Redress Risk Management (post until May 31/19)
Criminal

Decision on stayed murder charges a must-read: Webb

A decision explaining why a mentally ill man’s murder charge must be stayed because of his treatment in custody should be required reading for all members of the justice system, Toronto criminal lawyer Melanie Webb tells AdvocateDaily.com

In the ruling, Ontario Superior Court Justice John Fregeau stayed the first-degree murder charge against the defendant after finding the province’s correctional system had breached his Charter rights in an “abhorrent” way when holding him in solitary confinement for more than four years.  

“It’s an extremely important decision that paints a disturbing portrait of life in this institution,” says Webb, principal of Melanie J. Webb Barrister. “It really should be read by anyone who is involved in corrections at the institutional level, the ministerial level, and by anyone with an interest in justice.

“Justice Fregeau minces no words, and his ruling is really a scathing indictment of the institutional failure that led to such a horrific experience for this accused person,” she adds.

Webb says she was following the story with increasing concern as details emerged on a piecemeal basis about the man's ordeal over the last couple of years, but adds that Fregeau’s mammoth 535-paragraph ruling brings home the true horror of the situation at the Thunder Bay, Ont. jail. 

“It’s much worse than I feared,” she says.

The man was due to stand trial over his alleged stabbing of a fellow inmate at the Thunder Bay Correctional Centre in 2012 but was instead released to his family after Fregeau’s decision came out.

After being charged in the stabbing incident, he was held in segregation for more than 1,500 days, spending 23 hours a day alone in a cell with the lights on.  

During the hearing, the judge heard from a number of expert witnesses, including Kelly Hannah-Moffat, a University of Toronto sociology professor and former director of the Centre of Criminology and Sociolegal Studies, who concluded that the inmate's treatment was beyond unacceptable, approaching “the level of torture.”

“I don’t know of any western democracy, or many of the countries in Europe and even South American institutions … that would tolerate this for … protracted periods of time,” the judge says in the decision, quoting Hannah-Moffat.

"When exercising their statutory discretion in making segregation decisions regarding the accused, the complete and utter failure of correctional officials to properly balance the accused's Charter rights with the statutory objectives can only be described as profoundly unreasonable, unacceptable and intolerable," wrote Fregeau, who found that the treatment violated the defendant’s Charter rights under ss. 7, 9, 12, and 15.

“The breaches … have been found to be prolonged, abhorrent, egregious, and intolerable. It is against this factual backdrop that prejudice to the integrity of the justice system must be considered,” the judge said, noting that numerous officials and politicians knew of the man's segregation. 

“In listening to the evidence on this application, I was disturbed by the contrast in the demeanour of the expert witnesses on the one hand and the Ministry (of Community Safety and Correctional Services) witnesses on the other. As previously noted, all experts were demonstrably appalled by the state’s treatment of the accused over the span of four and one-half years,” Fregeau said.

By contrast, with the exception of a single whistleblowing corrections officer, “I did not observe a single note of contrition or regret during the testimony of the correctional witnesses who were largely responsible for detaining the accused in segregation under abhorrent conditions,” he added.

Webb says Fregeau’s decision strikes the right balance in detailing the failures at play in the case, and their effect.

“It’s not only a failure for the accused, but also for the deceased,” she says. “First-degree murder is the most serious charge you can face in the Criminal Code, but the Charter breaches were so serious that there won’t be a trial.”

Now she’s waiting to see how the impact of the ruling will reverberate through the province’s justice system, both in Thunder Bay and beyond.

“I haven’t heard of any disciplinary or employment action taken at the jail as a result of the case. You have to wonder if anyone has faced any consequences for what has happened,” Webb says. “Politics are at play here, but you have to hope that the government will impose some consequences for the failures at multiple levels, and enact substantial changes in the solitary confinement process.”

She cites a recent decision by Ontario Superior Court Justice Paul Perell ordering Correctional Service Canada to pay $20 million for placing thousands of mentally ill prisoners in involuntary solitary confinement.

In a statement on the case, Renu Mandhane, chief commissioner of the Ontario Human Rights Commission (OHRC), called the Thunder Bay case a classic example of why the practice of segregation should be eliminated.

“It is now abundantly clear that Ontario’s continued use of segregation undermines both human rights and the administration of justice,” she wrote. “In light of the emerging consensus, Ontario should heed the OHRC’s early warnings about the danger of this inhumane practice and commit to eliminating segregation.

"At the very least, requiring external and independent oversight, including judicial review of segregation decisions, would assure the public that vulnerable people held in segregation will not ‘disappear,’ swallowed up by a vast and ineffective bureaucracy.”

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