On Cruel and Unusual Conditions in Alberta Corrections

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This month, Justice Macklin heard the most recent application in the case of Lance David Blanchard at the Court of the Queen’s Bench of Alberta.  At 59, Blanchard has spent two thirds of his life incarcerated in maximum security facilities, much of the time in segregation.  Macklin’s judgement presents Blanchard’s extensive record of violent offending. The judgement also lays bare the punishing stigma and conditions of confinement he has been subjected to in corrections.

In June 2014, Blanchard re-entered the Edmonton Remand Centre (ERC), a correctional facility where he awaited trial for two and a half years. In December 2016, Macklin found Blanchard guilty of aggravated assault, kidnapping, unlawful confinement, aggravated sexual assault, possession of a weapon, threatening to cause death or bodily harm, and breach of a recognizance. Apparently,Blanchard perpetrated these crimes in a single day during one of the rare spaces of time in his life that he has spent free. He has been awaiting sentencing and a decision on whether to designate him a dangerous offender for the past six months.

After conviction, Blanchard applied for a stay of charges on the grounds that his rights under ss. 7, 8, 11(b), and 12 of the Charter had been violated over the course of his pre-sentence detention at the ERC. He cited instruments such as The Mandela Rules, in which the UN recognized the right of all prisoners to be treated “in a humane manner and with respect for the inherent dignity of the human person.” In his decision, Macklin dismissed Blanchard’s application for a stay, but acknowledged that his treatment at the ERC constituted a violation of his ss. 7  and 12 rights that might be considered at sentencing.

Macklin provides an unusual amount of detail regarding Blanchard’s size—he approached six foot eight inches tall with feet of EEE width and a weight of two hundred and sixty pounds upon entering the ERC. Macklin also does not mince his words with respect to his dislike for Blanchard—”I found him to be a manipulative individual and a bully,” Macklin declared, going on to characterize all Blanchard’s uncorroborated testimony as “fabricated.” These “fabrications” included Blanchard’s long held position that he is unable to walk. Of the testimony of other prisoners, Macklin wrote, “all of these individuals have extensive criminal records. I have cautioned myself about the dangers of relying on uncorroborated evidence of unsavoury witnesses.”

When Blanchard entered the ERC, he was deemed a “High Profile” inmate, deemed a risk to staff and fellow inmates. Because of this status, Blanchard was subject to perpetual administrative segregation and restrained at the ankles and wrists whenever outside of his ninety square foot cell. He found himself in constant lockdown with the exception of two half-hour “exercise” breaks per day. Though his “High Profile” status was reviewed every ninety days, ERC program director Ian Lalonde reported that, in Blanchard’s case, the reviews were merely “pro forma”.

Macklin’s decision states that in theory segregated prisoners should have the same “benefits” available as those in the general prison population, but accepted Lalonde’s testimony that this is not realistically possible. “High Profile” prisoners are never outside their cells at the same time. And Norquest, with whom Blanchard attended a few math tutoring sessions, quickly ceased to provide the sessions due to tutors fear of being alone with Blanchard.  In the result, all Blanchard’s social interaction occurred through the walls and doors of cells. Under these conditions, Blanchard filled out “hundreds” of “Request for Interview” (RFI) forms indicating the need to discuss various complaints about the conditions of his confinement.  Kevin Kieser, one man who handled these RFIs, said he considered all Blanchard’s complaints reasonable. Macklin’s judgement sifts through the contents of these RFIs and further complaints Blanchard brought before him.

Blanchard complained of the ERC’s falure to provide him with the “comprehensive recreation program” ERC policies mandate for all offenders; he complained of having to stretch the two half-hour morsels of time he had out of lockdown to do everything from using the phone to showering, drinking, and obtaining whatever things had need of; he complained of a lack of access to paper and pencils, which he was unable to purchase due to having no money;  he complained of being unable to access reading material as he had no money, outside books were not allowed in, and the library program suspended; he complained he was unable to assist other prisoners with habeas corpus, mandamus, and certiorari applications because of the deficiency of the resources made available to him; he complained generally of having nothing to do in his cell and Lalonde expressed concern that that degree of dead time in a cell must have an injurious effect on prisoner mental health. Macklin wrote:

“Mr. Blanchard testified that his treatment at the ERC by both guards and inmates, the lack of simple things that could make his stay more comfortable and the absence of enough mental stimuli have caused him to suffer psychologically. He said that he sometimes feels hopeless, sad and depressed.” 

Whereas general ERC prisoners have access to yard space, activities, and exercise equipment, “High Profile” ones such as Blanchard do not. And although television sets were once approved to go into the cells, Macklin wrote that Minister of Justice and Solicitor General Jonathan Denis ultimately reversed the approval believing providing televisions to these prisoners would not be “good Alberta practice.” Macklin’s judgement denounced Denis’ decision to withhold TVs as “unnecessarily punishing.”

Blanchard complained of having no pillow for a year of his pre-trial detention; at other times he was without a pillowcase and slept with his face to the plastic pillow; due to the effects of his weight, past injuries and arthritis, a single prison mattress (essentially a glorified plastic mat) was insufficient for Blanchard to achieve comfort; he complained that it took him two years to receive the second mattress he requested; Blanchard complained of discomfort due to being denied the knee and back brace he used while out of custody; he complained that it took a year to receive an extra blanket, which he asked for because his arthritis worsens with low temperatures; he complained that his cell was uncomfortably cold; he often had only a single sheet and would have to choose whether to use it to wrap the mattress or as a top sheet;  his bedding, he complained, could only be washed once a month, leaving it soiled for a substantial percentage of the time; Blanchard also complained that the showers were filthy and that he was never provided with the stool he requested to enable him to shower, despite its having been approved; he complained of being denied a hot water bottle for his arthritis, of being roused for transport to court at four in the morning, and of a lack of any toilet in the court’s cells; his phone calls, he complained, could be overheard by officers and on an intercom system; he also complained of insufficient access to phones during business hours, a lack of footwear that would fit his feet, and of having to wear orange coveralls.

Blanchard lost approximately one-third of his weight while in prison. He complained that he was deprived of meals and the juice to which he was entitled. In his judgement, Justice Macklin disagreed with ERC Health Care Manager, Diane Payne, who testified this weight loss was not serious. “It was caused,” Macklin held, “by a big man receiving inadequate nutrition, both in quantity and quality.”

When Blanchard complained of tooth pain due to a lost filling, he was told inmates may only receive root canals or extractions and did not receive treatment until the tooth was cracked and bleeding; it took Blanchard two years to obtain glasses with the appropriate prescription and three years to obtain hearing aids, and then only when an advocate outside the ERC assisted him; he complained further that he was forced to go without his prostate medication for a prolonged period.

Blanchard complained of ill-treatment at the hands of the guards who he overheard conspiring to make his life “hell” and referring openly to his history of sex offence and victimization of minors without regard for confidentiality rules; Blanchard testified that the guards threatened him and referred to him by derogatory epithets, one of which was “rat,” allegedly in reference to his having made complaints against them though the RFI process was supposed to be confidential; they also called him “skinner,” a derogatory term for pedophiles and gay men used in prisons; he complained of officers unnecessarily “tossing” the contents of his cell about as a part of monthly searches; and he further complained of numerous random and unjustified strip searches in conditions where his body was displayed to other prisoners and on camera, though Macklin found a lack of evidence for this. Other prisoners confirmed witnessing guards mistreating Blanchard.

Blanchard complained that he was repeatedly “fecal bombed” by other prisoners, or had buckets of urine poured onto the floor and into his cell; he complained that prisoners who were allowed to deliver meals contaminated his food with their waste and bodily fluids. Other prisoners testified that on occasion the guards asked that they visit these torments on Blanchard and demanded that Blanchard remove mechanisms he developed for preventing the waste from entering his cell. Blanchard had complained that the guards were facilitating this abuse..

Macklin found that of the hundreds of complaints Blanchard filled out, he states that only one was seriously investigated, resulting in the charging of one prisoner for fecal bombing Blanchard. No one looked into the complicity in and abetting of his ill-treatment by guards. With the forty plus RFIs submitted by inmates per day, many RFIs are not responded to, Kieser testified. Some of Blanchard’s RFI forms had comments on them such as “noted as same ramblings on previous RFI,” without any indication of which previous complaint was being referred to. Further, there was little precaution taken to ensure the confidentiality of the complaints process and Macklin held that the steps taken to investigate Blanchard’s complaints and to cultivate confidentiality were “inadequate.”

Chris Dube, testified that he there was no evidence of mental deterioration on Blanchard’s part and that Blanchard never expressed a wish to be moved out of segregation.  Justice Macklin, however, determined that without expert testimony, it was impossible to truly assess Blanchard’s degree of suffering as a result of his treatment in the ERC, saying:

First, it must be remembered that Mr. Blanchard has spent somewhere in the vicinity of 35 years in prisons over the last 38 years or so. I have no doubt that spending that amount of time in penal institutions, regardless of the level of treatment an inmate receives, is detrimental to one’s mental health. I also have little doubt that a return to a remand institution after having a taste of freedom could also result in some deterioration of one’s mental health. Further, Mr. Blanchard has endured the stress of a trial and a further finding of guilt.

While finding much of Blanchard’s evidence dubious, Macklin concluded that he had established subjection to “particularly harsh” conditions and treatment. Finding a sufficient nexus between the charges and his Macklin considered his stay application. He indicated that Blanchard’s application was “not an opportunity for an inquiry into general conditions in the ERC, nor can it be a judicial review of decisions made by ERC administration and other state authorities.”

Macklin considered the s. 12 matter of whether Blanchard had been subjected to cruel or unusual treatment, holding that this would be dispositive of the s. 7 question of whether his right not to be deprived of liberty, or security of the person except in accordance with the principles of fundamental justice. “The law,” he wrote “is clear that inmates should not be deprived of their civil or human rights except to the extent made necessary by their incarceration.” Macklin then held that Blanchard’s section 7 and 12 rights had been violated by his being subjected to conditions and treatment “grossly disproportionate and offensive to societal notions of fair play and decency.” He listed the following as constituting Charter violations: “severely limited physical recreational opportunities and mental stimulation,” “inadequate food and lack of appropriate utensils,” ” difficulty in obtaining new eyeglasses” and hearing aids, denial of medication, lack of confidentiality surrounding his RFIs and criminal record, verbal abuse and it’s encouragement by officers as well as their encouragement of his subjection to human waste, and the failure of the ERC to investigate Blanchard’s complaints.

In the end, Macklin dismissed the application for a stay, holding that it was in the interest of society that Blanchard’s conviction stand and that the dangerous offender application go forward. He suggested, however, that a sentence reduction might be an appropriate remedy, writing:

I do not understand why efforts are not made to ensure that inmates in these units are provided with sufficient legitimate exercise time and stimulation for their physical and mental wellbeing…Inmates should also be afforded real exercise time with proper exercise equipment and, when the weather permits, time in the real fresh air as opposed to a “fresh air room”. Notwithstanding the fact that inmates at the ERC are lawfully in custody, they are presumed innocent until proven guilty and there is no basis to punish them by depriving them of reasonable living conditions except to the extent necessary to address safety and security concerns.

This blog post was written by a CCLA summer law student. Views expressed do not necessarily reflect the view of the CCLA.

 

About the Author

Amara McLaughlin-Harris
Amara is a University of Toronto student at law. She has come to the CCLA as a summer legal volunteer with the support of U of T's Student Law Society Fellowship program.