“They put me in the hole for two and a half weeks with another guy and they didn’t let us out once – not once – in two and a half weeks,” Hickey said in a recent interview. Hickey, 43, describes being kept in a small cell equipped with a concrete slab, a thin mattress and a toilet, without access to a shower throughout his time there. He doesn’t remember how he ended up there, but said the double berth wasn’t made out of necessity. “There’s no room to walk, no room to move. And there were a lot of open cells. We didn’t need to be double-crammed in there, but [the guards] they would do it to cause fights so they could have fun.” Hickey could not recall the exact year he spent in the county men’s prison, but court records show a stint in prison in 1998, when he was 19.
Group action cut
In October 2021, a class-action lawsuit filed by former inmates targeting the provincial government over its use of solitary confinement from the 1990s to the present was upheld. But when Hickey called to join the lawsuit after seeing a CBC story in July, he was told he missed the cut. In Newfoundland and Labrador, the law dictates that a non-resident must “opt in” to a class action within a time frame set by the Supreme Court where the action is certified. In this case, there was a 90-day time limit for out-of-province people to indicate they wanted to participate. A sparse segregation (solitary) cell at the now closed Kingston Penitentiary. Al Hickey describes being inside a cell like this with only a concrete slab and toilet. (Kate Porter/CBC) Jasminka Kalajdzic, an associate professor at the University of Windsor School of Law, said most provinces in Canada use the opt-out process. This means that a person who qualifies for a particular class action is automatically included, even if they don’t know it exists. Newfoundland and Labrador and New Brunswick, Kalajdzic said, do things differently.
Suing Only ‘Isn’t For Everyone’
There are pros and cons to both, he said. “If it’s an opt-out system, because they didn’t remove themselves, now they’re stuck. They have no choice. They can’t control their own differences [or] start their own lawsuit,” he said. “If you’re automatically entered but don’t know about the case, it means you may have lost all your rights to compensation because the time limits to file a claim have expired and you’ve also lost your rights to legal action.” However, in Hickey’s case, that’s out of the question, and the only option would be to start his own lawsuit — which has its own challenges. “Individual suing is not for everyone. It takes a lot of means, patience,” Kalajdzic said. “Sometimes publicity is something people avoid.” Ideally, he said, all provinces would have an opt-out system, but it would require a more concerted effort to notify the public about the litigation. Osgoode Law School professor Trevor Farrow says Newfoundland and Labrador should catch up with the rest of the country and include opt-out legislation for non-residents interested in joining a class action. (Submitted by Trevor Farrow) Trevor Farrow, a professor at Osgoode Hall Law School, said it would be beneficial to change the law in Newfoundland and Labrador to bring it in line with the rest of Canada. “It’s good because even though we still operate provincially, there are a lot of things that happen across provincial borders,” Farrow said. “And so the more unified things are, the simpler and more efficient they can be, and the more predictable.” Both Farrow and Kalajdzic say creating a confusion-free system is key to helping people understand class action lawsuits and their rights. I found beauty in my solitude. Don’t get me wrong, I know how beautiful nature is, but I have missed the beauty of humanity.- Al Hickey A spokesperson from the Newfoundland and Labrador Department of Justice and Public Safety said no amendments to the Class Actions Act are being considered at this time. Speaking while on a boat off the coast of British Columbia, Hickey said he’s glad the issue of isolation is getting attention. “If you’re going to throw somebody in jail and treat them like garbage and basically turn it into a Fight Club with guts and all kinds of horrible violence, well, be prepared to have that person living next to you,” he said. In retrospect, Hickey believes that his time in solitary—though brief—helped change the trajectory of his life. Throughout adulthood, Hickey has drifted into isolation, working trap lines in northern Alberta and panning for gold in the Yukon. “Now I live on a boat in the islands and I usually do my best to stay away from people. And now I’m starting to realize that’s a problem,” Hickey said. “I found beauty in my solitude. Don’t get me wrong, I know how beautiful nature is, but I’ve missed the beauty of humanity.” Read more from CBC Newfoundland and Labrador
