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July 7, 2014

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Crown vindicated in extradition case By yaMri taDDese Law Times he Ontario Court of Appeal has vindicated Crown counsel in an ex- tradition case by setting aside a lower court decision that found authorities had engaged in misconduct when they sent items seized through a search warrant to the United States without inform- ing the extradition court. In United States v. Lane last Monday, the appeal court said Crown counsel didn't have to let extradition judges know of their involvement in an application to send seized items to the United States because of different statutes governing the proceedings at issue. In a child pornography case involving a U.S. citizen, police in Kingston, Ont., obtained Brandon William Lane's computer and sev- eral external hard drives. After his arrest, Lane challenged the validity of the search warrant and wanted to present the seized items as evidence. While the motion under the Charter of Rights and Freedoms was under reserve, Crown counsel pursued a successful mutual legal assistance treaty application that allowed them to send the comput- er and hard drives to U.S. authori- ties. They returned the materials unopened for the Charter applica- tion, but Lane still brought a mo- tion for a stay of proceedings. In September, Superior Court Justice Brian Abrams granted the motion. Abrams found the Crown and police had consorted in "a purpose- ful tactic or strategy to withhold crucial information" from the court and Lane. But in its decision last week, the Court of Appeal cleared Crown counsel of any wrongdoing. The appeal court said the judge who granted the mutual legal as- sistance treaty application was aware that the items were subject to a Charter challenge and that in any event, Crown counsel didn't have to let the extradition judge know of developments in that area. "Extradi- tion proceedings and MLAT pro- ceedings are governed by separate statutes, each with its own purpose, procedures and safeguards to en- sure that the rights of individuals are protected," the appeal court said. "I understood the extradition judge's emotions about the pro- ceeding and how it was felt that the corresponding MLAT proceedings were a bit of an end run around the application on behalf of the person sought at the extradition hearing," says Toronto criminal lawyer Jo- seph Neuberger. "But the two really were not connected." Criminal lawyer Leo Adler says it would have helped to have one judge deal with both the extradi- tion and the mutual legal assistance treaty applications. "I appreciate the Court of Appeal saying these are two different treaties. They are. But when you're effectively dealing with the same evidence . . . I think it would have been more prudent to have it in front of one judge." 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Despite recommending a complete prohibition on the use of segregation of prisoners who suffer from mental-health conditions, Howard Sapers of the Of- fice of the Correctional In- vestigator says that with no policy changes in place, ad- missions to segregation cells are in fact on the rise. At any given time, there are 850 inmates in solitary confinement in Canada's federal penitentiaries. Ac- cording to the Office of the Correctional Investigator, there were 8,700 segregation placements in 2011-12. That's an increase of 700 in the last five years. "We saw about a six- to seven-per-cent increase over the last five-year period," says Sapers. "And for the most part, that increase is in involuntary segregation." Authorities place people in segregation when they're a threat to the safety of the institution or when officers are concerned for an inmate's own safety, says Sapers. Inmates may also go to segregation when there's a concern that their presence in the general prison population could jeopardize an ongoing investigation. But the Office of the Correctional Investigator and other human rights groups have significant concerns about the trend of placing inmates in solitary confinement to man- age their mental illnesses or tendency to injure themselves. There's a dangerous irony involved, according to the Office of the Correctional Investigator, which reports that one-third of all self injuries in federal prisons happen in segregation cells. In addition, studies have found the social deprivation of soli- tary confinement can exacerbate mental-health problems. Segregation cells can be as small as five square metres with a small observation window, a steel door, and a food slot, says Sapers, who notes inmates spend 23 hours a day in them. "Segregation is the least thera- peutic place in prison," he says. Authorities don't necessarily place prisoners with mental ill- nesses in segregation for being violent, Sapers adds, noting that sometimes their behav- iour is simply "annoying" to other inmates and officers fear for their safety in the general prison population. Still, "administrative detention is a tool that shouldn't be in the tool box," says Noa Mendelsohn Aviv of the Canadian Civil Liberties Association. The CCLA has recommended a more proactive response to mental illness instead of waiting until inmates' condition severely deteriorates and then plac- ing them in segregation. Various types of programs can help manage mental illness among inmates, according to Men- delsohn Aviv. EMPLOYMENT RULING Payroll decision raises eyebrows P3 WYNNE'S CHALLENGE Premier must show she's ready to lead P7 FOCUS ON Legal Specialists & Boutiques P10 'Administrative detention is a tool that shouldn't be in the tool box," says Noa Mendelsohn Aviv. Photo: Robin Kuniski See Separate, page 4 PM #40762529 EMPLOYMENT RULING Payroll decision raises eyebrows & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM $4.00 • Vol. 25, No. 23 July 7, 2014 Follow LAW TIMES on www.twitter.com/lawtimes L aw TIMes Prison segregation rising L aw TIMes T S

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