N.S. court rules law allowing 'dry celling' of prisoners discriminates against women

TRURO, N.S. — A portion of a federal law that kept a New Brunswick woman in a form of solitary confinement for 16 days on suspicion she had concealed drugs inside her vagina has been ruled unconstitutional by a Nova Scotia Supreme Court judge.

The decision Friday by Justice John Keith says a section of the Corrections and Conditional Release Act violates the Charter of Rights and Freedoms' protection against discrimination on the basis of gender.

The judge, who heard the case a year ago in Truro, N.S., gives Parliament six months to reform the law so that it no longer discriminates against women.

Keith was referring specifically to a section of the federal law that permits the practice of "dry celling," in which prisoners are placed in a cell without running water or toilets so their human waste can be examined for concealed drugs.

Lawyers for the inmate, Lisa Adams, argued the law was discriminatory because it was designed to detect substances hidden in the rectum and failed to take into account that a substance suspected to be hidden in the vagina wouldn't necessarily be expelled during the detention.

The judge said the section of the law allowing for dry celling has a disproportionate effect on women. "Female inmates reasonably suspected of carrying contraband in their vagina are forced to take on additional burdens in terms of both the risk of dry cell detention, and the length of dry cell detention," he wrote.

Keith said the negative consequences of the existing law for women like Adams is that it can lead to "protracted dry cell detention." Her 16 days in dry cell occurred in May 2020 at the Nova Institution for Women in Truro.

The federal attorney general had conceded that Adams' dry cell detention was unlawful in her specific case, but had argued that a separate constitutional proceeding should have been filed to have the offending provisions of the law struck down.

However, the judge rejected the procedural argument, and allowed lawyers with the Elizabeth Fry Society, Jessica Rose and Emma Halpern, to make their constitutional arguments on behalf of Adams.

At the trial, the lawyers outlined the suffering of their client during her time in dry cell. Adams, who at the time of her trial was incarcerated for drug trafficking, was placed in segregation because correctional officers believed she had hidden the drug methamphetamine in her vagina while she was outside the institution on parole.

She was given an ultimatum to provide the drug or face an initial period of 14 days being kept in segregation and observed.

According to her original affidavit, Adams said she had no means of producing the drugs as they weren't concealed in her body.

The trial heard that as the segregation continued, Adams, who had a medical history of mental illness and suicide attempts, started to shake, became incoherent and threatened to harm herself. It was only after Adams had spent 14 days in segregation that she was able to have a vaginal exam performed when she sought medical attention for other health reasons. The exam exonerated her, but Adams spent two more days in segregation.

In his decision, Keith noted evidence that Adams suffered mental illness due to her prolonged segregation under almost constant observation by prison staff, including observation as she showered or attempted to go to the bathroom.

In addition to forcing a change to the federal prison law, the ruling may have also opened a fresh procedural method for prison advocacy groups to make charter challenges. In an interview Friday, Halpern said in the past her group might have been required to launch a costly and separate legal application to contest the federal laws on constitutional grounds.

However, she said in this case the judge allowed her group both to demand her client's release from unlawful detention and to use the same process to have portions of the corrections law struck down as unconstitutional.

Halpern said she is hopeful the decision will trigger a deeper review of dry celling and lead to less coercive practices. "I'm very hopeful that Parliament ... will recognize how harmful dry celling is," she said.

During the original court hearing, the Elizabeth Fry lawyers compared the statute to legalized torture, arguing that it fails to provide adequate access to a lawyer, allows for indefinite confinement and fails to offer protections, such as regular independent reviews, used in other forms of solitary confinement.

This report by The Canadian Press was first published Nov. 12, 2021.