Summary

38814

Attorney General of Canada v. British Columbia Civil Liberties Association, et al.

(British Columbia) (Civil) (By Leave)

Keywords

Constitutional law - Charter of Rights, Right to life, liberty and security of person, Right to equality (s. 15), Remedy -

Constitutional law — Charter of Rights — Right to life, liberty and security of the person — Right to equality — Remedy — Administrative segregation — Sections 31 37 of the Corrections and Conditional Release Act provides for scheme of administrative segregation of inmates — What is the proper application of overbreadth and gross disproportionality to invalidate a discretionary regime, based on the manner in which decision makers have exercised their discretion — What is the appropriate standard for determining whether a legislative regime is grossly disproportionate — When should a remedy under s. 52 of the Constitution Act, 1982, be granted in respect of legislation that could be administered in a constitutionally compliant manner — What are the requirements of procedural fairness for review of administrative segregation — What limits does the Constitution impose on Canada’s use of solitary confinement —Whether and when should courts refuse to grant declaratory relief in the face of conceded unconstitutional conduct — Whether s. 24 Charter relief is available for public interest standing litigants — Corrections and Conditional Release Act, S.C. 1992, c. 20.

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Summary

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The respondents, British Columbia Civil Liberties Association (“BCCLA”) and John Howard Society of Canada (“JHSC”) commenced an application in British Columbia contending that ss. 31 33 and 37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”) were contrary to ss. 7, 9, 10, 12 and 15 of the Canadian Charter of Rights and Freedoms. They argued that the impugned provisions permitted indeterminate and prolonged solitary confinement and that such segregation, especially when endured for extended periods, had significant adverse effects on the physical, psychological and social health of inmates. The applicant, Attorney General of Canada (“AGC”) submitted that the administrative segregation as it is practised in federal correctional facilities was not solitary confinement and that it was a necessary tool when no other reasonable alternatives existed.

The trial judge declared ss. 31 33 and 37 of the Corrections and Conditional Release Act to unjustifiably infringe s. 7 of the Charter and the provisions were of no force and effect to the extent that they authorize and effect prolonged, indefinite solitary confinement, the institutional head to be the judge and prosecutor of his own cause, internal review of placements in administrative segregation, and the deprivation of inmates’ right to counsel at segregation review hearings. The provisions were also found to unjustifiably infringe s. 15 of the Charter to the extent that they authorize and effect any period of administrative segregation for mentally ill and/or disabled inmates, and a procedure that results in discrimination against Indigenous inmates. The trial judge also found that the Correctional Service of Canada had denied inmates their right to retain and instruct counsel without delay upon being placed in administrative segregation. It was determined however that such a claim should be brought by individual inmates seeking relief under s. 24(1) of the Charter.

The Court of Appeal allowed the appeal in part. The court found that the trial judge did not err in finding that the impugned provisions unjustifiably infringe s. 7 and are of no force and effect because they authorize indefinite and prolonged administrative segregation, and authorize internal rather than external review of decisions to segregate inmates. The trial judge however did err in finding that the impugned provisions violate s. 15 and in concluding that it was necessary to strike down the legislation because it did not expressly confer upon inmates the right to counsel at segregation review hearings.

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.