human rights

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.

Ontario Human Rights Commissioner Calls for End to Solitary Confinement in Ontario Prisons

Written on Behalf of Affleck & Barrison LLP

We’ve previously blogged about prison conditions in Ontario. The issue is now back in the news following the visit of the Chief Commissioner of the Ontario Human Rights Commission (OHRC) to the Thunder Bay District Jail and her subsequent calls for an end to segregation in the province’s correctional facilities.

The Chief Commissioner, Renu Mandhane, visited the jail in early October where she met Adam Capay, a 23-year old inmate Aboriginal inmate from the Lac Seul First Nation in Northwestern Ontario, who had been held in solitary confinement for more than 1,500 days (or 4 years). Mr. Capay had been detained in a basement, alone, in a plexiglass cell, where the lights were on for 24 hours a day. Mr. Capay had no conception of whether it was day or night.

After meeting Mr. Capay, the Chief Commissioner reported that Mr. Capay appeared to be suffering from memory and speech problems as a result of the conditions in which he was being held, and that he showed signs of self-harm.

Mr. Capay’s confinement began in 2012, when, while serving time at the Thunder Bay Correctional Centre, he was involved with a violent confrontation with another inmate, resulting in that inmate’s death. Mr. Capay was subsequently charged with first degree murder, and sent to solitary confinement. He was 19 years old at the time. To date, Mr. Capay has never had a trial, has never been convicted of anything, and has not been sentenced for a crime. Yet, he has been locked in solitary confinement for 52 months.

The Ontario Human Rights Commission on Solitary Confinement in Correctional Facilities

In January 2016, the OHRC provided the Ministry of Community Safety and Correctional Services with written submissions on the use of segregation (i.e.- solitary confinement) in correctional facilities in Ontario.

Following the Chief Commissioner’s visit to the Thunder Bay Correctional Centre, the OHRC made supplementary submissions with additional commentary. The new report indicates that there is a “gross reliance on and overuse of segregation” in Ontario’s correctional facilities and that these issues are “systemic”. Statistics indicate that between October and December of 2015, more than 4,100 Ontario inmates spent at least one day in segregation. More than 1,500 of these inmates, or almost 40% of them had a “mental heath alert” on file.  Almost 25% of segregations exceeded two weeks (15 days being the UN recognized threshold for torture).

Public Outrage about the Conditions Mr. Capay was Held In

Since Mr. Capay’s circumstances were brought to light, there has been significant public outrage. The Globe and Mail’s editorial board wrote a scathing editorial criticizing the “inhuman treatment” of Mr. Capay, and asking “those who allowed this to happen” to be held accountable. The editorial board pointed out, among other things, that

The only thing Ontario prison officials haven’t done to this poor man is shackle him upside down on a dungeon wall. But they may as well have. Mr. Capay is arguably being tortured by the state. The sensory deprivation caused by constant light is an acknowledged torture technique, and the United Nations says that holding a person for more than 15 days in solitary is in itself a form of torture.

Indeed, as the board points out, the Supreme Court of Canada has previously acknowledges that any delay longer than 30 months between the laying of a criminal charge/charges and the completion of trial is a violation of the accused person’s fundamental Charter right to trial within a reasonable period of time. Mr. Capay’s 1,500 day incarceration is approximately 100 times longer than the 15 day window that the UN considers solitary confinement constituting torture.

The Response

Premier Wynne has stated that she is “very troubled” by the circumstances, and that “it is very disturbing and shouldn’t happen”, but would not comment on whether anyone would be held accountable for what happened to Mr. Capay, saying only that the Liberal government would conduct an additional review of solitary confinement in the province.

David Orazietti, the province’s Correctional Services Minister has since committed to ensuring no other Ontario inmate is held in conditions with 24-hour per day light, and that all inmates have daily access to medical care.

It remains to be seen what the final outcome of this shocking mistreatment of an inmate will be. Since the Chief Commissioner shed light on Capay’s mistreatment, he has been moved to a different cell with lights that can be dimmed, and access to a day room and a television.

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

At Affleck & Barrison our firm and its predecessors have been representing clients charged with criminal offences and protecting their rights since 1992.  Our lawyers are extremely knowledgeable and are experienced at defending a wide range of charges.  Call us at 905-404-1947 or contact us online for a free consultation. We offer 24-hour phone service for your convenience, and a variety of payment options, including Legal Aid. Whatever the nature of your offence, we can help.

Transgender Rights Bill Introduced by Liberals

Written on Behalf of Affleck & Barrison LLP

Justin Trudeau’s Liberal government has introduced new legislation which aims to extend human rights protection to transgender Canadians. The announcement was made on May 17, 2016 –  the International Day Against Homophobia, Transphobia and Biphobia –  and marks a major step forward in the fight to protect the human rights of transgender people across the country.

Justice Minister Jody Wilson-Raybould tabled Bill C-16 which would amend the Canadian Human Rights Act and the hate crime provisions in the Criminal Code include “gender identity” and “gender expression” as prohibited grounds of discrimination. The legislation would amend the Code such that if a crime is motivated by hate based on gender identity, a judge must consider that as an aggravating factor in sentencing.

 

At a press conference, Justice Minister Wilson-Raybould said, “No one should be refused a job, disadvantaged in the workplace, be unable to access services or be the target of harassment and violence because of their gender identity or gender expression.”

But the Bill must still pass through the House of Commons and the Senate before it becomes law. A similar transgender rights bill brought by the NDP was previously passed by the House of Commons during the last session of parliament, but it never made it past the Senate. This is the seventh time such a bill has been introduced in the House of Commons, but the first time it has been introduced by the current government.

Although previous cases of transgender rights discrimination were heard by federal Human Rights tribunals and courts, they did so on the basis of provisions prohibiting discrimination based on sex.

Of Canada’s 13 provinces and territories, eight, including Ontario, already have provisions protecting transgender people under their human rights laws, but only five cover both gender identity and gender expression.

Although it is less controversial in Canada, transgender rights have recently become the subject of heated debate in the United States after North Carolina passed a law that prohibits people from using public washrooms that do not correspond to the gender on their birth certificates.

To speak with an experienced criminal defence lawyer about your rights, please contact Affleck & Barrison online or at 905-404-1947.

Aboriginal Incarceration is Increasing, Despite Falling Crime Rates

Written on Behalf of Affleck & Barrison LLP

Despite only comprising 4.3 per cent of the Canadian population, Aboriginals make up over 25 per cent of federally sentenced inmates. The percentage of Aboriginal women in federal prison is even higher – 36 per cent of all female federal inmates are Aboriginal.

In recent years, much attention has been drawn to the of the over-incarceration of black men in the United States, where black men are six times more likely to be imprisoned than white men. But in Canada, Aboriginals are incarcerated at 10 times the rate of non-Aboriginals. The problem is greatest in the Prairies. In Saskatchewan, for example, Aboriginals are 33 times more likely to be incarcerated. This is particularly concerning in light of Canada’s steadily declining crime rate which recently hit a 45-year low.

Just last week, Raymonde Saint-Germain, Quebec’s ombudsperson, released a scathing report on the treatment of Inuit people in the Quebec justice system. Ms. Saint-Germain highlighted numerous concerns after witnessing serious violations of inmates’ rights in northern Quebec. Ms. Saint-Germain also noted a dramatic increase in the number of Inuit in provincial jails over the past six years.

The reasons for the disparity are complex. Howard Sapers, Correctional Investigator of Canada, points to poverty, the history of colonialism and the lasting effects of the residential school system as some of the reasons why so many Aboriginal people suffer from problems that land them in the justice system. Cuts to social services, health care and education have also served to multiply the problems faced by Aboriginals in Canada. Another reason for the spike in Aboriginal incarceration is the harsh mandatory-minimum sentencing laws passed by Stephen Harper’s conservative government over the past decade which increased sentences for a wide variety of crimes while limiting parole opportunities. Finally, Aboriginal people are further disadvantaged by discriminatory practices and a biased justice system.

To speak with an experienced criminal defence lawyer, please contact Affleck & Barrison online or at 905-404-1947.

Further reading:

http://www.macleans.ca/news/canada/canadas-prisons-are-the-new-residential-schools/