Law in Quebec

The Ministry also has a year to provide awareness and training sessions on a “regular basis” on discriminatory profiling to all correctional officers and other current and future employees, supervisors and managers of Quebec detention facilities.

“This is the first ruling on racial profiling and mental health adaptation to be handed down in a prison environment,” noted Lysiane Clément-Major, a lawyer with the Quebec Human Rights Commission who successfully plead the case. “This judgment recognizes that prison services must be free from profiling and must be adapted to the mental health condition of prisoners.”

Mélanie Martel, author of “Droit carcéral et gestion des peines” (Prison law and sentence management), says the ruling is of “vital” importance, particularly since the Quebec prison system continues to lag behind the federal system. “Unfortunately, the provincial correctional system makes changes only when required, rather than proactively and innovatively,” remarked Martel, a lawyer specializing in prison law with Martel Savard & Associés inc. in Joliette. “This individual’s inhumane story unfortunately reflects the day-to-day reality of our practice as prison lawyers.”

Samuel Toussaint, a black 21-year old enrolled in an industrial electronic program at a college, was serving the tail end of an 82-day intermittent sentence when he was subjected in December 2016 to “brutal treatment” by prison guards at the Quebec Detention Center in Quebec City, according to the Tribunal. Toussaint was having a smoke outside near the admission center of the prison, when he was warned twice by a correctional officer patrolling the area in a car that smoking was prohibited. On the second occasion, Toussaint turned towards the guard, who stepped out of the vehicle, and threw his cigarette in his direction. The officer maintained that the cigarette butt had hit his bullet-proof vest, at sternum level, which he considered “bordering on assault,” while Toussaint testified that the butt did not land near the guard and his gesture was intended to show the guard he was complying with his instructions.

After passing through the admissions station, Toussaint was separated from other inmates arriving to serve their intermittent sentences, led to a secure area outside the building where he remained in the cold without a coat. He was then strip searched in a kneeling position, and was later handcuffed and forced to walk backwards, pepper sprayed, “decontaminated” in a shower, left alone in a cell naked and wet, without a mattress and without receiving any food until he left prison at the end of the day where he was handed used clothing, including a T-shirt with the acronym CDQ (Centre de detention du Québec), followed by the words prison in smaller type.

After conducting an investigation that lasted several years, the Quebec Human Rights Commission, acting in the public interest and on behalf of Toussaint, filed a statement of claim in April 2021. The Commission alleged that the Public Security Ministry and the correctional officers discriminated against Toussaint on the basis of race, colour and disability while he was serving an intermittent prison sentence, thereby discriminatorily infringing his rights under the Charter.

In a 71-page decision, Judge Christian Brunelle, along with assessors Pierre Deschamps and Monique Rousseau, found that the prison guards failed to take to reasonable measures that took into account Toussaint’s disability, and that he was the victim of unlawful discrimination that led to the use of “unnecessary and disproportionate force against him, which requires a remedy in his favour.”

The Tribunal noted that Toussaint seemed angry, hurled insults, was agitated, dropped things, spoke alone and made religious comments, prompting the guards to believe he was either intoxicated by a psychoactive substance or that he was afflicted with mental health issues. Toussaint argued that he had a disability within the meaning of the Quebec Charter.

Subjective disability

The Tribunal, heeding guidance from its own case law and several rulings by the Supreme Court of Canada, underlined that the nation’s highest court has accepted the concept of “subjective disability” in a case dealing with the application of the Quebec Charter. The Tribunal warned that one must “careful not to place too much emphasis” on the “biomedical” characteristics of impairment and functional limitations, whether temporary, episodic or permanent, and focus instead on the inappropriate response by the State, and its impact on Toussaint. Or as the SCC put it in Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, s. 15(1) of the Quebec Charter is “ultimately” concerned with human rights and discriminatory treatment, not with “biomedical” conditions.

In this case, the acting head of unit for admissions and several prison guards observed that Toussaint was not in a “normal” state and seemed both disconnected from reality and insensitive to pain. Yet they refused to adapt their procedures, thereby compromising his right to substantive equality. In other words, they failed to deal reasonably with the inmate’s perceived “disability” and to conduct an “individualized review” of the situation, thereby breaching the duty of reasonable accommodation under s. 10 of the Quebec Charter, held the Tribunal. The Quebec Charter, pointed out the Tribunal, does not contain specific provisions that confers exemptions to detention facilities and members of their staff who may have committed a discriminatory practice against an incarcerated person.

Duty to accommodate

The Tribunal developed an accommodation “process” specifically aimed at detention facilities by adapting key principles of reasonable accommodation in the workplace identified by case law and transposing them to the prison setting. The Tribunal outlined four key norms. A detention center, the Tribunal held, is not required to show that it is “impossible” to accommodate a detainee perceived as having a “disturbed mental state,” but only that no other reasonable or practical alternative was available. Detention centers and their staff must conduct an individualized analysis, take into account that the duty to accommodate involves both procedural and substantive obligations, and the undue hardship test means that the detention facility will “always bear some sort of hardship.”

This is “fantastic because the duty to accommodate is not just tied to one context, in the sense that the duty to accommodate is tied to equality rights,” said Clément-Major. “It is an integral part of the right to equality, so it can arise in different contexts. In this case, the principle of accommodation has been applied to detention centers. There have already been cases in detention where a duty to accommodate has been recognized, for example for detainees with special dietary requirements, or disabled detainees, who should have the right to adapted furniture. What’s interesting and new here is that officers will have to adapt in the way they respond, the way they intervene.”

Martel however believes that s.1 of the Act respecting the Québec correctional system “already” encompasses these notions of accommodation. “However, applying them in prisons is a different matter,” noted Martel.

Unlawful discrimination

The Tribunal also found that Toussaint was the victim of unlawful discrimination for a number of reasons. He was treated with the same firmness as if he were a hardened criminal, even though he was 21 years old, had never been in prison before and was serving an intermittent sentence. He was also subjected to the uncommon practice of being escorted completely naked through the passageways leading from one cell to another in full view of two female prison guards. After he was decontaminated from the pepper spray, Toussaint was escorted to another cell, naked and wet, where he remained until his departure at the end of the day, without receiving a towel, clothes, a mattress or a meal. And he received a non-compliant used clothing, such as a T-shirt with the word prison etched by a black felt pen, to go back home.

“In light of the evidence, it seems inconceivable that widespread stereotypes related to race or colour had not the slightest impact, even unconscious, on the (prison guards’) intervention, given the brutal, even inhuman treatment they gave Mr. Toussaint until he left the institution at the end of the day,” held the Tribunal.

Besides ordering eight prison guards and the Attorney General of Quebec to pay Toussaint $40,000 in moral damages under article 1619 of the Civil Code of Quebec, the Tribunal ruled that the acting head of unit for admissions must pay $1,500 in punitive damages because he failed to adapt to the circumstances and review the methods used by his team to minimize the use of force against an “individual whose mental state was clearly disturbed.”

Legal observers are hoping that the public orders issued by the Tribunal will make a dent in discriminatory profiling. “I hope for the best,” remarked Clément-Major. “The Commission asked for these orders to put in place and to try to find ways, such as training in profiling, to end discriminatory profiling.”

Martel too is cautiously optimistic. “I hope that these orders will be able to reduce the statistics on over-representation in prisons,” said Martel. “However, I believe that the Quebec prison system needs help and reorganization. The glaring lack of staff does not help progress in terms of respect for human rights.”

Quebec Ombudsman Marc-André Dowd recently told me that there is a critical dearth of prison guards in Quebec, with a rate of 20 per cent unfilled jobs, which has led to rights not being recognized.

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This story was originally published in Law360 Canada.