The law is the law…..

…well, it depends.

Roberto Osuna is a 23 year-old star pitcher with the Toronto Blue Jays who was arrested by Toronto police on an assault charge early in May. He was held in a police cell during processing, and later released on his own recognizance.

Somehow, a photo of him sitting in that cell was released to the media. This is a serious breach of privacy, made all the more awkward because it’s almost a certainty that a member of the Toronto Police Service was responsible.

Police completed an investigation of this privacy violation by mid-May, know who the culprit is, but will only say the necessary disciplinary steps were taken, and no details will be released.

The same legislation that protects Roberto Osuna’s privacy also applies to Canada’s prisoners, albeit without any attending public empathy or charity.

In most American jurisdictions, who is in its prisons is sometimes even available on-line, and the identities of the men and women in custody are not shielded in any case without authorization.

Not so in Canada. No one can contact a provincial or federal institution and casually ask for inmate information. The agencies in charge of prisoners have well-defined protocols around privacy issues.

Paul Bernardo made a video appearance in a Napanee court near Kingston on Friday, April 13, charged with the possession of a weapon. A search of his cell on February 9 found a screw attached to the head of a pen.

Depending on several factors, Correctional Service of Canada used to option either institutional or criminal charges when a weapon was found in an inmate’s possession. Currently, it seems all weapon infractions lead to criminal charges.

Paul Bernardo is now aged 53 and stands almost a zero chance of parole, but he is entitled to have his application processed at intervals. That’s the policy. That’s the law.

Media outlets carried news of the charge on the same day he appeared in court. Now, weapons are found every week in our federal prisons, charges are laid every week, and inmates appear in court every week, and when charges are filed the information is in the public domain. But since anything to do with Bernardo is news, it’s likely someone made sure a media contact was directed to this latest story. Why? And, who? Is it just to ensure his chance of parole goes from zero to less than zero? There’s no suggestion this man deserves clemency, but two things stand out here.

As with other Bernardo information that has leaked out over the years, no one seems concerned about privacy issues, or how sources may have violated policy and the law. Is this excusable because of who he is? And, just where is the line drawn between when the law matters and when it doesn’t?

There’s a tangential but connected question that hasn’t been asked. Paul Bernardo is held in close confinement. He’s on a protective custody range, and other inmates there are locked up when Bernardo is out of his cell. Why then would he feel a need for protection?

The answer to that and other questions like it around safety should come from inmates and not Correctional Service of Canada spokespeople. What if, for example, the doors of other cells on that range ‘accidentally’ opened while Bernardo was outside his cell? The odds of that kind of slip are long but not out of the realm of possibility. But of course, no one wants to ask the men and women who have the best perspectives.

The point here with privacy legislation is how one law can give greater protection to one person than it does to another. Osuna and Bernardo may be at opposite ends of the social spectrum, but where along that line from one extreme to the other do subjective applications of the law become permissible?

As a footnote, Bernardo will appear in person in Napanee court on October 5 for trial.


What does it take……

………to persuade people to think?

CBC News’ Murray Brewster posted “Ottawa ditches mediation talks in $27 million Abdelrazik lawsuit” on April 17 on the network’s site.

Check out our “Omar Khadr….one last time?” from January 28. Abousfian Abdelrazik is one of the last remaining terror suspects suing Canada for wrongful detention.

As a quick review, Abdelrazik, a Sudanese-born Canadian citizen, went home for a family visit in 2003, was imprisoned there for a year, and then spent six more years waiting for Canada to allow him to return to Montreal.

He returned to Canada in 2009 only after our Federal Court ordered the government of former Prime Minister Stephen Harper to bring him home. Abdelrazik’s action against Canada personally names former Conservative foreign affairs minister Lawrence Cannon because he had refused to issue an emergency passport.

Federal lawyers approached Abdelrazik last September, asking if there was an interest in resolving the case, and the two sides met throughout the fall to set out the terms. Discussions progressed towards a mediation conference, scheduled to take place between February 28 and March 2.

But, government lawyers abruptly pulled out of the meeting, and a September 14 trial date is now set in Federal Court for the $27 million lawsuit.

“They said they could not provide us with any reasons,” said Paul Champ, Abdelrazik’s lawyer. “They were looking more at the polls than at their principles and, unfortunately, I think that’s probably why they withdrew.”

CBC was unable to get a response from CSIS, Justice or Public Safety. However, it appears the decision to withdraw one day before mediation was set to begin is a calculated political move, based on negative public blowback to other settlements, particularly the payment to Omar Khadr.

“It’s unfortunate this case wasn’t settled because – for the taxpayer – I think this is going to cost a lot more,” Paul Champ concluded.

May 4, 2018

The Honourable Ralph Goodale,
Minister of Public Safety & Emergency Preparedness,
House of Commons,
Ottawa, ON K1A 0A6

Re: Abousfian Abdelrazik

Dear Minister Goodale:

Justice Department lawyers recently walked away from a scheduled mediation session to settle Mr. Abdelrazik’s action against Canada and former foreign minister Lawrence Cannon. CBC News was referred by Justice to Public Safety for comment, but your spokesperson declined as the question is ongoing.

I’m a Liberal Party supporter disappointed by a number of positions the government has taken that I see as contradicting the progressive policies that put it into office. This decision around Mr. Abdelrazik is but one example. The move to let this play out in court will cost us all more in the end, and looks to be a safe political option to deflect possible/probable public criticism of a pre-emptive settlement.

That public is ill-informed, and one might hope a government with the courage of its own convictions would put some effort into educating the naysayers. It’s a missed opportunity to build support for the difficult work you have chosen.

Yours truly,

Charles H. Klassen

Why don’t people get that we were in the wrong? Why don’t people get that we can settle now, or go to court, lose, and pay out “a lot more.”

What is your dignity worth?

Remember Alex Wubbels? She was the nurse at the University of Utah Hospital in Salt Lake City forcefully detained in July of last year by police officer Detective Jeff Payne for refusing to draw a sedated patient’s blood in connection with a police investigation. Her arrest was captured on body camera video and widely distributed.

Nurse Wubbels was following hospital policy, and no charges were filed against her.

University of Utah Health now bars police officers from patient-care areas. Officer Payne was fired from his job with police, and from part-time work as a paramedic. Nurse Wubbels accepted a settlement of $500,000, split between the city and the hospital. Her lawyer declined to explain why they agreed to settle.

How about Nandi Cain Jr.? He was the black man beaten by a Sacramento, California, white police officer on April 10 of last year as he was walking home from work in the afternoon. Officer Anthony Figueroa accused Cain of jaywalking, but Nandi questioned the validity of the stop.

The incident was picked up on the cruiser’s dashboard camera, and a cellphone video shot by a passenger in a car when the driver stopped to record what was happening. The passenger and driver both got out of the car and screamed their objections to the assault.

In the end, at least seven police officers could be seen in the video, Cain was searched, accused of jaywalking, and charged with resisting arrest. He claimed he was stripped naked and verbally abused at the Sacramento County Jail. The charge was dropped and he was released within hours.

Nandi Cain filed a federal civil rights lawsuit against the police. The portion of the suit pertaining to his treatment while in custody was settled last fall for an undisclosed amount, and the balance of the action was resolved by a $550,000 cash settlement this spring, plus changes to police policy.

Yes, non-disclosure clauses are not as frequent in the United States as in Canada, where we have less accountability attached to use of tax dollars, and settlements in the U.S. are customarily higher as well. The figures above are in American dollars, too.

Brennan Guigue filed a claim through his legal representatives on July 24, 2017, in Quebec Superior Court against the Attorney General of Canada, and Eric Charbonneau, a guard at the Quebec Regional Reception Centre. He’s asking for $220,000 in damages relating to the incident on July 22, 2014 where he was “tortured and abused by Canada’s own federal civil servants”, as we wrote on March 4 of this year.

Complete videos of the incident were finally turned over to his lawyers at the end of this February. Still to come are redacted portions of Correctional Service of Canada documents which, even in their present edited state, repeatedly underscore that the actions taken on July 22 of 2014 were unwarranted. A full medical file has also been requested.

Counsel Véronique Forest from Canada’s ministry of justice is representing the government. She’s answered the Guigue claim with an argument that can be précised as a declaration that nothing was amiss in 2014, the defendants are not liable, and the plaintiff is responsible for what happened.

One might assume she hasn’t seen the videos and hasn’t read the documentation. We’d be tempted to counter by suggesting the film be posted for her benefit, but that would raise objections from some quarters.

In the meantime, both parties supported a delay in the proceedings until this September in order to ready the file for trial.

As we wrote in March, “The wheels turn…….”


Not easy. Solutions never are, not even when there’s a will.

Yes, under pressure, politicians heading the relevant ministries admit “we can always do better”, but then turn to their underlings to take up the question. That’s where ‘change’ gets shuffled into committee consideration, becomes an item on management agenda, and from there too often slid into a dead file, or given summary rejection. ‘Change’ championed from the outside is anathema, a challenge to authority.

Activist bodies and their supporters face a brick wall. Why do our governments become reactionary in the face of criticism? Why do their progressive policy announcements flag and fade? Why do our elected bodies and civil service never get ahead of the curve? Why do we have to push and drag these people to peer over the horizon, to embrace positive program reforms?

These are questions that impact more than just health care in our jails and prisons. These are far-reaching riddles we’ve examined in the past and to which we will return often.

As a first step to address health care, provincial and federal agencies overseeing jails and prisons must concede there are problems with accessibility. Intransigence, obstruction, denial, and feigned ignorance are out.

How many institutional health care units are staffed 24/7, and equipped to handle inevitable night and weekend emergencies? To that point, and given the delays EMS personnel face in reaching an inmate quickly, how many health care units can respond to emergencies at any time, and stabilize a patient waiting for an ambulance?

A long ago posting referenced a male nurse at Ontario’s old Toronto West Detention Centre telling one inmate that “medication is a privilege, not a right.” That is not policy anywhere, but it’s an experience that underscores the need for dedicated provincial inmate ombudsman’s offices that report directly to their respective legislatures, and not through ‘correctional’ ministries.

Canada’s federal Office of the Correctional Investigator must likewise be able to report directly to parliament, an important privilege it hasn’t had. And, federally and provincially, transparency becomes a new watchword. That, and collaborating with community resources to fill in the gaps can only improve outcomes.

Why is this important? It points to who we are as a people and a nation to begin with. But to be practical, prioritizing the health of prisoners, subjugating risk assessment to making an offender physically and mentally ‘whole’, goes a long way to lowering recidivism, reducing costs, and living in safe communities.