



COURT OF APPEAL FOR ONTARIO

CITATION: Canadian Civil Liberties Association v. Canada
    (Attorney General), 2018 ONCA 1038

DATE: 20181217

DOCKET: M49819 (C64841)

Strathy C.J.O., Benotto and Roberts JJ.A.

BETWEEN

Corporation of the Canadian Civil Liberties
    Association

Appellant

and

Her Majesty the Queen as represented by  
    the Attorney General of Canada

Respondent

Jonathan Lisus, H. Michael
    Rosenberg, Larissa Moscu and Charlotte-Anne Malischewski, for the appellant

Kathryn Hucal, John Provart
    and Bradley Bechard, for the respondent

Michael S. Dunn and Andrea
    Bolieiro, for the intervener Attorney General of Ontario

Matthew Horner and Nika
    Farahani, for the intervener Ontario Human Rights Commission

Heard: November 21, 2018

REASONS FOR DECISION

[1]

On November 21, 2018, this court reserved judgment on the appellants
    appeal from the Order of Marrocco A.C.J.S.C. (the application judge), dated
    February 6, 2017 (the Order). The Order declared that ss. 31-37 of the
Corrections
    and Conditional Release Act
, S.C. 1992, c. 20 (
CCRA
) contravene
    s. 7 of the
Canadian Charter of Rights and Freedoms
and are of no
    force and effect.

[2]

The application judge found that the fifth working day review for
    administrative segregation was inconsistent with the principles of fundamental
    justice and breached s. 7 of the
Charter
, because s. 33(1) of the
CCRA
did not provide for meaningful independent review of administrative segregation
    decisions:
Corporation of the Canadian Civil Liberties Association v. Her
    Majesty the Queen
, 2017 ONSC 7491, 358 C.C.C. (3d) 1.

[3]

The Order provided for the suspension of the declaration of invalidity
    for 12 months from December 18, 2017. The application judge was satisfied that
    a suspension of the declaration of constitutional invalidity was necessary to
    enable Parliament to enact an appropriate legislative response. To give
    immediate effect to the declaration, or even to suspend its operation for 6
    months as the appellant suggested, would create unacceptable risks for
    Correctional Service of Canada personnel and inmates: at para. 275.

[4]

There was another challenge to the constitutionality of the
CCRA
in British Columbia. On January 17, 2018, the Supreme Court of British Columbia
    granted a declaration that ss. 31 and 33-37 of the
CCRA
infringed ss. 7
    and 15 of the
Charter
: see
British Columbia Civil Liberties
    Association v. Canada (Attorney General)
, 2018 BCSC 62, 402 C.R.R. (2d) 53.
    It ordered that the declaration of invalidity be suspended for a period of 12
    months. The order was appealed to the Court of Appeal for British Columbia and
    the appeal was heard on November 13-14, 2018. The decision is under reserve. We
    were informed that counsel for the Attorney General of Canada applied for an extension
    of the declaration of invalidity in those proceedings and that the decision on
    that issue is also under reserve.

[5]

At the hearing of the appeal in this matter the respondent, the Attorney
    General of Canada, brought a motion, pursuant to s. 134 of the
Courts of
    Justice Act
, R.S.O 1990, c. C.43, to extend the suspension of the
    declaration of constitutional invalidity.

[6]

The purpose of the proposed extension is to enable Parliament to
    consider Bill C-83,
An Act to amend the Corrections and Conditional Release
    Act and another Act
, which was introduced in the House of Commons on
    October 16, 2018. Bill C-83 has received first and second reading in the House
    of Commons and is currently before the Standing Committee on Public Safety and
    National Security.

[7]

According to the respondent, Bill C-83 would eliminate administrative
    segregation and replace it with structured intervention units, which emphasize
    opportunities for meaningful human contact, participation in programs and
    access to services . The respondent suggests that the characteristics of a
    fair and independent review of placement decisions under Bill C-83
may
be different from those under the current
    legislation.

[8]

The respondent suggests that in this context, with the legislation
    evolving in Parliament, and in the absence of any regulations and policy
    developments, the court should be cautious and should not prejudge the constitutionality
    of Bill C-83. Indeed, in its written submissions dated November 28, 2018, the
    respondent referred to remarks in Parliament from the previous day, in which
    the Minister of Public Safety and Emergency Preparedness stated that he was
    amenable to some form of independent review mechanism in Bill C-83.

[9]

At the conclusion of the hearing of the motion, we advised counsel for the
    respondent that we were concerned by the absence of any explanation for
    Canadas delay in addressing the constitutional infirmity identified in the
    judgment of the Superior Court of Justice; the absence of information
    concerning any interim measures that have been or might be taken to address or mitigate
    the breach of
Charter
rights pending the implementation of new
    legislation; and the absence of any explanation of how the proposed legislation
    would address the constitutional infirmity identified by the application judge.
    We requested and have now received additional written submissions from both
    parties. The submissions on behalf of the respondent included an affidavit,
    filed in the proceedings in the Court of Appeal for British Columbia, setting
    out certain commitments by Canada to improve the conditions of administrative
    segregation prior to July 31, 2019.

[10]

The
    material filed by the respondent does not address the concerns raised by this court.
    It does not explain Canadas delay in responding to the Order. It does not
    propose interim measures to address the breach of
Charter
rights
    identified by the application judge. It does not adequately explain how Bill C-83
    would address the constitutional infirmity in the
CCRA
identified by
    the application judge.

[11]

Instead,
    the respondent asserts that the precise nature of the review process in Bill
    C-83 is a work in progress. The legislation may be modified and the regulatory
    scheme is yet to be established.

[12]

While
    Canadas failure to address the concerns identified by the court is
    disappointing, we are satisfied that an extension of the declaration is
    necessary to enable the legislative process to be completed. Giving immediate
    effect to the declaration of invalidity, without any measures in place to
    protect those currently held in administrative segregation and Correctional
    Service of Canada personnel, would pose an unacceptable danger to such
    individuals and, ultimately, to the public.

[13]

This
    court orders that, subject to further order of the court, the declaration of
    invalidity set out in paragraph 2 of the Order is extended to and including April
    30, 2019.

G.R. Strathy C.J.O.

M.L. Benotto J.A.

L.B. Roberts J.A.


