prison conditions

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.

Ontario Will Not Appeal Decision to Stay Murder Charge Against Adam Capay

Written on Behalf of Affleck & Barrison LLP

We have previously blogged about solitary confinement in Canada, and are revisiting this issue given the recent announcement by Ontario Crown prosecutors declaring that they will not appeal Superior Court Justice John Fregeau’s decision to stay the proceedings in the first-degree murder case against Adam Capay (“Capay”).

On January 28, 2019, Justice John Fregeau stayed the first-degree murder charge against Capay due to the “complete and utter failure” of Ontario’s correction system in managing Capay’s solitary confinement for more than four years while awaiting trial. Capay was released to his family following this decision.

WHAT HAPPENED?

On June 3, 2012, Capay fatally stabbed Sherman Quisses (“Quisses”) twice in the neck while they were in a correctional facility in Thunder Bay.

Capay was immediately placed in segregation after his attack on Quisses on the basis that he was a threat to both himself and other prisoners. Capay was kept in a Plexiglass cell with the lights on 24-hours a day for 1,647 days. He was often kept in detention blocks where he was not allowed to flush the toilet from inside the cell.

Capay’s decline became publicly known after Renu Mandhane, chief commissioner of the Ontario Human Rights Commission, visited him during a tour of Thunder Bay District Jail and released the details to the media.

Capay described his lengthy segregation as having impaired his ability to speak and differentiate day from night. On October 18, 2016, The Globe and Mail published the first in a series of stories about Capay and his prolonged isolation.

JUSTICE FREGEAU’S DECISION TO ORDER A STAY

Capay’s lawyers requested a stay (a ruling by the court halting any further legal proceedings) of the first-degree murder charge on the basis that Capay’s rights were violated under the Charter of Rights and Freedoms (“Charter”). Justice Fregeau heard testimony from corrections staff and numerous experts in the field of forensic psychiatry, human rights, and correctional law and policy.

Justice Fregeau found that Capay suffered from pre-existing mental-health issues as a result of his childhood experiences of physical and sexual abuse, domestic violence in his home, parental alcoholism and other intergenerational trauma, and concluded that these issues were exacerbated by his isolation, sleep deprivation, and lack of access to mental health services.

According to Justice Fregeau, Capay’s isolation violated four sections of the Charter, including:

  • The right of life, liberty and security of person (Section 7);
  • The right not to be arbitrarily detained (Section 9);
  • The right not to be subjected to cruel and unusual punishment (Section 12); and
  • The right to be equal before and under the law (Section 15).

Although Capay was responsible for Quisses’ death, his many years of isolation amounted to cruel and unusual punishment and a violation of his Charter rights.

Justice Fregeau ruled that these Charter violations were so “prolonged, abhorrent, egregious and intolerable” that the only appropriate solution was to stay his murder charge and allow Capay to be released.

Justice Fregeau’s decision set out the following issues with the Thunder Bay District Jail, which included:

  • Failing to hold legally mandated reviews of Capay’s segregation status;
  • Advising staff to avoid talking to the inmate; and
  • Neglecting Capay’s declining mental health.

Justice Fregeau wrote in his decision:

When exercising their statutory discretion in making segregation decisions regarding the accused, the complete and utter failure of correctional officials to properly balance the accused’s charter rights with the statutory objectives can only be described as profoundly unreasonable, unacceptable and intolerable.

                        …

The treatment of the accused was, in my opinion, outrageous, abhorrent, and inhumane. There would be ongoing prejudice to the accused if forced to proceed to trial.

RECOMMENDATIONS MADE TO THE CORRECTIONAL SERVICES MINISTER

On February 21, 2019, Renu Mandhane (“Mandhane”), chief commissioner of the Ontario Human Rights Commission, wrote an open letter to the Honourable Sylvia Jones, the Minister of Community Safety and Correctional Services, calling for an end to segregation in Ontario.

Mandhane emphasized that prisoners in Ontario continue to be held in segregation for extended periods of time, despite the fact that it is harmful to their mental and physical health, and undermines institutional safety, rehabilitation and reintegration.

The data from May 2018 reveals that there were nearly 4,000 segregation placements over a two-month period, with 657 of those exceeding 15 days.

Mandhane wrote:

The numbers are large and it can be hard to remember that each number represents a person. Adam Capay’s treatment is a reminder of the lived reality behind the numbers and the long-term negative consequences that segregation has on prisoners, correctional officers, victims of crime, the community and the administration of justice.

Mandhane recommends that the government immediately launch an action plan, including limiting segregation to fifteen-days, judicial reviews of isolation decisions, and bans on the segregation of pregnant, suicidal, mentally ill and physically disabled inmates.

The previous Liberal government passed a bill incorporating many of Mandhane’s recommendations prior to last year’s election, however, this bill has not yet been proclaimed by the Lieutenant-Governor and the new Progressive Conservative government.

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 LLP at 905-404-1947 or contact us online. For your convenience, we offer 24-hour phone services.

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.

Toronto Inmate Alleges He Was Subject to Cruel and Unusual Punishment

Written on Behalf of Affleck & Barrison LLP

An inmate at the Toronto South Detention Centre has alleged that he was subject to cruel and unusual punishment by court and jail staff. The inmate told City News that he spent two weeks with untreated broken bones and was denied treatment, trips to the hospital, and an x-ray by correctional staff.

What Happened?

The inmate broke his hand in a fight with another inmate in the holding cells at the College Park courthouse in Toronto in July. Court officers, employed by Toronto police, broke up the fight, but the inmate claims they then denied his request to go to the hospital to get treated. The officers allegedly asked the inmate whether he wanted to get medical treatment for his hand, but when he responded in the affirmative, they told him “There’s no getting out of here” and returned him to a holding cell.

Once in the Detention Centre, he saw a doctor at the facility, who informed him that he needed an x-ray, but that there was no x-ray machine on the premises. However, the inmate was never taken off the premises to receive the x-ray.

The inmate went back to court for another a scheduled bail hearing twelve days after the fight. At that hearing, the inmate’s lawyer requested that the inmate’s condition be put on the record, along with the fact that the injury occurred in the cells at College Park. The Crown attorney went on the record and indicated that he saw swelling and

The Crown attorney went on the record and indicated that he saw swelling and discoloration on the inmate’s hand and that it appeared to be lacking circulation. The Crown attorney also confirmed that the injury looked acute. The presiding justice of the peace ordered that the inmate be taken to a hospital, but that request was allegedly ignored.

The inmate claims that court officers told him that many people come to court with broken arms and legs and that the only time something is done about it is “when somebody can’t breathe or it’s a life and death situation”. The special constables at the court house were allegedly informed that it was “not their job” to help the inmate.

The inmate then spent the weekend following the bail hearing dealing with the pain while the Detention Centre was on lockdown. He claims he told corrections officers that he was in pain and that his hand was changing colours.

The inmate is now in a cast but was not able to get one until he was released and immediately went to the emergency room.

Response by Toronto Police and Correctional Services Canada

A Toronto police spokeswoman confirmed the inmate’s account of the fight, and said that Toronto Police initially offered assistance, but that the inmate refused both police assistance and medical care. She also noted that the police have no notes from the bail hearing.

The Ministry of Community Safety and Correctional Services told CityNews that it will not publicly address individual cases, particularly where the personal health matters of inmates are involved, but did note that “all inmates have access to health care services”. The Ministry said that it will investigate all allegations of improper care and custody of an inmate.

We have been blogging regularly about prison conditions in Canada and will continue to do so going forward. In the meantime, if you have questions about your legal rights, either during detention or otherwise, contact the skilled Oshawa criminal lawyers at Affleck & Barrison LLP. Our team has extensive experience defending a wide range of criminal charges. Whatever your issue, we can help. Call us at 905-404-1947or contact us online for a free consultation.

Recent Stats Show Marked Drop in Use of Solitary Confinement Across Canada

Written on Behalf of Affleck & Barrison LLP

We’ve regularly been blogging about prison conditions and the use of solitary confinement in correctional facilities across Canada. Today, the Globe and Mail reports that federal prisons have recorded a significant drop in the number of prisoners held in solitary confinement, following the implementation of new rules that bar certain vulnerable individuals from being put in isolation cells.

New Correctional Service of Canada Policies Introduced

Two significant Correctional Service of Canada (CSC) policies (Commissioner’s Directive 709 and Commissioner’s Directive 843) underwent major revisions, both effective August 1 of this year.

Following these changes, several categories of inmate can no longer be held in solitary confinement, including those who are imminently suicidal, self-harming, seriously mentally ill, physically disabled, terminally ill, or pregnant.

In addition, those prisoners who do end up in solitary confinement will have several new rights, including an allowance of two hours out of their cells (an increase from the one hour they were previously afforded).

These new changes come in the wake of significant public outcry over the use of solitary confinement and subsequent scrutiny of the CSC’s segregation practices. Starting in 2014, the Globe and Mail has reported extensively on the use of solitary confinement, and its effects on inmates. Following the first of these stories, the CSC launched a strategy to attempt to reduce the number of inmates housed in isolation.

In January 2015, the John Howard Society of Canada and the British Columbia Civil Liberties Association (BCCLA) sued the federal government, and in the trial that began last month in the B.C. Supreme Court, the plaintiffs argued that solitary confinement amounts to torture.

Updated Statistics on Solitary Confinement

Data obtained by the Globe and Mail shows that, as of August 2, 2017 (one day following the implementation of the new policies), the CSC held 301 inmates in “administrative segregation” (the CSC’s term for solitary confinement).

This marks a significant decrease from 399 inmates that were held in solitary confinement in June, and the average of 800 inmates three years ago.

The total number of segregation admissions has fallen from 8,522 in 2014/2015 to 6,261 in 2016/2017.

A CSC spokesperson told the Globe and Mail that the reduction of segregated inmates comes largely from the CSC’s increased efforts to divert inmates with mental-health issues to “more therapeutic environments where their needs can be addressed”. She noted further, that the impact of the amended Directives has yet to be assessed.

Reaction to the Policy Change

Despite this decrease, some observers of the prison system continue to have concerns about how these decreases were achieved, and how easily the numbers could revert back to their previous high.

The Federal Prisons Ombudsman, Ivan Zinger, who provided the data to the Globe, noted that he has some concerns, and that he is going to put a strategy in place to monitor how the policies will be applied.

Gord Robertson, the second national vice-president of the Union of Canadian Correctional Officers has said that the additional one hour inmates are able to spend outside of their cell might be “tricky” to implement. He notes that many facilities do not have the physical space to permit every inmate to have two hours of recreation time. Making this change could mean either adding staff, or building additional infrastructure to accommodate everyone.

Catherine Latimer, the Executive Director of the John Howard Society of Canada has noted that inmates complain regularly that they are being woken up when it is still dark to get “yard time”. If an inmate chooses not to go out in the early morning, they generally will not get another chance for yard time for another 24 hours.

Dr. Zinger notes that the lack of resources and staff in many facilities means that segregated inmates are often asked to take their recreation time along with other segregated inmates. This is generally not an issue, unless inmates do not feel safe spending rec time with others. If this happens, the inmate is marked as “declining exercise”.

A Step in the Right Direction

Ms. Latimer notes that barring certain groups from being held in segregation is a “step in the right direction”, but that she would rather see such measures enshrined in law, rather than in a policy. This is echoed by Dr. Zinger, who has said

Those kinds of protections should really be in legislation rather than in policy directions that can be changed rather easily.

Dr. Zinger further anticipates that as the number of inmates held in segregation continues to decline, those who remain in isolation will be the “really difficult cases”.

The Liberal government has also introduced legislative changes to segregation through Bill C-56; however, the proposed legislation does not mention any prohibitions on vulnerable groups in segregation.

We will continue to follow developments in this matter. In the meantime, if you have questions about your rights, contact the criminal lawyers at Affleck & Barrison LLP in Oshawa. Our firm and its predecessors have been protecting client’s legal rights since 1992. We are highly knowledgeable and extremely experienced at defending a wide range of criminal charges. Whatever the nature of your offence, we can help. Call us at 905-404-1947 or contact us online for a free consultation.

B.C Inmate Tells Court About Harrowing Experience in Solitary Confinement

Written on Behalf of Affleck & Barrison LLP

Last week we blogged about a trial that began at the B.C Supreme Court, reviewing the legality of Canada’s use of solitary confinement. The trial continues this week with testimony from inmates, including one inmate who told the court that he “felt like dying” while in solitary.

Testimony Begins

In 2015, the B.C Civil Liberties Association and the John Howard Society of Canada jointly sued the federal government over the use of solitary confinement (often referred to as “administrative segregation”).

James Lee Busch, a prisoner at B.C’s Mission Institution, is one of six inmates expected to take part in the trial and testify about their experience with solitary confinement.

Mr. Busch stated that he has been in solitary confinement eight times: three times while serving a sentence for aggravated sexual assault, and five times since he pleaded guilty to second-degree murder in 2010. Mr. Busch testified that he has spent nearly all of his adult life in prison, on probation, or on parole, and still struggles with his experiences in solitary.

His longest stay in solitary was 66 days, when he was at Saskatchewan Penitentiary in 2009. He was placed in solitary for passing a guard a note inviting her to call him once he was released and cursing a psychologist who wanted to prescribe him psychotropic medication (which he has had negative experiences with in the past).

Suicidal Feelings in Solitary

Mr. Busch’s 66-day period of solitary confinement began in October 2009, during which time he would spend 23 hours a day in a small cell. Almost immediately, Mr. Busch said he felt depressed, and that suicidal feelings began “almost as soon as the door of the cell closed behind [him]”. Prior to entering solitary, Mr. Busch had been taking high-school equivalency courses and was close to nearly graduating. While he was in solitary, he could not attend classes, and eventually lost motivation.

Mr. Busch’s segregation was reviewed four times during the period he was there, but it was not made clear how he was a threat to the institution. During his second review, Mr. Busch says he asked to be returned to the general population, as he knew that his mental state was deteriorating. His request was not granted.

During his third review, which occurred on Day 54 of the solitary confinement, Mr. Busch says he told the reviewers that he “felt like dying”. Mr. Busch further said that once he agreed to take the psychotropic medication that was originally prescribed to him, he was released into general population. He believes that his stay in solitary confinement was used to “coerce” him into taking the medication.

Mr. Busch testified that:

“I know that I have committed crimes and that I deserve to be punished for them. But, I am still part of this Canadian community and I do not believe that any Canadian deserves to suffer the consequences of segregation”

We’ve blogged regularly about prison conditions in Canada. We will continue to follow developments in this trial as it unfolds, and will provide updates as they become available.

The Oshawa criminal lawyers at Affleck & Barrison LLP have been protecting client rights since 1992. Our skilled team has extensive experience defending a wide range of criminal charges. Whatever the nature of your offence, we can help. Call us at 905-404-1947 or contact us online for a free consultation