Ontario judge certifies class-action lawsuit on behalf of federal inmates

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An Ontario judge has certified the country's first class-action lawsuit on behalf of federal inmates, which alleges Canada's use of solitary confinement and inadequate access to medication has violated the rights of tens of thousands of mentally ill inmates.

The order came down on Monday morning from Superior Court Justice Paul Perell after the Crown consented to certification, potentially shaving years off what could still be a lengthy legal battle and adding to the mountain of litigation Ottawa is facing for its prison isolation practices.

"Certification motions often take years to litigate and then there are appeals that also take years and years," said James Sayce, lawyer for the firm Koskie Minsky representing the class. "We are now at a stage where we can get our hands dirty on the merits. That's a very substantial and significant event."

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The class includes all inmates diagnosed with an array of mental-health issues who served a federal sentence between Nov. 1, 1992, and the present day.

Hundreds of thousands of inmates have circulated through the federal jail system over that span. Correctional Service Canada data show that around 38 per cent of male federal inmates exhibit some sort of mental-health problem upon intake.

Under Ontario law, all eligible claimants are included in the class unless they specifically opt out.

"We're talking about tens of thousands of people, if not more," Mr. Sayce said. "We don't have an exact number."

In certifying the claim, Justice Perell declared that case hinges on whether the Correctional Service violated Charter sections 7 (life, liberty, security of the person), 9 (against unfair detainment) and 12 (freedom from cruel and unusual punishment) in its operation of federal institutions and whether any potential violations warrant damages.

The Correctional Service played down the significance of the decision on Monday. "Consenting to the certification motion is a procedural step in a class action that simply allows a defined group of individuals to bring their claims to court," spokeswoman Véronique Rioux said in an e-mail. "It does not address the merits of their claims in any way.

"As this matter is currently before the courts, it would be inappropriate to comment further," she added.

The class-action seeks $600-million in damages for negligence and breach of the government's duties toward mentally ill prisoners.

A statement of claim filed in July, 2015, alleges federal prisons are "becoming Canada's largest repositories for the mentally ill" and says the government "has subjected Mentally Ill Prisoners to cruel and unusual punishment in the form of extended periods of solitary confinement."

The representative plaintiffs are Christopher Brazeau and David Kift, both of whom suffer from mental-health issues and have logged significant time in solitary confinement.

Mr. Brazeau was serving a 12-year sentence for robbery and other crimes at Edmonton Institution when he was locked up in solitary confinement for 23 hours a day for as long as a year at a time, according to a statement of claim filed in the Ontario Superior Court of Justice in July of last year. Diagnosed with ADHD, anxiety disorder and PTSD, he went for long periods without proper prescription medications. He has since been released.

Mr. Kift, a former RCMP officer serving a 6-year gun-posession sentence, remains in custody at Joyceville Institution in Kingston, Ont. Like Mr. Brazeau, he says his mental health conditions – PTSD and depression have gone untreated for long stretches.

When the lawsuit was originally launched in July of 2015, it faced a Conservative government that had staunchly defended the practice of administrative – which is roughly analogous to solitary confinement – as a necessary measure to ensure the safety and security of its facilities.

That hardline approach softened when the Liberal government took power.

In his mandate letters last year, Prime Minister Trudeau urged his cabinet to introduce prison reform measures. Since around that time, the Correctional Service has reduced the number of inmates in administrative segregation by half.

Even so, the government is facing at least three significant legal challenges to its prison segregation practices, including a major constitutional challenge scheduled for an 11-week trial beginning on Jan. 3 in British Columbia.

In another lawsuit, Hamm v. Canada, three men are claiming more than $5-million in damages for their "unlawful" placement in administrative segregation for 43 days, according to their statement of claim.

All three lawsuits mention an array of health problems commonly associated with solitary confinement, including hallucinations, paranoia, self-harm and suicidal thoughts.

The Globe reported on Monday that the federal government rejected any such link between segregation and ill-health in its response to the Hamm lawsuit.

"Further, while in administrative segregation, an inmate's well-being is monitored," the response states, "and appropriate steps are taken to ensure the inmate's health and well-being are not adversely affected."