Written By Sakina Babwani and Ranjan Agarwal

The Ontario Court of Appeal’s decision in Francis v Ontario, 2021 ONCA 197, is a significant new development in the law of Crown liability. The Court unanimously upheld a summary judgment ruling in a class proceeding finding that Ontario was liable to the class consisting of certain provincial inmates for breaching their Charter rights by placing them in solitary confinement. The Court also held that the recently amended Crown Liability and Proceedings Act (CLPA) does not protect Ontario from the actual results that flow from the operational implementation of the province's policy on solitary confinement.

Background

Ontario appealed the decision of the motion judge, Justice Perell, who on a summary judgment motion found that Ontario owed a duty of care in negligence to the plaintiff and his fellow class members arising from the system of administrative segregation, commonly known as solitary confinement, used in Ontario's correctional institutions between April 2015, and September 2018.

The plaintiff, who was a seriously mentally ill inmate, was placed in administrative segregation twice for refusing to take his mental health medication. The plaintiff's experience in administrative segregation was excruciating—his anxiety was out of control, he felt terrorized, and was in a state of delirium and shock.

In 2017, the plaintiff commenced a class action, seeking declarations that his and his class members' rights under the Charter had been infringed by Ontario's system of solitary confinement and that Ontario was liable in negligence. The plaintiff sought damages in negligence and under section 24 of the Charter, as well as punitive damages.

The motion judge found: (i) that Ontario had breached its duty of care in negligence to the plaintiffs, and (ii) that Ontario's system of administrative segregation breached the plaintiffs' section 7 and 12 Charter rights. As a result, Justice Perell awarded Charter damages against Ontario in the amount of $30 million. He declined to separately assess damages for negligence, other than to say that any amount for damages for negligence would be subsumed in the award of aggregate damages for the Charter breaches.

On appeal, Ontario argued that the motion judge had erred in: (a) holding Ontario liable in negligence; (b) finding that detaining seriously mentally ill inmates in administrative segregation violated their Charter rights; and (c) awarding Charter damages.

Charter Breaches and Damages

The Court of Appeal began its analysis by examining the alleged Charter breaches, as it concluded that the claims were more appropriately rooted in the Charter than in negligence.

While Ontario conceded that solitary confinement of more than 15 days violated the Charter, it challenged the motion judge's finding that the section 7 and 12 Charter rights of inmates were breached when inmates were placed in administrative segregation, regardless of the duration of the placement. The Court of Appeal rejected the province's argument on the basis that previously, in Corporation of the Canadian Civil Liberties Association v Her Majesty the Queen, 2019 ONCA 243, the Court had found that administrative segregation of more than 15 days constituted cruel and unusual punishment. Thus, it followed that seriously mentally ill inmates suffered cruel and unusual punishment at some point before 15 days.

Having concluded that the Charter rights of the plaintiff class were breached, the Court of Appeal then examined the Charter damages awarded by the motion judge. In Vancouver (City) v Ward, 2010 SCC 27, the Supreme Court of Canada described a four-part inquiry to examine Charter damages: (i) the court must determine whether a Charter right has been breached; (ii) the plaintiff must show that damages are a just and appropriate remedy; (iii) the state may then seek to demonstrate that countervailing factors render damages inappropriate or unjust; and (iv) if damages are determined to be appropriate, the court should assess the quantum of those damages.

A key focus of the appeal here was whether the Crown could show countervailing factors, such as good governance, that would render damages as an inappropriate or unjust remedy. The Court of Appeal, however, cautioned that good governance claims do not necessarily defeat a claim for damages. If state conduct is sufficiently blameworthy, it will lead to Charter damages, despite good governance. Ontario had to demonstrate that its conduct was "not sufficiently blameworthy" to negate any good governance concerns. In the context of a regulatory scheme, blameworthiness is equated with a clear disregard for the unconstitutional consequences of the challenged practice, in this case administrative segregation.

The plaintiff adduced a substantial body of evidence from both national and international sources showing the serious harms flowing from administrative segregation, which the Court of Appeal found to be satisfactory and indicative that "Ontario was aware of the very real risk, if not the very real likelihood, that administrative segregation, as practiced in Ontario jails, routinely violated the constitutional rights of inmates."

Recognizing that the Ward test as followed in the more recent solitary confinement case law— Brazeau v Canada, 2019 ONSC 1888, and Reddock v Canada, 2019 ONSC 5053—was still good law, the Court of Appeal held that Charter damages were an "appropriate and just" remedy here.

Good Governance Concerns

Although not necessary for the disposition of this appeal, the Court of Appeal held that good governance concerns operate at their strongest when there is a direct cause and effect between the statutory provision and the unconstitutional conduct.

The law in Ontario remains as set down in Brazeau and Reddock. Good governance concerns at step three of the Ward test "may be raised if government policies, which precipitated unconstitutional actions, can be sufficiently connected to statutory provisions (or perhaps provisions in a regulation)".

Negligence Claim

Although it was unnecessary to consider the negligence claim (having upheld the damages award on the basis of the Charter claims), the Court of Appeal did so for the "sake of completeness".

The Court of Appeal agreed with the motion judge's analysis that the application of the CLPA did not preclude the plaintiffs' claim in negligence as "the CLPA simply codified the existing law regarding Crown immunity and the policy/operational dichotomy that rendered the Crown immune from liability for the former, but not the latter."

Further, the Court held that, although the provincial government could adopt a "policy of using administrative segregation in its correctional facilities; … how the policy is actually applied is not a policy matter, but an operational matter." In effect, the Court found that section 11(5)(c) of the CLPA does not protect Ontario from the actual results that flow from the implementation of its solitary confinement policy. Thus, if a superintendent applies the solitary confinement policy to an inmate in a negligent manner, then Ontario is liable for injury or harm that flows from that operational action.

For further information or to discuss a matter concerning class proceedings or constitutional law issues, please contact a member of Bennett Jones' Class Action Litigation group or Constitutional Law group.

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