



COURT OF APPEAL FOR ONTARIO

CITATION: Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 243

DATE: 20190328

DOCKET: C64841

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

BETWEEN

Corporation of the Canadian Civil Liberties
    Association

Applicant (Appellant)

and

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

Respondent (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 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 20, 2018

On appeal from the order of Associate
    Chief Justice Frank Marrocco of the Superior Court of Justice, dated December
    18, 2017, with reasons reported at 2017 ONSC 7491, 140 O.R. (3d) 342.

Benotto J.A.:

[1]

The distinguishing feature of solitary
    confinement is the elimination of meaningful social interaction or stimulus. It
    has the potential to cause serious harm which could be permanent. Federal
    legislation permits its use in penitentiaries across Canada. It is called
    administrative segregation and is permitted to maintain safety and security
    or to conduct investigations. The appellant, the Canadian Civil Liberties
    Association (CCLA), submits that ss. 31-37 of the
Corrections and
    Conditional Release Act
, S.C. 1992, c. 20 (the Act), the legislative provisions
    authorizing administrative segregation, are unconstitutional.

[2]

The CCLA was partially successful in the
    Superior Court. The application judge found that the legislation authorizing administrative
    segregation violates s. 7 of the
Canadian Charter

of Rights and
    Freedoms
because it does not provide for an independent review of the
    decision to place an inmate in administrative segregation. The respondent, the Attorney
    General of Canada (AGC), does not challenge this finding on appeal.

[3]

On appeal, the CCLA argues that ss. 31-37 of the
    Act violate s. 12 and s. 11(h) of the
Charter
. The CCLA also raises a
    new s. 7 argument. The CCLA seeks a broader declaration from this court banning
    the practice entirely for certain inmates (those aged 18-21, those with mental
    illness, and those placed in segregation for their own protection) and
    otherwise placing a cap of 15 consecutive days on administrative segregation
    for all inmates.

[4]

As I will explain, I accept the conclusions of
    the application judge with respect to inmates aged 18-21, those with mental
    illness, and those placed in segregation for their own protection. However,
    prolonged administrative segregation of any inmate, which is segregation for more
    than 15 consecutive days, does not survive constitutional scrutiny under s. 12.

[5]

I reach this conclusion because prolonged administrative
    segregation causes foreseeable and expected harm which may be permanent and
    which cannot be detected through monitoring until it has already occurred. Legislative
    safeguards are inadequate to avoid the risk of harm. In my view, this outrages
    standards of decency and amounts to cruel and unusual treatment. I conclude
    that the provisions in the Act authorizing prolonged administrative segregation
    infringe s. 12 and the infringement cannot be justified under s. 1. It follows
    that a remedy under s. 52(1) of the
Constitution Act, 1982
is
    appropriate.

[6]

To demonstrate my conclusions, I describe administrative
    segregation, outline the evidence concerning the harm caused and the inability
    of monitoring or other legislative safeguards to prevent the risk of harm. I explain
    why ss. 31-37 of the Act infringe s. 12 of the
Charter,
and why the
    infringement cannot be justified under s. 1. I also briefly address the CCLAs
    s. 11(h) and s. 7 arguments.

BACKGROUND

The legislative scheme

[7]

The
Corrections and Conditional
    Release Act
permits the
    Correctional Service of Canada (CSC) to place an inmate in administrative
    segregation. The provisions at issue are ss. 31-37. An inmate who is held in administrative
    segregation is permitted out of his or her cell for a minimum of two hours per
    day plus time for a daily shower.

[8]

The structure of the Act is as follows.

Purpose and principles

[9]

The Act includes a general purpose and
    principles section. Section 3 states that the purpose of the federal
    correctional system is to contribute to the maintenance of a just, peaceful and
    safe society by (a) carrying out sentences imposed by courts through the safe
    and humane custody and supervision of offenders; and (b) assisting the
    rehabilitation of offenders and their reintegration into the community as
    law-abiding citizens through the provision of programs in penitentiaries and in
    the community. Section 3.1 states that [t]he protection of society is the
    paramount consideration for the Service in the corrections process.

[10]

Section 4 sets out nine principles that guide
    the CSC in achieving the purpose set out in s. 3. These include that the
    Service uses measures that are consistent with the protection of society, staff
    members and offenders and that are limited to only what is necessary and
    proportionate to attain the purposes of this Act and that offenders retain
    the rights of all members of society except those that are, as a consequence of
    the sentence, lawfully and necessarily removed or restricted: ss. 4(c)-4(d).

Administrative
    segregation

[11]

The purpose of administrative segregation is
    explained in s. 31(1):

31
(1) The purpose of administrative segregation is to
    maintain the security of the penitentiary or the safety of any person by not
    allowing an inmate to associate with other inmates.

[12]

Section 31(2) speaks to the duration of
    administrative segregation:

31 (2)
The inmate is to be released from administrative segregation
    at the earliest appropriate time.

[13]

Section 31(3) gives the institutional head the
    discretion to order administrative segregation if certain conditions are met:

31 (3)
The
    institutional head may order that an inmate be confined in administrative
    segregation if the institutional head is satisfied that there is no reasonable
    alternative to administrative segregation and he or she believes on reasonable
    grounds that

(a)

the inmate has acted, has attempted to act or intends to act in a
    manner that jeopardizes the security of the penitentiary or the safety of any
    person and allowing the inmate to associate with other inmates would jeopardize
    the security of the penitentiary or the safety of any person;

(b)

allowing the inmate to associate with other inmates would interfere
    with an investigation that could lead to a criminal charge or a charge under
    subsection 41(2) of a serious disciplinary offence; or

(c)

allowing the inmate to associate with other
    inmates would jeopardize the inmates safety.

[14]

Under s. 32, the same criteria are relevant in
    deciding whether to release an inmate from administrative segregation:

32

All recommendations to the institutional head referred to in
    paragraph 33(1)(c) and all decisions by the institutional head to release or
    not to release an inmate from administrative segregation shall be based on the
    considerations set out in section 31.

[15]

There are also provisions in ss. 33-35 mandating
    a review process:

33
(1) Where
    an inmate is involuntarily confined in administrative segregation, a person or
    persons designated by the institutional head shall

(a)

conduct, at the prescribed time and in the prescribed manner, a
    hearing to review the inmates case;

(b)

conduct, at prescribed times and in the prescribed manner, further
    regular hearings to review the inmates case; and

(c)

recommend to the institutional head, after the hearing mentioned in
    paragraph (a) and after each hearing mentioned in paragraph (b), whether or not
    the inmate should be released from administrative segregation.

33 (2)
A
    hearing mentioned in paragraph (1)(a) shall be conducted with the inmate
    present unless

(a)

the inmate is voluntarily absent;

(b)

the person or persons conducting the hearing believe on reasonable
    grounds that the inmates presence would jeopardize the safety of any person
    present at the hearing; or

(c)

the inmate seriously disrupts the hearing.

34

Where the institutional head does not intend to accept a
    recommendation made under section 33 to release an inmate from administrative
    segregation, the institutional head shall, as soon as is practicable, meet with
    the inmate

(a)

to explain the reasons for not intending to accept the
    recommendation; and

(b)

to give the inmate an opportunity to make oral or written
    representations.

35

Where an inmate requests to be placed in, or continue in,
    administrative segregation and the institutional head does not intend to grant
    the request, the institutional head shall, as soon as is practicable, meet with
    the inmate

(a)

to explain the reasons for not intending to grant the request; and

(b)

to give the inmate an opportunity to make
    oral or written representations.

[16]

Sections 36 and 37 deal with the rights of
    inmates who are placed in administrative segregation:

36 (1)

An
    inmate in administrative segregation shall be visited at least once every day
    by a registered health care professional.

(2)
The
    institutional head shall visit the administrative segregation area at least
    once every day and meet with individual inmates on request.

37

An inmate in administrative segregation has the same rights and
    conditions of confinement as other inmates, except for those that

(a)

can only be enjoyed in association with other inmates; or

(b)

cannot be enjoyed due to

(i)
limitations
    specific to the administrative segregation area, or

(ii)
security requirements.

Other Relevant Provisions

[17]

As I will discuss, ss. 69 and 87(a) of the Act are
    also relevant to this appeal:

69 No person shall administer, instigate, consent to
    or acquiesce in any cruel, inhumane or degrading treatment or punishment of an
    offender.

[]

87

The Service shall take into consideration an offenders state of
    health and health care needs

(a)

in all decisions affecting the offender,
    including decisions relating to placement, transfer, administrative segregation
    and disciplinary matters.

[18]

Lastly, ss. 97 and 98 of the Act authorize the
    creation of rules and Commissioners Directives, which are referred to by the
    designation CD. Some Commissioners Directives are relevant to the practice
    of administrative segregation, as discussed below.

Nature of
administrative segregation

[19]

The discretion to order administrative
    segregation rests with the institutional head, usually the prison warden or his
    or her delegate. Once that discretion is exercised, the inmate is placed in a
    segregated prison cell and remains there indefinitely until the institutional
    head decides to order release. The inmate is to be allowed out of his or her
    cell for a minimum of two hours daily, including one hour for exercise outdoors,
    and must also be given an opportunity to take a daily shower. At all other
    times the inmate remains locked in his or her cell, except if there is a
    lockdown when they do not leave their cells at all.

[20]

As I have noted, the distinguishing feature of administrative
    segregation is the elimination of meaningful social interaction or stimulus. The
    photographic evidence adduced by the CCLA in this case depicts a small cell where
    the inmate is held. It contains a narrow platform with a thin mattress overtop,
    a toilet, a sink, maybe or maybe not a small table, maybe or maybe not a small
    window. The heavy steel door has a small food slot a few feet off the ground.
    It is often through this food slot that interactions with staff and health
    personnel take place.

[21]

The affiants in these proceedings provided
    evidence about the horrific effects of administrative segregation that  it is
    submitted  outrages Canadian standards of decency.

International norms regarding solitary confinement

[22]

For many years, the international community has
    urged limitations on the use of solitary confinement, and in particular, prolonged
    solitary confinement, which is defined as solitary confinement for more than 15
    consecutive days. International organizations also object to any use of
    solitary confinement on juveniles and inmates with mental illness.

[23]

The United Nations has recently adopted rules governing the
    treatment of prisoners: the
United Nations Standard Minimum Rules for the
    Treatment of Prisoners (the Nelson Mandela Rules)
, UNGAOR, 70th Sess, UN
    Doc A/Res/70/175 (17 December 2015) (the Mandela Rules). The Mandela Rules
    are an authoritative interpretation of international rules including the
Convention against Torture and Other Cruel, Inhuman or Degrading
    Treatment or Punishment
,
    10 December 1984, UNTS 1465 (entered into force 26 June 1987, ratified by
    Canada 24 June 1987).

The Mandela Rules define solitary confinement as
confinement of a prisoner for 22 hours or more a day without
    meaningful human contact.
They
    prohibit the use of prolonged solitary confinement, which is confinement for a
    period in excess of 15 days, and provide that solitary confinement should
be used only in exceptional cases as a last resort, for as short a
    time as possible and subject to independent review.

[24]

The CCLA has also pointed to statements such as
The
    Istanbul Statement on the Use and Effects of Solitary Confinement
adopted
    by a panel of experts at the International Psychological Trauma Symposium (9
    December 2007), which indicates that solitary confinement should only be used
    in very exceptional cases, for as short a time as possible, only as a last
    resort and should be absolutely prohibited for certain populations including
    mentally ill prisoners and children under the age of 18. In 2013, the
    Inter-American Commission on Human Rights stressed that prolonged or indefinite
    isolation through solitary confinement may never be a legitimate instrument in
    the hands of the state.

[25]

In the court below, the AGC submitted that the
    CSC does not practice what the Mandela Rules referred to as solitary
    confinement. It pointed to the fact that federal inmates in Canada are allowed
    out of their cell for more than two hours per day because, in addition to the
    two hours, they are also allowed a daily shower. The application judge sensibly
    rejected this submission and concluded that the CSC is using administrative
    segregation in a way captured by the term solitary confinement as defined in
    the Mandela Rules. The application judge also found that the evidence of
    perfunctory contact between inmates in segregation and CSC staff did not
    constitute meaningful human contact.

[26]

In making those findings, the application judge
    relied on the expert evidence of Juan E. M
é
ndez, a
    professor of human rights law at the Washington College of Law. Professor Méndez
    previously taught at Georgetown Law School and the Johns Hopkins School of
    Advanced International Studies and teaches regularly at the University of Oxford.
    He was the United Nations Special Rapporteur on Torture
and Other Cruel, Inhuman and Degrading Treatment or Punishment
from November 2010 until October 31, 2016.

[27]

Professor Méndez explained that the essence of
    solitary confinement is a lack of meaningful social contact with the result
    that social stimulus is insufficient to allow the individual to remain in a
    reasonable state of mental health. When individuals are deprived of social
    stimulation, they become incapable of maintaining an adequate state of
    alertness and attention to their environment. If this occurs for even a few
    days, brain activity shifts toward an abnormal pattern.

[28]

Professor Méndez also explained that the Mandela
    Rules represent an international consensus of proper principles and practices
    in the management of prisons and the treatment of those confined. The
    application judge accepted this evidence. At para. 59, he stated:

Professor [M
é
ndezs] position concerning more than 15 days in segregation evolved
    from a contextual analysis to a hard and fast rule because the international
    community came to a consensus view about this in December 2015 when the United
    Nations approved the Mandela Rules revision. Professor [M
é
ndezs]
    view of the 15-day limit has been informed by the international consensus
    achieved in 2015. His current view in this regard is largely like limitations
    suggested domestically by the Arbour Commission and the
Ashley Smith
    Inquest
.

[29]

While not binding on Canada, Canadian
    representatives had a role in drafting the Mandela Rules. The rules reflect a general
    shift in social views regarding acceptable treatment or punishment. Public
    perceptions of the appropriate way to treat inmates have evolved, thanks in
    large part to the efforts of inmates and their advocates. What was once
    considered acceptable  the death penalty for example  is no longer. Today, as
    society has become informed about the harm caused by solitary confinement, the publics
    views have changed. In
R. v. Prystay
, 2019 ABQB 8, Pentelechuk J. (as
    she then was) said, at para. 128:

Societal views on what is
    acceptable treatment or punishment evolve over time. Forced sterilization,
    residential schools, lobotomies to treat mental disorders, corporal punishment
    in schools and the death penalty are all examples of treatment once considered
    acceptable. Segregation ravages the body and the mind. There is growing
    discomfort over its continued use as a quick solution to complex problems.

Proceedings below

Application to the Superior Court

[30]

The CCLA applied to the Superior Court
    alleging that ss. 31-37 of the Act violate ss. 12, 11(h) and 7 of the
Charter
.


[31]

First, the CCLA argued that administrative
    segregation of young adults aged 18-21 and inmates suffering from mental
    illness, as well as prolonged administrative segregation of any inmate beyond
    15 days, constitutes cruel and unusual treatment or punishment contrary to s.
    12. The CCLA put forth evidence that administrative segregation would be detrimental
    for young persons because their brains are still maturing; those with mental
    illness are particularly vulnerable to harm from administrative segregation;
    and prolonged segregation poses a serious risk of negative psychological
    effects, such that a legislative scheme that permits it amounts to cruel and
    unusual treatment or punishment.

[32]

Second, the CCLA argued that the practice of segregating
    inmates for their own protection amounts to an additional form of punishment,
    contrary to the prohibition against double jeopardy enshrined in s. 11(h) of the
Charter
.

[33]

Finally, the CCLA alleged that the Act infringes
    s. 7 of the
Charter
in a manner that is grossly disproportionate,
    arbitrary and lacking in procedural fairness, contrary to the principles of
    fundamental justice. Though the record before this court is not entirely clear,
    it appears the CCLA made two distinct s. 7 arguments. First, the CCLA argued
    that the legislative scheme authorizing administrative segregation is not in
    accordance with the principles of fundamental justice because it is grossly
    disproportionate. Second, the CCLA argued that the legislative scheme for
    reviewing segregation decisions is arbitrary and procedurally unfair because the
    scheme does not provide for independent oversight of the institutional head.

Decision of the application judge

[34]

At the outset, the application judge found that
    the CCLA, which has public interest standing, could not seek a remedy under s.
    24(1) of the
Charter
because its own constitutional rights were not at
    issue. Instead, he held that the CCLA could only seek relief under s. 52(1) of
    the
Constitution Act, 1982
, and that such relief would only be
    available if the CCLA could show that the Act itself was unconstitutional.

[35]

On this basis, the application judge concluded
    that the administration of the statutory scheme was not the material issue. While
    flawless administration was not a reason to refuse a declaration of invalidity
    pursuant to s. 52(1), individual cases of maladministration did not prove that
    the statute was incapable of constitutional administration. Citing
Little
    Sisters Book and Art Emporium v. Canada (Minister of Justice)
, 2000 SCC
    69, [2000] 2 S.C.R. 1120, at para. 71, the application judge held that, as a
    matter of law, Parliament was entitled to assume that its enactments will be
    applied constitutionally by the public service.

[36]

The application judge rejected the CCLAs
    submissions with respect to s. 12 of the
Charter
.

[37]

He was not satisfied that the evidence proved
    that because the brain of a person aged 18 to 21 continues to develop, that
    person is vulnerable to severe termination of development if exposed to administrative
    segregation.

[38]

With respect to inmates with mental illness, the
    application judge found that the existing legislative scheme and relevant
    Commissioners Directives provide adequate protection because there are limits
    on placing inmates with mental illness in administrative segregation. Specifically,
    s. 87(a) of the Act requires the institutional head and the independent
    reviewer to consider the inmates health, including the inmates mental health,
    when making the decision to place or maintain the inmate in administrative
    segregation.

[39]

With respect to prolonged administrative
    segregation, the application judge found that there were serious risks of
    negative psychological harm that could occur as early as 48 hours after segregation
    and were exacerbated by prolonged segregation. The application judge also noted
    that negative psychological effects may not be observable and that the current
    regime waits for negative psychological effects to manifest in a recognizable
    observable form before supporting or removing the inmate.

[40]

Despite these findings, the application judge
    concluded that prolonged administrative segregation did not amount to cruel and
    unusual punishment or treatment in part because monitoring can identify when an
    inmates condition is deteriorating. At para. 269, the application judge stated:

If effective
    monitoring is possible and I believe it is and if section 87(a) is applied as
    the
Corrections and Conditional Release Act
requires, then I do not believe the current legislative scheme which permits
    prolonged administrative segregation must inevitably result in the treatment of
    an inmate which is grossly disproportionate to the safety risk the inmate
    presents.

[41]

With respect to the CCLAs s. 11(h) claim, the
    application judge rejected the argument that placing an inmate in
    administrative segregation changes the nature of the inmates incarceration and
    imposes a harsher sanction than that contemplated at sentencing. The CCLAs s.
    11(h) claim was dismissed on this basis.

[42]

Finally, the application judge dismissed the
    CCLAs s. 7 gross disproportionality argument because, in his view, s. 7 cannot
    find a treatment or punishment disproportionate where it passes the test under
    section 12: at para. 267, relying on
R. v. Malmo-Levine; R. v. Caine
,
    2003 SCC 74, [2003] 3 S.C.R. 571, at para. 160. However, the application judge concluded
    there was a breach of s. 7 of the
Charter
because there was no independent review of the decision to segregate
    an inmate and the breach was not saved by s. 1. He declared ss. 31-37 of the
    Act of no force and effect to the extent of this breach, but suspended the
    declaration of invalidity for one year, until December 18, 2018, to provide
    Parliament time to enact an appropriate legislative response. As noted above, the
    AGC does not challenge the application judges s. 7 decision.

LEGISLATIVE
    PROCESS

[43]

Bill C-83
,

An Act to
    amend the Corrections and Conditional Release Act and another Act
, amends
    ss. 31-37 of the Act. It was introduced in the House of Commons on October 16,
    2018 and passed third reading on March 18, 2019. It is currently before the
    Senate.

[44]

Under Bill C-83, the Commissioner of Corrections
    may designate a penitentiary or any area in a penitentiary as a structured
    intervention unit. These units function similarly to administrative
    segregation. The purpose of such units is said to be to:

(a)
provide
    an appropriate living environment for an inmate who cannot be maintained in the
    mainstream inmate population for security or other reasons; and

(b)
provide the
    inmate with an opportunity for meaningful human contact and an opportunity to
    participate in programs and to have access to services that respond to the
    inmates specific needs and the risks posed by the inmate.

[45]

Under the proposed new system, those in
    structured intervention units will be given the opportunity to spend a minimum
    of four hours a day outside their cell, including a minimum of two hours a day
    interacting with others. The Bill does not place a cap on the number of
    consecutive days an inmate may spend in a structured intervention unit.
    Instead, it mandates that there be ongoing monitoring of the health of those in
    structured intervention units.

[46]

The change in legislation was not completed by
    the December 18, 2018 deadline imposed by the application judge.

[47]

The AGC moved to extend the deadline. This court
    granted
an extension of time to enable the legislative
    process to be completed: 2018 ONCA 1038. The declaration of invalidity set out
    in para. 2 of the application judges order is suspended until April 30, 2019.

ISSUES ON APPEAL

[48]

On appeal, the CCLA seeks:

·

a declaration that ss. 31-37 of the Act infringe
    s. 12 of the
Charter
, or alternatively s. 7, and are of no force and
    effect to the extent that they authorize
administrative segregation
of persons aged 18-21 and those diagnosed with a mental illness, as
    well as prolonged
administrative segregation
(more than
    15 consecutive days) of any person; and

·

a declaration that
s. 31(3)
of the Act infringes s. 11(h) of the
Charter
and is of no
    force and effect to the extent that it authorizes
administrative
    segregation
of persons for their own protection.

[49]

The intervener the Ontario Human Rights
    Commission (OHRC) supports the CCLAs position
.

[50]

The AGC submits that the legislation, on its face
    or in its necessary effects, does not breach ss. 12, 11(h) or 7 of the
Charter
(other than on the basis found
    by the application judge).

[51]

The AGC points to a number of features of the
    legislation to support its position. It stresses that it can only be used when
    the safety of any person or the security of a penitentiary is in jeopardy or
    during the investigation of a possible criminal or serious disciplinary charge.
    It can only be used if there is no reasonable alternative. The inmate must be
    released from segregation at the earliest appropriate time. The legislation
    expressly prohibits the use of cruel, inhumane or degrading treatment. Properly
    interpreted, says the AGC, the legislation requires an inmates health care
    needs to be taken into account in both placement and review decisions.

[52]

The AGC also relies on the application judges
    finding about the sufficiency of monitoring. It argues that monitoring is
    sufficient to identify when an inmates health may be impacted. If there is
    such an impact, the legislation requires a balancing of the harm to the inmate
    of continued segregation against safety and security risks.

[53]

In these circumstances, the AGC submits that the
    challenged provisions do not themselves violate
Charter
rights and so
    there is no basis for a s. 52(1) remedy.

[54]

The intervener Attorney General of Ontario (AGO)
    supports the position of the AGC.

ANALYSIS

[55]

In my view, the determinative issue on this
    appeal is s. 12. I will address the issues as follows:

1.

Do ss. 31-37 of the Act infringe s. 12 of the
Charter?


2.  If so, can the infringement be
    justified under s. 1?

3.  If the infringement cannot be
    justified, what is the appropriate remedy?

4.  Is s. 11(h) violated?

5.  Is s. 7 violated?

[56]

At the outset, I note that the standard of
    review for questions of law is correctness, while findings of fact are owed
    deference unless it can be established that the application judge made a
    palpable and overriding error:
Housen v. Nikolaisen,
2002 SCC 33,
    [2002] 2 S.C.R. 235, at paras. 8, 10
.

Issue 1:
Do ss. 31-37 of the Act infringe s. 12 of
    the
Charter
?

[57]

Section 12 of the
Charter
provides:

Everyone
    has the right not to be subjected to any cruel and unusual treatment or
    punishment.

[58]

There is a high threshold for establishing that punishment
    or treatment is cruel and unusual. In
Ogiamien v. Ontario (Community
    Safety and Correctional Services
,
    2017 ONCA 667, 355 C.C.C. (3d) 41, Laskin J.A. said, at para. 9:

[C]ruel and
    unusual is a high bar to meet. The Supreme Court has used various expressions
    to describe this high bar: so excessive as to outrage standards of decency;
    grossly disproportionate to what would have been appropriate; grossly
    disproportionate for the offender, such that Canadians would find the
    punishment abhorrent or intolerable. The point underlying these expressions is
    that merely excessive treatment or disproportionate treatment is not enough to
    establish a s. 12 violation. In the context of punishment, the Supreme Court
    has cautioned against stigmatizing every excessive or every disproportionate
    sentence as being a constitutional violation. So too with treatment.

[59]

Recently in
R. v.
    Boudreault
,

2018 SCC 58, 369 C.C.C. (3d) 358, the
    court when considering the mandatory victim surcharge scheme in the context of
    s. 12 said at para. 94:

the impact and
    effect of the surcharge, taken together, create circumstances that are grossly
    disproportionate, outrage the standards of decency, and are both abhorrent and
    intolerable. Put differently, they are cruel and unusual and, therefore,
    violate s. 12.

[60]

The CCLA argues in this court, as it did in the
    court below, that three aspects of administrative segregation infringe s. 12: segregation
    of inmates aged 18-21; segregation of inmates suffering from mental illness;
    and prolonged segregation of all inmates. I will deal with each of these points
    in turn.

Persons aged 18-21

[61]

With respect to segregation of persons aged 18-21,
    the application judge was not satisfied on the evidence presented that because their
    brains were still developing, they were vulnerable to severe termination of
    development if exposed to administrative segregation: at para. 211. The CCLA
    has not challenged this finding on appeal but states that the application judge
    erred by requiring that the termination of development be severe. There was
    no evidence of termination of development before 15 days. In my view, this is
    fatal to the appeal on this issue and I would not interfere with the application
    judges conclusion.

Persons with mental illness

[62]

The application judge was satisfied that the
    legislative scheme, as properly interpreted and applied, did not offend s. 12
    insofar as it permits subjecting inmates with mental illness to administrative
    segregation.

[63]

In reaching that conclusion, he examined
    Commissioners Directive 709 and s. 87(a) of the Act
.
He found there
    was an inconsistency between the directive and s. 87(a). On the one hand, para.
    19 of CD-709 precludes administrative segregation for those who meet certain
    criteria, including those with serious mental illness with significant
    impairment. On the other hand, s. 87(a) states that the offenders state of
    health shall be taken into account with respect to administrative segregation.
    The application judge found that CD-709 creates a risk that the institutional
    head will exercise his or her discretion in a way that contravenes s. 87(a),
    because the directive implies that a mentally ill inmate not falling within the
    class described in the directive can be placed in administrative segregation.

[64]

He also found there was ambiguity in the
    legislation. Section 31(3) (which specifies the basis on which the
    institutional head may order that an inmate be placed in administrative
    segregation) and s. 32 (which specifies the factors the institutional head
    shall consider in the decision whether to release an inmate) do not reference
    mental health as a consideration for the admission to or release from administrative
    segregation. However, s. 87(a) stipulates that an inmates mental health must
    be taken into consideration in decisions relating to administrative
    segregation.

[65]

The application judge resolved the ambiguity and
    inconsistency through an exercise in statutory interpretation. I agree with the
    application judges interpretation of the statute. The institutional head has a
    discretion to place an inmate in administrative segregation, which seems clear
    from the use of the word may in s. 31(3), and must when exercising that
    discretion take into account s. 87(a) of the Act. Similarly, as found by the
    application judge, the independent reviewer, necessitated under s. 7 of the
Charter
,
    is also making a discretionary decision concerning whether to continue administrative
    segregation and must also consider s. 87(a). Neither is to inhibit the exercise
    of their individual discretion by assuming that inmates not captured in para. 19
    of CD-709 are eligible for placement in administrative segregation regardless
    of the state of their mental health. Neither can ignore an inmates mental
    health and decide to segregate solely based on the criteria in s. 31(3) of the
    Act.

[66]

While I agree with the application judges
    resolution of the apparent conflict between CD-709 and the Act, I do not share his
    confidence about the efficacy of s. 87(a) in preventing serious harm to inmates
    with a mental illness. In principle, I agree with the CCLA that those with
    mental illness should not be placed in administrative segregation. However, the
    evidence does not provide the court with a meaningful way to identify those
    inmates whose particular mental illnesses are of such a kind as to render administrative
    segregation for any length of time cruel and unusual. I take some comfort in my
    view that a cap of 15 days would reduce the risk of harm to inmates who suffer
    from mental illness  at least until the court has the benefit of medical and
    institutional expert evidence to address meaningful guidelines. This issue
    therefore remains to be determined another day.

[67]

Based on the record as it presently exists, I would
    not therefore make the determination sought by the CCLA on this issue.

Prolonged segregation (more than 15 consecutive days)

[68]

I come to a different conclusion than the
    application judge with respect to prolonged administrative segregation, which
    for these purposes is considered segregation for any continuous period longer
    than 15 days.

[69]

The application judge declined to make a
    declaration that an inmate may never be segregated for more than 15 days. Although
    he accepted that prolonged administrative segregation causes foreseeable and
    expected harm, he found that it did not amount to cruel and unusual punishment
    or treatment.

[70]

In determining whether the serious permanent
    observable negative mental health effects consequent upon prolonged
    administrative segregation [were] grossly disproportionate (para. 263), the
    application judge considered a hypothetical situation. He concluded that the
    current legislative scheme, which permits prolonged segregation, would not inevitably
    result in the treatment of an inmate which is grossly disproportionate to the
    safety risk the inmate presents: at para. 269. He reached this conclusion on
    the basis that effective monitoring is possible and that s. 87(a) requires an
    inmates health, including an inmates mental health, to be taken into
    consideration in deciding whether to place or maintain an inmate in
    segregation.

[71]

As I will explain, the application judge erred
    in relying on the monitoring of inmates in administrative segregation to find
    the Act constitutionally compliant. The evidence is that prolonged administrative
    segregation causes foreseeable and expected harm and that monitoring only
    detects harm
once it
    has already occurred
 it does not predict or prevent it. As I
    will also explain, the application judge engaged in the wrong comparative
    exercise in assessing whether there was a s. 12 breach. Finally, I will explain
    why the safeguards in the legislation are inadequate, such that the legislation
    itself infringes s. 12. First, however, I will review the application judges factual
    findings on the harmful effects of prolonged administrative segregation, which
    I accept.

(i)

Prolonged segregation causes foreseeable and expected harm

[72]

There was considerable expert evidence before
    the application judge about the harmful effects of administrative segregation.
    This included evidence about the particularly severe effects of prolonged segregation.

[73]

The application judge made findings that administrative
    segregation:

·

amounts to a significant deprivation of liberty
     it places the inmate in a prison located within the prison;

·

imposes a psychological stress capable of
    producing serious permanent observable negative mental health effects;

·

is harmful;

·

causes sensory deprivation and has harmful
    effects as early as 48 hours after admission;

·

can alter brain activity and result in symptoms
    within seven days; and

·

poses a serious risk of negative psychological
    effects when prolonged and is offside responsible medical opinion.

[74]

The application judge accepted the evidence of Professor
    Méndez that
brain activity shifts toward an abnormal
    pattern within days
.

[75]

He also accepted the evidence of Dr.
    Hannah-Moffat. She is a professor of sociology, former director of the Centre
    of Criminology and Sociolegal Studies at the University of Toronto. She was
    policy advisor to Justice Arbours Commission of Inquiry into Certain Events at
    the Prison for Women in Kingston in April 1994, and expert witness in the
    Ashley Smith inquest.

[76]

Dr. Hannah-Moffat spoke of the negative effects
    of administrative segregation. In particular, she described the following
    effects of administrative segregation, both short-term and prolonged, as
    established in the literature:

·

prisoners experience the isolated conditions of
    solitary confinement, sensory deprivation, and constant lockdown status very
    negatively and stressfully;

·

segregated prisoners who are already
    experiencing mental health problems, have a history of suicide attempts, and have
    high levels of hopelessness, are more likely to report suicidal ideation;

·

long-term segregation may lead to the
    development of previously undetected psychiatric symptoms;

·

segregation appears to be a significant risk
    factor for the development of psychiatric symptoms including depression and
    suicidal ideation;

·

antipsychotic medication loses some
    effectiveness on people in segregation;

·

prisoners who experience isolation report
    experiencing anger, hatred, bitterness, boredom, stress, loss of the sense of
    reality, suicidal thoughts, trouble sleeping, impaired concentration, confusion,
    depression, and hallucinations;

·

prolonged isolation may negatively affect womens
    ability to cope with incarceration;

·

segregation has repeatedly been linked to
    appetite and sleep problems, anxiety, panic, rage, loss of control,
    depersonalization, paranoia, hallucinations, self-mutilation, increased rates
    of suicide and self-harm, an increased level of violence against others, and
    higher rates of frustration;

·

isolation can produce emotional damage, declines
    in mental functioning, depersonalization, hallucination, and delusion;

·

segregation may lead to cognitive-behavioral
    problems among prisoners: difficulty solving interpersonal problems,
    unawareness of the consequences of their actions, inability to make positive
    choices, and a tendency to display disregard for others as a result of being
    socially unaware and impulsive;

·

segregation can produce a vicious cycle where a
    prisoner's extreme behaviour leads to an increase in physical altercations with
    prison staff, which ultimately increases the level of frustration and violence;

·

prisoners who are denied normal social contact
    with others on a long-term basis experience heightened levels of anxiety, increased
    risk of panic attacks, and a sense of impending emotional breakdown; and

·

prisoners housed in segregation may lose the
    ability to limit and control their own behaviour, relying instead on the prison
    structure to manage their conduct. Others in extreme forms of restricted
    isolation may become severely apathetic and lethargic resulting in an inability
    to initiate behavior.

[77]

Based on the evidence he accepted, the
    application judge found that prolonged administrative segregation poses a
    serious risk of negative psychological effects: at para. 248. These negative effects
    are foreseeable and expected, may not be observable, result from abnormal
    psychological stress and will if the stay continues indefinitely result in
    permanent psychological harm: at paras. 240, 241, 252.

(ii)

Ineffectiveness of monitoring to prevent harm

[78]

Despite these findings, the application judge dismissed
    the CCLAs s. 12 claim. He grounded his dismissal in part on the effectiveness
    of monitoring to detect harm, even though he found that harm may not always be
    observable.

He
    stated at paras. 260 and 269-270:

I accept that the Correctional Service of Canada can adequately
    monitor inmates who are in administrative segregation to
identify
    when an inmates physical and mental health is deteriorating
.

[]

If effective monitoring is possible and I believe it is and
    if
section 87
(a)
    is applied as the

Corrections and Conditional
    Release Act

requires, then I do not
    believe the current legislative scheme which permits prolonged administrative
    segregation must inevitably result in the treatment of an inmate which is
    grossly disproportionate to the safety risk the inmate presents.

Accordingly, I am not prepared to
    find that the legislative scheme providing for administrative segregation in
    the
Corrections and Conditional
    Release Act

is contrary to section
    12 of the
Charter of Rights and Freedoms
because it does not
    contain a hard cap on the length of time that an inmate can be administratively
    segregated. [Emphasis added.]

[79]

The practical effect of monitoring combined with
    a proper application of s. 87(a) is that it allows the CSC to remove an inmate
    from administrative segregation
only after
they have detected
    decompensation
which has already occurred
. In other words, monitoring,
    while effective at identifying inmates who have suffered harm, is ineffective
    at preventing it. The application judge appears to acknowledge this at para.
    255:

Despite section
    87(a) of the legislative scheme,
the current
    regime waits for the negative psychological effects to manifest in the form of
    some recognizable observable form of mental decompensation or suicidal ideation
    before supporting or perhaps removing the inmate
. In
    other words, the person is not removed or supported until it is obvious that
    they have been harmed. [Emphasis added.]

[80]

This is consistent with the evidence of Dr.
    Robert Morgan, a psychologist and academic from Texas whose testimony was
    relied on by the AGC. He indicated that monitoring detects harm that has
    already occurred. He said that conducting daily health care visits, that
    include verbal interaction with inmatesprovides a high likelihood of detecting
    inmates that are suffering impaired or decompensated mental health
    functioning.

[81]

In conclusion, the application judges error in
    relying on the effectiveness of monitoring undermines his conclusion that ss.
    31-37 do not breach s. 12 insofar as they permit prolonged segregation.

(iii)


Proper comparator

[82]

Section 12, which prohibits cruel and unusual
    treatment and punishment, involves a comparative approach. In my view, the
    application judge also erred in his s. 12 analysis in applying the wrong
    comparative approach.

[83]

In this case, the application judge did not determine
    whether administrative segregation should be considered treatment or punishment.
    Nor did he need to. As set out below, little in this case turns on the
    distinction.

[84]

Punishment requires the claimant to show that
    the state action at issue: (i) is a consequence of conviction and part of a
    sanction; and either (ii) is in furtherance of sentencing purposes and
    principles; or (iii) has a significant impact on the claimants liberty or
    security:
Boudreault
,

at para. 39.

[85]

In
Ogiamien
, Laskin J.A. determined that a prison lockdown was a case about
    treatment. In my view, administrative segregation is treatment, not
    punishment. It is not part of a sanction, not in furtherance of sentencing objectives.

[86]

In any event, the test to establish a violation
    of s. 12 is the same whether the court considers administrative segregation "punishment
    or "treatment":
R. v. Olson
(1987), 62 O.R. (2d) 321
    (C.A.), at p. 336, affd, [
1989] 1 S.C.R. 296;
Ogiamien
,
    at para. 7.
In either case, the punishment or
    treatment must be so excessive as to outrage standards of decency or grossly
    disproportionate to what would have been appropriate. The analysis is an
    inherently comparative exercise, measuring the punishment or treatment
    experienced against the punishment or treatment that is appropriate in the
    circumstances.

[87]

In this case, the application judge compared the
    effect of the treatment to the purpose of or reason for the treatment in a
    hypothetical scenario. The hypothetical involved an inmate segregated for his
    own protection for more than 15 days, as a result of which an outbreak of
    violence was prevented.

[88]

The application judge then asked the following
    question at para. 265: [i]s this treatment so excessive that it outrages
    Canadian standards of decency and so disproportionate to the purpose for which
    it was made that Canadians find it abhorrent or intolerable? On his
    comparative analysis, he found that the effects of prolonged segregation were
    not invariably grossly disproportionate to its purpose.

[89]

This approach is not consistent with the
    directions from this court on the proper interpretation of s. 12.

[90]

In
Ogiamien
, at para. 10,

Laskin
    J.A. said that there is a two-step process to determine whether treatment is
    cruel and unusual:

The first step
    establishes a benchmark. In this case step one looks at the treatment of [the
    inmate] under appropriate prison conditions

that is their treatment under
    ordinary conditions in the remand units when there were no lockdowns. Step two
    assesses the extent of the departure from the benchmark. In this case step two
    looks at the effect of the lockdowns on [the inmate]s treatment. If the
effect of the lockdowns resulted in treatment that was
    grossly disproportionate to their treatment under ordinary conditions then
    their s.12 rights would be violated
.

[91]

In
Toure
v. Canada (Public Safety & Emergency
    Preparedness)
, 2018 ONCA 681, 40
    Admin. L.R. (6th) 261, at para. 59, leave to appeal refused [2018] S.C.C.A.
    436, LaForme J.A. said that
Ogiamien
did not set out the only possible
    manner of assessing s. 12 claims involving treatment. Instead he affirmed at
    para. 61 that a determination of whether treatment is cruel and unusual
    requires a focus on
the effect
of the conduct in
    question  does it give rise to cruel and unusual treatment? (emphasis added.)

[92]

As
Ogiamien
and
Toure
make clear
,
the proper
    comparison is between the actual treatment against what would be appropriate in
    the circumstances. Laskin J.A. noted in
Ogiamien
, at para. 62, that
    the
reason
for the
    lockdowns, and whether the reasons were legitimate, was beside the point  what
    mattered was the
effect
of the lockdowns. He referred to the point made by Lamer J. in
R.
    v. Smith
, [1987] 1
    S.C.R. 1045, at p. 1077 that
a punishment is or
    is not cruel and unusual irrespective of why the violation has taken place.

[93]

I pause here
    to consider the AGOs submission that, under
Ogiamien
and
Toure
,
    the s. 12 comparative analysis is fundamentally individual in nature. The
    need to consider actual treatment, the AGO says, means a court must determine
    the effect of prolonged segregation on individual inmates. Only then can the
    court assess whether the effect of the treatment in each individuals case is
    grossly disproportionate. Since the CCLA cannot show that inmates held in
    prolonged administrative segregation invariably suffer grossly disproportionate
    effects, the AGO argues its s. 12 claim is doomed to fail.

[94]

I reject this
    submission. In
Ogiamien
and
Toure,
individual inmates brought s. 12 claims
    seeking s. 24(1) relief. The applicants in
Ogiamien
were subject to frequent
    prison lockdowns. The applicant in
Toure
was an immigration detainee detained in a
    maximum security jail. Since these individuals each sought a personal remedy,
    the s. 12 analysis necessarily turned on detailed evidence of the treatment they
    endured.
Hence the
    analysis was individual in nature.

[95]

Ogiamien
and
Toure
make no broader pronouncement, however,
    on the nature of the s. 12 analysis in other contexts.
The guidance they provide is on the
    proper comparators to use in determining whether treatment is grossly
    disproportionate. I therefore disagree that the s. 12 analysis is fundamentally
    individual in the manner the AGO suggests.

[96]

In this case, the application judges approach
    was problematic in that he engaged the wrong comparative analysis by comparing
    the actual treatment to the purpose for the treatment rather than following the
    comparative analysis set out in
Ogiamien
and
Toure.

[97]

In my view, a
    proper comparative exercise must consider the effects of prolonged
administrative segregation
against
    incarceration in an ordinary prison range. This is precisely what the expert
    evidence adduced in this case addresses. Compared to the treatment of inmates in
    general population, the evidence reveals that inmates held in prolonged
administrative
    segregation
are at risk of severe and often
    enduring negative health consequences.

[98]

This evidence
    led the application judge to conclude that, where
administrative
    segregation
exceeds 15 consecutive days,
    inmates face foreseeable and expected harm. As he stated at para. 254, there
    is no serious question the practice of keeping an inmate in administrative
    segregation for a prolonged period is harmful and offside responsible medical
    opinion. Inmates under normal prison conditions are not exposed to harm of
    this sort.

[99]

The effect of
    prolonged
administrative segregation
is thus grossly disproportionate treatment because
    it exposes inmates to a risk of serious and potentially permanent psychological
    harm.

[100]

I turn next to consider
    the AGCs argument that the Act is nonetheless constitutional because of the
    safeguards it contains. Before doing so, however, I will briefly address the
    point made by the AGC and the AGO, citing this courts decision in
R. v. Olson
,
that
administrative segregation
is not
per se
unconstitutional.
The inmate in
Olson
h
ad been held in administrative
    segregation for five years. He
brought a
habeas
    corpus
application seeking
release
    on the basis that his segregation infringed s. 12 of the
Charter
. At p.
    336, this court rejected his claim:

Segregation to a prison within a prison is not,
per se
,
    cruel and unusual treatment. However, undoubtedly for the appellant, like
    anyone else, it may become so if it is so excessive as to outrage standards of
    decency. In my view, having regard to all of the evidence presented, such a
    case has not been made out.

[101]

Olson
is of
    little assistance in determining the issues raised on this appeal. I say this
    for three reasons. First, the court in
Olson
had no expert evidence
    before it on the effects of administrative segregation on either the inmate
    himself or on other inmates. By contrast, the volume of direct and expert
    evidence adduced in the present appeal is considerable. Second, this appeal is
    being heard more than 30 years after
Olson
was decided, in a markedly
    different social and legal landscape as demonstrated by developments in scholarly
    research and international law: see
Carter v. Canada

(Attorney
    General)
, 2015 SCC 5, [2015] 1 S.C.R. 331, at para 47. Finally, the court
    in
Olson
deliberately left open

the possibility that administrative
    segregation may become [cruel and unusual] if it is so excessive as to outrage
    standards of decency.

(iv)

The safeguards in the Act are inadequate

[102]

I turn now to consider the AGCs argument that, when properly
    interpreted, the safeguards contained in the Act render it capable of constitutional
    compliance and thus not in breach of s. 12. Here the court must consider
    whether the law on its face or in its necessary effects is unconstitutional.

[103]

The application judge accepted that the legislation does not violate
    s. 12. As explained above, he held that the institutional head must apply s.
    87(a) when exercising his or her discretion under s. 31(3) and s. 32 to place or
    maintain an inmate in administrative segregation. He was of the view that in
    applying s. 87(a), the institutional head engages in a balancing exercise,
    whereby the security needs of employees and inmates in the general population are
    balanced with the psychological harm to the administratively segregated inmate.

[104]

In my view, the application judges reliance on s. 87(a) to say that
    the legislative scheme does not breach s. 12 is misplaced.

[105]

Under s. 87(a), the institutional head need only consider the
    inmates health in deciding whether to place an inmate in, or remove an inmate
    from, administrative segregation. The word consider is significant. It
    implies that the inmates health is merely one consideration among others. It
    is not the paramount consideration. By structuring the institutional heads discretion
    in this way, s. 87(a) authorizes prioritizing other considerations over the
    inmates health, so long as the inmates health forms part of the
    decision-making process. Thus, even when properly applied, s. 87(a) does not protect
    against the risk of an inmate suffering cruel and unusual treatment.

[106]

I am strengthened in my conclusion by considering the argument
    raised by the OHRC on this issue. The OHRC points to
R. v. Nur
, 2015 SCC 15, [2015] 1 S.C.R. 773,

and
R. v.
    Appulonappa
,

2015 SCC
    59
,
[2015] 3 S.C.R. 754,
in arguing that the
    application judge erred by incorporating into his analysis, the presumption
    that the CSC will exercise their discretion under s. 87(a)  to avoid any
    unconstitutional result.

[107]

Both
Nur
and
Appulonappa
address
    the issue of discretion in the context of a constitutional challenge to
    legislation. In
Nur
,
it was argued that the provision imposing a mandatory minimum
    sentence was not unconstitutional because the Crown had the ability to elect to
    proceed summarily and thereby avoid the mandatory minimum sentence in the
    indictable offence.
The Supreme Court
rejected that
    argument. It held that prosecutorial discretion to proceed summarily could not save
    the unconstitutional mandatory minimum.

[108]

Appulonappa
was a case involving s. 117 of the
Immigration and Refugee Protection Act
, S.C. 2001, c. 27,
which creates an offence of human smuggling. The court found that the provision
    was unconstitutionally overbroad contrary to s. 7 insofar as it captured
    humanitarian efforts, mutual aid amongst asylum‑seekers and individuals
    who assisted close family members. The court found that s. 117(4), which
    required that the Attorney General must consent for a prosecution to proceed
    under s. 117, could not save the provision because it was not impossible that
    the Attorney General could consent to prosecution in a case that was overbroad
    of the legislative purpose.

[109]

I recognize that
Nur
and
Appulonappa
are different
    in that
Nur
involved a s. 12 challenge to mandatory minimum
    legislation, while
Appulonappa
involved a s. 7 overbreadth challenge
    to an offence provision in the
Criminal Code
. This appeal raises a unique
    s. 12 challenge to permissive legislation which authorizes but does not mandate
    prolonged administrative segregation.

[110]

Nevertheless, I find the guidance from the Supreme Court in
Nur
and
    particularly in
Appulonappa
apposite. As the Supreme Court stated in
Appulonappa,
at para. 74:

Ministerial
    discretion, whether conscientiously exercised or not, does not negate the fact
    that s. 117(1) criminalizes conduct beyond Parliaments object, and that people
    whom Parliament did not intend to prosecute are therefore at risk of prosecution,
    conviction and imprisonment.
So long as the provision is on the
    books, and so long as it is not impossible that the Attorney General could
    consent to prosecute
,
a person who assists a
    family member or who provides mutual or humanitarian assistance to an
    asylum-seeker entering

Canada faces a
    possibility of imprisonment. [Emphasis added.]

[111]

On appeal, the AGC points to additional legislative safeguards besides
    s. 87(a) that it says are sufficient to render the Act constitutional. For
    instance, s. 31(2) requires the institutional head to release an inmate from
    segregation at the earliest appropriate time. Section 31(3) states that
    administrative segregation can only be used if there is no reasonable
    alternative. Section 69 of the Act expressly prohibits the use of cruel,
    inhumane or degrading treatment or punishment. These provisions, the AGC
    submits, guard against the risk of grossly disproportionate treatment if
    properly applied by the institutional head. The Act is therefore capable of
    constitutional compliance.

[112]

I disagree.

[113]

I accept that ss. 31(2) and 31(3) offer meaningful guidance to the
    institutional head when making segregation decisions. Yet it is not impossible for
    the institutional head to apply ss. 31(2) and 31(3) and conclude that the
    earliest appropriate time to release an inmate who was administratively segregated
    as a last resort is after 15 consecutive days. These provisions therefore do
    not avoid the risk of grossly disproportionate treatment.

[114]

Section 69 is declaratory in nature. It bars cruel, inhumane and
    degrading treatment but does not set a standard for what would constitute such
    treatment. The provision is not a safeguard against grossly disproportionate
    treatment.

[115]

Even when conscientiously applied by the institutional head, ss.
    31(2), 31(3) and 69 do not preclude the possibility of prolonged administrative
    segregation.

I conclude that the legislative safeguards are inadequate
    to render the Act constitutional.

(v)


Sections 31-37 of the Act infringe s. 12

[116]

As I have mentioned, the application judge considered
Little Sisters Book and Art Emporium v. Canada (Minister of
Justice)
and
    concluded that any problems with the scheme of administrative segregation were
    the results of maladministration, not unconstitutionality of the legislation.
    At para. 26, the application judge concluded:

Individual cases of
    maladministration where Correctional Service of Canada personnel contravene
    Correctional Service of Canada policies and in so doing violate an inmates
Charter
rights do not prove that the
Corrections and
    Conditional Release Act
is incapable of constitutional
    administration.

[117]

I disagree that this is a case of maladministration. In my view,
    this is not a
Little
    Sisters
situation.

[118]

The court in
Little Sisters
found that discrimination suffered by the appellants was not the
    result of an unconstitutional statute and that the statutory provisions, on
    their face, did not infringe s. 15. The problem in
Little
    Sisters
was the manner in which the provisions
    were enforced. There, the Supreme Court of Canada concluded that the appellants
    s. 15 rights had been breached because of how the statute was administered but
    found that the statute was itself valid.

[119]

Such is not the case here. Prolonged administrative segregation subjects
    inmates to grossly disproportionate treatment. As I have explained, ss. 31-37
    of the Act authorize and do not safeguard against such treatment. Thus, the Act
    infringes s. 12.

Issue 2: Is the infringement
    justified under s. 1?

[120]

Section 1 of the
Charter
states:

The
Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it subject only to such
    reasonable limits prescribed by law as can be demonstrably justified in a free
    and democratic society.

[121]

The AGC submits that any
Charter
infringement occasioned by the impugned provisions is justified
    under s. 1 by addressing the factors outlined in
R. v. Oakes,
[1986] 1
    S.C.R. 103.

[122]

The objective of administrative segregation is put forth by the AGC
    as follows:

to ensure the
    safety of persons in and the security of the penitentiary by exceptional
    recourse to removing an inmate from the general population when there are no
    reasonable alternatives and to do so for the shortest time possible to achieve
    the statutory ends.

[123]

The AGC submits that administrative segregation is a rational way to
    prevent potential death, injury, or jeopardy to security. The statutory
    safeguards relating to the admission to and release from administrative
    segregation ensure that any
Charter
infringement is minimal. The AGC submits that alternatives such as
    Close Supervision Centres, suggested by the CCLAs expert Professor Coyle,
    and the Scottish Model, are not more appropriate or less harmful means of
    achieving the legislative goals. In terms of proportionality, it is submitted
    that saving lives and ensuring safety and security outweigh the potential and
    uncertain deleterious effects on the rights of inmates placed in administrative
    segregation.

[124]

I leave for another day the threshold issue of whether  in the
    context of current moral norms  s.1 is
ever
available to justify a s. 12 breach. As Peter Hogg observes in
Constitutional
    Law of Canada,
5th ed., Vol. 2 (Toronto: Carswell, 2007), at pp. 158-159:

It may simply be the failure of my
    imagination, but I find it difficult to accept that the right not to be
    subjected to any cruel and unusual treatment or punishment could ever be
    justifiably limited. This may be an absolute right. Perhaps it is the only one.

[125]

I am aware that recently the Supreme Court has said that, while
    rare, s. 1 may justify a breach under s. 7: see
R. v. Bedford,
2013 SCC
    72, [2013] 3 S.C.R. 1101, at para. 144. No cases are put forward where s. 1
    justifies a s.12 breach.

[126]

In
    any event, here t
he AGC has not met its onus to justify
    prolonged administrative segregation. The submissions of the AGC speak
    generally to the need for prison staff to respond quickly to a dynamic and
    dangerous situation. However, the provisions in the Act which authorize
    prolonged segregation beyond 15 consecutive days do not minimally impair
    the s. 12 rights of inmates. On the contrary. They expose the inmates to the
    risk of severe and potentially permanent psychological harm. Consequently, the infringement
    is not justified under s. 1.

Issue 3: What is the appropriate remedy?

[127]

The CCLA submits that a s. 52(1) remedy is available if the
    provisions in the Act authorizing prolonged administrative segregation are
    found to infringe s. 12.

[128]

Section 52(1) of the
Constitution Act, 1982
provides:

The Constitution of
    Canada is the supreme law of Canada, and any law that is inconsistent with the
    provisions of the Constitution is, to the extent of the inconsistency, of no
    force or effect.

[129]

Having found that ss. 31-37 of the Act infringe s. 12 and the
    infringement cannot be justified under s. 1, I conclude that the appropriate remedy
    lies under s. 52(1). There is no need to consider the CCLAs alternative
    argument for relief under s. 24(1).

[130]

Pursuant to s. 52(1), I would declare ss. 31-37 of the Act to be of
    no force and effect to the extent that they authorize prolonged administrative
    segregation.

Issue
    4: Is s. 11(h) violated?

[131]

Section 11(h) of the
Charter
provides:

Any person charged with an offence has the right...

(h) if finally acquitted
    of the offence, not to be tried for it again and, if finally found guilty and
    punished for the offence, not to be tried or punished for it again.

[132]

The CCLA submits that s. 31(3) violates
s.
    11(h) of the
Charter

for
    inmates in need of protection because
administrative
    segregation
constitutes
    further punishment.

[133]

This section permits the institutional head to place an inmate in administrative
    segregation where allowing the inmate to associate with other inmates would
    jeopardize the inmates safety:

31(3)  The institutional head may
    order that an inmate be confined in administrative segregation if the
    institutional head is satisfied that there is no reasonable alternative to
    administrative segregation and he or she believes on reasonable grounds that

(a)
the inmate has acted, has attempted to act or intends to act in a
    manner that jeopardizes the security of the penitentiary or the safety of any
    person and
allowing the inmate to associate with
    other inmates would jeopardize
the security of the penitentiary
    or
the safety of any person
; [Emphasis added.]

[134]

It was argued below that s. 31(3) violates s. 11(h) because it can
    be used to segregate and thereby punish inmates who have done nothing to
    threaten the safety of the institution or any other person  such as in the
    case of inmates who identify as LGBTQ and are voluntarily or involuntarily
    being placed in administrative segregation for their own protection. In those
    circumstances, the nature of the inmates incarceration is changed and a
    harsher sanction is imposed than what was contemplated at the time of sentencing.

[135]

The application judge rejected these arguments and concluded that s.
    11(h) did not apply because administrative segregation for the purposes of
    protecting an inmate: (1) did not prolong the duration of an inmates sentence;
    (2) did not retrospectively frustrate an inmates reasonable expectation of
    liberty; (3) was not a sanction under the
Criminal
    Code
and did not arise from a criminal proceeding;
    (4) was reasonably foreseeable at the time of sentencing for those such as
    informants, Crown witnesses, and others who are incompatible with other
    inmates; and (5) was not imposed for the purpose or principles of sentencing.

[136]

The CCLA submits that for prisoners who have done nothing wrong and are
    segregated for their own protection, administrative segregation, which is harsh
    and punitive, constitutes an additional punishment for purposes of s. 11(h).
    Indefinite segregation fundamentally changes the nature of incarceration beyond
    that imposed at sentencing. Inmates cannot be taken to have expected to be segregated
    in a manner that is offside responsible medical opinion and carries a real
    risk of harm. A non-disciplinary prison proceeding can be punitive for the
    purposes of s. 11(h).

[137]

The CCLA relies primarily on
Whaling
    v. Canada (Attorney General)
,
2014 SCC 20, [2014] 1 S.C.R. 392, in arguing that s. 31(3) violates
    the prohibition against imposing punishment again. In
Whaling
, the court revisited the
    Supreme Courts prior evolving jurisprudence on s. 11(h), including:
R. v.
    Rodgers
, 2006 SCC 15, [2006] 1 S.C.R. 554;
R. v. Wigglesworth
,
    [1987] 2 S.C.R. 541;
R. v. Shubley
, [1990] 1 S.C.R. 3.

[138]

In
Whaling
,
    what was at issue was
the retrospective application of
    the repeal of the accelerated parole review, or APR. The court stated that the
    dominant consideration in each case will  be the extent to which an offenders
    settled expectation of liberty has been thwarted by retrospective legislative
    action: at para. 60. The court concluded that there was a violation of s.
    11(h). The effect of repealing APR retrospectively was to delay the applicants
    eligibility for early day parole even though APR was in effect when they were
    convicted.

[139]

According to
Whaling
, s. 11(h) may be engaged even where there is no second proceeding
    but where a person is punished again. As
Whaling
indicates, the scope of punishment in the context of s. 11(h) has
    expanded over the years.

[140]

Under
Rodgers,
the consequence will constitute a punishment when it forms part of
    the arsenal of sanctions to which an accused may be liable in respect of a
    particular offence and the sanction is imposed in furtherance of the purpose
    and principles of sentencing: at para. 63. Here, the additional punishment is
    said to be a change in the conditions of imprisonment for the purpose of
    protecting the inmates safety and not for the purpose or principles of
    sentencing.

[141]

In
Whaling
,
    Wagner J. noted that the problem with the
Rodgers
test is that it does not assist in identifying situations in which,
    from a functional rather than a formalistic perspective, the harshness of the
    punishment has been increased: at para. 42. He also noted that [g]enerally
    speaking, offenders have constitutionally protected expectations as to the
    duration, but not the condition, of their sentences: at para. 57.

[142]

Whaling
expressly deals with
    retrospective legislative changes to the parole system. Here, there is no
    change to the system of administrative segregation under the Act that results
    in changes to the length of an inmates incarceration. Assuming that the
    offenders settled expectation of liberty is relevant even where there is no
    retrospective legislative action, the application judge found that there was no
    frustration of an inmates reasonable expectation of liberty.

[143]

As I see no error in the application judges analysis with respect
    to s. 11(h), I would dismiss the CCLAs claim on this issue.

Issue 5: Is s. 7 violated?

[144]

Section 7 of the
Charter
provides:

Everyone has the right
    to life, liberty and security of the person and the right not to be deprived
    thereof except in accordance with the principles of fundamental justice.

[145]

The CCLA submits that, if the provisions of the Act authorizing
    administrative segregation of inmates aged 18-21 and inmates with mental
    illness are found not to infringe s. 12, they nonetheless infringe s. 7 on the
    basis of gross disproportionality and overbreadth. I will deal with each
    argument in turn.

[146]

The CCLA advanced a s. 7 argument based on gross disproportionality before
    the application judge. In dismissing it summarily, the application judge held
    that s. 7 cannot find a treatment or punishment disproportionate where it
    passes the test under section 12: at para. 267. The application judge relied
    on
R. v. Malmo-Levine
, where the Supreme Court considered this issue
    at para. 160:

Is there then a principle of
    fundamental justice embedded in s. 7 that would give rise to a constitutional
    remedy against a punishment that does not infringe s. 12?  We do not think so.
    To find that gross and excessive disproportionality of punishment is required
    under s. 12 but a lesser degree of proportionality suffices under s. 7 would
    render incoherent the scheme of interconnected legal rights set out in ss. 7
    to 14 of the Charter by attributing contradictory standards to ss. 12 and 7 in
    relation to the same subject matter. Such a result, in our view, would be
    unacceptable.

[147]


I agree with the application judge that
Malmo-Levine
is
    dispositive of this issue. Though the analysis under s. 7 and s. 12 is
    different, the standard of gross disproportionality is the same. The CCLAs s.
    7 argument therefore cannot succeed where it has failed on s. 12.

[148]

The second argument advanced by the CCLA under s. 7 is that the
    provisions authorizing administrative segregation are contrary to the
    principles of fundamental justice because they are overbroad. As the AGC points
    out, this argument was not advanced before the application judge. As a general
    rule, this court will decline to decide new issues on appeal. In
R. v. Roach
, 2009 ONCA 156, 246 O.A.C.
    96, Doherty J.A. stated at para. 6:

Generally
    speaking, appeal courts will not entertain arguments not made at trial. That
    general rule applies to constitutional arguments raised for the first time on
    appeal regardless of whether the arguments invoke the remedial powers of s. 24
    of the
Charter
or the nullifying power in s.
    52(1) of the
Constitution Act, 1982
.
    [Citations omitted.]

[149]

Although an appellate court has the discretion to permit new
    arguments, including
Charter
arguments, I am not satisfied that the overbreadth argument can be
    fully, effectively and fairly addressed on appeal. We do not have the benefit
    of the application judges vetting of issues and reasoned analysis, which are
    fundamental premises of the appeal process: see
Roach
,

at para.
    8.

CONCLUSION

[150]

I would allow the appeal in part and declare that administrative segregation longer than 15 consecutive days as provided for in ss. 31-37 of the
Corrections and Conditional Release Act
violates s. 12 of the
Charter
and cannot be justified under s. 1. Those provisions are of no force and effect to the extent of the violation. This declaration shall take effect 15 days from the date of the release of this judgment.

Released: March 28, 2019

GRS

M.L. Benotto J.A.

I agree G.R. Strathy
    C.J.O.

I agree L.B. Roberts
    J.A.


