



COURT OF APPEAL FOR ONTARIO

CITATION: Canadian Civil Liberties Association v. Canada
(Attorney General), 2019 ONCA 342

DATE: 20190426

DOCKET: M50316 (C64841)

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

BETWEEN

Corporation of the Canadian Civil Liberties
    Association

Applicant (Appellant/Responding Party)

and

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

Respondent (Respondent/Moving
    Party)

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

Kathryn Hucal, John Provart
    and Bradley Bechard, for the moving party

Heard in writing: April 23, 2019

REASONS FOR DECISION

[1]

Following a constitutional challenge initiated
    by the Canadian Civil Liberties Association (CCLA), Marrocco A.C.J.S.C. (the
    application judge) found that ss. 31-37 of the
Corrections and Conditional
    Release Act
, S.C. 1992, c.

20
(
CCRA
) infringe
s. 7

of the
Canadian Charter of Rights and
    Freedoms
. The application judge declared the provisions invalid
    but suspended his declaration of invalidity until December 18, 2018. The
    Attorney General of Canada (AGC) moved before this court to extend the period
    of suspension. We granted an extension to April 30, 2019. The AGC now brings
    this motion for another extension of the suspension of invalidity, this time to
    November 30, 2019.

[2]

For these reasons, we grant a further extension,
    but only to June 17, 2019 on the condition that the independent fifth day
    review be implemented as explained below.

BACKGROUND

[3]

In 2015, the CCLA applied to the Superior Court
    of Justice alleging that ss. 31-37 of the
CCRA,
which authorize
    administrative segregation in penitentiaries across Canada,

infringed ss.
    12, 11(h) and 7 of the
Charter
. The CCLA was partially successful. On
    December 18, 2017, the application judge declared that
ss. 31
-
37

of the

CCRA
contravene
s. 7

of the
Charter

and are
    of no force and effect.
[1]
He found the provisions to be inconsistent with the principles of fundamental
    justice because
they

did not provide for meaningful
    independent review within five working days of the decision to place an inmate
    in administrative segregation.

[4]

The application judge suspended the declaration
    of invalidity for 12 months from December 18, 2017 to enable Parliament to
    enact an appropriate legislative response: see
Corporation of the Canadian
    Civil Liberties Association v. Her Majesty the Queen
, 2017 ONSC 7491, 140
    O.R. (3d) 342, at para. 277.

[5]

The AGC did not appeal the application judges decision.
[2]
Nor did the government
    implement a remedy specific to the
Charter
violations found by the
    application judge. Instead, ten months later, in October 2018, the government
    introduced Bill C-83,
An Act to amend the Corrections and Conditional
    Release Act and another Act
.

[6]

According to the AGC, Bill C-83 would eliminate
    administrative segregation and replace it with structured intervention units,
    which it says would emphasize opportunities for meaningful human contact,
    participation in programs and access to services . The AGC suggested 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. In short,
    Bill C-83 was proposed to overhaul the administrative segregation regime set
    out in the
CCRA
.

[7]

Ontario is not the only jurisdiction to have considered
    a challenge to the
CCRA
. 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, to January 17, 2019. The AGC appealed the
    BCSCs decision to the Court of Appeal for British Columbia and, in the
    interim, applied for an extension of the period of suspension to July 31, 2019.
    The BCCA granted an extension to June 17, 2019, subject to conditions that the AGC
    comply with specific orders issued by the BCCA to address constitutional
    concerns: see
British Columbia Civil Liberties Association v. Canada
    (Attorney General)
, 2019 BCCA 5, at paras. 34-38.

First request for extension: November 2018

[8]

The presentation of Bill C-83 was the basis for the
    AGCs request to this court to extend the suspension of the application judges
    declaration of constitutional invalidity until July 31, 2019. The AGC made this
    request on November 21, 2018, following the hearing of the CCLAs appeal of the
    application judges decision.

[9]

At that time, we advised counsel that we were
    concerned by the absence of any explanation for Canadas delay in addressing
    the constitutional infirmity identified in the application judges decision;
    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 additional written
    submissions from both parties.

[10]

The submissions by the AGC did not address our
    concerns. The delay was not explained, interim measures to remedy the constitutional
    breach identified were not proposed, and it was not clear how Bill C-83 would
    address the problem. Instead, the AGC asserted that the precise nature of the
    review process in Bill C-83 was a work in progress and the regulatory scheme had
    yet to be established.

[11]

With reluctance, we granted the extension but
    only to April 30, 2019: see
Canadian Civil Liberties Association v. Canada
    (Attorney General)
, 2018 ONCA 1038.

Second request for extension: April 2019

[12]

Still relying on Bill C-83, the AGC now asks
    this court to further extend the suspension of the application judges declaration
    of constitutional invalidity, this time until November 30, 2019.
[3]
The AGC explains the basis for its request at para. 39 of its
    factum:

Bill C-83 is complex legislation
    proposing to bring about important changes to Canada's federal correctional
    regime. The significant legal, policy, operational, infrastructure and resource
    considerations involved in the development and implementation of the Bill, as
    well as the time Parliament has used to fully debate and consider submissions
    on it, including from interested stakeholders, are due their proper deference.
    The length of the extension of the suspension is not undue in these exceptional
    circumstances and would not compromise public confidence in the administration
    of justice. To the contrary, it would respect the constitutional conversation
    that is underway with the legislative response the government has engaged in
    with Bill C-83.

[13]

CCLA
    opposes the extension and asks that the motion be dismissed.  In the
    alternative it requests that no stay be extended past June 28, 2019 and that,
    in the interim, Canada be required to implement a practice of an independent
    fifth day review.

DECISION

[14]

The validity or effectiveness of Bill C-83 is
    not before us. The complexity outlined above is relied on by the AGC as
    justification for the further extension. Extensive evidence is put forward
    outlining the legislative process, the steps necessary to implement the Bill
    including cost, staff training, infrastructure, public consultations and so on.
    But this court remains where we were when the first extension was argued: we
    have virtually nothing to indicate that the constitutional breach identified by
    the application judge is being or will be addressed in the future.

[15]

The evidence discloses that in January 2019,
    more than one year after the application judge released his decision, there
    were discussions about how the fifth-day review could be operationalized.
    Nothing more has been done to remedy the breach in the interim, and it remains
    unclear how Bill C-83 will remedy it if enacted.

[16]

The AGCs motion would, if granted, extend the
    suspension of the application judges declaration of invalidity to nearly two
    years from the date the breach was found. This is unacceptable. In all the
    circumstances outlined above, a remedy to the lack of an independent fifth day
    review of segregation placement decisions does not require the lengthy
    extension the AGC is seeking.

[17]

Nor do the factors articulated in
Canada
    (AG) v. Descheneaux,
2017 QCCA 1238, [2017]
    4 C.N.L.R. 1 weigh in favour of granting an unconditional extension
:
there is no change in circumstances to justify the extension; there is no
    potential threat to the rule of law or the public by depriving Canada of the
    ability to order administrative segregation without independent review; it is
    unclear if the proposed legislation will remedy this breach; and a further lengthy
    and unconditional extension would compromise public confidence in the administration
    of justice and the courts ability to act as guardian of the Constitution.

[18]

This leaves open the possibility of a short extension
    with conditions imposed by the court. The AGC does not oppose a conditional extension
    similar to that issued by the BCCA when it extended the BCSCs suspended
    declaration of invalidity to June 17, 2019. The BCCA imposed numerous terms on
    its extension, including a fifteenth day review of segregation placement
    decisions by a person outside the sphere of influence of a prisons institutional
    head.

[19]

The AGC indicates that Canada is currently in
    compliance with the BCCAs order. The AGC also states that Canada would comply
    with an Order to conduct an internally independent fifth-working day review of
    administrative segregation pending implementation of Bill C-83.

[20]

Unlike
    its first request for an unconditional extension of the suspension, the AGC now
    invites the court to impose a condition on the extension. Clearly, Canada now
    accepts that an independent fifth day review can be implemented pending passage
    of Bill C- 83. Regrettably this was not the case on its first request for
    an extension in November 2018 and so the breach has been unnecessarily
    prolonged.

[21]

That
    said, we are persuaded that a brief conditional extension of the suspension is
    appropriate in the circumstances of this case so that the fifth working day
    review can quickly begin.

[22]

Consequently, it is ordered  again with great
    reluctance  that one final extension be granted to June 17, 2019 on the
    condition that Canada implement an independent fifth day review of
    administrative segregation before that date.
The Correctional Service of
    Canada must establish a system of review whereby no inmate will be kept in
    administrative segregation for more than five working days without the
    placement decision being reviewed and upheld by a senior official who is
    neither the institutional head of the institution where the inmate is
    incarcerated nor a person who is subordinate to that institutional head.

G.R. Strathy C.J.O.

M.L. Benotto J.A.

L.B. Roberts J.A.





[1]
The corresponding Order was issued and entered on February 6, 2018.



[2]
T
he CCLA, however, did appeal the decision to this court on
    the basis that the application judge erred in dismissing the s. 12 and s. 11(h)
Charter
claims. On March 28, 2019, this court allowed the appeal in
    part:
Canadian Civil Liberties Association v. Canada (Attorney General)
,
    2019 ONCA 243.



[3]
The request was actually to November 31, a date that does not exist.


