Prison Conditions

Latest Developments Regarding the Use of Segregation in Prisons

Written on Behalf of Affleck & Barrison LLP

As we have previously blogged, last year the federal government passed legislation to eliminate the use of “administrative segregation” following decisions by the courts in Ontario and British Columbia, which found that placing prisoners in isolation for more than 15 days violated their rights under the Charter and was found to cause long-term psychological damage. This type of segregation, commonly referred to as solitary confinement, allowed prisoners to be isolated in their cells for more than 22 hours a day with no meaningful human contact.

The government replaced administrative segregation with “structured intervention”, which requires prisoners who need to be separated from the general prison population to receive four hours a day outside of their cells and at least two hours of meaningful human contact.

Despite the legislative changes to solitary confinement in prisons, a recent report discloses that prisoners give the structured intervention units a failing grade.

PRELIMINARY REPORT ON STRUCTURED INTERVENTION UNITS

An independent review panel, chaired by professor emeritus of criminology at the University of Toronto, Anthony Doob, appointed by the Liberal government to monitor the solitary confinement reforms released a preliminary report last month.  The results showed that nearly 50% of the structured intervention unit (“SIU”) placements lasted beyond the 15-day threshold.  Of the 1,646 prisoners placed in SIUs, less than 6% of prisoners in the new units were allowed to spend found hours outside of their cell every day.  The report stated that only 46% of prisoners had received the two hours of meaningful human contact on at least half of days in the SIUs.

According to the report, Indigenous and Black prisoners make up a disproportionate amount of prisoners being placed in SIUs.  Approximately 40% of prisoners sent to SIUs were Indigenous and 13% were Black prisoners. 

The authors wrote:

The failure to achieve the four hours out of the cell and two hours of meaningful human contact are, obviously, a special cause for concern.

Public Safety Minister Bill Blair, in response to this report, stated:

This preliminary report raises serious concerns with our progress in implementing the SIUs.  We take the findings of this report very seriously, and we won’t hesitate to address them. …

There is more work that needs to be done to address systemic racism and barriers within justice system, and the federal correctional system is no exception.  By working to eliminate these barriers, we can ensure better equitable reintegration outcomes for Indigenous, Black and other racialized inmates.

‘DRY CELLING’ VIOLATES THE CHARTER

In other news regarding prisons in Canada, a New Brunswick woman argues that “dry cell” segregation violates her rights under the Charter due to its cruelty and lack of basic legal protections

“Dry celling” occurs when an inmate suspected of concealing drugs is confined to a cell without running water or toilets so that their human waste can be examined for drugs. 

Lisa Adams (“Adams”), who was incarcerated for drug trafficking at the Nova Institution for Women, was placed in segregation due to correctional officers suspicion that she had been hiding methamphetamine in her vagina while she was outside of prison on parole.  Adams argues that a section of the Corrections and Conditional Release Act, which allows for the segregation and monitoring of prisoners for suspected drug concealment, violates the rights of Canadians guaranteed under the Charter and should be struck down.

Adams was given the choice of producing the drugs or being placed for 14 days in segregation for observation.  According to Adams, she could not provide the drugs as she was not hiding them.  After 14 days in segregation, she required medical attention for health reasons at which time she submitted to a vaginal exam.  This examination revealed that she did not have the drugs on her, however, Adams was subjected to another two days in isolation.

Adams maintains that she suffered mental anguish due to the prolonged segregation and nearly constant observation by correctional officers, even when she showered or went to the bathroom.  Furthermore, she was only allowed out in the prison yard five times and had no meaningful human contact except for a daily ten to fifteen minute visit by prison mental health staff during her isolation.

Adams argues that while in isolation her Charter rights prohibiting “cruel and unusual punishment”, the “right to life, liberty and security of the person” and her “right to be secure against unreasonable search or seizure” were violated.

The lawyer representing the federal Crown acknowledges that although Adams’ detention was unlawful as the law was not administered properly in Adams’ case, the practice of dry celling can be carried out appropriately and should not be struck down.

Justice John Keith has reserved his decision on this case. 

We will continue to follow any developments in the law regarding solitary confinement and dry celling in Canada’s prisons and will report any updates in this blog.

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please contact Affleck & Barrison LLP at 905-404-1947 or contact us online.  We are highly knowledgeable and extremely experienced at defending a wide range of criminal charges.  For your convenience, we offer 24-hour phone services.

Constitutional Challenge Filed by Prisoner Alleging Breach of Charter Rights

Written on Behalf of Affleck & Barrison LLP

Sean Johnston, a federal prisoner serving a life sentence for murder, has filed an application in federal court against Canada’s Attorney General and Correctional Service of Canada (“CSC”).  Johnston is currently serving his sentence in Ontario’s medium security Warkworth Institution.

Johnston, along with five human rights organizations including the Canadian Civil Liberties Association and the Canadian Prison Law Association, allege that CSC cannot keep prisoners safe as they are unable to ensure proper physical distancing measures are implemented without reducing the prison population.

According to CSC, two prisoners have died of COVID-19 and 333 prisoners have tested positive with COVID-19 in Canada.

ALLEGATIONS AGAINST THE GOVERNMENT

Johnston’s application alleges that the government’s failure to protect the health of the prisoners during the COVID-19 pandemic violates the liberties set out in the Charter of Rights and Freedoms

As there is currently no vaccine or approved treatment for COVID-19, physical distancing is the principal protection against contracting the virus.  It is alleged that the government has failed to take steps to transfer low-risk inmates to community supervision and has failed to implement appropriate infection control measures in their facilities, including testing, hand-washing and comprehensive cleaning of common areas.

According to Johnston:

Physical distancing measures in prison have been grossly inadequate.  Some of us remain double-bunked and cannot achieve physical distancing within our own cells, let alone throughout the institution.

The lawsuit alleges that:

Federal prisoners are disproportionately at risk both of contracting COVID-19 due to the nature of the penitentiary environment, and of suffering severe adverse outcomes including death, due to the prevalence among the federal inmate population of pre-existing vulnerabilities.

The lawsuit also alleges that some prisoners are resorting to the use of lockdowns (being confined to their own cells for indefinite periods of time), which is similar to segregation, in order to reduce the spread of the virus. 

According to the lawsuit, Johnston has served 28 years in prison and suffers from diabetes, heart problems, asthma, sleep apnea, post traumatic stress disorder and experiences blood clots.  He also uses a medical machine for asthma, which may increase the spread of the virus.  It is alleged that Johnston is a medically-vulnerable inmate and he and prisoners like him should be released and allowed to self isolate in the community.  Failing to do so is a breach of his rights under the Charter.

None of the allegations by Johnston have been proven in court. 

CLASS ACTION LAWSUIT AGAINST CORRECTIONAL SERVICE CANADA

Representative plaintiff, Joelle Beaulieu (“Beaulieu”), an inmate at the federal women’s prison in Joliette, Quebec that reports the most confirmed cases of COVID-19, has commenced an application for a class action lawsuit against CSC. 

It is alleged that CSC failed in their duty to protect vulnerable inmates from the spread of the deadly virus.  It is further alleged that federal prison officials were slow to implement preventative measures at the prison. 

Beaulieu’s action seeks $100 per day for all federal inmates since March 13, 2020 (the day when Quebec declared a medical emergency), and an additional $500 lump sum for those who contracted COVID-19.

Beaulieu claims that she was “patient zero” in the outbreak of the virus that has affected more than half of the 82 residents at Joliette Women’s Institution.  It is alleged that Beaulieu was forced to clean high-traffic common areas wearing only gloves.  Her requests for masks or other protective equipment were denied on three occasions.

According to the Statement of Claim, when Beaulieu began experiencing symptoms that included fever and muscle pain, she was given Tylenol and sent back to her unit.  Beaulieu alleges that a nurse told her she couldn’t have contracted COVID-19 as she had not travelled.  She was finally tested for the virus after suffering from symptoms for a week and had transferred units several times.

It is further alleged that as a result of testing positive, Beaulieu was detained in her cell all day, except for 15 minutes per day.  Her requests to speak with an Indigenous elder or mental health consultant were ignored.

None of the allegations have been proven in court and the Quebec Superior Court has not as of yet authorized the class action application.

THE CANADIAN GOVERNMENT’S RESPONSE

Public Safety Minister Bill Blair reported earlier this month in a government briefing that “literally hundreds” of Canadian inmates have been released from prison given the COVID-19 pandemic.  He has also assured the public that the government, CSC and the Parole Board have taken “a number of significant steps” to ensure the health and safety of the inmate populations.

It is unclear as to how many inmates have actually been released in an effort to prevent the spread of COVID-19 amongst the prison population in Canada.

Minister Blair has declined to comment on Johnston’s application and the CSC has responded that it is reviewing the application.

Esther Mailhot, a spokesperson for the CSC, has written:

CSC is working diligently to protect the safety of staff, inmates and the public.  Since the start of COVID-19 pandemic, management teams at all levels are engaging with local, provincial and federal public health authorities to navigate these unprecedented times.

We will continue to follow new developments regarding how the COVID-19 pandemic is affecting the Canadian justice system and will provide updates in this blog.

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal defence lawyers at Affleck & Barrison LLP.  Our skilled criminal defence lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights.  Contact our office today online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Latest News Regarding Inmates and the COVID-19 Crisis

Written on Behalf of Affleck & Barrison LLP

Last week, the Corrections Service of Canada (“CSC”) confirmed that an inmate at British Columbia’s Mission Institution, a medium security federal prison, died in hospital as a result of complications related to COVID-19.

According to reports, there are 54 inmates and 8 corrections officers at Mission Institution that have tested positive for COVID-19.  The inmate in question, whose name has been withheld from the media, died at Abbotsford Regional Hospital where a mobile medical unit has been installed to treat prisoners infected with the virus.

Throughout Canada, a total of 145 inmates have tested positive for COVID-19 at federal prisons.  The hardest hit has been Mission Institution and Joliette Institution in Quebec.  At Joliette, 48 inmates and 34 correctional officers have tested positive for the virus.

THE GOVERNMENT’S RESPONSE TO COVID-19 IN PRISONS

Public Safety Minister Bill Blair has announced that the government continues to consider measures to keep inmates, staff and communities safe and healthy during the pandemic.

The CSC has reported that masks have been issued to both inmates and corrections officers, and that correctional officers are not permitted to move between prisons.

The CSC has also taken steps to temporarily suspend inmate visits, temporary absences, work releases, institution transfers, prison programs and activities in an effort to stop the spread of the virus.

According to a statement by Minister Blair:

Our greatest responsibility is keeping Canadians safe – that includes those in our correctional institutions.  We know the unique vulnerabilities facing correctional institutions during this public-health crisis.  The situation around COVID-19 is both challenging and rapidly evolving, and our response will continue to adapt as required to prevent further tragic loss of life.

CANADA’S DEFENCE LAWYERS URGE THE GOVERNMENT TO DEPOPULATE PRISONS

The Criminal Lawyers’ Association advocates for a reduction in the number of inmates in Canada’s prisons in the interest of public safety. The Association has distributed to its 1,600 members an affidavit by physician and epidemiologist Dr. Aaron Orkin.  According to Dr. Orkin, an outbreak in prison or jail would be similar to the spread of the virus on cruise ships or in long-term care facilities.  These types of facilities all involve close quarters making it nearly impossible to contain the virus from spreading.   Dr. Orkin anticipates that the virus will make its way into every correctional facility in Canada.

The Criminal Lawyers’ Association does not believe that every inmate is an appropriate candidate for release.  According to John Hale, a criminal defence lawyer and the vice-president of the Criminal Lawyers’ Association:

Obviously there are people in the jails who are dangerous and need to be kept in to protect the community, but there are a lot of people in jail who are not dangerous who could be either serving a sentence or awaiting trial outside of jail.

FIRST INMATE WITH SERIOUS HEALTH ISSUES RELEASED FROM FEDERAL PRISON

On April 2, 2020, an application for an unescorted temporary absence was submitted on behalf of 53-year-old Derrick Snow (“Snow”), who is serving a sentence at Ontario’s Bath Institution for breaking-and-entering and theft.  Snow suffers from diabetes, pulmonary disease and has recently been diagnosed with malignant sarcoma.  Snow argued that his underlying medical conditions put him at greater risk of becoming infecting with the virus and die.

The CSC granted Snow permission to live with his sister in London, Ontario.  He will receive treatment for cancer and other ailments until his July release date.  The CSC approved Snow’s request as he did not have a violent criminal history and held that the supervision plan was appropriate and included special conditions, including an electronic monitoring ankle bracelet and a curfew.  Furthermore, the CSC decision emphasized that it was approving Snow’s request despite taking “extraordinary measures” to prevent the spread of the virus in federal prisons. 

ONTARIO HAS DRASTICALLY REDUCED ITS PRISON POPULATION

Offenders who have been convicted of a crime and are sentenced to jail of two years less a day serve their sentences in provincial institutions.  In Ontario, provincial jails typically hold between 8,000 to 9,000 inmates. 

Both Ontario and the Northwest Territories have taken extreme measures to reduce their prison populations by 25%.  To date, nearly 2,500 inmates have been released from Ontario’s prisons, making the inmate population at its lowest level since 1990.

Ontario began implementing measures to limit the spread of the deadly virus in mid-March, including reducing the number of inmates in custody.  Inmates are being carefully assessed to ensure that they are at low risk to offend.  Those that have been convicted of serious violent crimes will not be considered for early release.

ONTARIO CORRECTIONAL INSTITUTE IN BRAMPTON TEMPORARILY CLOSES

Earlier this week, the Ministry of the Solicitor General confirmed that 60 inmates and eight staff have tested positive for COVID-19 at the Ontario Correctional Institute in Brampton. 

This facility will temporarily close and 140 inmates will be moved to the Toronto South Detention Centre in Etobicoke.  During the shutdown, the facility will be professional cleaned and sterilized.

We will continue to follow new information regarding how the COVID-19 pandemic is effecting the Canadian justice system and will provide updates in this blog

If you have been charged with a criminal offence or have any questions regarding your legal rights, it is recommended that you contact an experienced criminal defence lawyer.  The lawyers at Affleck & Barrison LLP have many years of experience defending a wide variety of criminal offences.  Contact our office today online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Inmate in Ontario Tests Positive for COVID-19

Written on Behalf of Affleck & Barrison LLP

Prisons are excellent sources for community transmission of illness.  There is little opportunity for social distancing, which is being recommended throughout the world by all medical professionals and government officials, to avoid the spread of the potentially deadly COVID-19 virus. 

Inmates are often placed in cells with another inmate and correctional officers and other staff at the institutions experience close contact with prisoners, especially during searches and admissions.  Due to these circumstances, Correctional Service of Canada (CSC) has taken measures to prevent an outbreak within their institutions.

Just yesterday, we learned that an inmate at the Toronto South Detention Centre is the first in Ontario to test positive for COVID-19. The inmate was immediately placed in isolation and a spokesperson for the Ministry of the Solicitor General has confirmed that steps have been taken to protect staff and other inmates at the facility.

MEASURES IN PLACE TO PROTECT CORRECTIONAL INSTITUTIONS

Martine Rondeau, spokesperson for CSC, ensures that protocols are in place to prevent COVID-19, including increased sanitization and cleaning regimens and providing increased Personal Protective Equipment (PPE) for staff, from spreading through the country’s jails.

Another measure in place is the suspension of visits to all Canadian inmates.  CSC has advised that it will not charge prisoners for phone calls and will make efforts to increase visits through video conferencing.  However, inmates continue to meet with legal counsel and continue to be transfered between courts and institutions.

In Ontario it was announced that effective March 13, 2020, in an effort to reduce the potential spread of the virus, intermittent inmates (those who are deemed low-risk by the courts and live and work in the community between Monday and Friday) who serve time on the weekends will be required to attend their reporting facility at which time they will given a temporary absence from custody and permitted to return home.  This change has been extended to allow the issuance of temporary absences beyond the 72-hour maximum and does not require reporting to a correctional facility every weekend.

Inmates with temporary absences who are near the end of their sentence will be carefully assessed to ensure they are at a low risk to reoffend and will be considered for early release.

Another change enacted in Ontario is the provision of alternate options for hearings of the Ontario Parole Board by electronic or written methods. 

According to Ontario’s Ministry of Community Safety and Correctional Services spokesperson Brent Ross:

No inmate has tested positive for COVID-19 in any of our correctional institutions.

Staff are advised to monitor their own health, and report to management any changes to their health status.  There are also processes in place to address environment cleaning.  Our correctional facilities are inspected and thoroughly cleaned daily and/or as required.  Proper hand washing and cough/sneezing etiquette has also been communicated to staff and inmates.

CORRECTIONAL OFFICER CONTRACTED THE VIRUS

A correctional officer at the Toronto South Detention Centre in Etobicoke has tested positive for COVID-19.  He recently returned from Europe and went back to work before the 14-day isolation guidelines were enacted and is currently being treated in hospital.  His last shift was on March 11, at which point he was working in the video courtroom and had escorting and overseeing inmates who were making court appearances via video conferencing.

A number of correctional officers who were in contact with the infected officer have recently been placed in self-isolation.  Some inmates are also in self-isolation in the centre’s infirmary.  It is unclear at this time how many inmates may have been in contact with the infected officer.

Kristy Denette, a spokesperson for the Ministry of the Solicitor General, stated:

Out of respect for the officer’s health privacy we will not be commenting directly on the officer’s health nor are we in a position to confirm any health related matters.  The ministry has been in contact with the local public health unit in response to COVID-19 to ensure the continued health and wellbeing of our staff and those in our custody.

In a similar situation, a contractor who had worked at the South West Detention Centre near Windsor on March 12 and 13 has also been confirmed to have COVID-19.  After showing symptoms, he was ordered into self-isolation on March 14 and positive test results confirmed that he had the virus on March 18.  Although he did not have any direct interaction with the inmates, he may have interacted with staff in the detention centre. 

ADVOCATES CALL FOR THE RELEASE OF VULNERABLE WOMEN FROM PRISON

The Canadian Association of Elizabeth Fry Societies, an association that works on issues affecting women and girls in the justice system, is advocating for the release of vulnerable women from the prison system during the pandemic.

The organization is asking the Correctional Service of Canada to release women who are eligible for parole, women who are over 50 years of age, women with chronic health conditions, Indigenous women and those that are in the mother-child program. 

Executive Director Emilie Coyle stated:

The challenge is, when you have people who are living in very close quarters and who cannot escape and socially isolate themselves the concern for us is that something like the COVID-19 virus will spread very quickly.  For women, whose health is already compromised in many ways, it could be potentially very deadly for them.

According to Coyle, the majority of women in prison are there in regards to poverty-related crimes and those that are violent offenders have often acted in self-defence. 

Furthermore, the ban on visitors for those that are incarcerated makes the conditions even worse for them and isolates them from their family, friends and supporters. 

We will continue to follow the government’s response to the pandemic and how it will effect the Canadian justice system and will provide updates in this blog.

If you have been charged with a criminal offence or have any questions regarding your legal rights, it is recommended that you contact an experienced criminal defence lawyer.  The lawyers at Affleck & Barrison LLP have many years of experience defending a wide variety of criminal offences.  Contact our office today online or at 905-404-1947.  We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Report Released Indicates Racial Profiling by Toronto Police

Written on Behalf of Affleck & Barrison LLP

Last week, the Ontario Human Rights Commission (“OHRC”) released an interim report regarding racial profiling and racial discrimination by Toronto Police Services.

The OHRC is the provincial statutory agency responsible for improving human rights and preventing systemic discrimination in Ontario.

According to the OHRC, the data showed that Black citizens are overrepresented in cases where Toronto Police use force that results in serious injury or death. In its report, the OHRC expressed its grave concern about racial profiling and discrimination of Black people by Toronto Police Services in use of force incidents, stops, questioning and searches, and charges laid.

A COLLECTIVE IMPACT

The OHRC began its inquiry into racial profiling and racial discrimination of Black citizens by the Toronto Police following concerns raised by Black communities in Toronto, and more specifically following the gunpoint arrest of four black teenagers in 2011 (known as the Neptune Four) and the shooting death of Andrew Loku in 2015.

The report, entitled “A Collective Impact” (the “report”), examined qualitative and quantitative data from the Special Investigations Unit (an agency that investigates police incidents that involve injuries or death) between January 1, 2010 and June 30, 2017 in Toronto.

According to the report, between 2013 and 2017 a Black person was 20 times more likely than a White person to be involved in a fatal shooting by the Toronto Police.

In Toronto, Black people account for 8.8% of the population. According to the report, between January 1, 2013 and June 30, 2017 in Toronto, Black people were found to be over-represented in the following circumstances:

  • police use-of-force cases (28.8%);
  • shootings (36%);
  • deadly encounters with police (61.5%); and
  • fatal police shootings (70%).

Renu Mandhane, the OHRC’s chief commission, stated:

A Collective Impact is the latest in a body of reports, findings and recommendations – over the past 30 years – that point to persistent concerns about anti-Black racism in policing in Toronto. Our interim findings are disturbing and call for immediate action.

The report also exposed that there was a lack of legal basis for police stopping Black citizens, inappropriate searches, and unnecessary charges or arrests.

TORONTO POLICE RESPONSE TO THE REPORT

Toronto Police Services Board (“TPSB”) and Toronto Police Services (“TPS”) have acknowledged the frustrations amongst Black citizens in Toronto who have suspected they were treated differently based upon the colour of their skin.

Toronto Police Services Board and Toronto Police Services released a joint statement responding to the interim findings, which read as follows:

We recognize that there are those within Toronto’s Black communities who feel that, because of the colour of their skin, the police, including when it comes to use of force, have at times, treated them differently. We understand that this has created a sense of distrust that has lasted generations. … The Board and the Service acknowledge that no institution or organization, including the Toronto Police, is immune from overt and implicit bias. … Nevertheless, we acknowledge that a unique obligation is required from those of us who are charged with upholding the law and protecting all of our city’s people.  And, while we may be confronting these challenges with resolve today, we are committed to doing even better. … We are ready, willing and actively doing the hard work that is required of us.

 WHAT HAPPENS NEXT?

The OHRC will continue to study SIU data and look for patterns in use of force incidents and examine connections between age, mental health, socio-economic status, and sex.

The OHRC will also examine the Police’s culture, training, policies, procedures, and accountability mechanisms. Lastly, the OHRC will hold focus groups with Black communities in Toronto and connect with police leaders, officers, associations, and organizations to better understand all of the issues.

The OHRC will prepare a final inquiry report likely to be completed in 2020, which will include all findings, recommendations, and any next steps.

In the interim, the OHRC has made the following requests:

  • That TPS and TPSB acknowledge that racial disparities raise serious concerns;
  • That TPS and TPSB support the OHRC’s inquiry into racial profiling and racial discrimination of Black citizens;
  • That TPSB require the TPS to collect and publicly report on race-based data on all stops, searches, and use of force incidents;
  • That Ontario implement recommendations in the Report of the Independent Police Oversight Review;
  • That the City of Toronto implement recommendations in the Toronto Action Plan to Confront Anti-Black Racism.

We will continue to follow any developments that arise regarding the OHRC’s report and findings and any response to the noteworthy report, and will inform of these developments in this blog.

In the meantime, if you are facing criminal charges, contact the experienced and skilled Oshawa criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947.  We take all steps needed to protect your best interests, both immediate and long term. For your convenience, we offer a 24-hour phone service and a free confidential consultation.  Whatever the nature of your offence, we can help.

Inmate Escapes from Healing Lodge in Saskatchewan

Written on Behalf of Affleck & Barrison LLP

Joely Lambourn (“Lambourn”) escaped last Friday afternoon from the Okimaw Ohci Healing Lodge near Maple Creek, Saskatchewan. Staff at the lodge discovered Lambourn missing during a routine count at 12:25 p.m.. A warrant is now out for her arrest.

Lambourn was serving a 2 ½ year sentence for dangerous driving causing death after being convicted of the death of a cyclist in May 2015 near Okotoks, Alberta.

At the time of the accident, Lambourn was a suspended driver and had a history of traffic violations for speeding and careless driving. The Judge found that Labourn was distracted while driving, likely by her cell phone, when she veered off the road and hit the cyclist, Deric Kryvenchuk.

WHAT ARE HEALING LODGES?

In 1992, the federal government passed legislation to allow Aboriginal communities to provide correctional services. This legislation was intended to improve the over-representation of Indigenous offenders in Canada’s correctional system and to address concerns that mainstream prisons do not work for Aboriginal offenders.

In 2017, more than 25% of men and 36% of women incarcerated in Canada were Indigenous. In all of Canada, Indigenous people make up 5% of the population.

Aboriginal Healing Lodges are correctional institutions where Aboriginal values, traditions, and beliefs are used to design services and programs for offenders. A holistic and spiritual approach is taken with guidance and support from Elders and Aboriginal Communities.

Healing lodges are minimum/medium–security facilities for Aboriginal women offenders. Healing lodges for Aboriginal men are minimum-security facilities. Non-Aboriginal offenders may also live at a healing lodge, but must agree to follow Aboriginal programming and spirituality.

Lodge residents have “healing plans”, similar to correctional plans. These specify areas the offender has to work on, which may include such issues as substance abuse, employment, education and family.

There are nine Correctional Service Canada (“CSC”) healing lodges across Canada. Four are managed and operated by CSC and five are managed by community partner organizations.

Okimaw Ohci Healing Lodge for women offenders in Maple Creek, Saskatchewan is managed by CSC. This was the first healing lodge to open in Canada and it has 30 beds. This facility contains both single and family residential units. Offenders may have children stay with them. Each unit contains a bedroom, bathroom, kitchenette and eating area, and a living room.

Programs in this healing lodge help offenders build strength to make changes in their lives and address vocational training, family, and children. The offenders learn how to live independently by cooking, doing laundry, cleaning, and completing outdoor maintenance chores.

Before a decision is made to move an offender to a healing lodge, an offender’s risk to public safety must be thoroughly assessed. The inmate must require a limited amount of supervision and control within the institution allowing the offender to take on responsibilities as he/she is preparing to reintegrate into the community.

TERRI-LYNNE MCCLINTIC’S STAY AT A HEALING LODGE

Okimaw Ohci Healing Lodge is the same facility that Terri-Lynne McClintic (“McClintic”) was transferred to earlier this year (the date is unknown). McClintic was only eight years into serving a life sentence for first-degree murder in the death of an eight-year-old girl, Tori Stafford (“Stafford”).

McClintic confessed to luring Stafford into the car of her boyfriend on April 8, 2009. Stafford was then sexually assaulted, murdered, and buried in a farmer’s field.

McClintic was transferred from the Grand Valley Institution for Women near Kitchener, Ontario to the healing lodge located in southern Saskatchewan.

McClintic’s transfer to the healing lodge generated passionate debate within the House of Commons and public outcry and protests. This quickly prompted changes to how the Correctional Service of Canada would decide on transferring inmates.

McClintic has been transferred back to a women’s prison in Edmonton. She is not eligible for parole until 2031.

TOUGHER RULES FOR PRISON TRANSFERS FOLLOWING MCCLINTIC TURMOIL

Earlier this month, Public Safety Minister Ralph Goodale ordered CSC to improve its policies related to the transfer of medium-security women offenders to facilities that do not have a directly controlled perimeter. These changes were effective immediately for existing and future cases.

Transfers will be required to be authorized by CSC’s deputy commissioner for women, under the new policy.

Factors considered in evaluating the suitability of transfers to facilities without a controlled perimeter, include:

  • The length of an offenders’ sentence.
  • The time remaining before an offender is eligible for an Unescorted Temporary Absence.
  • A requirement that long-term offenders be in the “preparation for release” phase of their correctional plan.
  • The institutional behaviour of the offender.

We will continue to follow any developments in the circumstances surrounding the escape of Lambourn and the transfer of McClintic as they become available and provide updates in this blog.

In the meantime, to speak with an experienced criminal defence lawyer about any charges laid against you or your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We offer a free consultation and are available to help you 24 hours a day, 7 days a week.

Court of Appeal Ordered Two Jail Guards to Stand Trial for their Role in Inmate’s Death

Written on Behalf of Affleck & Barrison LLP

On March 5, 2014, corrections officers, Leslie Lonsbary (“Lonsbary”) and Stephen Jurkus (“Jurkus”), were charged with failing to provide the necessaries of life following the death of inmate, Adam Kargus (“Kargus”).

Kargus was beaten by his cellmate at the Elgin Middlesex Detention Centre (“EMDC”) and was found dead in a jailhouse shower stall on November 1, 2013.  Anthony George pleaded guilty to second-degree murder and was sentenced to life in prison (with no possibility of parole for 10 years) last year for beating Kargus to death.

The Ontario Court of Appeal has recently reversed an earlier decision made by Justice A.K. Mitchell of the Ontario Superior Court of Justice.   At that time, charges against the two guards were dismissed as a result of too much time having passed since they were charged.

LOWER COURT DECISION

At the time of Kargus’ beating and subsequent death, Lonsbary and Jurkus were both employed by the Ministry of Correctional Services at EMDC and on duty.

Following a four month investigation by police, the two men were arrested and charged with failing to provide the necessaries of life to Kargus thereby endangering his life contrary to section 215(1)(c) of the Criminal Code of Canada.

In February, 2017, Lonsbary and Jurkus brought an application before the Ontario Superior Court of Justice arguing that their constitutional rights had been infringed due to the delay in bringing their case to trial.

A three week jury trial was scheduled to commence on May 8, 2017. The guards submitted that the delay from arrest to the expected completion date of trial would be 1,178 days or 39.3 months. They attributed the delay to the Crown prosecutor and the court.

Applying the formula for delay as set out by the Supreme Court of Canada (“SCC”) in the R. v. Jordan (“Jordan”) decision, the lower Court found that the accuseds’ right to be tried within a reasonable period of time was breached. The Court stayed the charges against Lonsbary and Jurkus as the case against them had surpassed the 30-month time limit for trials as set out in the Jordan decision.

WHY IS THE JORDAN DECISION RELEVANT TO THIS CASE?

We have previously blogged about access to justice issues and, more specifically, the commonly criticized length of time it takes for a case to get to trial. The SCC in 2016 set strict time limits for the completion of criminal cases, where there are no exceptional circumstances.

The SCC released its decision in R. v. Jordan on July 8, 2016. In this case, the accused had faced several delays while awaiting his preliminary inquiry and trial. Jordan was eventually convicted of five drug-related offences after 49.5 months. At the beginning of his trial, Jordan brought an application requesting a stay of proceedings due to his constitutional rights being infringed by an unreasonable delay. His application was dismissed. Jordan’s appeal to the Supreme Court of British Columbia was also dismissed.

Jordan proceeded to appeal to the SCC. His appeal was granted, his convictions were set aside and the proceedings were stayed. In this decision, the SCC clearly set out a formula to calculate the amount of time between the initial charge and the actual or anticipated end of trial. The SCC set a ceiling for unreasonable delays at 18 months for cases tried in provincial courts and 30 months for cases to be tried in provincial and superior courts after a preliminary inquiry, except under exceptional circumstances that were reasonably unforeseen or unavoidable.

ONTARIO COURT OF APPEAL

Crown prosecutors appealed the lower court decision to stay proceedings against Lonsbary and Jurkus to the Ontario Court of Appeal (“ONCA”). The Crown argued that the lower court Judge made errors in applying the time frame rules.

According to Justice Fairburn, writing on behalf of the ONCA, delays that were caused by the defence or by “exceptional circumstances” (which can include specific incidents or the general complexity of the case) do not count toward the 30-month ceiling for criminal proceedings.

In conclusion, the ONCA found that there was “no unreasonable delay” and ordered Lonsbary and Jurkus to stand trial.

The two jail guards have the right to appeal the Ontario Court of Appeal ruling. We will continue to follow this case and report on any developments as they take place in this blog.

If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience. We are available when you need us most.

Indefinite Solitary Confinement Ruled Unconstitutional by B.C. Supreme Court

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about solitary confinement in Canada and are revisiting this issue given the recent decision from the B.C. Supreme Court striking down sections of the Corrections and Conditional Release Act (“CCRA”) that permit prolonged and indefinite solitary confinement in federal prisons.

WHAT HAPPENED?

In this case, lawyers for the British Columbia Civil Liberties Association and the John Howard Society of Canada were asking the Court to end administrative segregation in federal penitentiaries in Canada. The Plaintiffs argued that sections 31, 32, 33 and 37 of the CCRA were unconstitutional as they infringe upon an inmate’s rights and freedoms granted by the Canadian Charter of Rights and Freedoms (“Charter”).

The Correctional Service Canada (“CSC”) procedure known as administrative segregation (similar to solitary confinement) authorizes the placement of inmates in small cells for up to 23 hours a day without meaningful human contact. This type of segregation has no legislated time limits and is left to the discretion of the warden.

The B.C. Court ruled that the laws regarding administrative segregation violate section 7 of the Charter guaranteeing life, liberty and security of person. These infringing laws allow indefinite solitary confinement, prevent independent oversight of segregation decisions and deprive inmates from having a lawyer represent them at segregation review hearings.

The Court also ruled that these laws discriminate against mentally ill and Indigenous inmates contrary to section 15 of the Charter, which guarantees equality before and under the law and equal protection and benefit of the law without discrimination.

Justice Peter Leask wrote in his decision:

I am satisfied that the law … fails to respond to the actual capacities and needs of mentally ill inmates and instead imposes burdens in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage.

HARMFUL EFFECTS OF SEGREGATION

The B.C. Court heard extensive testimony from former prisoners, researchers and correctional officials who addressed the heath effects of administrative segregation. The Court held that solitary confinement places prisoners at significant risk of serious psychological harm and increased risk of self-harm and suicide.

Justice Leask emphasized that based on the evidence solitary confinement increases destructive symptoms and behaviours, including “anxiety, withdrawal, hypersensitivity, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, rage, paranoia, hopelessness, a sense of impending emotional breakdown, self-mutilation, and suicidal ideation and behaviour.”

The laws pertaining to solitary confinement were found by the Court to be overbroad and damaging to institutional security. Furthermore, the Court held that the laws authorizing solitary confinement do so in circumstances where lesser forms of restriction would achieve the same results.

The Court ruled that a procedure of prisoner segregation must include time limits. Time limits would “create the pressure to ensure that decisions about alleviating an inmate’s segregation were made and implemented promptly, while still allowing CSC to use the practice for short periods to address security concerns.”

International consensus has determined that 15 days is an ideal cap for segregation placements. Justice Leask did not prescribe a set number of days, but considered 15 days “a defensible standard”.

WHAT HAPPENS NEXT?

Justice Leask suspended his decision for 12 months to give the government time to draft new legislation, which must include strict limits on the amount of time an inmate can be segregated.

This B.C. decision requires broader legislative changes than the ruling made by the Ontario Superior Court last month, which we previously blogged about. In the Ontario case, the Judge held that the lack of independent review of prisoners placed in solitary confinement means that there is no accountability for the decision to segregate. Justice Marrocco put his decision on hold for a year to allow Parliament to make the legislative changes necessary. The Canadian Civil Liberties Association recently announced it would appeal this Ontario decision.

ORDER STOPPING ONTARIO FROM PLACING MENTALLY ILL INMATES IN SOLITARY CONFINEMENT

One day following this B.C. decision, Ontario announced an agreement between the Ontario government and the Human Rights Commission ensuring that inmates with mental health disabilities will no longer be placed in solitary confinement across the province.

This Order includes the process of properly identifying inmates with mental health disabilities (including those at risk of self-harm or suicide) and issuing appropriate alerts verified by professionals. The alert would indicate that alternatives to segregation must be considered for the particular inmate.

We will continue to follow the developments in the law regarding solitary confinement in Canada and will provide updates through this blog.

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please call Affleck & Barrison at 905-404-1947 or contact us online. For your convenience, we offer 24-hour phone services.

Court Finds that Solitary Confinement Laws are Unconstitutional

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about solitary confinement in Canada and are revisiting this issue given the recent decision from the Ontario Superior Court striking down Canada’s solitary confinement laws as unconstitutional following a three year challenge by the Canadian Civil Liberties Association (CCLA).

WHAT HAPPENED?

In the court case, lawyers for the CCLA requested a declaration that sections 31 to 37 of the Corrections and Conditional Release Act (“CCRA”), which allow the Correction Service of Canada to remove an inmate from the general population for a non-disciplinary reason, are unconstitutional as they infringe upon the rights granted in sections 7, 11(h) and 12 of the Charter of Rights and Freedoms (Charter”).

This application referred specifically to administrative segregation, the purpose of which is to maintain the security of the penitentiary and of all persons within the penitentiary. Under the current legislation, a warden is allowed to order solitary confinement when an inmate is at risk from others or poses a risk to the security of the prison. When this occurs, inmates are ordered to spend 22 hours in a cell without any meaningful human contact. There is no cap on the length of time that segregation occurs in the legislation.

Under the current legislative system, prison wardens are responsible for the initial decision to place an inmate in solitary confinement and are involved in the internal tribunal assembled five days later to study and judge that decision. Justice Marrocco found that this lack of independent review means that there is no accountability for the decision to segregate.

CURRENT SEGREGATION PROCESS IS “PROCEDURALLY UNFAIR AND CONTRARY TO THE PRINCIPLES OF FUNDAMENTAL JUSTICE”

Justice Marrocco ruled that this arbitrary and potentially biased system is improper given the severe deprivation of liberty and security of the person that takes place when an inmate is segregated. These are two rights guaranteed under section 7 of the Charter.

Justice Marrocco wrote:

I am satisfied that the statutory review of the decision to segregate is procedurally unfair and contrary to the principles of fundamental justice because the procedure chosen provides that the Institutional Head is the final decision maker for admission, maintenance and release from administrative segregation and is the final institutional decision-maker of required reviews and hearings which occur immediately after an inmate is segregated.

However, Marrocco stated that banning the practice immediately could be disruptive and dangerous. Therefore, Justice Marrocco put his declaration on hold for a year, which he felt was a reasonable time frame to allow Parliament to address the situation.

ADDITIONAL FINDINGS BY JUSTICE MARROCCO

The CCLA argued for a 15-day limit on solitary confinements, a prohibition on the isolation of mentally ill inmates, and, a rule barring prisoners aged 18 to 21 from solitary lockups.

Regarding the effect of solitary confinement, Justice Marrocco agreed with CCLA and wrote that “placing an inmate in administrative segregation imposes a psychological stress, quite capable of producing serious permanent observable negative mental health effects”. He, however, did not find that solitary confinement itself to be unconstitutional, even when applied to inmates aged 18 to 21 or the mentally ill. He rejected any argument that this practice amounts to cruel and unusual punishment. Justice Marrocco also refused to declare placement in solitary confinement for more than 15 days to be unconstitutional.

The CCLA launched this constitutional application shortly after the British Columbia Civil Liberties Association (BCLA) and the John Howard Society of Canada filed a similar, but unrelated, lawsuit in Vancouver. A ruling in the B.C. case is expected within the next three months.

We will continue to follow the developments in the law with regards to solitary confinement in Canada and will provide updates through this blog.

In the meantime, should you have any questions regarding your legal rights and need to speak with an experienced criminal defence lawyer please call Affleck & Barrison at 905-404-1947 or contact us online. We are here to help you 24/7.

Recommendations for Changes to Inmate Conditions in Canada

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about inmate conditions in Canada, and are now revisiting this topic in light of the recent annual report by Correctional Investigator, Ivan Zinger, submitted in Parliament on October 31, 2017.

Mr. Zinger visited numerous correctional institutions to observe and investigate the current conditions. His report outlines in detail his observations and numerous recommendations, a few of which we will discuss below.

NO THERAPEUTIC TREATMENT FACILITIES FOR FEMALE FEDERAL INMATES

Female offenders were found to be the fastest growing population in Canadian correctional facilities. Many of these inmates are struggling with serious mental illness, some of whom partake in self-injurious or suicidal behaviour.

Unfortunately there are no stand-alone treatment facilities for federal female inmates in Canada. In an emergency situation, some mentally ill women are being transferred to an all-male treatment centre to receive the help that they need. Mr. Zinger stated, “It’s just unacceptable. You do not put a woman in an all-male institution, completely isolated in segregation-like conditions.” Mr. Zinger is recommending that in cases of complex or significant mental illness, female inmates should be placed in external psychiatric hospitals.

The Correctional Service of Canada (“CSC”) responded to Mr. Zinger’s comments by stating that it proposes to put into practice that men’s treatment facilities only be used to handle mentally ill women “in emergency circumstances” and only for short periods of time. The CSC advised that it has an external expert looking into women’s mental health needs.

PROBLEMATIC USE OF SEGREGATION

The number of inmates placed in solitary confinement and the length of their stays have decreased significantly; however, Mr. Zinger reported that the conditions of segregation remain problematic. According to Mr. Zinger’s observations, some solitary confinement cells lack appropriate ventilation, windows, natural light, and he found that the outdoor segregation “yards” were bare concrete pens topped with razor wire.

There is a bill currently making its way through Parliament to address these types of issues entitled Bill C-56 An Act to amend the Corrections and Conditional Release Act and the Abolition of Early Parole Act. This proposed legislation includes a 15-day reasonable limit on segregation stays and includes crucial improvements to conditions of confinement in segregation. Mr. Zinger promises to participate in the review process of this bill.

INABILITY TO MANAGE SERIOUS MENTAL ILLNESS

The Correctional Investigator found that the use of physical restraints, clinical seclusion, suicide watch, and segregation to manage people with serious psychological difficulties remains problematic. Placing suicidal or distressed people in observation cells that minimally provide for the necessities of life fails to recognize that confinement of this nature may promote psychological distress.

Mr. Zinger recommends that CSC review its policies and practices for the treatment of prisoners, specifically related to health care services, solitary confinement, and instruments of constraint. Furthermore, it is suggested that external psychiatric hospital placements be utilized in cases of complex or significant mental illness.

PRISON FOOD

Prison food was found to be one of the factors that triggered the Saskatchewan Penitentiary riot in December 2016. One inmate was killed and eight others were injured. Approximately 200 medium security prisoners took part in the riot, which reportedly caused $3.6 million in damage.

Expenditures for food in Canadian prisons has been decreasing. The daily cost for food apportioned to each inmate is specified at $5.41. Mr. Zinger’s report noted that there are many complaints related to portion size, quality, selection, and substitution of food items. Mr. Zinger recommends that an external audit and evaluation of CSC food services be conducted and that the inmates concerns regarding food services be heard and addressed. The audit should include comparison of ration and per diem meal costs, prior to and after introduction of the food services modernization initiative.

RECOMMENDATIONS REGARDING TATTOOING

Tattooing is a banned practice in federal institutions. However, tattooing continues to occur behind bars, resulting in sharing and reusing unsterile homemade tattooing equipment. Prohibited tattooing has been associated with higher rates of infections, including Hepatitis C and HIV. There is also the risk of infecting corrections staff when they come in contact with used needles as there is no safe means for disposal.

Mr. Zinger recommends that CSC reintroduce safe tattooing as a national program in federal institutions. This program would provide important employment opportunities for inmates while incarcerated and marketable skills upon release into the community. More importantly, this program could minimize the risk of transmission of infectious diseases.

We will continue to follow developments in this matter and blog about updates as they become available.

At Affleck & Barrison LLP in Oshawaour firm and its predecessors have been protecting client rights since 1992. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our client’s rights. Whatever the nature of your offence, we can help. Call us at 905-404-1947 or contact us online for a free consultation.