Why a former detainee was excluded from a solitary confinement trial

A sparse solitary confinement (solitary confinement) at the now closed Kingston Penitentiary. Al Hickey describes being inside a cell like this with just a concrete slab and a toilet. (Kate Porter/CBC)

Al Hickey is a long way from the prison walls of Her Majesty’s Penitentiary, but he still vividly remembers the time he spent in solitary confinement in the basement of St. John’s Correctional Institution more than 100 years ago. two decades.

“They put me in the hole for two and a half weeks with another guy and didn’t let us out once – not once – in two and a half weeks,” Hickey said in a recent interview.

Hickey, 43, describes staying in a small cell fitted with a concrete slab, a thin mattress and a toilet, with no access to a shower during his entire stay there.

He doesn’t remember how he ended up there, but said double bunking was not necessary.

“There’s no room to walk, there’s no room to move. And there were a lot of open cells. They didn’t need to pass us in there, but [the guards] would do it to get into fights so they could be entertained.”

Hickey doesn’t remember the exact year he spent in the Provincial Men’s Jail, but court records indicate a period of incarceration in 1998, when he was 19.

Discontinuation of the class action

A class action lawsuit brought by former inmates that targets the provincial government for the use of solitary confinement from the 1990s to the present was certified in October 2021.

But when Hickey called to join the trial, after seeing a CBC report in July, he was told he missed the cut.

In Newfoundland and Labrador, the law stipulates that a non-resident must “register” for a class action within a time limit set by the Supreme Court when the action is certified.

In this case, there was a 90-day window for out-of-province people to indicate they wanted to join.

Osgoode Law School professor Trevor Farrow says Newfoundland and Labrador should catch up with the rest of the country and include non-resident legislation for non-residents interested in joining a class action lawsuit. (Submitted by Trevor Farrow)

Jasminka Kalajdzic, an associate professor at the University of Windsor’s law school, said most provinces in Canada use the opt-out process.

This means that a person who qualifies for a certain class action is automatically included, even if they don’t know it exists.

Newfoundland and Labrador and New Brunswick, Kalajdzic said, do things differently.

Pursuing alone ‘is not for everyone’

There are pros and cons to both, she says.

“If it’s an opt-out system, because they didn’t opt ​​out, they’re now locked in. They have no choice. They can’t control their own litigation. [or] start their own trial,” she said.

“If you are automatically involved but you are not aware of the case, it means that you may have lost any right to compensation because the deadlines have passed to make a claim, and you have also lost your rights to sue.”

However, in Hickey’s case, he is ruled out and the only option would be to launch his own lawsuit – which has its own challenges.

“Pursuing individually is not for everyone. It takes a lot of means, patience,” Kalajdzic said.

“Sometimes advertising is something people avoid.”

Ideally, she said all provinces would have an opt-out system, but would require a more concerted effort to alert the public to the litigation.

Trevor Farrow, a professor at Osgoode Hall Law School, said it would be beneficial if the law changed in Newfoundland and Labrador, to become consistent with the rest of Canada.

“It’s a good thing because even though we still operate provincially, there’s a lot going on across provincial borders,” Farrow said.

“And so the more unified things are, the simpler and more efficient they can be and the more predictable they are.”

Farrow and Kalajdzic both say that creating a confusion-free system is key to helping people understand class actions and their rights.

I found beauty in my solitude. Don’t get me wrong, I know how beautiful nature is, but I missed the beauty of humanity.-Al Hickey

A spokesperson for the Newfoundland and Labrador Department of Justice and Public Safety said no changes to the Class Actions Act were being considered at this time.

Speaking while on a boat off the coast of British Columbia, Hickey said he was glad the issue of isolation was getting attention.

“If you want to throw someone in a jail and treat them like trash and turn them into a Fight Club with shanks and all kinds of horrible violence, well, be prepared for that person to live next to you” , did he declare.

Looking back, Hickey believes the time spent in solitary confinement, while short, helped change the trajectory of his life.

As an adult, Hickey was drawn to seclusion, working on traplines in northern Alberta and prospecting for gold in the Yukon.

“Now I live on a boat on the islands and I usually do my best to stay away from people. And I’m starting to realize now that’s a problem,” Hickey said.

“I found beauty in my loneliness. Don’t get me wrong, I know how beautiful nature is, but I missed the beauty of humanity.”

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