

[68]. During the Ministry’s internal review, The Operational Manager Steering Committee and the Ontario Public Service Employees Union Corrections made submissions to the Comprehensive Segregation Review and noted that inmates with mental health problems were being segregated for lengthy periods of time with very little or no help from Ontario’s Mental Health Department. These groups recommended that inmates with mental health problems not be placed into segregation.

[69]. In August 2016, the Ministry finished its internal Comprehensive Review Process and prepared a report for internal review. The 2016 Internal Report was not made public until this litigation. The 2016 Internal Report noted that the use of segregation in correctional institutions was the subject of national and international public attention. It referred to the Christina Jahn litigation and the Edward Snowshoe and Ashley Smith cases, where inmates had committed suicide in federal penitentiaries while in prolonged administrative segregation.

[70]. The 2016 Internal Report noted harms caused by prolonged administrative segregation. The report stated:

Research exploring the detrimental effects of segregation has typically focused on prolonged segregation (i.e. defined as segregation greater than 15 consecutive days), where inmates are confined for approximately 23 hours per day. This research has found segregation of this duration to be psychologically harmful to inmates. For example, prolonged segregation has been associated with increased anxiety, aggression, depression, perceptual distortions, cognitive disturbances, and psychosis. For individuals with mental illnesses, segregation was found to significantly exacerbate symptoms resulting in increased need for crisis care or emergency psychiatric hospitalizations. There is also a documented increase in the prevalence of suicides and suicidal attempts in individuals with mental illnesses subject to segregation, particularly in the remand populations. The UN Committee Against Torture (CAT) and the UN Commission on Human Rights have been critical of practices involving prolonged segregation and have stated that these practices may amount to treatment in violation of the prohibition against torture and inhuman treatment. Thus, the results of this body of research support the calls for the reform of segregation practices in Ontario.

[71]. The 2016 Internal Report noted that: (a) Ontario’s administrative segregation practices qualified as solitary confinement; (b) administrative segregation could have serious adverse mental health consequences; and (c) administrative segregation was not being used as a method of last resort. The report called for reforms. The 2016 Internal Report stated:

The Ministry accepts that the current segregation practices in Ontario may fall under the UN definition of solitary confinement and acknowledges that prolonged periods of solitary confinement can have a serious and detrimental effect on an individual's mental health.

With the implementation of the action items of this report, the Ministry will: (i) limit the use of segregation as much as possible and truly make it a method of last resort; and (ii) ensure that the conditions in segregation are improved so that, when fully implemented, the harmful effects of solitary confinement are minimized.

The Ministry will work towards the end state of ensuring that it no longer houses any inmates in conditions that meet the UN definition of solitary confinement.

[72]. On October 7, 2016, the plight of Mr. Capay was discovered by the Chief Commissioner of the Ontario Human Rights Commission, Renu Mandhane, during her tour of the Thunder Bay Jail.

[73]. Amongst the most distressing and disgraceful incidents 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,⁶² were stayed because of his experience in administrative segregation. The Capay incident occurred at an Ontario correctional institution. His plight in solitary confinement was discovered and revealed by the Ontario Ombudsman, who published a report on segregation practices in provincially run institutions.

[74]. Ms. Mandhane discovered that Mr. Capay had been held on remand in continuous segregation since June 2012 in the basement of a 90-year old jail, confined to his cell for at least 23 hours per day, with limited or no human contact. The lights in his cell were illuminated 24 hours per day, 7 days a week. Mr. Capay was suffering very serious mental disabilities in memory, cognition, speech. He had not been provided with regular or meaningful mental health treatment.

[75]. Although Mr. Capay had been charged with murder, his charge was subsequently stayed by the Ontario Superior Court in view of the multiple and egregious breaches of his Charter rights. Mr. Justice Fregeau, who stayed the murder charges, observed that the segregation review process for Mr. Capay was worthless at the institutional and regional levels.

[76]. Following the revelations of the Capay incident, on October 17, 2016, Ontario issued a press release announcing it would be appointing an independent reviewer to reform current policies and practices with respect to administrative segregation. Ontario appointed Howard Sapers, the former Federal Correctional Investigator and one of the most knowledgeable Canadians on prison reform. He was appointed as Ontario’s Independent Advisor on Corrections Reform on January 2017. He was asked to provide advice to Ontario on administrative segregation.

[77]. After his appointment, Mr. Sapers reviewed the Ministry’s research, analysis and consultations. He asked for and received data from the Ministry. He reviewed the Jahn Settlement documents. He reviewed submissions from the Ontario Human Rights Commission. He considered the Ministry’s public announcements and the steps taken by the Ministry following the announcements. Mr. Saper’s team met with external stakeholders, interviewed staff, attended briefings, and visited numerous institutions. Mr. Sapers received written submissions from the public and from NGOs. He, however, did not meet with frontline staff, inmates, or the family of inmates.

[78]. In March 2017, Mr. Sapers delivered his first report entitled Segregation in Ontario to the Ontario government.⁶³

[79]. Mr. Sapers reported that 43% of all admissions to segregation had a mental health alert on their file. He reported that during 2015/2016, over 1,000 inmates spent 30 or more continuous days in segregation and that the average time spent in segregation for these inmates was 104 days. For the calendar year of 2016, he reported that the duration of segregation for individual inmates had ranged from 1 day to over 1,500 days.

[80]. Mr. Sapers found, among other things, that: (a) access to programs and services for the majority of segregated inmates was severely restricted and for some was non-existent; (b) some segregated inmates were not permitted to leave their cells for days on end; (c) at most institutions, the required five-day physician assessments for segregated inmates with mental illness was not taking place; (d) a significant proportion of five-day and 30-day segregation reviews were inadequate or incomplete; (e) there was no independent review of the placements in administrative segregation; (f) segregation was frequently used as the default tool to manage individuals with a variety of special needs and challenging behaviours without first exploring alternative; (g) while the average of inmate population had decreased in Ontario, the numbers in administrative segregation in Ontario had increased; and (h) Ontario’s correctional policies were inadequate and outdated.

[81]. In April 2017, the Ombudsman reported on his office's investigation into the tracking of inmates in segregation and the inadequacy of Ontario's review process. The Ombudsman had launched the investigation in December 2016, in response to R. v. Capay.⁶⁴ The Ombudsman's investigation report, Out of Oversight, Out of Mind (2017), was scathing in its criticism. The report stated:

Our investigation found that these mandated reviews often fail to rigorously evaluate an inmate’s placement and instead become pro forma exercises. We found instances where the information in an inmate’s segregation reports was sparse and contradictory. Senior Ministry officials failed to consistently review the 30-day reports generated by correctional facilities and regional Ministry staff. And many of the frontline employees we interviewed expressed concerns that the segregation reporting framework is inefficient, repetitive, and fails to ensure procedural protections for segregated inmates.

While I am hopeful that incremental improvements to the existing segregation review process will dramatically improve oversight of segregation placements, my Office’s experience provides ample evidence that correctional staff routinely fail to comply with segregation regulation and policy. This failure makes any protections provided by regulation and policy meaningless and potentially denies inmates their common law right of procedural fairness.

[82]. The Ombudsman noted that Ontario had taken no steps to implement his recommendations from a year earlier regarding independent, external review and had done very little to improve the existing review process.

[83]. On May 4, 2017, Ontario released the Sapers Report. The Minister stated in the announcement that the province accepts the findings of the report and will address each of its recommendations. Specific commitments included; (a) new legislation to be tabled in Fall 2017, defining segregation according to international standards; and (b) an enhanced model of independent oversight and governance including segregation.

[84]. In September 2017, the Ontario Human Rights Commission filed another application with respect to the 2013 Jahn Settlement’s public interest remedies. The Commission alleged that Ontario was failing to: (a) prohibit the segregation of mentally ill inmates; (b) provide required mental health assessments and services; and (c) accurately document, review and report on segregation in Ontario's correctional institutions.

[85]. In January 2018, the Ontario Human Rights Commission’s contravention application in the Jahn matter was settled with another consent Order. The new Order imposed new requirements on Ontario, particularly around the collection and reporting of data. The 2018 Public Interest Remedies included a requirement that the definition of segregation in policy documents include all circumstances in which inmates are physically isolated and confined in a cell for 22 hours.

[86]. The 2018 Jahn Consent Order required Ontario to appoint an Independent Reviewer to monitor compliance with its terms and an Independent Expert on human rights and corrections to advise Ontario. Justice David Cole was appointed the Independent Reviewer to monitor the government’s compliance with settlement agreements, and Professor Hannah-Moffat was appointed the Independent Expert on Human Rights and Corrections.

[87]. Professor Hannah-Moffat’s role was to provide impartial advice to assist with the implementation of the terms of the agreement. The focus of Professor Hannah-Moffat’s work was on the tracking of inmates placed in segregation and on the release of public data regarding administrative segregation placements.

[88]. Thus, in February 2018, Professor Hannah-Moffat was appointed as Ontario's Independent Expert on human rights and corrections for one year in February 2018. She was subsequently re-appointed for a second year in February 2019.

[89]. On May 7, 2018, Bill 6, An Act to enact the Ministry of Community Safety and Correctional Services Act, 2018 and the Correctional Services and Reintegration Act, 2018 received Royal Assent. The legislation: (a) banned administrative segregation for mentally ill and other vulnerable inmates; (b) imposed a cap for on the duration of administrative segregation for regular inmates; and, (c) provided an independent review of all segregation placements. Ontario has to date not proclaimed the legislation in force.

[90]. Professor Hannah-Moffat's interim report evaluating Ontario's progress in complying with the 2018 Jahn Consent Order was published in February 2019. The Report stated:

The available data suggest […] that segregation remains a routine approach to population management, including for those with identified mental health concerns.

The 30-day report for September 2018 shows that for those who had segregation placements lasting 30 or more days, a higher proportion of female inmates (80%) were reported as having identified mental health concerns, than were men (60%). These rates of individuals with identified mental health concerns in conditions of prolonged segregation are troubling.

I remain concerned about the use of disciplinary segregation for those with identified mental health concerns. Given that those awaiting the adjudication of an institutional misconduct will be held in administrative segregation, it is not clear how the Order’s requirement to not segregate those with identified mental health needs will be met in this circumstance.

The [Administrative Segregation Policy] maintains the centrality of administrative segregation to prison management and the segregation of those with identified mental health concerns remains permissible to the point of undue hardship. Despite this caveat, operationally Ontario does not have a process for consistently conducting and documenting the undue hardship analysis. Therefore, I remain concerned that this provision will have a negligible effect on the Province's use of segregation.

[91]. In December 2018, Ontario terminated Mr. Sapers' appointment as Ontario's Independent Advisor on corrections reform.

[92]. In June 2019, the Federal Government’s Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, 1st Sess., 42nd Parl., 2019, received royal assent, and entered into force in November 2019. That federal legislation replaces ss. 31-37 of the Corrections and Conditional Release Act with a scheme of "Structured Intervention Units" ("SIUs") that are to provide inmates with four hours a day out of their cells and at least two hours of meaningful human contact in place of administrative segregation, as well as a mechanism for independent review.

[93]. In December 2019, Professor Hannah-Moffat delivered her Final Report, which was dated December 3, 2019. She included the findings of her interim report.

[94]. In her Final Report, Professor Hannah-Moffat made the following additional findings, amongst others: (a) Ontario was non-compliant with its own policy requirement to consider alternatives to the point of undue hardship; (b) Ontario had not yet produced clear and consistent policies, procedures, and definitions of segregation, restrictive confinement, mental health, and associated alerts; (c) there was a lack of clarity as what constitutes mental illness and how and when it should be identified with most mental health screening occurring at admission while the onset of mental health issues can occur at any time; (d) Ontario does not have clear segregation tracking policies; (e) Ontario was failing to monitor inmates’ state of health to identify those for whom administrative segregation would be severely detrimental including self-injury and suicidality; (f) reports to the Minister and the Assistant Deputy Minister for inmates at 30 days and 60 aggregate days of segregation lacked meaningful documentation regarding accommodation or undue hardship; (g) the 5, 10 and 14 day segregation reviews were completed by reviewers who were not sufficiently external nor independent to the Ministry; and (h) the review decisions did not fulsomely consider alternatives to administrative segregation.

E. Legal History of Administrative Segregation Jurisprudence

[95]. The case at bar is one of five Canadian cases that have explored the legality of administrative segregation in Canadian penal institutions. The other four cases are: (a) Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen;⁶⁵ (b) British Columbia Civil Liberties Assn. v. Canada (Attorney General)⁶⁶ (c) Brazeau v. Canada (Attorney General);⁶⁷ and (d) Reddock v. Canada (Attorney General).⁶⁸ The Brazeau and the Reddock cases are class action cases that I am managing.

[96]. It is necessary to review the legal history of these cases about administrative segregation, because these four cases are also a part of the factual background of the immediate case. Most particularly, the legal history is relevant to the factual issues associated with Ontario’s defences to both the alleged Charter violations and also its defences to the negligence claim. For a variety of reasons that will become more apparent during the legal analysis portion of these Reasons for Decision, this case law is also critical to the legal analysis.

[97]. The legal history of the four cases follows in this section of my Reasons for Decision. The discussion of the legal history is integrated with the procedural history of Mr. Francis’ case.

[98]. I also note that the legal history continued while this decision was under reserve, and I, therefore, requested Counsel to submit supplementary factums about the significance of the Court of Appeal’s decision in the Brazeau and Reddock cases, which decision was released after the five-days of argument of the summary judgment motion in the immediate case.

[99]. On January 27, 2015, in Ontario, in Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, 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. In its action, the Association submitted that the legislation that authorizes administrative segregation in federal penitentiaries is contrary to the Charter. The Association sought a declaration that sections 31-37 of the federal Corrections and Conditional Release Act,⁶⁹ 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.

[100]. In 2016 in Brazeau v. Canada (Attorney General), Christopher Brazeau and David Kift commenced a proposed class action against the federal government. They were inmates of federal penitentiaries suffering from serious mental health problems. They alleged breaches of sections 7, 9, and/or 12 of the Canadian Charter of Rights and Freedoms, and in particular, they alleged that the Federal Government had failed to provide Class Members with access to healthcare.

[101]. On December 12, 2016, Brazeau v. Attorney General (Canada) was certified on consent as a class action.⁷⁰ Messrs. Brazeau and Kift subsequently brought a summary judgment motion, discussed below.

[102]. On March 3, 2017, Jullian Jordeal Reddock, an inmate of federal penitentiaries, sued the Federal Government. He alleged breaches of inmates’ rights in federal correctional institutions, including their rights under sections 7, 9, 11(h) and 12 of the Canadian Charter of Rights and Freedoms. Mr. Reddock alleged that by subjecting inmates to prolonged administrative segregation pursuant to sections 31 to 37 of the Corrections and Conditional Release Act,⁷¹ the inmates’ rights have been violated.

[103]. On April 20, 2017, in the case at bar, Mr. Francis commenced his action and delivered his Statement of Claim making similar allegations to those in Brazeau and Reddock about the use of administrative segregation in Ontario’s correctional institutions.

[104]. 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 federal government’s administrative segregation legislation as contrary to the Charter.

[105]. On December 18, 2017, Associate Chief Justice Marrocco released his decision in Corporation of the Canadian Civil Liberties Association. He held that the administrative segregation sections of the Canadian Corrections and Release Act contravened section 7 of the Charter, and the contravention could not be saved under s. 1 of the Charter.⁷² He concluded, however, that the legislation authorizing administrative segregation was not contrary to sections 11 (h) and 12 of the Charter. Based on the section 7 violation, he directed the Federal Government to redraft the legislation to make it compliant with the Charter.

[106]. 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 the Correctional Service, 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; and, (l) lack of independent review of the warden’s decisions amounted to virtually no accountability for the decision to segregate.

[107]. The Association appealed Associate Chief Justice Marrocco’s 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 section 7 of the Charter for the additional reasons that it was grossly disproportionate and overbroad. The Federal Government did not cross-appeal.

[108]. Notably, Ontario was granted intervenor status and participated in the Association’s appeal of Associate Chief Justice Marrocco’s decision.

[109]. On January 17, 2018, in British Columbia Civil Liberties Association⁷³ Justice Leask of the British Columbia Supreme Court held that the administrative segregation sections of the federal Corrections and Conditional Release Act contravened section 7 and section 15 of the Charter, and the contraventions could not be saved under s. 1 of the Charter.⁷⁴

[110]. Justice Leask declared ss. 31-33 and 37 of the Corrections and Conditional Release Act 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.

[111]. 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.

[112]. With respect to section 7 (and also section 15) of the Charter Justice 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.

[113]. At the BC Civil Liberties Assn trial, the Federal Government conceded that sections 31-33 and 37 of the Corrections and Conditional Release Act 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 Corrections and Conditional Release Act authorized the indefinite and prolonged use of administrative segregation and the inmate’s rights under section 7 of the Charter were violated.

[114]. Justice Leask concluded that the impugned provisions contravened section 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.

[115]. 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 British Columbia Civil Liberties Association. The remedy sought by the Association was a declaration of invalidity pursuant to s. 52 (1) of the Constitution Act, 1982. Charter damages was not a material issue in the British Columbia Civil Liberties Association case.

[116]. The Federal Government appealed Justice Leask’s decision to the British Columbia Court of Appeal, but it did not appeal his ruling that the review provisions of the Corrections and Conditional Release Act did not pass Charter scrutiny. It submitted, however, that Justice Leask had erred by failing to conclude that any Charter violations were justified under s. 1 of the Charter.

[117]. Meanwhile on June 21, 2018, the Reddock v. Canada (Attorney General) action was certified as a class proceedings,⁷⁵ and Mr. Reddock subsequently brought a summary judgment motion, discussed below.

[118]. Thus, in the case at bar, Mr. Francis’s case, while appellate decisions were pending in Corporation of the Canadian Civil Liberties Association and British Columbia Civil Liberties Association and summary judgment motions were pending in Brazeau and Reddock, Mr. Francis sought certification of his action against Ontario. On September 18, 2018, on consent, Mr. Francis’ action was certified as a class proceeding.

[119]. After Mr. Francis’s case was certified, the Brazeau summary judgment motion was heard in February 2019 and on March 25, 2019, I released my decision in the summary judgment motion in Brazeau. The Federal Government appealed my decision.

[120]. Based on the evidence on the summary judgment motion in Brazeau, I made the following findings of fact: (a) in practice and in experience, there is no meaningful difference between administrative segregation and solitary confinement as it is known around the world; (b) a placement in administrative segregation can cause and does cause physical and mental harm to inmates, particularly to inmates that have serious pre-existing psychiatric illness; (c) a placement in administrative segregation imposes severe psychological stress, and for inmates who have or who develop serious mental illnesses a prolonged placement may cause permanent harm; (d) negative health effects from administrative segregation can occur within a few days in segregation and those harms increase as the duration of the time in administrative segregation increases; (e) some of the specific harms of administrative segregation include anxiety, withdrawal, hypersensitivity, cognitive dysfunction, significant impairment of ability to communicate; hallucinations, delusions, loss of control, severe obsessional rituals, irritability, aggression, depression, rage, paranoia, panic attacks, psychosis, hopelessness, a sense of impending emotional breakdown, self-mutilation, and suicidal ideation and behaviour; (f) depending on its duration, a placement of a seriously mentally ill inmate in administrative segregation is deleterious to the purpose of rehabilitating the inmate and returning him or her to the society outside the penitentiary. Prolonged administrative segregation may impair the mentally ill inmate’s capacity to return to society as a law-abiding citizen; (g) a placement in administrative segregation of a seriously ill inmate is contrary to one the purposes of the Correctional Service under s. 5 of the Corrections and Conditional Release Act; namely; that of 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; (h) administrative segregation has the potentiality and the actuality of causing serious physical and serious psychological harm to any inmate and the potentiality and actuality of serious physical and serious psychological harm is particularly acute for those already suffering from serious mental illnesses and disabilities; (i) without regard to whether the inmate suffers from a mental illness but especially for inmates that do suffer from a serious mental illness, if not a consensus about the precise duration of acceptable solitary confinement, there is a strongly prevalent view that prolonged and especially indeterminately prolonged solitary confinement should not be allowed and that there should be a maximum time-limit for an inmate being kept in administrative segregation; and (j) the Federal Government had no explanation justifying responding to a security problem with solitary confinement for potentially indefinite periods of time and without a constitutionally adequate system of adjudicative review.

[121]. In Brazeau, I concluded, among other things, that: (a) there was a class-wide breach of section 7 of the Charter because the review process for administrative segregation contravened the Charter; (b) the psychological stress and harm caused by administrative segregation infringes the security of the person of the inmate and there was a breach of section 7 and of section 12 of the Charter for those Class Members who were involuntarily placed in administrative segregation for more than thirty days; (c) there was a breach of section 7 and section 12 of the Charter for those Class Members who were voluntarily placed in administrative segregation for more than sixty days; (d) notwithstanding the principles from Mackin v. New Brunswick (Minister of Finance),⁷⁶ vindication and deterrence damages are available to the whole class under section 24 (1) of the Charter for the breach of section 7 of the Charter regarding the inadequate review procedure for placements in administrative segregation; (e) vindication and deterrence damages were also available to the subclasses that suffered a breach of sections 7 and 12 of the Charter; (f) as a result of the Charter breaches, there were aggregate Charter damages for vindication and deterrence of $20.0 million, which was to be distributed, less Class Counsel’s approved legal fees and disbursements, in the form of additional mental health or program resources for structural changes to penal institutions as the court on further motion may direct; (g) The Charter damages awards were without prejudice to any individual Class Member’s claim at an individual issues trial to assert that his or her treatment was contrary to sections 7 and 12 of the Charter in his or her particular circumstances; and (h) the Federal Government was not liable for punitive damages on a class-wide basis but may be liable for punitive damages after the Charter damages are determined at the individual issues trials.

[122]. A few days after my decision in Brazeau, the appeal decision in Corporation of the Canadian Civil Liberties Association was released on March 28, 2019.⁷⁷ On the appeal (Justice Benotto, and Chief Justice Strathy and Justice Roberts, concurring), the Ontario Court of Appeal affirmed Associate Chief Justice Marrocco’s ruling that the administrative segregation sections of the Canadian Corrections and Release Act contravened section 7 of the Charter. Further, the Court agreed with him that there was no violation of s. 11 (h) of the Charter but reversing him, the Court of Appeal 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.

[123]. On the Association’s appeal in Canadian Civil Liberties Association, the Court of Appeal accepted Associate Chief Justice Marrocco’s 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.

[124]. The Ontario 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 an expected result from the abnormal psychological stress of administrative segregation that will cause permanent psychological harm if the placement continues indefinitely. The Court of Appeal found that prolonged administrative segregation has the potential to cause serious harm that could be permanent.

[125]. The Court of Appeal rejected Ontario’s submission that a section 12 analysis of what counts as cruel and unusual treatment was a fundamentally individual issue.⁷⁸ In its decision in Corporation of the Canadian Civil Liberties Association, the Court of Appeal held that the federal Act governing segregation unjustifiably infringed Charter s. 12 to the extent that it permitted inmates to be placed in prolonged administrative segregation for periods longer than 15 consecutive days.

[126]. On June 24, 2019, the British Columbia Court of Appeal in a judgment written by Justice Groberman,⁷⁹ (Justices Willcock and Fitch concurring) varied Justice Leask’s decision in British Columbia Civil Liberties Association v. Canada (Attorney General) on matters not pertinent to the immediate case. The decision that there had been a violation of s. 7 of the Charter was affirmed.

[127]. In British Columbia Civil Liberties Association, the British Columbia Court of Appeal affirmed Justice Leask’s findings that: (a) the practice of administrative segregation as confinement for 22 hours or more a day without meaningful human contact constitutes "solitary confinement" as defined in the Mandela Rules; (b) administrative segregation puts inmates at increased risk of self-harm and suicide; (c) inmates suffer permanent psychological harm as a result of spending time in administrative segregation; (d) 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;and (e) prolonged confinement in administrative segregation is not necessary to achieve the safety or security objectives that trigger its use.⁸⁰

[128]. In July 2019, the summary judgment motion in Reddock, was argued, and on August 29, 2019, I released my decision granting a summary judgment.⁸¹

[129]. Based on the evidence on the summary judgment motion in Reddock, I came to the same factual conclusions that I had found in Brazeau, and in addition, I made the following additional findings of fact: (a) placement in administrative segregation for more than fifteen days causes serious physical and mental harm; (b) the risk of that harm happens immediately upon the placement into administrative segregation and the risk is actualized into harm in some Class Members immediately and in the rest of the Class Members by no later than fifteen days; (c) solitary confinement has been associated with serious mental illness and with the exacerbation of the symptoms of those with pre-existing mental health problems; (d) the historical record shows how harmful and dysfunctional has been the practice of isolating inmates from meaningful human and humane contact; and the more recent academic literature is consistent and confirmatory of the fact that prolonged administrative segregation causes physical and psychiatric harm.⁸²

[130]. In Reddock, I concluded that section 7 of the Charter was breached on a class-wide basis because of an inadequate system of review for placements in administrative segregation. I found that prolonged administrative segregation violated inmates' rights to both life and security of the person, not in accordance with the principles of fundamental justice. I found a common section 12 Charter breach at 15 days.

[131]. In Reddock, with respect to the cause of action in negligence, I found that the Federal Government was negligent in its use of prolonged Administrative Segregation. I found it breached its duty of care because: (a) administrative segregation should be the last resort in order to satisfy safety and security concerns; (b) administrative segregation should not be indeterminate; (c) administrative segregation should be as short as possible; (d) it should not be prolonged and any segregation that was the equivalent of solitary confinement should be capped and not extend beyond fifteen days; (e) it should never be used as a punishment or a substitute for disciplinary segregation; (f) it should comply with the Mandela Rules; and (g) it should not be used when the inmate was an adolescent, pregnant, or seriously mentally ill.

[132]. In Reddock, I awarded aggregate base-level compensatory damages for the Charter breach and for negligence with individual issues trials to follow.

[133]. The Federal Government appealed my decision in Reddock, and the Court of Appeal ordered that the appeal be heard along with the appeal in Brazeau.

[134]. On December 16, 2019, the Federal Government sought leave to appeal to the Supreme Court of Canada in Corporation of the Canadian Civil Liberties Association.

[135]. In January 2020, the Ontario Court of Appeal heard argument in Brazeau and in Reddock. Ontario was granted intervenor status. The Court reserved its decision.

[136]. On January 20-24, 2020, Mr. Francis’ summary judgment motion was argued. I reserved judgment.

[137]. On February 13, 2020, the Supreme Court of Canada granted leave to appeal in Canadian Civil Liberties Association⁸³ and in British Columbia Civil Liberties Association.⁸⁴ The appeals are to be heard together.

[138]. On March 9, 2020, the Ontario Court of Appeal released its decision in Brazeau and Reddock. In the main, the Court upheld but varied the decisions in both cases. The Court dismissed the argument that the cases were inappropriate for a summary judgment. For the purposes of the appeal, the Federal Government had accepted that unless reversed by the Supreme Court the Corporation of the Canadian Civil Liberties Association, was binding and that, for the purposes of the appeals, breaches of s. 7 and 12 of the Charter had been proven in both Brazeau and Reddock. Thus, the substantive issues on the appeal concerned the negligence cause of action in Reddock and Charter damages award made in both cases.

[139]. In the result, the Court of Appeal varied the decision in Reddock by striking out the negligence claim. The damages award in Reddock was affirmed. The Brazeau judgment was varied only with respect to the aggregate damage award and that issue was remitted to me for reconsideration. In effect, the Court concluded that the Charter damages award was appropriate in Brazeau but not the manner of its distribution.

F. Ontario’s Correctional Institutions

1. The Ministry of Correctional Services Act

[140]. Ontario’s Minister of Correctional Services has numerous responsibilities associated with the custody of remanded or convicted persons placed in correctional institutions. The Ministry of Correctional Services Act⁸⁵ provides for the establishment or continuance of correctional institutions in Ontario. Section 14.2 of the Act allows the Minister to establish “maximum security custody programs, in which restrictions are continuously imposed on the liberty of inmates by physical barriers, close staff supervision or limited access to the community.”

[141]. For present purposes, the following provisions of the Ministry of Correctional Services Act are pertinent:

Definitions

1. In this Act,

correctional institution” means a correctional institution established or continued under section 14, whether it is operated or maintained by the Ministry or by a contractor, but does not include a place of open custody, a place of secure custody, a place of temporary detention or a lock-up established under section 16.1 of the Police Services Act;

“correctional service” means a service provided for the purpose of carrying out the function or objects of the Ministry, including the operation and maintenance of correctional institutions;

“inmate” means a person confined in a correctional institution or otherwise detained in lawful custody under a court order, but does not include a young person within the meaning of the Young Offenders Act (Canada) or the Youth Criminal Justice Act (Canada) unless he or she,

(a) has been transferred to ordinary court under the Young Offenders Act (Canada), or

(b) receives an adult sentence within the meaning of the Youth Criminal Justice Act (Canada);

“Minister” means the Minister of Correctional Services;

“Ministry” means the Ministry of Correctional Services;

Ministry continued

2 (1) The ministry of the public service known as the Ministry of Correctional Services and in French as ministère des Services correctionnels is continued.

(2) The Minister shall preside over and have charge of the Ministry

Deputy Minister

3. The Lieutenant Governor in Council shall appoint a Deputy Minister of Correctional Services who shall be the deputy head of the Ministry.

Duties of Minister

4 The Minister is responsible for the administration of this Act and any Acts that are assigned to him or her by the Legislature or by the Lieutenant Governor in Council.

Functions of Ministry

5 It is the function of the Ministry to supervise the detention and release of inmates, parolees and probationers and to create for them an environment in which they may achieve changes in attitude by providing training, treatment and services designed to afford them opportunities for successful personal and social adjustment in the community, and, without limiting the generality of the foregoing, the objects of the Ministry are to,

(a) provide for the custody of persons awaiting trial or convicted of offences;

(b) establish, maintain and operate correctional institutions;

(c) provide programs and facilities designed to assist in the rehabilitation of inmates;

(d) establish and operate a system of parole;

(e) provide probation services;

(f) provide supervision of non-custodial dispositions, where appropriate; and

(g) provide programs for the prevention of crime.

Employees

6 Such employees as are required from time to time for the proper conduct of the Ministry may be appointed under Part III of the Public Service of Ontario Act, 2006.

Delegation of Minister’s powers

7. Where, under this or any other Act, a power or duty is granted to or vested in the Minister, he or she may in writing delegate that power or duty to the Deputy Minister, or to any officer or officers of the Ministry, subject to such limitations, restrictions, conditions and requirements as the Minister may set out in the delegation

Designation of peace officers

11(1) The Minister may designate in writing,

(a) a person who is an employee in the Ministry to be a peace officer while performing the person’s duties and functions; or

(b) a class or classes of persons from among the persons described in clause (a), to be peace officers while performing their duties and functions,

and may set out in the designation any conditions or limitations to which it is subject.

Protection from personal liability

12 (1) No action or other proceeding for damages shall be instituted against the Deputy Minister or any officer or employee of the Ministry or anyone acting under his or her authority for any act done in good faith in the execution or intended execution of his or her duty or for any alleged neglect or default in the execution in good faith of his or her duty or for any act of an inmate, parolee or probationer while under his or her custody and supervision.

Idem

(2) Subsection (1) does not, by reason of subsection 8 (3) of the Crown Liability and Proceedings Act, 2019, relieve the Crown of liability in respect of a tort committed by a person mentioned in subsection (1) to which it would otherwise be subject, and the Crown is liable under that Act for any such tort in a like manner as if subsection (1) had not been enacted.

Correctional institutions

14 (1) The correctional institutions existing immediately before the coming into force of the Revised Statutes of Ontario, 1990 continue to exist as correctional institutions.

Idem

(2) The Lieutenant Governor in Council may, by order, establish or discontinue a correctional institution.

Maximum and medium security custody programs

14.2 The Minister may establish in correctional institutions,

(a) maximum security custody programs, in which restrictions are continuously imposed on the liberty of inmates by physical barriers, close staff supervision or limited access to the community; and

(b) medium security custody programs, in which restrictions that are less stringent than in a maximum security custody program are imposed on the liberty of inmates.

Custody before sentencing

15.1 A person who is lawfully detained in a correctional institution but not sentenced to imprisonment may be detained in any correctional institution, as directed by the Ministry, or in the custody of a provincial bailiff or other person employed in a correctional institution.

Sentence to correctional institution

16 (1) The court before which a person is convicted under an Act of the Legislature of an offence punishable by imprisonment may sentence the person to imprisonment in a correctional institution.

Same

(2) A person who has been sentenced to imprisonment in a correctional institution may be detained in any correctional institution, as directed by the Ministry, or in the custody of a provincial bailiff or other person employed in a correctional institution.

Superintendent of correctional institution

20 (1) The Minister shall, for each correctional institution, designate one or more superintendents of the institution.

Responsibility for administration

(1.1) The superintendent shall be responsible for the administration of the correctional institution.

Duties

(2) The superintendent shall receive into the institution every person delivered under lawful authority for detention in the institution and is responsible for the custody and supervision of such person until his or her term of imprisonment is completed or until the person is transferred or otherwise discharged in due course of law.

Deputy superintendent

(3) The Minister may designate one or more deputy superintendents of a correctional institution to be responsible for the administration of the institution when the superintendent, by reason of absence, illness or other cause, is unable to carry out his or her duties.

Limitations

(4) A designation under subsection (1) or (3) may be subject to such limitations, restrictions, conditions and requirements as the Minister may set out in the designation.

Persons designated

(5) A person designated under subsection (1) or (3) may be an employee of the Ministry or any other person.

Inspection, investigation

22 (1) The Minister may designate any person as an inspector to make such inspection or investigation as the Minister may require in connection with the administration of this Act, and any person employed in the Ministry who obstructs an inspection or investigation or withholds, destroys, conceals or refuses to furnish any information or thing required by an inspector for the purposes of the inspection or investigation may be dismissed for cause from employment.

Offence for obstructing inspection

(2) A contractor or employee of a contractor who obstructs an inspection or investigation or withholds, destroys, conceals or refuses to furnish any information or thing required by an inspector for the purposes of the inspection or investigation is guilty of an offence and on conviction is liable to a fine of not more than $5,000. .

Ministerial inquiry

23(1) The Minister may, by order, appoint a person to make an inquiry into any matter to which this Act applies as may be specified in the Minister’s order and the person so appointed shall report the result of the inquiry to the Minister.

Application of Public Inquiries Act, 2009

(2) Section 33 of the Public Inquiries Act, 2009 applies to the inquiry.

Hospitalization and mental examinations

Medical treatment

24 (1) Where an inmate requires medical treatment that cannot be supplied at the correctional institution, the superintendent shall arrange for the inmate to be conveyed to a hospital or other health facility.

Psychiatric treatment

(2) Where an inmate requires hospitalization in a psychiatric facility under the Mental Health Act, the superintendent shall arrange for the inmate to be conveyed to a psychiatric facility.

Mental examination

(3) The superintendent may direct that an examination be made of an inmate by a psychiatrist or psychologist for the purpose of assessing the emotional and mental condition of the inmate.

Rehabilitation programs

25 The Minister may establish rehabilitation programs under which inmates may be granted the privilege of continuing to work at their regular employment, obtaining new employment, attending academic institutions, or participating in any other program that the Minister may consider advisable in order that such persons may have a better opportunity for rehabilitation.

Custody

27.1 An inmate shall be deemed to be in the custody of a correctional institution for the purposes of this Act even if he or she is not on the premises of the correctional institution, so long as he or she is in the custody of a correctional officer.

Application of Statutory Powers Procedure Act

58 Despite anything in the Statutory Powers Procedure Act, that Act does not apply to proceedings,

(a) for the discipline or transfer of inmates.

(a.1) for the determination of earned remission of inmates.

(b) for the grievances of inmates.

(c) Repealed: 2009, c. 33, Sched. 9, s. 8 (9).

(d) for the authorization of temporary absences for inmates; or

(e) of the Ontario Parole Board.

Member of Legislative Assembly

59 Every member of the Legislative Assembly of Ontario is entitled to enter and inspect any correctional institution or community resource centre established or designated under this Act, whether it is operated or maintained by the Ministry or by a contractor, for any purpose related to the member’s duties and responsibilities as a member of the Legislative Assembly, unless the Minister determines that the correctional institution or community resource centre is insecure or an emergency condition exists in it

Regulations

60 (1) The Lieutenant Governor in Council may make regulations,

(a) respecting the operation, management and inspection of correctional institutions;

(e) respecting the treatment, training, employment, discipline, control, grievances and privileges of inmates;

(l) respecting the duties and powers of directors, superintendents, probation officers, parole officers, correctional officers, other persons employed in the administration of this Act and volunteers;

(l.1) prescribing standards of professional ethics for persons employed in the administration of this Act and requiring compliance with those standards;

(r) providing for the assessment of inmates;

(s) prescribing grooming and appearance standards for inmates serving sentences in correctional institutions that are relevant to the security of those institutions or to the health or safety of persons, and requiring compliance with those standards;

(t) providing for the monitoring, intercepting or blocking of communications of any kind between an inmate of a correctional institution and another inmate or other person, where reasonable for protecting the security of the institution or the safety of persons;

(t.1) prescribing procedures for carrying out searches in correctional institutions;

Discipline

(5) The fact that an inmate is alleged to have committed an act or omission that is an offence under an Act of Canada or Ontario does not prevent disciplinary procedures from being taken against him or her in respect of the act or omission in accordance with the regulations made under clause (1) (e).

[142]. During the Class Period, there were a total of 32 correctional institutions operating in Ontario. With the exception of St Lawrence Valley Correctional and Treatment Centre, all of them are within the scope of this class proceeding.

[143]. The correctional institutions vary in age, location, layout, capacity and supervision model, which are factors in inmate placement. The oldest institution is the Brockville Jail, which was built in 1842. The two newest institutions, South West Detention Centre and Toronto South Detention Centre, which have a capacity of over 1,100 inmates, were built in 2014. The smallest institution, with a capacity of 23 inmates, is the Fort Frances Jail.

[144]. Pursuant to the Ministry of Correctional Services Act, the Minister may appoint at least one Superintendent for each correctional institution. The Superintendent is responsible for the management and administration of the correctional institution and for the care, health, discipline, safety and custody of all of the inmates under his or her authority. Superintendents are required to administer the correctional institutions in accordance with the Act, the Regulations and any instructions issued from time to time by the Minister to the Superintendent.

[145]. Superintendents are required by the Ministry of Correctional Services Act to receive into the correctional institutions every person delivered under lawful authority for detention until that person’s term of imprisonment is completed, or they are transferred or otherwise discharged from custody. This differs from the federal system where, for example, an institutional head may refuse to receive a sentenced individual into the penitentiary if a medical certificate is not complete.

2. The Regulatory Scheme and Policy in Ontario for Administrative Segregation

(a) Ontario Regulation 778

[146]. The use of administrative segregation in Ontario’s correctional institutions is authorized by Ontario Regulation 778. For the purposes of this summary judgment motion, the following provisions of the regulation are pertinent:

Definitions

1. In this Regulation,

“employee” means an employee of the Ministry or of a contractor;

“clinic” or “hospital” means that part of an institution set aside for the care and treatment of inmates who are physically or mentally ill;

“contraband” means unauthorized property in the possession of an inmate;

“health care professional” means a member of the College of Physicians and Surgeons of Ontario or of the College of Nurses of Ontario;

“officer” means an employee who is directly involved in the care, health, discipline, safety and custody of an inmate and includes a bailiff appointed under the Act;

“Superintendent” includes a Director of a correctional institution

Duties of Superintendent, Health Care Professionals, Employees

2. (1) The Superintendent of a correctional institution is responsible for the management of the institution and for the care, health, discipline, safety and custody of the inmates under the Superintendent’s authority, and, without limiting the generality of the foregoing, the Superintendent shall,

(a) supervise the admission and release of each inmate from the institution;

(b) supervise the recording, guarding and disposition of inmate property;

(c) conduct reviews in discipline cases;

(d) supervise the admission and conduct of persons visiting the institution; and

(e) supervise the searches conducted on inmates and employees.

(2) The Superintendent shall,

(a) administer the institution in accordance with the Act, the regulations and any instructions issued from time to time by the Minister to the Superintendent;

(b) issue to the employees of the institution such directions as may be necessary to fulfil the responsibilities of a Superintendent;

(c) establish administrative procedures to be followed on the admission, discharge, escape, illness or death of an inmate and on the assignment of employees’ and inmates’ duties; and

(d) ensure that inmates are informed of their duties and privileges while in the care and custody of the Superintendent.

3. Any power, duty or function conferred or imposed upon or exercised by a Superintendent under the Act or this Regulation may be delegated by the Superintendent to any person or persons to act as designated representative of the Superintendent for the purpose of the effective administration of the Act and the delegation shall be subject to such limitations, restrictions, conditions and requirements as the Superintendent considers necessary for the purpose.

4. (1) There shall be one or more health care professionals in each institution to be responsible for the provision of health care services within the institution and to control and direct the medical and surgical treatment of all inmates.

(2) The health care professional shall ensure that every inmate receives a medical examination as soon as possible after admission to the institution.

(3) The health care professional shall immediately report to the Superintendent whenever the health care professional determines that an inmate is seriously ill.

(4) When an inmate is injured, a health care professional shall,

(a) examine the inmate’s injuries;

(b) ensure such treatment as seems advisable; and

(c) make a written report to the Superintendent concerning the nature of the injury and the treatment provided.

31. (1) Where an inmate is alleged to have committed a misconduct, the Superintendent shall decide, as soon as possible, whether or not the inmate committed the misconduct.

(2) Before making a decision under subsection (1), the Superintendent shall ensure that the inmate is notified of the allegation and is given an opportunity for an interview, which shall be held not later than ten days after the day on which the alleged misconduct became known to the Superintendent, to discuss the allegation with the Superintendent.

(5) The Superintendent may, during an interview held under subsection (2), adjourn the interview, but no such adjournment shall be for more than three clear days, except with the consent of the inmate.

(6) The Superintendent shall inform the inmate within two days after the day of the interview concerning the Superintendent’s decision, the reasons for the decision and the disciplinary measure imposed, if any.

32. (1) Where the Superintendent determines that an inmate has committed a misconduct, the Superintendent may impose one or more of the following disciplinary measures:

33. Loss of all or some privileges for a period not greater than 120 days including the privilege of purchasing items from the institutional canteen.

34. A change of program or work activity.

35. A change of security status.

36. A reprimand.

5.Revocation of a temporary absence permit.

(2) Where the Superintendent determines that an inmate has committed a misconduct of a serious nature, the Superintendent may impose, in addition to any of the disciplinary measures imposed in subsection (1), one of the following disciplinary measures:

1. Disciplinary segregation for a definite period of not greater than 15 days.

2. Disciplinary segregation for an indefinite period of not greater than 15 days.

Segregation

34. (1) The Superintendent may place an inmate in segregation if,

(a) in the opinion of the Superintendent, the inmate is in need of protection;

(b) in the opinion of the Superintendent, the inmate must be segregated to protect the security of the institution or the safety of other inmates;

(c) the inmate is alleged to have committed a misconduct of a serious nature; or

(d) the inmate requests to be placed in segregation.

(2) When an inmate is placed in segregation under clause (1) (c), the Superintendent shall conduct a preliminary review of the inmate’s case within twenty-four hours after the inmate has been placed in segregation and where the Superintendent is of the opinion that the continued segregation of the inmate is not warranted, the Superintendent shall release the inmate from segregation.

(3) The Superintendent shall review the circumstances of each inmate who is placed in segregation at least once in every five-day period to determine whether the continued segregation of the inmate is warranted.

(4) An inmate who is placed in segregation under this section retains, as far as practicable, the same benefits and privileges as if the inmate were not placed in segregation.

(5) Where an inmate is placed in segregation for a continuous period of thirty days, the Superintendent shall report to the Minister the reasons for the continued segregation of the inmate.

[147]. Ont. Reg. 778 does not place a time limit on placements in administrative segregation. Section 34(5) of the regulation contemplates placements of over 30 consecutive days. In contrast, if an inmate is placed in disciplinary segregation pursuant to s. 32(2) because of serious misconduct, the disciplinary segregation cannot be for a definite or indefinite period of greater than 15 days.

[148]. As may be noted, Ont. Reg. 778 requires reviews of an administrative segregation placement, as follows: (a) the Superintendent is to conduct a preliminary review of an inmate’s case within 24 hours when that inmate is placed in segregation for allegations of misconduct; (b) the Superintendent reviews the circumstances of each inmate placed in administrative segregation every 5 days; and (c) the Superintendent is to report to the Minister the reasons for continued segregation, if an inmate is placed in segregation for a continuous period of 30 days.

[149]. It should be noted that Ont. Reg. 788 is rudimentary in its regulation. It does not contain: (a) an operational definition of segregation; (b) restrictions on the daily time any inmate spends in segregation; (c) guidelines for the placement of inmates with serious mental illness; (d) standards for physical and mental health care; (e) standards with respect to education or rehabilitation services for the inmates; (f) standards with respect the cell’s physical properties; and standards with respect to meaningful human contact with others.

[150]. Ont. Reg. 788 does not elucidate what participation rights, if any, are available for inmates with respect to the Superintendent's periodic 5-day reviews. The implementation and operational decisions with respect to these aspects of administrative segregation are to be found outside of Ont. Reg. 788.

[151]. In this last regard, it is particularly important to note for the discussion later in these Reasons for Decision that until 2018, segregation meant a placement in a “segregation unit”, but the circumstances of being in a segregation for an inmate, in terms of isolation, interaction with others, mental or physical exercise, mental or health care was a matter of custom and practice and not regulation. It was only in 2018 that a placement in segregation was defined based on the psychological experience of the placement and that it was recognized that segregation as it was being practiced was a confinement where an inmate was restricted in his or her movement and association with others for 22 hours or more a day.

[152]. In 2019, by Ont. Reg. 363/19, Ontario revised Ont. Reg. 778 to add the following provisions:

34.0.1 (1) The Superintendent shall,

(a) conduct a preliminary review of the case of an inmate who is held in segregation conditions under subsection 34 (1) within twenty-four hours after the holding of the inmate in segregation conditions commenced; and

(b) release the inmate from being held in segregation conditions if the Superintendent is of the opinion that continuing to hold the inmate in segregation conditions is not warranted.

(2) The Minister shall,

(a) review the circumstances of each inmate held in segregation conditions under subsection 34 (1) no later than,

(i) the fifth consecutive day the inmate is held in such conditions, and

(ii) each fifth consecutive day the inmate is held in such conditions following the day on which a review is held under this section; and

(b) order that the inmate be released from being held in segregation conditions, if the Minister is of the opinion that continuing to hold the inmate in segregation conditions is not warranted.

(3) If the Minister has delegated the Minister’s functions under subsection (2), the person delegated to shall report to the Minister the reasons for continuing to hold an inmate in segregation conditions no later than the 15th consecutive day the inmate is held in such conditions.

34.0.2 (1) A delegation of the Minister’s functions under subsection 34.0.1 (2) shall comply with the following rules:

1. The person delegated to must not be a Superintendent or someone who reports directly or indirectly to a Superintendent.

2. The delegation may be subject to such limitations, restrictions, conditions and requirements as the Minister may set out in the delegation.

3. The functions shall not be exercised by anyone who was involved in,

i. the Superintendent’s decision to hold the inmate in segregation conditions under subsection 34 (1), or

ii. the Superintendent’s preliminary review of the case of the inmate under subsection 34.0.1 (1).

(2) The Minister may delegate the Minister’s function of receiving reports under subsection 34.0.1 (3) to the Deputy Minister, subject to such limitations, restrictions, conditions and requirements as the Minister may set out in the delegation.

(b) Ministry Policy Documents

[153]. Turning then to the regulation of administrative segregation outside of Ont. Reg. 788, While there are other Ministry policies that affect administrative segregation, the central policy relating to the placement of inmates and conditions of confinement in administrative segregation is the Policy for Special Management Inmates.

[154]. For present purposes, the first relevant Policy for Special Management Inmates was the policy dated July 2005. Under this policy, Special Management Inmates are inmates who require special care or more intensive supervision, including: (a) inmates who are at risk of suicide; (b) inmates who have a health care problem; (c) inmates who have a mental impairment; or (d) inmates who may require close monitoring or a special management strategy.

[155]. Pursuant to the 2005 Policy, Special Management Inmates were housed in: (a) the general population: (b) in a special needs unit; (c) in disciplinary segregation; or (d) in administrative segregation.

[156]. The placement of Special Management Inmates in administrative segregation under the 2005 Policy was restricted to inmates “whose behaviour, status or physical or mental condition presents a sufficiently high degree of risk to themselves or to others to preclude common association with inmates either in the general population or in a special needs unit”.

[157]. Under the 2005 Policy, administrative segregation was also used for inmates who were involved in criminal investigations or investigations of misconducts of a serious nature where their continuing presence might have been prejudicial to the investigation.

[158]. The 2005 Policy required that the decision to house an inmate in administrative segregation be made based on a comprehensive review of each individual case. The 2005 Policy stipulated that whenever possible, health care staff were to perform a medical examination both before an inmate is admitted to segregation and upon the release of the inmate from segregation. The 2005 Policy required senior administration and health care staff to conduct ongoing monitoring of segregation units. A member of senior administration was required to visit inmates in these units at least once in every three-day period. The Operational Manager and health care staff were to visit segregation units daily and program staff were to visit inmates upon the completion of a written request.

[159]. Under the 2005 Policy, inmates housed in administrative segregation were afforded the same rights and privileges as inmates in general population, unless there were reasonable and compelling reasons not to do so.

[160]. Ontario submits that introducing a new policy, or changing an existing policy, requires the Assistant Deputy Minister to consider its impact on operating costs, staffing, and feasibility of any required capital improvements. Ontario submits that any significant changes to the overall use and operation of administrative segregation would require significant new government funding because any substantial change would require changes to the infrastructure of the correctional institutions as well as the hiring and training of new staff.

[161]. In January 2011, the Policy for Special Management Inmates was updated to provide for access to televisions in administrative segregation units where feasible.

[162]. In September 2015, the Policy for Special Management Inmates policy was revised to better address the placement of inmates with mental illness or other Human Rights Code-related needs in segregation.

[163]. The September 2015 Policy acknowledged the Ministry’s duty to accommodate inmates’ Human Rights Code-related needs short of undue hardship. The September 2015 policy included a new emphasis on an individual assessment of each special management inmate’s needs and circumstances. Inmates with mental illness could not be placed in segregation under the new policy, unless all other housing alternatives had been considered and rejected because they would cause undue hardship to the Ministry.

[164]. When an inmate was placed in administrative segregation, the September 2015 Policy contained increased mental health monitoring and required a mental health provider to visit the inmate daily. If an inmate placed in administrative segregation had a mental illness, a mental health provider was to review the inmate at a minimum every 24 hours. In addition, before each 5-day review, a physician or psychiatrist was required to assess the inmate’s mental illness under the September 2015 Policy

[165]. Under the September 2015 Policy, the authority to determine whether the undue hardship threshold was met rested with the Regional Director or designate.

[166]. On October 17, 2016, the Assistant Deputy Minister issued a memorandum to all institutional staff containing four directives; namely: (a) administrative segregation must only be used as a measure of last resort, and the use of administration segregation requires that all other alternatives be explored prior to placement; (b) the use of disciplinary segregation must be limited to a maximum of 15 consecutive days; (c) internal weekly multi-disciplinary segregation review committees must be created in each correctional institution (These committees assist in reintegration efforts, explore alternative housing options and discuss strategies for improving conditions of confinement for inmates who are placed in segregation); and (d) the loss of all privileges sanction for inmates held in disciplinary segregation was to be eliminated.

[167]. In December 2016, the Policy for Special Management Inmates was updated to recognize the requirements of the Assistant Deputy Minister’s Directive.

[168]. Between January 2017 and July 2018, the Ministry created specialized units at 15 Correctional Institutions. After receiving approval from Treasurer Board, the Ministry hired 239 additional staff to improve the conditions of confinement for inmates placed in segregation through increased pro-social interaction, more time of out cell and individual rehabilitation programming for the seven institutions with the highest rates of long-term segregation placements. Segregation managers were appointed at the seven institutions. After receiving approval from Treasury Board an additional 246 staff were hired to increase support for inmates with mental health needs, including those inmates placed in segregation.

[169]. In May 2018, Ontario enacted the Correctional Services Transformation Act (Bill 6), but the legislation has never been proclaimed in force. The legislation would introduce the Ministry of Community Safety and Correctional Services Act, 2018 and the Correctional Services and Reintegration Act, 2018 and make related amendments to other statutes. This legislation was debated in the legislature, passed and received Royal Assent on May 7, 2018. However, Ontario has not taken the final step of proclaiming the legislation into force.

[170]. The Correctional Services Transformation Act complies with the Mandela Rules, noted above. The statute prohibits prisoners with serious mental illness from being segregated, and it places a 15-day limit on administrative segregation. The statute, which it should be recalled is not in force, mandates minimum aspects of health care provision, including timelines, for segregated inmates, and, its provides segregated inmates with a hearing before an "Independent Review Panel" in several circumstances, including where they have been segregated for five consecutive days for non-disciplinary reasons or 30 aggregate days in the most recent 365-day period.

[171]. On July 6, 2018, the Policy for Special Management Inmates was revised again.

[172]. The July 2018 Policy reiterated that inmates are to be held in administrative segregation as a last resort. The July 2018 Policy implemented a requirement to track all segregation placements electronically and defined additional housing options that are an alternative to segregation. The July 2018 Policy added procedural steps before and during an inmate’s placement in segregation, including a requirement that staff check the Ministry’s electronic database to see whether there are indications that the inmate has mental health concerns or other Human Rights Code-related needs.

[173]. The July 2018 Policy detailed the types of mental health services that are to be offered to inmates in segregation and the required reviews of segregation placements. It specifically requires that inmates with mental illness who are placed in segregation are to be assessed by a mental health provider at a minimum once every 24 hours.

3. Inmate Demographics

[174]. The inmate population of Ontario’s correctional institutions includes: (a) inmate’s remanded into custody pending a court appearance; (b) inmates transferred from a from federal penitentiaries in custody pending a further court appearance or pending release; (c) inmates imprisoned under a custodial sentence of less than two years; (d) inmates whose parole has been revoked; (e) inmates detained on behalf of the Canadian Border Services Agency; (f) inmates, held on lock-up; i.e., inmates held on behalf of a municipality for a maximum of 24-hours; (g) inmates held pending the execution of an arrest warrant; (h) inmates whose long-term supervision orders have been suspended; and (i) inmates who are found unfit to stand trial or who are not criminally responsible pending a ruling of the Ontario Review Board or a transfer to a psychiatric hospital.

[175]. The majority of persons imprisoned in Ontario’s correctional institutions are being held on remand pending the disposition of criminal charges. The median length of remand is 10 days. There is a high turnover rate in the inmate population. For example, for the 2018/19 fiscal year, there were 50,491 admissions to correctional institutions and 50,129 institutional releases. On daily average, there are approximately 7,445 inmates in custody in the correctional institutions across the province.

[176]. Remanded inmates are a challenge to deal with. They suffer from the stress of the incident leading to their arrest, the stress of the arrest, and the stress of imprisonment. Many are addicts and substance abusers that may be experiencing withdrawal symptoms. Many are suffering from mental illness. Many inmates require monitoring to stabilize them sufficiently before a longer-term placement decision can be made. Many inmates pose a danger to other inmates and to correctional staff. Many inmates are targets for harm from other inmates and require protective custody due to the nature of their offences, such as certain high-profile sexual offences or terrorism offences. Some inmates are targets for harm due to their occupations; visualize, police officers, correctional officers or lawyers are targets for violence at the hands of other inmates.

[177]. The demands and pressures on the correctional staff to maintain the safety and security of the correctional institution are extreme, and there is the challenge that many inmates are incompatible because of racism or rival gang memberships, and these inmates cannot be safely housed in close proximity with one another. For example, with only 5 available general population units and only 2.5 protective custody units available, on September 4, 2018, the Toronto East Detention Centre had to accommodate 55 inmates who had gang affiliations with 31 different gangs.

[178]. Ontario’s inmate population is much more fluid than in federal penitentiaries, where prisoners serve sentences of more than two years. Ontario’s Correctional Institutions must manage this complex population, including those who are violent and volatile, those who have suffered trauma, and those who are at risk, or suffering with addictions or with mental health issues, often in the absence of vital information about inmates’ criminal or medical history.

[179]. In May 2018, an electronic data regarding placements in administrative segregation became available to Ontario. This database reveals that in the 4.5 months between May 1, 2018 and September 18, 2018, there were there were 21,085 inmates in custody of which approximately 6,300 inmates were placed in administrative segregation.

[180]. Without a review of each medical file, it is not possible to determine how many of the 6,300 inmates placed in administrative segregation had a serious mental illness within the class definition for the SMI (Serious Mental Illness) Class.

[181]. The Sapers Report, mentioned above, states that in 2017, 43% of those in segregation had a mental health alert on file. A mental health alert is recorded on an inmate's file if the inmate: (a) has a history of a mental health disability; (b) is showing signs of, or has disclosed thoughts about self-harm or suicide; or (c) is demonstrating behaviour that may suggest a mental illness.

[182]. Of the 6,300 inmates placed in administrative segregation during the 4.5 month period, 1,472 spent 15 days or more in administrative segregation. For the period before May 2018, without a review of each individual inmate file, it is not possible to enumerate the number of days of an inmate’s imprisonment was in administrative segregation.

[183]. In her interim report, Professor Hannah-Moffat stated in September 2018, for those who were in segregation for 30 or more days, 80% of the women and 60% of men had identified mental health concerns.

4. The Circumstances of Administrative Segregation

[184]. The mental and physical circumstances of a placement in administrative segregation in Ontario are the same or very similar to the circumstances of a placement in administrative segregation in a federal penitentiary. A characteristic of administrative segregation as practiced in federal penitentiaries and at Ontario’s correction institutions is that the inmate is in isolation in a austere small cell for 22 hours or more with no meaningful human contact. This confinement is colloquially known as “solitary confinement.”

[185]. The photographs of the cells used for administrative segregation in federal or in provincial correctional institutions reveal no significant differences in the physical layout or accoutrements of an administrative segregation cell. Ontario admitted that the same cells were used for security and safety reasons as used for disciplinary punishment.

[186]. The segregation cells are small. Some are windowless or have frosted opaque windows. The cells tend to be ill kept and be fouled with excrement and blood. The cells are separated from the outside by a metal door with a slot or hatch for food and communication purposes. In some institutions there has been the practice of never turning off the lights in the administrative segregation cell.

[187]. In Ontario’s 2016 Internal Report, Ontario noted that current segregation practices in Ontario may fall under the United Nations definition of solitary confinement.

5. The Inmates’ Evidence

(a) Mr. Davidson

[188]. Mr. Davidson suffers from Post-Traumatic Stress Disorder (“PTSD”). In August 2014, he was imprisoned at Maplehurst Correction Complex having been convicted of a criminal offence. He is Indigenous, and while in the general cells, he was harassed by racist inmates. He was placed in protective custody. In December 2016, he broke his finger and was transferred to administrative segregation.

[189]. The cell was approximately 7.5 feet x 8 feet in size. There were no windows. He was allowed to leave the cell every other day for thirty minutes for a shower, phone call, and time in the yard. He did not have books, magazines, a radio, or a television. He was confined for 30 days. His PTSD worsened significantly.

(b) Ms. Ebel

[190]. Ms. Ebel suffers from Obsessive Compulsive Disorder (“OCD”). In 2007, after her conviction for a criminal offence, Ms. Abel was imprisoned at Owen Sound Jail. In December 2007, she was transferred to the Vanier Centre for Women. After her arrival at Vanier, she suffered a ruptured hernia and underwent emergency surgery. After the surgery, she was placed for five days in a small cell with a frosted window. She believed that this was administrative segregation cell, but during cross-examination she admitted that this was not the case.

[191]. In any event, for the first two days, she was not allowed to leave the cell. No medical personnel came to check on her, and she had to ask a guard to take her to a nurse. Although she asked, there was no explanation as to why she was not in an infirmary. For the last three days, she was allowed out for 15 minutes each day. The confinement exacerbated her OCD. She continues to suffer and has frequent nightmares. She suffers from anxiety.

(c) Mr. Francis

[192]. Mr. Francis, the Representative Plaintiff, (born September 13, 1965) spent 2.5 years in the Toronto South Correctional Centre for a bank robbery charge for which he was ultimately acquitted. Before his imprisonment, he was being treated for a serious psychiatric illness. Mr. Francis has had prior experiences with administrative segregation having been detained in several provincial correctional institutions as well as in federal penitentiaries. He spent a year in segregation at the federal Warkworth Institution. At Toronto South, he was placed on a “special needs” range.

[193]. While at Toronto South, Mr. Francis was twice placed in administrative segregation, first for 8 days, the second for two days. Both placements were imposed for disobeying the order of a Correctional Officer. Mr. Francis states that the placements were because he refused to take “Seroquel,” a psychiatric drug.

[194]. Mr. Francis was provided with written notice of the allegations, and he was interviewed. He was found not guilty of the first misconduct allegation, and he was released from segregation. Mr. Francis admitted to the second allegation of misconduct, and then he was released from segregation with a reprimand.

[195]. For Mr. Francis, the experience in