



COURT OF APPEAL FOR ONTARIO

CITATION: Brazeau v. Canada (Attorney General), 2020 ONCA 184

DATE: 20200309

DOCKET:
C66844 & C67459

Sharpe, Juriansz and Trotter JJ.A.

DOCKET:
    C66844

BETWEEN

Christopher Brazeau and David Kift

Plaintiffs/Moving Parties (Respondents)

and

Attorney General of Canada

Defendant/Responding Party (Appellant)

DOCKET:
    C67459

AND BETWEEN

Jullian Jordea Reddock

Plaintiff/Moving Party (Respondent)

and

Attorney General of Canada

Defendant/Responding Party (Appellant)

Gregory
    Tzemenakis, Eric Lafreniere, Lucan Gregory, Negar Hashemi, Sean Stynes, and
    Diya Bouchedid for the appellant

James Sayce, H. Michael Rosenberg,
    Charlotte-Anne Malischewski, Charles Hatt, Jacob Klugsberg, and Nathalie Gondek
    for the respondents

Andrea Bolieiro, Hera Evans, Alexandra Clark, and
    Matthew Chung, for the intervener, the Attorney General of Ontario

Heard: January 7 and 8, 2020

On appeal from the judgments of Justice Paul M. Perell of
    the Superior Court of Justice, dated March 25, 2019, with reasons reported at
    2019 ONSC 1888, 431 C.R.R. (2d) 136, and August 29, 2019, with reasons reported
    at 2019 ONSC 5053.

Sharpe and Juriansz JJ.A.:

[1]

These appeals involve two class
    actions claiming damages for breach of
Charter
rights brought by
    inmates in federal penitentiaries who were held in administrative segregation. One
    claimed damages for systemic negligence as well.

[2]

In
Brazeau
, the
    class consists of offenders in federal custody between November 1, 1992 and the
    present who were placed in administrative segregation; were diagnosed with or
    suffered from serious mental illness, defined as an Axis I Disorder (excluding
    substance use disorders) or Borderline Personality Disorder; and were still
    alive on July 20, 2013.

[3]

In
Reddock
, the
    class is defined to consist of all offenders in federal custody who were
    involuntarily subjected to prolonged (defined as at least 15 consecutive days)
    administrative segregation between November 1, 1992 and the present, and were
    still alive on March 3, 2015. The members of the
Brazeau
class are
    excluded from the
Reddock
class.

[4]

In
Canadian Civil
    Liberties Association v. Canada (Attorney General)
,

2019 ONCA 243, 144 O.R. (3d) 641, this
    court struck down ss. 31-37 of the
Corrections and Conditional Release Act
,
    S.C. 1992, c. 20 (
CCRA
), which authorized administrative segregation
    in federal penitentiaries, on the grounds that administrative segregation
    amounts to solitary confinement and that subjecting an inmate to solitary
    confinement for longer than 15 days constitutes cruel and unusual punishment
    contrary to s. 12 of the
Charter
. The court stated, at para. 5, that
    prolonged administrative segregation [more than 15 days] causes foreseeable
    and expected harm which may be permanent, and which cannot be detected through
    monitoring until it has already occurred. The
CCRA
lacked the
    safeguards necessary to prevent inmates from remaining in segregation for more
    than 15 days and, thus, to prevent grossly disproportionate treatment: at
    paras. 113-15. In
CCLA
,

Canada
    did not appeal the finding of the application judge that the legislation
    violated s. 7 of the
Charter
because it does not provide for an
    independent review of the decision to place an inmate in administrative
    segregation: 2019 ONSC 7491, 140 O.R. (3d) 342.

[5]

The Court of Appeal for
    British Columbia in
British Columbia Civil Liberties Association v. Canada
    (Attorney General)
, 2019 BCCA 228,
377
    C.C.C. (3d) 420,
struck down ss.
    31-37 of the
CCRA
on the grounds that they violated s. 7 of the
Charter
by authorizing prolonged administrative segregation (more than 15 days) that deprives
    persons of life, liberty or security in a manner that is grossly
    disproportionate to the laws objectives, and because they did not provide for independent
    review of administrative segregation decisions.

[6]

Both decisions were
    released after
Brazeau
was decided and before
Reddock
was
    argued.

[7]

In June 2019, Bill C-83,
An
    Act to

amend the

Corrections and Conditional Release Act

and another Act
, 1st Sess., 42nd Parl., 2019, received royal assent,
    and entered into force in November 2019. That legislation replaces ss. 31-37 of
    the
CCRA
with a scheme of Structured Intervention Units (SIUs) that
    are to provide inmates with four hours a day out of their cells and at least
    two hours of meaningful human contact in place of administrative segregation,
    as well as a mechanism for independent review.

[8]

The appellant, the
    Attorney General of Canada, received leave to appeal
CCLA
and
BCCLA
to the Supreme Court of Canada: [2019] S.C.C.A. No. 96; [2019] S.C.C.A. No. 308.
    The civil liberties associations each also received leave to cross-appeal. Canada
    accepts, however, that unless and until
CCLA
is reversed by the
    Supreme Court, it is binding and that, for the purposes of these appeals,
CCLA
establishes the
Charter
breaches relied upon by the respondents.

[9]

The motion judge granted
    summary judgment in both cases, finding Canada liable in damages for breach of
    the class members
Charter
rights. In
Reddock
, the motion
    judge found that Canada was also liable for systemic negligence, although he
    awarded one set of damages to account for both the breach of
Charter
rights and negligence: at para. 486.

[10]

In both cases, the motion
    judge awarded a base level of aggregate damages and directed that a process to
    deal with additional individual claims by class members be established. In both
    cases, he assessed the aggregate damages at $20 million. In
Reddock
,
    he ordered that the aggregate damages, less approved legal fees and
    disbursements, be distributed to the class members. In
Brazeau
, he
    ordered that the aggregate damages, less approved legal fees and disbursements,
    be appropriated for additional mental health or program resources for structural
    changes to penal institutions: at para. 458. He retained supervisory
    jurisdiction over distribution of the funds to implement these structural
    changes: at para. 459.

[11]

The central issue on these
    appeals is the availability of damages for the breaches of ss. 7 and 12 of the
Charter
. In
Reddock
, there is also the issue of
    systemic negligence, and in
Brazeau
the propriety of the damage award
    to implement structural changes. Canada also raises several procedural
    objections and argues that the motion judge erred in his determination of the
    applicable limitation periods.

A.

FACTS

[12]

As
CCLA
has found
    that administrative segregation as practiced in Canadian penitentiaries violates
    s. 12 of the
Charter
, and as Canada did not appeal the Superior
    Courts finding of the s. 7 violation, our review of the facts will be brief.

[13]

When placed in
    administrative segregation, an inmate is removed from his or her cell and the
    general prison population and placed in a segregated area of the prison in a
    solitary cell with very limited access to others. This court held in
CCLA
that, as practiced in federal penitentiaries, administrative segregation
    amounts to solitary confinement, that is, isolation from meaningful human
    contact for more than 22 hours per day.

[14]

In both appeals, the
    motion judge reviewed the history of solitary confinement in Canada and other
    jurisdictions dating back to the mid-19th century. While the practice has long
    been criticized as cruel and inhumane, it is defended by Canadas correctional
    authorities as necessary to maintain institutional security, the safety of
    inmates, and to facilitate criminal or disciplinary investigations.

[15]

The conditions of
    administrative segregation are harsh. The inmate is placed in an austere small cell
    containing a toilet, a sink, a solid bed fixed to the wall covered by a thin
    mattress, sometimes a desk and sometimes a small window. The cell door has a
    food slot through which meals are delivered and which is used for communication
    with the inmate.

[16]

The motion judge made
    clear findings, amply supported by the record, by the decision of this court in
CCLA
, and by that of the Court of Appeal for British Columbia in
BCCLA
,
    that prolonged administrative segregation causes harm to the health and
    wellbeing of inmates. The motion judges factual findings in
Brazeau
may be summarized as follows, as abbreviated from para. 262 of his reasons:

·

There is no meaningful difference between administrative
    segregation and solitary confinement;

·

There is also no meaningful difference between
    administrative segregation and disciplinary segregation under the
CCRA
;

·

If anything, administrative segregation, because of
    its potential indeterminate duration, is more punishing than disciplinary segregation;

·

There is no justification for the terms and conditions
    of administrative segregation being as draconian as those of disciplinary
    segregation;

·

A placement in administrative segregation can cause
    and does cause physical and mental
harm
to inmates,
    particularly to inmates who have serious pre-existing psychiatric illness;

·

A placement in administrative segregation imposes
    severe psychological stress. For inmates who have or who develop serious mental
    illnesses, a prolonged placement may cause permanent
harm
;

·

Negative health effects from administrative
    segregation can occur within a few days in segregation and those
harms
increase as the duration of the time in
    administrative segregation increases;

·

Some of the specific
harms
of administrative segregation include anxiety, withdrawal, hypersensitivity,
    cognitive dysfunction, significant impairment of ability to communicate,
    hallucinations, delusions, loss of control, severe obsessional rituals, irritability,
    aggression, depression, rage, paranoia, panic attacks, psychosis, hopelessness,
    a sense of impending emotional breakdown, self-mutilation, and suicidal
    ideation and behaviour;

·

A placement of an inmate with a serious mental illness
    in administrative segregation is deleterious to the purpose of rehabilitating
    the inmate and returning him or her to the society outside the penitentiary.
    Prolonged administrative segregation may impair the inmates capacity to return
    to society as a law-abiding citizen;

·

Factors affecting the extent to which a placement in
    administrative segregation causes psychiatric
harm
include whether the inmate volunteered for the placement or whether the
    placement was involuntary;

·

Where the placement in solitary confinement is involuntary,
    it has substantial and adverse effects on the mental health of the inmate that
    may develop within a matter of days and likely will have substantial and
    adverse effects on mental health if the confinement is prolonged beyond 30 days;

·

Where the placement in solitary confinement is
    voluntary, the placement can and likely will have substantial and adverse
    effects on mental health if the confinement is prolonged beyond 60 days. In
    some inmates with mental illness, the
harm
may occur
    sooner;

·

Administrative segregation is not a therapeutic
    setting. Inmates with very serious mental illness belong in a setting where
    they can receive the treatment that they need. They cannot receive adequate
    treatment in administrative segregation as it is currently constituted;

·

Because of human resource issues of availability of
    health professionals and inadequate training of Correctional Service of Canada
    (CSC) staff, the mental health assessments of inmates with serious mental
    illness who are placed in administrative segregation is often ineffective and
    inadequate;

·

In some but not all cases, the CSC has failed to
    adequately monitor the current mental health status of an inmate in
    administrative segregation;

·

There is no justification for placing an inmate
    suffering from a serious mental illness in administrative segregation for more
    than 30 days if the placement is involuntary or for more than 60 days if the
    placement is voluntary.

[17]

Those findings were
    repeated in
Reddock
. At para. 189 of that decision, the motion judge
    stated:

I find
as
    a fact that a placement in administrative segregation for more than fifteen
    days causes serious physical and mental harm. The risk of that harm happens
    immediately upon the placement into administrative segregation and the risk is
    actualized into harm in some Class Members immediately and in the rest of the
    Class Members by no later than fifteen days
.

[18]

In our view, those
    findings were amply supported by the record. They coincide with the findings
    made in
CCLA
and
BCCLA
and, in any event, attract deference
    on appeal.

B.

THE
    LEGISLATION

[19]

In
CCLA
, at
    paras. 7-18, this court provided the following helpful outline of ss. 31-37 of
    the
CCRA
, which deal with administrative segregation, and other
    relevant provisions.

[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).

[Section 4 of the
CCRA
was amended
    in mid-2019 to add two additional principles which remain in force today and
    concern alternatives to custody in a penitentiary and the effective delivery of
    programs to offenders with a view to promoting rehabilitation: see ss.
    4(c.1)-(c.2).]

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.

[20]

Prior to the introduction
    of the new SIU regime in late 2019, the most significant Commissioners
    Directive in the administrative segregation context was CD-709, which set out
    guidelines for administrative segregation. Various sections of the
Corrections
    and Conditional Release Regulations
also dealt with the segregation
    regime: see SOR/92-620, ss. 19-23, as they appeared before November 30, 2019.

C.

ISSUES

[21]

Canada raises the
    following issues on these appeals:

1.

Did the motion judge err by
    deciding these appeals by way of summary judgment (both appeals)?

2.

Did the motion judge err by
    altering the class definition (
Reddock
)?

3.

Did the motion judge err with
    respect to the appropriate limitation period (both appeals)?

4.

Did the motion judge err by
    awarding
Charter
damages (both appeals)?

5.

Did the motion judge err by directing
    that damages be used to implement structural changes (
Brazeau
)?

6.

Did the motion judge err by
    finding Canada liable for damages for systemic negligence (
Reddock
)?

7.

Did the motion judge err by ruling
    on causation in the systemic negligence claim (
Reddock
)?

D.

ANALYSIS

(1)

Summary Judgment

[22]

In
Brazeau
, at
    paras. 270-82, and in
Reddock
, at paras. 200-9, the motion judge
    rejected Canadas argument that the cases should be decided after a trial
    rather than by way of summary judgment. Applying the language of r. 20 of the
Rules
    of Civil Procedure
, he was satisfied that there is no genuine issue
    requiring a trial with respect to a claim or defence. To the extent there were
    facts in dispute, he relied on the fact-finding powers conferred by r. 20.04(2.1),
    as interpreted in
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87.

[23]

Canada submits that the
    trial judge erred in both cases by proceeding to decision by way of summary
    judgment rather than ordering a trial.

[24]

We do not accept that
    submission.

[25]

The motion judge found
    that Canadas own witnesses provided ample support for his findings about how
    CSC manages and operates administrative segregation:
Brazeau
,

at
    para. 279. He also noted that any remaining issues of credibility in relation
    to individual claims could be determined at subsequent individual issues trials:
Brazeau
, at para. 279.

[26]

In
Reddock
, the
    motion judge concluded that summary judgment was even more appropriate than
    in
Brazeau
because of this courts decision in
CCLA
: at para.
    202. Moreover,
CCLA
had been decided on a paper record and there was
    no reason or need for a trial when the same issues arose in the class
    proceeding: at para. 203.

[27]

We see no error on the
    part of the motion judge. His ruling that the case was appropriate for summary
    judgment is well supported on this record and is entitled to deference on
    appeal. There was no serious dispute as to the essential facts of how
    administrative segregation was used in Canadas penitentiaries. Canada did not
    cross-examine the class witnesses on their experience with administrative
    segregation. The motion judge gave compelling reasons for rejecting the
    evidence of one of Canadas main experts in
Brazeau
, at paras. 177-84,
    and Canada withdrew that evidence in
Reddock
, at para. 45. The motion
    judges ruling is in line with the post-
Hyrniak
approach to summary
    judgment.

[28]

Accordingly, we would not
    give effect to this ground of appeal.

(2)

Class Definition in
Reddock

[29]

We do not accept Canadas
    contention that the motion judge amended the definition of the certified class
    in
Reddock
without notice to Canada. The motion judge, after observing
    that this courts decision in
CCLA
applied with equal force to both
    voluntary and involuntary placements in administrative segregation, decided
    that all placements should be treated as involuntary. In doing so, he did not
    amend the class definition but found that no confinement in administrative
    segregation was actually voluntary:
Reddock
, at para. 273. That
    finding was open to him on the record.

(3)

Limitation Period

[30]

In both cases, the
    motion judge found that the federal six-year limitation set by s. 32 of
    the
Crown Liability and Proceedings Act
, R.S.C. 1985, c. C-50,
    applies to the class members claim for damages under s. 24 of the
Charter
,
    and to the systemic negligence claim in
Reddock
as well:
Brazeau
,
    at paras. 381-87;
Reddock
, at paras. 227-35.

[31]

Section 32 provides:

Except as otherwise
    provided in this Act or in any other Act of Parliament, the laws relating to
    prescription and the limitation of actions in force in a province between
    subject and subject apply to any proceedings by or against the Crown in respect
    of any cause of action arising in that province, and proceedings by or against
    the Crown in respect of a cause of action arising otherwise than in a province
    shall be taken within six years after the cause of action arose.

[32]

We agree with the motion
    judge that the six-year federal limitation period applies to these claims. The
    claims for
Charter
damages in both cases are with respect to the
    adoption and maintenance of a federal regulatory policy regime regarding
    administrative segregation that applied in all provinces. In this sense, the
    claims for
Charter
damages arise otherwise than in a province: see
Markevich
    v. Canada
, 2003 SCC 9, [2003] 1 S.C.R. 94
.
As found by the motion
    judge, the start date for claims in
Brazeau
is July 20, 2009, and in
Reddock
,
    it is March 3, 2011.

[33]

We do not, however, agree
    with how the motion judge dealt with the potential tolling of the limitation
    period for particular individuals. At para. 386 of
Brazeau
, the motion
    judge said it was open to individual claimants to rebut the running of the
    six-year limitation period in accordance with the laws relating to prescription
    and the limitation of actions in force in a province. If the federal
    limitation period applies, we do not understand how the tolling of that
    limitation period could be determined by provincial law. The
Charter
claims in both cases are governed by the federal limitation period and the
    jurisprudence relating to the tolling of that limitation period: see e.g.,
Doig
    v. Canada (Minister of National Revenue)
, 2011 FC 371,
387 F.T.R. 156.

[34]

Given our conclusion,
    below, that the systemic negligence claim in
Reddock
fails, it is
    unnecessary to address the arguments about the limitation period that would
    have applied to that claim. The limitation period applicable to individual
    claims of negligence remains to be determined on the basis of the particular
    facts of the inmates incarceration and the specific acts of negligence
    alleged.

(4)

Charter
Damages

[35]

The leading case on
Charter
damages is
Vancouver (City) v. Ward
, 2010 SCC 27, [2010] 2 S.C.R. 28. The plaintiff was strip searched
    following a public demonstration after he was wrongly identified as an
    individual the police suspected of planning to commit an assault. The Supreme
    Court upheld an award of $5,000 damages for breach of his s. 8 right to be free
    from unreasonable search and seizure.

[36]

Writing for a unanimous
    court, McLachlin C.J.C. held that damages may be an appropriate and just remedy
    under s. 24(1). At para. 20, she adopted and applied the general principles
    identified in
Doucet‑Boudreau v. Nova Scotia (Minister of Education)
,
    2003 SCC 62, [2003] 3 S.C.R. 3, at paras. 55-58, and held that an
    appropriate and just remedy is one that will:

(1) meaningfully vindicate the rights and freedoms of the
    claimants; (2) employ means that are legitimate within the framework of our
    constitutional democracy; (3) be a judicial remedy which vindicates the right
    while invoking the function and powers of a court; and (4) be fair to the party
    against whom the order is made.

[37]

She stated that damages
    may meaningfully vindicate the claimants rights and freedoms and are a
    means well-recognized within our legal framework  [and] appropriate to the
    function and powers of a court: at para. 21. Finally, depending upon the
circumstances, the damages can be
fair not only to the
    claimant whose rights were breached, but to the state which is required to pay
    them: at para. 21.

[38]

The Chief Justice went on to
    establish a four-part test to determine whether damages are an appropriate and
    just remedy:

1.

Has a
Charter
right
    been breached?

2.

Would damages fulfill one
    or more of the related functions of compensation, vindication of the right,
    and/or deterrence of future breaches?

3.

Has the state demonstrated
    countervailing factors that defeat the functional considerations that support a
    damage award and render damages inappropriate or unjust?

4.

What is the appropriate quantum of damages?

[39]

Before us, little issue
    was taken with the motion judges findings that
Charter
rights have
    been breached in each case. Those findings are supported by the evidence and by
    this courts and the application judges decisions in
CCLA
. Nor is
    issue taken that damages would fulfill one or more of the related functions of
    compensation, vindication of the right, and deterrence of future breaches. The
    disagreement focuses on the third stage.

[40]

At the third stage, the
    evidentiary burden shifts to the state to attempt to demonstrate that a damage
    award would be inappropriate or unjust. While the Chief Justice, at para. 33,
    says there is no complete catalogue of countervailing considerations, she
    discusses two: the availability of alternative remedies and concerns for good
    governance. We address each of these in turn.

(a)

Alternative Remedies

[41]

In
Reddock,
in
    addition to granting
Charter
damages, the motion judge granted base
    level damages for systemic negligence and provided that class members claims
    for additional damages for breach of
Charter
rights or negligence  would
    proceed by individual issues trials: at para. 477.

[42]

Canada argues that the
    motion judge erred by granting
Charter
damages despite the alternative
    tort remedy in negligence. We explain later in these reasons that the motion
    judge erred in finding systemic negligence. However, each class members
    individual claim in negligence must also be considered as a potential
    alternative remedy.

[43]

We are not persuaded that
    the mere existence or possibility of a tort claim precluded the motion judge
    from awarding
Charter
damages.
Ward
does not establish a firm
    rule that a court should not award
Charter
damages simply because
    there is a possible private law claim for the same damages. The concern
    expressed with respect to alternative remedies is the need to avoid duplication
    and double recovery.
Ward
contemplates
    concurrent claims for private law and
Charter
damages, provided an
    award of
Charter
damages is not duplicative: at para. 35. If there
    is another avenue to damages, a
further
award of
    damages under s. 24(1) would serve no function and would not be appropriate
    and just (emphasis added): at para. 34. Nor does
Ward
create a
    hierarchy of remedies with
Charter
remedies coming last. A claimant is
    not required to show that she has exhausted all other recourses: at para. 35.
    The evidentiary burden is the reverse. It is for the state to show that other
    remedies are available in the particular case that will sufficiently address
    the breach: at para. 35.

[44]

The state can only
    complain if the award of
Charter
damages duplicates the available
    private law damages. Double recovery will not occur in this case. The motion
    judge made it clear, at para. 486 of
Reddock
that the damages he
    awarded were for both the
Charter
breach and for systemic negligence,
    and he ordered that Class Members must credit the amount of their
    participation in the Aggregate Award against any subsequent award of damages.

[45]

The other possible
    alternative remedy is the declaration granted in both cases that the class
    members
Charter
rights were violated. In our view, the availability
    of a declaration should not displace damages in these cases. A declaration
    would fail to satisfy the need for compensation or provide meaningful deterrence
    of future breaches of the
Charter
right.

(b)

Concerns for Good Governance

[46]

The second countervailing
    consideration that makes a damage award inappropriate and unjust, which the
    Chief Justice discussed in
Ward
, was concerns for good governance.
    Canada, supported by the Attorney General of Ontario, argues that
Mackin v.
    New Brunswick (Minister of Finance); Rice v. New Brunswick
, 2002 SCC 13,
    [2002] 1 S.C.R. 405, provides an example of the principle that applies.

[47]

In
Mackin
, the
    plaintiffs, two provincial court judges, complained that a statute removing their
    status as supernumerary judges violated the constitutional principle of
    judicial independence enshrined in s. 11(d) of the
Charter
. The
    Supreme Court agreed that the statute had to be struck down but refused to
    award the plaintiffs the damages they claimed for the loss they suffered by
    virtue of the statute. There is, said the court, a limited immunity that protects
    government against actions in civil liability based on the fact that a
    legislative instrument is invalid:
Mackin
, at
para.
    78.

[48]

Ward
,

at paras. 39-40, explains the rationale for this limited immunity:

The rule of law would be undermined if governments
    were deterred from enforcing the law by the possibility of future damage awards
    in the event the law was, at some future date, to be declared invalid. Thus,
    absent threshold misconduct, an action for damages under
s. 24(1)
of the
Charter

cannot be combined
    with an action for invalidity based on
s. 52
of the
Constitution
    Act, 1982
:
Mackin
, at para. 81.

The
Mackin
principle recognizes that the state must be afforded some immunity from
    liability in damages resulting from the conduct of certain functions that only
    the state can perform. Legislative and policy-making functions are one such
    area of state activity. The immunity is justified because the law does not wish
    to chill the exercise of policy-making discretion. As Gonthier J. explained [in
Mackin
, at para. 79]:

The limited
    immunity given to government is specifically a means of creating a balance
    between the protection of constitutional rights and the need for effective
    government.

[49]

The Chief Justice added,
    at para. 42 of
Ward
, that
Mackin
was not exhaustive and that
    other situations might arise where the state might seek to show that
s. 24(1)
damages would deter state agents from doing
    what is required for effective governance.

[50]

The Chief Justice held
    that the
Mackin
principle did not apply in
Ward
as the case
    did not concern action taken pursuant to a valid statute that had subsequently
    been struck down as invalid:
Ward
, at para. 41.

[51]

Canada submits that by
    striking down the administrative segregation provisions of the
CCRA
in
CCLA
, this court determined that government has immunity from the
    class claims advanced here under the
Mackin
principle. We do not agree.
    The applicant in
CCLA
was a public interest litigant with no standing
    to claim damages under s. 24(1) and the issue of damages was not before the
    court.

[52]

Even if
CCLA
is
    not determinative, Canada argues the
Mackin
principle applies because
    the source of the breaches of both ss. 7 and 12 of the
Charter
is the
    Act.

[53]

The respondents seek to
    distinguish the s. 12 breaches in the cases before us from
Mackin
by pointing
    out that in
Mackin
, it was the statute and nothing else that deprived
    the plaintiff of the income and status he would otherwise have enjoyed. Here, the
    respondents submit, the
CCRA
did not require the correctional
    authorities to act in a certain way but rather left it to them to determine when
    to resort to administrative segregation. The respondents identify provisions of
    the
CCRA
that appear to safeguard against the routine use of prolonged
    administrative segregation.

[54]

The court in
CCLA
noted these safeguards, at paras. 111-114, but went on to observe they did not preclude
    the possibility of prolonged administrative segregation even when conscientiously
    applied.

The constitutional infirmity found in
CCLA
was
    that ss. 31-37 of the Act
authorize and do not safeguard
    against
 (emphasis added) treatment that offends s. 12 of the
Charter
:
at para. 119. The s. 12
Charter
breach was in part a product of the legislation but, at least in part, it was a
    product of the practices and policies adopted by the correctional authorities.

[55]

While that is so, it does
    not exclude consideration of the good governance concern as a possible
    limitation on the liability of the state for
Charter
damages.
Mackin,
at para. 78 refers not
    only to
harm suffered as a
    result of the mere enactment of a law that is subsequently declared to be
    unconstitutional, but also to its application.

Moreover,
    we agree with the submissions of Ontario and the respondents that
Mackin
considerations have been subsumed in the third step of the
Ward
test
    for
Charter
damages.

[56]

We accept that at the
    third stage of the
Ward
test, the more general good governance concern
    does come into play in both
Brazeau
and
Reddock
. These are
    class-wide claims that do not rest upon proof of individual or specific acts of
    maladministration. They challenge the regulatory scheme and the systemic
    practices and policies adopted by the correctional authorities in the
    application of the
CCRA
. This court held in
CCLA
, at paras.
    116-18, that the constitutional infirmity in ss. 31-37 of the
CCRA
was
    not the maladministration of the legislative scheme but rather the systematic
    way administrative segregation was used by the correctional authorities and the
    failure of the
CCRA
to safeguard against such treatment.

[57]

The correctional
    authorities adopted practices and policies under the umbrella of ss. 31-37 of
    the
CCRA
regarding the propriety and use of administrative segregation
    in the administration of federal penitentiaries. That regime was plainly
    premised on the routine use of long-term administrative segregation as a way of
    maintaining peace and safety in federal penitentiaries.

[58]

This can be inferred from
    the extraordinary number of placements of inmates in administrative segregation
    for lengthy periods: almost 22,000 placements from 2011 to 2019, averaging 59
    days:
Reddock
, at para. 34. It can also be inferred from the
    regulatory requirements for reviews of long-term placements in administrative
    segregation lasting longer than 60 days. The
Corrections and Conditional
    Release Regulations
, SOR/92-620, as they read under the administrative
    segregation regime, required the Segregation Review Board to conduct a review
    within five working days of an inmates placement into segregation and at
    least once every 30 days thereafter that the inmate remains in administrative
    segregation: s. 21(2). Commissioners Directive 709 establishes the National
    Long-Term Segregation Review Committee to review the case of every inmate who
    reaches 60 days in administrative segregation and at least every 30 days
    thereafter: s. 68.
These reviews presume the regular use
    of lengthy, indeterminate
periods in administrative segregation.

[59]

When a regulatory regime
    is challenged, the state is entitled to assert that concerns for good
    governance immunity must be considered. The regulatory regime is the sort of
    policy choice for which, in the words of
Ward
, the state might seek
    to show that
s. 24(1)
damages would deter state agents from doing
    what is required for effective
governance: at para. 42.


[60]

Considering the damages
    that flow from the breach of s. 7 of the
Charter
leads to this conclusion more directly. That is because the s. 7 breach for
    the lack of independent review of administrative segregation decisions, as
    found by the application judge in
CCLA
and not appealed
    to this court, is premised directly on the provisions of the statute. It is not
    possible to disentangle the damages that flow from the s. 7 breach from those
    that flow from the s. 12 breach. An independent review, had one existed, might
    have lessened the resort to and duration of administrative segregation, thus
    reducing the damages attributed to the s. 12 breach.

[61]

We are satisfied that the good
    governance concern arises for the
Charter
breaches in these cases.

(c)

Appropriate
Fault
    Threshold

[62]

This brings us to what
    appears to be the real issue at the third stage of the inquiry. It is the issue
    that lies at the heart of this case.
Ward
states, at para. 39, that
    where an award of
Charter
damages would interfere with good governance,
    damages should not be awarded unless the state conduct meets a minimum
    threshold of gravity. The issue is whether the imposition of administrative
    segregation meets the minimum threshold of gravity.

[63]

Care must be taken at
    stage three of
Ward
not to simply repeat the analysis that led to the
    finding of a
Charter
breach. The imposition of administrative
    segregation that exceeded the stipulated time caps in both cases has to be
    found not only to breach ss. 7 and 12 of the
Charter
, but also to be sufficiently
    wrong to warrant
Charter
damages. The question at stage three of
Ward
is whether the state is sufficiently at fault to warrant lifting its
prima
    facie
good governance immunity.

[64]

The plaintiff in
Mackin
was not entitled to damages merely because the enactment of [the impugned law]
    was unconstitutional: at para. 82. The court in
Mackin
used various
    terms to describe the fault threshold required to trigger liability. At one point,
    the court referred to the general public law principle that in such cases,
    there is no liability unless the enactment of the law was clearly wrong, in
    bad faith or an abuse of power: at para. 78. The court also said the
    government and its representatives will not be liable if they act in good
    faith and without abusing their power under prevailing law and only
    subsequently are their acts found to be unconstitutional: at para. 79. At
    three other points in the judgment, the court refers to negligence: at para.
    82 (negligently, in bad faith or by abusing its powers and negligence, bad
    faith or wilful blindness) and at para. 83 (a negligent or unreasonable
    attitude on the part of government).

[65]

The earlier decision in
Guimond
    v. Quebec (Attorney General)
,

[1996] 3 S.C.R. 347, at para. 17, cites
    similar language: no cause of action exists for the conduct of [government
    actors] when acting within the authority of the legislation in the absence of
    any allegation of wrongful conduct, bad faith, negligence or collateral purpose.
    Subsequent cases have similarly included negligence as an appropriate fault
    threshold. One such case is
Wynberg v. Ontario
(2006), 82 O.R. (3d) 561 (C.A.), leave to appeal refused, [2006] S.C.C.A. No.
    441, in which this court held, at para. 202, that [a]bsent bad faith, abuse of
    power,
negligence
or
    wilful blindness in respect of its constitutional obligations, damages are not
    available as a remedy in conjunction with a declaration of unconstitutionality
    (emphasis added). Another is
Sagharian v. Ontario (Education)
, 2008
    ONCA 411, 172 C.R.R. (2d) 105, leave to appeal refused, [2008] S.C.C.A. No. 350,
    which summarized
Mackin
as holding that the respondents were not
    entitled to damages merely because the enactment of the legislation at issue
    was unconstitutional, finding no evidence that the government acted
negligently
, abusively, or in bad faith (emphasis in
    original): at para. 34.

[66]

In
Ward
, the Chief Justice said that w
here good governance concerns arise, a
    minimum threshold, such as clear disregard for the claimants
Charter
rights, may be appropriate: at para. 43. However, [d]ifferent situations may
    call for different thresholds in a manner analogous to private law, ranging
    from malice for malicious prosecution to negligence for claims based on
    inadequate police investigation: at para. 43.

[67]

As we are dealing with a
    regulatory regime premised on administrative segregation of indeterminate
    duration rather than legislation requiring that result, we consider it
    appropriate to apply the minimum threshold of fault described in
Ward,
namely, a clear disregard for the claimants
Charter
rights: at
    para. 43.

[68]

Canada submits that fault
    cannot be found with the maintenance of the administrative segregation
    regulatory regime because the legal characterization of administrative segregation
    as a form of solitary confinement and cruel and unusual punishment has only
    recently evolved. While the use of solitary confinement as a means of
    maintaining security in prisons has been debated for some time, Canada argues
    that it could not have known that administrative segregation violates s. 12 of
    the
Charter
until this courts decision in
CCLA
.

[69]

In submitting that the
    motion judge erred, Canada poses a rhetorical question with considerable force:
    if available research made it evident that administrative segregation for more
    than 15 days was clearly wrong, why was it not evident to the motion judge
    himself, who, on the basis of virtually identical evidence, fixed caps in
Brazeau
at 30 and 60 days for inmates with mental illness who were segregated
    involuntarily and voluntarily, respectively?

[70]

We agree with the
    submission that the 15-day cap found by the motion judge in
Reddock
is
    difficult to reconcile with the 30- and 60-day caps found in
Brazeau
.
    However, the important point is that the motion judge found in
Brazeau
that a line had to be drawn and a cap had to be imposed. The cap the motion
    judge settled on in
Brazeau
gave considerable leeway to Canada  leeway
    that, it turned out, is inconsistent with this courts judgment in
CCLA
.
    In
Reddock
, the motion judge explained that he was bound by
CCLA
on
    both the 15-day cap and the elimination of the distinction he made in
Brazeau
between voluntary and involuntary segregation:
Reddock
, at para.
    273.

[71]

As we will explain, a ban
    on the use of solitary confinement for inmates with mental illness, some form
    of cap for all inmates, and the need for independent review of segregation
    decisions have been urged since the 1990s. The move to the 15-day cap as an
    international standard was well underway by 2011 and ultimately codified in
    the
United Nations Standard Minimum Rules for the Treatment of
    Prisoners (the Nelson Mandela Rules)
, UNGAOR, 70th Sess., UN Doc.
    A/Res/70/175 (2015) (the Mandela Rules). Canada cannot avoid the finding of
    fault in
Reddock
on account of the undeniably anomalous cap fixed in
Brazeau
.

[72]

Another reason for
    rejecting Canadas plea that it should be allowed to take a gradual approach is
    the gravity of the
Charter
breach and harm caused to the class
    members. As this court recognized in
CCLA
, at para. 58, citing
Ogiamien
    v. Ontario (Community Safety and Correctional Services)
, 2017 ONCA 667, 416
    D.L.R. (4th) 124, at para. 9, there is a high threshold for establishing that
    punishment or treatment is cruel and unusual. It must be so excessive as to
    outrage standards of decency; grossly disproportionate for the offender, such
    that Canadians would find the punishment abhorrent or intolerable:
CCLA
,
    at para. 58. In the appeals presently before this court, the
Charter
breach has caused severe harm to very vulnerable people and the states conduct
    has been condemned as being cruel, excessive, abhorrent and intolerable. The
    state should be expected to be particularly vigilant to avoid inflicting such
    harm.

[73]

It is also relevant to
    note here that the lead architect of the Special Intervention Units introduced
    in 2019 agreed that these SIUs could have been deployed without statutory or
    regulatory change, the changes were already budgeted, and in any event, might
    actually save money. The motion judge found in
Reddock
, at para. 296,
    that [a]lternatives like the recently introduced SIUs were available or could
    have been developed with no significant infrastructure changes or substantial
    budget increases.

[74]

A survey of international
    and domestic sources shows that the motion judge was right to establish a cap on
    the duration of administrative segregation. The record in this case establishes
    that since the 19th century, there has been a consistent stream of medical
    opinion that incarceration in solitary confinement causes and exacerbates
    mental illness. In the 1950s, evidence was gathered of harm caused to prisoners
    of war and political prisoners subjected to sensory deprivation and social
    isolation. Stuart Grassian, a psychiatrist qualified as an expert in both
    appeals, stated in his affidavit in
Reddock
, summarizing a journal
    article filed in both appeals: the fact that solitary confinement has a
    particular, severe psychiatric toxicity was clearly known by well before the
    end of the nineteenth century, and became a source of international alarm in
    the 1950s. In
CCLA
, this court

accepted the application judges
    finding in that case that 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: at para. 98.

[75]

In international law,
    for at least 30 years, there has been a growing recognition of the need to
    eliminate use of solitary confinement for prisoners with mental illness and
    strictly limit its use for all prisoners.
Principle 7 of the
Basic Principles for the
    Treatment of Prisoners
, adopted in a 1990 resolution of the United Nations
    General Assembly, states that efforts to abolish solitary confinement as a
    punishment, or to restrict its use, should be undertaken and encouraged: G.A.
    Res. 45/111, UNGAOR, 45th Sess., UN Doc. A/RES/45/111 (1990) 199.

[76]

Various other international
    organizations have also recognized the harms of solitary confinement.
In 1994,
the Committee for the Prevention of Torture and
    Inhuman or Degrading Treatment or Punishment of the Council of Europe stated
    that [s]olitary confinement can, in certain circumstances, amount to inhuman
    and degrading treatment; in any event, all forms of solitary confinement should
    be as short as possible:
2nd General Report on the CPTs Activities
, (1992)
    CPT/Inf (92) 3,

at p. 25. While the record in
Brazeau
, unlike
    the record in
Reddock
, did not contain this report, it contained other
    Council of Europe reports from the early 2000s stating that solitary
    confinement could amount to inhuman and degrading treatment and that, in any
    event, all forms of solitary confinement should be as short as possible.
The
2007 Istanbul Statement on Use and Effects of Solitary, adopted by the
    International Psychological Trauma Symposium, noted the harm solitary
    confinement causes to all prisoners and recommended a ban on segregation of
    mentally ill inmates and that [a]s a general principle solitary confinement
    should only be used in very exceptional cases, for as short a time as possible
    and only as a last resort: at p. 4. Through expert reports, these materials
    were all before the motion judge in
Brazeau
and
Reddock
.

[77]

In 2008, the United
    Nations Special Rapporteur of the Human Rights Council on Torture and Other
    Cruel, Inhuman or Degrading Treatment or Punishment informed the General
    Assembly that the prolonged isolation of detainees may amount to cruel,
    inhuman or degrading treatment or punishment and, in certain instances, may
    amount to torture. [] In the opinion of the Special Rapporteur, the use of
    solitary confinement should be kept to a minimum, used in very exceptional
    cases, for as short a time as possible, and only as a last resort: UNGAOR,
    63rd Sess., UN Doc. A/63/175, (2008), at paras. 77 and 83.

[78]

In 2011, the UN Special
    Rapporteur reported that [n]egative health effects can occur after only a few
    days in solitary confinement, and the health risks rise with each additional
    day spent in such conditions:
Interim report of the Special Rapporteur of
    the Human Rights Council on torture and other cruel, inhuman or degrading
    treatment or punishment
, UNGAOR, 66th Sess., UN Doc. A/66/268, (2011), at
    para. 62. The Special Rapporteur concluded that at 15 days, solitary
    confinement becomes prolonged solitary confinement because the medical
    literature establishes that some of the harmful psychological effects of
    isolation can become irreversible: at para. 26. He concluded that any
    imposition of solitary confinement beyond 15 days constitutes torture or cruel,
    inhuman or degrading treatment or punishment, in contravention of various norms
    codified in the
International Covenant on Civil and Political Rights
,
    19 December 1966, 999 U.N.T.S. 171 (entered into force 23 March 1976, accession
    by Canada 19 May 1976) and in the
Convention against Torture
, 10
    December 1984, 1465 U.N.T.S. 85 (entered into force 26 June 1987, accession by
    Canada 24 June 1987): at paras. 79-81.

[79]

These international
    developments were certainly brought home to Canadas correctional authorities.
    The Office of the Correctional Investigator is created by Part III of the
CCRA
.
    The Correctional Investigators mandate is to serve as an independent ombudsman
    for federally sentenced offenders:
CCRA
, s. 167(1). The Correctional
    Investigators 2011-12 Annual Report, at p. 13, stated:

In August 2011, the UN Special
    Rapporteur of the Human Rights Council on Torture and other Cruel, Inhumane or
    Degrading Treatment or Punishment reported on the effects of or indefinite
    solitary confinement. Among other findings and recommendations, Juan E. Méndez noted:



Prolonged solitary confinement in excess of 15 days should be
    subject to an absolute prohibition, and indefinite solitary confinement should
    be abolished.



I once more recommend, in keeping
    with Canadas domestic and international human rights commitments, laws and
    norms, an absolute prohibition on the practice of placing mentally ill
    offenders and those at risk of suicide or serious self-injury in prolonged
    segregation.

[80]

In 2012, the UN Committee
    against Torture expressed concern about Canadas use of solitary confinement,
    in the forms of disciplinary and administrative segregation, often extensively
    prolonged, even for persons with mental illness:
Report of the Committee
    against Torture
, UNGAOR, 67th Sess., Supp. No. 44, UN Doc. A/67/44 (2012),
    at p. 120. The report recommended that Canada [l]imit the use of solitary
    confinement as a measure of last resort for as short a time as possible under
    strict supervision and with a possibility of judicial review and [a]bolish
    the use of solitary confinement for persons with serious or acute mental
    illness: at pp. 120-21.

[81]

In 2013, the
    Inter-American Commission on Human Rights stated that, as the prohibition on
    torture and cruel, inhuman and degrading treatment is universal, all member
    states, including Canada, must adopt concrete measures to eliminate prolonged
    or indefinite isolation in all circumstances. The Commission also affirmed that
    solitary confinement must never be applied to persons with mental disabilities.

[82]

Finally, in
2015, the United Nations General Assembly
    unanimously adopted the

Mandela Rules, imposing a 15-day limit on
    incarceration in solitary confinement for all prisoners and a complete
    prohibition on solitary confinement for mentally ill prisoners.
Canada not only voted for the Mandela Rules
    but played a role in their development:
CCLA
, at para. 29. Canada
    attended all four meetings of the Expert Group on the Standard Minimum Rules
    for the Treatment of Prisoners, which met between 2012 and 2015 to revise the
    Standard Minimum Rules and create the document now referred to as the Mandela
    Rules. While there is no record that Canada took a position supporting the
    15-day limit and prohibition of solitary confinement for mentally ill
    prisoners, participating states were invited to make submissions on best
    practices and to raise concerns with respect to any given proposal in the
    Mandela Rules. No publicly available minutes of the Expert Groups meetings
    suggest that Canada took any exception to the suggested limits on solitary
    confinement.

[83]

The attack on solitary
    confinement was not restricted to the international level. In 1996, Louise Arbours
Commission of Inquiry into Certain Events at the Prison for Women in
    Kingston
recommended a 30-day consecutive and a 60-day non-consecutive
    annual limit on solitary confinement: at p. 105. The Arbour Commission also
    recommended, at p. 105, that segregation decisions made at an institutional
    level be subject to confirmation within five days by an independent
    adjudicator.

[84]

In 2013, the Coroners
    Inquest Touching the Death of Ashley Smith recommended an absolute prohibition
    on the practice of placing female inmates in conditions of long-term
    segregation, clinical seclusion, isolation, or observation. The recommendation
    defined long-term as any period in excess of 15 days.

[85]

For many years, the
    Correctional Investigator independently reported on the harm suffered by
    inmates in solitary confinement and recommended that the use of segregation be
    restricted or eliminated. In his 2006-7 report, at p. 11, the Correctional
    Investigator decried the fact that: [a]fter years of calls for fundamental
    reforms, the Correctional Service continues to place offenders in
    administrative segregation and other restrictive environments as its main tool
    for resolving disputes and tensions in penitentiaries. He added, at p. 18:
    Too many vulnerable offenders suffering from mental illnesses are subject to
    abuse from other offenders, while many more become the subject of avoidable use
    of force interventions and extensive placements in segregation.

[86]

In our view, the record
    establishes that from the late 2000s it was widely recognized and accepted that
    placing inmates suffering from mental illness into solitary confinement caused
    them serious harm and therefore should be avoided. It was also widely
    recognized from 2011 that the prolonged solitary confinement of any inmate
    caused serious harm and should be avoided.

[87]

As we have stated, in this
    case the minimum fault threshold required to overcome the claim of good
    governance immunity is clear disregard for
Charter
rights.
Drawing on criminal law principles, we
    view the
Ward
fault standard of clear disregard for
Charter
rights as analogous to recklessness or wilful
    blindness. In
Sansregret v.
    The Queen
, [1985] 1 S.C.R.
    570, at pp. 584-85, the court defined those standards by explaining that [t]he
    culpability in recklessness is justified by consciousness of the risk and by
    proceeding in the face of it, while in wilful blindness it is justified by the
    accuseds fault in deliberately failing to inquire when he knows there is
    reason for inquiry. A clear disregard for
Charter
rights connotes
    either proceeding with a course of action in the face of a known risk that the
Charter
will be violated or by deliberately failing to inquire about the likelihood of
    a
Charter
breach when the state knows that there is a good reason to
    inquire.

[88]

In assessing Canadas
    fault in failing to respect the
Charter
rights of inmates to be free
    from cruel and unusual punishment, it is therefore important to consider the
    failure of Canadas correctional authorities to respond positively to pleas for
    limiting the use of solitary confinement, which has been frequently pointed out
    and criticized.

[89]

While a 15-day upper
    limit only gradually emerged as a firm standard in or around 2011, there was an
    earlier recognition that prolonged solitary confinement was harmful and there
    were repeated recommendations that it be eliminated or only used for as short a
    time as possible. Canada refused to accept any limit or cap. By 2011, the UN
    Special Rapporteur recommended the 15-day cap that was finally adopted by the
    General Assembly in 2015 as part of the Mandela Rules. As we have noted, Canada
    participated in the adoption of the Mandela Rules. Similarly, Canada chose to
    ignore repeated recommendations for some form of independent review of
    administrative segregation. Canada also continued to place inmates suffering
    from mental illness in administrative segregation despite repeated warnings of
    the harm that this practice caused.

[90]

The importance of
    independent review has been internally and externally flagged for the CSC for nearly
    a quarter of a century: the Arbour Commissions 1996 report, a 1997 report of a
    CSC task force on segregation, and subsequent reports of the Correctional
    Investigator in 2002-3, 2005-6, 2014-2015, 2016-17 have all either recommended
    the adoption of independent review mechanisms or identified lack of independent
    review as an area of serious concern. As long ago as 1996, the Arbour Report
    noted that [f]ailing a willingness to put segregation under judicial
    supervision, I would recommend that segregation decisions made at an
    institutional level be subject to confirmation within five days by an
    independent adjudicator: at p. 105. As recently as a suspension of invalidity
    decision last year in the
CCLA
litigation, this court lamented Canadas failure
    to implement such an independent review system: 2019 ONCA 342, 375 C.C.C. (3d)
    544, at paras. 19- 22.

[91]

The motion judge concluded
    his detailed review of Canadas refusal to make any changes to administrative
    segregations in
Brazeau
as follows, at paras. 130- 31:

For decades, the Federal Governments regime for administrative
    segregation has been criticized for the absence of a robust and timely
    adjudicative review process for placements in administrative segregation
    infused with the rule of law. The Arbour Commission of Inquiry and the Task
    Force on Administrative Segregation recommended that a placement in
    administrative segregation be reviewed within three days to determine whether
    it should be continued.

For decades, the Federal
    Governments regime for administrative segregation has been criticized for the
    failure to adequately monitor the segregated inmates current mental health
    status, with a special emphasis on the evaluation of the risk for self-harm.

[92]

Those findings are well supported
    by the record. For over 30 years, Canadas correctional authorities have
    steadfastly refused to heed warnings about the harm caused by administrative
    segregation and the need for independent review. The 1996 Arbour Report, at p. 105,
    noted the failure of the correctional authorities to pay attention to legal and
Charter
standards:

In my opinion, the most
    objectionable feature of administrative segregation, at least on the basis of
    what I have learned during this inquiry, is its indeterminate, prolonged
    duration, which often does not conform to the legal standards. The management
    of administrative segregation that I have observed is inconsistent with the
Charter
culture which permeates other branches of the administration of criminal
    justice.

[93]

The 1997 report of the CSC
    Task Force on Administrative Segregation reviewed evidence of a casual attitude
    towards the demands of the law by CSC staff and managers, echoing the Arbour
    Reports assertion that the CSC has a culture that does not respect the Rule
    of Law:
Commitment to Legal Compliance, Fair Decisions and Effective
    Results: Reviewing Administrative Segregation
: Task Force Report (March
    1997), at p. 13. The Task Force went on to recommend rigorous enhancements to
    the administrative segregation process and experimenting with models of
    independent adjudication as proposed by the Arbour Report: at pp. 33-41.

[94]

The 2004-5 Correctional
    Investigators Report observed, at p. 24, that the Department of Public Safety
    and Emergency Preparedness Canada undertook its own evaluation and recommended
    that the CSC implement and test models of independent adjudication, but again
    this recommendation was rejected by the organization.

[95]

The 2005-6 Report
    observed, at p. 16: After years of calls for fundamental reforms, the Correctional
    Service continues to place offenders in administrative segregation and other
    more restrictive environments as its main tool for resolving disputes and
    tensions in penitentiaries. The Report noted that despite the fact that the
    Arbour Report concluded that the administrative segregation regime conflicts
    with Canadas broader
Charter
culture, that independent review was
    required, and that similar recommendations had been made by others, the
    Correctional Service has consistently rejected independent adjudication and
    continues to this day to argue that an enhanced internal segregation review process
    can achieve fairness and compliance with the rule of law: at p. 16.

[96]

The 2006-7 Report stated,
    at p. 11:

After years of calls for
    fundamental reforms, the Correctional Service continues to place offenders in
    administrative segregation and other restrictive environments as its main tool
    for resolving disputes and tensions in penitentiaries. Over the last 10 years,
    several internal and external reports have noted fairness and non-compliance
    issues related to the management or administration of segregation. They have
    recommended the independent adjudication of segregation cases as the only way
    to effectively promote legal compliance in this area. The Correctional Service
    has consistently rejected independent adjudication and continues to argue that
    an enhanced internal segregation review process can achieve fairness and
    compliance with the rule of law.

[97]

The 2009-10 Report states,
    at pp. 13-14:

In the past
    year, I have been very clear on the point that mentally disordered offenders
    should not be held in segregation or in conditions approaching solitary
    confinement. Segregation is not therapeutic. In too many cases, segregation
    worsens underlying mental health issues. [] Research suggests that between
    one-third and as many as 90% of prisoners experience some adverse symptoms in
    solitary confinement, including insomnia, confusion, feelings of hopelessness
    and despair, hallucinations, distorted perceptions and psychosis.



There is growing international
    recognition and expert consensus that the use of solitary confinement should be
    prohibited for mentally ill prisoners and that it should never be used as a
    substitute for appropriate mental health care.

[98]

The 2014-15
Report, at pp. 15-16, described the CSCs
    response to the Ashley Smith Inquest, including the recommendation to limit
    administrative segregation to 15 days, as frustrating and disappointing and
    one that simply misses the mark.

[99]

The need to respond
    positively to the Ashley Smith Inquest recommendations did not go unnoticed,
    even at the highest levels of government. Prime Minister Trudeaus 2015 mandate
    letter to Minister of Justice
Wilson-Raybould stated that it was government policy to implement the
    recommendations from the inquest into the death of Ashley Smith regarding the
    restriction of the use of solitary confinement and the treatment of those with
    mental illness.

[100]

In our view, Canadas
    failure to alter its administrative segregation policies in the face of this
    mounting and concerted criticism from the medical profession, a Royal
    Commission, a coroners inquest, the Correctional Investigator, and various
    international agencies meets the standard of a clear disregard for
Charter
rights.

[101]


We are satisfied that this clear disregard dates
    back to at least the start dates for these claims: July 20, 2009 for inmates
    suffering from mental illness, in
Brazeau
, and March
    3, 2011 for all other inmates, in
Reddock
. Canada was
    repeatedly told of the harm administrative segregation caused, of the need to
    impose a cap on the length of time inmates were subjected to the practice, of
    the need not to use administrative segregation for inmates suffering from
    mental illness, and of the need for proper independent review of administrative
    segregation decisions. Canada was repeatedly told that its policies and
    practices caused serious harm to inmates and amounted to cruel and unusual
    treatment.
Canada had to know
    that there was a serious risk that its administrative segregation practices and
    policies failed to meet the standards of the
Charter
under both ss. 7
    and 12. In our view, the respondents have established the clear disregard
    fault threshold applies in these cases. Thus, Canada is not insulated from liability
    for
Charter
damages by countervailing good governance considerations.

(5)

Quantum of Damages and Damages for
    Structural Changes

[102]

The motion judge concluded
    in
Reddock
that the class members had all suffered a base level of
    damages that could be determined without the need for proof from individual
    class members. These damages were awarded on an aggregate basis pursuant to s.
    24 of the
Class Proceedings Act
,
1992
, S.O. 1992, c. 6 (
CPA
),
    applying
Ramdath v. George Brown College of Applied Arts and Technology
,
    2015 ONCA 921, 341 O.A.C. 338, and
Good v. Toronto (Police Services Board)
,
    2016 ONCA 250, 130 O.R. (3d) 241, leave to appeal refused, [2016] S.C.C.A. No.
    255. The motion judge, at para. 486 of
Reddock
, fixed the amount at
    $20 million for the three functions
Ward
holds to be pertinent, namely:
    vindication, deterrence and compensation. The compensatory portion of that
    award was $9 million calculated on the basis of $500 for each inmate placed in
    administrative segregation for more than 15 days: at paras. 381, 396. After
    deduction of legal fees and disbursements, the amount remaining is to be
    distributed to the class members pursuant to s. 24(2) of the
CPA
: at
    para. 492.

[103]

We would not interfere
    with the premises of the damage award. Damages for the vindication of the class
    members rights are suitable. A measure of deterrence damages is also warranted
    given the resistance of the correctional authorities to change, and while the
CCRA
has been amended and the SIUs introduced, there remain issues of implementation
    of the new scheme. Base compensation calculated on the basis of $500 for each
    inmate seems modest given the motion judges findings of the harm the inmates
    suffered.

[104]

The motion judges order
    contemplates a second stage of individual issues trials as contemplated by s.
    25 of the
CPA
: at paras. 500-5. There is no reason to interfere with
    that aspect of the judgment.

[105]

In
Brazeau
, the
    motion judge also awarded $20 million as a base level of damages. He found that
    entire amount to be appropriate for vindication and deterrence and left the
    issue of compensation for the individual issues stage of the proceedings. He then
    took the unusual course, at paras. 458-59, of ordering that the $20 million,
    after deduction for legal fees and disbursements, be used by Canada for
additional mental health or program
    resources for structural changes to penal institutions as the court on further
    motion may direct.

[106]

The motion judge erred in
    law in making this order.

[107]

First, he did so on his
    own motion and without submissions from the parties as to the appropriateness
    of such an order. The rights of both the class members and Canada were affected
    by the order and they should have been given the opportunity to argue the
    point. The order was, to say the least, unusual, and by making it without the
    benefit of submissions from the parties, the motion judge denied them
    procedural fairness.

[108]

Second, the motion judge
    erred in his interpretation of s. 26 of the
CPA
. At para. 459, the
    motion judge stated:

Pursuant to s. 26 (7) of the Act,
    the court shall supervise the execution of judgments and the distribution of
    awards. Pursuant to s. 26 (8), the court may order that an award of aggregate
    damages be paid in a lump or in installments on such terms as the court
    considers appropriate. I read these provisions as empowering the court to order
    that the aggregate damages not be distributed to individual Class Members but
    rather distributed for the benefit of all Class Members.

[109]

We disagree with that
    interpretation. The only provision made in s. 26 for the distribution of
    aggregate damages to any person other than the class members is found in ss.
    26(4)-(6), which allows for cy-près distribution of remaining funds other than to
    class members after efforts have been made to distribute the award to class
    members. That is not the situation in this case. The rest of s. 26 contemplates
    distribution of the award of aggregate damages to class members.

[110]

Third, the order made
    by the motion judge ran afoul of the principle set out in
Doucet-Boudreau
,

at para. 56, that
Charter
remedies
    must employ means that are legitimate within the framework of our
    constitutional democracy; respect the relationships with and separation of
    functions among the legislature, the executive and the judiciary; and that
    courts must not depart unduly or unnecessarily from their role of adjudicating
    disputes and granting remedies that address the matter of those
    disputes.

[111]

As
Doucet-Boudreau
itself
    shows, there is room in some situations for innovative remedies that include
    ongoing, post-judgment involvement by the court to ensure compliance with the
Charter
.
    At issue in that case was the affirmative promise of s. 23 of the
Charter
for minority language education in the urgent context of cultural erosion of
    minority rights through assimilation: at paras. 38-40. The Supreme Court upheld
    the propriety of a trial judge maintaining jurisdiction to receive reports to
    monitor the governments progress in establishing the required facilities. The
    Supreme Court noted that the reporting order preserved and reinforced the
    capacity of the educational authorities in providing school facilities as
    mandated by the relevant legislation: at para. 68.

[112]

But the order at issue
    in the
Brazeau
appeal is not a reporting order to
    monitor state compliance with a defined affirmative right;
the order made in this case provides for a
    much more active form of judicial involvement. The motion judge assumed the
    power to direct the state to divert a damage award for harm suffered and use
    the damages as he saw fit to provide such 
additional mental health or program resources for
    structural changes to penal institutions: at paras. 456-59. That order was not
    fair to either the class or Canada and it amounted to an unjustifiable
    assumption of judicial control over a complex public institution. It was not an
    appropriate and just remedy and therefore it must be set aside.

[113]

We were invited to
    maintain the aggregate damage award of $20 million and order it distributed to
    the class members. Given the serious error of law made by the motion judge, we
    set aside his award of damages and remit the issue of damages to be determined
    on proper principles.

(6)

Systemic Negligence

[114]

Canada argues that the
    motion judge erred in
Reddock
in his analysis of the duty of care in
    relation to systemic negligence. We agree with that submission, but as the
    damages awarded by the motion judge are sustainable as
Charter
damages, and as we view
Charter
damages to be the more appropriate
    remedy, our consideration of the systemic negligence issue will be brief.

[115]

The portion of the
    respondents statement of claim relied on by the motion judge pleads that there
    is a recognized class-wide duty of care owed by the CSC to inmates with respect
    to the design, organization, administration and staffing of the Federal Institutions,
    as well as the policies and procedures applied therein:
Reddock
, at
    para. 398, referring to para. 60 of the fresh as further amended statement of
    claim. The motion judge recognized the need to prune aspects of this claim
    because they related to the area of core law-making and policy-making that is
    immune from a negligence claim: at paras. 406, 409. He went on to find, at
    para. 411, that

through Corrections Canada, the
    Federal Government had a duty of care not to operate a system of administration
    segregation that caused harm to the inmates and a duty of care not to violate
    the inmates
Charter
rights. [] The Federal Governments duty of care
    is, in part, commensurate with its
Charter
obligations.

[116]

In our view, both the duty
    pleaded by the respondent and the duty found by the motion judge differ
    significantly from the established general duty of care that correctional
    institutions are to take reasonable care for [a prisoners] safety as a person
    in their custody:
MacLean v. The Queen
, [1973] S.C.R. 2, at p. 7.
MacLean
involved a claim for personal injuries sustained as a result of an accident at
    a prison farm, the equivalent of a workplace accident. The Supreme Court found
    that the guard in charge of the operation was negligent in the way he
    supervised and directed the work and that the Crown was vicariously liable: at
    p. 7.

[117]

MacLean
concerned the straightforward application of
    a routinely recognized common law duty of care to the prison setting. It did
    not involve the operation of a system, the design of policies and procedures,
    or the violation of
Charter
rights. The duty found by the motion judge
    is a novel duty that essentially rests upon principles of public law and
Charter
rights. The same analysis applies to another duty referred to by the motion
    judge, namely the duty to take reasonable care to avoid causing foreseeable
    mental injury: at para. 463.

[118]

The duty identified by the
    motion judge was a novel duty that required careful scrutiny, particularly in
    the context of this class action. It can only succeed if systemic in nature and
    cannot succeed if based upon a series of discrete breaches of duty to
    individual inmates. The two-stage test from
Cooper v. Hobart
, 2001 SCC
    79, [2001] 3 S.C.R. 537, must be considered: does the nature of the parties
    relationship create a
prima facie
duty of care, and if so, is the duty
    negated by residual policy concerns?

[119]

The motion judge accepted
    that cases such as
Cooper
;
Edwards v. Law Society of Upper Canada
,
    2001 SCC 80, [2001] 3 S.C.R. 562; and
Eliopoulos (Litigation Trustee) v.
    Ontario (Minister of Health and Long-Term Care)
(2006), 82 O.R. (3d) 321
    (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 514, foreclose Mr.
    Reddocks systemic negligence claim based on allegations that the Federal
    Government owed a duty of care with respect to the staffing of the
    penitentiaries or with respect to the law making or policy making function
    including the responsibility to have in place safeguards and policies to
    prevent the harms associated with administrative segregation: at paras. 423-24.
    Yet what he labels to be operational failings, at para. 414, essentially
    amount to criticisms of the Correctional Services policies in relation to the
    use of administrative segregation. This is the very same failure to have in
    place policies to avoid the harm and corresponds with his characterization of
    the duty as being to avoid breaching the class members
Charter
rights.

[120]

While individual inmates
    have a cause of action for specific individual acts of negligence on the
MacLean
principle, a class-wide duty of care can only be made out if the duty relates
    to the avoidance of the same harm for each class member. This is not a case
    where the class-wide duty of care is said to arise from a single incident or
    act, for example an air crash or train derailment. Rather, the duty alleged
    arises from different acts in different circumstances and in relation to
    different individuals. Those acts can be identified as being the same only
    because they all arise from the implementation of a particular policy or
    regulatory regime regarding the management of prisons. The primary negligence
    claim in the amended statement of claim is negligence at the policy-making
    level. Negligence at the operational level is alleged as an alternative and that
    would turn on individual circumstances. Negligence at the policy level leads
    directly to the
Edwards
,
Cooper
, and
Eliopoulos
exclusion of a duty of care for matters of policy.

[121]

The class can challenge
    those policies as contravening the
Charter
under proper
Charter
analysis, but can only succeed in damages if the test for
Charter
damages is met.
Ward
, at para. 43, holds that the threshold for
    liability under the
Charter
must be distinct and autonomous from that
    developed under private law. That means that the law of negligence cannot be
    used to short-circuit that analysis where the damages flow from a
Charter
breach. It follows that the motion judge erred when he stated that the systemic
    negligence claim provided a way for Class Counsel to circumvent the Federal
    Governments argument based on the principle from
Mackin
,

[].
    which principle would immunize the Federal Government from liability under s.
    24 (1): at para. 10; see also para.376.

[122]

We conclude, accordingly,
    that as the claims for damages, properly understood, arise from breaches of the
Charter
,
Charter
analysis and consideration of the availability
    of
Charter
damages is the appropriate remedy.

(7)

Causation

[123]

In the
Reddock
appeal, Canada submits that the motion judge breached procedural fairness by
    ruling on causation in negligence although causation had not been certified as
    a common issue. Canada submits that causation in negligence is an inherently
    individual issue.

[124]

This issue is moot. As the
    systemic negligence claim fails, it is unnecessary for us to deal at any length
    with the issue of causation.

E.

Disposition

[125]

Accordingly, the
Brazeau
appeal is allowed, but only with respect to the aggregate damage award and that
    issue is remitted to the motion judge for reconsideration. The
Reddock
appeal is allowed, but only with respect to para. 8 of the judgment finding
    Canada liable in negligence. Having achieved substantial success, the
    respondents are entitled to costs. They submitted a joint bill and are entitled
    to costs fixed at $75,017.31 inclusive of disbursements and taxes.

Released: March 9, 2020

Robert J. Sharpe
    J.A.

R.G. Juriansz J.A.

I agree Gary Trotter
    J.A.


