Judge approves B.C. inmate's class action over 'inhumane' prison isolation during pandemic
Health and safety of inmates, staff, public a top priority: Correctional Service Canada
As chair of the inmate wellness committee at his prison, Dean Christopher Roberts was allowed to go cell to cell at Mission Institution to speak with inmates through the bars during some of the early weeks of the COVID-19 pandemic.
The men in the medium-security facility in Mission, B.C., were being isolated in their rooms to prevent the spread of COVID-19. By April 2020, they were allowed out of their cells for 20 minutes a day — time that Roberts claims they could choose to use only for a shower or a phone call to family.
"Within the first month of solitary confinement some men were showing me, [as] I went door to door, where they had developed bed sores and body pain from being sedentary and lying in bed all day," he wrote in an affidavit filed in B.C. Supreme Court.
"Sadly, I encountered some men who had taken to scarring their face with long slashes and bloody lines. Others, who had slammed their heads into the wall, so consumed by the helplessness, isolation and fear of the unknown that they didn't even understand."
Roberts, 56, is the lead plaintiff in a class-action lawsuit against the federal government that was greenlit in B.C. Supreme Court on Friday. The case claims the medical isolation that began in Canadian prisons in March 2020, when COVID-19 was declared a global pandemic, subjected prisoners to "inhumane rights restrictions" that amounted to solitary confinement.
Class members include any inmate incarcerated in a Correctional Services Canada (CSC) prison during a COVID-19 outbreak declared at a site after March 11, 2020. Inmates would be eligible if they were confined to their cells for 20 or more hours a day and deprived of the chance to interact with others for less than two hours a day for 15 or more consecutive days, the ruling said.
Patrick Dudding, Roberts's lawyer, estimated the class could include anywhere from hundreds to thousands of inmates.
"We welcome the court's decision, and we'll take this through the next steps," he said in a phone interview on Wednesday.
Inmates didn't know when isolation would end: lawsuit
Mission Institution was declared COVID-free by mid-May 2020, but significant restrictions continued until mid-July, the judgment said.
"That's 23'/4-hours-a-day in a 7x10 foot box with your head 18 inches from the toilet," Roberts said in his affidavit.
"I cannot stress enough that worse than the solitary confinement was the absence of routine. On any given day staff seemed to invent a new routine for showers and phonecalls. We were left in our cages anxious, worried, angry what the day would bring and when would relief come."
The United Nations' minimum rules for the treatment of prisoners, called the Nelson Mandela Rules, define solitary confinement as isolation for more than 22 hours a day and say solitary confinement that lasts longer than 15 consecutive days amounts to torture.
During the pandemic, health-care professionals and advocates recognized the challenges that came with preventing the spread of COVID-19 within prisons. Typical advice for slowing the spread — like regular handwashing and physical distancing — could be virtually impossible in crowded prisons.
Researchers in the United States, where overcrowded prisons faced similar health challenges, say medical isolation could be a beneficial public health tool if done properly. Mental health advocates and public health researchers have said officials needed to find ways to differentiate purposeful medical isolation from punitive solitary confinement to help inmates' cope psychologically.
"The only commonality that solitary confinement should share with quarantine and medical isolation is a physical separation from other people," physicians from the University of California wrote in the Journal of General Internal Medicine on July 6, 2020.
"This means that people in quarantine or medical isolation should have enhanced access to resources that can make their separation psychologically bearable—for example, television, tablets, radio, reading materials, and means of communicating with loved ones—since they are enduring isolation for the greater good, not for punishment."
The Mental Health Commission of Canada said medical isolation that is run the same way as solitary confinement "poses significant human rights risk and should be done only as a last resort." It recommended low-risk prisoners or those near the end of their sentences be released from correctional facilities to reduce the pressure.
In a statement on Wednesday, CSC said it was "committed to reducing the risks of COVID-19 in all its operations and keeping offenders, employees, and the public safe" during the pandemic.
"During that time, we worked with public health experts, the Public Health Agency of Canada (PHAC), local public health agencies, our labour partners, and stakeholders to develop infection prevention and control measures to mitigate and contain the spread of COVID-19," it said in an email.
"First and foremost, the health and safety of offenders, our employees, and the public remains our top priority."
Attorney general says medical isolation 'entirely different'
In his lawsuit, Roberts claims the federal government's isolation policy neglected or violated inmates' Charter rights to protect life, liberty and security of the person.
The Attorney General of Canada argued the case shouldn't be certified as a class action because isolating inmates for medical purposes was "entirely different" from punitive solitary confinement, according to Friday's decision.
It also said Roberts wasn't a suitable plaintiff for the case, which it described as overly broad without enough clarity.
In his decision, B.C. Supreme Court Justice Michael Tammen ruled the lawsuit could go ahead. He said Ottawa could win the case on a few different points, like its argument that medical isolation isn't the same as solitary confinement or that the isolation was justifiable in an "unprecedented and unexpected" pandemic, but he said those would have to be decided at trial — "not at this preliminary stage."
None of the allegations have been proven in court.
Roberts has been serving a life sentence for the murders of his wife and twin sons in Cranbrook, B.C., in 1994. A jury convicted him of strangling his wife and one son, before setting a fire at the family home that killed the second son.
Roberts, then 26, was also convicted of trying to kill his adopted three-year-old. The eldest child survived after being rescued from the burning house.
He has maintained his innocence and pursued exoneration with the University of British Columbia's Innocence Project for more than 15 years, claiming his confession was the result of a flawed Mr. Big sting. He was granted the right to ask for a ministerial review of his case in 2021, seeking the opportunity to present fresh DNA evidence he says will prove his innocence.
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