R v Prystay, 2019 ABQB 8
Prystay was charged with a number of offences including possess of a loaded firearm and failing to stop for police. Following his arrest he was detained in custody for 28.5 months. During this period of time he assaulted another inmate. He was consequently placed in administrative segregation – remaining there for 13.5 months. The issues for the court on sentencing were:
Did the segregation amount to a violation of sections 7 or 12
If so, what remedy – a stay or a sentence reduction via enhanced credit beyond 1.5:1 – is appropriate
The placement of Prystay in administrative segregation amounted to a violation of s12. It was not the clearest of cases, however, and a stay was not warranted. As an alternative remedy, the court granted enhanced credit beyond 1.5:1 at a rate of 3.75:1.
The Fine Print
In coming to this conclusion the court touched on a number of points related to detention conditions. First, the court noted the general recognition that pre-sentence custody time is more onerous than sentencing time:
It has long been recognized that time served in remand or pre-trial custody is more onerous than time served in a penitentiary after sentencing. Not only is the environment harsher, with limited access to programs, but pre-trial custody does not count toward parole eligibility or statutory release: R v Sooch, 2008 ABCA 186 at para 11, 433 AR 270; R v Summers, 2014 SCC 26 at para 26,  1 SCR 575; R v Adams, 2016 ABQB 648 at para 29,  4 WWR 741. [Para 19].
Second, with respect to segregation, the court arrived at the following conclusions:
Inmates in either form of segregation are confined to their cell for 23 hours a day. Most are in single cells. They have two half-hour blocks outside of their cell during each 24 hour period. If an inmate is designated a cleaner for the unit, they may have an additional one to two hours outside their cell. Movement is strictly controlled. ERC staff are separated from the inmates by a steel and glass wall.
Arguably, it is the lack of meaningful human contact that is the most pernicious consequence of placement in segregation. Human beings are not meant to be isolated, particularly for extended periods. The longer a person is isolated, the more challenging it is to relate to others in an acceptable way and to form any type of meaningful relationship. [Paras 28, 39]
Third, the court discussed limits and expectations regarding the length of segregation:
To reiterate, Prystay does not challenge his initial placement in AS. His conduct against a fellow inmate warranted this action. The legitimate penal aim in placing Prystay in AS was to ensure the safety and security of other inmates and staff. As outlined below, placement in AS for 13 ½ months went well beyond what was necessary to achieve this legitimate aim.
Of note, an inmate cannot be placed in DS for more than 14 days at a time: Correctional Institute Regulation, Alta Reg 205/2001, s 46. In contrast, neither the Corrections and Conditional Release Act, s 1992, c 20 (CCRA), nor its regulations, mandate any limit on placement in AS. [Paras 48-49].
Fourth, the court commented on the impact of the “indefinite” placement in segregation on Prystay:
I accept Prystay’s evidence that while in AS, he suffered from auditory hallucinations, paranoia, difficulties sleeping, anxiety and chest pain, feelings of hopelessness, increased antisocial feelings. Given his pre-existing mental health issues and the sheer length of time spent in AS, I conclude he was at increased risk of suffering some degree of permanent impact.
Despite Prystay not having demonstrated permanent psychological injury caused by his stay in AS, I have no hesitation in concluding that while in AS, he suffered mental injury and physical symptoms and his placement put him at significant risk of permanent psychological injury.
Finally, I conclude that Prystay’s placement was devoid of procedural fairness and appropriate oversight, and on the evidence, his ongoing placement was not justified. [Paras 82-84].
Finally, in terms of remedy, the court found a stay was not appropriate:
Similarly, while I find the evidence here to be shocking and deeply disturbing, these circumstances fall short of the “clearest of cases,” especially since a reduction in sentence can be fashioned so as to provide an appropriate remedy. [Para 162].