OTTAWA - A federal judge has ordered Canada's prison service to disclose the personal files of a teen inmate who killed herself.
Federal Court Justice Michael Kelen says the Correctional Service of Canada broke the law by failing to release Ashley Smith's records while she was still alive.
Smith was 19 when she choked herself to death with a strip of cloth at the Grand Valley Institution in Kitchener, Ont., in October 2007.
Earlier that year she had requested access to her personal prison records, authorizing their release to the Canadian Association of Elizabeth Fry Societies.
Smith had alleged poor treatment by the Correctional Service, including assault, lack of psychiatric care and frequent transfers between prisons and treatment facilities across Canada.
Prison ombudsman Howard Sapers, the correctional investigator, found she was moved 17 times in just 11 months. He harshly criticized the prison service for failing to give Smith proper care and protection.
In a ruling released Thursday, Kelen said the prison service breached the Privacy Act in not giving Smith her records, and that neither her death nor a subsequent RCMP investigation into the conduct of prison staff were valid reasons to withhold them from the Elizabeth Fry societies.
"We're pleased to have this decision," said Elizabeth Fry executive director Kim Pate. "I think it's unfortunate that we had to go to court to get it."
Pate said she's still eager to see Smith's 291-page file to glean any lessons that would help prevent similar tragedies.
The Privacy Act allows individuals to request information about them held by federal agencies.
Privacy requests are supposed to be answered within 30 days, but the prison service took a 30-day extension. Even so, it missed that deadline. The request had not been answered when Smith committed suicide -- 123 days after her initial application.
The Correctional Service told the court such delays "happen all the time."
Kelen said he understands the volume of requests for personal files "may overwhelm the limited resources" provided by the government to answer such requests.
"At the same time, the fact that the delay is normal does not excuse the (Correctional Service) from being in breach of the law by not fulfilling the request within the prescribed time under the Privacy Act."
Kelen rejected the prison service's argument that it had no legal obligation to hand over Smith's records following her death. "I conclude that the Act intended that an individual's right to grant access to their personal information survives their death."
Pate said she hopes the ruling will help Elizabeth Fry in its pursuit of dozens of other outstanding files on behalf of female prisoners. "It's often the cases that are most problematic and most challenging where we experience the greatest delays in accessing documents."
Lawyer Kris Klein, who represented the Elizabeth Fry societies on a pro bono basis, said the ruling sends a message that lack of staff to process requests from citizens for their government files will not be tolerated.
"It's not an appropriate response when it's a legal obligation," he said. "The people who are running these departments have to start taking note that these rights are important -- they're fundamental."The Correctional Service said it was reviewing the decision and that it would "be inappropriate" to discuss it, including the possibility of an appeal.
In December, Sapers asked the Correctional Service to clearly spell out what it's doing to help the mentally ill behind bars.
He said the number of inmate deaths by causes such as suicide, accident, homicide or overdose actually increased to 17 in 2008-09 from 10 the previous year.
Sapers said last year there was an "immediate and troubling" shortfall in mental health-care services for offenders -- a problem that will only grow as more people are locked away.
Ten to 12 per cent of offenders entering the federal prison system have a significant mental problem.
Kelen's ruling follows a hard-hitting report from the information commissioner that took several agencies to task for failing to answer Access to Information requests -- applications for federal material of a non-personal nature -- in a timely way.
