Howie Sacks & Henry broadens scope of practice to pursue accountability for harm in custody
This article was produced in partnership with Howie Sacks & Henry
The measure of a society lies in how it treats its most vulnerable, and few fit that definition as closely as those who are incarcerated. Although by necessity their lives are subject to government control, there must still be accountability when things go wrong. It’s that sense of justice — and the potential to drive change — that drew Howie Sacks & Henry’s Joel Dick to the niche practice of representing plaintiffs in correctional misconduct, negligence and inquests or custodial injury cases.
“For many of these clients, it’s the first time the law has been anything other than a hammer they’ve been hit with,” Dick says. “When a wrong is acknowledged and they’re compensated for it, it’s meaningful to them. As people exposed very much to the sharp edges of the law, with greater and lesser appropriateness, it makes a difference — I’ve seen it.”
Howie Sacks & Henry’s portfolio ‘developed naturally’
Over the last handful of years, Howie Sacks & Henry has taken on more of these cases. The small portfolio had its beginning in the phone calls the personal injury lawyers receive regularly from individuals who have suffered significant injuries.
“Inevitably, some were sustained at the hands of police or while incarcerated, so our involvement developed naturally,” Dick explains. “I run these as individual tort cases and hope, where warranted, there might be some policy change on the government side.”
Many of the cases the firm takes on aren’t for the initial assault — inherently volatile environments, the government isn’t required to prevent every injury that may occur — but for the aftermath. Although correctional services are committed to providing the same level of health care that any other Canadian would receive, it can be difficult to deliver on that mandate.
For reasons that range from policies to resource shortages to the logistics of getting the individual to the hospital and back, “my experience has been that often follow-up healthcare falls below the standard, such that treatable injuries end up having long-term impacts,” Dick says.
People also turn to personal injury lawyers on behalf of loved ones who have passed away. While there’s the compensation piece through the claim, there’s also the accountability aspect. Howie Sacks & Henry assists families during Coroner’s Inquests, which are automatic in Canada when someone dies in police custody or one of the country’s correctional facilities.
“It's not standard personal injury work, but it’s important because it gives clients a sense of accountability and the possibility of changing policies to make sure it doesn't happen to others," Dick notes.
Increased societal attention driving change
Dick points to growing societal awareness of the poor conditions inside jails and penitentiaries, crediting advocates like Kevin Egan, whose work at London, Ontario's Elgin-Middlesex Detention Centre helped expose shocking conditions. This increased attention led to greater openness within the legal system to understand and address these issues when cases are brought forward.
This includes shifts in juries’ perceptions where there’s a growing consensus that everybody deserves humane treatment — even if they have been convicted of a crime.
“I'd like to see continued cultural change and acknowledgement that just because someone's in jail doesn't mean they should be subject to mistreatment or, as was the case at Elgin-Middlesex, food that had rat droppings in it,” Dick says. “We still have to run these facilities with a sense of human rights and ensure people’s dignity is respected as much as it can be.”
There’s also an increasing willingness by the courts to award significant financial damages under s. 24 of the Charter, where there’s been a breach of inmates’ rights. That’s a welcome development over the last decade but achieving a favourable outcome is still an uphill battle for plaintiff-side lawyers.
Key challenges and best practices
One of the central challenges in institutional abuse and correctional misconduct is determining liability. The act of arresting someone is inherently violent and just because somebody is hurt in the process, doesn’t automatically mean excessive force was used or that a lawsuit is warranted. In correctional settings, reasonable force by an officer varies greatly based on what’s happening in that moment in the facility. Expert evidence is critical in assessing whether the force used was appropriate or crossed the legal line.
Adding further complexity is the number of actors involved. Correctional officers are typically employees of the provincial or federal government and while nursing staff may fall under the same jurisdiction, physicians are usually independent contractors. There are also situations where incarcerated individuals are injured during transfer between levels of government.
“This can create a situation where those defending are pointing at each other,” Dick explains. “It really relies on you having full command of the timelines and the documents to sort out where things went wrong.”
There’s also the fact that most of the critical information surrounding liability is controlled by these institutional defendants.
“Other than my client’s story, all the evidence — be that officers’ logs, body camera footage, or surveillance video — is initially controlled by the other party,” he says.
While Dick acknowledges that Canadian institutions are committed to preserving key evidence, there’s still the risk it could be lost over time. Early intervention on the lawyer’s part is essential. Dick urges plaintiff-side counsel to get the relevant actors on notice early to request that evidence be preserved, even if the lawyer won’t have access to it for some time — another significant hurdle in these lawsuits.
“Be prepared for the long haul,” he says. “I have not yet experienced any of these cases to be quick. We’re dealing with big institutional defendants who move slowly and that’s just for the reality.”
Dick underscores the importance of case selection: there’s no shortage of calls, but not every situation is well-suited to a civil action. He suggests a lawyer interested in this area of practice become familiar with other systems that are in place to help, such as the Human Rights Tribunal of Ontario or a correctional facility’s own internal grievance process, to be able to point people in the right direction.
Trauma-informed practice becomes critical
Many of the clients Dick works with have endured multiple traumatic experiences — things they’ve been convicted of, but also things they’ve been subjected to — and often carry a deep-seated distrust of the system. Lawyers “need to be alert to trauma-informed practicing,” he says.
“I do my best to be educated and do what I can, but it’s a real concern,” Dick adds, noting that the greatest challenges arise when clients are still incarcerated.
For them, the usual supports such as access to a therapist, a translator, and thorough meetings to prepare for major litigation milestones and ensure the client understands the process and is emotionally supported simply aren’t available.
After revisiting traumatic events, clients are immediately returned to the penitentiary environment without the opportunity to process the experience — and in a vulnerable state. That’s a significant concern. Dick recalls a recent case where he was preparing a client for an examination for discovery, and a historic childhood sexual assault relevant to the causation piece was discussed.
“They couldn’t take the afternoon off or reach out to a support network like you or I could,” Dick explains. “I don’t know that I’ve figured out how to strike the right balance in every case, but I book longer prep meetings, for example. That way after the actual preparation is done, my client has time to at least talk through their feelings with me.”
Howie Sacks & Henry: Hope Starts Here
Howie Sacks & Henry’s tag line is Hope Starts Here, and for Dick that sentiment is amplified in this area of his work. When harms are suffered by someone who’s incarcerated, whether it’s the death of a family member, a serious injury, or an avoidable impairment from lack of medical care, people feel hopeless.
Dick wants them to know that there are remedies in these situations. When a case is viable and the firm secures a favourable outcome, those funds are proof that there’s fairness in the system, a means to reintegration, and, perhaps most importantly, something that reignites hope.
“My feedback from clients has been that they’re hopeful — and I’m hopeful too, that the feeling carries on for those whose cases I’ve settled.”
