Asper Centre Files Submissions on Administrative Segregation

by Jasmit de Saffel

On November 19, 2018, the Asper Centre filed submissions to the Standing Committee on Public Safety and National Security in regards to the use of administrative segregation in Canadian correctional facilities and the proposed amendments to the legislation under Bill C-83. The submissions were prepared by the Executive Director, Cheryl Milne, and six Asper Centre clinic students: Joshua Foster, Becky Lockert, Ben Hanff, David Coté, Misha Boutilier, Sara Tatelman.

The brief submitted to the Committee emphasized the “gross disproportionality” of administrative segregation, a measure used to ensure the safety of the inmates and the penitentiary. There is growing social science and professional consensus that administrative segregation has immensely deleterious effects with no rehabilitative function. The negative health effects of segregation on specific individuals cannot be preemptively determined and there is no way to know when the damage becomes irreversible.

The serious deprivation of inmates’ Charter rights to life, liberty and security of the person under administrative segregation has resulted in two recent judgements ruling the practice unconstitutional: Corporation of the Canadian Civil Liberties Association v Her Majesty the Queen 2017 ONSC 7491  and British Columbia Civil Liberties Association v Canada (Attorney General) 2018 BCSC 62. Both decisions are currently under appeal to their respective provincial courts of appeal.

The submissions find that the proposed amendments to administrative segregation under Bill C-83 are substantively and procedurally deficient. Substantively, it permits more than 15 consecutive days in segregation, contrary to the Nelson Mandela Rules (the United Nations Standard Minimum Rules for the Treatment of Prisoners), and therefore contrary to Canada’s international obligations to not engage in torture or cruel, inhuman, or degrading treatment or punishment. Procedurally, Bill C-83’s’ remedial framework is also not compliant with international standards. Instead of implementing an external review process for uses of administrative segregation,  it allows the possibility of a non-binding recommendation by a health care professional and review by the Commissioner, only after a period of 30 days in segregation.

The submitted brief makes 10 recommendations to the Committee to ensure a Charter-compliant system of administrative segregation. These recommendations include:

  • Canada taking immediate steps to eliminate the practice of administrative segregation, except in the rarest cases.
  • Correctional Services Canada justifying any uses of administrative segregation before an impartial decision-maker within 48 hours. The onus to justify being on the state.
  • An inmate not being placed in administrative segregation for more than 72 hours.

For more details and the rest of the recommendations, please find the FULL SUBMISSIONS HERE.

Jasmit de Saffel  is a JD Candidate at the Faculty of Law and is the current Asper Centre work-study student

Asper Centre Students in Focus: Brittany Cohen

Brittany Cohen, a rising second-year J.D. candidate, is another student research assistant working at the Asper Centre this summer.

Building on one of its student working group projects this past academic year, the Asper Centre is developing a series of police oversight legal information guides for the general public (one for each province, the territories and for the RCMP), and Cohen is spearheading the research this summer.  The guides will include a plain-language review of criminal and disciplinary oversight procedures in each jurisdiction, detailed steps that affected persons need to take to file a police complaint, timelines to keep in mind, special sections for vulnerable groups such as Indigenous people and victims of gender-based violence, and lists of resources and referrals for further assistance. The guides will be available online and in print, and will be translated into French and several Indigenous languages, to ensure accessibility.

The guides are designed so “[the public] can find really accessible information on how to file a police complaint,” Cohen says. “Right now, in a lot of provinces, it’s really difficult to find the right information.”

The most difficult aspect of her research thus far has been tracking down accurate and up to date information on the precise mechanisms of each province’s police accountability procedures. “The reason we want to create the guides is that there’s a lack of information, so that’s obviously a problem when creating the guides,” Cohen explains. “We will be partnering with stakeholders across Canada to find legal experts in the different regions who can fill in the gaps.”

Cohen was a member of the police oversight student working group during her first year as a law student, where she performed preliminary research on the police oversight bodies in Nova Scotia. Over the summer, she’s been exploring the issue on a national level by reviewing each province’s policing legislation, which establishes the police oversight bodies and/or procedures in that province, and drafting the information guides.

Cohen, who first became interested in the law in high school and who studied criminal justice and psychology in undergrad, is drawn to both criminal defence and constitutional law. “There’s a lot of overlap there,” she says, noting the two fields involve directly assisting clients. “I think both of them have a direct impact on the public, and that’s my main focus.”

Cohen will be co-leading the Asper Centre’s police oversight student working group this upcoming academic year.

External audit of immigration detention review shows pattern of serious Charter violations

By Cheryl Milne

On July 20, 2018, the Immigration and Refugee Board of Canada released an external audit performed by independent auditor, Katherine Laird, on Canada’s immigration detention review system. She examined randomly selected cases where immigration detention exceeded 100 days. The report documents serious concerns about procedural fairness leading to lengthy incarceration. A review of the document headings shows a litany of unfair practices and barriers to justice that have left many detainees languishing in detention with little hope of release. They include:

  • Failure to allow the detained person to hear and present evidence;
  • Failure to decide afresh as required by the legislation;
  • Uncritical reliance on Canadian Border Security Agency Hearing Officers;
  • Barriers to participation of detained person in the hearing; among others.

The overall finding, articulated as “notable discrepancies between the expectations articulated by the courts and the practice of the Immigration Division,” is based upon many specific instances of practices that show an administrative system that has become one-sided, unfair and callous to the impact of long-term incarceration on individuals.

Calling many of the practices a fundamental breach of natural justice, the report references the Federal Court in Brown v Canada (Citizenship and Immigration):

“Citing Charkaoui, the Court stated:

Before the state can detain people for significant periods of time, it must accord them a fair process. This basic principle has a number of facets. It comprises the right to a hearing. It requires that the hearing be before an independent and impartial decision-maker. It demands a decision based on the facts and the law. It entails the right to know the case put against one, and the right to answer that case.

The liberty interests as stake are significant – cases reviewed involved detention of more than four months – thus invoking the principles of fundamental justice that provide the necessary limit on government action. While the majority of persons in the immigration detention system (88%) are released within 90 days, this is still a significant amount of time. Of those held longer, 64% were released within 180 days (based on 2017 statistics). However, also in 2017, 80 individuals remained in detention for over a year. For those people the detention review hearings seemed to be most problematic and the breaches of fairness most pronounced.

The most problematic jurisdiction examined is the Central Region encompassing most of Ontario. Not surprising, this is the district in which virtually no legal aid was provided to detainees and where fewer detainees therefore had the benefit of legal representation. The auditor also found that the practices of Canadian Border Services Agency were often more adversarial in this jurisdiction.

Overall it is a strong indictment of an administrative system that seems inured to the impact of detention on individuals and oblivious to the obligations of the government under the Charter. The audit finds that too often the onus of proof seemed to have slipped over to the detained person to demonstrate why they should be released, when the original grounds for detention were on shaky factual grounds.

The report makes a number of recommendations, but what is clear is that a cultural change is needed. The auditor notes that the Immigration Division should “encourage a tribunal culture that values compassionate adjudication”. But more than an attitudinal shift is needed. Only substantive reform will fix a system that has skewed so far from the rule of law and the Charter of Rights and Freedoms.

Image by Diego Torres Silvestre

Tax rule capping charities’ political activity infringes on free expression: ONSC

By Sara Tatelman

Courts often breeze by the first step of the Oakes analysis, I remember my first year constitutional law professor telling the class. That is, when determining whether a law infringing on Charter rights is justified, judges tend to give governments the benefit of the doubt that their laws have a legitimate purpose.

In Canada Without Poverty v. Attorney General (Canada), released on July 16, the Ontario Superior Court of Justice decision departs from that trend. In that case, Canada Revenue Agency determined nearly all of the applicant’s activities were political and therefore violated s. 149.1(6.2) of the Income Tax Act. Read alongside s. 9 of CRA’s Policy Statement 022, the provision requires registered charities to spend no more than 10% of their resources on “political activities.” While direct submissions to government don’t count towards the 10% max, communicating similar non-partisan policy messages to the public does.

Canada Without Poverty argued the ITA provision violated its s. 2(b) right to free expression, and that such public advocacy is essential for its fight towards poverty relief. Indeed, its executive director deposed that limiting such communications to 10% of its resources “is fundamentally at odds with achieving its charitable purpose” (para 39).

In his decision, Morgan J. noted that several national and international policies, such as the government’s 2017 Report of the Consultation Panel on the Political Activities of Charities and the Copenhagen Declaration, state that poverty relief is best attained through people’s full participation in decisions around societal well-being.

The government argued the ITA doesn’t violate the applicant’s freedom of expression because it can still engage in such communications, just without the designation of a registered charity. That is, it has a right to free speech but not subsidized speech (para 31).

But Morgan J. disagreed, noting that “any burden, including a cost burden, imposed by government on the exercise of a fundamental freedom such as religion or expression can qualify as an infringement of that right or freedom if it is not trivial or insubstantial” (para 44).

He also pointed to McLachlin C.J. and Major J.’s partial dissent in Harper, which highlights the importance of public communication in free speech: “The ability to engage in effective speech in the public square means nothing if it does not include the ability to attempt to persuade one’s fellow citizen through debate and discussion” (para 45).

Morgan J. added that Canada Without Poverty has a right to effective freedom of expression, which includes “the ability to engage in unimpaired public policy advocacy toward its charitable purpose” (para 47).

Having determined the applicant’s right to free expression was infringed, Morgan J. analyzed whether such infringement was justified. After examining statements of the Minister of National Revenue when the ITA provision was introduced in 1985, the wording of the statute and CRA’s policy statement, he found it was not.

“Government cannot justify limiting the right of free expression for charities for the very purpose of ensuring that charities use no more than 10% of their resources on the exercise of free expression,” he wrote (para 62).

Since this a rare case where step one of the Oakes test was not met – the government didn’t establish a pressing and substantial objective for the law in question – there was no need to go further. “Once the objective is determined to be unjustified, the means chosen to accomplish the objective are equally unjustifiable and the impairment cannot be minimal,” Morgan J. wrote (para 64).

He therefore struck down the parts of the ITA provision that required charities to limit their political activities to 10% of their resources, effective immediately. He also ordered a reading in of the phrase “charitable activities” in the provision to include all non-partisan political activities that further the organization’s charitable purposes.

So, charities, go forth and agitate (in a non-partisan way)!