Brazeau v. Canada (AG), 2020 ONCA 184
SOLITARY CONFINEMENT - DAMAGES - S. 12 CHARTER
Introduction
This is an appeal from two class action lawsuits seeking damages for breach of Charter rights of former and current federal inmates who were subjected to administrative segregation, i.e. solitary confinement. A motion judge granted summary judgment in favour of the plaintiffs in both cases and awarded $20 million aggregate damages for each class. In Reddock, the $20 million (less approved legal fees and disbursements) was to be distributed to the class members, and in Brazeau, the $20 million (less approved legal fees and disbursements) was to be appropriated for “additional mental health or program resources for structural changes to penal institutions.”
Canada appeals both summary judgments. The issues on appeal are:
(1) whether the motion judge erred in awarding Charter damages;
(2) whether the motion judge erred in directing that damages be used to implement structural changes in the Brazeau decision; and
(3) whether the motion judge erred in finding Canada liable for damages for systemic negligence in the Reddock decision.
(1) The motion judge did not err in awarding Charter damages
ONCA reiterates the four-part test to determine if damages are an appropriate and just remedy under s. 24(1):
i. Has a Charter right been breached?
ii. Would damages fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches?
iii. Has the state demonstrated countervailing factors that defeat the functional considerations that support a damage award and render damages inappropriate or unjust?
iv. What is the appropriate quantum of damages?
The disagreement focused on the third stage of the test. Under the third stage, Canada has the burden to demonstrate that a damage award is inappropriate or unjust. Two factors to consider are the availability of alternative remedies and concerns for good governance.
Alternative Remedies
ONCA holds the mere existence or possibility of a tort claim does not preclude an award of Charter damages, nor is there a hierarchy of remedies. There may be concurrent claims for private law and Charter damages. The focus of the alternative remedies analysis is avoiding double recovery, and it is for Canada to show that other remedies would be sufficient to address the Charter breach. Canada argued double recovery would occur, and an alternative remedy exists in a declaration that Charter rights were violated. ONCA finds Canada does not meet its burden. Double recovery would not occur, as the class members would have to credit their Charter damages against any subsequent awards, and a declaration would not satisfy the need for compensation from the Charter breach.
Concerns for Good Governance
ONCA agrees with Canada that concern for good governance is engaged in the appeal, however, it is displaced by the gravity of the state conduct: Canada is sufficiently at fault to warrant lifting its prima facie good governance immunity. ONCA notes Charter damages are not awarded simply because an impugned law is unconstitutional, but the state conduct must meet a particular threshold of fault. The applicable threshold for the appeal is “a clear disregard for the claimant’s Charter rights.”
Canada argued it was impossible to know until recently that prolonged use of solitary confinement would breach s. 12 Charter rights, however, ONCA finds that such information has been available since the 19th century. Canada also ignored repeated pleas to limit the use of solitary confinement or implement some sort of independent review mechanism, which aggravates the severity of its conduct.
Furthermore, ONCA holds a s. 12 Charter breach requires an incredibly high threshold: it must be so excessive as to outrage the standards of decency. It must also be grossly disproportionate for the offender, to the point where Canadians would find the punishment or treatment abhorrent and intolerable. Canada’s use of solitary confinement is grave enough to meet that threshold. Accordingly, Canada’s conduct meets the standard of clear disregard for Charter rights, and concerns for good governance do not apply to insulate the government from liability for Charter damages.
(2) The motion judge did err in awarding damages for structural changes
ONCA finds the motion judge erred in three ways in ordering damages to be used for structural changes.
First, the motion judge did so on his own motion without submissions from the parties. The parties should have been given the opportunity to argue that point, and the motion judge denied the parties procedural fairness in not doing so.
Second, s. 26 of the Class Proceedings Act does not give the motion judge the authority to make such an order.
Third, the order does not meet the test in Doucet-Boudreau. The order required too much active judicial involvement, it was not fair to the class or to Canada, and was “an unjustifiable assumption of judicial control over a complex public institution.”
ONCA sets aside this award of damages and remits the issue back to the motion judge to be determined on proper principles.
(3) The motion judge erred in finding systemic negligence
Though ONCA finds that individual inmates will have a cause of action for specific individual acts of negligence, no class-wide duty exists here: there is no avoidance of the same harm for each class member. For example, there was no single incident or act that resulted in the harm. Instead, the duty arises from different acts in different circumstances for different individuals. Though the harms all arise from the implementation of a particular policy or regulatory regime, this is insufficient for systemic negligence. Furthermore, any concerns about the constitutionality of policies are excluded from a negligence claim and must be addressed through a proper Charter analysis.
Accordingly, ONCA allows the appeals in part.
Note: ONCA considers seven issues in total; only three of those issues are summarized above.
Note: This summary was written by Christina Emberley. Christina is currently articling at Dentons Canada LLP. This post was copy edited by Sara Little.