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Appeal Court upholds class action rulings against isolation in prisons

TORONTO — Even without a full-blown trial, a judge was right to decide that placing inmates in solitary confinement amounts to cruel and unusual punishment in violation of their rights, Ontario's top court ruled on Monday.

TORONTO — Even without a full-blown trial, a judge was right to decide that placing inmates in solitary confinement amounts to cruel and unusual punishment in violation of their rights, Ontario's top court ruled on Monday.

In upholding summary judgments in two separate but related class actions, the Court of Appeal agreed the federal government had long ignored warnings about the dangers of prolonged segregation and the lack of independent oversight of such placements.

One of the current cases, with Christopher Brazeau as representative plaintiff, involves the placement of mentally ill inmates in isolation. The class in the other case, spearheaded by Jullian Reddock, takes in prisoners placed in administrative segregation for at least 15 straight days.

"Canada chose to ignore repeated recommendations for some form of independent review of administrative segregation," the Appeal Court said. "Canada also continued to place inmates suffering from mental illness in administrative segregation, despite repeated warnings of the harm that this practice caused."

Last year, Superior Court Justice Paul Perell ruled there was no need for trials to decide the claims. Perell sided with the inmates in both suits. In Reddock, he also found Canada liable for "systemic negligence."

Perell awarded $20 million in preliminary damages for each class. In one case, he said, the money should go to the inmates. In the other, he ruled it should go toward "structural changes" to prisons to improve conditions for mentally ill inmates.

On appeal, the federal government argued Perell should have ruled only after a trial. The higher court rejected the argument based on "ample evidence" the federal government failed to heed repeated warnings that segregation, especially when prolonged, can have devastating psychological impact on inmates.

"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," the appellate court noted. "The charter breach has caused severe harm to very vulnerable people and the state's conduct has been condemned as being cruel, excessive, abhorrent and intolerable."

Correctional authorities used administrative segregation as a last resort to protect the safety of an inmate or others in prisons. Lower courts in provinces such as Ontario and British Columbia have repeatedly ruled the practice violates the charter. Some of those decisions are currently before the Supreme Court of Canada.

Court records show that between 2011 and 2019, prison authorities placed inmates in solitary confinement on 22,000 occasions, with an average stay of 59 days — far in excess of the now internationally accepted standard of a 15-day hard cap.

Michael Rosenberg, one of the plaintiffs' lawyers, said the decision makes it clear Canada is liable for an "appalling breach" of inmates' rights.

"This is a significant victory for a group of prisoners that suffered serious harm in prolonged solitary confinement," Rosenberg said. "Their suffering was needless, and this action is a means of closing a dark chapter in Canadian corrections."

The government also challenged Perell's finding of systemic negligence as well as his damages award in the Brazeau case. Here, the Appeal Court agreed with the government.

Perell, the court said, overstepped his authority in directing the government to spend money on structural changes to prisons. It ordered him to take another look at the award.

"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," the Appeal Court said.

The appellate court also overturned Perell's finding of systemic negligence, but said the ruling had no bearing on the damages awarded for charter breaches.

In November, new legislation came into effect under which correctional authorities began implementing a scheme of so-called structured intervention units designed to mitigate the harm of segregation. Among other things, isolated inmates are allowed out of the cells for four hours a day and have at least two hours of meaningful human contact. The new regime also allows for an independent review of placements.

The Appeal Court ordered the government to pay the plaintiffs $75,000 to cover their legal costs.

This report by The Canadian Press was first published March 9, 2020.

Colin Perkel, The Canadian Press

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