Lawyer, prisoner advocate says government must respond to jail lockdown ruling
A Nova Scotia lawyer who co-founded the non-profit law firm that provides clients with prison law assistance says the firm intends to hold government’s feet to the fire about the issue of overcrowded provincial jails and endless lockdowns.
“This is not a new issue, it’s one that has been raised many, many times before and it takes a judge to call out the failures of our government to help motivate change.” Emma Halpern said of a landmark decision last week by Peter Rosinski, a Nova Scotia Supreme Court justice who found it illegal to lock down prisoners in provincial jails because of correctional staff shortages.
“It was a strongly worded decision, a very, very clear decision and one that I think was a long time coming,” Halpern said.
Halpern, the executive director of the Elizabeth Fry Society of Mainland Nova Scotia, co-founded PATH, the People’s Advocacy and Transformational Hub, which launched the Supreme Court habeas corpus applications that led to Rosinski ruling that holding remanded prisoners Durrell Diggs and Ryan Wilband in lockdown at the Central Nova Scotia Correctional Facility, the Burnside jail, was illegal.
Despite ongoing staff shortages in provincial jails, Rosinski provided three suggestions for the government to consider:
- over-staffing institutions, noting that having more staff than required is preferable to the alternative;
- distributing prisoners throughout provincial institutions to prevent burdening facilities suffering from staff shortages; and
- encouraging joint efforts from corrections and prosecutors to permit more prisoners to be placed on bail pending their trials and for more prisoners serving sentences to be granted temporary absences.
Deborah Bayer, a spokeswoman with the provincial Justice Department, said it is in the “early stages” of reviewing the court’s decision and recommendations and cannot comment at this time.
“We have dedicated a full-time position to focus on recruitment and retention and have implemented a continuous open application process that is seeing positive results. We have recently hired 14 new recruits and an additional 25 for the Central Nova Scotia Correctional Facility who will start early February. We remain committed to ensuring the safety and security of those in custody and our staff.”
The court noted that increasing the use of bail and temporary absences was a successful strategy during the pandemic to comply with various public health protocols.
Halpern said the PATH firm has filed notice of its intent to mount a class action on behalf of all the people who have been locked down.
“That will certainly put some attention on this issue from government because there are financial penalties that would come out of this,” she said.
“I also think that the reality is that prisoners have been losing these (applications) up until now and this is a very strong and lengthy decision indicating that that’s not going to happen in the future. I do believe that government will have to look much more carefully at these issues and try to find solutions now as quickly as possible.”
Not helpful
Halpern said she endorses most of Rosinski’s recommendations, except the redistribution of prisoners to other jails.
“I don’t think that’s going to be all that helpful,” Halpern said, noting that most of the provincial institutions are already at capacity for inmates.
“That was really a practice that was happening quite frequently but now what we’re seeing is Cape Breton and New Glasgow are becoming really, really full as well,” she said.
“The same issues are now happening there and I think (redistribution is) just pushing the problem from one place to another and not dealing with the root issue, which is workplace job challenges and a lack of staffing that isn’t going to fix itself quickly.
“This has been going on for years. It is not simply a solution of just hiring more people, there has to be changes to the environment and the experiences within jails and one way to do that is to find ways to have people in the community.”
Halpern said serving sentences in the community is especially effective for people who are sentenced to weekend terms.
Andrew Dunlop, 35, of the Windsor area, says he knows all about weekend sentences. Dunlop said he served consecutive weekends at the Burnside jail earlier this month for breaching a court order.
Dunlop was originally released by the provincial court in August 2022 with orders to keep the peace, be of good behaviour, not to possess firearms and not to contact a woman who he is acquainted with.
His Burnside sentence was for breaching that court order.
Solitary confinement
Dunlop said he and about 10 others spent the weekend, from Friday evening to Sunday night, in solitary confinement in single cells.
“The small cell consisted of a toilet and sink combo and four walls and a door,” he said.
Dunlop said the cells are air conditioned, without heat and he was provided one blanket and two sheets to fight off the cold, along with two meals a day: breakfast at about 10 a.m., and supper between 4 p.m. and 5 p.m.
“That’s it,” he said.
Dunlop said he could “easily” have served his sentence under house arrest at home but the custodial sentence was ordered by a judge.
“It was horrible,” Dunlop said.
“It’s up to the jail, really,” he said. “Everybody can hope and pray that they are not going to lock down inmates but it’s really up to the jail and the staff.”
Dunlop feels that some staff would rather lock down prisoners than to have to deal with them.
Halpern said Dunlop’s experience is common.
“(Rosinski) recommends that correctional management and the higher ups should be thinking of things like temporary absences for things like this, where somebody should just be on house arrest at home if they can’t properly staff the jail,” Halpern said.
“No one should be tortured during their weekends, which, it has been found that solitary confinement is a form of torture. That’s not what judges are recommending when they are giving someone weekends. Yet, that’s been going on for years because they don’t have enough staff and they particularly don’t have staff on the weekends.”
COVID template
During the pandemic, house arrest was prevalent because the province didn’t want people coming and going through the jail system, Halpern said.
“We have a sort of test case of what happened during COVID that was successful and kept the numbers down in the facility tremendously. Our numbers in Burnside in particular are higher than pre-COVID, and during COVID we had cut the population by 50 per cent or more.
“We know what to do, we just aren’t doing it.”
Sandra Mullen, president of the Nova Scotia Government Employees Union, said the union has been raising concerns for years about the safety of correctional officers working in critically short staffing situations.
“These shortages put the safety of our members at risk,” Mullen said in a news release.
“Leaving inmates in their cells for hours on end creates a volatile work environment that also puts staff at risk.”
Mullen said Rosinski pulled back the curtain on instances where inmates are left in their cells for 22 hours a day.
“The province has reduced qualifications in an attempt to hire more staff, however, these women and men enter a very toxic work environment and often leave quickly for better paying jobs in safer working conditions.”
Halpern said she is hopeful that the Rosinski decision will push politicians to think differently.
“I want to be clear that this isn’t just about hiring,” Halpern said.
“It’s also about people showing up to work. This is an environment where people are unionized and have a lot of protection from unsafe workplaces so there are a ton of people who are not coming to work because they don’t feel for whatever reason that they are safe to do so.
“There are a whole bunch of workplace issues that are going on but the people that are being punished for that are the prisoners, most of whom, of course, to remind the public, have not been found guilty of a crime. They are there on remand, 75 per cent approximately.”
