On March 31, 2021, the Court of Appeal for Ontario released an important decision concerning administrative segregation in the case of Francis v. Ontario, 2021 ONCA 197. Mr. Francis suffers from a serious mental illness and was held in the Toronto South Detention Centre for over two years while awaiting trial on charges related to a bank robbery. He was ultimately acquitted of all charges. During his incarceration, Mr. Francis was placed in administrative segregation twice (once for eight days).
Mr. Francis brought a class action on behalf of other inmates in Ontario correctional institutions who were also subject to administrative segregation. In Ontario, when an inmate is administratively segregated, they are isolated in a small cell for 22 hours with no meaningful human contact. Cells are often filthy and covered in bodily fluids. Mentally ill inmates are significantly overrepresented among inmates subject to administrative segregation.
The motion judge concluded that Ontario was liable in negligence and acted contrary to the Charter of Rights and Freedoms in its practice of administrative segregation and awarded $30 million in damages. Ontario appealed the decision to the Court of Appeal.
Violations of the Charter
Based on other decisions that have considered the issue of administrative segregation, Ontario conceded that administrative segregation for more than 15 days violated sections 7 (life, liberty, and security of person) and 12 (cruel and unusual punishment) of the Charter and that the absence of a timely independent review process violated section 7. However, it argued that the motion judge erred in concluding that any length of administrative segregation violated sections 7 and 12 for inmates with serious mental illness.
The Court of Appeal did not agree. The Court of Appeal noted that Ontario did not argue that the motion judge misstated the law regarding section 7 and 12, and concluded that the motion judge’s factual findings were supported by the evidence.
The Court of Appeal reviewed the principles applicable to Charter damages. In the Supreme Court’s decision in Vancouver (City) v. Ward, the Supreme Court identified the following steps for determining whether an award of Charter damages is appropriate:
- Establish that a Charter right has been infringed;
- Show why damages are an appropriate and just remedy, having regard to whether they would fulfil one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches;
- The state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damages award and render damages inappropriate or unjust; and
- Determine the quantum of damages.
The Court of Appeal focused its analysis on the third step of the Ward test. Ontario argued that damages were not appropriate because of “good governance” concerns, meaning the concern that state actors will be deterred from performing functions if they fear that, at a later date, a court might declare those duly enacted laws unconstitutional and award damages for acts done based on the now unconstitutional laws.
The Court of Appeal disagreed. It held that state conduct showing a clear disregard for the unconstitutional consequences of that conduct is antithetical to good governance. The court noted that there was considerable evidence “speaking to the longstanding knowledge in Canada, and internationally, of the very serious harmful effects of solitary confinement, particularly on the seriously mentally ill” (para. 73). The court concluded that Ontario was aware of the very real risk that administrative segregation routinely violated the constitutional rights of inmates.
The Court of Appeal also considered Mr. Francis’ argument that good governance concerns do not arise where the state conduct is the product of ministerial policies and management-level operational decisions, rather than specific statutory mandates. The court held that good governance concerns may be raised if government policies which result in unconstitutional actions can be sufficiently connected to statutory provisions (or possibly provisions in a regulation).
The Court of Appeal agreed with the motion judge’s conclusion that Ontario was liable in negligence. In a previous decision, Brazeau v. Canada (Attorney General), the court held that a systemic negligence claim for administrative segregation could not succeed.
In Francis, the court held there were two key distinguishing factors that meant the negligence claim could succeed there. First, the class definition in Francis was limited and composed of only two groups (inmates with serious mental illness subject to administrative detention of any length and inmates subject to administrative detention of more than 15 days). Second, the pleadings in Francis were based not on policy decisions (which are immune from suit), but operational decisions about Ontario’s operation of its correctional facilities.
The court rejected the argument that the negligence claim was barred by virtue of the Crown Liability and Proceedings Act, 2019. It concluded that the adoption of administrative segregation is a policy matter, but how that policy is applied at the ground level is an operational matter. The decisions of superintendents as to who should be placed in administrative segregation are operational (not policy) decisions.
The Court of Appeal’s decision in Francis is one of several recent decisions that have addressed the practice of administrative segregation. In a previous decision (Brazeau), $20 million was awarded in damages for improper administrative segregation. The decision in Francis is a significant increase of $10 million from what was awarded in Brazeau and reflects an increased willingness to award very significant damages for breaches of the Charter.
The Court of Appeal in Francis also offered helpful guidance regarding when Charter damages can be awarded and in particular, when considerations of good governance will mean that Charter damages are not appropriate. Charter damages are a relatively recent development in the last decade and we expect to see continued case law from the Ontario Court of Appeal and other courts across the country addressing this issue, especially as damages awards continue to grow.