The Ontario Court of Appeal recently ruled that systemic negligence claims against governments are indeed a tenable avenue for class-wide recovery. While the decision in Francis v. Ontario is the third time in two years that the Ontario Court of Appeal ruled solitary confinement is unconstitutional,[1] it was the first time a Canadian appellate court made an aggregate damages award for systemic negligence in the context of a judgment.
THE FACTS
This class action concerns the practice of placing inmates in a small cell for 22 hours or more with no meaningful human contact – "administrative segregation", or more commonly known as solitary confinement.[2] The practice is regularly used in Ontario jails for inmates who are held on remand or serving a custodial sentence of less than two years.[3] For example, the representative plaintiff was held in the Toronto South Detention Centre while awaiting trial on charges of bank robbery. He was later acquitted of these charges.
During Mr. Francis's time at Toronto South, he was placed in administrative segregation after he refused a mental health medication that caused him negative side-effects. He was deemed to have been "refusing to follow an order". Mr. Francis' experience in segregation was found to be extremely painful, provoking anxiety, delirium and shock.[4] He sued on behalf of himself and other prisoners who had been placed in solitary confinement. At the summary judgment motion, the class was successful in claiming damages for breaches of s. 7 and s. 12 of the Charter of Rights and Freedoms, as well as systemic negligence.
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