At the trial level, the BCCLA and John Howard successfully challenged the constitutionality of ss. 31 to 33 and 37 of the Corrections and Conditional Release Act. According to the legislation, the head of a correctional institution can place an inmate in administrative segregation if they have reasonable grounds to believe the inmate jeopardizes the security of the facility and those in it or association with other inmates will interfere with an investigation or put the inmate at risk. Decisions as to an inmate’s administrative segregation or their review are decided at a hearing arranged by the head of the institution, who can bar the inmate from attending if they are “voluntarily absent,” their presence would jeopardize the safety of other attendees or disrupt the hearing. The inmate is to be released at “the earliest appropriate time,” states the legislation.

The Attorney General of Canada appealed but the Court of Appeal affirmed the trial judge’s finding that ss. 31-33 and 37 of the act are of no force and effect under s. 7 of the Charter – granting life, liberty and security of the person.

However, the Court of Appeal disagreed with some aspects of the lower court’s findings and saw that in some cases the problem was with the administration of the act, rather than the act itself.

The lower court decided an inmate’s lack of a right to counsel in segregation review hearings and the transgression of s. 15 Charter rights for Indigenous and mentally ill or disabled inmates was enough to strike down the legislation. The Court of Appeal found the blame was on the CSC for failing its obligations under the act.

The lower court’s finding that Indigenous inmates’ s. 15 equality rights were violated was not challenged by the Attorney General on appeal. The Court of Appeal made no declaration on the issue, saying it was “unable to discern the precise basis upon which either the trial judge’s findings or the Attorney General’s concession rests,” so any declaration would be “vague.” The Court of Appeal found that the s. 15 breach against disabled and mentally ill inmates was not in the wording in of the act but the actions of the CSC.