inmate into it. Pursuant to the Commissioner’s Directive 709,
para. 70, a mental health professional must provide a written
opinion noting any deterioration of mental health within the
first 25 days of admission and a health care professional must
visit each inmate in administrative segregation daily including
weekends. The Corrections and Conditional Release Act provides
for a maximum amount of time that a person can spend in disciplinary segregation, namely, 45 days.
[252] I am satisfied by the evidence that keeping a person in
administrative segregation for an indefinite prolonged period
exposes that person to abnormal psychological stress and will if
the stay continues indefinitely result in permanent psychological
harm and that Canada seeks to avoid that harm by providing
inmate entitlements, a review mechanism, ongoing health
services and perfunctory contact with Correctional Service of
Canada personnel.
[253] The absence of a maximum limit on detention has been
held not to violate the Charter in an immigration context. See
Brown v. Canada (Minister of Citizenship and Immigration),
[2017] F.C.J. No. 761, 2017 FC 710. However, the issue here is
different because the person detained is segregated and it is the
prolonged isolation from the general inmate population not detention in the penitentiary which causes the harm.
[254] I am satisfied that there is no serious question the practice of keeping an inmate in administrative segregation for a
prolonged period is harmful and offside responsible medical
opinion.
[255] Despite s. 87(a) of the legislative scheme, the current
regime waits for the negative psychological effects to manifest
in the form of some recognizable observable form of mental
decompensation or suicidal ideation before supporting or
perhaps removing the inmate. In other words, the person is not
removed or supported until it is obvious that they have been
harmed.
[256] Detaining a person until they have manifested psychological harm is a treatment if not a punishment. It is also likely
contrary to s. 87(a) Corrections and Conditional Release Act. The
question for me however is whether it is “cruel and unusual”
as these words are constitutionally understood.
[257] The applicant’s s. 12 claim is not based on the length of
the sentence. It is based on the psychological effect of isolating
an inmate. This will require its own analysis.
[258] The thrust of the applicant’s argument is that the high
threshold under s. 12 is reached because of the unacceptable
medical harm experienced by inmates in prolonged segregation.
