‘You don’t really know a nation until you’ve been inside its jails’

When a person is taken into custody in Canada, the state assumes legal responsibility for them. That includes more obvious aspects of care, such as health and safety, and less tangible ones, like their dignity. That obligation isn’t contingent on innocence; it holds even if someone is convicted of a crime. But what happens when correctional authorities breach that duty?

In the latest episode of CL Talk, Joel Dick, a partner at Howie, Sacks & Henry LLP in Toronto, makes the case that failure to uphold that duty has widespread consequences, and that legal response is both possible and necessary.

An evidentiary challenge unlike any other

Correctional negligence is a unique beast within personal injury law. At their foundation these cases rely on standard tort principles, but Dick says the evidentiary environment sets them apart from nearly any other civil matter.

For starters, every piece of relevant evidence is controlled by the defendant. From medical records and closed-circuit television footage to documentation of where an incarcerated person was at any given moment, it all belongs to the correctional authority that will eventually be named in the claim. There’s also no central repository as records are distributed across departments.

Then there’s the running clock to contend with. In Ontario, security footage inside correctional facilities is typically retained for fewer than two months. A failure on the part of the plaintiff-side lawyer to act quickly can mean losing critical evidence entirely.

“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,” Dick says, adding that documentary evidence is essentially load-bearing in these cases due to the “con code.”

Inmates who witness an assault, for example, rarely come forward and even attempting to reach them could put the client at greater risk. Complicating matters further is the fact that clients often remain at the institution being sued, creating hesitancy and limiting what they share openly.

Staffing, overcrowding, and the gap between policy and practice

Dick describes a system under significant strain, which compounds the other challenges further. Ontario jails are running at approximately 130 per cent of capacity on any given day and CBC reporting indicates that healthcare staffing inside correctional facilities has been reduced to roughly 50 per cent of its 2019 pre-pandemic level, even as the incarcerated population continues to grow.

Dick once had an incarcerated client with a diagnosed ankle fracture who was told by an emergency physician that surgery would be performed the following day. Due to a communication breakdown between departments, that message was never passed along. The client was transferred two and a half hours in a transport vehicle with a broken ankle and no adequate care. The surgery was ultimately delayed nearly two weeks.

In other instances, incompatible inmates are housed together despite documentation that they should be kept separate. It’s another example of a gap between policy and practice, hinging on lack of discourse between relevant staff.

“So much of my work arises where there has been a very simple failure of communication,” Dick says.

The critical role of coroner’s inquests

Dick has been involved in numerous coroner’s inquests and considers them an essential tool for accountability. He describes one inquest, held after a series of overdose-related deaths in a facility, where testimony from a correctional officer revealed that guards were not consistently supplied with personal protective equipment or CPR filter masks. That information would never have surfaced in a civil lawsuit.

The inquest also helped push for broader naloxone availability at hours when the nursing station was closed, a significant move. Seeing the positive change that can arise first-hand, Dick pushes back against a reported proposal in Ontario to replace mandatory individual inquests with an annual report from the coroner’s office.

A well-run inquest can lead to more lives saved down the road, Dick argues, ultimately reducing the need for future inquests. They should be preserved.

“If the issue is a backlog, let’s deal with that issue,” he says. “Let’s not look away from these deaths.”

Coroner’s inquests also provide closure for families. They are often the first time that loved ones receive a full account of what happened and that’s important in its own right, whether or not a civil action follows.

“When someone’s in jail, their entire life is controlled by the government,” Dick says. “There’s 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.”

More than enough work to go around

Nelson Mandela once said, “you don’t really know a nation until you've been inside its jails,” and for Dick, engagement with correctional negligence isn’t purely professional. It’s a matter of civic responsibility.

“There’s real truth there,” he says of Mandela’s observation.

The practice area is fraught with stumbling blocks. Cases against government defendants move slowly, and the plaintiff-side lawyer must actively keep them on track. Records are difficult to obtain at the outset and arranging examinations for discovery or independent medical assessments takes considerably longer than in standard civil matters. Client communication requires particular sensitivity, as incarcerated clients face real constraints on what they can share openly depending on where they are in their incarceration and what the issue involves.

None of that, Dick says, should discourage entry into this area.

“There’s more than enough work to go around,” he says. “I really would welcome more people doing it.”

Listen to the full conversation now.

This article was produced in partnership with Howie Sacks & Henry