Law Times

Law Times • march 7, 2016 Page 7 www.lawtimesnews.com End segregation, says Ontario Human Rights Commission BY RENU MANDHANE I n 2007, Ashley Smith died in federal custody in Kitchener, Ont., after spending extended periods of time in segregation (or solitary confinement). In 2010, Edward Snowshoe died by suicide while in custody in Edmonton, Alta., after spending 162 days in segregation. These cases have become emblematic of the incredible problems with the continued use of segrega- tion in prisons. However, Smith's and Snowshoe's cases are only unique insofar as they died while in segregation. Ev- ery year, thousands of people are placed in segregation in jails and penitentiaries across the country. We don't know their names, their stories, or the impact that seg- regation has had on them. Only occasionally do their stories come to light. One such story is that of Christina Jahn, a woman with mental health disabilities and can- cer who filed a human rights application alleging that she was held in segregation for more than 200 days at the Ottawa-Carleton Detention Centre because of men- tal health disability and gender. The Ontario Human Rights Commission intervened in Jahn's case, and in 2013, a historical settlement agree- ment was reached with Ontario's Ministry of Commu- nity Safety and Correctional Services to improve the treatment of prisoners with mental health disabilities in Ontario's correctional facilities. The settlement has led to major policy changes, including mental health screening for all prisoners upon admission, and pro- hibiting use of segregation for any prisoner with mental health disabilities barring undue hardship. These are important steps. Yet the OHRC continues to have serious concerns about the extent of the reli- ance on segregation and violation of prisoners' right to be free from discrimination under Ontario's Human Rights Code. The numbers paint a troubling picture. From April to August 2015, the Central-East Correctional Centre in Lindsay, Ont. placed more than 1,100 people in segrega- tion. In the same four-month period, the Ottawa-Car- leton Detention Centre placed more than 550 people in segregation. During a one-year period, four women at the Ottawa-Carleton Detention Centre were in segre- gation for more than 30 continuous days, and two for more than 60 aggregate days. Systemic data about the use of segregation in both pro- vincial and federal contexts indicates that segregation is being overused on — and causing particular harm for — vulnerable groups, such as black and indigenous prison- ers, women, and those with mental health disabilities. For example, in May 2015, the federal Office of the Correc- tional Investigator reported that "Black inmates are con- sistently over-represented in administrative segregation, particularly involuntary and disciplinary placements" and that "Aboriginal inmates continue to have the longest average stay in segregation compared to any other group." The United Nations Special Rapporteur on Torture has found that segregation of any duration constitutes tor- ture when used on those with mental health disabilities, and that "indefinite and prolonged solitary confinement, in excess of 15 days, should also be subject to an absolute prohibition." The Special Rapporteur also notes that "soli- tary confinement is a harsh measure which is contrary to rehabilitation, the aim of the penitentiary system." The extent and gravity of Code concerns with the use of segregation is why the OHRC is taking the rare step of advocating that Ontario show bold leadership by publicly committing to eliminate this practice across all its institutions. This is the type of leadership Premier Kathleen Wynne's government has shown on a number of files, such as violence against women and racism, and is poised to show in relation to prisoners' rights as well. Minister of Community Safety & Correctional Ser- vices Yasir Naqvi is currently conducting a comprehen- sive review of Ontario's use of segregation. In response to the minister's call for input from stakeholders, the OHRC made a submission calling for an end to segre- gation, and recommended interim measures, such as external oversight and strict time limits, to reduce the harm of the practice. The time to act is now. We cannot let another prison- er die alone in a jail cell while we consider how to reform a practice that is clearly harmful and contrary to human rights law. The Ashley Smith inquest produced a slew of recommendations to significantly limit the use of seg- regation; but practices on the ground do not appear to have changed. It should not take legal action, such as Jahn's human rights case or lawsuits launched in British Columbia and Ontario, to compel action. Ending segregation is not a revolutionary, unrealis- tic, or aspirational idea. It is primarily one of adequate resources and political will. Naqvi has already shown bold leadership in relation to reform of policing, and we are encouraged by his review of segregation and commitment to hire thousands of correctional officers. A first step would be to promote the hiring of diverse candidates, including those with mental health expertise and a solid commitment to human rights. The minister will also have to refocus existing resources to greater utilize dynamic security, which is prison-speak for relying more on positive and support- ive interactions between staff and prisoners, and less on the use of force and segregation. Most notably, the government will have to put sig- nificant resources into mental health services and sup- ports for prisoners, including housing those with men- tal health disabilities outside of the traditional prison environment and in community-based settings. This will mean psychiatrists, psychologists, social workers, counsellors as full-time staff, along with engaging pro- gramming and educational opportunities. All of this will, of course, require sustained leader- ship, time and effort, and ultimately, a major cultural shift in our correctional system. Moreover, if the government is truly committed to re- forming the correctional system, it must increase fund- ing for women's corrections to ensure substantive equal- ity for female prisoners. It must also disrupt the systemic discrimination that results in the over-representation of indigenous people, members of racialized communities, and persons with mental health disabilities in our crimi- nal justice system. This means more community mental health resources, zero tolerance for discrimination in policing, and addressing the ongoing socio-economic disadvantage of racialized people and those with mental health disabilities. The solutions are clear, albeit challenging, but the political environment is ripe for a new approach to cor- rections — one that is firmly grounded in equality, hu- man rights, and human dignity. Prime Minister Justin Trudeau has committed to banning long-term segrega- tion for federal inmates, and the OHRC hopes to see Ontario go even further by publicly committing to end- ing the practice altogether. LT uRenu Mandhane, chief commissioner of the On- tario Human Rights Commission, is the former ex- ecutive director of the International Human Rights Program at the University of Toronto's Faculty of Law. She has worked at several domestic and inter- national organizations. COMMENT u SPEAKER'S CORNER Ontario case builds on Joint Family Venture principles T he Court of Appeal for Ontario recently released an important decision regarding the concept of Joint Family Venture. In my view, the ruling in Farkas v. Bedic, 2016 adds to the prior interpretations and usage of the Joint Family Venture principles outlined by the Supreme Court of Canada in Kerr v. Baranow, [2011] 1 S.C.R. 269. In the case, Mary Farkas and Nick Be- dic built a motel business together. When the couple began dating in 1994, he lived in Simcoe at a motel he ran and she lived and worked in Hamilton. In 1997, Farkas moved to Simcoe to live with Bedic and continued to commute to work, while helping him at the motel on weekends. By 1999, she took early retire- ment and worked alongside Bedic in the motel business on a daily basis. However, the parties separated in 2011. As a result, Farkas' interest in various properties acquired during the relation- ship was litigated. In 1997, Farkas took out financing against her own home in Hamilton to pro- vide Bedic with funds for his first motel, the Queensway Motel. Bedic was having difficulties with his financing. In exchange for the financial help, Bedic put Farkas on title to the motel with a 50% interest. The parties signed an agreement that stated if the relationship failed Farkas would be repaid the funds advanced and would in turn transfer her 50% interest in the motel back to Bedic. Eventually, Farkas sold her house and paid off the mort- gage from the proceeds of sale. In 2000, the parties purchased some other vacant land togeth- er, and from reading the trial decision, it appears this was in part with funds from Farkas as well as funds from the Queen- sway Motel. That property was sold a few years later and the net proceeds were paid to the parties jointly. In 2004, Bedic wanted to purchase a second motel, which he ultimately did, despite Farkas' protests. To purchase the Fairview Motel, he financed some of the purchase, using the full net proceeds of sale of the vacant land and some funds from the Queensway Motel account. Farkas was not put on title to the Fair- view Motel. That motel needed substantial renova- tions and so, while Bedic worked on that motel, Farkas ran the Queensway Motel on her own as well as taking care of the par- ties' other household obligations. When renovations were near completion, the parties moved to the Fairview Motel. The Queensway Motel was sold and the net proceeds provided to the parties jointly. The transaction included a vendor take-back mortgage, which was granted to the par- ties jointly and they received the mortgage payments jointly. In 2009, the parties along with Bedic's brother and sis- ter-in-law purchased cottage properties called the Hillcrest properties, with the hope of renting them out. Farkas was put on title in this transaction. She assisted in some of the renovations of the cottages, as well as cleaning to get them ready to rent. Joint funds were used to purchase their share of this investment. While living at the Fairview Motel, the parties worked in the maintenance and upkeep of the motel together. Ultimately, the parties separated and Farkas wanted to share in the net values of the assets that had accumulated during their relationship. Her claims were dis- puted by Bedic. The trial judge found in Farkas' favour and Bedic appealed. This appellate case is important be- cause it analyzes the concept of Joint Fam- ily Venture and supports a finding of one existing despite the fact that the parties did not have children together. Since the release of Kerr, there has, in my experience, been reticence to accept that a joint family venture can exist where the couple does not have children together. I am happy to see that our Court of Ap- peal sees things differently. While having children together and taking on traditional roles where one partner stays home with young children and the other goes to work is certainly important in the determination of whether a joint family venture existed, it is an overly narrow interpretation of concept. As this case illustrates, the fourth ele- ment of Kerr, "Priority of the Family," is certainly something that can be estab- lished, despite the nonexistence of chil- dren. The Court of Appeal certainly il- lustrates that in this case where, clearly, we have a spouse who, in her later years, most certainly prioritized her family life with her partner in addition to meeting the other three factors of Kerr. In the end, and rightly in my view, Farkas succeeded on all fronts before the Court of Appeal. LT uMarta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta.siemiarczuk@nelligan.ca. Family Law Marta Siemiarczuk

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