BenchPress - Vol 43-4 - LawNow Magazine

BenchPress – Vol 43-4

  1. A series of cases decided in January 2019 highlight the ongoing problems with solitary confinement within Canada’s corrections system.

The British Columbia Court of Appeal ruled on a challenge filed by the John Howard Society and the B.C. Civil Liberties Association against the Attorney General of Canada on the issue of inmate segregation. The Court of Appeal gave the Attorney General more time to come up with new policies for holding prisoners in solitary confinement, but in the meantime set out new conditions to help protect inmates’ constitutional rights. The Court of Appeal ordered:

  • Inmates must be given 2 ½ hours a day outside of their cells, including an opportunity to be outdoors for at least 1 ½ hours each day, including weekends and holidays;
  • Inmates should receive a daily visit from a health care professional;
  • Indigenous Elders must be allowed to visit segregation units and provide one-on-one counselling to Indigenous prisoners;
  • A senior official must give authorization before a prisoner can be kept in segregation for more than 15 days, and that person cannot be the head of the institution where the prisoner is kept; and
  • Inmates must be allowed to have legal counsel at hearings to determine their placement in solitary confinement.

British Columbia Civil Liberties Association and the John Howard Society of Canada v. Canada (Attorney General) CanLII – 2019 BCCA 5 (CanLII)

In Edmonton, a Court of Queen’s Bench Justice ruled that an inmate kept in solitary confinement for over a year suffered cruel and unusual punishment. He was moved out of segregation only after he brought a writ of habeas corpus to challenge his placement. Justice Pentelechuk gave inmate Ryan Prystay 3.75 days credit towards every one day he spent in segregation. The Justice wrote: “Arguably, it is the lack of meaningful human contact that is the most pernicious consequence of placement in segregation. Human beings are not meant to be isolated, particularly for extended periods.”

R. v. Prystay CanLII – 2019 ABQB 8 (CanLII)

Finally, at the end of January, 2019 the Ontario Superior Court granted a stay of proceedings in the murder prosecution of Adam Capay, the young Aboriginal man who came to national attention after he was kept in solitary confinement for over four years, in a cell where the lights were kept on 24 hours a day. Usually, courts remedy unacceptable behaviour such as this by crediting time against the prisoner’s ultimate sentence, as in the Prystay case. So, the Order for a stay of proceedings in this case is unusual. Justice Fregeau wrote: “In my opinion, this is the clearest of cases in which no remedy short of a stay is capable of redressing the prejudice caused to the integrity of the justice system as a result of the multiple and egregious breaches of the accused’s Charter rights. ”

R. v. Capay 2019 ONSC 535

  1. New Moms Get A Class Action Settlement

The Federal Court of Canada recently approved a class action settlement worth between $8.5 to 11 million for as many as 2000 expectant mothers denied Employment Insurance benefits when they became sick during their parental leave. Jennifer McCrea, a Calgary mother led the action. She developed breast cancer while on maternity leave but was turned down when she applied for additional EI sickness benefits. EI officials maintained that a woman who was ill during maternity leave was not available for work and so was not eligible for sickness benefits. The federal government changed the law in 2013 but refused to pay people who claimed between 2002 and 2013.

The class action funds will be available to parents who were sick during the parental leave portion of their combined maternity/parental leave. Justice Catherine Kane wrote that it would have been better if the women had received their benefits when they were ill but that this was “nevertheless… a very good result. They will receive their benefits, albeit years later, and they will have witnessed both a change in the legislation to benefit others like them and improvements in the manner that information is shared by Service Canada about such benefits.” Jennifer McCrea received an honorarium for her efforts and said she was grateful to the Liberal government for living up to its 2015 election promise to settle the case, “albeit not as quickly as we had hoped.”

McCrea v. Canada 2019 FC 122

  1. Henson Trusts and Tenancies

A Vancouver woman living with disabilities was denied help with her rent because, after her father died, she began to receive some money set aside for her in a Henson Trust. This is a kind of trust for people with disabilities that is structured in such a way that it tries to avoid interfering with government benefits. In this case, the Metro Vancouver Housing Corporation said that Ms. A’s trust counted as an asset and wanted to know the details. Ms. A refused and so the Housing Corporation would not process her application for rental assistance. Both the B.C. Court of Queen’s Bench and the Court of Appeal ruled that her trust was an asset that could disqualify Ms. A from rental assistance. The Supreme Court of Canada disagreed. It ruled that the Metro Vancouver Housing Corporation had a duty to consider her application for rental assistance and sent the case back to the trial judge to assess her compensation. The majority ruled that Ms. A’s Henson Trust was not an asset as the word is usually understood because she had no control over it and could not count on it to pay her rent. This case is the first time the Supreme Court has looked at Henson Trusts. It commented that it was not the situation that a Henson Trust could never be considered an asset but only that it would depend on the facts in each particular case.

S.A. v Metro Vancouver Housing Corp., CanLII – 2019 SCC 4 (CanLII)

  1. Dealing with Orphans

The Alberta Energy Regulator will not issue a licence to a company to extract, process, or transport oil and gas unless the company assumes end-of-life responsibilities. These include plugging and capping oil wells to prevent leaks, dismantling surface structures and restoring the surface of the land to its previous condition. Redwater, an Alberta oil and gas company, went into bankruptcy and Grant Thornton Limited (GTL) was named as trustee. Since it would cost millions of dollars more to clean up the wellsites than the company was now worth, GTL decided it would “disown” the wells and not clean them up. The Regulator argued that GTL must do so under both the federal Bankruptcy Act and the provincial Regulations. The legal issues were whether the Bankruptcy Act allowed a trustee to just walk away from certain sites and whether provincial orders to clean up the sites were provable claims under the Act and payable according to the rules of bankruptcy. The majority of the Supreme Court of Canada ruled that the trustee couldn’t simply walk away from the sites and that Redwater could not avoid its environmental responsibilities. It also ruled that the costs were not debts under the Bankruptcy Act but rather they were duties to the public and nearby landowners. Therefore, the costs of dealing with abandoned wells did not fall under the Act. The Court ordered that money held in trust from the sale of Redwater’s assets must now be used to deal with the wells and reclaim the land before all other creditors under the Bankruptcy Act were paid. This decision was very good news for Alberta landowners who had been stuck with environmentally dangerous non-operative oil wells on their lands.

Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5


Teresa Mitchell
Teresa Mitchell
Teresa Mitchell is the former Editor and Legal Writer for LawNow at the Centre for Public Legal Education Alberta.

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