“We are overjoyed that we have reached a settlement for BobbyLee. BobbyLee feels this makes real headway in addressing the concerns she raised about the abuse she suffered,” said Grace Pastine, BCCLA Litigation Director. “This lawsuit has helped draw attention to the unconstitutional practice of long-term solitary confinement. We’ll continue to challenge the government’s use of this illegal practice. This settlement is a step in the right direction toward treating prisoners humanely and giving them a real chance to successfully re-enter society when they’re released.”

The terms of the government’s release do not allow Ms. Worm to disclose the terms of the settlement but Ms. Worm is pleased with the outcome of the process and the settlement.

Ms. Worm, who experienced extreme physical, emotional and sexual abuse throughout her childhood, was 19 years-old and a first time offender when she entered prison. During her years in solitary confinement, Ms. Worm would spend up to 23 hours a day in a cell 10 by 8 feet in size. Often the only human contact she had was through the food slot in the door of her cell.

Prison officials placed Ms. Worm on the Management Protocol, a program for high-risk women prisoners that allowed prison officials to isolate women in solitary confinement for months and years at a time. The vast majority of the women placed on the program were Aboriginal. Women had to earn their way out of solitary confinement and could be returned to it for virtually any reason, including negative “emotional” behaviour, such as swearing or being disrespectful to staff.

Prison officials released Ms. Worm from the program two days after the BCCLA filed her lawsuit. Later that same month, the Correctional Services of Canada announced that it would end its use of the program across Canada.

Raji Mangat, counsel at the BCCLA: “The Management Protocol was a failure. It exacerbated symptoms of mental illness in prisoners, leaving women more damaged and less able to function in society than when they entered prison. As soon as BobbyLee was taken off the program, she was given access to programs to support her rehabilitation, including meaningful access to a First Nations elder.”

Robert Janes, lawyer for Ms. Worm: “It’s clear that this lawsuit had a real effect on how Corrections Canada operates. It should not have taken this lawsuit for the Government of Canada to cancel the Management Protocol but we’re relieved to see it go and have this case resolved.”

Ms. Worm was represented by the B.C. Civil Liberties Association and the cooperating law firm of Janes Freedman Kyle Law Corporation.

Backgrounder: BCCLA Settles Solitary Confinement Lawsuit Against Federal Government

What is solitary confinement?

Solitary confinement, also known as “segregation”, is the practice of confining a prisoner to a cell and depriving him or her of meaningful human contact for up to 23 hours a day. These conditions result in significant periods of sensory deprivation and social isolation.

What are BCCLA’s concerns with prolonged solitary confinement?

The negative effects of long-term solitary confinement are well-documented. These effects include psychosis, hallucinations, insomnia and confusion.

Prisoners are rarely able to function in the general prison population – or elsewhere – when released from solitary. The damaging effects of solitary confinement increase the longer the prisoner is kept isolated and the effects of prolonged isolation often hinder a prisoner’s rehabilitation. Solitary confinement can create mental illness where none previously existed and can exacerbate pre-existing illness. Ultimately, solitary confinement leaves many individuals more damaged and less capable of living a law-abiding life.

Canadian prison expert Michael Jackson has described solitary confinement as “the most individually destructive, psychologically crippling and socially alienating experience that could conceivably exist within the borders of the country.”

How can a prisoner be placed in solitary confinement?

Prisoners in Canadian federal prisons are placed into solitary confinement in one of two ways.
The first way, called “disciplinary segregation,” is used as a form of punishment when a prisoner is convicted of a serious disciplinary offense within the prison. The prisoner is “sentenced” to a period of disciplinary segregation after a hearing before an independent adjudicative body. Disciplinary segregation is limited to 30 days unless there are multiple convictions, in which case segregation is capped at 45 consecutive days.

The second way, called “administrative segregation”, is used to separate a prisoner from the general prison population for safety or security reasons. With administrative segregation, there is no hearing before an independent body. An individual is placed into solitary confinement based solely on the finding of the institutional head that the prisoner’s presence in the general prison population raises a risk to security or safety. Significantly, there is no limit on the amount of time a prisoner may be held in administrative segregation.

The day-to-day experience of solitary confinement is the same, regardless of whether it is imposed for disciplinary or administrative reasons.

What is the Management Protocol?

The Management Protocol was a program developed by Correctional Services of Canada for female prisoners who were deemed to be “high risk”. A key feature of the Management Protocol was its use of prolonged and indefinite solitary confinement. No similar program was created for male prisoners.

The Management Protocol consisted of three “steps”. On step 1, the prisoner was confined to her cell for up to 23 hours a day with no ability to associate with other inmates. Step 2 permitted the prisoner with limited opportunities to interact with other inmates in controlled settings, such as group therapy sessions. Step 3 of the protocol reintegrated the prisoner into the general prison population but with the constant threat that she could be sent back to solitary for virtually any reason, including negative “emotional” behaviour.

There was no limit on the amount of time a woman would spend on each step of the Protocol. There was no timeline for graduating from one step to the next.

Once a prisoner was placed on the Management Protocol, it was exceedingly difficult for her to “reintegrate” or return to normal prison conditions. In practice, a woman could spend years – perhaps the majority of her sentence – on the Management Protocol.

The Management Protocol was a form of administrative segregation. Corrections Services of Canada announced the discontinuance of the Management Protocol program in March, 2011, shortly after the BCCLA filed Ms. Worm’s lawsuit. However, the use of administrative segregation continues today.

Who has been placed on the Management Protocol?

Seven women were placed on the Management Protocol since it was first created in 2005. At the time the lawsuit was filed, all of the women on the protocol were Aboriginal, suggesting that the Protocol was applied in a discriminatory fashion.

Who is BobbyLee Worm?

BobbyLee Worm is an Aboriginal woman originally from Saskatchewan. Ms. Worm was 22-years old when she was placed on the Management Protocol. She was a first time offender, serving a sentence of 6 years and 4 months for offences including robbery.

Ms. Worm suffers from a serious history of trauma and abuse. Many of her family members were sent to residential schools. She suffered extreme physical, emotional and sexual abuse throughout her childhood and adolescence. She was introduced to drugs by peers and was addicted at an early age.

Ms. Worm was first placed on the Management Protocol in 2008. While in solitary confinement, Ms. Worm was confined to her cell, deprived of meaningful human contact, for up to 23 hours a day, for months at a time. She spent a total of over three and a half years in solitary confinement.

Ms. Worm completed her sentence and was released in May, 2012. She served the majority of her sentence in segregation.

With the conclusion of the lawsuit, Ms. Worm intends to reunite with her family in Saskatchewan.
What are the alternatives to solitary confinement?

There are many alternatives to solitary confinement.

First, resources should be directed at preventing and diffusing situations that lead to the need to isolate a prisoner, rather than relying on solitary confinement as a solution. It is critical to have a range of non-violent, non-coercive interventions before solitary confinement is used. Individuals and groups must be available to diffuse difficult situations and to support women who are in crisis, including counsellors, psychiatrists, and peer and community support groups.

Second, resources must be directed to provide prisoners opportunities for work, education, and special programming. Increasing social ties and improving skills have been demonstrated to reduce violence and confrontation.

Increasingly, solitary confinement is being used as a means to warehouse prisoners with mental health problems. The experience of solitary has a particularly devastating impact on those with preexisting mental illness. Resources must be devoted to ensure that there is adequate and appropriate mental health care in Canadian prisons.

In certain instances, it may be necessary to segregate a prisoner from the general prison population due to concerns about security or safety. In those extraordinary situations, solitary confinement should only be used as a last resort and should be extremely limited in duration. While in solitary, the prisoner should continue to have access to meaningful, daily human interaction in the form of programs, other forms of rehabilitation, or supervised contact with other prisoners. At all times, prison officials must be able to demonstrate that the segregation is necessary.

The highly authoritative 1996 report from the Commission of inquiry into certain events at the Prison for Women in Kingston, conducted by Madame Justice Louise Arbour, former UN High Commissioner of Human Rights and former justice of the Supreme Court of Canada, expressed serious concerns about the indefinite and prolonged nature of solitary confinement permitted under the administrative segregation regime.

A key recommendation of Madam Justice Arbour’s final report was that prisoners should not be made to spend more 30 consecutive days in administrative segregation, and that such segregation should be imposed no more than twice in a calendar year.

The former prisoner will speak about her harrowing ordeal while held in solitary confinement. Her mother will also be at the press conference to speak about her daughter’s trauma and the effect on their family.

What: Press conference with woman suing federal government over time in solitary confinement
When: Wednesday, May 22, 2013 at 10 a.m.
Where: 900 Helmcken Street, Vancouver B.C., 2nd Floor
Who: Former prisoner and lawyers on the case will be available to speak about the lawsuit

Grand Chief Stewart Phillip, President of the Union of BC Indian Chiefs, stated: “We are extremely concerned and disgusted that the BC Government – as one of its first official actions – appears to be backing away from critical work on the urgent issue of murdered and missing women because children of Pickton’s victims are suing the government after being denied justice both in the courts and at the Inquiry.”

Micheal Vonn, Policy Director of the BC Civil Liberties Association, stated: “Legally, these lawsuits in no way prevent the government from making long overdue changes and from taking the advice of affected communities on what changes should be implemented. To us this looks like the government trying to protect itself from potential financial liability in court cases by refusing to make any policy or legal changes that might look like an admission of wrongdoing or negligence.

“The Attorney General says that the government “remains committed to creating a legacy of safety of security for vulnerable women”. On the contrary, it appears that the government is prepared to indefinitely stall or abandon this work. This is a terrible indicator of the state of the government’s commitment to women’s safety and equality.

“We will be meeting with our coalition partners who have been working together on the issue of missing and murdered women to decide on a course of action.”

BC Civil Liberties Association President Lindsay Lyster said:  ”The Liberty Award recipients are devoted in their own ways to the cause of protecting and expanding hard-won democratic rights and freedoms.  Their principled, creative, and often courageous efforts to do right and seek justice are invaluable – and essential – to promoting a free society in Canada.”

“From successes at the Supreme Court of BC to support the right to choice at the end of life, to in-depth coverage of police investigations, to challenging discrimination through the Arts, the Liberty Award winners showcase the importance of protecting freedoms in Canada.  We are delighted to honour their dedication and efforts at the Liberty Awards Gala.” Said BCCLA Policy Director Micheal Vonn.

The Liberty Award recipients will be honored at the BC Civil Liberties Association ‘s Liberty Awards Gala on Wednesday, June 12, 2013. The evening will also feature a keynote address with BC Civil Liberties Association  founder, the provocative and widely admired Dr. David Suzuki. The list of Liberty Award recipients, as well as tickets, are available on the BC Civil Liberties Association’s website at www.bccla.org.

Media Contact:

Lindsay Lyster, BCCLA President, 604-710-7227
Micheal Vonn, BCCLA Policy Director,  604-630-9753

About the 2013 Liberty Award Recipients

Sheila Tucker, Lawyer - Excellence in Legal Advocacy – Individual
Sheila Tucker, as co-counsel on Carter v. Canada, secured a watershed victory from the B.C. Supreme Court where the court ruled that the right to die with dignity is protected by the Charter of Rights and Freedoms.

McCarthy Tetrault – Vancouver Office, Excellence in Legal Advocacy – Firm
Under the guidance of Michael Feder, the Vancouver office of McCarthy Tetrault has shown outstanding leadership through the provision of pro bono legal assistance to support the BCCLA’s mandate of promoting and protecting human rights and civil liberties in Canada.

Openmedia – Excellence in Youth Activism
OpenMedia is a youth-driven organization that fights for the open Internet, working toward informed and participatory digital policy. Led by Steve Anderson, Reilly Yeo, Lindsay Pinto, and Shea Sinnott, Openmedia played a key role in stopping federal legislation that would give unprecedented access to security forces to monitor an individuals’ online activity.

Brian Hutchinson, The National Post - Excellence in Journalism
A journalist at the National Post, Brian Hutchinson is best known to the BCCLA for his investigative journalism on the theme of police accountability. He uncovered the “Cowboy Mountie” who was involved in the 2003 death of Clayton Alvin Willey in Prince George, and his in-depth coverage of the more recent Missing Women Commission of Inquiry was unparalleled.

Shane Koyczan, poet - Excellence in the Arts
A spoken word poet, writer, and performer, Shane Koyczan has received notoriety for his ability to addresses and challenge discrimination through his poetry. He has performed at the 2010 Olympic Opening ceremonies, and his poem ‘To this Day’ has been viewed over 8 million times after being featured at the TED2013 conference.

About the Liberty Awards

Established to commemorate the BCCLA’s 50th anniversary in 2012, the BCCLA’s Liberty Awards recognize outstanding achievements to protect and promote human rights and freedoms in Canada. The 2013 Liberty Awards Gala will take place on Wednesday, June 12, 2013. The evening features a keynote address with BC Civil Liberties Association  founder, the provocative and widely admired Dr. David Suzuki.

Partners of the 2013 Liberty Awards Gala include: International WebexPress Inc, Scandal Brewing, McCarthy Tetrault, CUPE BC, Moore Edgar Lyster, St Hubertus Wines, Ethical Bean Coffee Company, BC Federation of Labour, Martland Saulnier, McGrady & Company, and Colour WebexPress Inc.

On March 4, Justin Brooks, a 21-year-old Indigenous man living in Prince Rupert, was found dead under mysterious circumstances on the shore near the city’s downtown. Apparently, Mr. Brooks had been in a fight the same evening as his death. A coroner’s report indicates that his cause of death was drowning, but there is so far no conclusion as to how Mr. Brooks ended up in the water or whether his death was connected in any way to the fight earlier that evening. While the RCMP indicate that their investigation is ongoing, the Brooks family is concerned about the way the investigation is proceeding. The family says that RCMP officers who visited them seemed to blame Justin’s death on him, suggesting that he may have committed suicide, or tripped into the water. They say that the police returned their son’s bloodied clothing to the family instead of keeping it as evidence. The family also say they were denied the ability to view Justin’s body and the condition that he was in after he was found.

Grand Chief Stewart Phillip, President of the Union of BC Indian Chiefs stated: “The relationship between many First Nations communities and the RCMP is broken. Time and time again, RCMP action and inaction has made our people feel they cannot rely on them for help and that they will not be treated fairly. The RCMP have not paid enough attention to violent crimes against our people, whether along the infamous Highway of Tears or the many unsolved deaths of women and men throughout the north. We question why the RCMP are so quick to dismiss the suspicious death of Justin Brooks as a suicide or as an accident. We are deeply concerned as to how casually the RCMP approach their investigations when a First Nations person is killed.”

Justin Brooks’ death follows the unsolved deaths of a 15-year-old Indigenous woman at the same park in 2003, Kayla Rose McKay, and a 14-year-old Indigenous woman Emmalee Rose Mclean in 2010 on Prince Rupert’s shore.

Micheal Vonn, Policy Director of the BC Civil Liberties Association added: “There is clearly a problem in BC when First Nations families and communities are unable to place their faith in law enforcement either to protect them, or to properly investigate crimes committed against them. Across the north we have heard from many First Nations communities that police treat them poorly compared to non-First Nations communities. The tragedy of missing and murdered women on the Highway of Tears is the most well-known example, but the problem extends well beyond that.”

The BCCLA will spend Friday, May 3 meeting with families of Indigenous people whose deaths remain unsolved. The BCCLA will also seek a meeting with the local RCMP. There will be a vigil in memory of the victims on Saturday, May 4 at 8pm at the Prince Rupert’s Rotary Waterfront Park.

“The findings of the IIO provide more questions than answers. The IIO has an extremely limited mandate, restricted to determining whether there was evidence of a crime in the act of the fatal shooting, an act to which the only witnesses were police officers. The broader questions are outside the jurisdiction of the IIO and include why the RCMP brought in an extraordinary use of force (including a helicopter) to deal with a relatively minor dispute between two brothers and foiled attempts by family and others to peacefully resolve the situation, which included assaulting and arresting the victim’s mother. All of the surrounding circumstances of this case demand urgent investigation to determine the appropriateness and competence of the RCMP in this matter and whether this tragedy could have been avoided.

“In addition to answers that we hope will come from the complaint we have launched with the Commission for Public Complaints Against the RCMP, we trust that many issues will come to light at the Coroner’s Inquest. The bereaved family of the victim and all British Columbians need to be assured that the circumstances of Greg Matters’ death are thoroughly vetted to avoid such tragic outcomes in the future.”

Free and open to the public

For the last several years, British Columbia has been developing the technical infrastructure and legal framework for a comprehensive identity card system. This year, the BC Services Card was introduced. This is a mandatory provincial card replacing the health CareCard and allowing for the addition of a range of government services, beginning with the driver’s licence.

The BC Services Card is part of major change in the way government agencies collect, access and share personal information. BC’s Information and Privacy Commissioner has serious concerns about the new card and its underlying data linking system. She has recommended broad public consultation before Phase II of the BC Services Card program is implemented.

The intention of the BC Services Card is to enhance the provision of services and the security of information. However, such systems have well known security risks and privacy implications. Can we get the balance right in developing a new system? That is the subject of the report and the pressing question that a panel of experts, advocates in privacy and computer security will be discussing, including:

Christian Paquin, Microsoft Research
Micheal Vonn, Policy Director, BCCLA
Bradley Weldon, Policy Analyst, Office of the Information and Privacy Commissioner of BC
Dr. Andrew Clement, University of Toronto; Policy Director of the Identity, Privacy & Security Institute
Christopher Parsons, University of Victoria; Block G Privacy and Security Consulting
Vincent Gogolek, Executive Director, Freedom of Information & Privacy Association
Dr. Kate Milberry, Report author

This important academic research and workshop are funded by the Privacy Commissioner of Canada through the Contributions Program.

Bill S-7 is the latest attempt by the federal government to re-introduce controversial and troubling provisions from the Anti-Terrorism Act, passed in the aftermath of 9-11. These include “investigative hearings”, which compel individuals to testify in secret before a judge, and “preventive arrests”, allowing police to lock people up for up to three days without charge. Those provisions expired in 2007 as the result of a “sunset clause” when a majority of Parliament deemed them to be unnecessary, and voted against their extension. Bill S-7 also goes beyond the original 2001 legislation by creating new offences under the Criminal Code which are premised on very broad definitions of terrorist activity and what would constitute participation in such activity. These new offences run the real risk of criminalizing legitimate forms of political dissent.

Micheal Vonn, Policy Director of the BCCLA, said: “Bill S-7 is unnecessary. It is telling that every major terrorism-related incident in Canada since the introduction of terrorism legislation has been investigated and prevented without any need to use these special powers. The existing Criminal Code is the most effective and appropriate tool to counter terrorism in Canada, as seen by the recent arrests in Montreal and Toronto of terror suspects alleged to be involved in a plot to derail a train.”

Under Bill S-7, individuals could be stripped of their constitutional rights and be forced to testify in court, arrested, detained or made subject to bail conditions – all without any charges being laid. Individuals will have no right to know and no opportunity to challenge the basis of their so-called preventive arrest, or the requirement to attend investigative hearings.

Vonn added: “It is morally and constitutionally repugnant to consider locking someone away for up to a year with no criminal charge. This Bill threatens ancient, precious and hard-won democratic safeguards, and Parliament must exercise extreme caution. Canadians deserve no less than Parliament taking a sober second look at this Senate Bill, instead of rushing to pass legislation in a climate of fear.”

The BCCLA appeared before parliamentary committee in November 2012 to highlight its concerns that these measures would likely have no demonstrable effect on combating terrorism, but they would certainly erode the core democratic principles and ideals that all Canadians have an interest in seeing protected.

The BCCLA’s letter to leaders in Parliament can be found here >>
The BCCLA’s submissions from November 2012 can be found here >>
An earlier submission on very similar Bill C-17, can be found here >>

The BCCLA argued that Bill C-309 threatens the constitutionally-protected freedoms of expression and association by placing a chill on those who may wish to wear masks at popular protests and demonstrations. The rights watchdog stated that there are legitimate reasons for wearing masks that are connected to the fundamental right to freely express one’s opinions.

“Costumes and masks are lawful and they can be a powerful aid to unpopular speech,” said Josh Paterson, Executive Director of the BCCLA. “They can help foster the uninhibited expression of political views. The anonymity of a mask can protect people who are voicing their political opinions from punishment or reprisal by government, employers, family and others. In some cases the masks and costumes themselves may be a political message, such as wearing a polar bear suit to a climate change rally.”

The BCCLA pointed out that the new law would also threaten the presumption of innocence, and potentially expose people to criminal penalties in an arbitrary way when they have no intention or knowledge that they are committing an offence. For example, the Association noted that in a large protest such as those recently seen in Montreal, police might declare the gathering illegal if a handful of people blocks away smashed a window, without hundreds or thousands of protesters realizing it. This would, the BCCLA stated, mean that anybody in that crowd wearing a costume or a mask would instantly, and unknowingly, have their lawful protest turned into a crime punishable by a prison term.

Paterson added: “It is unacceptable that people who are exercising their constitutional freedom of expression could be instantly and arbitrarily criminalized. This Bill threatens the freedom of expression that lies at the core of our democracy. Every individual already has a duty to identify him or herself if they are being arrested by police for suspected criminal conduct. It is unnecessary to make it an automatic criminal offence to have a costume on if a protest is declared to be an illegal gathering or riot by police.”

Paul Champ, a lawyer who frequently acts on behalf of the BCCLA, represented the Association at the Senate Committee. He also testified on this bill to a House of Commons committee in 2012. After hearing testimony from many groups concerned about the civil rights implications of the bill, the bill was actually amended to increase the maximum jail term from 5 to 10 years.

The case involves Ontario’s Special Investigative Unit (SIU), the civilian agency responsible for conducting independent investigations into incidents involving the use of police force causing death or serious injury. The SIU was formed due to citizens’ concerns about having “police investigate the police.”

This case involves two separate fatal incidents involving the police. At issue is whether police officers who are witnesses to incidents attracting the attention of the SIU are entitled to obtain legal assistance in the preparation of their notes regarding the incident, and the nature of that legal assistance.

In both incidents, the SIU concluded that there were no reasonable grounds to believe that the shootings constituted criminal offences. However, the SIU reported that there were serious concerns about the reliability of the police officers’ notes.

The BCCLA will argue that police officers who witness investigations into the use of force by other police officers have a duty to write independent notes and that those notes must be made immediately after the occurrence of an incident. This duty is central to the integrity of the criminal justice system and the public’s confidence in the police. An officer who witnesses a bank robbery does not seek legal advice before completing the notes his or her duty requires. The fact that an officer is under investigation should not alter this normal practice.

The BCCLA is represented in this case Andrew I. Nathanson and Gavin R. Cameron of Fasken Martineau.

The BCCLA’s argument in the case is available here >>

What: Supreme Court of Canada will hear oral arguments in Wood v. Schaeffer.

When: Oral arguments begin on Friday, April 19 at 6:30 am PST / 9:30 am EST

Where: Supreme Court of Canada (Ottawa, Ontario)