The case is one of several class actions across Canada alleging the mistreatment of inmates
A lawsuit that accuses a Mission, British Columbia correctional facility of breaching inmates’ Charter rights when it confined them to their cells for long periods during the COVID-19 pandemic can move forward as a class action, the BC Court of Appeal has ruled.
Released Oct. 2, the appellate court’s decision in Canada (Attorney General) v. Roberts affirms a previous ruling by the BC Supreme Court, which found last year that the lawsuit satisfied every criterion for class certification under the province’s Class Proceedings Act. Under the act, a lawsuit must meet five criteria – including proving that its claims raise issues common to all class members and that a class action is the preferable method for resolving the conflict – to be certified as a class action.
The lower court had found that there were six issues common to class members, inmates who were incarcerated at the Mission facility during the pandemic. These include whether Correctional Service of Canada, which operates the facility, owed class members a duty of care, whether it breached that duty during the pandemic, whether its acts, omissions, or policies breached class members’ Charter rights, and more.
However, Canada’s attorney general pushed back against the lower court ruling. Appealing to the BCCA, the attorney general argued that the lawsuit should not proceed as a class action because it would be impossible to properly address the common issues by considering only the shared circumstances of class members; instead, the analysis needed to consider class members’ individual circumstances.
But the BCCA disagreed with the attorney general and affirmed the lower court’s ruling.
“I am not persuaded the certification judge erred and would uphold his order,” BCCA Justice Peter Edelmann wrote on behalf of a three-justice panel.
In a statement on Tuesday, a spokesperson for Correctional Service of Canada said, “Throughout the pandemic, CSC officials and staff worked with public health experts, the Public Health Agency of Canada, local public health agencies, our labour partners, and stakeholders to develop and implement infection prevention and control measures to mitigate and contain the spread of COVID-19.”
The spokesperson added that CSC is aware of the BCCA’s decision but said it would be inappropriate to comment on the specifics of the case.
Patrick Dudding, an associate at Avize Law Group who was part of the team that represented the class members, told Canadian Lawyer that inmates reported “harrowing” experiences during the COVID-19 lockdowns at the facility.
“Inmates were deprived of stimulus for weeks, screaming for hours on end, bashing their heads against the cement walls of their cells, and sewing their lips shut in protest,” Dudding alleged.
“The Correctional Service of Canada is a troubled institution,” he argued, adding that the lawsuit is one of a series of recent class action certifications alleging the mistreatment of federal inmates. These include Brazeau v. Attorney General of Canada, Reddock v. Attorney General of Canada, and Farrell v. Attorney General of Canada before the Ontario Superior Court of Justice, and Araya v. Canada before the Federal Court.
This fall, the Supreme Court of Canada is slated to hear arguments in Durrell Diggs, et al. v. Attorney General of Nova Scotia, et al., another case challenging prison lockdowns.
The BC lawsuit was filed in April 2020. According to the plaintiffs, who were inmates at Mission Medium Institution when the facility was confronted with its first COVID-19 outbreak, the facility responded to the outbreak with a lockdown that confined inmates to their cells around the clock. Later, inmates were permitted to leave their cells for only 20 minutes per day until July 2020, even though the facility had been declared COVID-19-free in May.
The plaintiffs are accusing CSC of negligence and breaching ss. 7 and 12 of the Canadian Charter of Rights and Freedoms, which protect the right to life, liberty, and security of the person and the right not to be subjected to cruel and unusual punishment.
In response to the BC Supreme Court’s decision to certify the case as a class action, the attorney general argued that class-wide analyses of the negligence and Charter claims are impossible, since the decision-making processes at CSC institutions during COVID-19 outbreaks, and the conditions experienced by inmates, were varied and context-dependent.
However, the appellate court tossed out this argument, stating that the plaintiffs’ claim does not challenge the decision to place class members in medical isolation, but rather the conditions of that isolation.
“The certification judge found that the evidence before him supported the proposition that confinement under the conditions that define the class would have caused harm,” Edelmann wrote on behalf of the BCCA panel. “The question is not whether ‘placement in medical isolation’ breached the standard of care, but whether placement into conditions that caused psychological harm breached the standard.”
Edelmann added that he saw no reason to interfere with the lower court’s findings.
