prisoner rights

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.

What Could the Prison Guards’ Strike Mean for Prisoners?

Written on Behalf of Affleck & Barrison LLP

Following a breakdown in negotiations between their union and the provincial government last week, Ontario correctional workers could go on strike as early as January.

The Ontario Public Service Employees Union (OPSEU), a union representing 6,000 correctional workers in Ontario, rejected a tentative labour agreement with the province earlier this month.

This past Friday, follow-up negotiations failed and the union asked for a “no board report”, which means that a conciliator agrees the parties cannot come to a resolution. As a result, Ontario jail, parole and probation officers have moved closer to being in a legal strike position. If OPSEU members do go on strike, many of the 28 correctional facilities, detention centres and jails in the province would go into lockdown with only management left to take over the guards’ jobs.

What could this mean for prisoners?

Union workers are already concerned about overcrowding and understaffing in Ontario jails. Earlier this month, an officer at a Thunder Bay jail was taken hostage when a group of prisoners took over a section of the jail.. In November, 20% of the 884 inmates at the Toronto South Detention Centre in Etobicoke went on a hunger strike in protest of problems related to chronic understaffing. At Toronto South, lockdowns occur quite frequently. Inmates are confined to their cells, they are often unable to meet with their lawyers and showers become rare. According to some inmates, conditions are so bad that they are arriving hours late for court dates. Toronto South’s reputation has spread throughout the criminal defence bar and the judiciary.

According to Kelly Hannah-Moffat, director of the Centre of Criminology and Socio-legal Studies at the University of Toronto, a lockdown would mean that prisoners would be confined to their cells without access to communal spaces, classes, or even doctor’s appointments.

If you have questions about a criminal defence matter, please contact the lawyers at Affleck & Barrison online or at 905-404-1947.

Sources:

http://www.thestar.com/news/canada/2015/12/20/ontario-jail-guards-impending-strike-threatens-prisoner-rights-expert.html

http://www.theglobeandmail.com/news/toronto/inmates-at-canadas-second-largest-jail-protest-problems-with-hunger-strike/article27351267/