Feb 17, 2021

Criminal Law: Prison “Administrative Segregation”

Canadian Civil Liberties Association v. Canada, 2019 ONCA 342 (CanLII)
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 the legislative provisions authorizing administrative segregation, are unconstitutional. The application judge found the legislation authorizing administrative segregation violated s. 7 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 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 AG Can. did not challenge the application judge’s s. 7 decision. On November 21, 2018, the court reserved judgment. On December 17, 2018, the Ontario C.A. ordered the suspension of the application judge’s declaration of invalidity be extended to April 30, 2019. On March 28, 2019, the C.A. rendered its decision and held 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 are replacing ss. 31-37 of the CCRA came into force on November 30, 2019.