This Oct. 19, it will be precisely one year since the federal Liberal government took office under Prime Minister Justin Trudeau’s leadership. The date is also an anniversary of a more sombre kind. On Oct.19, 2007, 19-year-old Ashley Smith died in a segregation cell at Grand Valley Prison in the custody of Federal Corrections. The coincidence of these two anniversaries should prompt us to reflect on how far we still have to go toward improving the functions of the criminal justice and correctional systems, particularly as they are deployed in relation to girls.
Ashley Smith never committed a serious crime, yet she died in prison. The index offence for which Smith began her time as an inmate was throwing apples at a postal worker. The Smith case matters today for judges and lawyers because it reveals problems not just with the correctional system but with sentencing practices, in particular adult sentencing provisions, and youths’ rights to counsel under the Youth Criminal Justice Act.
Before she died, Smith had been repeatedly tasered, pepper-sprayed, restrained, subjected to forced medical treatment, including forced injections, and assaulted. She died alone, while guards watched, after having been relegated to solitary confinement for periods of time greatly in excess of those permitted by law. In the four years she spent in prison between the ages of 15 and 19, first as a youth, then transferred to an adult custody, she was almost always in a medical gown in a solitary cell. Hundreds of charges were laid against her while she was in custody, nearly all for defying guards’ orders, mostly by self-harming.
A 2013 inquest into Ashley Smith’s death rendered a shocking homicide verdict. This was the first time an inquest in Canada had ever ruled a death in custody to be a homicide without attributing fault for the death to another offender. The strong implication of the verdict was that it was neither an accidental death nor a suicide — it was a killing for which the system and actors within it were at fault. The incendiary effect of this verdict was muted, however, by a disappointing 2014 CSC response to the inquest verdict.
In the fall of 2015, Prime Minister Justin Trudeau assigned to the Department of Justice the mandate of addressing issues brought to light by the Smith case. Advocates for abolition of segregation in prisons have suggested that this mandate should properly be with Public Safety. However, I think the prime minister has it, at least partially, right.
My research about the Smith case found that the clearest and most direct path to preventing prison homicides like that inflicted on Smith is justice system reform and, specifically, reforms to the bail, sentencing and youth criminal justice systems. The vast majority of the hundreds of criminal offences for which Smith received guilty verdicts were administration of justice offences. While it may reveal that Smith had mental health problems at least after a certain point during her time in custody, before she was incarcerated, mental health professionals her family consulted did not diagnose Smith with mental illness. Smith’s mother, Coralee Smith, too, has maintained that her daughter became mentally ill while in prison. The pattern of escalating administration of justice offences being laid against Smith is consistent with longstanding criticisms of the use of administration of justice offences against girls. Further investigation of the extent to which not only girls continue to be treated differently from boys but, more broadly, the effects of different embodiments of diversely identified accused youths (indigenous, black, gender non-conforming, otherwise unusual, disabled) under the current youth criminal justice system is warranted.
By law, the focus of the inquest in the Smith case was limited to the 11 months she spent in federal custody. However, without absolving CSC for responsibility in her death, it is important to remember that much of what went wrong in the Smith case reveals problems with how she got there. YCJA sentencing and pre-trial detention generally are as much a part of the story of what led to the homicide of Ashley Smith as is solitary confinement.
Had she lived, Smith would now be 28 years old. Her affidavit, filed in transfer proceedings that led to her placement in an adult penitentiary, expresses her belief and hope that she could “get better and do something productive with my life.” We will never know what she could have done. As Canadians, we should be haunted by this loss and recognize that it should drive the energies of those of us working as lawyers and in other capacities related to the criminal justice system toward advocacy for bail, sentencing and YCJA reform.
Ashley Smith’s case reveals problems within the correctional system generally, and solitary confinement in particular, that continue to be relevant today. However, especially for lawyers, it would be a mistake not to remember also what happened earlier in Smith’s life, and how she ended up in adult prison in the first place.
Rebecca Jaremko Bromwich is director of the Graduate Diploma in Conflict Resolution Program and teaches at Carleton University’s Department of Law and Legal Studies. Bromwich also teaches at the University of Ottawa’s Faculty of Law and is the author of Looking for Ashley: What the Smith Case Reveals About the Governance of Girls, Mothers and Families in Canada.