Charter

Court Holds Prolonged and Indefinite Solitary Confinement is Unconstitutional

Today the Court of Appeal of British Columbia upheld the trial judge’s order that ss. 31–33 and 37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 unjustifiably infringe s. 7 of the Charter which protects the rights to life, liberty and security of the person. Those provisions are of no force and effect because they authorize indefinite and prolonged administrative segregation in conditions that constitute solitary confinement, and authorize internal rather than external review of decisions to segregate inmates in solitary confinement. 

The Court also found that there had been discrimination against mentally ill and indigenous inmates, contrary to s. 15 of the Charter which protects equality. The Court made declarations that Corrections has, in its implementation of the administrative segregation provisions: breached its obligation under the Act to give meaningful consideration to the health care needs of mentally ill and/or disabled inmates before placing or confirming the placement of such inmates in segregation; and breached its obligation under the Act to ensure that inmates placed in administrative segregation are given a reasonable opportunity to retain and instruct counsel without delay and to do so in private.

The successful respondents were represented by Joseph Arvay, Q.C. and Alison M. Latimer.

To read the full judgment, click here.

Government Must Take Steps to Address Charter Concerns of Inmates in Solitary

In 2018, Justice Leask issued a declaration that the sections of the Corrections and Conditional Release Act that authorize the placement and maintenance of inmates in solitary confinement are unconstitutional. He suspended the declaration for one year to allow Parliament to enact replacement legislation.  The Attorney General appealed and applied for an extension of the suspension to July 31, 2019, to allow Parliament more time to enact new legislation. 

Today the BC Court of Appeal ruled that “government must take steps to deal with constitutional concerns” raised in the lawsuit. Inordinate delays justified the Court’s intervention given the Attorney General does not seriously dispute that current practices of solitary confinement do not conform to constitutional requirements.

Therefore, while the Court granted a shorter extension than that sought by the Attorney General, it did so only on specific conditions. Those conditions aim to reduce or eliminate violations of inmates’ constitutional rights pending the enactment of new legislation.

The Attorney General is required to report to the Court on its progress in respect of certain conditions prior to February 28, 2019. The Court reserved the power to impose additional conditions on the continuation of the suspension of the declaration. Those conditions concern, among other things, the health of inmates in solitary confinement, the treatment of indigenous inmates in solitary confinement, time out of cell of those held in solitary confinement, access to counsel, and procedural safeguards for those in solitary confinement.

The decision is available here.

Joseph J. Arvay, Q.C., O.C. and Alison M. Latimer act for the British Columbia Civil Liberties Association and the John Howard Society.

SCC Grants Leave to Intervene in R. v. Rafilovich

The Supreme Court of Canada has today granted leave to intervene to the British Columbia Civil Liberties Association (BCCLA) in an appeal from this decision: R. v. Ravilovich, 2017 ONCA 634.

The issues in this appeal are important matters of public law that concern whether the Criminal Code, properly interpreted, leaves sentencing judges with discretion to refuse to order a fine in lieu of forfeiture of seized funds previously paid to counsel by virtue of a court order. The BCCLA will argue that an accused person who requires counsel, and who is otherwise unable to afford counsel, should not be required to choose between being self-represented on the one hand, and potentially being subject to a sentence, in addition to what is fit and appropriate having regard to the charges and the circumstances of the person, for having applied for and received a court order permitting fees to be released under judicial supervision.

The BCCLA is represented by Alison M. Latimer and Gregory DelBigio, Q.C.

Court Rules Solitary Confinement Laws are Unconstitutional

This week the BC Supreme Court struck down the federal laws that govern solitary confinement. The declaration of constitutional invalidity will be suspended for 12 months.

The laws are unconstitutional because solitary confinement can be imposed without strict time limits, inmates in solitary confinement are not entitled to a review conducted by an independent external decision-maker, and the laws fail to provide that inmates may be represented by counsel at segregation review board hearings. The laws further unjustifiably infringe the Charter because they discriminate against mentally ill and/or disabled inmates and Aboriginal inmates.

Joseph Arvay, O.C., Q.C., Alison M. Latimer and Caily DiPuma act for the plaintiffs in this landmark case.

To read the full judgment, click here

Supreme Court of Canada Grants Federation of Law Societies Leave to Intervene

Today the Supreme Court of Canada granted the Federation of Law Societies leave to intervene in Joseph Peter Paul Groia v. Law Society of Upper Canada. The appeal concerns the scope of the jurisdiction of the Law Society of Upper Canada with respect to in-court conduct of its members. It raises significant questions of national importance about the extent to which any law society in Canada may regulate uncivil in-court conduct in light of the duties of zealous advocacy and loyalty to the client’s cause, the independence of the judiciary, and the free expression of members of the law society.

Alison Latimer and Greg Delbigio Q.C. act for the Federation of Law Societies.

Chief Justice Awards Increased Costs for Complex Public Interest Case

The Chief Justice of British Columbia has found that the defendants in litigation involving the constitutional rights of homeless individuals in Victoria are entitled to increased costs against the Attorney General of British Columbia. The Chief Justice noted that the defendants had enjoyed real success in achieving some of their housing demands, and that it would be grossly inadequate or unjust to only award them costs on the normal scale. Catherine Boies Parker acted for the homeless defendants.

The Court's decision can be found here:  British Columbia v. Adamson, 2017 BCSC 168

Supreme Court of Canada Decision is a Victory for Free Speech

Alison Latimer along with Sean Hern acted for the appellant, the BC Freedom of Information and Privacy Association, in a constitutional challenge to BC laws that require election advertising sponsors to register before they engage in election advertising. The Chief Electoral Officer, charged with enforcing the Act, interpreted this law as capturing individuals and organisations transmitting their own views by posting a handmade sign in a window, putting a bumper sticker on a car, or wearing a T-shirt with a message on it. The lower courts agreed. The Supreme Court of Canada today ruled that the law does not capture those activities. Individuals and organisations who neither pay others for advertising services nor receive advertising services from others without charge are not "sponsors" and can express their own views without registering. The Court also held that such expression is not captured by other parts of the Act, including the Act's expenditure limits.

To read the full judgment, click here.

To learn more about the essential work of the BC Freedom of Information and Privacy Association, click here.