Jurors urged to find segregation-cell death of Ashley Smith a homicide

TORONTO – The death of a “precious daughter” who strangled herself in her segregation cell as prison guards videotaped but did not intervene should be deemed a homicide, a coroner’s jury was told Monday.

In closing submissions at the Ashley Smith inquest, the lawyer who speaks for her family said overwhelming evidence shows top managers ordered frontline staff to stay out of her cell as long as she was still breathing.

The order, Julian Roy said, was devised by Warden Cindy Berry — “the new sheriff in town” — and communicated through her “weak” deputy, Joanna Pauline, to underlings.

“It was not a big misunderstanding. There was no broken telegraph here. This was not a case of staff confusion,” said Roy.

“It didn’t come off the cuff. It wasn’t improvised. This was an order that was carefully thought out by those that issued it.”

The order was never written down because it was an “obscenity,” Roy said, but senior management’s actions contributed significantly to Smith’s death, making it a homicide.

Smith, 19, of Moncton, N.B., choked herself to death on Oct. 19, 2007, in her cell at Grand Valley Institution in Kitchener, Ont., just a few months after Berry took over as warden.

Roy traced how correctional officers, who initially rushed in when the disturbed Smith tied ligatures around her neck, succumbed to pressure from senior management to stay out of her cell unless her death was imminent.

At first, they resisted, Roy said.

“There is a mini-mutiny,” he told the five women jurors.

“They see a child in trouble who needs help and they can’t follow that order.”

Management, however, would hear none of the correctional officers’ protests, none of their warnings that Smith’s life was at risk, the lawyer said.

Instead, Berry threatened them with criminal excessive-use-of-force sanctions for entering the cell too quickly, according to inquest evidence.

A regional manager, brought in by Berry, also told officers that if Smith died, it would be “death by misadventure,” the lawyer noted.

“If you have decided it’s an accident before somebody dies, it’s not an accident,” Roy said.

Under cross-examination last month, Berry was adamant she had no idea guards were under orders to stay out of Smith’s cell as long as she was breathing. She insisted she relied on Pauline to tell them when to enter Smith’s cell.

Lawyer Howard Rubel, who speaks for frontline officers, urged against a homicide finding, saying guards might have been confused but never actually complied with the “illegal” no-entry order.

The officers, trapped in a “hellish relationship” with Smith, were given no information about her mental health, Rubel noted.

As Smith’s mother Coralee Smith watched, Rubel said the teen’s death was either a “tragic accident” or a suicide given her feelings of despair and her history of talking about killing herself.

Classifying her death as “undetermined” would be “perfectly acceptable,” Rubel said.

Either way, he said, what matters are the jury’s recommendations that will come from the exhaustive inquest.

“We have gotten the truth out there,” Rubel said. “We shone a light in a very dark corner.”

In submissions that reduced a juror to tears, Roy argued the teen did not mean to kill herself. She had told a guard she knew what she was doing and they would save her, he noted.

The lawyer urged jurors, who heard evidence from 83 witnesses over 109 days since Jan. 14, to recommend a ban on segregation for self-harming or mentally ill women, saying it only does more damage.

He also slammed Correctional Service Canada, which he said had no business looking after women like Smith, for its resistance to accountability and change.

“CSC has done almost nothing to respond to Ashley’s death,” Roy said.

“They have moved some boxes around in the org chart.”

Earlier Monday, coroner’s counsel Marg Creal presented 103 recommendations for the jury to consider.

The wide-ranging suggestions included limiting segregation to 30 days, and then only as a last resort.

Other proposals included restricting transfers of mentally-ill inmates, proper resourcing to implement a comprehensive care system for them, and enhanced whistleblower protection for prison staff.

Final submissions resume Tuesday.