. . . . .
Stark Raven News
Conditions in an Ottawa jail are continuing to come under fire.
Susan Mulligan is a lawyer for a man being held at the jail. At his trial she wants to judge to look at the conditions at the jail. She is arguing that her client's Charter rights are being violated by poor conditions at the Ottawa-Carleton Regional Detention Centre.
The Defence Counsel Association of Ottawa wants to be included in the hearing on behalf of all prisoners.
The Ottawa Jail is overcrowded. Prisoners are being denied adequate access to lawyers, exercise, showers, clean clothing and in some cases beds. Three prisoners often share a cell with only 2 bunks, meaning one has to sleep on a matress on the floor.
Conditions are so bad that judges in some cases have credited prisoners with up to three days time served for each day they are incarcerated at the jail.
Corrections ministry, jail system go on trial
The stakes are much higher than the treatment of one accused murderer in a case in which lawyer Susan Mulligan makes the astonishing claim that the Ottawa-Carleton Detention Centre is run like an Iraqi prison and summons Ontario Corrections Minister Monte Kwinter to court.
In effect, jail management and the corrections ministry go on trial Monday, with Ms. Mulligan alleging cruel treatment of client Wahab Dadshani, who is charged with two counts of murder. The 100-member Defence Counsel Association of Ottawa has latched onto the case, applying for intervener status to fight for everyone who winds up in custody at the facility, the vast majority untried and presumed innocent under the law.
The case may bring to a head a litany of complaints about chronic overcrowding at the jail and its effects on the rights of inmates: Their access to legal counsel, a bed, personal hygiene, clean clothes, exercise, health care and family contact.
The case also puts a spotlight on public safety. Some judges have recently reduced prison sentences by two-thirds to compensate for substandard treatment during pre-trial custody at the facility on Innes Road. When releasing a man held for extradition hearings, Justice Douglas Rutherford said the jail facilities are "notorious for their overcrowded, inhumane and inadequate state."
The three-for-one rulings amount to a plea from the bench to improve the facilities. The Dadshani case asks the court to turn that plea into an order to the government to provide more humane conditions and access to legal counsel, or face a constitutional battle over the rights of the accused.
Despite repeated denials of overcrowding by the Ontario Ministry of Community Safety and Correctional Services, Citizen interviews and the public record show it is an open secret that is frustrating and, in some cases, appalling Eastern Ontario's judiciary, lawyers, and police, probation, parole and corrections officers.
"While we're running around the world peacekeeping in nations that treat their citizens badly, we're doing the very same thing right here in the backyard of the nation's capital," says lawyer Lawrence Greenspon, president of the defence lawyers' association.
"You have too many inmates and insufficient staff, so what happens? They don't exercise for seven, eight, nine, 10 days. They stay in their cells without any exercise, without even an hour a week.
"They're sleeping on the floor. There's no showers for weeks on end. There's no change of clothing for weeks on end. There are serious obstacles, I would say infringements, of the inmates' constitutional rights to counsel. There's only one person that can represent the individual and protect their rights and that's their lawyer."
Mr. Dadshani is awaiting trial on two charges of murder, one of which took place while he was free on bail. He is charged in the death of Michael Rankin, found shot in the head in his Kanata home in September 2002. He was released on bail that December and charged, along with seven other men, in the death of Charbel Chaar, who was beaten, knifed and shot at an amusement park in September 2003.
Since Ms. Mulligan's application, Mr. Dadshani has been released from segregation to a unit with his brother and four other inmates. They have a TV and access to a shower. A corrections officer, speaking on condition of anonymity, said Mr. Dadshani was in a clean segregation cell, that there are no insect infestations at the jail and that he now is "being treated with kid gloves."
Whatever his circumstances now, the case comes amid widespread frustration about the handling of people in custody in Eastern Ontario. Due to recent closures of old jails in smaller cities, the OCDC now houses people awaiting trial not only in Ottawa but in Pembroke, Renfrew, L'Orignal, Cornwall, Smiths Falls, Perth and other communities. Inmates from outside Ottawa are ferried back and forth from the Ottawa jail to court hearings in those communities.
"The Charter of Rights and Freedoms say you're supposed to have the right to retain and instruct counsel," says Chris Kelly, president of the Renfrew County Law Association. "And you can't do it if you take a guy from Barry's Bay, put him in the OCDC, haul him to Pembroke in a meat truck and hold him in a crappy facility all day when he comes to court."
Overcrowding has been exacerbated by a year of reconstruction, still under way, in the old part of the jail, requiring rotating shutdown of some sections. A new octagonal-shaped maximum security pod was added to the old facility a couple of years ago, and even that is subject to complaints.
In a three-for-one ruling condemning the jail conditions as lower than United Nations minimum standards for treatment of prisoners, Justice Denis Power said the situation has brought the administration of justice into disrepute. In calculating the sentence of a man convicted of brutally assaulting his ill wife and several other crimes, Judge Power said he had to impose a severe sentence to deter family violence. But he had to take the man's mistreatment at the jail into account and gave him 27 months credit for 10.5 months in custody. The normal sentencing ratio is a two-to-one credit for time spent in pre-sentence custody.
Jason Gilbert, the young Ottawa lawyer who argued that case, says the public should be outraged by mistreatment at the jail. Due to overcrowding, his client was put in a segregation cell designed to isolate difficult inmates and in a dormitory where he had to sleep on the floor. Physically handicapped, he was denied use of his cane for security reasons and, though he was not ill, placed in a hospital unit, forcing another inmate to sleep on the floor. He could not use a wheelchair except in a dangerous offenders' wing of the jail, where he did not want to go. "We in the Western world are always quick to point fingers at other regimes that mistreat inmates, say in Central or South America or the Middle East or Abu Ghraib, or places like that. But when it's right here in our own city in a capital of a country like Canada, for the public to be complacent about it is something that I just can't understand," Mr. Gilbert, 29, said in an interview.
"Provincial authorities have really done nothing about this. We have these $15,000 to $20,000 plasma TV screens at the courthouse, directing people to various courtrooms. It looks like the Ottawa airport in here with these screens. They've got money to spend on that, but they don't have money to spend improving conditions at the detention centre or to make sure hospital beds are available when we have clients who are sick or are being ordered to undergo in-custody assessments and have to wait one, two, three weeks until a bed becomes available. These sorts of things shouldn't be happening."
There is also a shortage of justices of the peace in the region, delaying bail hearings for some people who are arrested by police and sent to the jail. And, because of overcrowding and staff shortages, probation officers sometimes cannot get into cells or arrange meetings with inmates, delaying pre-sentence reports and applications for parole. Probation officers worry about a rise in caseloads if more judges release people early because of bad conditions.
"All of a sudden, they're out in the community, and probation and parole (officers) have to deal with these guys who've already been given the perspective that the system is a joke," says Gordon Longhi, a representative for probation and parole officers in the Ontario Public Service Employees Union. "Breakdowns in any part of the system are going to have effects down the line."
It is so bad, says Mr. Greenspon, that, having spent a few days at the facility waiting for a bail hearing, people are pleading guilty instead of going to trial. "I mean it sounds like an oxymoron: Plead guilty so you can get out of jail. It's not a pretty sight."
The accounts fly in the face of public statements by Mr. Kwinter, the minister, that overcrowding problems have been addressed since he toured the facility in the spring. On the contrary, some of the ministry's solutions appear to have worsened the situation.
Solutions include cramming more beds into small cells; putting inmates in solitary segregation or medical units; and shipping inmates to the superjail in Lindsay, ferrying them back and forth in a three- to four-hour drive to courtrooms in Ottawa and even farther to places such as Pembroke.
Even claims about how much the 457-bed facility is going to be expanded are questionable. The ministry says current capacity includes room for 316 inmates in two-bunk cells in maximum security, 116 in five dormitories in minimum security, 21 solitary cells for segregation and four for health care. Single cells sometimes have three people on the floor.
Mr. Kwinter has said the overhaul, due for completion this coming spring, will add 237 beds, a number contained in briefing notes for the minister signed last month by assistant deputy minister Gary Commeford. However, that number baffles defence lawyers and comes as news to correctional officers, who see space disappearing, not increasing, as the retrofit proceeds.
When the Citizen asked for an explanation, it took the corrections ministry several days and the intervention of acting OCDC superintendent David Ainsworth to come up with a correct number. Ministry spokesman Anthony Brown said reconfiguration of the old section will boost beds by 97, for a total of 553. Even that increase is not feasible, says one corrections officer.
The ministry declined the Citizen's request for a tour of the facility during the summer on the grounds that staff are already "sufficiently taxed" by regular duties. Another request for a tour and an interview was refused on the grounds that it would be wrong to defend the ministry in the court of public opinion before it responds in the court of law. Mr. Ainsworth says he is barred by ministry policy from speaking to the media.
The ministry has been interviewing candidates to fill the superintendent's job. Like other management positions, it is being filled on an acting basis. The ministry advertised the position in newspapers, a sign that few internal candidates want the job, said one source, because "the environment is just so toxic."
Mr. Kwinter's briefing notes indicate there has been turmoil in the institution. Records procedures, business practices and health-care services have recently been audited; security operations are being reviewed; a consultant was hired to conduct a labour-relations analysis; and a human-resources consultant has been assigned full-time to the facility.
Union representatives say their complaints of unsafe and unhealthy working conditions are constantly ignored. OPSEU is preparing for negotiations on a contract that expires Dec. 31.
"The membership are telling me that conditions in that institution are deplorable, that conditions in that institution are leading to public safety concerns," says OPSEU representative Bob Eaton. "The guards are handcuffed by the inefficiencies and under-resourcing in the system. They're trying to do the best they can do in a bad situation." Inmates jammed in cells, unable to get exercise, become aggressive and angry, he said.
The briefing notes blame "staffing pressures" for irregular provision of inmates' clothing, bedding and fresh air. Corrections officers say the facility is so short-staffed that there is always overtime work available. The construction has worsened the staff and inmate conditions. An example is the closure of an exercise yard the size of three tennis courts for construction outside. The guards have been left with an living-room-sized area for exercising 150 inmates, 10 or so at a time. They struggle to find enough staff to supervise them.
[Another example: Laundry facilities at the detention centre were so old and worn out that they frequently broke down for days at a time. Dirty clothes and bedding now are sent out for cleaning while a new laundry is installed.]
The ministry is scrambling to make some improvements before the legal case is argued in the courtroom. Faced with the allegation that they may be violating the Charter by denying adequate inmate access to legal counsel, management suddenly came up with six interview rooms last week for private meetings between lawyers and clients, and appointed a full-time liaison officer to co-ordinate appointments. The meeting rooms are staff offices that have been vacated -- the staff are now using a rented trailer outdoors. Corrections officers say their union office was earlier moved outside into a garage.
Mr. Greenspon said he never got so much as a phone call in reply to months of requests for a meeting about new facilities to meet inmates. One lawyer says he never thought he would yearn for the "broom closets" where lawyers used to meet clients face-to-face and knee-to-knee, to go over trial documents and discuss strategy.
"In the new lawyers' visiting room at the OCDC, counsel and the client are separated by a glass partition," says an affidavit by lawyer Stuart Konyer, on behalf of the defence association. "Conversation is possible only through a telephone system, and the telephone receivers are automatically shut off after approximately 15 minutes. In order to have the telephone reactivated, counsel must leave the visiting room to make this request of a correctional officer."
The new visiting room is not properly soundproofed, so conversations of correctional officers and others is audible from the adjacent public visiting area. There is no means to review documents with an inmate except by use of a sliding tray through the glass partition which must be unlocked by corrections officers who inspect what should be confidential documents. The situation undermines the professional and ethical duties of lawyers to their clients and raises constitutional issues of the right to counsel, Mr. Konyer wrote.
Mr. Greenspon said the provision of private meeting rooms is an admission that the new facilities are "woefully inadequate."
The application also says access to legal counsel is infringed by shipping people to Lindsay. The vast majority of those in custody are defended by legal aid, which does not cover travel time for counsel. One meeting with a client in Lindsay would eat up an entire work day, most of it driving there and back.
It also says the facilities have deteriorated significantly in the last two years and crowding has been constant for most of the last year.
Probation and parole officers would also welcome steps to ensure they do not get bigger caseloads of offenders let out early due to bad conditions. Some caseloads are already barely manageable -- as many as 85 offenders per officer. Short-staffed, desk-bound, and mired in paperwork, some only have time to see even high-risk clients for a few minutes once or twice a month.
Probation officers have found they cannot get in to see offenders to prepare pre-sentence reports or deal with other matters. They can't get in for the same reasons as lawyers: There are no interview rooms or too few guards to safely enter cells or to escort inmates to a meeting room.
One probation officer described the facility this way: "It's in a real mess. The institution is going downhill on a steady level."
The Ottawa Police Services Board blamed "significant overcrowding" in a recent report for increases in police overtime bills and prisoner transportation and meal costs. The Ottawa police are responsible for ferrying inmates to and from the courthouse, a procedure that should run on time and within normal working hours.
But the Ottawa police now have to wait their turn, as the OPP has priority to collect inmates for transport to court dates in satellite communities such as Pembroke. The Ottawa police sometimes do not get access to the facility until 8:20 a.m., a tight time frame to collect and drive 40 prisoners to court for 9 a.m.
Ottawa police also have to collect inmates from the 1,184-bed superjail in Lindsay for court dates in Ottawa. "These sentences could have been served at (the Ottawa jail) if not for the overcrowding," said the report prepared for the Canadian Association of Police Boards.
"Everyone has to understand that if provincial authorities are going to ship our clients to Lindsay with no notice to us, take them away from their lawyers, from their families, from their loved ones while they're serving pre-trial custody, if they're going to do that, well, we conversely have to know that we can get our clients in for a court date just as quickly as we have ever been able to get them in," Mr. Gilbert said.
In one notorious case last summer, the trial of accused bank robber Brian McNeely was set to start, with judges, lawyers and witnesses present at the Ottawa courthouse.
But Mr. McNeely wasn't there. Authorities forgot he was at the Lindsay superjail.
Mr. Greenspon says three-for-one rulings are "a hue and cry" to the public from the bench that the situation is intolerable. Judge Power's ruling was preceded by one from Justice Lise Maisonneuve of the Ontario Court of Justice in the case of a man sentenced for his fifth spousal-abuse conviction. For most of his 160 days in pre-sentence custody there were three or four inmates in his two-person cell.
The public should be concerned that sentences for serious crimes are being subject to deep discount because of inhumane jail conditions, says Mr. Greenspon. "It should be a major three-bell alarm to the politicians, saying 'Look, the judges are telling you this place is not fit for the purpose for which it's supposed to serve'."
"Inmates are nobody's fool: 'If I've got a shot at three-for-one, let me sit in here for a year, so I get the equivalent of three years served," he added.
Judge Power said judges and justices of the peace ought to be able to assume that when bail is denied, people will be incarcerated in appropriate accommodation. "The overcrowding is unacceptable, especially in circumstances where other Eastern Ontario detention establishments are being closed and inmates directed to the Ottawa location," Judge Power said.
Ottawa criminal lawyer Allan Brass said a basic principle of democracy is at stake. "We have to remember that the overwhelming amount of the detainees at the regional detention centre are awaiting trial. There is a presumption if innocence. When individuals are held in such challenging circumstances there is an erosion of that principle."
The majority of people in custody at the OCDC are awaiting a bail hearing or going through trial proceedings. Generally, grounds for custody are a risk the accused will not come to court or will reoffend.
A minority of inmates are convicted, most of them awaiting transfer to a longer-term facility, or are held on immigration law violations, some of them awaiting deportation. The centre is also designed as a place to serve sentences of less than two years. A recent snapshot showed 312 of the 423 inmates were awaiting disposition of a bail or trial proceeding.
Some of the pressure on Ottawa could be eased by a plan to build phase two of a new facility in Brockville, providing a 300-bed correctional treatment unit and a 50-bed remand centre. But the Liberal government has put the plan on hold.
Brockville lawyer Michael O'Shaughnessy is thankful that, meantime, the 40-bed jail there has not been closed even though it's a dark and dingy "medieval" place often "bursting at the seams." Some inmates sleep on a floor and a ledge in a room that used to be used for lawyer-client interviews. "The only thing that saves us is it's much smaller, so it's more manageable," Mr. O'Shaughnessy said.
In a written decision, Justice Denis Power said Ottawa jail conditions are lower than United Nations minimum standards for treatment of prisoners. Read his criticism at: www.canlii.org/on/cas/onsc/2004/2004onsc12097.html
Read the Standard Minimum Rules for the Treatment of Prisoners as set out by the Office of the High Commissioner for Human Rights: www.unhchr.ch/html/menu3/b/h_comp34.htmSource: Ottawa Citizen
Other Related Articles on prisonjustice.ca:
Ottawa Jail Conditions Decried
Overcrowding in Ottawa Jail