



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



British Columbia Civil Liberties Association v. Canada
  (Attorney General),









2019 BCCA 5




Date: 20190107

Docket: CA45092

Between:

British Columbia
Civil Liberties Association
and The John Howard Society of Canada

Respondents

(Plaintiffs)

And

Attorney General
of Canada

Appellant

(Defendant)

And

Canadian Human
Rights Commission,
Canadian Prison Law Association
Canadian Association of Elizabeth Fry Societies,
Criminal Defence Advocacy Society.
Native Womens Association of Canada and
West Coast Legal Education and Action Fund

Intervenors

Corrected Judgment: 
The text of the judgment was corrected on the last page where changes were made
on January 8, 2019




Before:



The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Fitch




On appeal from: An
order of the Supreme Court of British Columbia, dated
January 17, 2018 (
British Columbia Civil Liberties Association v. Canada
(Attorney General)
, 2018 BCSC 62, Vancouver Docket No. S150415).




Counsel for the Appellant:



M.R. Taylor,
  Q.C.
B. Sokhansanj
S.M. Currie
F. Paradis





Counsel for the Respondent:



J.J. Arvay, Q.C.
A. Latimer





Counsel for the Canadian Human Rights Commission:



F.W. Keith





Counsel for the Canadian Prison Law Association:



A. Nanda





Counsel for the Canadian Association of Elizabeth Fry
  Societies:



M.K. Gervin





Counsel for the Criminal Defence Advocacy Society:



T.M. Arbogast
A. Ballantyne





Counsel for the Native Womens Association of Canada and
  West Coast Womens Legal Education and Action Fund:



E. Finestone
R. Mangat





Place and Date of Hearing:



Vancouver, British
  Columbia

November 13 and 14,
  2018





Written Submissions Received:



Nov. 28 and
  Dec. 5, 2018





Place and Date of Judgment:



Vancouver, British Columbia

January 7, 2019









Written Reasons of the Court








Summary:

A judge of the Supreme Court
issued a declaration that the sections of the Corrections and Conditional
Release Act that authorize the administrative segregation of inmates are
unconstitutional. He suspended the declaration for one year to allow Parliament
to enact replacement legislation. A government bill has been introduced in the
House of Commons but has not yet been passed. At the same time, the Attorney
General has appealed from the granting of the declaration unconstitutionality. The
Attorney General applied for an extension of the suspension to July 31, 2019,
to allow Parliament more time to enact new legislation. Held: suspension
extended to June 17, 2019, or until further order of the Court, on conditions.
The concerns that led to the suspension of the declaration continue to have
considerable force, and public safety concerns strongly favour its extension. The
Court imposes conditions on the extension in order to reduce or eliminate violations
of inmates constitutional rights pending the enactment of new legislation. The
Court also considers it appropriate to monitor progress and to consider
implementing additional conditions as matters proceed.

Reasons for Judgment of the Court:

[1]

This litigation concerns the constitutionality of the provisions of the
Corrections
and Conditional Release Act
, S.C. 1992, c. 20 that authorize
administrative segregation of inmates. On January 17, 2018, the trial judge
held that ss. 31, 32, 33, and 37 of the Act violate ss. 7 and 15 of
the
Canadian Charter of Rights and Freedoms
. He declared the impugned
sections to be unconstitutional, but suspended the declaration for a period of
one year. The Attorney General applies for an extension of the period of
suspension to July 31, 2019. The respondents oppose the extension.

[2]

The circumstances of this application are unusual. The Attorney General
has appealed the judges order, arguing that the existing legislation is
capable of being interpreted and administered in a manner that conforms to
constitutional norms. At the same time, she accepts that administrative
practices engaged in by the Correctional Service of Canada have violated inmates
constitutional rights in the past and need to be modified.

[3]

Although the Attorney General contends that the existing legislation is
constitutional, the government has signalled an intention to replace it and to significantly
reform the administrative segregation regime. On October 16, 2018, the Minister
of Public Safety and Emergency Preparedness introduced a government bill in the
House of Commons (Bill C-83,
An Act to amend the Corrections and
Conditional Release Act and another Act
) that will, if adopted, replace the
provisions that the judge found to be unconstitutional. The bill has passed
first and second reading in the House of Commons, and has been considered by
its Standing Committee on Public Safety and National Security. That committee
has reported back to the House, recommending amendments to the bill. With third
reading in the Commons yet to come, and the legislative process in the Senate
not yet commenced, the shape of the bill remains fluid. While it appears
probable that legislation will be passed by the current Parliament, both the
timing and final form of the legislation remain uncertain.

The Application

[4]

This panel heard the appeal on November 13 and 14, 2018. The decision is
under reserve and it may be some time until the Court pronounces judgment. At
the conclusion of the hearing, we heard the application to extend the suspension
of the declarations of invalidity.

[5]

The Attorney General took the position that the Court should grant an
extension to July 31, 2019. She contended that there would be a legislative
vacuum if the existing legislation ceases to have effect before Parliament
puts a new statute in place. She emphasized that the Correctional Service of
Canada needs to employ either administrative segregation or a replacement regime
to ensure that penitentiaries are administered safely, both for inmates and for
officers.

[6]

The respondents, on the other hand, suggest that the government has been
dilatory in responding to concerns about administrative segregation, both
before and after the judgment was pronounced by the trial judge. They note that
serious concerns have been raised over the administrative segregation regime
for many years, including in official government reports. Further, legislation
was before Parliament (Bill C-56) before the trial commenced, but did not
progress beyond first reading. The respondents argue strongly that it is
inappropriate for legislation that has been found to be unconstitutional to
remain in force any longer than is absolutely necessary. They say that the
Federal government has had more than enough time to rectify the situation.
Further, they argue (rather implausibly, in our view) that no safety concerns
would result from an immediate striking down of the impugned legislative provisions.

[7]

At the hearing of the application, we indicated that if the suspension is
to be extended, the Court would like to have some assurance that concrete
progress is being made toward ameliorating the situation of inmates subject to
administrative segregation. We invited written submissions from the Attorney
General proposing interim measures that would provide such an assurance. We
also asked the respondents to provide written submissions in response.

[8]

We have received the requested submissions. The Attorney General has,
for the most part, outlined the current plans of the Correctional Service of
Canada, without proposing concrete interim measures that the Court might order.
The respondents submissions have also, for the most part, avoided discussion of
specific interim measures that the Court might impose; instead, they have
reiterated their opposition to any extension.

[9]

Parallel litigation is proceeding in Ontario. In
Corporation of the
Canadian Civil Liberties Association v. Her Majesty the Queen
, 2017 ONSC
7491, a judge of Ontarios Superior Court of Justice struck down the
legislation, though on more limited grounds than the trial judge did in this
case. The Ontario judge suspended his declaration of invalidity for twelve
months, to December 18, 2018. On December 17, in a judgment indexed as
Canadian
Civil Liberties Association v. Canada (Attorney General)
, 2018 ONCA 1038,
the Ontario Court of Appeal extended the suspension unconditionally, but only to
April 30, 2019. In doing so, it said:

[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.

[10]

We share the concerns of the Ontario Court of Appeal, both with respect
to the slow progress made by the government of Canada in putting in place new
legislation and with respect to the harm that might be occasioned if the
suspension were not extended.

The Granting of
Suspensions of Invalidity

[11]

As the parties have pointed out, suspensions of declarations of constitutional
invalidity are a court-created mechanism for ensuring that the striking down of
legislation does not create a regulatory vacuum and result in chaos. The
Supreme Court of Canada first granted a suspension of a declaration of
invalidity in
Re Manitoba Language Rights
, [1985] 1 S.C.R. 721. In that
case, the Court had determined that virtually all of Manitobas legislation was
unconstitutional because it was enacted only in English. To preserve statutory
law in Manitoba while the government undertook diligent efforts to translate
statutes and to enact official French versions of legislation, the Court
suspended the declaration of invalidity. The Court considered that unless the suspension
was granted, Manitoba would face chaos and anarchy.

[12]

In
Schachter v. Canada
, [1992] 2 S.C.R. 679 the Court provided further
guidance on the issue of when a suspension of a declaration of invalidity is
appropriate. At 719, it discussed situations that will justify a temporary
suspension of a declaration of invalidity:

Temporarily suspending the declaration of invalidity to give
Parliament or the provincial legislature in question an opportunity to bring
the impugned legislation or legislative provision into line with its
constitutional obligations will be warranted  if:

A.    striking
down the legislation without enacting something in its place would pose a
danger to the public;

B.    striking
down the legislation without enacting something in its place would threaten the
rule of law; or,

C.    the legislation was deemed
unconstitutional because of underinclusiveness rather than overbreadth, and
therefore striking down the legislation would result in the deprivation of
benefits from deserving persons without thereby benefitting the individual
whose rights have been violated.

[T]he above propositions are
intended as guidelines to assist courts in determining what action under
s. 52 is most appropriate in a given case, not as hard and fast rules to
be applied regardless of factual context.

[13]

In
Canada (Attorney General) v. Bedford
, 2013 SCC 72, the Court
granted a suspension of a declaration of invalidity, even though the guidelines
set out in
Schachter
were, arguably, not met. At para. 167, the
Court recognized that simply striking down legislation directed at prostitution
would be undesirable, as it would leave an area that required some form of
social control unregulated. It noted that such a situation would be a matter
of great concern to many Canadians. The Court considered that Parliament
should be granted a period of time to enact legislation to replace that which
was found to be unconstitutional.

[14]

Re Manitoba Language Rights
,
Schachter
, and
Bedford
were all cases that had been finally determined by the Supreme Court of Canada.
In cases where legislation has been finally declared to be unconstitutional,
either through a judgment of the Supreme Court of Canada or by virtue of the
termination of litigation at a lower level, courts are reluctant to suspend
their declarations and are careful not to allow suspensions to subsist longer
than necessary.

[15]

Courts will not routinely suspend declarations of constitutional invalidity
simply because the appeal process has not run its course. The fact that an
appeal is pending or likely, however, will be a relevant consideration in
deciding whether to suspend a declaration. Prudence dictates that courts
exercise caution in choosing to immediately strike down legislation where its constitutionality
remains legally contentious.
Carter v. Canada (Attorney General)
, 2012
BCCA 336 is an example of a case in which this Court extended a suspension of a
declaration of invalidity pending determination of the appeal.

Extending a Suspension

[16]

Where a court suspends a declaration of invalidity to allow a government
to amend legislation, it does so in the expectation that the government will
act with dispatch in correcting the situation. Suspensions of declarations of
invalidity represent temporary reprieves. Out of respect for the rule of law, governments
must ensure that unconstitutional legislation is not maintained for any longer
than is necessary and give significant legislative priority to amending or
replacing laws that have been declared unconstitutional.

[17]

Nonetheless, factors such as the complexity of regulation, political
crises, and inevitable delays in democratic institutions mean that it is not
always feasible to enact legislation within the period of an initial suspension.
We have been directed to a number of cases in which extensions have been
granted to suspensions of declarations of invalidity, including
R. v. Feeney
,
[1997] 3 S.C.R. 1008;
McIvor v. Canada (Registrar of Indian and Northern
Affairs)
, 2010 BCCA 168 and 2010 BCCA 338;
Carter v. Canada (Attorney
General),
2016 SCC 4; and
Procureure générale du Canada c. Descheneaux
,
2017 QCCA 1238.

[18]

In
Carter
, the Supreme Court of Canada indicated that suspensions
of declarations of invalidity ought not to be extended without a strong
rationale. It also suggested that extensions should be as short as is feasible:

[2]        . To suspend a
declaration of the constitutional invalidity of a law is an extraordinary step,
since its effect is to maintain an unconstitutional law in breach of the
constitutional rights of members of Canadian society. To extend such a
suspension is even more problematic. The appellants point to the severe harm
caused to individuals by the extension. Extraordinary circumstances must be
shown. The burden on the Attorney General who seeks an extension of a
suspension of a declaration of constitutional invalidity is heavy. In this
case, the length of the interruption of work on a legislative response to the
Courts decision due to a federal election constitutes such a circumstance.
Parliament was dissolved on August 2, 2015 and officially resumed on December 3
of that year. This four-month delay justifies granting an extension of the
suspension of the declaration of invalidity, but only for four months.

[19]

In
Descheneaux
, the trial judge refused to extend a suspension of
a declaration of invalidity. The refusal was appealed to the Quebec Court of
Appeal, which granted an extension. The Court identified factors to be
considered:

[39]       [T]he four factors identified below can be drawn
from the few judicial precedents on this question. These are not the only
factors that may be considered. These factors are neither exhaustive nor
cumulative; it is rather the weighing of these factors, taking into account the
particular circumstances of each case, that will determine whether an extension
is justified. Consequently, even if the application for an extension does not
satisfy one of these factors, a court may still grant or dismiss the
application after weighing all the factors.

[40]      The first factor is whether or not a change in
circumstances justifies the extension. In
Carter
, for example, the fact
that Parliament had been dissolved for general elections was found by the
Supreme Court of Canada to be a sufficient change in circumstances justifying
the extension of the suspension of the declaration of the constitutional
invalidity of paragraph 241(b) and section 14 of the
Criminal Code
.

[41]      A second factor relates to the circumstances which
led to the initial suspension of the declaration of invalidity to verify
whether these still weigh in favour of the suspension. These circumstances may
include the need to avoid threatening the rule of law, to avoid a potential
danger for the public, or to otherwise mitigate the effects of the declaration
on the public, notably where the law is deemed unconstitutional because it is
under-inclusive and its invalidity would deprive deserving individuals of
benefits without providing benefits to those whose rights have been violated.
Indeed, as Chief Justice Lamer noted in
Schachter
, deciding whether it
is appropriate to suspend a declaration of invalidity is largely dependent on
the effect this declaration will have on the public. The same reasoning applies
a fortiori
to deciding whether the suspension should be extended.

[42]      A third factor concerns the likelihood that
remedial legislation will be adopted. Suspending a declaration of
constitutional invalidity rests upon the fundamental premise that legislative
bodies will necessarily adopt remedial legislation during the suspension
period. Where they fail to act within the timeframe, it is necessary to verify
whether or not that premise is still valid. Thus, it is necessary to ascertain
whether it is reasonable to believe that legislative bodies will indeed adopt
remedial legislation during the extension of the suspension.

[43]      A fourth factor
concerns the administration of justice. As the suspension of a declaration of
constitutional invalidity allows unconstitutional legislation to have continued
effect in violation of the Canadian Constitution, despite the contrary
principle set out in subsection 52(1) of the
Constitution Act, 1982
, an
undue extension of the suspension could shake the publics confidence in the
administration of justice and in the ability of the courts to act as guardians
of the Constitution. This is why such suspensions are generally short in
duration and are only issued where they are justified by compelling
circumstances.

[20]

We agree with this analysis, and would add only that the stage of the
litigation is also a consideration in assessing the fourth factor. As we have
indicated, reviewability is also a principle to be considered. Public
confidence in the administration of justice will not necessarily be furthered
where courts demand speedy government action when appellate processes have not
yet been concluded.

Should the Extension be Granted
in this Case?

[21]

This is not a case in which the first factor in
Descheneaux
 a
change in circumstances  provides a basis for extending the suspension. There
have been no unexpected or unusual developments, either in the litigation or in
the circumstances in Parliament that explain the failure of the government to
introduce and pass new legislation. On the other hand, there have also been no
developments that make striking down the legislation more exigent than it was
when the suspension was granted.

[22]

The second factor  the continued existence of considerations favouring
a suspension of the declaration  is important in this case. The trial judge,
at para. 610, found that an immediate striking down of the legislation
would
pose a
potential danger to the public or threaten the rule of law.
The Ontario
Court of Appeal, at para. 12 of its recent decision, found that immediately
striking down the legislation in issue would pose an unacceptable danger to
[those currently held in administrative segregation] and, ultimately, to the
public.

[23]

The risk inherent in striking down the legislation before replacement
provisions are in place remains as serious as it was when the judge originally
suspended his declaration. We agree that the security of penitentiaries would
be at risk if the legislation were immediately struck down. Administrative
segregation or a more appropriate alternative regime must be in place to
protect inmates who would be exposed to risk in the general population and to
provide safety for persons who work in penitentiaries. In that respect, a
suspension of the declaration is no less important today than it was when the
judge made his original order.

[24]

The third factor  the expectation that new legislation will be enacted
in a timely manner  also favours extending the suspension. While Parliament
has not proceeded as quickly as it might have, the government has now
introduced a bill in the House of Commons. There is no reason to doubt the
governments resolve or ability to have the legislation passed before
Parliament rises for the summer break.

[25]

The fourth factor  confidence in the administration of justice and
respect for the constitution  is, in this case, a neutral one. The governments
failure to respect the judges order by acting quickly may be seen as a
challenge to the effectiveness of the courts as guardians of the constitution.
On the other hand, the fact that the appeal is ongoing means that the
constitutionality of the legislation remains a matter of debate. Reviewability
of the lower court order is important and public confidence in the
administration of justice may also be served by the courts refraining from
acting precipitously in striking down legislation that may yet prove to be
constitutionally sound.

[26]

In our view, the fact that the government appears to be acting in good
faith to change the legislation, and the risk of serious harm if the
legislation is immediately struck down, lead to the conclusion that the suspension
of the declaration of invalidity ought to be extended.

[27]

We are not, however, convinced that the extension should be as long as
the one sought by the Attorney General, nor are we convinced that it should be
unconditional.

[28]

In terms of timing, we recognize that parliamentary procedures are
critical to the functioning of a democracy and that they take time. We must
allow sufficient time for the remaining steps in the passage of legislation to
run their course. While the public is entitled to expect that correcting
unconstitutional legislation will be treated as a priority by the government, Parliament
should be afforded the discretion, within limits, to control its own agenda.

[29]

That said, Parliament must also take responsibility for correcting
unconstitutional legislation. For that reason, we are of the view that the suspension
period should end while Parliament is still sitting rather than during the
Parliamentary recess.

[30]

We also note that, from a practical point of view, the parties ought to
be able to reappear before this Court, if necessary, in the days before the
suspension expires. While this Court sits in July, it may be difficult for the
parties to appear before the panel during that month, due to the Courts
reduced rota.

[31]

For these reasons, the suspension will not be extended beyond June 17,
2019, without further order of the Court. We recognize that the Ontario
declaration of invalidity has been suspended only until April 30, 2019, and
that an extension of the British Columbia declaration beyond that date may be
of little more than academic interest.

Conditions of the Extension

[32]

While we are prepared to extend the suspension of the declaration of constitutional
invalidity, that cannot be a justification for the federal government to
maintain unchanged the conditions of inmates kept in administrative
segregation. Without violating the existing legislation, the government must
take steps to deal with constitutional concerns.

[33]

It is our view that the circumstances of this case are such that
conditions ought to be placed on the extension of the suspension of the
declaration. The Court recognizes that the formulation and implementation of
detailed policies is ordinarily a matter to be left to the executive branch of
government. However, the inordinate delays in this case justify the Courts
intervention. This is especially so, given that the Attorney General does not
seriously dispute that current practices do not conform to constitutional
requirements.

[34]

Based on the evidence before us, including the Attorney Generals written
submissions regarding Canadas plans, we are of the view that the following
requirements are feasible and should be imposed:

a)

The
daily visits of health care professionals with inmates in administrative
segregation must include a visual observation of the inmate, unless, due to
exceptional circumstances, such observation would jeopardize the safety of
Correctional Service of Canada personnel. Section 70 of Commissioners
Directive 709 will be interpreted as including the requirement for visual
observation;

b)

Where
a health care professional who has visited an inmate in administrative
segregation is of the opinion that the inmate should be removed from
administrative segregation or be subject to altered conditions of confinement,
the health care professional must advise the institutional head, in writing, of
that opinion and the basis upon which it has been reached. The health care
professional must provide such advice as soon as reasonably practical and, in
any event, not less than 24 hours after forming the opinion;

c)

Where
an institutional head receives such an opinion from a health care professional,
the institutional head must, without delay, implement the recommendation of the
health care professional or provide a written explanation as to why the
recommendation is not being implemented. Copies of the written explanation, along
with the health care professionals written advice, must be provided to the health
care professional, the inmate, and, at the inmates direction, to counsel;

d)

Inmates
in administrative segregation must be offered an additional 30 minutes of yard
time each day. For clarity, s. 39(c) of Commissioners Directive 709 will
be applied by the Correctional Service of Canada to ensure that all inmates in
administrative segregation are provided with the opportunity to be out of their
cells for a minimum of 2½ hours per day. Within that period, inmates must be
given the opportunity to exercise outdoors for at least 1½ hours every day,
unless the weather does not permit exercise to be taken outdoors, in which case
the exercise opportunity will be provided indoors. These requirements will be
met each day, including on weekends and holidays;

e)

The Correctional Service of Canada must

i.

Issue a Policy Bulletin, that will be distributed to all staff,
directing staff to allow counsel to attend institutional segregation review
board hearings to make submissions on behalf of the inmate whose case is
reviewed;

ii.

Issue a Policy Bulletin confirming that inmates in administrative
segregation are allowed to make calls to counsel in a private area outside of
their cells; and

iii.

Distribute
a memorandum to affected staff and Inmate Committees confirming the policy set
out in s. 33 of Commissioners Directive 709 that upon admission to administrative
segregation, an inmate will, without delay, be informed of their right to
counsel and given a reasonable opportunity to retain and instruct counsel in
private;

f)

The Correctional Service of Canada must take steps to have Indigenous
Elders routinely visit segregation units and offer one-on-one counselling to
Indigenous inmates.

g)

The
Correctional Service of Canada must issue to all institutions a Case Management
bulletin advising that Indigenous Elders will be asked to attend segregation
units on their first day of work to get acquainted with inmates and, thereafter,
to be available for a minimum of two hours per working day to provide services
to inmates in administrative segregation;

h)

The
Correctional Service of Canada must complete a review of current institutional
standing orders and infrastructure and must provide written recommendations to
the Commissioner about how Indigenous inmates being held in administrative
segregation may be provided consistent access to smudging and, as circumstances
permit, ceremonial and spiritual practices.

i)

The Correctional Service of Canada must begin opening units outside of
administrative segregation for inmates who do not wish to integrate into the
mainstream inmate population and for inmates who are assessed as being unable
to integrate into the mainstream inmate population safely but who do not meet
the legislated criteria for placement in administrative segregation;

j)

The Correctional Service of Canada must establish a system of review
whereby no inmate will remain in administrative segregation for more than
fifteen days without such continued detention being authorized 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.

[35]

The requirements set out in subparagraphs a) to f) must be fulfilled as
soon as possible, and, in any event, before January 18, 2019, the date when the
suspension given by the trial judge expires.

[36]

The requirements in subparagraphs g) and h) must be met by May 1, 2019.

[37]

Canada must report its progress with respect to the requirements in
subparagraphs g) through j) prior to February 28, 2019, by letter addressed to
the Registrar to be brought to the attention of the panel. Counsel for the
Attorney General should also provide a copy to counsel for the respondents. Upon
receipt of the report, the Court reserves the power to impose additional
conditions on the continuation of the suspension of the declaration.

[38]

These orders will continue in place for the duration of the suspension,
or until further order of the Court.

Disposition

[39]

The suspension of the declaration of invalidity is extended until June
17, 2019, or until further order of this Court, subject to the conditions set
out in these reasons.

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Willcock

The
Honourable Mr. Justice Fitch


