Do your job…..or pay!

Ontario Superior Court Justice Douglas Gray awarded $85,000 to two inmates at the Maplehurst Correctional Complex in Milton after ruling their charter rights were violated by staffing-related lockdowns.

In the May 9 week judgement, Justice Gray ruled that recurring and relentless lockdowns, for sometimes up to 50% of the time on average, violated the inmates’ rights to freedom from cruel and unusual punishment. “Degrading”, “disproportionate” and “excessive as to outrage standards of decency” is how the judge described the practice. “The conditions of detention during lockdowns are very close to segregation or solitary confinement. In some ways they are worse. The inmate is holed up with another inmate not of his choosing. The actual periods of confinement for 24 hours a day are entirely arbitrary, and unpredictable, both as to timing and length.”

As reported by Amy Dempsey in the Friday, May 13, Toronto Star, the judge rejected an argument made by the province’s lawyers that conditions described by the inmates were not anywhere close to being egregious or shocking to the public and did not violate their rights. Justice Gray ruled that lockdowns “do not arise from legitimate safety and security concerns” but rather because the ministry has been “unwilling or unable to have sufficient staff available.” Not only that, but Ontario has known about the problem since at least 2002 and not corrected it.

Jamil Ogiamien triggered the lawsuit when he filed an application last July alleging unlawful detainment, and inmate Huy Nguyen joined the action. Nguyen was awarded $25,000, to be paid by the province. Ogiamien was awarded $60,000, to be paid jointly by the province and the federal government, since Ottawa is responsible for his detention.

Both men represented themselves in court.

The Ministry of Community Safety and Correctional Services, and the Ministry of the Attorney General would not comment as the case is still in the appeal review period, and they would not say if there are plans to appeal.

These same conditions that led to the decision exist elsewhere, notably Lindsay and Toronto South. Barbara Jackman, a lawyer who assisted in the case but did not directly represent the complainants believes this is the first time monetary damages have been awarded for conditions created by lockdowns. Daniel Brown, a criminal defence lawyer and a director with the Criminal Lawyers’ Association, agrees with Ms. Jackman that this may open the door to a class action lawsuit, that other people may bring similar applications in the future, and that this isn’t an isolated problem.

As Daniel Brown put it, the inmates “weren’t asking for steak dinners and comfier beds. They were just saying, don’t lock us up for no reason. Don’t deny us our basic liberties, our right to have a shower and a phone call and contact with our family.”

As we see it, one major obstacle to a flood of actions is the reluctance of some defence lawyers to take on the province, the Ministry of Community Safety and Correctional Services, prison guards, and OPSEU (Ontario Public Service Employees Union) which represents Ontario’s uniformed jail staff. As a reference, please see the May 15th posting on this site, “Where are the angry lawyers?”

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