Aging inmates seek compensation for abuse in Canadian prisons

They couldn't escape the law; now time has caught up with them as well.

A group of federal prison inmates aged 50 and older have been given the green light to proceed with a class-action lawsuit claiming their advanced years have made them targets for assault, intimidation and bullying.

Earlier this month, a federal court judge certified the proceeding — which includes allegations older inmates have been denied access to health services they need to cope with age-related indignities ranging from lost dentures to incontinence.

Justice Simon Fothergill gave the go-ahead for a class-action lawsuit claiming systemic negligence after hearing from inmates serving time for sexual assault and murder; he also heard evidence from Canada's former correctional investigator.

'An area of growing concern'

In 2011, Howard Sapers — who served as prison system watchdog from 2004 to 2016 — warned of the problems involving the growing number of people aging behind bars.

"The older offender is often a neglected, but significant and growing, segment of the offender population," Sapers wrote in an annual report.

"There is little doubt that the combined effects of an inadequate prison infrastructure and increased impairment of older offenders will be an area of growing concern in federal corrections."

According to Fothergill's decision, inmates 50 and older comprise nearly a quarter of the federal custodial population.

The lead plaintiff in the case is known as B.W., a man who has been serving two indeterminate sentences for sexual assault at B.C.'s Mission Institution since 2013. It's his second stint at the medium security prison. He did 10 years there starting in 1993.

B.W. claimed he was attacked by a younger, aggressive inmate in 2017. After repeated requests, he claimed the prison's warden said his living unit would be designated for older inmates, but younger men were placed there anyway.

B.W. also detailed difficulties getting treatment or recognition for health concerns including cancerous brown spots on his head, plantar fasciitis and a need to use the toilet that arises "quickly and without warning."

"He says he has seen other older inmates relieving themselves in the yard," Fothergill wrote.

"To avoid this indignity, he sometimes forgoes his yard time."

'Prisons were not designed for the elderly'

B.W.'s concerns were echoed by Jeffrey Ewert, an inmate in his 60s convicted of the murder and attempted murder of two young women.

"Ewert suffers from prostatitis and arthritis," the decision says.

"He has tried to obtain supplements and vitamins to help with these conditions, but has been told that these items are no longer available."

The judge also heard from Debra Sheets, an expert who noted that aging "affects vision, hearing, bladder function, and memory."

"Dr. Sheets notes that prisons were not designed for the elderly and present risks for aging inmates, especially due to their increased frailty," Fothergill wrote.

"Dr. Sheets observes that prison staff frequently lack training to assess, diagnose, and deliver geriatric health care to older inmates."

According to the decision, Sapers said Corrections Canada "has been aware of the rising proportion of older inmates since at least the 1990s, and understood that time would aggravate the issue if nothing was done."

Sapers said an "older offender division" was established in 1999 but its recommendations weren't implemented; a framework and strategy aimed at dealing with the issue in 2018 also went nowhere.

Former and current inmates

The class-action lawsuit would apply to former and current inmates who were over the age of 50 between April 17, 1985 and the day the proceeding was certified.

The group includes inmates who claim they were subjected to "physical, emotional and/or psychological abuse" and who have suffered harm through their inability to access free or paid health care.

One witness claimed that 34,916 current and former inmates were at least 50 at some point during their incarceration.

While arguing against certification, the correctional service said the inmates had "failed to present any evidence of any experience or action common to each member of the proposed class."

They also claimed the proposed lawsuit failed to take into account "interventions that are tailored to an individual offender's circumstances and needs, the variety of CSC institutional settings and security levels, or the evolution of policies, procedures and operations over the past 40 years."

The class-action lawsuit is being handled by the same law firm that was successful in certifying a class-action lawsuit last month on behalf of Black inmates who claim they were subjected to physical, emotional and psychological abuse in Canadian prisons.

A lawyer with the firm told the CBC they "welcome" the decision, but declined to comment further.