Hiiraan Online

By Nicholas Keung

 

Two dramatically different versions of an immigration detainee’s death emerged for jurors tasked with deciding if it was a homicide or not, at an inquest on Wednesday.

It’s taken more than seven years for the facts about Abdurahman Ibrahim Hassan’s death — his long immigration and criminal woes, mental health challenges and prolonged detention — to come out after he died in a struggle while in custody at a hospital on June 11, 2015.

On the one hand, advocates, pushing for a homicide verdict, portrayed a young black man from war-torn Somalia, a refugee struggling with schizophrenia, bipolar disorder and PTSD, failed by Canada Border Services Agency (CBSA), Ontario’s correctional system, the hospital staff who cared for him and the police tasked with guarding him.

On the other hand, counsel for federal and provincial officials, police, Peterborough Regional Health Centre and its nurses and doctors painted Hassan as a threat to others and described how they did their best to care for the troubled man until his final moments, arguing that his death was unforeseen.

What appeared to be indisputable among the 10 lawyers making their final submissions at the inquest on Wednesday is that Hassan’s death was a tragedy and they all had a part in it.

“The one person who could give us perhaps the most insight into what happened and how this might have been prevented is unable to assist us,” coroner Dr. David Eden said in his jury instructions. “In considering a verdict, we now ask you to speak for Abdurahman Hassan.”

Hassan, who came to Canada in 1992 and was granted asylum a year later, had had numerous run-ins with the law and was flagged for removal as early as 2005. After serving in jail for his last conviction, he was taken into CBSA custody in 2012 and detained at a maximum security facility in Lindsay, Ont., pending deportation.

On June 3, 2015, the 39-year-old man was found to be unresponsive in a segregated cell and taken to hospital for seizures. He was heavily sedated in the intensive care unit and later transferred to the surgical unit.

On the night of his death, an apparently agitated Hassan smeared feces on his bed and body while two paid-duty officers — Peterborough police Const. Alicia McGriskin and late OPP Const. Andy Eberhardt — assisted the nursing staff in subduing him and cleaning him up on two occasions, including a final interaction before his death.

During the 17 days of witness testimony, the five-member jury heard how the federal detainee ended up in a provincial jail; his conditions in detention over periods of segregation; his physical and mental health challenges and treatment; his behavioural change in his final days; the restraints and care he received in the hospital; and the immediate events leading up to his death at 1:28 a.m. that night.

A pathologist testified that Hassan’s death may have been caused by cardiac arrhythmia related to schizophrenia and antipsychotic medication, or physical struggle and restraint or asphyxia from a towel that Const. Eberhardt used to cover the man’s mouth to stop him from spitting.

Lawyer Nana Yanful for the Black Legal Action Centre, an intervening party, argued that the man’s death should be ruled a homicide because the risks of his death would have been foreseen by the nurses and officers present in his hospital room.

She said Const. McGriskin and a team of nurses raised concerns over Eberhardt’s use of the towel on the first occasion that night. Upon their second entry into the room, they were all watching the towel’s positioning on Hassan’s face to ensure he was breathing, she added.

“They decided to take the risk of doing something they thought had worked before and was effective. There’s a big difference between something being effective and something being safe. The towel in the context of struggle and restraint was not safe, and they foresaw the possibility of Mr. Hassan’s death,” Yanful said.

“What we know is that he died with human hands on him. Human actions were aggravating his agitation. There was yelling. There was crowding, swearing, force, restraints, including a towel over his mouth. On a balance of probabilities, it is unlikely he just died.”

At the heart of the inquest is the mindsets of the people present at the time of Hassan’s death, said Yanful, which to her would dictate the individuals’ action and inaction.

Eberhardt’s description of Hassan during his interview with the Ontario Special Investigations Unit, an oversight body of police conduct, were telling, she noted.

“This is a man who, in death, described Mr. Hassan as a ‘greased up watermelon, the most vile human,’ and said, ‘the only other way to clean him up would have been to string him up like a dog and hose him down,’” Yanful said.

“Does this jury really think that the same man who described Mr. Hassan in that way would in life have enough care for him?”

Aviva Basman, who represents the Canadian Council for Refugees and the Refugee Law Office, said Hassan’s death reflected how an immigration detainee can fall through the cracks in a system not prepared to accommodate someone in his circumstances.

“Once immigration detainees transfer to provincial correctional centres, CBSA essentially turns a blind eye to how they’re treated there, avoiding any direct monitoring of conditions of detention, the use of segregation and the well-being of detainees,” argued Basman.

“Even after Mr. Hassan’s widely publicized death, CBSA didn’t mount an investigation or look into his history of segregation and how that might have affected his well-being or contributed to the seizures or delirium and death.”

Both organizations represented by Basman endorsed the call for a homicide verdict

However, lawyers for the other parties said that conclusion was not supported by evidence at the inquest as even Ontario’s chief forensic pathologist admitted he couldn’t come to “a simple and a wholly mechanistic determination of the cause of death.”

James Girvin, lawyer for Eberhardt and his widow, said there’s no evidence that the use of the towel at any point completely obstructed Hassan’s airway. On the contrary, he said, witnesses testified they were attentive to his breathing at all times.

“Mr. Hassan’s life and sudden death was unforeseen. The circumstances are unknown,” Girvin said in urging the jury to declare the man’s cause of death as undetermined.

Gregory George, lawyer for the border agency, maintained that there are already mechanisms in place to hold the CBSA accountable for immigration detention.

“The immigration detention regime is complicated and it’s developed over many decades. It largely works. It exists in the interest of the public. It has checks and balances,” George said. “Sometimes tragedy happens. Mr. Hassan’s death was a tragedy, no doubt.”

In closing, coroner’s counsel Jai Dhar referred to the testimony of Lindsay correctional officer William Johnston, who has known Hassan for almost 20 years since he was held in Toronto and he was assigned to guard the inmate at the hospital the day before his death.

“He spent that day with his partner on June 9 at the Peterborough Regional Health Centre, helping to feed him, bathe him. They spent the day talking about old times. Mr. Johnson didn’t give many details, but just kept repeating that it was a good day,” Dhar said.

“That was probably the first good day Mr. Hassan had in a very long time. And I think we can all thank Mr. Johnston and his partner for giving Mr. Hassan that one last good day.”

The jurors were presented with 46 proposed recommendations by the parties before their deliberation. They will return with their own recommendations in order to avoid similar deaths in the future.