[215] This represents no change from the status quo because,
according to Warden Pyke, inmates with these mental health
issues were not supposed to be in administrative segregation
under the policy in effect prior to August 1, 2017.
[216] The practice described by Commissioner’s Directive 709
is inconsistent with s. 87(a) of the Corrections and Conditional
Release Act, which provides: “The Service shall take into consideration an offender’s state of health and health care needs
(a) in all decisions affecting the offender, including decisions
relating to . . . administrative segregation . . . .” Health care
in s. 87 includes mental health care; offender in s. 87 includes
an inmate.
[217] This inconsistency has its genesis in the Corrections and
Conditional Release Act. Specifically, ss. 31(3) and 32 do not reference the mental health of the inmate as a consideration for
admission to or release from administrative segregation. They
stipulate that safety and the integrity of investigations are the
only considerations for admission in or release from administrative segregation. As indicated, s. 87(a) stipulates that an
inmate’s mental health must be taken into consideration in decisions relating to administrative segregation.
[218] Sections 31(3), 32 and 87 were enacted at the same time.
I assume that Parliament did not intend ss. 31(3) and 32 to conflict with s. 87(a).
[219] Commissioner’s Directive 709 does not rationalize the
apparent conflict. Rather, it creates a real risk that the institutional head will exercise his or her discretion in a way that contravenes s. 87(a). The directive creates a subclass of mentally ill
inmates who cannot be placed in administrative segregation;
namely, inmates with “serious mental illness”, inmates “actively
engaging in self-injury” which is deemed likely to result in “
serious bodily harm” or inmates at an “elevated or imminent risk
of suicide”.
[220] The necessary implication for the institutional head
from the wording of this directive is that mentally ill inmates
not falling within the class described in Directive 709 can be
placed in administrative segregation. Section 87(a), however, is
not restricted in this way or at all.
[221] The ambiguity in the legislation, caused because the legislative scheme requires consideration of mental health, while
mental health is omitted from s. 31, and because of the inconsistency between Commissioner’s Directive 709 and s. 87(a) is
even more unsatisfactory because the respondent agrees segregating some mentally ill inmates should be prohibited.
