Law Times

Law Times • OcTOber 24, 2016 Page 7 www.lawtimesnews.com COMMENT Lawyer's life an enduring legacy BY PHILIP GIRARD A 1994 encounter in a Halifax courtroom was probably a first in Canada. That's because a black youth known as RDS — represented by a black lawyer — faced off against a white crown prosecutor and a white police officer, under the eyes of a black judge assisted by a black court reporter. Nova Scotia Family Court Judge Corrine Sparks' comments on police behaviour in acquitting the defendant led to an allegation of anti-white racial bias on her part. When the Crown appealed the acquittal, the black lawyer, the late Burnley "Rocky" Jones, argued the case all the way to the Supreme Court of Canada, joined by Dalhousie University law professor Dianne Pothier. The SCC decision in R v RDS validated minority judges using their own life expe- rience in assessing racially charged events such as interactions between police and minority youth. It also extended the fron- tiers of judicial notice and contextualized judging. The decision is consistent with Jones' greatest intellectual legacy, the no- tion of systemic discrimination, which has been absorbed into Canadian human rights law. Jones' recently published autobiog- raphy, Burnley "Rocky" Jones: Revolu- tionary, fills in some of the backstory of R v RDS, but his role in the case is just one event in an action-packed narrative. The book should be required reading for Ca- nadian lawyers and, indeed, all Canadians. Jones came late to the law — he was nearly 50 years old when he entered Dalhousie Law School in 1989 courtesy of the Indig- enous Blacks & Mi'kmaq Ini- tiative, which he helped to cre- ate. This program mirrored an access program, the Transition Year Program for black and indigenous students, that he had helped to create at Dalhou- sie in 1970. Jones' legal career drew on a long legacy of com- munity activism. In the 1960s and 1970s, he shook up the quiescent black community in Nova Scotia, challenging the leadership of the black church, the "occupation" of black portions of Halifax by the police and white paternalism, while making linkages with Black Power groups from the US. Soon, he was speaking and orga- nizing across Canada, dubbed "Canada's Stokely Carmichael" by the media. According to Jones, the community should decide what it wanted for itself and then figure out how to achieve it. To that end, he tried to foster independent decision-making for black communities. Jones was always suspicious of govern- ment money and organizations that tried to co-opt and direct grass-roots action. Inspired by the Black Panthers, he spon- sored a series of controversial uni-racial "Black Family Meetings" in Halifax in the late 1960s, in order to discuss the needs of the black community. Out of this grew the Black United Front, which, as Jones feared, became somewhat toothless when it ac- cepted federal funding. Undaunted, he went on to found a rival group, the Afro- Canadian Liberation Move- ment. In few of his endeavours did Jones display the classic Canadian taste for compro- mise. He was not afraid of calling out views with which he disagreed. Reacting to Martin Luther King's Massey Lectures in 1967, in which King extolled Canada as a ra- cially harmonious paradise, Jones begged to differ. He also disagreed with King's philoso- phy of non-violence, though he later came to a new appreciation of King's thought. Resentful that the interests of West Indian immigrants came to stand in for those of all black Canadians, Jones castigated what he called island "tribalism" as a threat to black unity and reminded the newcom- ers of the long existence of indigenous black communities. Ultimately, however, he helped build bridges between the two groups, as he did between blacks and in- digenous peoples as well. Jones' legal career included the usual combination of routine work (to pay the bills) with pro bono criminal defence work and involvement with cases impor- tant to marginalized communities. In one of the latter, he defended a 13-year-old black girl suspected of a theft at school and strip-searched by a white female police of- ficer in a way that violated the girl's consti- tutional rights. Jones and his co-counsel, Anne Derrick, were sued for slander by the police officer for allegedly calling her actions racist at a press conference. A jury award of $240,000 was overturned by the Nova Scotia Court of Appeal, clarifying the qualified privilege of lawyers to speak out when Charter guarantees have been violated by state agents. The great paradox of Rocky Jones is that this resolute exponent of non-main- stream ideas was an institution builder. Among Jones' legacies one can count the Nova Scotia Human Rights Commission and the access programs at Dalhousie mentioned earlier, as well as his contribu- tion to what poet George Elliott Clarke calls the Africadian Cultural Renaissance. Jones had wanted his friends Clarke and the historian Jim Walker to write his autobiography with him. To that end, they taped long interviews covering Jones' life down to 2003, before his untimely death in 2013. Walker's decision to write in the first person gives the account the vitality and immediacy Rocky Jones would have wanted. Only the last chapter, dealing with Jones' later years and legacy, is writ- ten by Walker in his own voice. One chapter begins with Jones' obser- vation that journalist Tariq Ali wrote a book about the great year of revolution, 1968, that does not even mention Canada. He protests that "we had our own 1968 in Canada." If you want to find out more about it, and its aftermath in Canadian law and life, read this book. LT u Philip Girard is a legal historian and professor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is pgirard@osgoode.yorku.ca. End the jail lockdown crisis BY PETER HARRIS L ike hostages in a never-ending drama, hun- dreds of prisoners have found themselves thrust into a more-than-two-year labour dispute at the Toronto South Detention Centre. As a result, those imprisoned within the super- jail have experienced miserable living conditions that have drawn the ire of judges, criminal lawyers and hu- man rights groups. Most days in this superjail feature a 24-hour-a-day lockdown in a 3.6-by-2.4-metre cell, with two inmates to a cell. In February 2016, the security manager at the jail, Michael MacLennan, told a court this was "much like solitary confinement." While the provincial government and the Ontario Public Service Employees Union, which represents jail guards, argue about the number of staff needed to run the jail, the facility can be locked down simply because one jail guard calls in sick. Inmates are beginning to feel like collateral damage in a prolonged and bitter la- bour conf lict. The untenable labour situation must end soon, be- fore any more harm is done to people confined in that facility, and to the administration of justice in this province. Let's share a glimpse of what lockdown is like for the prisoner. Try to imagine being locked in your bath- room with a stranger for days on end while meals are shoved through a hatch at the bottom of the door. Try- ing to prepare a defence? No access to counsel or Legal Aid. Necessities of life? No family visits, no showers, no change of clothes, no exercise. Privacy? All bodily functions are performed in the open, just steps away from your cellmate. You might say this is all anecdotal reporting, so how do we know any of this is accurate? First, judges hear complaints about lockdown conditions on a daily basis. We are told that guards refer to the jail derisively as a "plea factory" — a reference to the belief that in- mates take the first opportunity to plead guilty to get out of the superjail. Also telling is the corroborating evidence from another maximum-security superjail, the Maplehurst Correctional Complex in Milton, Ont. In a civil claim for a breach of Charter rights resulting from lockdowns occurring at the facility, the Ontario Superior Court awarded damages to two inmates in May 2016. In Ogiamien v. Ontario, the court held that con- ditions of detention during lockdowns are much like solitary confinement. "The inmate is holed up with another inmate not of his choosing," said the decision. The court also found confinement for 24 hours a day, caused by lack of jail staff, was degrading and an outrage to standards of de- cency thus violating s. 12 (cruel and unusual treatment) of the Charter. What is noteworthy about the conditions at Maple- hurst is that they are virtually identical to the condi- tions being reported from Toronto South. To be clear, I do not speak for the Ontario Court of Justice and I take no sides in the labour dispute at the Toronto South; I just happen to be in a unique position to shine some light on what seems to be interminable suffering. In Boone v. Ontario, Justice Robert Blair comment- ed: "There has been a growing recognition over the last half-century that solitary confinement is a very severe form of incarceration, and one that has a lasting psy- chological impact on prisoners." And, as Justice Douglas Gray pointed out in Ogia- mien, "being forced to co-exist in lockdown with a stranger 24 hours a day may be worse than solitary." Think of the possibilities. You could be holed up with the kindest, most gentle cellmate or someone who is seriously aggressive in any number of ways. That may help to explain the steady stream of Toronto South resi- dents to our plea courts who are prepared to accept any sentence just to get out of that building. Most inmates at Toronto South are on remand as they await the outcome of the charges against them and most days the jail is locked down, by all accounts. Not that anyone deserves this kind of inhu- mane treatment, but it is hard to overstate the harmful effect of placing presumptively innocent people in such horrific conditions. In a recent United Nations report on revisions to the United Nations Standard Minimum Rules for the Treatment of Prisoners (to which Canada is a signatory, 1975), the authors concluded that "fifteen consecutive days in solitary amounts to torture." Does this treatment of prisoners at Toronto South somehow become acceptable if there are a few days of lockdown respite in any 15-day period, thereby just falling short of the UN definition of torture? Daniel Brown, defence counsel and Criminal Law- yers' Association director, made some comments on this matter in the Toronto Star in May. Brown pointed out that conditions like this are regularly condemned by Canada elsewhere, but when practised here, they are met with complacency as if they were "an acceptable form of correctional cost control." In Ogiamien, the court heard from a former inmate who testified about being deprived of access to counsel, family visits and showers while locked down, and was told by guards, "If you don't like it, riot." Meanwhile, back at Toronto South, administrators have regularly informed the media that conditions are at a "crisis" level. Nothing has changed to date. Surely, it is time for decisive action, such as an in- quiry or task force with a brief reporting mandate. As a community, we need to end this lockdown crisis now and restore reason and fairness to what should be a safe, secure and humane environment. There has already been so much study of the problematic use of solitary in Ontario. Ending this abusive practice in pre- trial detention centres should be the highest priority. u Peter Harris is a judge of the Ontario Court of Justice. LT u SPEAKER'S CORNER That's History Philip Girard

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