Francis v Ontario: The ONCA Upholds Charter Breaches for Any Period in Administrative Segregation for Seriously Mentally Ill Inmates
In an unanimous decision, the Ontario Court of Appeal (“ONCA” or “the Court”) dismissed the Ontario government’s appeal against the $30 million solitary confinement class action. Francis v Ontario 2021 ONCA 197 [Francis] is a significant decision for two reasons. First, the ONCA upheld the motion judge’s finding that placing seriously mentally ill (“SMI”) inmates in administrative segregation for any period violates sections (ss.) 7 and 12 of the Canadian Charter of Rights and Freedoms [Charter] (Francis, para 47). Secondly, the Court did not allow Ontario to escape a finding of negligence through the protection of the s. 11(5)(c) Crown Liability and Proceedings Act 2019, SO 2019, c 7, Sched 17 [CLPA]. This Act shields the provincial government from any claims arising on behalf of any negligent acts that occur when the government is exercising legislative duties, such as making regulations. The ONCA held that the decision to place inmates into administrative segregation was operational in nature, and not a policy decision, which barred the provincial government from employing protection from the CLPA.
Conrey Francis commenced the class action in 2017, including other inmates who were also held in administrative segregation. He was left suffering from severe consequences after being placed in segregation twice while incarcerated, once for eight consecutive days, for refusing to take his mental health medication that had caused him to experience negative side effects in the past (Francis, para 6). This case is meaningful due to the fact that none of any previous administrative segregation cases has held that detention in solitary confinement for any period of time could constitute a Charter violation (Francis, para 35). This was Ontario’s main argument in appealing against the trial judge’s decision. The provincial government brought specific attention to the ONCA’s own ruling in two recent cases: Brazeau v Attorney General (Canada) 2020 ONCA 184 [Brazeau] and Corporation of the Canadian Civil Liberties Association v Canada (Attorney General) 2019 ONCA 243 [CCLA].
In Brazeau, the trial judge found that the ss. 7 and 12 Charter rights of SMI inmates were breached after 30 or 60 days of administrative segregation, dependent on whether the solitary confinement was voluntary or not (Francis, para 35). CCLA, recently decided in March 2019, also held that administrative segregation was unconstitutional under s. 12 of the Charter, but for periods exceeding 15 days (Francis, para 37). Ontario argued that the trial judge “was bound by the most recent precedent, CCLA, unless the evidence in this case was materially different on the relevant issue,” to which Ontario contested that it was not.
The CCLA case was granted leave to the Supreme Court in February 2020 (SCC Case Number 38574), however, in April of that same year, the federal government abandoned its attempt to overturn the Court of Appeal’s decision. Since then, the Canadian Civil Liberties Association (“CCLA”) declared in a statement that the challenged legislation in that case, ss. 31–37 of the Corrections and Conditional Release Act, SC 1992, c 20 [CCRA], which authorizes administrative segregation, have been relied upon by prisoners in successful class actions. Following this lead, it is unclear whether the provincial government of Ontario will seek leave to appeal this case. If it is appealed and granted leave, the Supreme Court of Canada (“SCC”) would have another chance to determine whether and to what extent solitary confinement in Canada is a violation of individual Charter rights.
The Administrative Segregation Regime
Ontario jails are not created by statute but instead formulated and operated under the authority of the Ministry of Correctional Services Act, RSO 1990, c M 22 [the Act]. The superintendent, or designated deputy superintendent, is responsible for the administration of the jail, custody and supervision of the inmates under sub-sections 20(1.1), (2) and (3) of the Act. Section 34(1) gives superintendents the power to place an inmate into solitary confinement for numerous reasons, “including inmate safety, the safety of others, or the security of the institution” (Francis, para 53). Beyond these provisions, there is nothing that speaks to the specifics of administrative segregation in Ontario jails, nor is there even a definition of “segregation.” Ontario has made changes to its directives and policies with respect to the segregation regime, however, as mentioned by the motion judge, they are not often followed (Francis, para 54).
The ONCA listed five fundamental facts that were crucial to the constitutional arguments. They remained constant features of solitary confinement in Ontario jails throughout 2015 to 2018, during the claim period, and demonstrated the extent to which the policies were being ignored:
administrative segregation, as practiced in Ontario, fell squarely within the widely accepted definition of solitary confinement
SMI inmates could be placed in administrative segregation
Placement of inmates in administrative segregation was indefinite
There was no “hard cap” limiting the maximum time period for which an inmate could be held in administrative segregation; and
No inmate held in administrative segregation had access to timely, independent reviews of that status (Francis, para 55).
The seriousness of the Charter breaches, noted in the factors above, was central to whether damages provided an “appropriate and just” remedy for ss. 7 and 12 Charter violations.
At The ONCA
The motion judge found infringements on inmates’ ss. 7 and 12 Charter rights, as well as liability for negligence, which was included in the amount awarded for the complainants. The ONCA looked at three issues on the appeal: whether the motion judge erred in finding that detaining SMI inmates in administrative segregation violated ss. 7 and 12 of the Charter, whether there was an error in awarding Charter damages and whether the motion judge erred in holding Ontario liable for negligence (Francis, para 2). The ONCA upheld the trial judge’s determination, however, finding the foundation to lie more appropriately with the Charter, than with negligence (Francis, para 29). That being said, the ONCA did continue to review the claim for negligence in case this action was appealed further (Francis, para 94).
The members who formed the class action group consisted of two groups: SMI inmates, who were subjected to administrative segregation for any period of time; and prolonged inmates, who were subjected to administrative segregation for 15 or more consecutive days (Francis, para 31). The unanimous Court, with Justices Doherty, Nordheimer and Young residing, accepted the motion judge’s finding that the s. 7 and s. 12 rights of the SMI inmates were breached when they were placed in administrative segregation (Francis, para 49). The ONCA distinguished the CCLA case where the Court was unable to distinguish “those inmates whose particular mental illnesses are of such a kind as to render administrative segregations for any length of time cruel and unusual” (CCLA, para 66).
The Court found that because the nature of the illnesses suffered by SMI inmates was part of the class definition of SMI inmates and able to be identified, there was evidence to support the finding that the SMI inmates in this appeal were “clearly seriously mentally ill” (Francis, para 38). This definition allowed the motion judge, as well as the ONCA, to focus on the impact of just those inmates who fell within the specific limits of the definition, not the impact on all who might have suffered some form of illness. The determination made in the case of Brazeau, relied upon by Ontario, was actually used by the ONCA to support the finding of harm caused by administrative segregation (Francis, para 44). In Brazeau, the harm was held to begin affecting SMI inmates, “almost immediately after the doors are shut on the isolation cell” (Brazeau, para 313). As that case pre-dated CCLA, the breach of ss. 7 and 12 was found only after 30 or 60 days on a class-wide basis.
The ONCA stated it might have been helpful to have a reason for the motion judge’s finding that something less than 15 days for SMI inmates would not satisfy the constitutional requirement, however, they did not need an explanation from the motion judge as to the inconsistency in cases between this one and Brazeau (Francis, para 46, 47). The Court upheld the motion judge’s finding that the ss. 7 and 12 Charter rights of SMI inmates were breached. This finding was based on the motion judge’s analysis and review of the evidence, including the serious stress and anxiety experienced by SMI inmates once placed in administrative segregation leading to self-mutilation and an increased risk of suicide (Francis, para 16, 18).
Awarding Charter Damages
In evaluating whether the motion judge erred in awarding Charter damages, the ONCA focused on the third step of the test formulated in Vancouver (City) v Ward 2010 SCC 27 [Ward] by Chief Justice McLachlin (Ward, para 4). This test discerns whether a claim to Charter damages exists. Once it has been established that a Charter right has been breached, and reasons are given to support that damages are a just and appropriate remedy, the third step focuses on any countervailing factors that the state could demonstrate that would show an award of damages to be inappropriate in a specific case. Ontario relied on “good governance” concerns to show the negative impact that “damage awards could have on the conduct of state actors charged with the responsibility of enacting laws and then enforcing those duly enacted laws” (Francis, para 59). The Court relied upon Ward to hold that good governance will not defeat a claim for damages, especially when state conduct exists that is sufficiently blameworthy (Francis, para 60).
In Brazeau, the Court determined Charter damages to be an appropriate remedy relying on evidence that included sources other than Canadian judicial precedents when determining whether state conduct violated constitutionally protected rights of inmates who were kept in segregation (Francis, para 70). In the Francis appeal, Ontario contested to measuring the state’s blameworthiness against sources outside of Canada, especially considering that the CCLA decision was not apparent until March 2019. The ONCA followed the ruling in Brazeau, where this argument was made unsuccessfully by Ontario as an intervener and held “state conduct showing a ‘clear disregard’ for the unconstitutional consequences of that conduct is the antithesis of good governance” (Francis, para 72).
The ONCA also spoke to the expectation of common sense and logic to be used when assessing what should have been relied upon in assessing the degree of risk of unconstitutional consequences as a result of administrative segregation. The Court pointed to the volume of expert evidence that has been apparent in Canada and internationally of the disastrous effects of solitary confinement on SMI inmates (Francis, para 73). The fact that international sources were used to address the negative effects of segregation was not an issue due to the availability of this information to correctional authorities. The ONCA justified this by stating, “Ontario cannot turn a blind eye to the overwhelming evidence of the unconstitutionality of its actions just because a court has yet to pronounce on that which is obvious” (Francis, para 74). Since the quantum award was not challenged on appeal, the ONCA affirmed the damages awarded of $30 million made by the motion judge and disposed of Ontario’s appeal (Francis, para 79).
Liability in Negligence
The ONCA also addressed the negligence claim in the event that this case was appealed to the SCC, and a different determination was made out as to the Charter issues (Francis, para 94). The Court held that even though policy decisions made by the government are immune from negligent claims, operational matters are not (Francis, para 134). The ONCA held that the superintendents, in exercising their choice to place class members in administrative segregation, were actually implementing the policy decisions and those choices once acted upon became operational in nature (Francis, para 139). Operational matters are not protected within the immunity of s. 11(5)(c) of the CLPA, leaving the government open to claims purporting liability in negligence.
This case is a huge victory for members of the community who face the terrifying and disastrous effects of administrative segregation and who have been fighting a long time for their rights to be protected. The CCLA has been working for over a decade to fight the severe harm experienced by individuals who suffer from mental illness and have been left in isolation. This judgment of unconstitutionality is evidence of their years of hard work finally paying off.
It is unclear whether the Ontario government will once again attempt to appeal this decision to the SCC. The withdrawal of the federal government’s pursuit to the SCC against an Ontario decision prohibiting prolonged solitary confinement in the CCLA case may be indicative of the provincial government following suit. The decisions in the last two years at the appellate courts have indicated a move towards the unconstitutionality of administrative segregation and protection of inmates’ Charter rights. One conclusion this case does make clear is that bringing actions against the provincial government may not be as difficult when someone has suffered a loss due to negligent government action when they are acting in an operational capacity. This decision, as it currently stands, does not allow Ontario to use their immunity in s. 11(5)(c) of the CLPA as a way to always escape liability.