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    • Month: June 2017

    Legally-Bound-to-be-Faithful-During-the-Marriage

    Legally Bound to be Faithful During the Marriage?

    By: Katelyn Bell, Summer Law Student

    Celebrities Justin Timberlake and wife Jessica Biel made headlines a couple years back when word spread that they had an “infidelity clause” contained within their marriage contract. The clause allegedly stipulates that if Timberlake is unfaithful to Biel, he owes her $500,000.00.

    This type of clause is known as a “lifestyle clause,” which are more common than you would think. The clauses address non-financial aspects of a marriage, and the range of things in which they can outline is quite vast. While some clauses may stipulate how many times the in-laws are allowed to visit per year, others may set out body-weight requirements (woah), and then of course, there’s the ones that speak to extra-marital affairs. Ultimatums about infidelity are among the most popular lifestyle clauses in domestic agreements.

    And though infidelity clauses are quite common for celebrities – consider also Catherine Zeta Jones and Michael Douglas, or Brad Pitt and Angelina Jolie – it isn’t only celebrities who choose to include these types of clauses in their relationship agreements.

    The general public is making use of lifestyle clauses as well, especially those relating to infidelity. Reason being:

    (1) These types of clauses are a way to ensure financial stability, and

    (2) Having a clause of this type may be an effort on the part of one spouse to prevent (or at least try to prevent) their partner from cheating.

    But do they work?

    With regards to point (1) above, in order for the clause to afford the wronged spouse any money, the clause must be enforceable in the courts. If the domestic contract is contrary to public policy, despite its validity at the time, the court will not enforce such an agreement.

    In Canada, “fault-based divorce” has been eliminated from the legislation. Though the Divorce Act originally provided two grounds for divorce – cruelty/adultery and no-fault – today there is only one ground, which is marriage breakdown (s. 8 of DA). Marriage breakdown is a no-fault ground to divorce.

    Because Canada’s divorce legislation is “no-fault,” including a clause in a contract which explicitly puts a spouse at fault (i.e.: “If you cheat on me you owe me $60,000.00”) is most likely unenforceable. Our system is not meant to punish individuals for misbehaviour, and as such, adultery is not a determining factor in asset distribution.

    Though an infidelity clause has yet to be challenged in a Canadian court, the D’Andrade v Schrage (2011) decision provides some insight as to how Canadian courts are likely to respond to an infidelity clause in a pre-nuptial agreement.

    In this decision, the court rejected the argument that an affair during the negotiations of a marriage agreement (being negotiated after the parties were already married) would void the agreement. The court stated:

    “In recognition of the fact that marriages are complicated institutions, whose failure can rarely be attributed to one party or the other, the law has evolved in a fashion that by and large eliminates conduct from the analysis of financial entitlement…”

    “…it is important to consider the purpose of the contract in question. It is not to enforce personal obligations such as the duty to remain faithful or the commitment to remain in the relationship. While people may feel that these obligations are part of the marriage “contract”, these are not the obligations that domestic contracts are meant to deal with.”

    In the United States, in a case which challenged an infidelity clause, the court found that the clause in the domestic agreement was not enforceable because it was contrary to the public policy underlying California’s no-fault divorce laws.

    Based on the above, it’s highly improbable that an infidelity clause would be enforced by a Canadian court.

    So with regards to the question of “But do they work?”, the answer to point (1) is most likely no, but what about point (2)? Will the inclusion of such a clause in a domestic agreement work to keep your spouse faithful?

    Reportedly, when Tiger Woods was rumored to be seeking back with ex-wife Elin Nordegren, Nordegren wanted an infidelity clause contained within their pre-nup with a $350 million financial penalty for Woods if he were to ever cheat again.

    Of course, whether or not the clause will work as a deterrent depends on each individual. While some spouses argue that these types of clauses are the antidote to adultery, many others may disagree.

    Ultimately, every relationship is different and spouses will have to decide which, if any, lifestyle clauses make sense for their relationship. If a couple chooses to insert an infidelity clause in their domestic agreement, as long as the contract has a severability clause, the rest of the contract will remain enforceable (so long as it remains legally valid), even if the adultery clause is not.

    If you are in need of a Family lawyer, please contact the family lawyers of Devry Smith Frank LLP for assistance, or call us directly at 416-449-1400.

    “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Family Law
    DSF Logo

    Am I Liable For My Ex-wife’s RRSP Losses?

    Toronto Family Lawyer John Schuman was recently asked the following question:

    Is there any case law that would show I am not liable for any of the following losses? When applying for a divorce, you must fill out a financial statement. Before we were married my wife had RRSP’s that were called labour-sponsored funds. They subsequently lost 90% of their value after we were married. I contend that I should not be liable for any of these losses.

    Answer:

    On the breakdown of a marriage (but not a common-law relationship), spouses “equalize” their assets and liabilities and share, with some exceptions, the growth in their net worth during the marriage.  This video explains “Equalization of Net Family Property” in greater detail.

    Many separating spouses can feel that the equalization process can be unfair – particularly where one spouse has spent money on stupid things, gambled it away, is getting a windfall due to the division of the matrimonial home, or it has been a very short marriage.  In these and other situations, dividing up all property “50/50” can seem unfair.

    Section 5(6) of Ontario’s Family Law Act does allow a Court (or Family Arbitrator) to deviate from the usual equalization of Net Family Property and divide the family’s wealth another way. It accommodates all of the scenarios above and a few others.

    However, the test that the Family Court (or an arbitrator) has to use is not whether the normal “equalization” would be unfair. Section 5(6) says that to deviate from the normal equalization, the Court must be “of the opinion that equalizing the net family properties would be unconscionable.”   “Unconscionable” is much more than just unfair.  The case law says that it means that the usual result must be “shocking to the conscience of the court.” That is much more than just unfair.  One spouse spending a lot of money on an affair is not enough.  A spouse spending too much is not enough.  Justice Jennings put it this way:
    The result must be more than hardship, more than unfair, more than inequitable. There are not too many words left in common parlance that can be used to describe a result more severe than unconscionable.

    Specifically, on the issue of investment losses, the Courts have held that improvident (stupid) investing is not enough to justify an unequal division of net family properties.  The investment must have been made recklessly or in bad faith.  That means the spouse must have known or should have known, that the investment would become worthless. Risky investing is not enough. The spouse must have acted deliberately to lose money or knowing that he or she was likely to lose money.

    That can definitely seem unfair – especially when one spouse is a conservative investor and one spouse is a high-risk investor, or where one spouse’s savings have done really well and the other spouse’s investments have done poorly. But, fairness is not the test.  Different opinions on finances can cause stress in, or event the end of, a lot of marriages.

    Where spouses have significant differences of opinion about money, they should consider getting a marriage contract.  Spouses can get a marriage contract at any point during the marriage.  They can keep a marriage together if one spouse wants to do something risky and the other one wants financial protection.  This video explains how to protect yourself and save your marriage with a marriage contract.

    But, if you are separated now, it is likely too late for a marriage contract, and you have made one of the common family law mistakes.  You should speak to an excellent Family Law Lawyer as the only way to correct this may be through spousal support, as section 15.2(6)(a) of the Divorce Act allows a judge to address the economic consequences of the marriage and its breakdown through spousal support.  That can be through either awarding spousal support or reducing an amount of spousal support to reflect how the marriage affected the spouses financially.

    You can get a lot more information about Ontario Family Law issues, including support and property division, and most other common family law issues by downloading this $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac, or ordering the paperback version.  But, to keep out of trouble, it is always best to speak with a good family law lawyer.

    John Schuman is a Certified Specialist in Family Law.  He is the partner managing the Family Law Group at Devry Smith Frank LLP, a full-service law firm located near Eglinton and the Don Valley Parkway in Toronto. Learn more about John! Call him at 416-446-5080 or 416-446-5847 or email john.schuman@dsf.theleadshub.biz Listen to the Ontario Family Law Podcast!

    By Fauzan SiddiquiBlog, Family Law No comments yet

    Am I Liable For My Ex-Wife’s RRSP Losses?

    Is there any case law that would show I am not liable for any of the following losses? When applying for a divorce, you must fill out a financial statement. Before we were married, my wife had RRSPs that were called labour-sponsored funds. They subsequently lost 90% of their value after we were married. I contend that I should not be liable for any of these losses.

    Answer:

    On the breakdown of a marriage (but not a common law relationship), spouses “equalize” their assets and liabilities and share, with some exceptions, the growth in their net worth during the marriage.  This video explains “Equalization of Net Family Property” in greater detail.

    Many separating spouses can feel that the equalization process can be unfair, particularly where one spouse has spent money on stupid things, gambled it away, is getting a windfall due to the division of the matrimonial home, or it has been a very short marriage.  In these and other situations, dividing up all property “50/50” can seem unfair.

    Section 5(6) of Ontario’s Family Law Act does allow a Court (or Family Arbitrator) to deviate from the usual equalization of Net Family Property and divide the family’s wealth in another way. It accommodates all of the scenarios above and a few others.

    However, the test that the Family Court (or arbitrator) has to use is not whether the normal “equalization” would be unfair. Section 5(6) says that to deviate from the normal equalization, the Court must be “of the opinion that equalizing the net family properties would be unconscionable.”   “Unconscionable” is much more than just unfair.  The case law says that it means that the usual result must be “shocking to the conscious of the court.” That is much more than just unfair.  One spouse spending a lot of money on an affair is not enough.  A spouse spending too much is not enough.  Justice Jennings put it this way:
    The result must be more than hardship, more than unfair, more than inequitable. There are not too many words left in common parlance that can be used to describe a result more severe than unconscionable.

    Specifically on the issue of investment losses, the Courts have held that improvident (stupid) investing is not enough to justify an unequal division of net family properties.  The investment must have been made recklessly or in bad faith.  That means the spouse must have known, or should have known, that the investment would become worthless. Risky investing is not enough. The spouse must have acted deliberately to lose money or known that he or she was likely to lose money.

    That can definitely seem unfair, especially when one spouse is a conservative investor and one spouse is a high-risk investor, or where one spouse’s savings have done really well and the other spouse’s investments have done poorly. But fairness is not the test.  Different opinions on finances can cause stress in or even end a lot of marriages.

    Where spouses have significant differences of opinion about money, they should consider getting a marriage contract.  Spouses can get a marriage contract at any point during the marriage.  They can keep a marriage together if one spouse wants to do something risky and the other one wants financial protection.  This video explains how to protect yourself and save your marriage with a marriage contract.

    But if you are separated now, it is likely too late for a marriage contract, and you have made one of the common family law mistakes.  You should speak to an excellent Family Law Lawyer as the only way to correct this may be through spousal support, as section 15.2(6)(a) of the Divorce Act allows a judge to address the economic consequences of the marriage and its breakdown through spousal support.  That can be through either awarding spousal support or reducing the amount of spousal support to reflect how the marriage affected the spouses financially.

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Family Law
    Anticipated Vaping Bill S-5

    Anticipated Vaping Bill S-5

    By: Nicolas Di Nardo

    Vaping products have been available in Canada for over five years now, and even still in the current landscape, there doesn’t exist very many regulations around vaping.

    There are many different vaping devices, one example being the e-cigarette that produces vapour for inhalation and can be purchased in different flavours, and even with or without nicotine.

    In order to catch up, the government has introduced Bill S-5 which has passed a first reading in the House of Commons which took place on June 15. The bill is embraced by advocates, as it creates a regulatory framework for products including quality control provisions and banning sales to minors. However, there is a clause with which they are concerned about. The clause in question restricts the promotion of vaping products that will compare the health effects to those of tobacco products.

    Industry advocates say that the consumer benefits from being given the comparative information at the point of sale, and if the bill is passed, it will limit the amount of phrases vaping companies can use when comparing their products with tobacco. Essentially, the companies may have to provide somewhat of a information pamphlet educating consumers on the risks of vaping and smoking without promoting one over the other.

    With more support after the bill is passed, vaping may be able to overtake tobacco and become a less harmful replacement. Bill S-5 will allow for regulation, safer products, and that even the manufacturers of these vaping products are providing proper products to consumers and following proper practices.

    If the bill receives the Royal Assent, Health Canada will still need to develop specific vaping regulations.

    “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog No comments yet
    Failure to Pay an ESA Order Resulted in Jail Time and a $20,000 Fine

    Failure to Pay an ESA Order Resulted in Jail Time and a $20,000 Fine

    By: Michelle Cook, Summer Law Student

    On June 6, 2017, a Mississauga employer received a jail sentence of 30 days plus an additional fine of $20,000 after failing to pay an order issued by a Ministry of Labour employment standards officer. The order required him to pay about $140,000 in outstanding wages to his 43 workers, many university students. While jail time is rare for Employment Standards Act (ESA) violations, this case shows that the courts are beginning to take a stronger punitive approach to large violators of workplace laws.

    This comes just after the Ministry of Labour has promised to ramp up enforcement last week, when Premier Kathleen Wynne and Labour Minister Kevin Flynn proposed updates to Ontario’s labour and employment laws, including increased fines for workplace violations. If the legislation is passed, it will add up to 175 employment standards inspectors, enabling inspectors to award damages and interest on unpaid wages.

    The ministry has failed in the collections process in previous years. Ranging from 2009 to 2015 more than one-third of stolen wages were never recovered, meaning that the victims of wage theft across Ontario have lost out on $28 million. However, since 2015, Ontario employers facing prosecution for workplace violations have risen by more than 40 per cent.

    Peter David Sinisa Sesek ran Academic Montessori in Brampton and WISE Summer Camp in Mississauga. In addition to the 30-day sentence and an order to pay $127,000 in outstanding wages to former employees – most of which were university students whose individual claims ranged from $700 to $12,000— he was also fined $20,000 for failing to comply with the ministry’s order to pay, which was issued in 2015. The outstanding wages dated all the way back to 2014.

    His sentence is very uncommon. Over the past two decades there have been fewer than 10 jail sentences for ignoring orders to pay, with the most recent sentence in 2016 only imprisoning the accused boss for one day. The maximum penalty for ignoring orders to pay is one year of imprisonment.

    In summary, Sesek was convicted under the Employment Standards Act as well as the Provincial Offences Act. Any person who fails to comply or is convicted under the ESA can be:

    • Fined up to $50,000 or imprisonment of up to 12 months, or both;
    • If a corporation, the fine may be up to $100,000;
    • For a corporation with a previous conviction, the fine may be up to $250,000; and
    • If there is more than one previous conviction the fine may be up to $500,000.

    Also noted in the court bulletin, the court imposes a 25 per cent victim fine surcharge, which is required by the Provincial Offences Act. The surcharge goes to a provincial government fund that assists victims of crime.

    The Changing Workplaces review has hinted that the maximum penalties for violations of workplace laws will be increasing in the future. Employers should be careful to make sure that they are in compliance with the law and that ESA orders are dealt with seriously and promptly.

    Devry Smith Frank LLP is a full service law firm that has an experienced group of lawyers within our employment and labour law groups. If you are in need of representation, please contact one of our lawyers today or call us directly at 416-449-1400.

    “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Employment Law No comments yet
    Ontario’s New Standard Lease Agreement Starting April 30, 2018

    Rent Increase capped at 1.8% in 2018

    By: Nicolas Di Nardo

    Under Ontario law, rent increases can not exceed 2.5 per cent. However, under the new housing reforms, the Liberal government extended their rent control to buildings since 1991 and landlords are required to apply to authorities if they are seeking to increase rent by more than 1.8 per cent next year. This will be done under what is known as The Rental Fairness Act, 2017.

    The Rental Fairness Act, 2017, will effect all privately-owned rental properties across the province, which is looking to help cities like Barrie from soaring rental prices.  The Ontario Ministry of Housing has set the rate at 1.8 per cent, basing it on the provincial consumer price index, in the hopes of providing better housing to Ontarians.

    Barrie is in need of this cap. Based on data collected from PadMapper at the end of January, Barrie is the eighth most expensive city to rent in, when just three months prior it was sitting at 15th. It is now one of the most expensive cities in Canada to rent in. For example, recent rental rates have the average price of a two-bedroom unit sitting around $1,500 per month plus utilities. Renters are having trouble trying to find anything lower than that, even with a budget of $1,000 a month (inclusive), prospective renters are spending months searching for a place they can afford.

    With the new reforms in place, it will allow renters to afford to get into an apartment, and live there year after year, without the fear of rent being increased to an amount they will struggle to afford – it will be more predictable which can help renters get their finances in order.

    These protections come after a series of “unreasonable” rent increases and tenants being evicted from their units by their landlords. Landlords will now face a penalty if they evict tenants for personal reasons such as moving in a family member. Additionally, Premier Kathleen Wynne implemented this as part of their housing reforms in order to cool down the then-overheated housing market in April, when units built after 1991 were showing evidence of rent and sale price increases.

    There are exceptions to this cap. The cap does not apply to:

    • Vacant units
    • Social housing
    • Nursing homes
    • Commercial properties

    If a landlord makes improvements to their units, they have the option to apply to the Landlord and Tenant Board for increases (no more than 2.5 per cent).

    As a result, 250,000 tenants will be protected and 1.2 million private rental units will have to follow the new rent cap.

    If you are in need of a Barrie Real Estate lawyer, please visit our website and contact one of our Barrie Real Estate lawyers today. If you are in need of any other services or have any questions, you may also contact our Barrie office directly at 705-812-2100.

    “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Real Estate No comments yet
    Challenging the Safe Streets Act

    Challenging the Safe Streets Act

    By: Nicolas Di Nardo

    A law created in 1999 known as the Safe Streets Act is being challenged by the Fair Change Community Legal Clinic on the basis that it discriminates against people with mental health and addiction issues.

    Leading this dispute is Gerry Williams, along with the Fair Change Community Legal Clinic. Williams shares his experiences of being homeless and the amount of fines he was given over 9 years while trying to survive. Since then, he has overcome homelessness, has a job and a place to live.

    Gerry suffered from alcoholism and undiagnosed mental health issues, but is a very different person today. Before he was able to get the help he needed to thrive, he suffered.

    He managed to be handed $65,000 in fines over 9 years ago while homeless, all of which were given to him through provincial offences and convictions. These included:

    • Loitering
    • Littering
    • Drinking in public
    • Trespassing

    Gerry determined that approximately $10,000 worth of his tickets were issued through the Safe Streets Act while he was panhandling to survive.

    This law was intended to limit the aggressive behaviour brought on by people asking for money on the street, which also included squeegeeing.

    Williams is now part of a constitutional challenge to the Act, which was filed by the legal clinic last Wednesday.

    Fair Change has spoken up about the issues with this law, stating it is:

    • Impacting people with mental health and addiction issues
    • Costing the public $2 million in court fees and paperwork
    • Fines under the act will likely never be paid
    • Ruined credit scores, limiting opportunity for housing, drivers license, or work after being convicted under the Act
    • Hurts people that are already vulnerable
    • Increases homelessness

    Poverty remains the most pressing human rights issue in Canada, however, Joanna Nefs says the law is not doing anything to help fix that. Laws that are criminalizing people in poverty does not line up with the goal to end poverty, or the Human Rights Code, which Renu Mandhane, chief Commissioner for the Ontario Human Rights Commission is making reference to the Safe Streets Act as one of those laws.

    Fair Change is looking for the law to be repealed rather than fighting it, and this is not the first time. MPP Cheri DiNovo tabled private members’ bills in 2015 and 2016 for the Act to be repealed.

    Please check back to our blog for more update and developments to this story.

    Devry Smith Frank LLP is a full service law firm located in Don Mills. If you require representation or have any questions, please contact Devry Smith Frank LLP today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400.

    “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Human Rights Law No comments yet
    Minimum Wage Embedded In New Law

    Minimum Wage Embedded In New Law

    By: Nicolas Di Nardo

    With the new minimum wage increase set to become $15 an hour in 2019, it would require the Progressive Conservatives to change labour laws in order to get rid of it. The new wage increase will take effect six months after the June 2018 election.

    The Liberals have embedded it in the new Fair Workplaces, Better Jobs Act which is still to be studied by all-parties this summer, which is expected to pass in the fall. For more information on the details of this Act, please read our previous posts:

    The Act looks to increase minimum wage to $14 an hour on January 1st, and to $15 an hour on January 1, 2019.

    It is expected that the Liberals will campaign on this Act as well as the proposed pharmacare plan which is also going to launch on January 1st.

    Devry Smith Frank LLP is a full service law firm located in Don Mills. If you require representation or have any questions, please contact Devry Smith Frank LLP today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400.

    “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Employment Law, Labour Law No comments yet
    Requiring Customers to Come to Stores Has Been Deemed Discriminatory

    Requiring Customers to Come to Stores Has Been Deemed Discriminatory

    By: Michelle Cook, Summer Law Student

    Could companies that require their customers to come into their physical stores be guilty of discrimination?  A human rights adjudicator seems to think so.

    In Mills v Bell Mobility Inc, Canadian Human Rights Tribunal member Edward Lustig awarded $10,000 plus interest in compensation for Ms. Mills’ pain and suffering as a result of being required to attend at a Bell store. The Tribunal found that a phone activation policy that required customers to physically present themselves in the company’s stores, thereby endangering the health of some disabled persons, amounted to discrimination based on disability, in contravention of the Canadian Human Rights Act. Bell, one of the many companies that has such a policy, could not justify why disabled persons could not be accommodated through other methods of communication, such as Skype or Facetime.

    Ms. Mills was disabled as a result of cancer in late 2013 and a stroke that nearly killed her in 2014. Ms. Mills was bedridden, extremely weak and partially paralyzed.  Her physician has instructed her to stay home, unless an emergency required her to leave.

    Her son had made attempts to activate her phone on her behalf, including an offer to come to the store with all Ms. Mills’ identification documents, including a valid Power of Attorney. However, Bell stood by their in-person policy and took the position that that its activation standards policy was necessary in order to combat identity fraud.

    Ms. Mills eventually relented and attended at a store to have her phone activated.  She then commenced a human rights complaint.  Interestingly, while she was ultimately successful in getting an award for pain and suffering, the CHRT member refused to find that Bell had committed reckless or wilful discrimination, citing its reputation as a company that “usually cares about its customers, including disabled Canadians,” especially its efforts to combat mental health stigma.

    For more commentary see: Law Times News

    Devry Smith Frank LLP is a full service law firm located in Don Mills. If you require representation or have any questions, please contact Devry Smith Frank LLP today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400.

    “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Human Rights Law No comments yet
    The Fight Against Solitary Confinement

    The Fight Against Solitary Confinement

    By: Katelyn Bell, Summer Law Student

    The issue of solitary confinement has been long-standing in Canada. Solitary confinement is meant to be ordered on a temporary basis, not on an indefinite one. In recent years, the issue has come to the forefront, after several Canadian inmates committed suicide while in solitary.

    Ten years ago, Ashley Smith, a 19 year-old inmate in solitary, strangled herself to death in her cell while prison guards watched and videotaped it. Smith spent a total of 1,047 days in solitary confinement, and had been placed on high suicide watch. Unquestionably, Smith’s lengthy stay in solitary was a contributing factor in her suicide.

    Calls to limit the segregation of prisoners grew much louder after Smith’s 2007 death, but unfortunately, the problem has persisted.

    Last fall, a prison guard’s tip-off to Ontario’s chief human-rights commissioner revealed that Adam Capay – a 23 year old inmate – had spent over four years in solitary confinement, totalling 1,636 days: segregation analogous to torture.

    Without question, the rights of those individuals confined to a single cell for such long periods of times violates their rights under the Canadian Charter of Rights and Freedoms. Under the Charter, Canadians have the right to life, liberty and security of the person, the right against unfair detainment, and the right to be free from cruel and unusual punishment.

    In British Columbia, a trial seeking to challenge Canada’s solitary confinement prison policies as “cruel and unusual punishment” is scheduled to begin on July 4, 2017. However, the Liberals are looking to halt this trial.

    Why? Because the government is finally working on a solution to the inappropriate use of segregation.

    An application filed with the Supreme Court of British Columbia on June 20, 2017 argues that proceeding with the July trial would be a waste of court resources, because the concerns about prolonged segregation are being addressed in new legislation – Bill C-56.

    So, how are they being addressed?

    The legislation introduced by the Liberals limits the amount of time federal inmates can be held in segregation cells. If Bill C-56 is passed, inmates would not be allowed to be held more than 15 days in solitary. But before the 15-day limit, Correctional Service Canada will have an 18-month transition period, during which time the cap will be set at 21 days.

    These proposed time limits will of course be subject to safety and security requirements, and also, it must be ensured that other reasonable alternatives are available.

    But 15 days is a long time…

    Most of us have experienced “one-of-those-days,” where whether at work, home, or anywhere, the day seems to go on forever. Imagine 15 of those. In a row. Although the new legislation will limit inappropriate segregation, 15 days still seems to be far too long to be in solitary. Again, the analogy can be drawn to torture.

    While some argue to lessen the allotment from 15 to 5, others demand a total ban on segregation, calling it cruel and unusual punishment, and thereby a violation of the Charter. (see s. 12)

    Ultimately, the bill is a step in the right direction. But because the bill has only received its first reading, there is no guarantee that the bill will be enacted. And if it is enacted, its form remains uncertain, as Parliament may choose to amend the legislation.

    For this reason, those behind the lawsuit – the John Howard Society and the B.C. Civil Liberties Association – want the July 4 trial to proceed.

    The government’s application to adjourn the trial was heard on Friday in Vancouver. Justice Peter Leask reserved his decision, and the parties are due back in court tomorrow.

    Devry Smith Frank LLP is a full-service law firm located in Don Mills. If you require representation or have any questions, please contact Devry Smith Frank LLP today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400.

    “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Criminal Law, Human Rights Law No comments yet