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. Francis v Ontario

In Francis v Ontario (Ont CA, 2021) the Court of Appeal explained administrative segregation as implemented in Ontario correctional institutions:
[4] The use of administrative segregation in Ontario’s correctional institutions is authorized by General, R.R.O. 1990, Reg. 778 (“Regulation 778”) promulgated under the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, s. 60(1). Section 34(1) of Regulation 778 grants the Superintendent of a correctional institution the authority to place an inmate in administrative segregation when:
a. in the opinion of the Superintendent, the inmate is in need of protection;

b. in the opinion of the Superintendent, the inmate must be segregated to protect the security of the institution or the safety of other inmates;

c. the inmate is alleged to have committed a misconduct of a serious nature; or

d. the inmate requests to be placed in segregation.
[5] As found by the motion judge, the respondent suffers from serious mental illness. He was held in the Toronto South Detention Centre for over two years on remand while awaiting trial on charges relating to a bank robbery. He was ultimately acquitted of all charges.

[6] During his incarceration, the respondent was placed in administrative segregation twice, once for eight days. On both occasions he was alleged to have refused to take mental health medication that had caused him negative side-effects in the past. Correctional officials considered this conduct to constitute “refusing to follow an order”, which they determined justified a placement in administrative segregation. As found by the motion judge, the respondent’s experience in administrative segregation was excruciating; his anxiety was out of control; he felt terrorized and was in a state of delirium and shock.

[7] In 2017, the respondent commenced this proceeding as a class action. He sought declarations that his, and the class members’, rights under the Charter had been infringed by Ontario’s system of administrative segregation and that Ontario was liable in negligence. The respondent sought damages in negligence and under s. 24 of the Charter. He also sought punitive damages.

[8] The class action was certified on consent by order dated September 18, 2018. The class in this case is made up of two groups. One group is made up of inmates who are seriously mentally ill, such as the respondent (“SMI Inmates”). The other group is made up of those inmates, who may not be acutely unwell, but who were left in segregation for 15 or more consecutive days (“Prolonged Inmates”).

[9] Administrative segregation in Ontario consists of isolation in a small cell for 22 hours or more with no meaningful human contact. The cells have hard metal doors with a slot or "hatch" through which food is passed and basic communication may occur. Some cells have a window, which is usually frosted. The evidence shows that the cells are often filthy and covered in bodily fluids. Inmates face indefinite isolation and have no effective means of influencing their fate. Administrative segregation in Ontario may fairly be described by its more common expression, "solitary confinement".

[10] Ontario does not appeal any findings of fact about its practice of administrative segregation. The motion judge found the conditions of administrative segregation in Ontario were "the same or very similar" as those in the federal system, which this Court has twice found to constitute cruel and unusual treatment, in Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 243, 144 O.R. (3d) 641 (“CCLA”), leave to appeal granted but appeal discontinued, [2019] S.C.C.A. No. 96, and Brazeau v. Canada (Attorney General), 2020 ONCA 184, 149 O.R. (3d) 705 (“Brazeau/Reddock”).

[11] Ontario uses solitary confinement for varying reasons including managing inmates’ special needs and challenging behaviours. However, the mentally ill are markedly overrepresented among inmates subjected to administrative segregation. This overrepresentation is demonstrated by the fact that 43% of all admissions into segregation had a mental health alert on their file. These mentally ill inmates spend on average 30% more time in administrative segregation than other inmates. Considering this evidence, the motion judge found as a fact that Ontario "routinely placed inmates with mental health or suicide risk alerts on file in administrative segregation”.

[12] Over time, changes in the system of administrative segregation have been made by Ontario, at least some of which resulted from public interest remedies ordered by the Ontario Human Rights Tribunal as part of a settlement of other proceedings. Ontario also appointed an Independent Expert on Human Rights and Corrections, who found failings in Ontario’s compliance with its own policies. Ontario undertook other reviews, which continued to find problems in the system.

[13] For example, an internal review in 2016 noted the harms caused by solitary confinement; that Ontario's administrative segregation practices qualified as solitary confinement; and that there was a need for reforms. In mid-2018, the Ontario Legislature passed the Correctional Services and Reintegration Act, 2018, S.O. 2018, c. 6, Sched. 2. Among other things the legislation: (a) banned administrative segregation for mentally ill and other vulnerable inmates; (b) imposed a cap on the duration of administrative segregation for all inmates; and, (c) provided an independent review of all segregation placements. The legislation received Royal Assent on May 7, 2018, but it has yet to be proclaimed into force.

[14] In summarizing his view on the improvements in Ontario’s system and practices, the motion judge observed that “Ontario’s good words were not always followed by corresponding good deeds.”

....

[52] Ontario’s administrative segregation regime is not the direct product of legislation. There is no statute compelling the creation or use of administrative segregation in Ontario jails. Those jails are created and operated under the authority of the Ministry of Correctional Services Act. Sub-sections 20(1.1), (2), and (3) make the Superintendent or a designated deputy superintendent responsible for the administration of the jail and the custody and supervision of the inmates. Section 60(1) creates a broad regulation-making power in respect of the management of correctional institutions and the treatment and control of inmates.

[53] Regulation 778 addresses many aspects of the management and operation of provincial jails. Section 2(1) makes the Superintendent responsible for “the care, health, discipline, safety and custody of the inmates”. Section 34(1) empowers the Superintendent to place an inmate in segregation for various reasons, including inmate safety, the safety of others, or the security of the institution. Section 34.0.1 goes on to provide for internal reviews of the status of persons held in administrative segregation. Section 34(5) of the regulation contemplated administrative segregation for more than 30 consecutive days but was deleted in November 2019 when Regulation 778 was amended by General, O. Reg. 363/19. As the motion judge noted, at paras. 149-150, beyond these few provisions, the regulation sheds no light on the specifics of the administrative segregation regime, as operated in Ontario jails. There is not even a definition of segregation.

[54] Through the years, including during the class period, Ontario issued various ministerial directives and policies fleshing out the details of its administrative segregation regime, as summarized by the motion judge, at paras. 154-173. These directives and policies have, to some extent, ameliorated the conditions and circumstances giving rise to the Charter breaches the motion judge found. Unfortunately, as observed by the motion judge, at para. 269: “Many inmates are placed in administrative segregation contrary to Ontario’s own policy directives.”

[55] Whatever changes Ontario has made to its administrative segregation regime, and however faithfully those changes have been implemented, five fundamental facts crucial to the constitutional arguments remained constant features of administrative segregation, as practised in Ontario jails throughout the claim period:
• administrative segregation, as practised in Ontario, fell squarely within the widely accepted definition of solitary confinement;

• SMI Inmates could be placed in administrative segregation;

• placement of inmates in administrative segregation was indefinite;

• there was no “hard cap” limiting the maximum time period for which an inmate could be held in administrative segregation; and

• no inmate held in administrative segregation had access to timely, independent reviews of that status.


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