Law Times

Law Times • sepTember 4, 2017 Page 7 www.lawtimesnews.com Confinement and detention under fire BY FATHIMA CADER E arlier this year, Howard Sapers, Ontario's independent adviser on corrections reform, reported that last year more than 1,300 people had spent 60 or more aggregate days in segregation in provincial correctional centres, where they were "confined to a six by nine foot cell for 22 or more hours a day, with little human interaction." He noted that the number of people sent to segrega- tion has grown over the last decade, even as the number of people in Ontario jails has decreased. Sapers also showed that people with mental health concerns and/ or those at risk of suicide spent approxi- mately 30 per cent more time in segrega- tion than others in segregation. Solitary confinement kills. Ashley Smith was 19 years old when she died in solitary in 2007 in Kitchener's Grand Val- ley Institution for Women. Diagnosed with learning disorders, Smith spent 1,047 days in solitary. Edward Snowshoe com- mitted suicide in 2010 in the maximum- security Edmonton Institution, after spending 162 consecutive days in segrega- tion. He was 25. Soleiman Faqiri died in solitary at age 30 last December in Lind- say's Central East Correctional Centre. The coroner's report, released last month, details how, suffering from schizophre- nia, his death was accompanied by pepper spray and 50 blunt-impact injuries. Notwithstanding law's reductionist impetus — as lawyers, we are taught that for the best cases, we need the best facts, meaning the worst, the most alarming, facts — the records of these young people's lives are also the stories of their battles for life; a life that their detentions refused them. Thanks to sustained out- cry, the horrors of solitary confinement have become an open secret in Canada, partic- ularly with regards to criminal "offenders." Faced with calls for a total ban on segregation, the fed- eral government has promised to impose a cap of 15 days on solitary confinement, to be phased in over the next two years. Recently, in Brown v. Canada, 2017 FC 710, Federal Court Justice Simon Fother- gill decided the judicial review application of Alvin John Brown and the End Im- migration Detention Network regarding Brown's five years of immigration deten- tion. The court noted that the Immigration Division of the Immigration and Refugee Board of Canada had rejected Brown's earlier objections to his prolonged deten- tion on the basis that Brown had "failed to comply with the conditions of his release and his detention therefore resulted from actions within his control." Yet Brown's immigration detention had been triggered when, living with health concerns that in- cluded addictions, Brown violated his bail conditions by "being uncooperative, using cocaine and living in a shelter." Brown reiterated for the court that his detention breached ss. 7, 9, 12 and 15 of the Charter. Among other is- sues, he noted that immigra- tion detention conditions are "'harsh and de facto punitive,' particularly where detainees are held in provincial jails (e.g., lockdowns, solitary con- finement, maximum-security constraints)." Supporting evidence from former detainees and their families included the account of Kyon Ferril, who had spent more than three years in immigration de- tention in the same facility where Faqiri would later die. Ferril described being the target of homophobic attacks by prisoners, guards and border agents, including once nearly being beaten to death. He was held in segregation at least three times, primar- ily out of a stated concern for his safety. He also described experiencing more than 1,000 lockdowns during his detention, which exacerbated his sense of isolation. EIDN also presented evidence from Aloxen Myers, who had been detained for 10 months at the Vanier Centre for Wom- en in Milton. Despite having no criminal record, Myers was subject to lockdowns and strip searches. Fothergill dismissed all of Brown and EIDN's Charter objections (notably, with- out addressing their s. 15 discrimination arguments), but he certified for appeal the question of whether or not the Char- ter imposes a requirement that immigra- tion detention cannot exceed a prescribed period of time, after which it is presump- tively unconstitutional, or a maximum period, after which release is mandatory. Courtroom fights against immigration detention persist. Just last month, in Scotland v. Can- ada, 2017 ONSC 4850, Justice Edward Morgan of the Ontario Superior Court heard the s. 7 Charter complaint of refugee complainant Ricardo Scotland. Scotland had been detained for 18 months over the past two years, and he was then being held in the maximum security Niagara Deten- tion Centre. "Why is he incarcerated? He has no criminal record," asked Morgan. When the Department of Justice answered that Scotland had once faced criminal charges that were later stayed, Morgan replied, "That means he's innocent. He's innocent until proven guilty. That's elementary." Finding his detention to be in violation of the Charter, the court ordered Scot- land's unconditional release. These legal fights have demanded deep knowledge of the judicial and legislative histories of both criminal and immigra- tion law. But however complex the legal is- sues are, the justice issues remain elemen- tary: In cells, in courts and in our every day, the demand resounds for an end to solitary confinement and to immigration detention. LT uFathima Cader practises human rights and labour law in Toronto. She is an ad- junct professor at the Faculty of Law at the University of Windsor. She can be reached at cader@mmwlaw.ca. A crisis of values over articling BY YAVAR HAMEED T alk of the articling crisis has become white noise. Unfortunately, we have now inter- nalized it: It has become a crisis of values within the profession. As the recent Law Society of Upper Canada Dialogue on Licensing has revealed, across the profession there is considerable consensus on the problems inherent in the lawyer li- censing process in Ontario, but there is a general lack of clarity on how to respond to these problems. One of the problems from which we suffer as a profession is a problem of institutional inertia. And it is only getting worse. The most critically minded, in- sightful and grounded critiques of the licensing pro- cess are embodied within the "new calls": the most disenfranchised, debt-burdened and financially vul- nerable segment of the profession. However, no sooner than licensees emerge from the depths of the bar ex- amination and a 10-month stint doing something re- lated to law (called articling) do they begin to struggle to assimilate within the hierarchy of legal professional- ism. The previous year is then relegated to the dustbin of bad memories and the cycle is set on repeat for a new cohort of lawyers in training. Perhaps we experience collective institutional am- nesia upon entry into the profession. The fact of our emergence through adverse circumstances ironically becomes conf lated with a sense that the experience was necessary and must necessarily be replicated for future generations. While there is comfort in the familiar, any cursory examination of the landscape of legal practice in Ontario today reveals that it is so rapidly shifting that the traditions of the licensing regime have become obsolete. Consider articling. Ten months doing research or real estate transactions or family law (or basically any- thing) is considered to do the trick for checking the box of practical experience. No two experiences are the same and no articling term is audited to assess standard features or requirements. The net result is that there are myriad possibilities of varying experiential outcomes that are treated in a similar fashion, but they may have no common features, subject matter treatment or law practice exposure. Articling is an antiquated institu- tion. Experiential learning, which is, in theory, the es- sence of articling, is already being embodied within the law schools. However, the uneasy decades-old truce between the LSUC and law schools suggests that law schools cultivate legal academics, while the law society merely regulates but does not train lawyers. The reality belies this institutional divide. A law student cannot be neatly separated from a li- censing candidate, nor is the former a completely dis- parate being from a lawyer. Experience is experience — wherever it can be gained. The quandary is that the experiential learning ground of articling lacks the ped- agogy, structural benefits and oversight offered during law school. The Lawyers' Practice Program, which was placed on the chopping block by the LSUC last fall prior to the completion of its pilot test, represents a modicum of compromise between standardized training and controlled experiential learning. To its credit, in Oc- tober 2016, the law society did not terminate the LPP; however, the fact that it was slated for termination is an indication of the short-sightedness of our regulatory body and the bottom-line financial motivations for its decision-making. To recall, 15 years ago, all licensees had in-class ses- sions and practical exercises in addition to articling. While the process was somewhat lacklustre (in contrast to the current dynamism of the LPP), it should be noted that in-class teaching was standard issue to all licensees across the board. Today, the mainstream licensing pathway has re- treated considerably from the model of more than a decade ago in conjunction with the proposed advent of a new "super" multiple-choice examination — the PPE. Whether the PPE — or Practice and Procedure Ex- amination — that was proposed by the LSUC last year to combine both the barristers and solicitors examinations would save even more money in low- er administration and marking fees than the battery of nine examinations administered in days of yore is thought-provoking, but it also misses the point. The danger is that we may have acquiesced to the fact that there needs to be a sifting process to separate the wheat from the chaff. But, as a profession, we need to care about how new lawyers are being prepared and how they will emerge to meet the growing challenges of legal illiteracy, access to justice and geographic and social disparity in legal services. The answer to creating a more robust, socially re- sponsive, relevant and experientially grounded li- censing process means first we have to care about the profession. That is, lawyers need to actively challenge, advocate and help shape better standards for licensing while calling on the LSUC to explicitly take a role in lawyer training, not simply regulation of professional standards. But getting a better training system on its feet, such as an expanded and standardized single LPP pathway, for example, will cost money. Are LSUC members prepared to accept a modest fee levy to help fund this training? Have we even queried whether the law society itself could mobilize to raise the funds through other budgetary means? Or should we stick with the current LSUC model of tying the burden of learning to the licensing candidates themselves by massive increments in licensing fees? These quandaries appear to reveal a crisis in mea- suring the economic value of training. However, the LSUC's reticence toward lawyer training does not ex- ist in a bubble; it is ref lective of our collective profes- sional failure to own and to actively participate in the development of the future of our profession. It is in fact a crisis of our professional values. The decision of how to address it is yours. LT uYavar Hameed is a human rights lawyer based in Ottawa. u SPEAKER'S CORNER COMMENT Law Rebooted Fathima Cader

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