A Class Action on Behalf of Federally-Sentenced Women with Mental Health Issues

Abstract

The inquiry into Ashley Smith’s in-custody death is playing a crucial role in opening up the typically inscrutable prison system and forcing the Correctional Service of Canada (CSC) to defend its policies and practices under intense public scrutiny. Yet there is a risk that Smith will be understood as an extreme outlier, rather than an indicator of a deeper problem. There remains a broader need for concrete and systemic reform of the prison system as it treats Federally-Sentenced Women (FSW) with mental health issues. In this analysis I will consider how civil litigation might be used in creative ways to seek remedies for this segment of the prison populations. Specifically, I will explore the viability of a class action lawsuit against CSC on behalf of FSW with mental health issues, with a sub-class of Aboriginal female prisoners. While there are admittedly a number of practical obstacles to bringing this type of lawsuit, a class action against the Crown offers an interesting combination of private and public law advantages as well as the potential for both individual recourse and systemic change