Ontario is the only province where inmates are regularly locked down due to staff shortages, according to expert evidence in a pair of class-action lawsuits.
Former inmates of provincial correctional facilities and immigration detainees who were held there are suing the Ontario and federal governments, alleging that inmates are commonly held in their cells for "hours, days or even weeks" because there is not enough staff on hand to safely let them out.
The lawsuits covers a period up to 2017, but the most recent data from the province shows that 81 per cent of inmates in provincial jails are awaiting trial and presumptively innocent.
The lockdowns strip inmates of basic human rights and violate their Charter rights to life, liberty and security of the person, and the right to be free from cruel and unusual punishment, the lawsuits allege.
"During lockdowns, prisoners suffer from a deprivation of health care, privacy, dignity, security and hygiene that violate even the basic standards applicable to prisoners in the correctional institutions," lawyers write in a statement of claim.
"These conditions and their severe, detrimental impact on prisoners persist due to the Crown’s negligence in failing to appropriately staff the correctional institutions."
The province, in its statement of defence, argues that inmates are not deprived of basic human rights during lockdowns as staff attempt to maintain essential programs and services such as medication rounds, and allow for showers, visits and access to the yard when possible.
"Ontario denies that lockdowns, including staffing lockdowns, occurred with the frequency or duration alleged in the claim," government lawyers write.
"Ontario pleads that any lockdowns, including any staffing lockdowns, experienced by class members were justified and were imposed only where necessary to ensure the safety and security of inmates and staff."
The lawsuits, filed in 2016 and certified as class actions in 2017, are moving ahead, with the plaintiffs compiling various expert reports. They hope a trial can be scheduled for the fall of 2025.
Michael Weinrath, a criminal justice professor at the University of Winnipeg, wrote in one expert report that no other provincial jurisdictions across Canada use lockdowns on a regular basis to manage staffing shortages.
"To summarize, most prison systems in Canada experience some problems with absenteeism, but hire sufficient personnel and organize their correctional facility staffing to enable adequate coverage and avoid staffing related lockdowns," Weinrath wrote.
"Ontario has not complied with minimum standards relating to staffing related lockdowns, given their regular use of staffing related lockdowns."
The lawsuit covers the years 2009 to 2017 and data obtained through a freedom-of-information request shows the incidence of staffing-related lockdowns increasing from 252 in 2009 to 1,750 by 2015, Weinrath wrote.
Scott Hutchison, a lawyer on the case, said the comparisons to other jurisdictions illustrate the alarming situation in Ontario.
"There's a reason this is an Ontario case and not a case going across the country," he said in an interview. "It's because all the other jurisdictions somehow managed to operate provincial correctional facilities without having routine staffing-related lockdowns."
A related class action on behalf of people detained by the Canada Border Services Agency and held in Ontario correctional facilities in the same time period alleges their treatment amounts to cruel and unusual punishment. The two class actions seek about $1.5 billion in damages.
The federal government says in its statement of defence that claims from before 2014 are barred by a time limitation statute, but also argues that it met the standard of care and acted reasonably.
“The (Attorney General of Canada's) reasonable policy choices with respect to the immigration detention system are immune from claims in negligence,” lawyers write.
Ontario has since announced the end of an agreement with CBSA to hold some immigration detainees in its jails.
This report by The Canadian Press was first published July 3, 2024.
