Lockdowns and Liberty : Why Lockdowns in Correctional Facilities are Violating Human Rights, and Costing Tax Payers

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criminal lawMost people have the same attitude when it comes to prisoners being incarcerated: lock em’ up and throw away the key. Most people base this opinion on the assumption that everyone in prison is guilty, which means that all prisoners are bad people and deserve to be punished. But the recent case of Ogiamien and Nguyen v. Ontario (Ministry of Community Safety and Correctional Services) [2016] ONSC 3080 serves as a much needed reminder as to who can actually be incarcerated, and what liberties are violated when they are.

What’s common in correctional facilities, and in this case specifically Ontario’s Maplehurst Correctional Facility, is the use and practice of what’s called a lockdown. A lockdown is exactly how it sounds: inmates are ordered to remain in their cells, sometimes days at a time, and cannot leave them to use the showers or seek medical attention or phone their lawyers or family.

“What many people fail to realize, as the Court quite rightly notes, is that not everyone who is incarcerated has been convicted of a criminal offence. As the Court acknowledges in Ogiamien, sometimes lockdowns or solitary confinement is required for safety or other important reasons. For instance, if a violent incident occurs and a lockdown is needed to ensure the safety of everyone in the facility, then there wouldn’t be any violation of rights. However, as the Court heard in Ogiamien, most of the lockdowns endured by the inmates in this case occurred due to staff shortages. Even if one officer was unable or unwilling to attend work, the result would be an indefinite lockdown and the inmates would be confined to their small cells, double bunking with their cell mates. The Court found that in one instance, Mr. Ogiamen was locked down for 74 days out of 214 days, of which 68 were due to staff shortages. During this same period of time Mr. Nguyen was locked down, on a different wing, for 70 days, 66 of which were caused by staff shortages.

Mr. Ogiamien testified that, during a lockdown. prisoners often gang up or use weapons just to use the shower or telephone during a brief and rare 15 minute window of time when they are permitted out of their cells. Mr. Nguyen testified that during a lockdown, sometimes days can go by before they are permitted to shower. Inmates sometimes would pull the water sprinklers in their cells just so they could wash themselves.

The Court in Ogiamien found that for 50% of their incarceration, the applicants’ were locked down. In addition, the Court made a very important observation that most people do not consider when they are reluctant to sympathize with prisoners:

“It is not to be forgotten that Mr. Nguyen and Mr. Ogiamien are not in Maplehurst because they have been convicted of any offence.  Mr. Nguyen has not yet been tried, and is presumed innocent.  Mr. Ogiamien has spent three years in Maplehurst, not because he has been convicted of any offence, but because he is being held there at the direction of the Federal immigration authorities.”

A lockdown is exactly how it sounds: inmates are ordered to remain in their cells, sometimes days at a time, and cannot leave them to use the showers or seek medical attention or phone their lawyers or family. What many people fail to realize, as the Court quite rightly notes, is that not everyone who is incarcerated has been convicted of a criminal offence. Indeed, people only accused of crimes, but without the resources to have a bail hearing, or those who cannot meet the requisite standards of release when a bail hearing is held, are in custody amongst convicted prisoners. They are also subject to the same lockdowns even though no judge or jury has declared them to be guilty of any offence in Canada. During lockdowns, these individuals are left without the opportunity to contact their lawyers to know how their case is going, or to assist their counsel in organizing a bail hearing. They are unable to speak to their spouses, children or parents:

“The conditions of detention during lockdowns are very close to segregation or solitary confinement.  In some ways they are worse.  The inmate is holed up with another inmate not of his choosing.  The actual periods of confinement for 24 hours a day are entirely arbitrary, and unpredictable, both as to timing and length.”

As such, there was a violation of the applicants’ Section 12 rights under the Charter of Rights and Freedoms to be free from cruel and unusual punishment. Pursuant to Section 24(1), the Court found that the appropriate remedy in this case was compensation for both inmates: $60,000 for Mr. Ogiamien and $25.000 for Mr. Nguyen.

If any outraged Canadian protests the awarding of funds to these two individuals, they can write to their local government, because as of now, taxpayers’ money is being used to remedy deplorable conditions in correctional facilities that can and should be fixed. As the Court put it in Ogiamien: “the Government of Ontario has had it within its power to fix the problem since at least 2002, at least when the problem was identified by Nordheimer J. in Jordan, and has not chosen to invest sufficient resources so that the problem of lockdowns caused by staff shortages can be alleviated.”

Melody is a criminal defence lawyer with the firm Caramanna Friedberg LLP, located in Toronto, Ontario.
About Melody Izadi

Melody is a criminal defence lawyer with the firm Caramanna Friedberg LLP, located in Toronto, Ontario.


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