Proposed class action takes aim at Ottawa over prison practice set to become illegal


A proposed class action lawsuit recently filed in Nova Scotia could see some former inmates seek compensation for a prison practice practiced on federal prisoners for years, but which will soon be illegal in Canada.

The practice is called “dry cell”. It’s a type of confinement that critics have described as more restrictive and less regulated than solitary confinement. Dry cells are used when guards suspect an inmate of swallowing contraband or hiding it in a body cavity.

“It was humiliating. It was degrading,” Macquel Weatherbee, one of the lead plaintiffs in the lawsuit filed Wednesday, said of her experience.

“You don’t feel like a human.”

There is no running water or private places in the dry cell and the lights are always on. Inmates are watched by guards through a window and monitored by security cameras, even when using a non-flushing toilet. The prisoner is expected to expel contraband in his waste.

Two Correctional Investigators from Canada called for the practice to be limited to a maximum of 72 hours.

And in a groundbreaking court case last year, a former inmate Lisa Adams and her attorneys successfully argued if the practice is used to find contraband in a vagina, it discriminates against women and people with vaginas because they can be detained longer.

Class action filed

Following the Adams decision, Weatherbee and another Nova Scotia plaintiff came forward to co-lead a class action for damages.

Weatherbee said in 2017 she was being held at Nova Institution for Women in Truro, Nova Scotia, when guards put her in a dry cell on suspicion she had pills in her vagina. She said she hid cigarettes there for her own use and as a bargaining tool with other inmates.

Weatherbee was placed in the dry cell under 24/7 observation.

Weatherbee, of Truro, Nova Scotia, is seeking damages for being held in a dry cell in a federal prison. (Mark Crosby/CBC)

“You don’t know what time it is. You feel like a caged animal. You have nothing,” she said.

After five days, Weatherbee said she admitted to the facility manager that she had cigarettes. Two guards took her to a shower, watched her undress and asked her to take out the package.

“They asked me to lie on my back and spread my legs,” Weatherbee said. “I wouldn’t. I said no.”

“Even if, yes, we were in jail for crimes we committed, humans still don’t deserve to be treated like this. Jail is supposed to be about rehabilitation, and there’s no way a person to readapt from that.”

Weatherbee served his three-year sentence in 2018, which was tied to a conviction for armed robbery, possession of a weapon for a dangerous purpose and disguise with intent to cover his face.

“There were drugs involved. There was alcohol involved. I was a lot younger,” Weatherbee said in a June interview. Since her release from prison, she has had a daughter and she also has two older children. She took a beauty course and opened a nail salon.

Nova Institution for Women is seen in Truro, Nova Scotia May 6, 2014. Weatherbee says she was held in a dry cell at the facility in 2017. (Andrew Vaughan/The Canadian Press)

Through therapy, Weatherbee said, she began to process these events — and she thinks there should be alternatives to dry cell, like body scans or X-rays. She says she asked for a X-ray but was told it was too expensive.

In a decision last yeara Nova Scotia Supreme Court judge has ruled that this type of drywall is unconstitutional and discriminatory on the basis of gender, giving the federal government until May 2022 to propose new legislation.

Judge John Keith noted that while dry cell detention is not an “appropriate response to a suspicion of contraband being transported through a vagina”, his decision should not be taken to mean that the transport of contraband is “suddenly authorized”.

“Carrying contraband into a vagina poses a very serious threat to safety, health and security in a prison; and it remains an offense under the CCRA. [Corrections and Conditional Release Act]“, he wrote in his decision issued in November 2021.

Claim damages

In court papers, Weatherbee and the other plaintiffs said they were seeking damages for breaching their Charter rights, as the judge pointed out in the Adams decision. The plaintiffs’ statements have not yet been tested in court.

The Correctional Service of Canada responded that it will take time to review the request and will respond “in due course through the appropriate channels.” He provided no comment on the specific allegations raised by Weatherbee.

He has not yet had time to file a defense in response to the trial allegations. The proposed class action still needs to be certified by a judge in order to move forward.

Weatherbee and fellow representative plaintiff Sarah Johnson are represented by a coalition of lawyers from the Elizabeth Fry Society and a private law firm called Valent Legal, funded by a private charitable foundation called Northpine.

Dull says that if a judge has found that a person’s rights under the Charter have been violated, the decision applies to many of those placed in a dry cell. (Mark Crosby/CBC)

“If you violate one person’s rights, you violate everyone’s rights,” said Mike Dull, one of the coalition’s lawyers. “If she has a right to a remedy, anyone in the same situation also has a right to a remedy. So really, this follows on from this very important decision which has set a precedent.”

Adams, who brought the original case that ruled the dry cell violates Charter rights, said she was pleased to see others challenge the practice through the trial.

“I am happy that other women who may have gone through similar experiences to me can have their voices heard and can make a difference in their own lives.”

Lisa Adams reflects on her experiences in prison during a CBC interview in February 2021. (Steve Lawrence/CBC)

Dull said the team has already been in contact with “dozens” of people who have expressed interest in the suit.

Budget for making changes

In the federal budget presented in April, the government acknowledged that the Corrections and Conditional Release Act (CCRA) needed to be amended to bring it “in line with the Canadian Charter of Rights and Freedoms”.

In the government’s omnibus budget bill, which is about to become law, the government said it would amend the CCRA to prohibit federal prisons from placing inmates in dry cells if guards suspect inmates have contraband in the vagina.

On April 28, the Correctional Service of Canada (CSC) said in a statement that the commissioner had directed staff that dry cells should no longer be used for inmates suspected of transporting contraband anywhere other than through the digestive tract.

Additionally, CSC said body-scanning technology is permitted under changes to the law and it is implementing a pilot project to use the scanners in its prisons.

The Canadian Association of Elizabeth Fry Societies is lobbying the government on the issue of dry cell batteries, said Emilie Coyle, the association’s chief executive.

Emilie Coyle, executive director of the Canadian Association of Elizabeth Fry Societies, says she wants to see a total end to the dry cell. (Emilie Coyle/Submitted)

“When we drilled down on the proposed changes, we found that they were quite narrow and therefore did not go as far as we had hoped,” she said.

Coyle urged the government to bring in a new amendment that incorporates body scanners or x-rays and the type of policies used to regulate solitary confinement. She said that ultimately the association would like to see the practice of dry celling abolished altogether.