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OHRC granted leave to intervene in the appeal of CCLA v Canada

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On October 23, 2018, the Court of Appeal for Ontario granted the Ontario Human Rights Commission (OHRC) leave to intervene in the appeal of Corporation of the Canadian Civil Liberties Association (CCLA) v Canada, a constitutional challenge to the administrative segregation provisions of the federal Corrections and Conditional Release Act.

The OHRC is recognized as a national leader in terms of advocating for segregation policies that comply with international law, the Ontario Human Rights Code, and the Charter of Rights and Freedoms (Charter). The OHRC’s 2017-2022 Strategic Plan, commits us to work towards non-discriminatory practices in corrections, including ending the use of solitary confinement entirely.

The Appellant is arguing that the current federal law – which provides no independent oversight of segregation decisions, no time limits on segregation use, and permits the segregation of individuals with mental health disabilities and young adults – violates ss. 7, 12 and 11(h) of the Charter.

At the original application, the federal segregation provisions were found to violate s. 7 because they failed to provide for independent oversight of segregation decisions. The Application judge dismissed claims that failing to provide hard caps on segregation or to prohibit segregation for persons with mental disabilities and young adults also violated the Charter. The CCLA appeals those aspects of the decision.

At the appeal, the OHRC will argue that:

  1. The 15-day time limit on segregation and the prohibition of segregation for persons with “mental disorders” provided for under Ontario’s Correctional Services and Reintegration Act should be considered modern benchmarks for determining the minimum social standards of decency for the purposes of Charter s. 12 and the scope of the principles of fundamental justice under Charter s.7.
  1. The disproportionate use of segregation and its severe and localized impact on persons with mental health disabilities and Indigenous peoples must be reflected in the Court’s application of Charter ss. 7 and 12.
  1. The statutory discretion of a corrections official to modify segregation decisions based on health considerations cannot be relied on to avoid a Charter violation under the “reasonable hypothetical” test established by the Supreme Court of Canada.

The appeal will be heard from November 20-21, 2018. The OHRC has been granted the opportunity to provide oral submissions to the Court.