Cruel and unusual: Why 'tough on crime' agenda may cost Canadians

When he looked out his window in January 2010, Jeffrey George Ewert claims he thought Canada must be at war.

Men holding automatic weapons patrolled the halls. He was forced from his room at gunpoint, strip-searched and denied a shower, a phone call and fresh air in the days that followed

The twist in the 52-year-old's claim — his room was a cell and his hallway a corridor in B.C.'s Kent Institution. But Ewert says the prison is his home, nonetheless.

"I was denied basic human rights," he claims in a B.C. Supreme Court affidavit. "I could not get my mind off the thought that at any moment, amidst all this tension, yelling of orders and aggression, that something was going to go terribly wrong and my head would get blown off."

Prison versus human rights

The tension between incarceration and human rights is at the centre of a precedent-setting proposed class-action lawsuit related to a violent lockdown at Kent.

Ewert is the lead plaintiff, and his lawyer will make final arguments for certification on Friday. 

By any stretch of the imagination, the 220 potential complainants make for unsympathetic plaintiffs: violent men, sex offenders and murderers scattered in institutions across Canada.

But they're the same type of inmates the BC Civil Liberties Association (BCCLA) and John Howard Society seek to represent in another lawsuit launched last week against Canada's attorney general. They claim the government's use of solitary confinement amounts to cruel and unusual punishment.

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"People may be properly put in prison, may be properly detained, may be even properly in certain circumstances for disciplinary reasons put into segregation," says BCCLA president Lindsay Lyster. 

"But that doesn't mean that they've forfeited all of their rights as Canadians."

'Abuse of correctional power'

Ewert's lawsuit followed a scathing report on the Kent lockdown by federal correctional investigator Howard Sapers.

A riot-equipped emergency response team patrolled the institution for 10 days in 2010 after staff received a report of a homemade gun, which was never found.

"Inmates were confined to their cells for days on end, some deprived of medication and the most basic necessities of hygiene," Sapers wrote in his 2011 report. "What happened at Kent Institution amounts to an abuse of correctional power and authority ... and violations of human rights law and policy."

Today, Sapers acknowledges attempts correctional services have made to address his concerns. But he says there has been a "hardening" inside Canadian penitentiaries. 

Sapers says those changes have coincided with the Conservative government's so-called 'tough on crime' agenda. Use of force — such as pepper spray — has gone up, along with inmate fights and assaults. More offenders are spending time in segregation, and the federal inmate population has risen by 17.5 per cent since 2005.

"These changes have in fact had the result that was intended, which was that more people who come into conflict with the law will end up incarcerated and typically will spend longer periods of time," he says.

Above the law?

But the changes may also result in more prisoner lawsuits as inmates choose to wield the one weapon they can't be denied behind bars — the Charter of Rights and Freedoms.

In 2012, inmates in Ontario sued the federal government for failing to provide needle exchange programs behind bars. A year later, inmates in B.C. sued over a decision to cut funds for minority faith ministries in federal institutions.

And in 2013, the attorney general settled a suit brought with the BCCLA's help by BobbyLee Worm, an aboriginal woman who spent more than half of a six-year sentence for robbery in solitary confinement. 

"The Charter of Rights and Freedoms in fact follows Canadians into court and into prisons and from time to time we've had to be reminded about that," says Sapers.

"The Correctional Service of Canada does not operate above the law."

The attorney general would not comment on Ewert's claim, but argues in court documents his class action should not be certified. The government says the lockdown came in response to credible information that contraband "posed a clear and substantial danger to human life or safety."

The response goes on to say Ewert hasn't established a breach of his charter rights to life, liberty and security, and has failed to plead that the searches amounted to cruel and unusual punishment.

His lawyer, Tonia Grace, says Canadians don't have to like her clients.

"I understand that there is a section of the public that believes if you go to jail, then whatever happens to you, tough luck," she says.

"We don't live in a society which says it's about retribution and revenge. That would be a very dangerous society. We try and teach people through example to respect the law, and we don't do that by taking away their human rights."