Prisoners’ Rights Group Takes BC to Court Over Unfair Prisoner Disciplinary System

On May 12, 2015, WCPJS filed a lawsuit against the BC government challenging the fairness of the BC Corrections’ prisoner disciplinary system.

In BC, prison staff adjudicate disciplinary hearings against prisoners accused of violating institutional rules. “This lawsuit challenges the lack of independence in a system where the offended party is the judge”, says Tonia Grace, counsel for WCPJS and three prisoner plaintiffs.

Correctional staff can impose sanctions as severe as solitary confinement when a prisoner is found guilty of breaking an institutional rule.

Prisoners can appeal convictions to the Investigation and Standards Office, who routinely find the prisoner’s right to an impartial, unbiased decision maker was violated.

At some BC prisons, the conviction rate is approximately 90%. About 50% of appeals to the Investigation and Standards Office are successful.

“By the time the appeal overturns the conviction, prisoners will have served most or all of the sentence in solitary confinement. A successful appeal is a hollow victory for most prisoners”, says Jennifer Metcalfe, Executive Director of Prisoners’ Legal Services, a project of WCPJS.

Prisoners are found guilty on the low “balance of probabilities” standard of proof, rather than the higher criminal standard of “beyond a reasonable doubt”. This means that prisoners can be held in solitary confinement for up to 30 days for one breach, and up to 45 days for more than one breach, even if the decision-maker is not sure the prisoner committed the breach. The lawsuit also challenges the use of the lower standard of proof.

“When prisoners feel they have been treated unfairly, it does not foster a respect for the rule of law, which is essential to their rehabilitation as law abiding citizens”, says Metcalfe.

To read the Notice of Civil Claim, click Here.

For more information please contact:

Jennifer Metcalfe
Prisoners’ Legal Services
604-636-0470
jmetcalfe@pls-bc.ca

Tonia Grace
Grace, Snowdon & Terepocki
604-744-1066
tgrace@gstlegal.ca

Prisoners without immigration status in Canada win human rights

October 22, 2018

Prisoners’ Legal Services – Burnaby BC

On October 18, 2018, the Federal Court of Appeal decided that federal prisoners without immigration status in Canada are protected by the Canadian Human Rights Act.

The Act protects the human rights of individuals who are “lawfully present in Canada”. A previous decision of the Federal Court of Appeal found that prisoners must have immigration status in Canada to be protected by the Act. Thursday’s decision finds that the previous decision was wrongly decided, and acknowledges that individuals who are serving sentences in Canadian prisons are lawfully present in Canada, and are protected by human rights law.

Prisoners’ Legal Services represented Kien Beng Tan in the case. Mr. Tan is a federal prisoner who is a citizen of Malaysia and a practicing Buddhist. He filed a human rights complaint when he and others were denied access to minority faith chaplains in prison. The Canadian Human Rights Commission refused to consider his complaint because it considered him not to be lawfully present in Canada.

The Honourable Justice Rennie wrote the majority decision. He found that Mr. Tan is lawfully present in Canada because he is serving a sentence to a term of imprisonment in Canada, which is authorized by the Criminal Code and the Corrections and Conditional Release Act. The stay of his removal order and the fact that his entry to Canada was authorized under the Extradition Act also indicate that his presence in Canada is lawful.

Mr. Justice Rennie departed from the previous Federal Court of Appeal decision, quoting Lord Denning for the principle that “[t]he doctrine of precedent does not compel [us] to follow the wrong path until [we] fall over the edge of a cliff”.

The Federal Court of Appeal notes that if it did not depart from the previous decision, Mr. Tan could be required to remain in prison for his entire life “under the greatest restriction of liberty and government control possible, in all aspects of life and wellbeing, yet cannot make a human rights complaint merely because he does not hold some form of immigration status and is subject to a deportation order if ever he is released.”

The court found it would create an absurd consequence to deprive a prisoner without immigration status of human rights protections, when a Canadian prisoner, could make a human rights complaint for the same discrimination, even if the former was serving a life sentence and the latter a short sentence.

“I am very glad that people who had no human rights protections in Canadian prisons now have rights. I am thankful that my case will help other people like me,” said Mr. Tan.

Lawyer Fadi Yachoua and Prisoners’ Legal Services Executive Director, Jennifer Metcalfe, represented Mr. Tan in the appeal. “This is a good day for human rights in Canada. Prisoners without immigration status are some of the most vulnerable and marginalized members of our society, and now they are protected by human rights law,” said Ms. Metcalfe.

The federal government supported Mr. Tan’s interpretation of the Canadian Human Rights Act to include foreign national prisoners serving a sentence in Canada under its protections.

Link to Tan v. Canada (Attorney General), 2018 FCA 186: https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/346253/index.do