Ashley Smith inquest: Death a homicide, jury rules

Jurors in the Ashley Smith inquest have returned a verdict of homicide. The lawyer for Smith’s family is calling for a criminal investigation to be reopened.

Shocking Ashley Smith videos key to inquest

By: Donovan Vincent News reporter, Diana Zlomislic News reporter, Published on Thu Dec 19 2013

Ashley Smith did not commit suicide.

She may have tied a ligature around her neck, day after day, sometimes multiple times a day while sitting in a cramped segregation cell that had no blanket, pillow or mattress, wearing only a padded gown, but Ashley Smith did not want to die.

She was the victim of homicide.

A jury of five women who have spent the past eight months examining every aspect of the 19-year-old Moncton woman’s tortuous year in federal custody — including the video that showed Ashley’s final hour, her face turning a purplish-black as she pulled tight on the piece of cloth around her neck while prison guards, who were ordered to not intervene, watched for nearly 20 minutes — arrived at the final verdict at the inquest into her death on Thursday morning.

Coroner John Carlisle read the jury’s finding to a crowded court in downtown Toronto.

Gasps shot through the room.

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TORONTO STAR FILE PHOTO

The inquest heard that shortly before Smith died prison guards were under orders to not to rush into her cell when she was harming herself but rather to wait and monitor her breathing.

It was the unprecedented, damning indictment of Canada’s Corrections System that Ashley’s mother and sister prayed for but thought they would never get.

Eighteen hundred kilometres away, near Halifax, Coralee Smith and Dawna Ward erupted in “crying and jumping up and down and slapping each other.”

They were huddled around the computer in Coralee’s home office, watching the inquest live on webcast for nearly an hour as Carlisle read out each of the jury’s 104 recommendations.

“I’m so grateful to those five ladies,” Ashley’s mother Coralee told the Toronto Star by phone. “We’ll be eternally grateful. This has brought peace upon us. And what a wonderful time of year for that to happen.”

The homicide verdict is not a finding of legal liability.

While the jury is not allowed to assign blame to any one individual or institution, lawyers representing the guards’ union and Ashley’s family welcomed the opportunity.

“It’s pretty clear to anybody paying attention to this inquest where that accountability lies,” said Howard Rubel, counsel to the Union of Canadian Correctional Officers. “It’s with the management of the Correctional Service of Canada.

“The ones that have truly, truly gotten away with something are those that issued the orders . . . the deputy warden (Joanna Pauline), the warden (Cindy Berry) . . . those above them,” said Julian Falconer, one of the lawyers representing Ashley’s family. He called for a criminal investigation of top brass at Grand Valley Institution for Women in Kitchener, where Ashley died, and for Correctional Service Canada Commissioner Don Head to resign immediately.

“It’s high time that those in charge are held accountable,” Falconer said.

Public Safety Canada responded Thursday on behalf of the federal prison service but would not specifically address the homicide verdict, calls for Head to be replaced, or calls for a new criminal investigation.

Public Safety spokeswoman Sabrina Mehes said in a written statement that the Smith tragedy shows people with severe or acute mental illnesses “do not belong in prisons.

“That is why we are currently working with the provinces and territories to ensure appropriate care is provided for them,” Mehes said.

Tweets from the inquiry

Waterloo Region police has no immediate plans to conduct a further investigation into Ashley’s death, said spokesman Olaf Heinzel.

In 2007, three guards and their supervisor were charged with criminal negligence causing death, but the charges were dropped at a preliminary hearing, in large part because the Crown and police learned that the guards were following orders when they failed to immediately enter Smith’s cell.

During the inquest, Pauline testified she was following orders from Berry. Berry testified she didn’t tell guards to wait. She said her understanding was that guards were deciding for themselves when to enter Ashley’s cell based on their assessment of when she was in distress.

Their lawyers did not respond to the Star’s request for comment.

Smith was in federal custody for nearly a year before she died. In that time, she had been transferred among 17 institutions in four provinces. Deemed a “high-needs inmate,” she was kept segregated, alone in a solitary confinement cell that had no bars but a full metal door with a meal slot that opened from the outside.

“It’s a wake up call, I believe for all Canadians that we need to demand a lot better from our Correctional service,” said Julian Roy, another lawyer representing the Smith family at the inquest.

Kim Pate, executive director of the Canadian Association of Elizabeth Fry Societies, a group that lobbies on behalf of women offenders, said homicide is the appropriate verdict.

“What happened to Ashley should never have happened,” Pate said. “The concoctions of her as being violent were false; they were concocted in a way to justify a punitive treatment of her.”

Smith had been incarcerated since she was 15. She was charged and sentenced to closed custody after breaking probation by throwing crab apples at a postal worker in downtown Moncton. Her self-harming behaviour started at the youth jail in Miramichi, N.B. In custody, she wracked up additional criminal charges for bad behaviour — acting out against staff — causing her sentence to balloon to more than six years.

Her original sentence was 30 days.

The jury recommended that in the future, if prison staff complain to police about an inmate’s alleged misconduct, officers should be told about the prisoner’s mental health history and provide context for the behaviour.

Ideally, though, female inmates with serious mental health issues and/or self-injurious behaviour should be serving their sentences in a federally operated treatment facility, not a security-focused prison-like environment, the jury said.

They called for indefinite solitary confinement to be abolished. They said wardens must check in daily on inmates who are segregated and not simply by viewing the prisoner through the meal slot.

Ashley Smith has a candid conversation with guards as she was being transferred to the Philippe-Pinel Institute in Montreal from the Regional Psychiatric Centre in Saskatoon April 12, 2007, six months before her death.

The jury urged that Canada’s auditor general conduct a comprehensive review of how the correctional service responds to their recommendations, with the results released publicly in 2019-2020.

Ashley Smith Verdict

Diagnosed as having a borderline personality disorder, a mental health condition that is difficult to treat, Smith often self-harmed, which included habitually fashioning ligatures and tying them around her neck to choke.

Pate said she believes Ashley did it because it was the only opportunity for human interaction that the teen had while segregated. If she tied ligatures around her body, she believed someone would come in her cell to cut them off.

At all other times, interaction between Ashley and staff occurred only through the cell door’s meal slot.

Her family and their lawyers say Smith was treated like a “caged animal” and “tortured” during this period.

Correctional Service Canada officials say they did what they could to keep her safe and alive.

Videotaped images of Smith’s treatment in prison, released throughout the inquest, provided rare glimpses into the way Canada’s correctional system operates.

There was the video of her prison transfer April 12, 2007 on a turbo jet, where she was restrained in her seat, her wrists duct-taped, hands and ankles cuffed.

And there was the more disturbing video of her dying moments at Grand Valley that shows Smith slumped over on the floor, gasping her final breaths as guards, confused over when to step in, asked her to remove the ligature she tied around her neck.

Corrections officials fought against the release of these and other videos, along with thousands of pages of documents, audio recordings and other items related to Smith’s time in the system.

For example, just over two years after Smith’s death, despite a spring 2010 federal court order calling for records to be released, Corrections officials initially withheld documents related to her time at Grand Valley.

Justice Michael Kelen rejected the prison service’s argument that releasing the documents violated Smith’s privacy rights. In ordering the immediate release of the files, Kelen ruled Smith’s death didn’t negate her consent. Before Smith died she had asked Kim Pate, executive director of the Canadian Association of Elizabeth Fry Societies, a non-profit advocacy group for federally sentenced women, to review her Grand Valley files.

A few months later, Corrections agreed to release the documents to Elizabeth Fry.

Still, protracted legal battles ensued over the release of information and prison videos in Corrections’ possession.

Initially Dr. Bonita Porter, then Ontario’s deputy chief coroner for inquests, had planned to limit the inquest to Smith’s time in Ontario only — the last 13 weeks of her life.

Smith’s family, however, supported by prison and youth advocacy groups, urged Porter to consider Smith’s entire time in federal custody. They believed this part of Smith’s time in the prison system would provide key details about her state of mind leading up to her death.

In December 2010 Porter quashed her own ruling, and expanded the scope of the inquest to include the nearly year-long period.

In another of her decisions, Porter ruled out videos showing Smith at Joliette prison in Quebec in July 2007 strapped to a gurney and forcefully being given antipsychotic drugs. Porter said they didn’t pertain to Ashley’s state of mind.

But in May 2011, an Ontario Divisional Court overturned that ruling and ordered Porter to reconsider the matter.

The inquest that started with Porter in 2011 was halted when she retired that year.

In November last year, Ottawa reversed course. Vic Toews, then the federal Public Safety minister, ordered the team of lawyers representing the Correctional service to “co-operate” with the inquest, including releasing all materials related to Smith’s treatment in federal custody, including prison videos.

A second inquest began hearing evidence in January 2013 with Dr. John Carlisle, a lawyer and physician, as the coroner. It heard from 83 witnesses — including guards, ex-wardens, nurses, psychiatrists, psychologists and medical doctors — over 107 days, with Carlisle giving his charge to the five-person jury Dec. 2.

Much of the inquest focused on Smith’s final months at Grand Valley. That’s when guards were following inappropriate instructions they were given by their bosses, telling them that rather than rushing into Smith’s segregation cell every time she tied ligatures around her neck, the guards should wait first, and look for signs she was in medical distress, and then go in.

Cindy Berry, the acting warden at the time of Smith’s death denied giving orders that guards had to wait. She told the inquest the guards were to determine for themselves, based on their training and experience, when it was time to go to Smith’s aid.

A prison video recording shot the morning Smith died, shows nearly 20 minutes passed while guards decided what to do, negotiating with Smith, and clearly confused about how to respond.

The guards then entered her cell, but retreated shortly afterward, closed the door and continued monitoring her breathing. A few more minutes passed, and the guards went in again and tried to rouse her.

But it was too late.