Judge Declares Jail Acting Unlawfully in Denying Hassan Almrei Adequate Footwear
Almrei, in Solitary Confinement since October 2001, Now Awaits Continuation of Detention Review January 5-7
TORONTO, DECEMBER 23, 2003 -- One week shy of his 30th birthday -- his third in solitary confinement at Toronto's Metro West Detention Centre-- Syrian refugee Hassan Almrei has finally won the pair of shoes that was the centrepiece of a 39-day hunger strike earlier this year. In a judicial decision just released by the Ontario Superior Court, Justice J. Gans found that the Metro West's refusal to provide appropriate footwear was "unlawful," and that the institution had engaged in what he deemed an "unlawful fettering of discretion." (Click here to see text of decision)
Held without charge since October, 2001 in solitary confinement at Metro West Detention Centre on secret "evidence" neither he nor his lawyer has been allowed to see, Almrei is one of five Muslim men who have collectively been held 114 months on the Canadian Security Intelligence Service (CSIS) secret trial security certificate. The federal government is trying to deport Almrei to Syria, depite evidence that he would be tortured and murdered there.
During the final week of September, Hassan began his hunger strike, fearing that he could not survive a third winter in the notoriously frigid conditions that are a hallmark of the West's solitary confinement cells. Indeed, during his strike, an internal ministry memo was leaked to supporters which showed that one man was rushed to hospital with hypothermia and another died from a seizure at a time when the wintertime temperature in his cell was 10 degrees Celsius.
Hassan's hunger strike resulted in a court hearing that began in late October and continued into November, with five guards eventually coming forward to testify on his behalf.
The case won international attention, inspired dozens of people to join solidarity hunger strikes, and helped focus renewed awareness on the practices of CSIS, already reeling from revelations that it shared information with the U.S. on Maher Arar, shortly before that Canadian citizen was kidnapped by authorities in New York and shipped off to torture in Syria.
In a lengthy decision, Gans paid special note to the amount of publicity and public uproar around the hunger strike. He also noted that the inmate population at the West "is, in theory, transitory, as the facility is not equipped to house individuals for months, let alone years, at a stretch," although the West is currently "home" to such long-term detainees as Mahmoud Jaballah (detained since August, 2001) and Mohammad Mahjoub (June, 2000).
Almrei's lawyer, Barbara Jackman, brought forward an application in October arguing that the inadequate climatic conditions in which he is incarcerated "constitute an infringement of his Charter rights either because the detention is unlawful per se, or creates a violation of his right to liberty or security of the person as defined in section 7 and/or otherwise amounts to cruel and unusual treatment, pursuant to section 12."
Gans notes that the solitary cells are located against an external wall of the jail, and that the management of the HVAC system is, "to say the least, not an easy task, made all the harder because of the block and brick construction undertaken in the 70s when the use of insulation, or adequate insulation, was not at the top of anyone's priority list." Gans finds that "there is little doubt on the evidence of the Guards...that the area of Mr. Almrei's Unit is, in absolute and relative terms, cold in winter and has been for some time," adding "the problem is made all the worse in the Unit because the concrete floors, particularly those adjacent to the external walls, are cold and the inmates are not insulated from this situation by even a half an inch of rubber sole [shoes]."
Noting that some inmates are forced to wear multiple pairs of socks and others block air vents to reduce the flow of cold air, Gans finds as well that since the prisoners "remain confined to their cells for most of the day in an almost sedentary state [they are] as counsel for Mr. Almrei argues, a recipe for disaster about which she complains on behalf of her client."
Gans take special note that no one testified in any respect that Almrei was in any way violent, and was in fact, "to use the hackneyed expression, a model prisoner."
Gans points to ministry directives that clearly state "unless there are reasonable and compelling reasons to the contrary, inmates housed in these accommodations [solitary] will be accorded the same conditions of confinement, rights and privileges as those afforded inmates in general population."
Regulations mandate the superintendent of the jail to undertake an assessment within the first 24 hours of someone being placed in solitary, with a mandatory review every five days thereafter (something which has never happened in Hassan's case; Almrei was thrown into solitary without a reason provided at the behest of immigration officials, with no route of appeal).
"The placement of an inmate in segregation is not a matter that is to be taken lightly," Gans states. "Furthermore, regardless of the reasons for the decision to place an inmate in segregation at first instance, that decision requires repeated re-evaluation. Surely the decision to deprive an inmate in segregation of the benefits accorded to inmates in the general population, for security reasons, is something that should be subjected to the same rigors as placement or continued placement in the Unit."
After reviewing further evidence, Gans concludes, "By not reviewing the matter anew and otherwise considering themselves bound by the 'unwritten' policy of no sneakers in segregation cells, the Prison officials were, therefore, acting in a manner contrary to the Regulations and Directives. Mr. Almrei's detention without footwear was, therefore, unlawful. Although not essential to my decision, I am also of the opinion that the apparent intransigence of management in adhering to this policy amounts to an unlawful fettering of discretion...The deprivation of adequate footwear is not an actual physical constraint but it is not the mere loss of a privilege either. It is a more restrictive deprivation of liberty than is the norm in the Toronto West and is, in fact, unlawful, as I have concluded above. It is without doubt that this deprivation is extremely significant to Mr. Almrei given his experiences over the past two years and the circumstances of his confinement."
Gans also notes that as a result of the case before him, the issue of no winter jackets being provided to prisoners who access the yard during winter has been remedied as well.
Significantly, Gans also concludes that he will "remain seized of the matter in the event that the conditions in the Unit change during the course of the winter or there is a change in Mr. Almrei's status that might in some fashion impact this decision."
In a winter of bad news, in which the U.S. tries to hype the security metre by issuing yet another "code orange" and Canadian officials work on a new homeland security department (which, contrary to public statements, IS involved in immigration matters), Hassan's victory is a significant reminder that in this dreadful time, dignified acts of resistance can still seize the public's imagination, inspire further resistance and, most important, mandate some tangible change -- in this case, adequate heat not only for Hassan but for the whole jail population.
Even more remarkable is the fact that this change started in a solitary confinement wilderness surrounded by concrete walls, steel bars, guards, high fencing, an intense propaganda campaign portraying him as a "terror" suspect, the rings of anti-Arab hysteria and Islamophobia, and the whole weight of the Canadian state. From behind these barriers came the quiet but defiant voice of Hassan Almrei, crying aloud his hope, his pain, his humanity, his example: if this is what he can do from solitary, think of how much more we on the "outside" can -- and should -- do to make the world a better place.
As Hassan marks his 30th birthday on January 1, we invite people inspired by his example to send him a card of thanks for his courage (c/o Metro West Detention Centre, 111 Disco Road, Rexdale, ON M9W 5L6) and to join us in court beginning Monday, January 5, 9:30 am, at Federal Court (361 University Ave.) for the continuation of Hassan's detention review.
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