Disability

Disability is part of the Equality program. You can find more information about it on its main program page.

Recent Work

Solitary Confinement

By on January 27, 2015

Solitary Confinement

“Solitary confinement deprives the prisoner of vital human contact. This practice has devastating effects on the prisoner’s mental and physical wellbeing, and constitutes the harshest form of punishment that may be administered in Canadian penitentiaries. As such, the ready, routine and prolonged use of solitary confinement in Canadian penitentiaries is unjustified, unethical, and ultimately, unconstitutional.”

- Notice of Appplication, Corporations of the Canadian Civil Liberties Association and the Canadian Association of Elizabeh Fry Societies

Constitutional challenged filed Janary 27th, 2015

The CCLA is deeply concerned about the practice of solitary confinement in Canadian prisons, and has long worked to uphold the rights of prisoners. CCLA has advocated with respect to these concerns, and noted the disproportionate representation of vulnerable groups in segregation including individuals with mental health issues and Aboriginal Peoples. CCLA has also conveyed in various fora its concerns regarding failing safeguards and an absence of adequate oversight with respect to segregation, and recently, the wholly inadequate response of the Correctional Service of Canada to the Ashley Smith Inquest recommendations.

Background – the Impact of Solitary Confinement:

Solitary confinement – also known as segregation – can cause severe mental and physical pain or suffering. In the case of prolonged segregation of over 15 days, some of its harmful psychological effects can become irreversible. These findings, based on psychological studies, have been affirmed by international human rights bodies. Indeed, according to a report by the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatement (August 2011), when segregation is used “as a punishment, during pre-trial detention, indefinitely, prolonged, on juveniles or persons with mental disabilities, it can amount to cruel, inhuman or degrading treatment or punishment and even torture.”

In addition, given the closed nature of prisons generally, and the isolation of solitary confinement, any abuses, misuse of authority, or mistreatment – such as that experienced by Ashley Smith – may go undetected and unchallenged.

There is also a troubling connection between segregation and suicide in federal penitentiaries, and a disproportionately high rate of suicide among prisoners in segregation. According to a recent report by the Office of Correctional Investigator (September 2014):

“A major finding of this review, one that is repeatedly supported by the literature, is that suicide rates are more prevalent in physically isolated cells (segregation, observation and mental health cells) than in general population cells. The literature is also clear that physical isolation and separation increases the risk of suicidal behaviour. Placement of a mentally disordered inmate in segregation or in an observation or special suicide-resistant cells has both perceived and actual punitive aspects… As this Office has long advocated, long-term segregation of mentally disordered inmates or those at risk of suicide or serious self-injury should be prohibited. Such a prohibition would be more consistent with existing policy on managing suicide risk than the status quo.”

CCLA’s Work

In November 2009, CCLA announced that it was joining with the Criminal Lawyers’ Association to call for an immediate government response to the alarming increase in the use of solitary confinement in Canada’s federal penitentiaries.

  • Click here for more information.

On March 15 2010, CCLA – jointly with the Criminal Lawyers Association, the Canadian Association of Elizabeth Fry Societies, the John Howard Society of Canada, the B.C. Civil Liberties Association, and the Schizophrenia Societies of both Ontario and Canada – sent a letter to the Minister of Public Safety concerning the use of segregation and the special needs of prisoners with mental health issues.

  • For more information and to read the letter, click here and here.

Inquest into the Death of Ashley Smith – In March 2011, CCLA sought status as a public interest party in the Inquest into the Death of Ashley Smith. CCLA was represented on a pro bono basis by Allison Thornton (Koch Thornton LLP). CCLA was a party to the Inquest and remained actively in it, through its various phases, until its conclusion in December 2013. During this time, CCLA questioned witnesses, called Prof. Andrew Coyle as an expert witness (from the U.K.), worked with the other parties to draft, where possible, joint recommendations for the jury, made oral submissions, endorsed and opposed the final submissions submitted by Coroner’s Counsel, and submitted its own Additional Recommendations to the inquest jury.

  • To read the recommendations of Coroner’s counsel (many endorsed, and some opposed by CCLA), click here.
  • To read CCLA’s Additional/Alternative Recommendations, click here.

In May 2012, CCLA addressed the issue of solitary confinement in its report to the UN Committee Against Torture, making a number of submissions, and referring specifically to the Ashley Smith inquest which was at that time ongoing.

  • To read CCLA’s submissions to the UN Committee Against Torture, click here.
  • For more information on CCLA’s submissions and the concluding observations of the committee, click here and here.

In December 2013, nearly a year following the conclusion of the Inquest into the death of Ashley Smith, Correctional Service Canada released its response to the Inquest recommendations. CCLA was deeply disappointed by this response, as failing to adequately address the practice of administrative segregation, place firm time limits on its use, or provide for meaningful oversight and accountability mechanisms.

  • To read CCLA’s position on CSC’s response to the Ashley Smith Inquest, click here.

CCLA Disappointed by Federal Government’s Inadequate Response to Ashley Smith Inquest Recommendations

By on December 12, 2014

On December 11, 2014, the Correctional Service of Canada released its response to the findings of the Ashley Smith inquest, nearly one full year following the inquest jury’s verdict and detailed recommendations. The Canadian Civil Liberties Association – which participated in the Ashley Smith inquest – is deeply disappointed with the Government’s response, which we find both lacking in meaningful change, and failing to adequately address the use of administrative segregation.

“In our view, there is no place for long-term administrative segregation in a society that has constitutional protections against cruel and unusual treatment,” said Sukanya Pillay, the CCLA’s general counsel. The CCLA has previously spoken out against the abusive use of administrative segregation, the overuse of segregation to house mentally ill individuals, and the absence of meaningful oversight.

The CCLA is disappointed that the government has rejected the jury’s strong and sensible recommendation to place firm time limits on the use of segregation. The CCLA strongly endorses the jury’s carefully considered recommendation that “there should be an absolute prohibition on the practice of placing female inmates in conditions of long-term segregation, clinical seclusion, isolation, or observation. Long-term should be defined as any period in excess of 15 days.”

“We believe there are other prisoners like Ashley Smith suffering alone in segregation cells,” said Ms. Pillay. “We are disappointed that the government appears to have squandered an opportunity to address the extremely serious problems inherent in segregation.”

The CCLA is further disappointed the government’s response does not address the urgent need for greater independent oversight and meaningful accountability of the Correctional Service of Canada’s actions. “There is a pressing need for stronger accountability, to ensure that prisoners’ fundamental human rights are respected,” Ms. Pillay explained. “In a commission of inquiry nearly two decades ago, Justice Louise Arbour emphasized the importance of independent oversight to prevent human rights abuses in our prisons – yet her key recommendations have to date not been implemented.”

The CCLA – an independent, non-profit, non-governmental organization – was a party at the Ashley Smith inquest. The inquest jury heard from 83 witnesses and considered 228 exhibits. The CCLA’s submissions focused primarily on two key areas: the use of solitary confinement in federal prisons and the need for stronger oversight and accountability. The CCLA has also urged Canada to ratify the Optional Protocol to the UN Convention Against Torture, which would allow independent visits of detention centres.

CCLA at Supreme Court on Assisted Suicide Case

By on October 15, 2014

Today the CCLA intervened before the Supreme Court of Canada in Carter v. Attorney General of Canada, a case that challenges the Criminal Code’s current prohibition on assisted suicide.  This is the second time that the highest court will consider the issue.  In 1993, the Supreme Court in Rodriguez held that the absolute ban on assisted death did not violate the Charter, by a 5-4 majority.

Ms. Carter and Ms. Taylor both suffered from intractable and progressive diseases and are now deceased. They, along with other applicants, brought a civil claim before the British Columbia Supreme Court challenging the constitutionality of the Criminal Code provisions that prohibit assisted suicide.  They succeeded at the B.C. Supreme Court, where the judge concluded that s. 241(b) of the Criminal Code violated the s. 15 equality rights of Gloria Taylor and the s. 7 life, liberty, and security of the person rights of Gloria Taylor, Lee Carter and Hollis Johnson, and that none of these infringements could be justified under s. 1 of the Canadian Charter of Rights and Freedoms.

On appeal, the B.C. Court of Appeal reversed the decision and held that s. 241(b) was constitutional. The judgment however, turned on the answer to a particular question about whether the lower court’s findings were wrong because of what the Supreme Court of Canada had decided years earlier in the Rodriguez case.   The Supreme Court of Canada granted leave to appeal and granted CCLA the opportunity to intervene in the case.

The CCLA appeared before the Court to argue that an absolute prohibition on assisted suicide restricts personal autonomy in a manner that unreasonably restricts the right to life, liberty, and security of the person, and supports striking down the relevant Criminal Code provision.  CCLA argues that the constitutional rights to life and liberty include personal autonomy and control of one’s bodily integrity. An absolute prohibition against physician-assisted suicide violates these rights.  It overrides the thoughtful and informed choices of terminally ill, suffering individuals, and denies them the the opportunity to preserve dignity and control over the final days of their life.

Read CCLA’s factum in the case here.

CCLA Argues there are Inadequate Safeguards for Person Detained under Ontario’s Mental Health Law

By on September 17, 2014

The case of P.S. v. Ontario concerns an individual detained for over 18 years in a maximum security mental health facility, despite a broad consensus that he does not need to be in maximum security, and significant evidence that he may not need to be in an institution at all and may be eligible for a community placement. Mr. S. is deaf and pre-lingual, however his disability and language needs were reportedly not accommodated by the institution, apparently leading to intense social isolation, lack of adequate assessment and treatments, and ultimately the lengthening of his detention.

CCLA intervened in this case to argue, before a 5 judge panel at the Ontario Court of Appeal: that there need to be adequate safeguards for people in involuntary detention under the Mental Health Act; that mental health detainees are entitled to Charter protection of their rights; that the Charter applies to non-government hospitals that function as detention facilities; and that the court must consider the compound nature of fundamental rights violations where applicable. CCLA’s submissions appeared to be of interest to the 5 judge panel, who referred to CCLA’s arguments a number of times during the hearing. CCLA is grateful to the work of counsel David Morritt and Eric Morgan (Oslers).

To read CCLA’s factum, click here.

CCLA to Intervene in Challenge to Prohibition on Assisted Suicide

By on September 4, 2014

CCLA has been granted leave to intervene in Lee Carter, et al. v Attorney General of Canada et al. This case, scheduled to be heard by the Supreme Court of Canada on October 15, 2014, is the second time the Supreme Court will consider the issue of decriminalizing assisted suicide-the first being the 1993 Rodriguez decision, where the court, in a 5-4 decision, upheld the absolute ban on assisted death.

Ms. Kay Carter and Ms. Gloria Taylor both suffered from intractable and progressive diseases and are now deceased. They, along with other applicants, brought a civil claim before the British Columbia Supreme Court challenging the constitutionality of the Criminal Code provisions that prohibit assisted suicide.  They succeeded at the B.C. Supreme Court, where the judge concluded that s. 241(b) of the Criminal Code violated the s. 15 equality rights of Gloria Taylor and the s. 7 life, liberty, and security of the person rights of Gloria Taylor, Lee Carter and Hollis Johnson, and that none of these infringements could be justified under s. 1 of the Canadian Charter of Rights and Freedoms.

On appeal, the B.C. Court of Appeal reversed the decision and held that s. 241(b) was constitutional. The judgment however, turned on the answer to a particular question about whether the lower court’s findings were wrong because of what the Supreme Court of Canada had decided years earlier in the Rodriguez case.   The Supreme Court of Canada granted leave to appeal and granted CCLA the opportunity to intervene in the case.

The CCLA is intervening in the case to argue that an absolute prohibition on assisted suicide restricts personal autonomy in a manner that unreasonably restricts the right to life, liberty, and security of the person, and supports striking down the relevant Criminal Code provision.  CCLA argues that the constitutional rights to life and liberty include personal autonomy and control of one’s bodily integrity. An absolute prohibition against physician-assisted suicide violates these rights.  It overrides the thoughtful and informed choices of terminally ill, suffering individuals, and denies them the the opportunity to preserve dignity and control over the final days of their life.

Read CCLA’s factum in the case here.

Join the CCLA at Toronto’s Metro Hall this Sunday, August 10, 2014, for Mental Health in the Canadian Justice System: A discussion in recognition of International Prisoner’s Justice Day

By on August 7, 2014

For more information, or to make accommodation requests for special needs, please contact Marianne Baker at 416-363-0321 ext. 221, or email media@ccla.org.

CCLA Awaits Release of Police Encounters with People in Crisis Report

By on July 23, 2014

July 24, 2014 – The CCLA eagerly awaits the release of Justice Iacobucci’s report tomorrow, Police Encounters with People in Crisis. The CCLA made written submissions, found here, and Executive Director and General Counsel Sukanya Pillay, participated in a round-table discussion with stakeholders. The report is the culmination of the Independent Review looking in to the issue of police use of force and interactions with people suffering from mental illness.

Federal Court Decides: Cuts to Refugee Healthcare are Shocking, Unconscionable, Unconstitutional

By on July 9, 2014

CCLA welcomes the decision of the Federal Court, reinstating healthcare that had been provided for more than 50 years to refugee claimants and others seeking Canada’s protection. 2012 cuts to this coverage, according to today’s ruling, had the effect of denying these individuals funding for life-saving medications such as insulin and cardiac drugs, for basic pre-natal, post-natal and obstetric care, or in certain instances, for any medical care at all.

As to the impact on children, the court described the 2012 changes as cruel, and described, for example, what the cuts would mean for a child “screaming in pain because of an ear infection,” who would not be entitled to see a doctor or receive antibiotics. The impact would be far more severe for others. Indeed, the court concluded, the 2012 cuts would potentially jeopardize the health, safety and the very lives of “innocent and vulnerable children in a manner that shocks the conscience and outrages our standards of decency.”

In addition, the court rejected stereotypical rationalizations for the healthcare cuts and discriminatory depictions of refugees as “bogus” or cheats. The court explained that children are innocent victims of family circumstances, and that individuals whose refugee claims ultimately fail may do so simply because of changing country circumstances or differing standards with respect to country conditions and safety.

In conclusion, the court held, the 2012 changes were discriminatory, and constituted “intentional targeting of an admittedly poor, vulnerable and disadvantaged group for adverse treatment,” thus violating sections 15 and 12 of the Charter of Rights and Freedoms.

CCLA welcomes the thoughtful and detailed decision of the Federal Court, that will restore healthcare for refugee claimants and others who are vulnerable and in need of protection.

To read CCLA’s 2012 letter to Minister Jason Kenney calling for him to rescind the cuts, see: http://ccla.org/2012/06/29/refugee-healthcare/ .

Homicide – Verdict in the Ashley Smith Inquest

By on December 19, 2013

The jury of five delivered their verdict this morning, determining that Ashley Smith died as a result of homicide.

This is a sad victory, as justice can never be done for Ashley Smith.

However, CCLA is hoping it will result in a clear message sent to the Correctional Service of Canada that significant changes need to be implemented to ensure that such tragedies cannot recur.  CCLA will continue working to protect the rights of all incarcerated persons including in particular those with mental illness; to demand meaningful accountability; and to call for meaningful monitoring and oversight systems in the prisons.

We thank Allison Thornton (Koch Thornton LLP), assisted by Amy Slotek, for excellent representation of CCLA in this Inquest.

Concerns persist about illusory access to medical marijuana

By on February 4, 2013

The Ontario Court of Appeal has released its decision in R. v. Mernagh, a challenge to the constitutionality of the Medical Marijuana Access Regulations. The Regulations are supposed to allow ill Canadian suffering from serious, debilitating illnesses to access to a legal source of dried marihuana for medical purposes. Individuals’ experiences from across the country, however, strongly suggest that patients are having significant difficulty accessing the drug, largely because it can be very difficult to find doctors that are willing to sign the medical marijuana form required by the Regulations.

In the lower court’s 2011 decision, Justice Taliano ruled that the government program established in 2001 to regulate the medical use of marijuana was ineffective and struck down the Regulations as unconstitutional. The judge found that medical practitioners were boycotting the program en masse, therefore making extremely difficult, if not impossible, for seriously ill patients to access marijuana for medical purposes. Medical practitioners have expressed concern that they have been made the gatekeepers to access medical marijuana considering the relative lack of research and education around the medical benefits of the controversial drug.

The Court of Appeal overturned the decision, largely because it found there were problems in the lower court’s factual findings and evidentiary record. The CCLA is concerned that the evidentiary burden the Court of Appeal has placed on defendants in similar situations – namely to find and pay a doctor to assess their individual circumstance and testify to their MMAR eligibility – will be too onerous for many individuals who are criminally charged after using marijuana to alleviate debilitating symptoms.

CCLA is also disappointed that the Court did not use this opportunity to change one of the most significant barriers to legally accessing medical marijuana – the requirement that doctors confirm that conventional treatments have been tried or considered, and found to be ineffective or medically inappropriate. This essentially requires patients to make marijuana a medication of last resort, and it can be a particularly difficult standard for individuals that have not been able to find or keep a primary physician. As was evidenced by Mr. Mernagh, new physicians may suggest retrying all ‘conventional’ treatments, including pharmaceuticals with debilitating side effects, before considering a patient’s request for marijuana. We do not believe that such a rigid regime is necessary to fulfill the government’s objectives, and will continue to watch for opportunities to ensure that ill individuals can effectively access their preferred treatment without risk of arrest or incarceration.

To read CCLA’s factum in this case click here.

To read the Court of Appeal’s decision click here.