British Columbia Civil Liberties Association v Canada (Attorney General)

The plaintiffs are two non-profit organizations, the British Columbia Civil Liberties Association and the John Howard Society of Canada. The plaintiffs challenged the constitutionality of sections 31-33 and 37 of the Corrections and Conditional Release Act (CCRA), which authorized administrative segregation of inmates in federal prisons. Section 31 provided that the purpose of administrative segregation was to “maintain the security of the penitentiary or the safety of any person by not allowing an inmate to associate with other inmates.”

The plaintiffs alleged that these provisions were contrary to several protections under the Canadian Charter of Rights and Freedoms (“Charter”), including sections 7 and 15. Section 7 of the Charter guarantees the right to life, liberty and security of the person and the right not to be deprived of such rights except in accordance with the principles of fundamental justice. The plaintiffs also alleged that CCRA provisions were contrary to the equality guarantee in s. 15 of the Charter, because they have a disproportionate impact on Aboriginal inmates and those with mental illness.

The main issue in this case is whether the practice of administrative segregation in federal prisons is constitutionally valid.

The Court found that the CCRA provisions violated ss. 7 and 15 of the Charter and could not be justified. The Court found that administrative segregation is a form of solitary confinement that imposes significant risks of serious psychological harm to inmates. These negative health effects can occur after only a few days in segregation, and increase with time spent in segregation. The Court found that many inmates are likely to suffer permanent harm as a result of being segregated, and that this harm is exacerbated by the segregation’s indeterminacy. The Court held that the impugned provisions violated s. 7 of the Charter to the extent they authorized prolonged and indefinite segregation, internal review of segregation decisions, and deprivation of counsel at segregation review hearings. The right to life was interfered with because segregation puts inmates at an increased risk of self-harm and suicide. The right to security of the person was also interfered with because it causes serious psychological suffering. The Court found the provisions were overbroad, as they permitted prolonged segregation and solitary confinement when a lesser restriction would be appropriate. The Court found that the provisions violated s. 15 because they have a disproportionate effect on mentally ill inmates and Aboriginal inmates. The provisions failed to respond to the actual capacities and needs of these two groups that are overrepresented in segregation, and instead imposed a burden in a manner that had the effect of reinforcing, perpetuating or exacerbating their disadvantage. The Court held that neither of these constitutional infringements could be justified under s. 1 of the Charter. The Court found that prolonged segregation was not rationally connected to the legislative objective of maintaining security and safety. The Court also stated that there were less impairing alternatives to segregating mentally ill inmates, such as treating them as a health problem rather than a security problem.

“I find as a fact that administrative segregation as enacted by s. 31 of the CCRA 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. Some of the specific harms 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. 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.” (Para 247) “While many of the acute symptoms are likely to subside upon termination of segregation, many inmates are likely to suffer permanent harm as a result of their confinement. This harm is most commonly manifested by a continued intolerance of social interaction, which has repercussions for inmates’ ability to successfully readjust to the social environment of the prison general population and to the broader community upon release from prison.” (page 75, para 249) “I acknowledge that incarceration itself puts inmates at a heightened risk of suicide. By its nature, it entails a loss of autonomy and personal control, and separation from loved ones. Additionally, inmates are more likely to have mental health issues and to be younger than people outside prison, themselves factors associated with suicide. Nevertheless, I find that the evidence establishes that suicide is proportionately more prevalent amongst inmates in segregation.” (Para 264) “Of primary importance is for the Government and [Correctional Service of Canada] to recognize the size and importance of the mentally ill, cognitively impaired, and potentially self-harming and suicidal contingent in Canada’s penitentiaries. There needs to be a recognition that this is a serious health issue. CSC should evaluate its incoming inmates to assess these aspects of their health. In my view, this will involve a need for more medically trained staff, more facilities for treatment and, of course, substantially increased funding.” (Para 523)