Transformation Underway in Corrections
Background
In recent years, the Government of Canada has taken important steps to transform the federal correctional system by advancing mental health care improvements for all inmates, addressing the needs of Indigenous offenders who are overrepresented in the criminal justice system, and introducing legislative reform to eliminate the practice of administrative segregation. These issues have garnered national attention as a result of numerous high profile deaths in custody and constitutional challenges against the Government of Canada’s use of, and legislation governing, administrative segregation in the provinces of Ontario and British Columbia. There are also class actions challenging the use of administrative segregation as well as complaints before the Canadian Human Rights Tribunal.
On June 21, 2019, An Act to amend the Corrections and Conditional Release Act and another Act received Royal Assent. This Act provides for important changes to strengthen health care governance; better support victims in the criminal justice system; consider the specific needs of Indigenous offenders; introduce body scanning technology, eliminate the use of administrative and disciplinary segregation; and, introduce a new correctional model to promote rehabilitation in a secure environment. Under this model, structured intervention units (SIUs) will provide inmates who cannot be managed safely within the mainstream inmate population with targeted interventions, programs and mental health care with the goal of facilitating their reintegration into the mainstream inmate population as soon as possible. In addition to Correctional Service Canada internal oversight of SIU placements, external oversight will be provided by independent external decision-makers (IEDMs).
Status
Amendments introduced in the Act came into force immediately upon Royal Assent, [Redacted]
To support the implementation of SIUs, an advisory panel has been established to monitor its progress and ensure greater transparency. The Panel will provide ongoing feedback to the Commissioner of CSC, and will alert the Minister of Public Safety and Emergency Preparedness about any problems or concerns related to the implementation of the new system.
Legal Considerations related to Administrative Segregation
There have been two constitutional challenges to the federal government’s use of, and legislation governing, administrative segregation. On December 18, 2017, the Ontario Superior Court of Justice ruled, in the case of Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, that the absence of review by an independent (internal) decision-maker by the fifth day is procedurally unfair and violates section 7 of the Canadian Charter of Rights and Freedoms (the Charter); the Court had suspended its declaration of invalidity of the legislation until December 2018. Canada sought an extension, but did not appeal that finding.
On April 26, 2019, the Ontario Court of Appeal granted the extension until June 17, 2019, if CSC implemented the fifth-day independent review, but in its order stated that regardless, on June 18, 2019, the legislation governing administrative segregation would be of no force or effect. On June 13, 2019, Canada sought leave to appeal the Ontario Court of Appeal’s order with the Supreme Court of Canada (SCC). It also sought a stay and extension until November 30, 2019. On June 14, 2019, the SCC granted an interim stay and interim extension until it determines the motion for an extension and stay.
The Canadian Civil Liberties Association appealed the lower court’s decision, with the exception of the finding related to the fifth-day review, and on March 28, 2019, the Ontario Court of Appeal determined that administrative segregation longer than 15 consecutive days violates section 12 of the Charter; the Court granted a 15-day suspension of its declaration of invalidity. Canada has sought leave to appeal that decision with the SCC and sought a stay. On April 11, 2019, the SCC granted Canada an interim-interim stay until the SCC makes a decision on the interim stay.
On January 17, 2018, the Supreme Court of British Columbia, in British Columbia Civil Liberties Association and John Howard Society of Canada v. Canada, ruled that administrative segregation was unconstitutional pursuant to sections 7 and 15 of the Charter on the grounds of prolonged, indefinite placement in administrative segregation; placement of mentally ill/disabled inmates in administrative segregation; lack of an independent (external) decision-maker; deprivation of inmates’ right to counsel; and potential for discriminatory application for Indigenous inmates. Canada appealed that decision and sought an extension of the suspension of invalidity. On June 26, 2019, the British Columbia Court of Appeal (BCCA) granted Canada’s request for an extension of the suspension of invalidity until November 30, 2019.
On June 24, 2019, the British Columbia Court of Appeal released its decision, allowing Canada’s appeal in part. The Court upheld the lower court’s declaration that the CCRA violates section 7 of the Charter, as it authorizes prolonged, indefinite administrative segregation and does not require external review at the fifth working day. The Court issued a declaration that CSC breached its statutory obligations to ensure that inmates in administrative segregation have a reasonable opportunity to retain and instruct counsel; the Court declared that inmates have a constitutional right to be represented by counsel at segregation review hearings. The Court disagreed with the finding that the impugned provisions violate section 15 of the Charter for either Indigenous or mentally ill and/or disabled inmates. The Court issued a declaration that CSC has, in its administration, breached its statutory obligations to give meaningful consideration to the health care needs of mentally ill and/or disabled inmates before placing or confirming the placement of such inmates in administrative segregation.
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