prisoner 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.

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/