Powdered milk in prison? Judge says it's not cruel and unusual

It's scary dairy for one dangerous offender.

But a Federal Court judge says serving powdered milk in prison isn't actually torture.

"I find that the provision of powdered milk does not constitute cruel and unusual punishment," Justice Alan Diner wrote in a ruling handed down last week.

The judge dismissed an application for a judicial review by a prisoner in an Ontario medium-security penitentiary who lost a grievance over a Correctional Service of Canada policy replacing liquid milk with its powdered equivalent.

According to the ruling, Warkworth Institution began providing inmates with powdered milk in August 2015 as part of a Canada-wide effort to standardize the meals of male prisoners. The prison is located about 50 km west of Belleville, Ont.

William A. Johnson claimed the move breached his Charter rights, because "he and other inmates were unable to drink powdered milk and were therefore being denied their daily nutritional intake."

The prisoner claimed that the "majority of society dislikes and/or are unable to drink mixed powdered milk."

Not 'trivial' to those who consume it

In response, the attorney general of Canada argued — in part — that the Charter of Rights and Freedoms "does not protect against trivial limitations of rights."

But the menu in Canadian prisons has proven to be anything but a trivial concern for those consuming it.

In his annual report to Parliament last year, correctional investigator Ivan Zinger said his office has seen a flood of complaints about portion size, quality and selection of food.

He traced the issue to a 2014 decision under the previous Conservative government to find ways of lowering "raw food input costs" in order to square a 2,600-calorie daily diet with a cost of $5.41 per inmate per day.

"Among other measures, powdered milk was substituted for fresh milk, bulky meat portions replaced more select cuts, expensive grains were removed, vegetable selection was reduced and English muffins were replaced with toast," Zinger wrote.

"Not surprisingly, when these changes were first introduced, inmate grievances related to food issues spiked."

Dissatisfaction turned deadly in 2016 during a riot involving 200 inmates in Saskatchewan Penitentiary; quality and portion sizes were cited as a "contributing factor" in the confrontation.

West Coast Prison Justice Society executive director Jennifer Metcalfe says powdered milk is a source of constant frustration for prisoners.

"It seems sort of insignificant to us in the community, but when every aspect of your life is controlled by Corrections, things like powdered milk take on more importance to people's daily lives," she said.

"I know a lot of people really struggle with food in prison."

'Really difficult' to challenge

The federal court decision notes that the Correctional Services of Canada document detailing Johnson's complaint contained information about his convictions and status as a dangerous offender.

The ruling doesn't specify what the nature of his crime was. Johnson argued that his offences were irrelevant to his problem with the menu.

Prison officials told Johnson that if he had an allergy to powdered milk, he could work with a dietitian to come up with a solution, but the ruling said he gave no evidence of "his alleged medical inability to consume powdered milk."

Ultimately, Diner concluded that Johnson had failed to put forward sufficient facts to make his case for a Charter breach.

The Correctional Service of Canada says its prison food — including the milk — meets Health Canada's consumption guidelines for men aged 31 to 52.

Metcalfe says fighting those rules is an uphill battle.

"I think it would be really difficult for a prisoner to successfully challenge something like that, because they would need to have evidence that contradicts the government's evidence about it meeting the guidelines," she said.

"But they can't go out and get a second opinion from a doctor. Every aspect of their life is controlled by Corrections, including what medical professionals they can see."

In addition to losing the case, Johnson was also ordered to pay $250 in costs to the attorney general.