Legal Aid Alberta lawyer wins Charter challenge on youth segregation

Court rules that solitary confinement of youth not authorized by the Corrections Act

A charter challenge against the extended segregation of an Alberta youth over the period of two years was successful this week when Provincial court judge Geoffrey Ho ruled that the unlawful confinement contravened national and international law.

Legal Aid Alberta lawyer Karen McGowan argued that a stay of proceedings for an assault charge against her now 19-year-old client, who was a young offender at the time, was necessary because of the prolonged physical and psychological abuse he experiences while in on-going solitary confinement.

“My client was not able to access programs, go to school, participate in recreational activities, and did not engage in any meaningful human contact,” said McGowan.  “Because of this ongoing segregation, my client also suffers with extreme boredom and would routinely cause disturbances just for entertainment and control.  Ultimately the assaultive behaviour that led to the criminal charge was created by his inability to deal with suddenly being around others and his need to remedy boredom.”

In his decision, Ho noted that the youth was admitted to the Wabasca Unit and the Special Management Program (SMP) on August 22, 2015, and with the exception of a few brief periods of time, he remained on SMP until he was transferred to the Edmonton Remand Centre on or about July 10, 2017, a period of just under 2 years.

“Based on all the evidence before me, I conclude that (he) was repeatedly effectively solitarily confined for more than 22 hours per day, without meaningful human contact, while he was confined in the Wabasca and Driftwood Units at (the Edmonton Young Offender Centre) and the Blackrock Unit at (the Calgary Young Offender Centre),” Ho wrote in his decision.

Ho concluded that the long-established practice of segregating young persons was not lawfully authorized by the Corrections Act or its associated regulations, and was in contravention of the United Nations Convention on Rights of the Child and the Youth Criminal Justice Act.

“This is a landmark decision because now the Young Offender Branch has no lawful authority to hold young people in solitary confinement,” said McGowan. “Unlike adults who are governed by federal legislation (Corrections and Conditional Release Act), youths have no such regulation.

“I am hopeful that this will put an end to solitary confinement of any youths for longer than 72 hours.”

Judge Ho strongly suggested that Alberta will also need to change its review system if it wants to continue to segregate young persons. The existing system involves a series of internal reviews by staff members, with little ability to test or challenge the evidence purportedly justifying the young person’s placement into segregation.

Judge Ho emphasized that the Youth Criminal Justice Act demands that any review procedure be effective.

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