Canadian Court Declares that Prison Conditions Violate Fundamental Human Rights

Trang v Alberta (Edmonton Remand Centre), 2010 ABQB 6 (11 January 2010)

The Court of Queen’s Bench of Alberta has declared that conditions under which untried prisoners were held in Edmonton Remand Centre (‘ERC’) pending trial for conspiracy to traffic illicit drugs resulted in a breach of their right not be deprived of liberty except in accordance with the principles of fundamental justice (s 7), the right not to be subjected to cruel and unusual treatment or punishment (s 12) and the right to equality before and under the law without discrimination (s 15).

Facts

In 2001 a group of inmates brought an application against their imprisonment.  Initially the application sought a stay of prosecution, but was later amended to seek habeas corpus and declaratory relief on the grounds that the conditions of their incarceration violated the Canadian Charter of Rights and Freedoms.

By the time of the decision, the applicants were former inmates as the cases against them had been stayed by the Court or the Crown, or the applicants had pleaded guilty and completed their sentences.  Nonetheless, the Applicants sought declarations pursuant to s 24 of the Charter.  As a preliminary point, Marceau J found that the application was not moot as there was still a live issue as to whether the ERC had breached the Applicants’ Charter rights when they were inmates.  That decision was upheld by the Court of Appeal of Alberta.

The Edmonton Remand Centre was originally built as a 300 bed facility.  By 1999, the ERC has been converted to a 734 bed facility, largely by changing single occupancy cells to double bunks.  The ERC holds a variety of inmates either awaiting trial or sentencing, some for months at a time.  Evidence was that gang activity was a problem and resulted in a complex arrangement whereby inmates had shortened rotations of time outside of their cells to avoid violent incidents between incompatible inmates.

The Applicants were accused of organized gang drug trafficking, and spent a varying amount of time in custody commencing in 1999.  The Applicants leveled a long list of complaints that they said amounted to breaches of the Charter.  In the Court’s opinion, some of these complaints were not sufficiently seriousness to amount to a Charter breach, or there was insufficient evidence.  Complaints of this nature included poor quality and small quantities of food, poor air quality and inadequate medical care.

However, the Court decided other complaints warranted detailed scrutiny for a breach of the Charter, in particular s 12 (cruel and unusual treatment or punishment), s 7 (right not to be deprived of liberty unless under law) and s 15 (equality under law without discrimination).  Complaints in this category included:

• lock down in cells for up to 20-23 hours a day due to the ERC’s rotation schedule;
• inmate access to open visits (where inmates and visitors can have physical contact);
• provision of stained and soiled communal underwear that is washed by inmate cleaners;
• policy of strip searches and cell searches and its application;
• allegations of racist taunts, jokes and actions by prison guards; and
• the ERC’s method of changing an inmate’s security classification without notifying the inmate of the reason for the change, which can result in heightened restrictions on time out of cells.

Decision

Preliminary issues: applicability of international standards and treatment of pre-trial prisoners

The Court held that the UN Standard Minimum Rules for the Treatment of Prisoners (SMRs) were only guidelines and did not constitute rules that prison officials were bound to apply.

The Applicants argued that pre-trial prisoners should be treated less severely than convicted prisoners.  The Court held that a different standard should not apply because remand inmates are often already known criminals and it is therefore appropriate to err on the side of security and caution.  Further, while these inmates may not be convicted, they have nonetheless failed to secure judicial interim release (bail), either because they are considered a continuing risk if left at large, or have violated the conditions of another bail by committing another offence.

Application of section 7 right to liberty

The Court determined that s 7 (right to liberty) and s 12 (freedom from cruel treatment) need to be read and applied in a complementary manner, and therefore where a complaint engages both – by being an arbitrary rule or condition that is grossly disproportionate – only s 12 needs to be examined because it is the specific right.  The Court found that s 7 applies only to the ERC’s decisions concerning classifications, placements, and the disciplinary process.

Right to liberty

The Court held that the right to liberty was engaged as some of the applicants ‘were transferred from a unit with significantly more free time to one with a very restrictive lock up rotation.’  The ERC’s failure to establish a classification and selection committee was a breach of s 11 of the Corrections Act, but this of itself did not constitute a Charter breach.  Rather, ‘the Applicants were entitled to notice that their classification was to be changed, to know the basis for the proposed change, and to be able to respond to the allegations against them.  Failure to do so breached the principles of natural justice, a component of the principles of fundamental justice…and would amount to a breach of s 7.’

Cruel and unusual treatment or punishment

Double bunking, cell sizes, lock-up rotations and exercise

The Court reiterated the Canadian Supreme Court’s criterion that punishment is cruel and unusual when it is ‘so excessive that it outrages standards of decency’, therefore punishment, including of prisoners, must not be grossly disproportionate to the offending conduct.

The Court held that the conditions under which the Applicants were confined to their cells for up to 20-23 hours each day was ‘intolerable and degrading to human dignity and worth.’  These conditions included that the cells were double-bunked and insufficient in size to accommodate two people for extended lock up, the strict rotation schedule which only allowed inmates to leave their cells for very short periods of time, limited access to exercise and recreation inside and outside the cell, lack of privacy inside the cells, and the prolonged period of time – months in some cases - that the applicants had to endure these conditions.

Stained underwear

Of the ERC’s practice of using inmate cleaners to wash laundry, the Court stated that it was still the responsibility of the ERC to ensure that clean underwear was provided to inmates.  In finding a breach of s 12, the Court held that the provision of stained underwear was ‘grossly disproportionate in that it does not accord with public standards of decency and propriety, and shocks the general conscience.  It is degrading to human dignity and worth.’

Strip searches

The Court held that the ERC’s policy of strip searching was authorised under the common law and under a SOP specifically implemented to deal with the trial of the Applicants, which required them to be strip searched prior to transfer to court.  The Court determined that the law authorising such searches was reasonable and the Applicants’ argument that the searches were not supported by ‘individualized reasonable suspicion’ (a new constitutional standard) was not an applicable standard in a corrections setting.  Further, the actual searches conducted were reasonable.

Equal before and under the law without discrimination

The Court noted that the Applicants needed to prove that the guards responsible for the instances of racist slurs could be characterised as government actors in order to breach the Charter.  The Court held that ‘here the nature of the COs [corrections officers] employment, that is their exercise of discretionary power over inmates, renders them government actors for the purposes of the Charter.’  The Charter was engaged by the guards’ actions because, while not amounting to ‘the law’ they had the authority of the law (that is, ‘the statutory and regulatory framework surrounding correctional institutions that grants them authority over inmates.’)  The Court held that the guards’ actions met the test for discrimination because it created a ‘distinction based on race’, and ‘a disadvantage by perpetuating prejudice or stereotyping.’  In examining discrimination in a normal workplace, the Court determined that a lower threshold for discrimination applied in a coercive corrections environment because ‘a prisoner has no choice regarding their environment.’

Relevance to the Victorian Charter

This decision has relevance to the Victoria Charter on a number of levels.  It is worth noting that the Alberta Court proceeded with making declarations because determining whether a Charter breach had taken place in the past was in itself enough of a practical outcome.  The ERC had argued against such a course because the Applicants were no longer imprisoned, and were really running a public interest inquiry.

Substantively, the decision is likely to present interesting comparisons: s 21 of the Victorian Charter protects a person’s liberty and states that a person must not be subjected to arbitrary arrest or detention.  Section 10 protects a person from torture and cruel, inhuman or degrading treatment, while s 22 is a specific right requiring humane treatment of persons deprived of liberty.  Section 22(2) requires unconvicted prisoners to be segregated from convicted prisoners ‘except where reasonably necessary.’  Section 8 provides the right to equal recognition before the law, and the right to enjoy human rights without discrimination.

Unsurprisingly, this decision mirrors critical issues affecting Victoria’s system of incarceration.  The judgment considers overcrowding, strict administrative measures put in place to manage potential risks of violence, prison-based disciplinary systems that are not subject to external review, and an underlying culture of intolerance that is tolerated on the ‘inside’.

The Australian Bureau of Statistics found that as at 30 June 2009, Australia had 6,393 remand prisoners, representing 22 percent of Australia’s prison population.  On average, they spent 2.7 months in custody.  That figure increased to 8.4 months for persons charged with homicide offences, and 4.4 months for persons accused of illicit drug offences.  The majority of Victoria’s remand prisoners are held in Melbourne Remand Centre, which is a 600 bed facility.

The decision is available at http://www.albertacourts.ab.ca/jdb/2003-/qb/civil/2010/2010abqb0006.pdf.

Sara Law is a lawyer with DLA Phillips Fox