Province seeks compensation from torture victim | John L. Hill

By John L. Hill

Law360 Canada (October 13, 2023, 8:16 AM EDT) --
John L. Hill
John L. Hill
What is the appropriate response when one gets caught for wrongdoing? One response might be to apologize and vow to amend one’s ways. The other response might be to punish the person who disclosed the misbehaviour. It appears the government of Saskatchewan has chosen the latter.

In late June 2023, CBC extensively investigated Saskatchewan’s use of full body restraint on youths in custody in Saskatchewan’s youth jails. The device is called the Wrap. CBC’s video showed a young man with his head encased in a motorcycle helmet, and his body immobilized with a series of mesh straps held rigid by steel buckles and Velcro. Straps binding his legs and ankles were connected to a shoulder harness to contort his body into a 45-degree angle while sitting with his hands cuffed behind his back and locked into a carabiner. The video depicted a young man crying and hyperventilating in extreme pain and discomfort for several hours.

Such treatment would be illegal in federal penitentiaries. But the use of the Wrap continues in three provinces for punishing youthful offenders: Saskatchewan, Manitoba and New Brunswick. The CBC also reported that the use of the device has been criticized by Gabor Maté, a therapist who studied the relationship between trauma and childhood development. He compared the torture of youths in custody subjected to the Wrap as akin to the U.S. military torture of inmates in the Abu Ghraib prison in Iraq that became public in 2004.

The CBC report was sparked by a lawsuit brought by the young man depicted in the footage shown on TV. The man was Matthew Michael. He brought suit against Saskatchewan, claiming damages for the physical and mental torture he experienced by being subjected to the Wrap up to 50 times while in youth correctional facilities.

One response the province could have provided would be to apologize for the misuse of the Wrap and acknowledge the mental damage it may have caused, vowing to end or drastically reduce the use of the procedure — or, at least, to keep records of the times it was used. Not Saskatchewan. It decided its best defence was a good offence. It seeks to dismiss Michael’s suit and/or seek substantial monetary damages because it is alleged Michael turned the videos of his torture over to CBC. That, the province believes, violates the implied undertaking of confidentiality. In Saskatchewan’s view, it is a more despicable violation than mental torture.

The Notice of Application will be heard in the Court of King’s Bench in Saskatoon on Oct. 31, 2023. Counsel on behalf of the government of Saskatchewan refused to comment when contacted about this matter because it is a matter before the courts. However, the Notice of Application filed with the court cites Juman v. Doucette 2008 SCC 8 as authority that for material exchanged in the course of disclosure, there is an implied undertaking that it will not be revealed to outside authority except under limited and unusual circumstances.

That was a case where British Columbia police sought to seize a transcript of a civil discovery where a party made an admission that could be used to advance a criminal charge and thus violate a person’s constitutional right to remain silent. Whether or not the Court of King’s Bench accepts that argument will be determined later.

Nonetheless, the disclosure of torture within a provincial or federal correctional system ought to be applauded. Too often, prison walls and fences are as much to keep the public out as they are to keep inmates in. Penitentiaries, jails and youth facilities abhor public scrutiny.

Even if the actions of a young man revealing the dirty secrets of the Saskatchewan youth correctional system led to his suit being dismissed or to his paying money despite the torture he received, the public is the ultimate victor. Regardless of how a court decides, we have won a measure of transparency that the government of Saskatchewan would deny us.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.

LexisNexis® Research Solutions