Toutsaint v Correctional Service Canada and West Coast Prison Justice Society v Correctional Service Canada, 2021 CHRT 3 (CanLII)

Motion granted. Correctional Service of Canada requested that an Indigenous federal inmate that is currently serving an indeterminate sentence as a dangerous offender, have his complaints heard the same time as another harassment complaint, as the allegations and issues are substantially similar in fact and law.

Indigenous Law Centre CaseWatch Blog

Mr. Joey Toutsaint is Indigenous and is a federal inmate currently serving an indeterminate sentence as a dangerous offender and is classified a maximum security inmate. He alleges that Correctional Service of Canada [“CSC”] has discriminated against him on the grounds of disability, national or ethnic origin, race and/or religion and that individual CSC employees have mistreated and harassed him.

Mr. Toutsaint further alleges that a number of CSC policies and practices disproportionately and adversely impact inmates with mental health disabilities generally, and Indigenous inmates with mental health disabilities specifically. This includes access to therapy, Indigenous cultural and spiritual practices and culturally appropriate treatment, placement in administrative segregation and prolonged periods of isolation, and the use of force. Mr. Toutsaint also filed a separate retaliation complaint.

The West Coast Prison Justice Society [“WCPJS”] operates a legal aid clinic for federal and provincial inmates under the name Prisoners’ Legal Services, who are also counsel for Mr. Toutsaint. The WCPJS complaint was filed on behalf of prisoners “with mental disabilities under the control of CSC” and alleges that CSC discriminates against prisoners on the grounds of disability, race, national or ethnic origin, and religion in the areas of security classification, access to treatment, the use of administrative segregation and the use of force.. The complaint relies heavily on Mr. Toutsaint’s experiences while incarcerated, along with those of two other federal inmates.

Along with other remedies, Mr. Toutsaint, the WCPJS, and the Canadian Human Rights Commission [“Commission”] seek a number of systemic remedies involving changes to CSC policies and practices that affect inmates with mental health disabilities generally and Indigenous inmates with mental health disabilities specifically.

The Tribunal may order that complaints be heard together if it determines it is appropriate to do so on the facts and law (Lattey v Canadian Pacific Railway, 2002 CanLii 45928 [“Lattey”]) In deciding whether to hear complaints together, the Tribunal should consider: 1) the public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results; 2) the potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and 3) whether there are common issues of fact or law.

The application of the Lattey factors to these complaints favours holding a single hearing on the basis of a joint record. The remedies sought by Mr. Toutsaint and the Commission are broad and may potentially lead to a lengthy and complex disclosure process in both cases. The Commission has confirmed that Mr. Toutsaint and the Commission have refined and narrowed their disclosure requests with a view to the matter proceeding as expeditiously as possible and to avoid voluminous production of documents that are not arguably relevant to the complaint.

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