A law that kept a New Brunswick woman in solitary confinement for 16 days on suspicion she concealed drugs in her body should be struck down due to its cruelty and lack of basic legal protections, a prisoner rights’ lawyer argued on Monday.
Lisa Adams was in court as her lawyers argued that a section of the Correctional Service Canada Act allowing segregation and monitoring of prisoners for suspected concealment of drugs violates the Charter of Rights and Freedoms.
Jessica Rose of the Elizabeth Fry Society presented her client’s case against the May 6-22 “dry celling” in a submission to Judge John Keith of Nova Scotia Supreme Court in Truro, N.S.
She compared the statute to legalized torture, arguing that it fails to provide adequate access to a lawyer, allows for indefinite confinement and fails to offer protections, such as regular independent reviews, used in other forms of solitary confinement.
“The dry cell is an environment more restrictive and more humiliating than segregation cells were ever alleged to be, and it should be all the more offensive to the public conscience that dry cell prisoners enjoy very weak procedural rights,” Rose told the court.
It is called dry celling because inmates are confined in cells without running water or toilets so their human waste can be examined for concealed drugs.
The federal attorney general is conceding that Adams’ detention was unlawful in her specific case, but argues a constitutional case can only take place if expert witnesses are called.
“What we have here is a case where the law wasn’t administered properly,” federal lawyer Ami Assignon said. She said issues such as whether existing time limits for dry cell segregation are constitutional require the testimony of mental health experts in a separate proceeding.
Rose described in court how Adams, who is incarcerated for drug trafficking at the Nova Institution for Women, was placed in segregation in May because correctional officers believed she’d hidden the drug methamphetamine in her vagina while she’d been outside the institution on parole.
She said Adams was given an ultimatum to provide the drug or face an initial period of 14 days being kept in segregation and observed.
According to the applicant’s affidavit, Adams said she had no means of producing the drugs as they weren’t concealed in her body.
She also told correctional officers the ion scan of her living area that led them to suspect her had likely picked up trace elements of the drug, as she hadn’t showered since being returned to the prison.
Rose argued before the court that Adams wasn’t given the opportunity to have a formal, Correctional Service Canada process to physically examine her for drugs.
Rather, the lawyer said it was after Adams had spent 14 days in segregation that she was able to “ingeniously engineer” getting a vaginal exam by seeking medical attention for other health reasons. The exam exonerated her, but Adams spent two more days in solitary.
Rose said her client suffered mental illness due to her prolonged segregation under almost constant observation by prison staff, including observation as she showered or attempted to go to the bathroom.
She said that Adams was only allowed out five times into the prison yard, and that she had little meaningful human contact other than a daily 10- to 15-minute visit from prison mental health staff.
The court heard that as the segregation continued, mental health observers documented how Adams, who had a medical history of mental illnesses and suicide attempts, started to shake, became incoherent and threatened to harm herself.
She was taken for an X-ray at a local hospital on May 12, but the doctor involved refused to carry out the procedure after deciding he believed the medical procedure was being carried out without Adams’ consent.
Adams argues the corrections law violates four sections of the charter.
Those include charter provisions that prohibit “cruel and unusual punishment” and guarantee the “right to life, liberty and security of the person” and the “right to be secure against unreasonable search or seizure.”
In addition, the Elizabeth Fry lawyers say the law discriminates on the basis of gender, as it was designed for the hiding of substances in the rectum and fails to take into account that human body cavities include a vagina where the hidden substance wouldn’t be expelled during dry celling.
The judge has reserved his decision.
Outside of court, Glenda Mason, Adams’ mother, said if the law is allowed to remain on the books, there is nothing to stop other women from suffering similar violations of their rights.
She said she’s looking for legal change, adding, “for Lisa to be part of that would make me very proud.”
This report by The Canadian Press was first published Nov. 9, 2020.