Release N.B. teen's prison files, judge says

A Federal Court judge has ordered Correctional Services of Canada to release documents about a New Brunswick teen who committed suicide in her cell, ending an access-to-information fight that began months before she died.

Ashley Smith, of Moncton, choked herself with a piece of cloth in October 2007 while guards looked on. She was 19.

The Canadian Association of Elizabeth Fry Societies, a non-profit advocacy group for federally sentenced women, which had applied to have the documents released on Smith's behalf before she died, hopes the court decision will benefit other imprisoned women in similar situations.

The request under the Privacy Act stemmed from concerns about allegations of: frequent segregation and transfers, mistreatment by prison staff, lack of psychiatric care and inadequate living conditions.

'This information will help us identify what other information we need to pursue for the women who are in the prison system and still in conditions of confinement and isolation and with mental health issues.' —Kim Pate, Canadian Association of Elizabeth Fry Societies

In Ottawa on Thursday, Judge Michael Kelen ordered Correctional Services to hand over the nearly 300 pages of records about Smith, including numerous assessments, her transfer and violent incident records, criminal charge sheet and documents about her "maximum" security risk classification.

He said Correctional Services had breached the Privacy Act in not giving Smith her records, and that neither her death nor a subsequent RCMP investigation into the conduct of prison staff were valid reasons to withhold them from the Elizabeth Fry Societies.

No late-term records

There are no records for the four months preceding Smith's suicide, or records after her suicide, according to the court documents.

"Although it's a decision about Ashley's case, it's a decision that should impact many other cases," said Kim Pate, executive director of the Elizabeth Fry Societies.

"This information will help us identify what other information we need to pursue for the women who are in the prison system and still in conditions of confinement and isolation and with mental health issues that require assistance and have requested our assistance," she said.

Pate said she also hopes Correctional Services will now be more open regarding other outstanding requests for information on behalf of other inmates.

Correctional Services officials have declined to comment. They have 30 days to appeal the judgment.

Sentence stretched to years

Smith entered the provincial correctional system at age 15, convicted of throwing crabapples at a mailman. With bad behaviour, her one-month sentence stretched to almost four years, served in 11 institutions in five provinces.

She killed herself on Oct. 19, 2007, while in segregation at the Grand Valley Institution for Women in Kitchener, Ont.

Her death made national headlines and led to a scathing report by Canada's federal prison ombudsman. It also drew widespread criticism about how young people suffering from mental illness or severe behavioural disorders are dealt with by the prison system.

The Privacy Act allows individuals to request information about them held by federal agencies.

Smith had applied for disclosure of her prison records on May 31, 2007, and authorized their release to the Elizabeth Fry group. On June 14, Pate followed up with a request for more specific information.

Privacy requests are supposed to be answered within 30 days. But on July 18, CSC officials advised Pate they required a 30 day-extension to collect all the documents.

Then they failed to meet the extended Aug. 17 deadline.

On Sept. 24, Pate sent a second request on behalf of Smith, who was no longer allowed to use pens or pencils. The request had still not been answered when Smith killed herself on Oct. 19 — 123 days after her initial application.

Seven months later, in May 2008, a lawyer representing the Elizabeth Fry Societies asked CSC about the status of the request. Officials replied in an email, saying the request was denied.

"Unfortunately, due to the incident that resulted in the death of this inmate on Oct. 19, 2007, all files related to this individual are exempted" under the Privacy Act.

Privacy commissioner previously found refusal invalid

The Elizabeth Fry group then filed a complaint with the federal privacy commissioner, who deemed the complaint was well-founded but stopped short of ordering CSC to comply.

The Elizabeth Fry Societies then applied to the Federal Court, seeking an order compelling CSC to release the documents.

Kelen rejected CSC's claim that it had no legal obligation to hand over Smith's records following her death.

'It is ironic and illogical that the respondent would delay the disclosure of these personal records, and then argue that the consent and authorization for the disclosure is vitiated upon the suicide of Ms. Smith 62 days after the personal information was legally required by the respondent to be produced to the applicant.' —Judge Michael Kelen

"It is ironic and illogical that the respondent would delay the disclosure of these personal records, and then argue that the consent and authorization for the disclosure is vitiated upon the suicide of Ms. Smith 62 days after the personal information was legally required by the respondent to be produced to the applicant," he wrote.

 "I conclude that the [Privacy] Act intended that an individual's right to grant access to their personal information survives their death," the judge added.

"That consent had a valid purpose when it was given by Ms. Smith on June 18, 2007, and that purpose continued after Ms. Smith's death. That purpose was to explore how the penitentiary authorities were treating Ms. Smith.

"While that exploration will be too late for Ms. Smith to benefit from it, that exploration may assist the applicant learn how to deal with other female prisoners like Ms. Smith in the future."

Kelen also rejected CSC's argument that the police investigation surrounding Smith's death, which led to criminal charges against four CSC employees that were subsequently dropped, was reasonable grounds for refusing to release the documents.

"The investigation did not relate to the information in the requested records, which predated Ms. Smith's death by a few months," he wrote.

"There was no investigation in place on August 17, 2007, the date that the respondent is deemed to have refused the applicant access to the personal information," he added.

The judge ordered CSC to pay the Elizabeth Fry Societies' costs for what was described as an "unusually complex piece of litigation involving important new principles of law in relation to the Privacy Act.

"The arguments raised by the respondent in opposing this litigation, and in denying the applicant access to the personal records, were not well-founded," Kelen wrote. "The respondent caused delay and legal expense for the applicant."