The Litigator

THE LITIGATOR

Commentary on Law Affecting Business

The Litigator
AGM :: Affleck Greene McMurtry LLP

THE LITIGATOR

Affleck Greene McMurtry LLP
365 Bay Street, Suite 200  ·  Toronto, Canada
416 360 2800  ·  info@agmlawyers.com  ·  www.thelitigator.ca

Ontario Court of Appeal sets aside $20 million Charter damages award in solitary confinement class action

Recently, the Court of Appeal for Ontario set aside a $20 million damages award against the Federal government for “additional mental health or program resources for structural changes to penal institutions to help mentally ill inmates.”

Christopher Brazeau and David Kift sued the Federal Government on behalf of a class of inmates in federal penitentiaries with serious mental illness. They alleged that the Federal government breached their Charter rights by placing them in “administrative segregation.”

The practice of “administrative segregation” involves removing an inmate from the general prison population and isolating him or her in a solitary cell without meaningful human contact for an extended period of time.

The action was certified as a class proceeding in 2016. Brazeau and Kift moved for summary judgment, which was granted. The motion judge found that class members’ rights had been contravened under:

  • (a) s. 7 of the Canadian Charter of Rights and Freedoms to not be deprived of the right to life, liberty and security of the person except in accordance with the principles of fundamental justice,
  • (b) s. 9 of the Charter not to be arbitrarily detained or imprisoned; and
  • (c) s. 12 of the Charter not to be subjected to any cruel and unusual treatment or punishment

Regarding the s. 7 breach, the motion judge held that it had been violated in respect of two subclasses: (a) those who were involuntarily placed in the administrative segregation for more than 30 days or (b) who were voluntarily placed in administrative segregation for more than 60 days. The motion judge further held that the absence of a meaningful review process of decisions to place a mentally ill inmate in administrative segregation was in fact a breach on a class-wide basis of s. 7.

The motion judge awarded damages on an aggregate basis of $20 million under s. 24(1) of the Charter for vindication and deterrence. The motion judge ordered that the damages be distributed, less counsel’s legal fees and disbursements, in the form of “additional mental health or program resources for structural changes to penal institutions” and not to the class members directly.

The central issue on appeal in Brazeau v. Canada (Attorney General), [2020] ONCA 184, was whether the motion judge had the authority to order damages for breaches of ss. 7 and 12 of the Charter as he did, on his own motion, and without the need for submissions from the parties on this point. On March 9, 2020, the Court of Appeal for Ontario found that in doing so, the motion judge made three serious errors in law and set aside the damages award.

First, by making the order without the benefit of submissions, Perell denied both parties procedural fairness.

Second, the motion judge erred in his interpretation of s. 26 of the Class Proceedings Act. That section permits aggregate damages awards. It did not, the Court of Appeal held, permit the damages for “additional mental health or program resources for structural changes to penal institutions.” The only provision made in s. 26 for the distribution of aggregate to any person other than the class members is found in ss. 26(4)-(6), which allow for cy-près distribution of remaining funds. Cy-près distributions frequently deal with settlement funds that go unclaimed by class members or distribute damages awards to charities where it is impractical to distribute the funds to class members. Otherwise, s. 26 contemplates distribution of the award to class members directly.

Third, the award of aggregate damages violated the principles outlined in Doucet-Boudreau v. Noval Scotia (Minister of Education), 2003 SCC 62. In that case, the Supreme Court of Canada held that Charter remedies “must employ means that are legitimate within the framework of our democracy”; “respect the relationships with and separation of functions among the legislature, the executive and the judiciary”; and that courts must not “depart unduly or unnecessarily from their role of adjudicating disputes and granting remedies that address the matter of those disputes.”

The Court of Appeal decided that the underlying decision in Brazeau was not fair to either the class or the Federal Government. It amounted to “an unjustifiable assumption of judicial control over a complex public institution.” It was not an “appropriate and just remedy.”