Court Cases

Solitary confinement is no joking matter – and the…

Noa Mendelsohn Aviv
Director of Equality Program
mendelsohnaviv@ccla.org

 

 

 

 

The Ontario Court of Appeal has once more handed down a scathing decision to the government on its use of solitary confinement, and its failure, again, to fix flaws as ordered 16 months ago. If you are concerned about the use of solitary confinement in Canadian prisons, agree with courts and inquiries that prolonged solitary is cruel and unusual treatment, and believe that solitary should not be an option for vulnerable people, you are not alone. Given the many decisions, almost-missed deadlines, and requests for extensions, we thought it may be helpful to provide a brief update on our challenge, and why the government should stop fighting.

The bottom line: Despite the fact that CCLA won its challenge in December 2017, the government has not reformed its solitary confinement regime, not fixed the constitutional flaws found by the courts, and not passed new legislation. What it has done is fought, appealed, appealed again, and on 5 separate occasions (and counting) asked the courts for time to fix or delay fixing the law. And all the while, people are spending extended periods in Canada’s prisons in horrendous conditions and extreme isolation. It is now well past time. The government must stop fighting in the courts, and start making the necessary reforms in our prisons.

As to where things stand, in December 2017, the Ontario Superior Court agreed with CCLA’s expert witnesses about the devastating harms of solitary. It concluded that the current regime known as administrative segregation was unconstitutional because it did not provide independent review of decisions to place or keep someone in solitary. The government did not appeal this decision and it is still good law. However, the government did say that they needed time to amend the law and asked for 12 months. Over CCLA’s objections, the Superior Court granted the government the full 12 months requested.

Ten months later, the government introduced Bill C-83 in October 2018. However, this bill did not fix any of the issues raised by CCLA, including the issue of independent review as ordered by the Superior Court. The government then asked the Ontario Court of Appeal for more time to pass this bill. The Court of Appeal expressed serious reservations about this delay and the fact that the bill did not resolve the issue of constitutionality as found by the lower court, but granted an extension until April 30th 2019. As this date approached, the government made yet another request for more time. The Court of Appeal granted this too, “with great reluctance,” until June 17th, all the while making it clear that this was the last time.

That’s where things stand with the decision emanating from the Superior Court.

In the meanwhile, CCLA, while happy with our victory in the lower court, was not fully satisfied with the outcome. The lower court had only ruled the lack of independent review to be unconstitutional. CCLA had also argued that there were other unconstitutional aspects to the solitary confinement regime, including prolonged solitary confinement (over 15 days), and the placement of vulnerable people (such as people with mental illness, and youth) in solitary. And so CCLA appealed our own win to the Ontario Court of Appeal – and won again.

In another tremendous victory, the Ontario Court of Appeal ruled that prolonged solitary confinement amounted to cruel and unusual treatment and is unconstitutional. The Court gave the government 15 days to fix the problem.

It may not come as a shock to learn that in seeking an appeal of this decision at the Supreme Court, the government also asked the Supreme Court for, you guessed it, more time. This time, the government asked to delay implementation of the Court of Appeal’s decision on prolonged solitary. The Supreme Court granted a delay but only until the next phase of the process, which it heard on an expedited basis. At that point, the Supreme Court will issue its decision on whether the government has to comply with the Court of Appeal’s decision to end prolonged solitary confinement straight away – or whether it can wait until the Supreme Court hears the entire appeal.

If this all sounds terribly complex and Sysphean, it is and it is not. It is true that the government is wasting taxpayer time and resources. It is true that the government has yet to implement an independent review process as ordered by the Superior Court or to end prolonged solitary as required by the Court of Appeal. But the government has in the meantime quietly found solutions for many of the people formerly housed in solitary. The numbers in these units have reportedly dropped 59% in the past 5 years. So what the government claims it cannot do and needs more time to do, it is nonetheless doing. All it takes, it seems, is patience, strength, and the determination to make things right.

Sign our petition demanding Canada stop fighting these necessary reforms

Court Cases

WHAMMY! Supreme Court of Canada Strikes Down Canada’s Ugliest…

Abby Deshman
Director of Criminal Justice Program 
adeshman@ccla.org

 

 

 

 

Michael Bryant
Executive Director and General Counsel
mbryant@ccla.org

 

 

 

 

Whammy!  It’s not everyday that civil libertarians hit a home run in the Supreme Court of Canada.  But thanks to some painstakingly strategic litigation and jurisprudence; thanks to great advocacy (by CCLA and many others, but thank you to our counsel Chris Bredt and his great team at Borden Ladner Gervais LLP);  thanks to the seven justices of the Supreme Court of Canada, Canada’s ugliest populist criminal sanction is gone.

Ugly because mandatory victim surcharge fines were intentionally punitive.  When the Harper Government figured out that judges were making exceptions under the old victim surcharge law, such that courts would refuse to tack on a fine to someone who had no chance of paying that fine, those Honourable swines chose to make the fine mandatory, turning our criminal courts into factories for debtors prison.  

Many of us watched trial judges break the news, often with great anguish, that they had no choice but to fine the person in front of them, more often than not someone penniless and mentally ill, an amount everyone in the court knew could not be paid.  It was cowardly of the Harper Government to do it, because they left the dirty work to the judges. It was shameful of the Trudeau Government to leave that law untouched until finally, mercifully, the Supreme Court of Canada smacked some sense into the criminal law by striking down the ugly provision, effective today.  

No one should be punished for being poor. Yet for the past five years, Canadian courts have been required to impose additional mandatory fines on all individuals found guilty of a criminal offence – regardless of the seriousness of the person’s actions, the surrounding circumstances, or whether an individual would ever be able to pay back the money. Failure to pay the fine could result in imprisonment.

The results were just what the populist doctor ordered:  sweet press conferences by police showing off their ‘victim crime surcharge’ fund paying for police pet projects.  To exploit victims of crime like this was so wrong. For years the lower courts have been pushing back. Some extraordinary jurisprudence arose from provincial courts, from Ontario and BC in particular, to thread the needle that constitutionally ‘inferior’ courts ordinarily cannot achieve without superior court approval.  

As if any of this was tough on crime.  It wasn’t tough at all. It was the worst of human nature, cruel and unusual punishment.  Literally.

Take the case of Shaun Michael. Shaun was a 26 year old Inuit man, addicted to drugs and alcohol, unemployed and bouncing between the street, a shelter and his aunt’s apartment. All his offences stemmed from addiction, not to mention a childhood of abuse. Over the course of several months he repeatedly became intoxicated and acted out. He stole a bottle of alcohol; jumped out into traffic; broke a shelter window. He lashed out at the security guard and police officers who came to arrest him. He drank and failed to be ‘of good behaviour’ contrary to the terms of his probation order. When he found out his father, who he hadn’t seen in many years, was in Ottawa – also living in shelters – he followed him there and forgot to notify his probation officer — another crime. Over the course of six months, from January to June 2014, he pled guilty to nine criminal offences. The law would have required the judge to impose, on top of his sentence, a fine of $900 – $100 for each summary conviction. At the time his case was decided, he owned nothing and lived on a $250 a month “street allowance”. The sentencing judge found that the mandatory fines were unconstitutional, and refused to impose them.

Or the case of Daniel Larocque. In 2017 he was 22 years old, impecunious, and suffering from drug addiction and mental illness. He lived on disability benefits, and after paying for food and housing he had $136 per month for all other expenses. He was subject to a $700 mandatory fine after pleading guilty to seven summary conviction offences – possessing morphine, assaults, uttering threats, mischief. The sentencing judge found that the mandatory fines were unconstitutional, and refused to impose them.

Or Edward Tinker. He was 55 years old when he was sentenced after pleading guilty to uttering threats and breaching his probation. He was unable to work after a workplace injury, and suffering from heart disease and cancer. He had no savings. He was living off CPP and Worker’s Compensation – $1,200 a month, which after paying $950 in rent and $80 in medication left him with about $170 a month for all other expenses. The sentencing judge ruled that the additional mandatory fines were unconstitutional.

Or Kelly Judge. A 53 year old woman, legally blind and a recovering alcoholic suffering from depression and bipolar disorder. She pled guilty to assault and uttering threats. At the time of sentencing, she had $2000 in her savings account. She lived off of $831 in CPP disability benefits; after paying $800 per month in rent she had $31 per month and her savings to cover all other expenses.

All these people faced mandatory fines – regardless of the seriousness of their actions, their life circumstances, or whether they had the means to pay them. And if they didn’t pay the fines, they faced the threat of jail time – and being brought to court to show that they were still unable to pay the fines, and therefore should not be incarcerated. With fines outstanding none of them would be able to get a pardon or record suspension, and would be saddled with a criminal record for life.

All of them were facing additional, indefinite punishment – just because they were poor, unwell, in pain.  The response of Parliament was to force judges to kick ‘em when they’re down, for good measure. Canada’s executive current caretaker of the constitution, Jody Wilson-Raybould, sent forth her agents to the SCC defend that law.  Thus is the state of populism today that a majority Liberal Government is too afraid to stand up to it in the legislature or even in our courts.

We’d venture that if Cabinet Ministers had to leave the back seat of their limo to live on the street for days at a time they would crumble in short order. That the aforementioned defendants remained alive is a story of great tragedy and perseverance.  But they did make it to their sentencing hearing, at which point the trial judges finally said enough is enough.  (That the provincial Courts of Appeal are so disconnected from the criminal legal system that they could overturn those sentencing rulings is a matter for another day).  

So now the Supreme Court of Canada has confirmed it:  enough is enough. Good riddance to the ugliest law in the land.  While it may not have been as harmful as, say, our solitary confinement laws (currently being shredded by CCLA and BCCLA), it’s hard to think of a federal law so mean spirited as that sodding law.  The provincial panhandling ordinances still operating with a vengeance across Canada do maintain the crown for the Charles Dickens Barbarity Prize.

Many thanks to our counsel in the case – Christopher D. Bredt, Pierre N. Gemson and Alannah M. Fotheringham of Borden Ladner Gervais LLP.

 

Read the full decision here.

For a webcast of the hearings, click here.

For CCLA’s intervenor factum in the case, click here.

News and Analysis

HOW RELIGIOUS TEACHINGS IN PUBLIC SCHOOLS VIOLATES HUMAN RIGHTS:…

On Wednesday, August 30, the Argentine Supreme Court held a public hearing on the constitutionality of laws permitting religious education in the public schools of Salta province. As friends of the court, Argentine human rights group CELS and five other members of the International Network of Civil Liberties Organizations (INCLO) explained how such practices violate human rights as well as the national constitution.

Under international human rights law, all states must protect the right of individuals to equality and non-discrimination as well as to freedom of worship or belief. At the same time, they must guarantee conditions that enable children and adolescents to develop their progressive autonomy so they can freely and fully exercise these rights. In public schools, where children are educated to form part of plural, democratic societies, it is essential that the state take a neutral stance on religion.

In its constitution, Salta province gives parents the right to have their children receive religious instruction in line with their own convictions, in the public schools. In an area where more than 90 percent of people identify as Roman Catholic, this is tantamount to forcing the majority religion on students who profess other religious beliefs – or none at all. Also, instead of giving precedence to parental preferences, special consideration should be given to Article 14 of the Convention on the Rights of the Child, which emphasizes children’s progressive exercise of their own rights and the rights and duties of parents to guide them in accordance with their evolving capabilities.

The arguments set forth in the INCLO amicus curiae brief refer not only to Argentina’s constitution and laws, but also to relevant court rulings on the separation of church and state and on public education from Canada, Hungary and the United States as well as the European Court of Human Rights. United Nations standards are also cited.

The case before the Argentine Supreme Court, known as “Castillo, Carina Viviana y otros c/Provincia de Salta, Ministerio de Educación de la Prov. de Salta s/amparo,” was initiated in 2010 by the Asociación por los Derechos Civiles (ADC) and a group of parents who filed suit against Salta province for imposing obligatory Catholic teachings during school hours.

INCLO members argue that the provincial state’s public schools must stop providing religious education altogether – whether during or outside regular school hours – and ensure that no public resources are spent on such teachings. Salta’s laws and regulations violate numerous human rights enshrined in international instruments that have constitutional standing in Argentina, based on the country’s 1994 charter reform. As a result, the Argentine Supreme Court should declare them unconstitutional.

INCLO is a network of 13 independent, national human rights organizations from different countries in the North and South that work to promote fundamental rights and freedoms.

In this legal action, the following member organizations participated:

Read the amicus brief here.