Whose deaths matter?

The Nova Scotia government has brought in legislation to create expert review panels to look into the deaths of those who die as a result of domestic violence as well as children who die in provincial care. The goal is to “turn tragedy into lessons learned and lives saved into the future.” But Justice Minister Mark Furey refuses to extend the new law to include another vulnerable group: adults who die in provincial custody. Why not?

The renovated North Unit day room at the Central Nova Scotia Correctional Facility. Photo: Halifax Examiner

Why do the Liberals continue to get it so wrong even when they seem to be trying to get it right?

Early last month, for example, Justice Minister Mark Furey introduced legislation to have expert review committees examine deaths resulting from domestic violence as well as unexpected deaths involving children in the care of the government in Nova Scotia.

Those committees would not only look into the circumstances of each death, including how they happened and why, but also ask the more systemically significant questions about how to prevent such deaths in the future.

The laudable goal, Furey explained at the time, was to “turn tragedy into lessons learned and lives saved into the future. The more we can learn from these tragic situations, the better equipped we are to prevent them in the first place.”

So far, so good.

But there were problems even with the bill as written. For starters, committees weren’t mandatory in every such death. The committees themselves had few investigative powers or resources. And there were no requirements their eventual reports would be made public. Perhaps most troubling, the new law wouldn’t apply to all of those who died in government care.

Within the week, the bill had proceeded to the law amendments committee.

Which is where the East Coast Prison Justice Society, an advocacy group composed of individual lawyers, human rights workers and academics, as well as groups like the Elizabeth Fry Society that work with inmates — called on the government  to add the deaths of adults in custody to the categories of cases that would be examined by the new expert committees.

Ontario and Alberta already require public inquiries involving unexplained deaths in custody.

The rationale is obvious. Like children in care, society has placed inmates in government-run, closed-to-public-scrutiny institutions where they are especially vulnerable, so the government has — or should have — a duty to make sure they are safe inside. If someone dies while in the care of the state, we need to know what happened and why, so we can — as with children in care — “turn tragedy into lessons learned and lives saved into the future.”

More than 30 individuals and groups signed on to the prison justice society’s submission to the committee. Their submission also called on the government generally to give the committees more power to investigate deaths, to make such investigations mandatory and to make their reports and recommendations public.

The group’s demands found an echo in a report by former privacy commissioner Catherine Tully who had previously called for the release of an internal report into the death of a prisoner in 2014. Noting the lack of a requirement for a mandatory public inquest into such deaths, Tully pointed out “the information provided as a result of … discretionary disclosures is in no way equivalent to the amount of detail provided through a public inquiry process.”

Nova Scotia, she added, had only ordered two death inquiries since 2010, even though there had been — by official count — eight deaths in custody in that time frame.

So the prison justice committee’s requests seemed to be logical add-ons to the government’s own legislation.

Officially, Furey was non-committal. “I think there’s an opportunity to build on what was contained in the draft bill,” he told reporters, “but I have no intention of delaying the implementation of the fatality investigations act amendments.”

His actual position quickly became much clearer thanks to the trained Liberal MLA seals on the law amendments committee. They used their majority to flipper down an NDP amendment that would have added reviews of the deaths of adults in custody to the new law and make the committees’ reports public.

Why not examine prisoner deaths?

“The data,” declared Furey simply. “I don’t want to dismiss any unfortunate death in the province, but we can’t have a committee for every set of circumstances.”

Furey claims that, in the last 10 years, his department’s official body count shows 25 deaths in domestic homicides, 12 among children in care and “just” nine adults in custody who died in custody.

The East Coast Prison Justice Society says its numbers show a dozen deaths in custody in that period.

But let’s forget the numbers for the moment. Let’s talk instead about a few recent deaths we do know happened in custody.

On Sept. 10, a 29-year-old man who was waiting for a court appearance and had been previously treated for a medical issue at the Central Nova Scotia Correctional Facility “was found unresponsive in a jail cell and died later in hospital.

Furey called the circumstances “tragic,” but insisted there was nothing to be learned from it. “His is the first death in custody in the transition day room space. Yes, we’ve had other deaths in custody, but this is a very unfortunate, isolated case.”

Furey knows this exactly how?

In August, a 39-year-old patient at the East Coast Forensic Hospital — who had been incarcerated there after being found not criminally responsible in a criminal case — died, again after being found “unresponsive in his cell.” According to what police told his mother, he was found “hanging from bedsheets” in his cell.

My colleague El Jones first reported the story of his death — and of the many other issues facing patients in the forensic hospital — in a story in The Examiner on Aug. 29.

Sheila Wildeman, a law professor and member of the prison justice society, told the CBC details of what happened in the case were “very sketchy,” but added conditions in which he was held might have been a factor in his death. “We know from recent litigation on solitary confinement that the experience of intensely restrictive conditions is corrosive to mental health.”

An independent investigation would not only tell us more about the circumstances under which he died but might also help us better understand how to “turn tragedy into lessons learned and lives saved into the future.”

This past week, two Halifax special constables were in court facing criminal negligence charges in connection with the death of a 41-year-old man. He asphyxiated while wearing a “spit hood” over his head in a Halifax police cell. The spit hood, which is designed to keep prisoners from spitting at officers, carried a warning that improper use of it “may result in serious injury or death due to asphyxiation, suffocation or drowning in one’s own fluids.” The man was in the spit hood for two hours.

While officers are supposed to check on intoxicated, unresponsive prisoners every 15 minutes, one police officer testified booking officers had already complained they didn’t have the staffing to do those checks.

Nothing to learn here? No way to “turn tragedy into lessons learned and lives saved into the future.”

Not if you don’t look.

The bigger question is why won’t the government consider the deaths of prisoners as deaths of human beings in the care and custody of the government and — wait for it — “turn tragedy into lessons learned and lives saved into the future?”

The answer to that question might explain why the Liberals continue to get it so wrong even when they seem to be trying to get it right?

This column first appeared in the Halifax Examiner November 4, 2019.

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