segregation and is coming before the Segregation Review Board
means that the institutional head intends to maintain administrative segregation.
[154] Finally, Rule 45 of the Mandela Rules contemplates an
independent review of the decision segregate. I recognize that
the Mandela Rules are not binding in Canada. However, I am
also satisfied that the principles of fundamental justice and the
limits on rights that may be justified under s. 1 of the Charter
cannot be considered in isolation from international norms. The
concern is the determination of what is meant by the principles
of fundamental justice; the court is not concerned with determining Canada’s international obligations. Further, in seeking the
meaning of the Canadian constitution, international law may
inform the court. See Suresh v. Canada (Minister of Citizenship
& Immigration), supra, at paras. 59-60.
[155] I am satisfied that the statutory review of the decision to
segregate is procedurally unfair under the Baker test and contrary to the principles of fundamental justice because the procedure chosen provides that the institutional head is the final
decision-maker for admission, maintenance and release from
administrative segregation and is the final institutional decision-maker of required reviews and hearings which occur immediately after an inmate is segregated.
[156] I am also satisfied because of this context, because
Charter rights are affected and because negative psychological effects
can occur within days that it is a principle of fundamental justice that the review of the decision to place an inmate in segregation required by Parliament must occur promptly.
The Infringement is Not Saved by s. 1 of the Charter
[157] Infringement of these two s. 7 Charter rights is not
saved by s. 1. It is difficult, but not impossible, to justify a s. 7
violation (Bedford, para. 95). It may be justified where the competing public interest protected by the law also involves Charter
rights.
[158] To justify a law under s. 1, the government must demonstrate that the law meets a pressing and substantial objective,
that it is rationally connected to its objectives and that it is minimally impairing.
[159] The purposes of administrative segregation are the
preservation of the security of the penitentiary, the safety of the
people working in the penitentiary, the safety of the inmates
housed there and the integrity of serious investigations.
[160] These are pressing and substantial objectives.
