Criminal Law

More than 15 days in segregation violates Charter rights

By Jennifer Brown, Senior Editor

An Ontario court has relied on a recent Ontario Court of Appeal decision that found anyone held in segregation for more than 15 days has suffered a violation of their Charter rights, says Toronto criminal lawyer Mitchell Huberman, who acted as amicus curiae friend of the court in the matter and helped the accused receive a reduced sentence.

“It’s a step in the right direction recognizing the harmful effects that segregation and constant isolation from any sort of social interaction or stimulus can have on a person,” says Huberman, an associate with Hicks Adams LLP. “Hopefully, other cases can refer to this case moving forward, and Ontario jails will get the message that prolonged time in segregation is not acceptable.”

Earlier this year, the Court of Appeal for Ontario ruled that 15 consecutive days is the maximum length of time someone should be held in segregation. Anything beyond that is considered cruel and unusual punishment.

In a separate case decided Sept. 6, Huberman was appointed amicus curiae to help advance legal arguments on behalf of a man who had been held in custody a total of 22 months on eight charges including assault and mischief.

Mid-way through the trial, the man raised the fact that he had spent 96 days in solitary confinement.

“It was concerning,” says Huberman who obtained records from the jail and discovered the man had, in fact, spent that many days in segregation during 2018, prior to the Court of Appeal issuing its ruling this year.

“The Court of Appeal says anything more than 15 days outrages the standards of decency in our society, and whether it happened in March 2019 or March 2018, the impact on his rights are the same,” he says. “The judge on my case didn’t have much precedent to go off of, but she applied it very strictly and said she accepted that 15 days is the cap.”

In the appeal court case, considerable medical evidence was produced that spoke to the harmful psychological impact of prolonged segregation on someone’s mental health, Huberman tells

“People develop suicidal ideation, and it can affect brain activity,” he says. “In the trial, I raised it to the judge as a concern. We brought a motion to see if his s. 12 rights under the Charter — which protects you against cruel and unusual punishment — were violated by the jail for holding him in segregation that long.”

Huberman successfully argued that if the court had ruled only in March that it outraged the standard of decency, it would also outrage the standard of decency in 2018.

“It just hadn’t been declared yet,” says Huberman. “The impact on his rights were the same.”

The judge accepted that argument.

“There are many cases now where defence lawyers are accessing segregation records and getting reductions in sentences in light of the recent appeal court declaration,” Huberman explains.

The issue of segregation was raised after a representative of the jail gave evidence that the man’s first five days there occurred because he was on a hunger strike protesting the conditions of the jail.

“He was placed in segregation to monitor his food intake,” he says. “Over the next 91 days, they claimed that he was in segregation at his own request.”

However, jails are supposed to review a person’s situation every five days to justify their placement in segregation.

“The paperwork from the jail was sloppy and raised the question of whether the jail actually monitored him every five days. It was more like seven or eight days,” Huberman says. “The judge had difficulty accepting that the man was there at his own request.”

The judge found that she didn’t think the jail checked on the man every five days.

“She actually took judicial notice of the effects of segregation and rather than call evidence that it had damaging effects on his mental health, she accepted the recent scientific evidence as fact,” he says.

In the end, the judge found the man guilty of three of the eight charges he was facing. He was acquitted of mischief charges and convicted of one count of assault, assaulting a police officer and obstructing police.

“The sentence he would have received was reduced to give proper credit to the fact his rights were violated by the jail,” says Huberman.

The man ultimately received a sentence of 60 days in custody.

“The real tragedy is he spent 22 months in custody awaiting trial, but he only got a 60-day sentence in the end,” says Huberman.

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