Nova Institution for Women, a federal correctional facility, in Truro, Nova Scotia.The Globe and Mail
A Nova Scotia court will prohibit the federal prison practice of dry celling within six months unless Ottawa amends laws authorizing the restrictive search method to make it less discriminatory against women.
Under present laws, prison staff can place a prisoner in a dry cell when they are suspected of harbouring drugs or other contraband in a body cavity.
A dry cell lacks running water, preventing prisoners from flushing evidence. Prison staff monitor the prisoner 24 hours a day under constant illumination as long as it takes for the contraband to be expelled.
“Solitary confinement in any form is torture,” said Emma Halpern, executive director of the Elizabeth Fry Society of Mainland Nova Scotia. “However this particular form of solitary confinement is the most inhumane and the most harmful.”
Ms. Halpern acted as co-counsel for Lisa Adams, a New Brunswick mother who spent 16 days in a dry cell at Nova Institution last year because prison staff suspected she was carrying drugs in her vagina. By the fifth day, her mental health had declined so precipitously that she became incoherent while experiencing hallucinations and suicidal thoughts.
Throughout the ordeal, Ms. Adams admitted she had smuggled a cigarette into the Truro, N.S., prison, but denied she was harbouring drugs in her vagina. Body scans taken before she was admitted showed balloon-like packages concealed in Ms. Adams’ vagina, the court heard.
She asked the courts to intervene through a habeas corpus motion. By the time a judge heard the matter, however, a doctor conducting a pelvic examination confirmed Ms. Adams’ denials and she was released from the dry cell.
The Correctional Service of Canada, or CSC, initially argued that the release made the habeas corpus application moot. The argument failed to convince Justice John Keith, who wrote that Ms. Adams “remained an inmate and vulnerable to the uncertainties of the dry cell process identified in this proceeding,” in a decision released on Friday.
Ms. Adams’ lawyers argued that her duration in the dry cell was unlawful for violating several sections of the Charter of Rights and Freedoms.
Crown lawyers conceded the placement was unlawful, but for much different reasons.
The Corrections and Conditional Release Act, or CCRA, authorizes dry cell detention where there’s an “expectation that the contraband can be expelled.” The caveat meant that the law only applied to suspected rectal contraband, the Crown argued, because there “can be no reasonable expectation that contraband could be expelled by a vagina.”
In the Crown’s interpretation, Ms. Adams’ unlawful detention was an error by prison staff, not unconstitutional legislation.
Justice Keith rejected the Crown’s argument. He observed that the CCRA specifically defines a body cavity as the “rectum or vagina” and dismissed the suggestion that a vagina cannot expel.
“The predominantly involuntary menstrual process by which bodily fluids or waste (including contraband) might be expelled through the vagina is not as frequent as through the digestive tract,” he wrote. “As such, women may become subjected to longer periods of dry cell detention where reasonably suspected of carrying contraband in a vagina – as was the case with Ms. Adams.”
Menopause increases those risks, he added, because the detention in dry cell is “potentially indeterminate.”
The law, he ruled, infringes the Charter’s protection against discrimination based on sex.
Justice Keith suspended the validity of his decision for six months to give Parliament time to remedy the legislative defect.
CSC spokesman Kyle Lawlor said the federal jailer is “closely examining” the decision and that it “takes seriously its obligations to provide safe, secure, and humane treatment while assisting offenders to become law-abiding citizens.”
The Ottawa-based Canadian Association of Elizabeth Fry Societies lauded the decision, but said it didn’t go far enough. “It is an opportunity for the government and the new minister to remedy this and rewrite the legislation to get rid of dry celling,” said Emilie Coyle, the group’s executive director. “It’s an inhumane practice and there’s no reason that it needs to continue to be on our books.”
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