There are times during court cases in this province when there’s an extra witness, one with the power to affect a case as much as anyone testifying, whose side of the story comes out through the evidence of others.
A witness who has proven in recent months to have had an impact on a number of cases, either by affecting an accused’s right to a speedy trial, or lessening an offender’s sentence, or being the main factor in a civil case resulting in a settlement worth tens of thousands of dollars.
It’s Her Majesty’s Penitentiary.
The provincial prison, meant to be the consequence of crime, often crops up as a factor in legal proceedings, in both provincial and Supreme courts.
Take the case of Julio Ribeiro, 19. Charged with the criminal harassment of two people and breaching court orders in connection with a report of threats made at two St. John’s high schools this past spring, his lawyer, Shelley Senior, told the court in May she was concerned about the effect incarceration was having on his health, since he is significantly developmentally disabled.
She asked for a postponement in court proceedings because she had been unable to speak to Ribeiro in person — she had gone to HMP to meet with him, but was turned away because there were no private rooms available and she wasn’t permitted to speak with Ribeiro in the hallway. She needed more time, she said, to try again.
There’s also the case of Kenny Green, a convicted killer who was left with permanent injuries after he was targeted in a riot in the prison chapel.
The Feb. 9, 2014 attack on Green, said to have been organized as retaliation for the 2013 beating death of Joey Whalen — for which Green was convicted of manslaughter — saw Green beaten, stabbed with homemade knives and struck on the head with a broken pew.
He sued the province for negligence, saying correctional officers had known the brawl was going to happen and had warned Green about it. The case was settled out of court to the tune of $45,000 and Green’s lawyer, Lynn Moore, told the court her client’s risk would have been minimized by a properly functioning prison. She asked the court to ban the province from operating HMP on the grounds that it is “filthy and decrepit,” lacks proper space, air conditioning and officer numbers, and is in “such a deplorable condition as to constitute inhumane, cruel and unusual punishment.”
Supreme Court Justice Carl Thompson denied that request, saying it went far beyond Green’s personal relief and could overstep the court’s boundaries.
There’s the case of Justin Jennings, who was released from custody last May after a provincial court judge ruled he had spent an excessive and unnecessary amount of time in segregation, and his mental health had suffered due to decisions made by prison staff to keep him there despite his pleas and a request from the prison psychologist to have him removed.
Judge James Walsh came down hard on the prison, saying it is “completely inadequate” for inmates and staff alike, and staff had failed to protect Jennings and other inmates.
“Changes can’t come soon enough,” he said, releasing Jennings on a sentence of time served for three assault charges, a dangerous driving charge and charges of breaching court orders.
It’s not a news flash to anyone that HMP has its alarming deficiencies, and criminal defence lawyers have long experienced the resulting challenges, says Mark Gruchy.
Gruchy is a lawyer and a human rights advocate who has been calling for changes to the prison for years.
Some of the hurdles when it comes to accessing clients are relatively new, he said. Other lawyers who spoke to The Telegram informally reported the same thing.
“What they’re doing down there now, for whatever reason, it’s frequently difficult to get your client on the phone before 2 p.m.,” Gruchy said. “There’s a window in the morning when you can get him, but then you have to wait until 2 p.m. because they’ve got them all locked in. This is some sort of security process that did not exist, I’d say, for the first half of my practice. I’m not sure what’s going on down there, but it’s an inconvenience. There have also been multiple times where I’ve gone down to meet people and I find myself waiting to get access to a room, and that can pose issues as well.”
As a deeper issue, Gruchy pointed to the negative impact of HMP on inmates in general, particularly those with mental health issues, and said that impact can translate into all kinds of difficulties that carry over into the courtroom.
As an example, he referenced a client who had been dealing with the aftermath of witnessing a fellow inmate’s suicide.
“I’ll talk about what they’ve experienced in prison and then point out how that surely is a significant thing to experience,” Gruchy said. “I will allude to the difficulty of the conditions in the prison for purposes of ensuring that the court is aware of the humanity of my client and what they are currently experiencing. I believe it has meaningful impact in certain cases, and I’ve done that many times in different ways and times over the course of my career.”
Justice and Public Safety Minister Andrew Parsons declined to comment on specific legal cases, but acknowledged the well-documented need for a new penitentiary, as he has done many times before. He said he’s never heard any direct concerns from lawyers in terms of issues with accessing their clients.
“I haven’t had them brought to me specifically, and perhaps it’s not appropriate that they are,” he said. “As someone who used to go (to HMP) to meet with inmates back before I got here (in government), I fully realize the importance of inmates or anybody having the right to have access to their solicitor. While I haven’t heard the complaint, we’re listening and we’re working with staff to make the best we can of a tough situation.”
Parsons said prison officials were of moving some staff to a different office in order to free up another room where lawyers could speak with their clients confidentially.
When it comes to settlements like Green’s, Parsons said HMP isn’t different from other North American prisons in that there will likely always be conflict, and he praised prison staff for their work under tough conditions.
“You have people that simply do not want to be there, and you’re always going to have conflict,” Parsons said. “The best thing I can say is I have complete faith in our staff down there and oftentimes they’re overlooked. We want to make facilities that are safe for all those that work there, that reside there or are volunteering there.”
Memorial University-based criminologist Rose Ricciardelli believes part of the solution to the problem lies in diversion; she questions whether everyone going through the prison system needs to be there or if there are other forms of punishment and correction, particularly in terms of juvenile offenders. A smaller prison population could only alleviate some of the issues.
“If we have an overfilled court system, we need to be accountable for that,” Ricciardelli said. “It causes stress on everybody. It needs to be addressed.”