Province, feds breaching inmates' charter rights with 'administrative segregation': class-action lawsuits

Saskatchewan lawyer Tony Merchant has launched two class-action lawsuits claiming the federal and provincial governments are breaching the charter rights of correctional inmates by keeping them in segregation for "administrative" reasons.

On Friday morning, Merchant's law office filed statements of claim against the attorneys general of Saskatchewan and Canada, claiming both levels of government are breaching the Charter of Rights and Freedoms.   

Members of the class-action suit against the province include inmates who claim they were held for periods totalling up to six years and consecutive periods of three months.  

Members of the class action against the federal government claim they were held in segregation for periods of up to seven consecutive months.

Lack of medical care among complaints

"Prolonged indefinite administrative segregation was used intentionally, consistently, and with full knowledge of the physical and psychological damage that it would [cause]," reads the statement of claim against the province.

It claims the practice causes serious psychological suffering, and that the health risk increases the longer that the individual is isolated.

"Use of indefinite administrative segregation can exacerbate symptoms, promote recurrence of mental disorders, and create new mental disorders in inmates," it reads.

According to one of the lawsuits, a 25-year-old class member is currently serving his ninth consecutive month in administrative segregation at the Regina Provincial Correctional Centre.

Another Saskatchewan class member, who suffers from Crohn's disease and is said to have lost almost 11 kilograms in 20 days, claims he has not received proper medical care.

The lawsuit against the Saskatchewan attorney general said governments "knowingly and intentionally acted contrary to … regulations and law."

B.C. ruling

On Jan. 17, B.C. Supreme Court Justice Peter Leask found that the laws surrounding administrative segregation in prison discriminate against Indigenous and mentally ill inmates.

He said the existing rules create a situation in which a warden becomes judge and jury in terms of ordering extended periods of solitary confinement.

"I find as a fact that administrative segregation … is a form of solitary confinement that places all Canadian inmates subject to it at significant risk of serious psychological harm, including mental pain and suffering, and increased incidence of self-harm and suicide," Leask wrote.

Merchant said it also increases an offender's chance of reoffending.

Administrative segregation is allowed in Saskatchewan under the Correctional Services Act.

In a written response to questions from CBC News about the claims in the lawsuits, the provincial Ministry of Justice said it is used as a tool for safety and security in provincial facilities.

It said inmates in administrative segregation have one hour outside of their cells each day, during which they are not allowed to interact with other offenders.

The ministry also said offenders on administrative segregation continue to have contact with their lawyers and others, such as family.

TV depictions inaccurate: ministry

"Although it is often depicted as a specific location/cell in TV and film (i.e. – 'the hole'), it is important to the ministry that it be understood that segregation is a status and not a specific location within our correctional facilities," said the ministry in its written response.

"The depiction of this type of segregation in TV and film is not an accurate representation of the way this practice works in Saskatchewan's correctional facilities. The dimensions of the cells vary from facility to facility."

Instead, it said a panel is required to review a decision to segregate an inmate within two days of them being isolated.

The offender can make submissions to the panel, which provides written reasons for their decision to the inmate and the director of the facility within two business days.

Under provincial legislation, reviews must be conducted at least every 21 days if the segregation is involuntary. The inmate can appeal the decision and they are allowed to seek advice from their lawyer.  

Reasons for isolation vary

"An offender could be put on administrative segregation if they were thought to be a threat to the safety and security of a correctional facility," said the ministry.

"Alternately, an inmate may be put into administrative segregation if corrections staff believed there was a threat to the offender's safety if they were to remain in general population."

But it said the province is participating in the development of a national strategy for the use of administrative segregation.

It said the new strategy, which is being prepared with Correctional Service of Canada, will take into account offenders' rights to physical and mental safety, known as "least restrictive measures," while incarcerated.

The ministry said it is also conducting a medical-services review in its facilities, which will consider mental health services provided and potential ways to improve them. Both the strategy and the review are expected to be complete within the next couple of months.

The Saskatchewan Health Authority, in partnership with other provincial groups, is building the new Saskatchewan Hospital North Battleford as a public-private partnership that will provide therapeutic mental health services to offenders with the goal of improving mental health and reducing reoffending.

Merchant's lawsuit calls for the governments to acknowledge they breached their duty of care for the inmates and pay damages for the impact to them.