CL Talk

[00:00:09] Tim Wilbur: Welcome to CL Talk, the leading podcast for the legal profession across Canada, brought to you by Canadian Lawyer magazine.

[00:00:26] Tim Wilbur: I’m Tim Wilbur. Managing editor of Canadian Lawyer.

[00:00:29] Tim Wilbur: When someone is taken into custody in Canada, the state takes on legal responsibility for their safety, health, and dignity.

[00:00:37] Tim Wilbur: That duty doesn’t go away because someone’s been charged with or convicted of a crime.

[00:00:42] Tim Wilbur: Today, we’re looking at what happens when that duty is breached and what the law can do about it.

[00:00:47] Tim Wilbur: My guest is Joel Dick, a partner at Howie, Sacks & Henry LLP in Toronto and a civil litigation specialist.

[00:00:54] Tim Wilbur: He represents people harmed while in state care and is one of Canada’s leading voices on correctional negligence.

[00:01:01] Tim Wilbur: Joel, welcome to CL Talk.

[00:01:03] Joel Dick: Happy to be here, Tim. Really excited to have this conversation.

[00:01:07] Tim Wilbur: So first off, for our listeners who may not be familiar, what is correctional negligence and how is it different from traditional personal injury litigation?

[00:01:16] Joel Dick: So in one level, it’s not different at all. These are very old-fashioned standard torts.

[00:01:21] Joel Dick: We deal with standard of care and negligence and all of the topics that any personal injury lawyer would be very familiar with.

[00:01:29] Joel Dick: The differences really arise because of the situation in which the negligence arises.

[00:01:34] Joel Dick: So we’re dealing with correctional authorities that, you know, have care and control of people’s entire lives when you’re incarcerated, from when you eat to when you sleep to access to medical care.

[00:01:46] Joel Dick: And so the uniqueness of these claims really is that the defendant controls all of the evidence.

[00:01:53] Joel Dick: And when I say all of the evidence, the medical record, the Closed-circuit TV footage that may show an incident, you know, down to when my client can get to a medical appointment or not.

[00:02:05] Joel Dick: There’s real uniqueness in the environment in which these claims arise, uniqueness in terms of the fact that the evidence is all controlled by the defendant.

[00:02:16] Joel Dick: And knowing where to go and look for that evidence and what to ask for becomes very, very important in trying to piece these cases back together.

[00:02:26] Tim Wilbur: And so that’s a great overview of what makes these cases unique.

[00:02:29] Tim Wilbur: And let’s step back and can you tell me about what’s been such an important issue in Canada over the past decade?

[00:02:34] Joel Dick: You know, it is an issue that I think we’re seeing more and more, which is claims that arise for people who’ve been incarcerated.

[00:02:42] Joel Dick: And to step back, let’s talk a little bit about what these claims are.

[00:02:46] Joel Dick: And so the state, the correctional authority, has the duty to act reasonably.

[00:02:53] Joel Dick: And so that doesn’t mean they can prevent every bad thing that happens in a jail.

[00:02:57] Joel Dick: Unfortunately, jails and penitentiaries, accidents will happen.

[00:03:01] Joel Dick: Certain assaults happen from time to time.

[00:03:04] Joel Dick: And the courts have been clear, the correctional authority has to act reasonably.

[00:03:08] Joel Dick: That doesn’t mean they can prevent every single assault, that, you know, every accident, every trip and fall can be prevented, but they do have to be reasonable.

[00:03:17] Joel Dick: So where they have knowledge that people are incompatible, you know, for example, members of rival gangs, they shouldn’t be put together where someone’s safety is at risk.

[00:03:27] Joel Dick: The jail has to act reasonably. So we see a number of kinds of claims.

[00:03:31] Joel Dick: We see claims that arise from assaults.

[00:03:33] Joel Dick: We see claims that arise because healthcare hasn’t been provided in a timely manner, or people’s requests for healthcare have been ignored.

[00:03:41] Joel Dick: And I know we’ll probably talk about that more later.

[00:03:44] Joel Dick: And then we see some very, what I would call, occupier’s liability type cases where someone’s been injured by jail furniture is obviously very specially designed.

[00:03:55] Joel Dick: It’s bolted to the floor so it can’t be moved or used, but when that’s not done properly, sometimes people get hurt.

[00:04:01] Joel Dick: Those are kind of the claims across the board that we see.

[00:04:07] Joel Dick: Why there’s been more of a focus on this, you know, I live in East York, and so we talk about Agnes Macphail from the ’20s and the ’30s, Canada’s first woman who was an MP, and she was talking about this issue in the ’20s and ’30s, how we treat incarcerated people.

[00:04:22] Joel Dick: It was one of the things that, you know, she went to Ottawa to work on.

[00:04:26] Joel Dick: And it’s not a new issue, but with the rise of class actions, the work of some other lawyers, particularly I think of Kevin Egan in London who’s done incredible work around the Elgin Middlesex Detention Centre, more and more we’re seeing these stories come out.

[00:04:43] Joel Dick: I think it also has to do with an overcrowding that’s in our system right now.

[00:04:48] Joel Dick: And so it’s in the news, people are seeing the consequences when the jail authorities don’t act reasonably, there are very serious consequences.

[00:04:57] Joel Dick: People die in custody. People are seriously injured in custody.

[00:05:01] Joel Dick: And, you know, we’re trying to respond to that as best we can with all of the tools that lawyers have.

[00:05:06] Joel Dick: So you’ll see class actions.

[00:05:08] Joel Dick: I handle primarily individual claims on behalf of people who’ve been injured.

[00:05:14] Joel Dick: There are lots of lawyers who are doing other work, various parts of the system, to try to address the conditions and make sure that we are acting in a way that we can be proud of as a society.

[00:05:26] Tim Wilbur: And how are correctional negligence cases investigated and built?

[00:05:30] Tim Wilbur: Talk about the evidentiary challenges that make these cases unique for you as compared to maybe other personal injury cases.

[00:05:36] Joel Dick: Yeah, so we touched on that. These cases are unique.

[00:05:39] Joel Dick: I’ll often get a call, the individual may still be incarcerated, and they may still be at the very institution that is about to be the target of the lawsuit.

[00:05:49] Joel Dick: And so that can create some hesitancy on the part of the client where they need some reassurance that, you know, on a call with a lawyer, they can speak freely.

[00:05:56] Joel Dick: Freely, that, you know, there won’t be any retaliation.

[00:05:59] Joel Dick: But also, unlike most personal injury cases, I get their version to start with.

[00:06:03] Joel Dick: Unlike most personal injury cases, I’m now dependent on getting records from who will eventually be the defendant.

[00:06:11] Joel Dick: There are no other sources. I can’t go and talk to witnesses.

[00:06:15] Joel Dick: One of the things that comes up in this area is something we call the con code.

[00:06:20] Joel Dick: But there are certain people who won’t come forward with evidence of an assault that’s been witnessed or other things where even for me to get statements, try to make arrangements to speak to other inmates who may have witnessed it could put my client in danger.

[00:06:36] Joel Dick: There are ethical issues there.

[00:06:38] Joel Dick: And so we really are reliant— sometimes my client will know a key witness by a nickname or a name that they go by but won’t know their identity.

[00:06:47] Joel Dick: They can be very hard to track down.

[00:06:50] Joel Dick: And it really starts by getting the records in from the correctional authority.

[00:06:55] Joel Dick: But it’s important to do this work and to know what you’re asking for because the records are not all kept in one place.

[00:07:02] Joel Dick: The medical file, the day-to-day correctional file, the lists of temporary absences that can track exactly where someone was at what time are all kept in different places.

[00:07:14] Joel Dick: You have to know what you’re asking for.

[00:07:16] Joel Dick: In Ontario, for example, any of the footage from the security cameras, the CCTV footage inside the facilities, is normally kept only for a very limited time, less than 2 months.

[00:07:28] Joel Dick: And so if you’re not consulted very quickly and you don’t make the request for preservation very quickly, that evidence can be lost.

[00:07:36] Joel Dick: It’s a real challenge, but, you know, it’s also one that can be overcome as long as you’re very careful in what you ask for.

[00:07:42] Joel Dick: And, thankfully, for the most part, our correctional authorities take their obligations to keep records very seriously.

[00:07:49] Joel Dick: It’s just a matter of knowing what to ask for and getting all of the records in.

[00:07:54] Tim Wilbur: And these are individual cases, but they highlight, I would imagine, systemic failures as well.

[00:07:59] Tim Wilbur: So are they mainly about compensation or are they about changing the system?

[00:08:04] Joel Dick: So where I start is every, you know, I work mostly for individuals and individual civil claims are always about compensation and damages.

[00:08:12] Joel Dick: We have one individual client who suffered, you know, a specific injury, be it a deprivation of rights, often and too often someone who’s died in custody and family members who have FLA claims.

[00:08:24] Joel Dick: And those cases are about compensation. There’s no way around that. There’s no way to sugarcoat that.

[00:08:30] Joel Dick: That’s what the cases are about, a unique case, an appropriate vindication of the rights and compensation.

[00:08:35] Joel Dick: But I think almost all of my clients would tell you that they also have a hope that these cases, while individual, will have a role to play in some systemic change in making jails safer for people who are still incarcerated.

[00:08:53] Joel Dick: I certainly believe that by highlighting individual cases, there is that secondary effect.

[00:08:59] Joel Dick: And there are other tools, you know, coroner’s inquests are a really important tool that I often get involved in as well as part of my involvement in individual civil cases that can take a step back, take a more systemic, holistic view, and really talk about making some of these changes.

[00:09:17] Joel Dick: So the answer to your question is, is a little bit of both, but I always say that an individual case is about that case and the damages in that case.

[00:09:26] Joel Dick: The secondary effect is really, you know, what we hope for.

[00:09:29] Joel Dick: And I think there are some more direct tools, coroner’s inquests come to mind, for dealing with these things on a more systemic basis.

[00:09:37] Tim Wilbur: So let’s talk more about the coroner’s inquests.

[00:09:39] Tim Wilbur: Tell me a bit about your involvement and how those have, you know, impacted the system and hopefully improved things.

[00:09:47] Joel Dick: Yeah, so we’ve seen a lot of conversation recently about overcrowding, particularly in Ontario jails.

[00:09:56] Joel Dick: On any given day, we’re at about 130% of capacity.

[00:10:00] Joel Dick: You can look at Justice Molloy very recently reduced a criminal sentence because of the conditions in jail and had some very strong comments.

[00:10:08] Joel Dick: And so when we have that kind of systemic issue, it’s helpful to be able to step back.

[00:10:14] Joel Dick: I find the coroner’s inquests that I’ve been involved in have been incredibly helpful on a number of levels.

[00:10:21] Joel Dick: It’s often the very first time that a family gets the full picture of what happened to their loved one and led to their death.

[00:10:31] Joel Dick: And they’ll have very partial information. And that’s, you know, no one’s fault.

[00:10:34] Joel Dick: It’s the nature of how these things are done.

[00:10:36] Joel Dick: But without a coroner’s inquest, families would never really have a good picture of the last days, hours of a loved one’s life.

[00:10:43] Joel Dick: And that can be so important to family members.

[00:10:47] Joel Dick: It really gives a sense of closure, even where there is not a civil action that arises.

[00:10:51] Joel Dick: Just knowing what happened is incredibly important.

[00:10:56] Joel Dick: It also is a chance, and the coroner does a very good job of this, they’ll often group similar deaths together.

[00:11:03] Joel Dick: And it’s a chance to look at some systemic issues that wouldn’t arise in individual lawsuits.

[00:11:09] Joel Dick: And so I think of, you know, my mind goes back to an inquest I was involved in because of a series of overdose-related deaths in the facilities.

[00:11:18] Joel Dick: And some issues came up that wouldn’t necessarily have come up in any other way.

[00:11:22] Joel Dick: But one of the witnesses at the inquest shared, one of the correctional officers, that while they were issued PPE, personal protective equipment, it often wasn’t renewed, it wasn’t replenished.

[00:11:34] Joel Dick: And so many of the guards didn’t have gloves, didn’t have a CPR filter mask on them, other ways to safely administer CPR.

[00:11:44] Joel Dick: Now, that wasn’t an issue in, you know, the specific case I was dealing with.

[00:11:48] Joel Dick: It would have never come out in civil litigation, but the jury was able to make recommendations to allow the jail to deal with what might seem like a really small thing but could save a life, and making sure that every correctional officer has a filter mask.

[00:12:05] Joel Dick: Similarly, Narcan has become a big issue.

[00:12:08] Joel Dick: There was a time when Narcan wasn’t available at all in o

ur jails, and then when it was originally available, it was often locked in the nurse’s cart or in the medical office and not available after hours.

[00:12:19] Joel Dick: Well, that’s not how overdoses work, right?

[00:12:21] Joel Dick: And so coroner’s inquests have been able to help highlight these problems and push the system and allow the system to make changes that benefit everyone.

[00:12:31] Joel Dick: And so there’s a real value in the coroner’s inquests.

[00:12:36] Joel Dick: You know, I know that Ontario is considering moving away from individual inquests to a more sort of an annual report from the coroner’s office.

[00:12:46] Joel Dick: I think that’s a really mistaken approach.

[00:12:49] Joel Dick: One, I think families deserve the closure that an inquest offers.

[00:12:53] Joel Dick: But two, and you know, I’m not the first to say this, but when someone’s in jail, their entire life is controlled, you know, down to when they eat, when they have access to a shower, when they’re able to access medical care by the government.

[00:13:11] Joel Dick: And so I think there is a real obligation on us to look at every single death, whatever the cause, and make sure that we learn any of the lessons that are available.

[00:13:23] Joel Dick: And the government has really pointed to the current backlog of cases as justification for doing away with the mandatory nature of the inquests.

[00:13:33] Joel Dick: My suggestion would be simply, if that’s the problem, let’s give the coroner’s office the resources that it needs to deal with the backlog.

[00:13:43] Joel Dick: Not— let’s not look away from these deaths.

[00:13:45] Joel Dick: We all have an obligation when we incarcerate people as a society to make sure we’re doing everything we can.

[00:13:52] Joel Dick: If the issue is a backlog, then let’s deal with that issue.

[00:13:57] Joel Dick: But the benefit will be good coroner’s inquests lead to saved lives and will lead to the need for less inquests in the future.

[00:14:05] Tim Wilbur: So talking about the future, you’ve worked on these individual cases as well as looking at the issues on a systemic level through the inquests.

[00:14:13] Tim Wilbur: From your opinion, what reforms would make the biggest difference inside correctional institutions?

[00:14:18] Joel Dick: So it’s very clear to me that staffing is a major problem, particularly in Ontario, across federal institutions as well.

[00:14:29] Joel Dick: The CBC has done really good reporting on this.

[00:14:33] Joel Dick: Their analysis showed that medical positions, so dealing with medical issues, are now at 50% of what they were pre-pandemic in 2019.

[00:14:43] Joel Dick: So if the staffing— well, our population continues to grow, a push to much more restrictive bail.

[00:14:50] Joel Dick: Most people in the custody of the province right now have not yet had their trial.

[00:14:55] Joel Dick: They are presumed to be innocent. So most people who are incarcerated.

[00:14:59] Joel Dick: And as I said, our jails are at about 130% capacity on most days, 3 people in a cell designed for 2 sleeping on the floor.

[00:15:08] Joel Dick: And what has happened in concert with that is staffing has been reduced.

[00:15:13] Joel Dick: We just can’t fill all of the positions.

[00:15:15] Joel Dick: And so the CBC reported, you know, a 50% reduction in healthcare staff.

[00:15:19] Joel Dick: We also see staffing issues with correctional officers.

[00:15:23] Joel Dick: And I think the number one reform would be making sure that our institutions are properly staffed. [00:15:28] Joel Dick: That would deal with the unnecessary lockdowns.

[00:15:31] Joel Dick: That would deal with a lot of, I think, the communication issues where you see healthcare being missed simply because a message hasn’t been properly passed from one department to another.

[00:15:43] Joel Dick: And I’ll give you an example of that. I had a case.

[00:15:47] Joel Dick: My client suffered a very bad fracture of his ankle while incarcerated.

[00:15:52] Joel Dick: He was appropriately taken immediately to the emergency room.

[00:15:55] Joel Dick: The emergency room doctor said, we don’t have a surgeon available tonight, but he clearly needs surgery.

[00:16:02] Joel Dick: Bring him back tomorrow, we’ll do the surgery.

[00:16:05] Joel Dick: However, the wires got crossed, and absolutely not through malice, but simply because of these staffing issues.

[00:16:11] Joel Dick: That message wasn’t passed along from healthcare, and my client ended up being transferred about 2 and a half hours in the back of a transport with a broken ankle, with no care for that.

[00:16:23] Joel Dick: And the new institution wasn’t told that a physician had recommended surgery.

[00:16:29] Joel Dick: The surgery ended up being delayed almost 2 weeks by the time the messages got properly passed.

[00:16:35] Joel Dick: And so not only did the individual endure the pain of a long transport, and you can picture what those transport vehicles are like, where you’re in a very small confined space for 2 hours with a broken ankle, he also didn’t get his surgery.

[00:16:50] Joel Dick: And that brings me back to— you said, what changes do we have to make? [00:16:52] Joel Dick: We have to make sure that our facilities are properly staffed, that healthcare is properly staffed, which allows people the time not just to do their job, but to document and communicate with each other.

[00:17:05] Joel Dick: So much of my work arises where there’s been a very simple failure of communication.

[00:17:11] Joel Dick: Tim, we mentioned it earlier.

[00:17:12] Joel Dick: I mentioned, you know, I used the word incompatible, which is what we use in this area.

[00:17:17] Joel Dick: But what that means is you find yourself in a cell or on a range, with someone who is known to want to harm you for any number of reasons, or a group of people.

[00:17:27] Joel Dick: Often people are misplaced not because the security threat hasn’t been completed— it has been completed, it’s documented, there’s a list of people that shouldn’t be in the same area— but because of communication failures, because of staffing issues, someone ends up there and they’re badly assaulted, they’re attacked because of that.

[00:17:47] Joel Dick: And so when you talk about changes, number one, staffing is a huge issue.

[00:17:52] Joel Dick: Number two, for me, we have seen programs diminished over the year, from things as simple as prison libraries that give people something to read, to educational programming, other programming that helps the jail function, not just as a warehouse of people.

[00:18:11] Joel Dick: That’s been diminished over the years, and we really do need to bring that back.

[00:18:15] Joel Dick: And then number 3, physically, we just cannot continue to run a system that is overcapacity.

[00:18:23] Joel Dick: And so, you know, I think that we have moved to a very restrictive, where a lot of people are doing a lot of time before their actual trial, before they’ve been convicted of anything.

[00:18:34] Joel Dick: We need to deal with that issue. We need to deal with it.

[00:18:37] Tim Wilbur: So that’s a really good overview, Joel, of this area of practice.

[00:18:41] Tim Wilbur: For our listeners who may be considering, you know, working in this area, why should lawyers care about this and what should they keep in mind if it touches on their practice?

[00:18:50] Joel Dick: You know, it’s an area that I think we should all care about, not necessarily as lawyers.

[00:18:54] Joel Dick: I know people have different specialties, but as citizens.

[00:18:57] Joel Dick: You know, Nelson Mandela said, you don’t really know a nation until you’ve been inside its jails.

[00:19:02] Joel Dick: And I think there’s real truth to that.

[00:19:04] Joel Dick: We should all care how people are being treated who are incarcerated.

[00:19:08] Joel Dick: And so, you know, if somebody is interested in this area, there is there’s more than enough work to go around.

[00:19:13] Joel Dick: I really would welcome more people doing it, and I’m always happy to share any insight I have.

[00:19:20] Joel Dick: The things to be aware of.

[00:19:22] Joel Dick: Cases, and this will come as no surprise to civil lawyers anywhere, but cases against the government tend to move slowly at the best of times for a whole host of very good reasons, be that the provincial government or the federal government.

[00:19:35] Joel Dick: These cases do move slowly, and you really have to work as a plaintiff’s lawyer to keep them on track.

[00:19:41] Joel Dick: It can be hard to get the documents at the outset.

[00:19:45] Joel Dick: It can be hard to arrange for examinations for discovery or medical examinations.

[00:19:50] Joel Dick: All of those things take more time than you’re used to, so you have to be ready for that. Absolutely.

[00:19:57] Joel Dick: Also, you know, I think very sensitive to the reality of our clients.

[00:20:02] Joel Dick: I touched on it earlier, but there really is a con code that is important.

[00:20:08] Joel Dick: You have to learn how to communicate with clients who are incarcerated.

[00:20:12] Joel Dick: There are things that they will and won’t be able to share openly depending on where they are in their incarceration and whether they’ve been moved and what the issue is you’re dealing with.

[00:20:22] Joel Dick: You need real sensitivity to that.

[00:20:24] Joel Dick: You have to figure out how to have those communications and you have to figure out, you know, what people won’t tell you. [00:20:30] Joel Dick: And then lastly, evidence is always an issue here in this kind of work, right?

[00:20:35] Joel Dick: We really do rely heavily, heavily on the documents. It’s much harder to find eyewitnesses.

[00:20:42] Joel Dick: To get anyone else, you really do have to rely on your client and on the documents to build your case.

[00:20:49] Tim Wilbur: Well, Joel, thanks for this. There’s a lot here I think that will stay with listeners.

[00:20:53] Tim Wilbur: If you want to learn more about the work Joel and his colleagues do, you can find Howie Sacks and Henry LLP at hshlawyers.com.

[00:21:02] Tim Wilbur: I’m Tim Wilbur. Thank you for listening to CL Talk, and thank you, Joel, for joining us today.

[00:21:06] Joel Dick: Thank you so much for having me, Tim.

[00:21:09] Tim Wilbur: Thank you for tuning in to CL Talk.

[00:21:12] Tim Wilbur: You can listen to the latest episodes on Apple, Spotify, Amazon, and all major listening channels.

00:21:19] Tim Wilbur: Just search for CL Talk.