Commissioner calls for end to secrecy in death of man in Halifax-area jail cell

The Central Nova Scotia Correctional Facility, in Darthmouth, N.S., is shown in this June 3, 2005 file photo. (THE CANADIAN PRESS/Mike Dembeck)

HALIFAX -- Nova Scotia's freedom of information commissioner has recommended that details of a probe into a 23-year-old man's death in a Halifax-area jail cell be made public.

Catherine Tully says in an Aug. 9 review that the Justice Department should provide The Canadian Press with most portions of a report into how Clayton Cromwell died from a methadone overdose.

The Justice Department has until Sept. 10 to indicate if it will comply.

Clayton died in his cell at the Central Nova Scotia Correctional Facility in April 2014, and The Canadian Press applied for the report on Dec. 19, 2014.

The agency blanked out almost all details of what occurred and whether policies and procedures were followed by staff in its response.

Tully chides the department over that approach to the freedom of information legislation, saying that withholding large portions of a death inquiry runs counter to the basic rule that censorship should only occur when there is a clear exemption to the Act's requirement to disclose.

"In this case, it appears that a decision was reached to withhold whole classes of records contrary to this fundamental rule," she wrote.

Tully recommends that the prison service may delete portions where personal information -- particularly names -- is revealed, but should otherwise release "the remaining information in full."

She rejected the department's argument that releasing the information would harm law enforcement, writing, "the department failed to discharge its burden of proving that the law enforcement exemption applies to the records."

"As a result, the commissioner recommends that the department conduct a line by line review of the withheld records to identify the small portions to which the personal information exemption applies and release the remaining information in full."

Devin Maxwell, the lawyer for the Cromwell family, says he hopes the department will follow Tully's recommendation as it will give relatives comfort to know details on the circumstances of his death won't remain secret.

He also said the decision is helpful to Nova Scotians who make freedom of information requests to try and find out more about people who have died in prison.

Nova Scotia's government has frequently argued that it releases more information on non-natural prison deaths than other provincial jurisdictions.

However, Tully notes that unlike other jurisdictions Nova Scotia doesn't hold mandatory public inquests into such deaths unless the medical examiner recommends an inquiry and the minister orders it.

The province has only had two such inquiries since 2010, and during that time period there have been six deaths in custody without any resulting public inquiries.

"The problem ... is that the information provided as a result of ... discretionary disclosures is in no way equivalent to the amount of detail provided through a public inquiry process," she writes.

She said in Nova Scotia, the only way to get more detailed information, other than civil lawsuits, is through the freedom of information act.

Maxwell said he's received information on the death through lengthy and difficult legal procedures in a lawsuit, but he hasn't been able to share much of it.

Maxwell has said in his statement of claim, which has not been proven in court, that documents show an intercom system that allowed inmates in one of the unit's cells to call for help wasn't working in Cromwell's cell.

The province's statement of defence admits the intercom in the West Unit cell wasn't working, but denies this amounted to negligence or caused Cromwell's death.

The statement of claim alleges another inmate overdosed on methadone the day before Cromwell died -- and it was unclear if a proper search of cells was ever carried out.

The family has argued in its court document that the province "failed to institute ... safe procedures for the prescription and distribution of methadone for use within the Central Nova Scotia Correctional Facility when it knew, or ought to have known, that the drug was routinely trafficked ... and that the drug could cause death if used improperly."

It includes 10 other allegations, including that the jail was overcrowded, that supervision was inadequate, that there weren't enough guards and there weren't enough searches.

The province responded in 2015 that Central Nova Scotia Correctional Facility personnel didn't know that Cromwell had the drug and followed proper procedures to ensure he didn't have access to it.

Maxwell said "the circumstances behind deaths in our prisons is something the public should know about."

He said public disclosure will help in healing in the death, because Cromwell's mother believes this will lead to reforms that might prevent other deaths.

A spokeswoman for the Justice Department said it is considering Tully's report.