Attorney General of Canada v. Corporation of the Canadian Civil Liberties Association

(Ontario) (Civil) (By Leave)

(Sealing order)


Constitutional law - Charter of Rights, Cruel and unusual treatment or punishment (s. 12), Right to life, liberty and security of person - Constitutional law – Charter of Rights – Cruel and unusual punishment – Right to life, liberty and security of the person – Administrative segregation – Sections 31-37 of the Corrections and Conditional Release Act provides for scheme of administrative segregation of inmates – Whether ss. 31-37 of the Corrections and Conditional Release Act are constitutional – What is the appropriate standard for determining whether a legislative regime is grossly disproportionate – Whether the reason and purpose of the treatment or punishment must be considered when conducting the s. 12 analysis – Whether the Ontario Court of Appeal erred in its application of the case law in determining the legislation violated s. 12 because of what it did not include – Whether the segregation of prisoners for their own protection contravenes ss. 11(h), 7 and 12 of the Charter – Corrections and Conditional Release Act, S.C. 1992, c. 20.

Constitutional law – Charter of Rights – Declarations of invalidity – Extensions – Whether the risk to personal safety created by a legislative vacuum must be taken into account on requests for extensions – Whether it is just and appropriate for courts to order conditional extensions without addressing the inability of parties to lawfully comply – Whether a court can order a condition which remedies a constitutional deficiency yet declare legislation invalid irrespective of implementation of the condition.



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Federal legislation permitted the use of “administrative segregation” in penitentiaries across Canada to maintain safety and security or to conduct investigations. The applicant, Canadian Civil Liberties Association (“CCLA”) brought an application before the Ontario Superior Court of Justice arguing that ss. 31-37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, the legislative provisions authorizing administrative segregation, are unconstitutional.

The application judge found that the legislation authorizing administrative segregation violated s. 7 of the Canadian Charter of Rights and Freedoms because it did not provide for an independent review of the decision to place an inmate in administrative segregation. Sections 31-37 of the CCRA were declared to be of no force and effect to the extent of the breach. The declaration of invalidity was suspended for one year, until December 18, 2018, to provide Parliament time to enact an appropriate legislative response.

On appeal, the CCLA argued that ss. 31-37 also violated s. 12 and s. 11(h) of the Charter. The CCLA also raised a new s. 7 argument seeking a broader declaration banning the practice entirely for certain inmates (those aged 18-21, those with mental illness, and those placed in segregation for their own protection) and otherwise placing a cap of 15 consecutive days on administrative segregation for all inmates. The respondent, Attorney General of Canada (“AGC” or “Canada”) did not challenge the application judge’s s. 7 decision. On November 21, 2018, the court reserved judgment.

On December 17, 2018, the Ontario Court of Appeal ordered that the suspension of the application judge’s declaration of invalidity be extended to April 30, 2019.

On March 28, 2019, the Court of Appeal rendered its decision and held that prolonged administrative segregation of any inmate, which is segregation for more than 15 consecutive days, does not survive constitutional scrutiny under s. 12 of the Charter. Therefore, ss. 31-37 of the CCRA was also found to infringe s. 12 and the infringement was not justified under s. 1. The provisions were of no force and effect to the extent of the violation and the declaration was to take effect 15 days from the date of the judgment.

On October 16, 2018, the House of Commons introduced Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, which amends ss. 31-37 of the CCRA. The Bill received Royal Assent on June 21, 2019 and the new provisions which are replacing ss. 31-37 of the CCRA came into force on November 30, 2019.