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Ombudsman: study suggests federal prisons blacking out errors in death reports

Canadian Press THE CANADIAN PRESS

A study prepared by Canada's federal prison ombudsman says Corrections Canada consistently blacked out possible errors or shortfalls documented in investigation reports into jail deaths sent to families.

Howard Sapers says in a study released Tuesday that his office compared the uncensored investigatory reports it received from Corrections Canada with the highly edited versions eight families obtained through access-to-information laws.

The report says the ``current practice of exempting errors, shortfalls and policy non-compliance leaves little room for public scrutiny, accountability or ... legal recourse.''

Titled ``In the Dark,'' the 38-page study was carried out last year after some families complained to Sapers' office about their difficulty in receiving information about how loved ones died between 2013 and 2015.

``It's very hard for me to conclude that all the redactions that I reviewed for this investigation were that legitimate. There were some redactions that I think Correctional Service Canada is going to have to explain,'' Sapers said in an interview.

There were 65 deaths in 2015-16 in federal correctional institutions.

Correctional Service Canada says it is reviewing the findings. In a response posted on its web site, the agency says it agrees ``that more can be done to facilitate the disclosure process, and ensure that community contacts and services that may be helpful to grieving families are readily available.''

``As such, we will take measures to ensure there is an appropriate level of engagement between family members and CSC staff, service providers and others who are well-equipped to provide assistance and support when sharing information with next of kin.''

Sapers' report says his office's advisor concluded that the blacking-out of sections of the seven reports, prepared by a panel that looks into non-natural deaths, ``completely change the context of the information that is provided.''

But the report says the greater concern was the slicing out of sensitive material that might implicate Correctional Service Canada officials for failing to follow policy.

``More concerning was the consistent redaction of information in which possible errors, shortfalls or policy non-compliance were noted in the original report,'' says the report.

Sapers said he believes the edits were a misuse of the access to information law and privacy laws, given that the commissioner of Correctional Service Canada has discretion to release information in the public interest.

Sapers said there are some legitimate reasons to blank out parts of reports given to families, such as the protection of the personal privacy of cellmates or information that could compromise a police investigation. However, he says this should be kept to a minimum and shouldn't prevent revealing whether the prisons took steps to avoid the deaths.

An email from Corrections Canada says it edits documents on a case-by-case basis and exemptions are applied ``when necessary.''

``Information regarding possible errors or non-compliance with policy may be redacted when it constitutes personal information, may compromise the security of the institution, or constitutes advice and recommendations (developed by or for a government institution or a minister of the Crown),'' says a spokeswoman.

The report makes nine recommendations, including a call for medical reports on natural deaths and investigation reports for non-natural deaths to be shared ``presumptively and routinely,'' with next of kin.

Sapers notes that there isn't a specific law that unequivocally requires the disclosure of the information, but he cites principles in the privacy, access to information and correctional regulations which clearly point to such an approach.

The report also criticizes Correctional Service Canada for its lack of compassion and information-sharing when dealing with grieving families of dead inmates.

``They (prison officials) don't have to be such jerks anymore,'' wrote one family member. ``I think it would do everyone good, I think it would do their souls good if they felt they had permission to be kind and compassionate and accommodating.''

Sapers also recommends prisons should have a designated liaison to support the families, including when there is a violent death and an investigation. He notes this is the kind of practice used in other jurisdictions, such as the United Kingdom.

He said families should be offered copies of the reports without having to request them, and protocols be developed so that doctors, psychiatrists and social workers can explain the findings of investigations to families.

Toronto criminal lawyer Breese Davies tells AdvocateDaily.com she isn't surprised by the findings. "The Correctional Service of Canada is notoriously secretive about all aspects of its operations," she says.

"The walls that keep people in the institutions have the effect of keeping the public and media out. CSC is not used to operating in a transparent, accountable way. Their secrecy is even more pronounced when they fear some sort of liability or criticism, like when someone dies in their care," says Davies in an interview.

Davies, principal with Breese Davies Law, adds that she had heard about this complaint prior to the study's release, noting it is a common complaint from the families of people who die in CSC custody.

"It was an issue in Ashley Smith’s death at Grand Valley Institution in Kitchener. It was an issue in Kinew James’s death at the Regional Psychiatric Centre in Saskatoon. And the family of Camille Strickland-Murphy have complained about the lack of information provided to them by CSC at the Nova Institution for Women in Nova Scotia," she notes.

Davies says she hopes as a result of the study there will be "a real change in terms of the approach CSC takes to death in custody. They should be transparent. They should be compassionate with the family members. They should be responsive to inquiries by family members. Obviously, they have to maintain the security of institutions."  

But, she adds, they should also ask themselves how they would want to be treated if one of their loved ones died in a federal institution. "That is what it means to be compassionate. Everyone wants information and answers when they have lost someone. They do not want to fight with a massive, uncaring bureaucracy for basic information about how, when and why their family member died. CSC should be forthcoming with as much information as possible so family members can understand and deal with the truth of what happened."

Davies suggests CSC should also be willing to reflect on what happened, explain why it happened, learn from what happened and make the necessary changes. "This Trudeau government has made a commitment to implementing the recommendations from the inquest into the death of Ashley Smith. The jury called for greater independent oversight of CSC. That would be a good starting point.

"Transparency in any institution is a good thing. It increases public confidence in the system. The current system of secrecy make people suspicious, which is not helpful to anyone."

Davies says the "CSC is concerned about safety and security of their institutions. That is obviously a very important objective. But CSC falls back on 'security concerns' and 'privacy concerns' as a way to avoid public scrutiny of their treatment of those in their custody."

She tells AdvocateDaily.com that in terms of privacy and access to information laws she thinks "CSC relies too often on generic concerns about security and privacy to avoid disclosing information. The default position seems to be disclosing any information about a death in custody will compromise security of the institution and the privacy of someone involved. The presumption should be full disclosure. There needs to be a much more rigorous process for excising information from CSC reports. 

"Edits should be carefully scrutinized to make sure they are within the meaning and spirit of the law," says Davies.

Further, Davies says she agrees with the recommendations, although she worries "that many of them require both a policy change and a culture change in CSC. The former is easy. The later is very difficult.  

"Having said that, creating a policy that requires disclosure of relevant information to the families is crucial as set out in the study's recommendations. As well, the recommendation that all investigative reports be presumptively disclosed in their entirety is also important. Despite the importance of these recommendations, they will only have a positive effect if CSC embraces their purpose. Otherwise, they will squabble over what information is 'relevant' and what isn't."

Davies adds that under the current culture, the CSC interpretation of “relevant” will likely be quite narrow. Similarly, they will come up with all sorts of circumstances in which the presumption of disclosure can be rebutted in favour of redactions and withholding information.

"Creating a family liaison position is a good idea. However, it has to be someone who has the mandate to assist family members. If it just adds another layer of bureaucracy for families to navigate, it will add to the frustrations people are already experiencing. Whatever process/policy is developed, it must focus on getting information out of the institutions, not keeping information in," says Davies.
 
Strickland-Murphy, the 23-year-old twin brother of a young woman who died in the federal women's prison in Truro, N.S., says it's distressing and disheartening for families to be stonewalled on what happened to their relatives.

His sister Camille Strickland-Murphy died at the Nova Institution for Women on July 28, 2015 while serving a three-year sentence for attempted robbery of a pharmacy. Her family said in the obituary that the 22-year-old woman, who was treated for mental illness, took her own life.

``I think that we have the right to that information and if there's anything being hidden or done incorrectly we should know about it,'' he said in a telephone interview from St. John's, N.L.

``Not knowing is terrible. You always fill in the worst in your head and it leaves an open wound that you don't know what happened.''

It is unclear if Strickland-Murphy's death is among those included in Sapers' study. The deaths examined originally included four suicides, three deaths by natural causes and one serious bodily injury, with one family dropping out of the study as it was being carried out.

© 2016 The Canadian Press

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