Jan 23, 2019

Judge gives 3.75 days credit for each day in segregation: A Case Summary of R v Prystay, 2019 ABQB 8

R v Prystay, 2019 ABQB 8 (CanLII)

On January 4, 2019, the Queen’s Bench Court of Alberta published Justice Dawn Pentelechuk’s decision R v Prystay, 2019 ABQB 8. Justice Pentelechuk found that Mr. Prystay’s experience in administrative segregation breached s. 12 of the Charter and, in turn, she gave him enhanced credit of 3.75 days for each day spent in administrative segregation.

Mr. Prystay had spent 363 days in administrative segregation (also known as solitary confinement) and 217 days in general population at the Edmonton Remand Centre before being sentenced. His global sentence was four years and 10 months for the following charges: possession of methamphetamine, failing to stop, unlawfully wounding a law enforcement animal, possession of a loaded firearm, and possession of a handgun for a dangerous purpose.

Justice Pentelechuk found that Mr. Prystay’s experience in administrative segregation breached s. 12 of the Charter. She determined that his placement in administrative segregation constituted cruel and unusual punishment due to the excessive length, the adverse effects it had on his health, and because he was not afforded procedural fairness. Furthermore, his indefinite placement was not in accordance with ascertainable standards.

Justice Pentelechuk explained the set-up of the Edmonton Remand Centre and the difference and similarities between disciplinary and administrative segregation. Mr. Prystay was put into administrative segregation to ensure the safety and security of others after he assaulted another prisoner. Segregated prisoners are confined to their cells for 23 hours a day; they are afforded two 30-minute blocks of time outside their cell. There is no access to the outdoor courtyard or exercise room — just a “fresh air room” which is a 10’ x 20’ room with one window that is a “seasonal concept”, which means it is usually only opened in the warmer months. These breaks were scheduled in such a manner that Mr. Prystay had limited interaction with other people.

While in segregation Mr. Prystay suffered from anxiety, difficulty sleeping, hopelessness, paranoia, auditory hallucinations, body aches, and increased anti-social feelings. Routine daily checks were not documented but staff reported they had no concerns with Mr. Prystay’s health. Mr. Prystay explained that reporting mental health problems only made the situation in segregation worse because prisoners were at risk of being placed in a mental health unit with bare cells and might be forced to wear a restraint jacket or a “baby doll” gown.

Remarkably, senior management did not tell Mr. Prystay what he needed to do to get out of administrative segregation until nine months had passed, despite the fact that correctional officers consistently recommended to senior management his return to general population. The committee reviewing his placement instead referred to his past conduct against another prisoner, his drug addiction, and his non-compliance with staff directions. Justice Pentelechuk found the reviews to be perfunctory and she concluded that Mr. Prystay’s placement in segregation was “devoid of procedural fairness and appropriate oversight” and his ongoing placement was not justified.

While Justice Pentelechuk expressed that this situation was not the clearest of cases to justify a stay of proceedings under s. 24 of the Charter, she did reduce his sentence. Her remedy was to reduce his sentence by an enhanced credit of 3.75 days for each day served in segregation and 1.5 days for each day served in general population. In the end, Mr. Prystay had 77 days of remaining time to serve.

Notably, Justice Pentelechuk cited Justice Louise Arbour’s 1996 report titled Commission of Inquiry into certain events at the Prison for Women in Kingston and the British Columbia Civil Liberties Association v Canada (Attorney General), 2018 BCSC 62, which is currently under appeal.

Justice Pentelechuk commented on society’s evolving concepts of acceptable treatment and punishment, such as forced sterilization, residential schools, lobotomies, corporal punishment in schools, and the death penalty. At paragraph 129:

"Informed Canadians also realize that indefinite placement in segregation thwarts an inmate’s chance of successfully re-integrating into society. Certainly Canadians find abhorrent that someone should remain in segregation for months or even years. Perhaps one day, segregation will be ended. Until then, recognizing that inmates have no political clout or influence, robust judicial oversight is the means of ensuring the constitutionally protected right to be free of cruel and unusual punishment or treatment is not sacrificed in the name of convenience or expediency."

Justice Pentelechuk opined that if segregation is to stay, every effort should be made to improve the restrictions on mobility, mental stimulation, and meaningful human contact. Further, she stated that there should be procedural fairness in the decision to place a prisoner in segregation and that a robust process is in place to insure release into general population as soon as possible.

Alberta Justice and Solicitor-General has reportedly said the Crown Prosecution Service is reviewing the Prystay decision and will decide whether it will appeal.