Law Times

Law Times • JuLy 10, 2017 Page 13 www.lawtimesnews.com Falls well outside scope of criminal law Prison law focuses on issues related to incarceration BY MICHAEL MCKIERNAN For Law Times A decade out from his 1999 call to the bar, McKenzie Lake Law- yers LLP partner Kev- in Egan had barely even heard of prison law. But that all changed when a friend of the family of Randy Drysdale walked through the London, Ont. firm's front doors asking to see a lawyer and the employment and personal inju- ry-focused Egan happened to be in the office. Drysdale died in 2009 inside the walls of the imposing Elgin- Middlesex Detention Centre in what the provincial officials had described as a slip and fall in the shower. "I ended up talking with the family and then agreed to par- ticipate in the inquest on their behalf," Egan says. After hearing evidence that Drysdale was beaten uncon- scious by at least two fellow in- mates and then dragged to the bathroom, a coroner's inquest jury concluded that his death was a homicide, and it made a series of recommendations to improve safety, supervision and medical care at the jail. "That process really opened my eyes to just how serious the systemic problems were at the EMDC. It was shocking to hear about the inmates' code: where they get beaten up and don't talk about it, the lack of supervision and the overcrowding. I saw it as part of my mandate for that family to make sure nobody else would have to go through the same thing," Egan says. "Unfortunately, I wasn't suc- cessful, because we've had a cou- ple more inquests since then and a few more to come. They keep taking bodies out of the EMDC, and despite what they may say, not much has been done to im- prove the situation there." In a statement to Law Times, Yanni Dagonas, a spokesman for Ontario's Ministry of Com- munity Safety and Correctional Services, said the province was "committed to safeguarding human rights and ensuring the safety of individuals placed in the correctional system" and had made a number of changes at EMDC specifically. Those include around 350 new security cameras, 86 addi- tional correctional officers and the installation of a new control module that improves sight- lines. Since 2014, EMDC has also had its own volunteer commu- nity advisory board to report on ministry initiatives at the insti- tution, Dagonas said. Egan says the inquest jury verdict in 2011 generated some local media attention, prompt- ing more people to call him with their own horror stories about life inside EMDC. "And it just snowballed from there," he says. Last summer, a class action spearheaded by Egan was cer- tified by an Ontario Superior Court judge. The claim, which has not been proven in court, was brought on behalf of all inmates held in the jail between 2010 and mid-2013 and seeks damag- es from the province for alleged breaches of its duty of care and Charter violations. Now, when they hit Egan's voicemail, callers from the local prison are redirected to a dedi- cated telephone line "because of the high volume of calls" he re- ceives, he says. Despite the focus of his prac- tice, Egan spends surprisingly little time inside the EMDC, visiting on average about once a month. "A lot happens over the phone, because when you do go, you might as well kiss the rest of your day goodbye. The logistics are difficult, and it can take a very long time to get to see someone," he says. Ottawa lawyer Paul Champ says he's not surprised to hear that the f loodgates have opened for Egan. His own human rights liti- gation practice has taken on a distinctly penal hue since 2013, when he settled a human rights complaint against the provin- cial ministry of correctional services brought on behalf of a woman placed in segregation for more than six months at the Ottawa-Carleton Detention Centre. As part of the agreement, the ministry agreed to change its policy so that solitary confine- ment is used only as a last resort for inmates with mental health disabilities. "As a result of that case, people started approaching us," Champ says. "There's no question it's a very underserved population. It's very difficult for them to get hold of lawyers, and even rarer to find one that will be willing to take on their case." He says prisoners tend to fall between the cracks of the jus- tice system when they run into problems while incarcerated. While many civil lawyers are inclined to dismiss prisoners as the domain of criminal lawyers, Champ says many of their legal issues, which include access to medication, disciplinary pro- ceedings and alleged human rights violations, in fact fall well outside the scope of criminal law. Champ says he has noticed a shift in public opinion toward the treatment of prisoners even in the relatively short period he has been involved in the area, catalyzed by cases such as that of Ashley Smith, a teenager who died inside Kitchener, Ont.'s Grand Valley Institution for Women after five years in vari- ous jails. Video played at her inquest showed Smith being duct-taped to her seat during a transfer, while on another occasion, she was shown surrounded by of- ficers in full riot gear while a nurse injected her with a tran- quilizer. "It can be difficult to get the public interested when they are sort of turned off emotion- ally to the concerns of inmates," Champ says. "It takes time, but I think we've definitely reached a criti- cal mass, and we're seeing gov- ernments take steps to address the problem." Lisa Kerr, an assistant pro- fessor on the Queen's University Faculty of Law, teaches a prison law course there, and she says a major turning point came with the 2015 federal election, which ended Prime Minister Stephen Harper's nine-year term in power. His original election victory in 2006 coincided with the start of her legal career. "So I grew up in this era where every time the govern- ment turned its mind to prison law, it was to makes things tougher, and in my opinion, worse. They added mandatory minimums, lowered inmates' wages and stripped rehabilita- tion programs," she says. "In the last two years, this government has signalled a new tone and a different approach, although they're only now be- ginning to put their money where their mouth is." In June, Justin Trudeau's fed- eral government introduced a bill that would for the first time place a legislated limit on the amount of time a prisoner can spend in segregation. The current law requires the correctional officials to remove prisoners from isolation as early as possible, but the new law, if passed, would set a hard limit of 15 days. The new law would also ban the practice altogether for in- mates with serious mental dis- orders. And in Ontario, Commu- nity Safety and Correctional Services Minister Marie-France Lalonde has promised to ad- dress the recommendations of an independent prisons inves- tigator who found solitary con- finement was overused in the province's jails. Kerr had already completed her articles at a Bay Street firm before discovering prison law while studying for an LLM in New York. On her return to Canada, she took a position at a B.C. le- gal aid office devoted to serving inmates at correctional facili- ties. She is now doing her best to develop the next generation of prison lawyers by increasing law students' exposure to the area. Queen's runs a popular legal clinic that allows students to collect academic credits while representing inmates in one of Kingston's several facilities. Those lucky enough to make it on to the oversubscribed course get plenty of hands-on experi- ence acting, with supervision, for clients in judicial reviews, disciplinary hearings and stra- tegic litigation. "Our graduates leave with way more litigation skills and confidence than students who don't participate," Kerr says. "Even those who come in with no intention of practising prison law end up very passion- ate about the area." Once they've received their call, Champ says the growing band of lawyers at the prison law bar will welcome them with open arms. "There are so many issues that remain unlitigated and that are crying out for legal at- tention, so I'm thankful that our numbers are growing," he says. 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The logistics are difficult, and it can take a very long time to get to see someone. Kevin Egan

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