“The degree of civilization in a society can be judged by entering its prisons.”
Fyodor Dostoyevsky
The conditions in our jails is an embarrassment to our country and our criminal justice system. This is not a new situation, but inmates finally have a promising new way to do something about it.
First, some context:
Our jails suffer from chronic underfunding. Previous governments increased mandatory minimum jail sentences and took away discretion from trial judges to craft non-custodial sentences. Courts, at least in Ontario, have made house arrest surety bails the norm, resulting in a huge increase in pre-trial detention. Check out the Canadian Civil Liberties Association’s devastating study on pre-trial detention here. All of this has increased the number of people in jail at a time when crime is at an all time low. An increase in funding has not accompanied this increase in inmates. This leads to disastrous consequences.
1) Our jails are more dangerous for everyone involved.
Overcrowding leads to violence. Our guards are at risk. There are too many inmates and not enough of guards. The correctional system in Ontario came to the brink of a full on strike and endured months of staff-shortages and delays while correctional officers protested their working conditions before a deal was reached in January, 2016.
Inmates are also at risk. Overcrowding leads to fights. Inadequate supervision leads to in influx of weapons into the jails. Recently, in a case called R. v. Short a man was acquitted of assault with a weapon and assault for a stabbing in a jail. The judge found he acted in self-defence and could not be faulted for using a shiv to defend himself. As he stated: “The system put him in this situation, and the system cannot blame him for resorting to his own means of defense.”
2) Inmates are triple bunked in tiny cells.
I recently had a case where a client was in jail in Maplehurst Correctional Complex for multiple years on a complex case before being sentenced. He had to be housed in protective custody for his own safety. The cells in protective custody are smaller than regular cells: only 9 feet long and 7.5 feet wide. He was triple bunked in this tiny cells for 2 out of every 3 days. Triple bunking involves putting a thin mattress on the floor beside two bunk beds. The most vulnerable of the 3 cellmates is typically the one forced to sleep on the floor.
3) Inmates are locked in their cells 24 hours a day for multiple days in a row.
Staff shortages, weapons and violence all lead to lockdowns. During a lockdown the inmate is locked in his tiny cell with his cellmates for 24 hours a day. These lockdowns can last for days, and sometimes weeks on end. Personally, the longest lockdown I have seen lasted 16 days. Some days the inmates are let outside their cells to have a shower. They are not let out to go outside, call their lawyer, see their family, go to religious meetings or counselling.
4) Inmates are being denied medical care.
When the Toronto South Detention Centre was first constructed it boasted of a first-class infirmary and mental health unit. The jail opened in January 2014. The infirmary didn’t open until June, 2015 due to staffing issues. In the intervening year and a half sick inmates were held in solitary confinement. This is just one example. Numerous criminal cases have highlighted examples of inmates being denied medical care. Just the other day I had to ask a judge to send a memo to a jail asking them to provide my client with immediate access to a psychiatrist. My client was on prescription anti-depressant drugs, without which he is suicidal. Then he was moved to a different jail. That jail’s solution was not to allow him to see the psychiatrist to get his prescription when he arrived but to instead just place him on suicide watch.
For years the only thing the justice system did about these abuses was to offer enhanced credit to inmates who suffered from them. Typically, inmates were given double credit for the time they spent in custody, but sometimes they were given even more credit. This all ended with the Truth in Sentencing Act which came into force in February of 2010. This act limited credit to 1.5 days for every day spent in custody. While other sections of that legislation have been struck down by the Courts, that cap on pre-trial custody credit remains.
Recently some Courts have gotten around this limit. They have done this by lowering the overall sentence due to the conditions in the jail rather than granting increased pre-trial custody. To date, no appellate court has weighed in on this practice but reductions tend to be modest at best.
The more encouraging development is in the civil context. Inmates are suing the jails for the conditions and winning! In Ogiamien v. Ontario two inmates brought an application under the Charter of Rights and Freedoms stating that their rights had been violated during their incarceration at Maplehurst Correctional Complex in Milton, Ontario. They won and were awarded damages of $60,000 and $25,000.
A class action has now also been certified in relation to inmates at the Elgin-Middlesex Detention Centre in London, Ont. and notice of a pending class action has also been given in relation to inmates at the Ottawa-Carlton Detention Centre. Currently a Toronto firm is attempting to certify a class action lawsuit for all other provincial correctional institutions.
As long as the Truth in Sentencing legislation stands it seems the best remedy for these issues is now in the civil context. I, for one, will be eagerly awaiting the outcome of these class action lawsuits. Hitting the state in the pocketbook may finally lead to some real change.
If you, or some one you know, would like more information on these lawsuits or other remedies for harsh conditions in Ontario jails, call us at 416-975-1700 and we will be happy to point you in the right direction.
