Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | APRIL 8, 2019 13 www.lawtimesnews.com BY SHANNON K ARI For Law Times T wo high-profile decisions is- sued recently in Ontario are a reminder of the impor- tance of strong expert witness evidence when trying to meet the threshold to show that psy- chological harm has occurred as a result of a defendant's actions. The Ontario Court of Appeal ruled on March 28 that sections of the federal Corrections and Conditional Release Act, which permit keeping inmates in soli- tary confinement for more than 15 consecutive days, violated the Charter right against cruel and unusual treatment. Superior Court Justice Paul Perell, in a decision issued on March 25, ordered the federal government to pay at least $20 million in damages as a result of its practice of placing mentally ill prisoners in solitary confinement. In both cases, the courts were required to assess the expert evidence presented by the plain- tiffs and the federal government about the psychological harm of solitary confinement on an indi- vidual. Larissa Moscu, one of the lawyers acting for the Canadian Civil Liberties Association in its challenge of the federal solitary confinement provisions, says the expert evidence was a key factor in meeting the high bar of show- ing a breach of the Charter rights of inmates. "There was a volume of rel- evant expert evidence that we were able to adduce," says Mos- cu, a lawyer at Lax O'Sullivan Lisus Gottlieb LLP in Toronto. "We tried to provide it as clearly as possible, with lists and with bullet points," she notes. In the Court of Appeal's decision, it reprinted, in bullet point form, the potential negative effects of solitary confinement as outlined by one of the experts retained by the CCLA. The Court of Appeal reject- ed an argument of the federal government that it should look to its own decision in R. v. Ol- son in 1987, where it found that solitary confinement is not per se unconstitutional. That case involved a challenge by Clifford Olson, the notorious serial killer convicted of murdering 11 chil- dren and young adults, to his conditions in prison. "Olson is of little assistance in determining the issues raised on this appeal," wrote Justice Mary Lou Benotto, with Chief Justice George Strathy and Justice Lois Roberts concurring. "I say this for three reasons. First, the court in Olson had no expert evidence before it on the effects of administrative seg- regation on either the inmate himself or on other inmates. By contrast, the volume of direct and expert evidence adduced in the present appeal is consider- able. Second, this appeal is being heard more than 30 years after Olson was decided, in a mark- edly different social and legal landscape as demonstrated by developments in scholarly re- search and international law," Benotto wrote. The Charter challenge to the solitary confinement policies was originally before Superior Court Justice Frank Marrocco. He found that the provisions violated s. 7 of the Charter be- cause there was no independent review of a decision to put an in- mate into solitary confinement. He did not find that they violat- ed the s. 12 prohibition against cruel and unusual treatment. The Court of Appeal agreed that Marrocco was correct to reject the federal government's assertions that its practices did not amount to solitary confine- ment under the "Mandela Rules" (which Canada helped draft) and that interaction with prison guards could count as "mean- ingful human contact." It concluded, however, that Marrocco engaged in the wrong analysis under s. 12. "A proper comparative exercise must consider the effects of prolonged admin- istrative segregation against incarceration in an ordinary prison range. This is precisely what the expert evidence ad- duced in this case addresses. Compared to the treatment of inmates in general popula- tion, the evidence reveals that inmates held in prolonged administrative segregation are at risk of severe and often en- during negative health conse- quences," Benotto wrote. The expert evidence out- lined the psychological harm that is "foreseeable and ex- pected" for individuals kept in solitary confinement for a lengthy period, Moscu says. "Not everyone has to suffer to the same extent. It is whether you are exposing someone to the same risk," she adds. The CCLA also asked the Court of Appeal to find that it was unconstitutional to place inmates with a mental illness in solitary confinement for any period. Benotto said the eviden- tiary record was insufficient to make a finding on the issue at this time. "I take some comfort in my view that a cap of 15 days would reduce the risk of harm to in- mates who suffer from mental illness — at least until the court has the benefit of medical and institutional expert evidence to address meaningful guidelines," she wrote. Perell, in his decision in Brazeau v. Attorney General (Canada) found that there were Charter breaches as a result of the length of time that the mentally ill inmates in the class were placed in solitary confine- ment. James Sayce, who acts for the plaintiffs, says the "general harm" of this practice is why it qualified as a class proceeding. "There is a general causation," says Sayce, a lawyer at Koskie Minsky LLP in Toronto. The class members in the liti- gation are individuals who have been diagnosed with serious mental illnesses and were invol- untarily placed in solitary con- finement for more than 30 days or voluntarily for more than 60 days. There are also some class members who will have "indi- vidual issues" trials at a later date. There was significant expert evidence on its impact that was submitted to the court to the point that "the battle of the ex- perts" was the heading of one section of his ruling. Perell made it clear in his summary judgment motion rul- ing that he was less persuaded by the federal government's experts and arguments that claimed that "administrative segregation" is not solitary confinement and its impact depended on the "per- sonality" of the inmate. "I do not reject the totality of the evidence of any of the wit- nesses. However, some of the opinions expressed or parts of the opinions expressed were not persuasive and I accorded them less weight or no weight," Perell wrote. "It was the opinions of Messrs. Brazeau and Kifts' expert wit- nesses that persuaded me about the adverse effects of adminis- trative segregation on mentally ill inmates who are placed in administrative segregation. For present purposes, I need only add that while the battle of the experts raised genuine issues, none of them required a trial to resolve," stated Perell. The two court rulings re- lated to solitary confinement practices were about the general psychological harm they could inf lict rather than specific in- juries to an individual. In any case where psychological harm is claimed, though, the expert evidence is going to play a sig- nificant role in the litigation, says Darcy Merkur, a partner at Thomson Rogers in Toronto. "The issue of causation is al- ways front and centre. Experts will weigh in on the nature of the injuries. The defence will routinely seize on pre-accident down periods," says Merkur, whose practice focuses on seri- ous personal injury litigation. The fact that an individual has certain psychological issues is not necessarily difficult to prove, but he says the challenge normally for the plaintiff is to convince a court it was caused or made worse by the incident that has resulted in the litigation. "Causation is the area where there is the most subjectivity. It is trickier to show why the person is now that way," says Merkur. The Supreme Court of Can- ada addressed the issue of prov- ing "mental" or "psychological" injury in its decision in 2017 in Saadati v. Moorhead, which arguably made it easier for plain- tiffs to establish a case without extensive expert evidence. "In assessing whether the claimant has succeeded, it will often be important to consider, for example, how seriously the claimant's cognitive functions and participation in daily activi- ties were impaired, the length of such impairment and the nature and effect of any treatment," wrote Justice Russell Brown for the court. "To be clear, however: while relevant expert evidence will often be helpful in determining whether the claimant has proven a mental injury, it is not required as a matter of law," he added. LT BRIEF: EXPERT WITNESS Neinstein_LT_Jan21_19.indd 1 2019-01-15 4:43 PM Plays crucial role when psychological harm claimed Importance of strong expert witness evidence highlighted Larissa Moscu says the expert evidence in a recent Ontario Court of Appeal ruling was a key factor in meeting the high bar of showing a breach of the Charter rights of inmates.

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