Court finds that imprisoning youths in solitary confinement is abusive to youths and illegal in Alberta

A young person (“CCN”) who had spent almost two years in solitary confinement within Alberta’s youth corrections system was charged with assault with a weapon (a meal tray) against another young person.

August 20, 2020
By: Legal Aid Staff

A young person (“CCN”) who had spent almost two years in solitary confinement within Alberta’s youth corrections system was charged with assault with a weapon (a meal tray) against another young person at the Edmonton Young Offenders Centre. In solitary confinement, CCN was kept in the same cell for 22 hours per day or more, having little to no contact with other people or opportunities for education, exercise, fresh air, or self-improvement programs. Legal Aid Alberta defence lawyer Karen McGowan represented CCN in this case.

Ms McGowan told the Provincial Court of Alberta that CCN’s long time in solitary confinement was physical and psychological abuse that caused CCN to have severe psychological and behavioural problems. She said that these problems had caused him to act out and commit the assault. She argued that putting CCN in solitary confinement violated CCN’s constitutional rights, and, as a result, she asked the Court to order a stay of proceedings in the matter. (A stay of proceedings stops the legal process and prevents it from reaching a conclusion.)

The Court granted the stay of proceedings, pointing out that no Alberta law or authority allows jails to impose solitary confinement on young people; thus, solitary confinement of young people is illegal in Alberta. As a result, putting CCN in solitary confinement violated CCN’s constitutional right to be free from arbitrary detention. The Court said that CCN’s solitary confinement also violated Canada’s international obligations under the United Nations Convention on Rights of the Child as well as the purposes and principles of Canada’s Youth Criminal Justice Act. The Judge described the solitary confinement of CCN as offensive to societal notions of decency and fair play and said that proceeding with the case would be harmful to the integrity of the justice system.

This case is very significant, because its effects are that all solitary confinement of young people in Alberta must stop, that solitary confinement must not be used on young people in the future, and that the use of solitary confinement on young people can result in charges against the young person being stayed. Because solitary confinement damages young people instead of rehabilitating them, this is an important step forward for Alberta’s criminal justice system that will help more young people become crime-free and re-integrate into society. This Court decision also puts Alberta ahead of other parts of Canada that still allow the solitary confinement of young people.

Court finds that Temporary Guardianship Orders must allow for the return of children and that trial judges—not Child Welfare—decide the terms of access between guardians and children

In this Court of Queen’s Bench (QB) case which ultimately strengthened the rights of parents to have custody of their children, Legal Aid Alberta lawyer Douglas McLachlin represented a mother of three. There had previously been a Temporary Guardianship Order (TGO) in place regarding the children, which meant that the children were in the care of the state for a specified period of time. At trial, a provincial court judge had turned the TGO into a Permanent Guardianship Order (PGO). This meant that the children would be in the care of the state—not of their mother—until adulthood.

The QB Justice found that the Service Plan the Director had filed in relation to the TGO was inadequate. The filed Service Plan had said simply that the end goal for the children was a PGO. The QB Justice held that this was improper, and that when a judge issues a TGO, it means that the child may be returned to their guardian after a reasonable amount of time. As the QB Justice pointed out, the Alberta Court of Appeal has directed that a Service Plan must show a plan for the care of the children and what a guardian must do to regain custody of the child. This is what enables courts to consider whether the Director has followed the plan and whether the guardian has done what was required to regain custody, which in turn helps courts decide whether to restore custody to a guardian, to issue another TGO, or to issue a PGO.

The QB Justice thus overturned the lower court’s decision, changing the PGO into a TGO for the two youngest children and ordering the Director to file a Service Plan that met legal requirements.

Further, the trial judge had ruled that the Director could decide when and where the mother could visit the oldest child. The QB Justice overturned that decision and ruled that if the Director and the guardian cannot agree on the terms of visits, then that decision lies with the Court, not with the Director.

The court emphasized that when it issues a Temporary Guardianship Order, the state’s guardianship is intended to be temporary, and that the goal is to return custody to parents if possible. No longer could Child Welfare treat a TGO as simply an administrative step leading to a PGO; they would have to outline what they will do to care for children in their care and what guardians must do to get their children back. This case also evened out the power of Child Welfare and of parents to decide the terms of child visits, halting the practice of Child Welfare deciding unilaterally.