R v Byron, 2021 ABQB 883

Court of Queen’s Bench of Alberta Citation: R v Byron, 2021 ABQB 883 Date: 20211108 Docket: 200160786Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Justin David Byron Accused _______________________________________________________ Ruling on Sentencing Voir Dire of the Honourable Madam Justice Tamara L. Friesen _______________________________________________________ BACKGROUND [ 1 ] On May 18, 2021, Justin David Byron pleaded guilty to six criminal charges arising from one attempted bank robbery and one completed bank robbery.

In both instances, explosive devices were detonated in an effort to rob GardaWorld security guards while they were in the process of loading large amounts of cash into ATM banking machines. The details of these robberies are set out in my companion sentencing decision cited as R v Byron , 2021 ABQB 884 . [ 2 ] Mr. Byron was arrested on March 4, 2019 and was placed on remand at the Edmonton Remand Centre (ERC) on March 5, 2019. He has been on remand ever since. [ 3 ] On January 4, 2021, Mr. Byron filed an application alleging that his rights guaranteed under The Constitution Act, 1982 ,

Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the Charter ) had been breached in numerous different ways during the investigation, his arrest, and while he has been in custody. After entering guilty pleas, he moved forward with the aspect of the Charter application alleging breaches of his ss 7 and 12 rights.

He argued that he should be entitled to either a stay of proceedings, or a reduction in sentence as a remedy for those breaches, which included, but were not limited to the overly restrictive and harsh conditions imposed as a result of the COVID-19 pandemic and the treatment he has received while on remand. [ 4 ] The Crown opposed the Charter application, arguing that Mr.

Byron’s Charter rights had not been breached at any point during his time in custody, and he was therefore not entitled to a stay, or to any reduction in sentence above and beyond the 1.5 to 1 allowable remand credit set out in s 719(3.1) of the Code . The Crown argued that if the Court saw fit, the severe restrictions put on Mr.

Byron during his pre-trial detention as a result of COVID-19 could be addressed by granting a small, global reduction in overall sentence, in excess of the 1.5 to 1 credit. [ 5 ] The blended Charter voir dire and sentencing hearing took place over the course of 8 days: June 28 – 30, July 2, and July 7 – 9, and September 13, 2021. At the conclusion of argument, I adjourned the matter to consider my decision. On October 22, 2022 I rendered my sentencing decision orally and indicated that written reasons with respect to both the sentencing and voir dire decisions would follow.

These are my reasons on the Charter voir dire. THE EVIDENCE [ 6 ] Mr. Byron testified on his own behalf during the voir dire . The Crown called three witnesses: Mr. John Hagen, Deputy Director of Security at the Calgary Remand Center (CRC); Ms. Tammy Harris, a senior Correctional Services Worker responsible for programming at the ERC; and Mr. Jason Robson, Director of the Edmonton Young Offender Centre (EYOC). [ 7 ] The correctional representatives testified about institutional processes and policies, which differed somewhat from institution to institution, including pre- and post-COVID-19 pandemic.

Those processes and policies included: intake and processing, assignment to units, provision of exercise and activities, cell searches, strip searches, cleaning protocols, and many other things. [ 8 ] By consent, the parties relied on two sets of materials gathered and produced by the three Remand Centers, which I will refer to as the “Corrections Records,” Binder 1 and Binder 2. Those records included such things as: housing history, video visitor records, contemporaneous notes taken by various corrections officers, copies of “Requests for Interview” submitted by Mr.

Byron, work orders, incident reports, as well as various other documents the parties thought might be of relevance in the voir dire . Most of the Corrections Records were specific to Mr. Byron, although some related more generally to institutional events that occurred during the time period when Mr.

Byron was in custody. [ 9 ] Additional correctional documents were entered into evidence during the course of the voir dire , including: a package of documents from the Alberta Correctional Services Division, Adult Centre Operations and Branch Policies and Procedures that included general policies and procedures dealing with food service, dental service and sanitation, as well as policies, procedures and internal memoranda dealing specifically with the impact of the COVID-19 pandemic on institutional practices; a copy of the ERC’s “Inmate Manual,” revised as of May 2019; the “Inmate Manual” from the EYOC operating as the Edmonton Remand Centre – Annex; the EYOC’s “New Admission Package” as updated June 2021; Standing Operating Procedures of the ERC dealing with inmate searches; and the ERC’s “New Admit Info Guide.” [ 10 ] Mr.

Byron also entered as an exhibit a very detailed set of notes that he recorded between the dates of August 21, 2020 and November 10, 2020 while housed at the ERC. He reviewed and expanded on those notes in the course of his oral testimony. [ 11 ] The following issues were raised with respect to my consideration of the evidence in the voir dire : first, Mr. Byron’s credibility as a witness; second, the ability of the Crown witnesses to testify to events they did not personally witness based on their

interpretation of the Corrections Records; and third, the admissibility of certain portions of the Corrections Records. [ 12 ] Crown counsel challenged Mr. Byron’s credibility, arguing he lied to the police following his arrest in order to minimize his responsibility. In their view, this, combined with other issues raised during cross-examination, amounted to evidence that Mr. Byron is willing to lie or mislead the Court if he thinks it is to his advantage.

The Crown argued he was not a fair witness, exaggerating things when it suited him, and refusing to acknowledge examples where correctional staff had attempted to respond reasonably to issues brought to their attention. [ 13 ] The Crown submitted that where Mr. Byron’s evidence was at odds with the contemporaneously recorded Correctional Records, the Records should be believed. Further, the fact that Mr.

Byron failed to bring most of the issues complained of on the voir dire to the attention of correctional staff, indicates they were not issues that truly concerned him, but rather, things he wished to hold onto until sentencing for the purpose of seeking a sentence reduction. [ 14 ] Defence counsel argued that Mr. Byron was a credible witness: his testimony was internally consistent, he was not shaken on cross-examination, and his evidence was largely corroborated by the Corrections Records. He submitted that in any case where Mr.

Byron’s testimony conflicted with the Corrections Records, the Court should draw an adverse inference against the Crown for not calling any firsthand witnesses to testify, citing Marceau J’s decision in Trang v Alberta (Edmonton Remand Centre) , 2006 ABQB 824 [ Trang ]. Defence counsel further submitted that as per 30(10)(s)(

i) of the Canada Evidence Act , RSC 1985, c C-5 , any record relating to the investigating of an incident is inadmissible. He did not specify which of the Corrections Records this argument related to. [ 15 ] Crown counsel properly took issue with the fact that Defence counsel offered no such qualification or objection at the time the Corrections Records were entered as exhibits. The first time this submission was made was in the course of Mr. Byron’s written submissions to the Court. The Crown argued that regardless, hearsay is admissible in sentencing hearings unless one of the parties invokes s 724 of the Code , which did not occur in this case.

[ 16 ] With respect to the latter argument, I note that the first seven days of the sentencing hearing were properly part of a voir dire dealing with alleged breaches of ss 7 and 12 of the Charter . The real problem is that the parties (and the Court) should have, at the time of the agreement to put the Corrections Records in as exhibits by consent, specifically articulated what use was to be made of them: were they all going to be submitted for the truth of their contents? If not, then which documents were going to be challenged for accuracy and on what basis? This did not occur.

In contrast, Marceau J’s decision in Trang was issued in response to a formal application by the Crown for admission of records, which was contested and fully argued before the Court. All parties, and the Court, had an opportunity to speak to the issue of admissibility fully, on the record, prior to entering them as exhibits. [ 17 ] Whether Defence counsel can be taken to have consented to having these records entered for the truth of their contents is not ultimately determinative.

I agree with the Crown’s submission that the evidence in question is admissible for the truth of its contents pursuant to the common law business-records exception to the hearsay rule: see R v Crate , 2012 ABCA 144 , R v Monkhouse , 1987 ABCA 227 [ Monkhouse ] and Trang at paras 5 - 7 .

The Corrections Records were made in the normal course of business by a recorder or recorders with personal knowledge who had a duty to make the record and no motive to misrepresent, and the relevant materials were reviewed in advance, and confirmed by institutional representatives during the course of the voir dire : Monkhouse at paras 23 - 24 . [ 18 ] As for the reliability and credibility of the Crown witnesses, I found each of them to be forthright and well-informed as to their particular institution’s policies, procedures, and actions.

They admitted that guards do not always follow policy, and were agreeable in cross-examination on the rare occasions when something in the Corrections Records appeared to contradict something they had testified about. In each case, they deferred to the Corrections Records. [ 19 ] While I agree with the Crown’s observations with respect to Mr. Byron’s credibility in a general sense, I concur with Defence counsel in finding that Mr. Byron’s testimony was largely consistent with the Corrections Records and the evidence of the institutional witnesses.

This fact seems to make the admissibility disagreement somewhat of a tempest in a teapot. [ 20 ] That said, there were some notable areas of factual disagreement between the parties, including: 1. Whether Mr. Byron was “falsely charged” with an institutional offence while at the CRC; 2. How much time he spent in “lock up”; 3. Whether he went five weeks without a change of clothing between April and June of 2020; and 4.

Whether his handwritten notes and observations documenting alleged institutional COVID policy violations by corrections officers are credible and reliable. [ 21 ] I will deal with those disputes, and other factual issues specifically, as I move through my review of the evidence. [ 22 ] The Court heard seven days of testimony with respect to Mr. Byron’s voir dire application, and was presented with over a thousand pages of evidence, argument, jurisprudence, and legislation to review and consider. As such, what follows is merely a

summary of the evidence and argument most relevant to the Charter breaches as they were articulated in closing submissions. General Evidence applicable to all three institutions: Intake procedures and RFIs [ 23 ] Mr. Hagen testified that all inmates go through general admission on intake. They are interviewed, strip searched, pass through medical, get their clothing, and are assigned to their living units. Pre-COVID-19, they would have been assigned to a general population unit to begin with, and then within 24 hours, they would be seen by a classification officer to discuss their current situation.

At that point, they would be classified to the right unit and, if it was their first time in the center, offered the inmate manual to familiarize themselves with it. [ 24 ] The default placement is general population; however, inmates need to sign a waiver acknowledging the risks associated with mixing with other prisoners, or else request protective custody. [ 25 ] Each institution has an “Inmate Handbook” or something similar setting out general rules and regulations.

For example, the ERC has a “New admit info guide.” These documents set out general information including what types of supports are offered, how to deal with money, canteen, visits, etc. [ 26 ] Mr. Byron indicated that it was possible he was given the Manual, or something similar, on his admission in March of 2019 because he recognized the schedule. [ 27 ] One of the topics dealt with in the “Inmate Handbook” that is of particular importance to Mr. Byron and other inmates is the process for requesting assistance from the institution.

Inmates are provided with the ability to make a “Request for Interview” [RFI] via a written form that covers everything from a request to transfer to another institution, to a request for phone calls, photographs, or clean sheets. Each RFI contains a list of possible addressees, including “Director” or “Caseworker,” as well as topical areas such as “Inmate Welfare” and “Inmate Property.” The RFI forms contained in the exhibits each contained a note at the top indicating “Please review the Inmate Handbook prior to filling out your request – it may answer your question.” Records show Mr.

Byron filled out approximately 30 RFIs during his time on remand. [ 28 ] Ms. Harris indicated that at the ERC, the RFI process is described on intake and that the form is self-explanatory, with boxes inmates can check off. RFI forms are kept at the staff station and need to be requested. Forms can be returned to staff or placed in a secure box that goes directly to the Director for review.

[ 29 ] Mr. Hagen indicated that the culture at CRC is not to make inmates resort to filling out an RFI if the request is something the guards can easily deal with. If an inmate needs new clothes or cleaning supplies they can just ask for them. He indicated that staff have no discretion with respect to forwarding RFIs to the addressee, for example the Director or a supervisor.

If there is no addressee, and they can handle it at a unit level they will, otherwise, they pass it on. [ 30 ] At EYOC, RFIs are available at the guard stations, but can also be kept by the inmates in their cells or as they are referred to at EYOC, their “dorms.” [ 31 ] Mr. Byron had no experience with the penal system prior to these events. Records indicate he completed an intake interview with a caseworker and received a unique “ORCA” number, which is the identifying number used to track inmates within the prison system in Alberta. Mr.

Byron said he did not have a clear recollection of that intake interview. [ 32 ] Mr. Byron also said he did not remember being given a copy of the “Inmate Manual” when he arrived at CRC or ERC. He did not recall coming across it on a library cart or having any other inmate every tell him about it. He said he learned about the existence of RFIs when he used it one for the first-time during lockdown at the CRC because he wanted to speak to his wife on the phone. [ 33 ] The Corrections Records indicate that Mr.

Byron was familiar with the RFI process prior to requesting a phone call with his wife, as his first RFI was dated April 19, 2019, consisting of a request that his father pick up his personal property. A few days later he filed his second and third RFIs requesting that he be allowed to call his wife who was suffering from severe depression even though his unit was on lock down at the time. As I understood his testimony, that request was granted. [ 34 ] Mr. Byron testified that while at the EYOC, he was expected to fill out an RFI every time he needed something or had any issues.

At CRC or ERC, he would ask the guards directly and they would frequently say “remind me later.” He said the benefit of using an RFI form was that they could not ignore it because it was filed paperwork. Mr. Byron indicated that he did not see anyone fill out an RFI with respect to new clothing until he got to the EYOC. At ERC it was “first come first serve” when new clothing came in. [ 35 ] In cross-examination, Mr. Byron admitted he knew that RFIs were a good way to contact administration and to keep track of requests.

He was less willing to admit that it was important to put important requests into written form by way of RFI. Strip searches [ 36 ] Mr. Byron testified that he was subjected to strip searches while in remand, but that they did not happen “as much” when he was at the CRC. He said he was strip searched when he was transferred between Centers or when he was taken to court. He did not testify about any particular strip search, or point to any conduct that he considered to be improper in conducting the strip searches. He did not say he was ever singled out from other inmates and subjected to a strip search. Mr.

Byron did not make or file any formal complaints about any strip searches. [ 37 ] All three Crown witnesses agreed that strip searches are conducted upon admission, transfer, during monthly unit searches, during random cell checks, and if there is suspicion of contraband. They explained the need for such searches to ensure safety for inmates and corrections staff. [ 38 ] Mr. Robson testified that new transfers are strip-searched when they come in to the EYOC. Individual inmates are sometimes strip-searched again when their unit is searched, when suspected of having contraband, or for random audit purposes.

Random cell and body searches are sometimes performed to maintain security. Upon return from court, inmates are also strip searched. [ 39 ] On cross-examination, Mr. Robson was directed to Policy 6-2.2, page 5 of 9 from the sub-document entitled “Security: Searches: Inmate Searches” which described the reasons for conducting a strip search. Defence counsel pointed out that “random strip searches” are not listed on that page. [ 40 ] Mr.

Robson acknowledged that random strip searches were not provided for specifically in the policy, but observed that on page one of the same packet of materials, in the “Standard Operating Procedures” document, it indicates in the very first paragraph that searches will be conducted for the overall safety of the Center. He explained that there has to be some intention behind the search and denied the suggestion that inmates are simply identified at random and strip searched. Cell searches [ 41 ] Mr.

Byron testified that cell searches conducted by guards, in particular at the CRC, were aggressive and intrusive and he would regularly have photos ripped from the wall and bedding tossed on the floor. He did not indicate being singled out for such treatment but suggested it was generally a problem for everyone. He said guards would joke about how badly they had destroyed a particular room that day and for that reason he tried to be a friendly at all times with the guards. [ 42 ] Mr. Hagen testified that cell searches are done to ensure the safety and security of everyone in the institution.

The CRC security team conducted weekly searches while inmates were exchanging their laundry. He admitted that “cell tossing” was something inmates frequently complained about and explained that the institution took steps to discourage the guards from taking such actions. [ 43 ] Mr. Robson testified that the cells at EYOC are searched by ERC staff once per month. He agreed with Mr. Byron’s testimony with respect to water bottles being removed during searches, recalling that inmates had complained to him about the practice, which they thought was unfair.

He indicated that after the complaint was made to him, he instructed staff to leave the water bottles in the cells, which they did. Mr. Byron’s relationship with guards and other inmates

[ 44 ] Mr. Byron was considered a good inmate. In the Corrections Records he was frequently referred to as polite and respectful, and was not subjected to any disciplinary proceeding while incarcerated at any of the remand centers. [ 45 ] Mr. Byron also testified that the attitude of the guards at CRC and ERC was to treat inmates as numbers and that they were generally “stand offish” and less friendly than at EYOC. As described by Mr.

Byron: “You’re an annoying insect until they have reason to believe you are not an insect.” The guards at EYOC were friendly and used first names, and would be willing to talk to inmates and help them, night and day. Dental care issue [ 46 ] Mr. Byron testified that he has a cracked molar and suffered with it for the duration of his time in remand. He said it was getting progressively worse.

He also said he had not sought care for it while in custody because he was “told by other people” that “the only work they do is pull teeth.” He thought he may have also seen this on a sign on the wall. [ 47 ] He admitted he did not ask to be seen by a dentist or seek dental care for his tooth at any point during his time in any of the three remand centers. Contact with family [ 48 ] Mr. Byron indicated that he did not see his wife and children at all for the first three months he was at the CRC, but during the summer, they tried to come to see him every week for a 45 minute in person visit.

Due to the expense involved, that dropped down to once every two weeks, and then once per month in the fall, with no visits in the winter. He has not seen his children in person since February of 2020. [ 49 ] During his time at the ERC, records show that Mr. Byron had video calls with his family at least once per week, and multiple video calls from June through October of 2020. The video calls decreased in November and December of that year, but there is no indication he was denied requested visits during that time period. The evidence I received indicated that Mr.

Byron has been given ample opportunity to speak with his wife on a daily basis over the phone. Calgary Remand Center: March 18, 2019 to March 11, 2020 [ 50 ] Mr. Byron was transferred to the ERC on March 5, 2019, after his March 4, 2019 arrest at the Edmonton International Airport. ERC staff conflict [ 51 ] Mr. Byron was housed at the ERC until March 18, 2019, when, according to a notation in the records, he was transferred to the CRC as a result of a “staff conflict.” Mr. Byron testified he thought he was moved to the CRC because ERC staff had threatened to kill him.

He said he obtained that information from his wife, who heard it from his lawyer. He also testified that he never talked to his lawyer, who he was frequently in contact with, about the alleged threat. [ 52 ] Ms. Harris explained that the ERC was concerned about conflicts of interest given that several staff members had previously worked with GardaWorld. They wanted to ensure the safety of staff and inmates. She did not think an inmate like Mr. Byron would have been told specifically of the reason for a security transfer in such a case. [ 53 ] In cross-examination, Mr.

Byron did not recall being told he was being transferred because “some guards shared similar employment history” with him in the security field. [ 54 ] Regardless, there was no evidence before me to substantiate any allegation or even support a reasonable suspicion that an ERC staff member ever threatened Mr. Byron’s safety. Concerns with placement in the “Gang Unit” [ 55 ] At the CRC, on admission, Mr. Byron was placed in Unit 6, a maximum-security unit which Mr.

Byron said was referred to as the “Gang Unit.” He remained in Unit 6 the entire time he was housed at the CRC, except for a brief time period from March 25 to March 28, 2019 when he travelled to Edmonton for the purpose of a bail hearing and was housed at the ERC. He was denied bail in April of 2019. [ 56 ] Mr. Hagen testified that Max Units 5 and 6 are used to house inmates that the CRC considers dangerous because of the serious nature of the offences they are accused or convicted of. Staff on these units are usually more experienced and serious vigilance is expected. Mr. Hagen said the decision to place Mr.

Byron on Unit 6 in this case was likely due to the seriousness of the charges he was facing. [ 57 ] Mr. Byron, who has no prior criminal record, did not feel he belonged in Unit 6, and said he feared for his personal safety as he felt he was surrounded by violent individuals and gang members. However, he did not fill out an RFI form seeking to be moved to a different unit. [ 58 ] Mr. Hagen explained that at the CRC, “max” units may include gang members, but they are not gang units. CRC does not assign gang members to units because they do not want to recognize gangs or allow units to be run by particular gangs.

Security officers monitor gang involvement and associations within the CRC and try to limit the number of gangs or gang members in particular units or zones for safety reasons.

[ 59 ] Mr. Byron said he heard talk of threats and stabbings while in Unit 6. He also said he had witnessed “stabbings,” but on cross- examination admitted it was only one stabbing, and he did not actually witness it, he just assumed it was a stabbing due to the large amount of blood and condition of the victim which he observed following the altercation. [ 60 ] He further testified that at one point, another inmate threatened to stab him after a dispute over the phone. He considered this to be a credible threat because weapons were discovered on the Unit almost every week.

He said he had seen such weapons himself on Unit 6, but he admitted he did not tell CRC staff about it. He just tried to be neutral and friendly to everyone. [ 61 ] Mr. Hagen testified that while there were violent altercations, there were no stabbings during the time period Mr. Byron was on Unit 6 and that if there were, he would have known about it. He confirmed there was one very serious altercation involving serious facial injuries to the victim which may have been the incident Mr. Byron was referring to. Lockdown periods [ 62 ] Mr.

Byron testified that he experienced several lockdowns while housed in Unit 6, with one or more lasting as long as seven days. He said several inmate-fashioned weapons were discovered after cells were searched during the lockdowns. Every time an incident or altercation occurred, the whole unit would be locked down for a period of time, rather than just the inmates responsible. Mr. Byron did not think this was a fair way to deal with things. He testified that the lockdowns and discovery of weapons contributed to his feelings of fear and isolation. [ 63 ] Mr.

Hagen testified that the purpose of such lockdowns was to provide for a proper investigation and possibly medical intervention. He said they usually last for the duration of an 8- hour shift, but admitted that sometimes they could extend over into the next shift. During a lockdown, the inmates are entitled to one hour out of cells. [ 64 ] Mr. Hagen further testified that there were no 3-day lockdowns while Mr. Byron was held on Unit 6, and that he has never heard of a seven-day lockdown, even in the context of an inmate homicide investigation.

Corrections Records showed, and the Crown conceded that there were two lockdowns, back-to-back, occurring around April 8, 2019, which ended up covering a three-day period, from April 6-9, 2019. During that time period, inmates were allowed showers on the 7 th and 8 th for 30 minutes. Allegation of misconduct [ 65 ] Mr. Byron testified that he was falsely charged with assaulting another inmate on November 12, 2019, and this caused him emotional distress. A fight had occurred in the cell block and the guards called him to the front and said they knew he was involved because they had him on camera.

He told them they had the wrong person, that he was on he phone with his wife at the time, and he asked to speak to their supervisor. [ 66 ] He said the charges were “withdrawn” later that day after guards reviewed the video footage of the incident in question. Mr. Byron did not make or file any formal complaint about this “false” allegation at the time. He was not subjected to any additional time in lockdown due to the accusation. [ 67 ] Mr. Hagen did find an indication in the records that Mr. Byron had been a suspect in an incident, but also that he had been ruled out. Mr.

Hagen could find no documented evidence that a charge had been issued or withdrawn against Mr. Byron. Ms. Harris later testified that institutional charge records cannot be deleted from the internal record keeping system, ORCA. Cell conditions [ 68 ] Mr. Byron testified that he was “double-bunked” during certain periods of time at CRC and that the cells were small and cramped. His cellmates changed regularly. The cells were generally filthy and it was difficult for inmates to clean them. [ 69 ] Remand staff observed that the cells in question were designed to house two inmates.

They did not otherwise dispute the size or layout of the cell as described by Mr. Byron. Mr. Byron also indicated that when he shared a cell, the cell contained a bunk built for two people. [ 70 ] Mr. Byron also complained that in the winter the cell was so cold he could see his breath. While Unit 6 inmates were allowed extra blankets because it was so cold, he said the cell search teams would often take the extra blankets during searches. [ 71 ] Mr. Hagen admitted the cells could be cold and advised inmates are given as many extra blankets as they need.

When complaints about the cold are made, the heat is turned up in the cell. [ 72 ] Mr. Hagen further testified that with respect to cleaning, inmates are expected to clean their cells in the morning and every unit has a designated unit cleaner who cleans the common areas and the showers throughout the day. Supplies are available for cleaning and unit staff oversee the cleaners. The cloths used for wiping and cleaning are cut up towels which the CRC obtains from the Spy Hill Prison program. [ 73 ] Mr. Byron did not make or file any formal complaint about cell conditions or cleanliness at the CRC.

Lack of mental stimulation [ 74 ] Mr. Byron testified that the reading materials provided to inmates on Unit 6 at CRC consisted of a small shelf of books that were not refreshed very often and were extremely limited – so much so that he had to read certain books more than once. He said at one point they stopped being refreshed at all because an elevator broke. Mr. Byron did not make or file any formal complaint about the lack of reading material at the time.

[ 75 ] Mr. Hagen testified that the books are stored on the same floor as Unit 6 and no elevators are required to transport them. Recreation staff are supposed to refresh the books regularly. [ 76 ] According to both Mr. Byron and Mr. Hagen, other sources of mental stimulation included chess sets, cards, in-cell radio stations, a shared weight room, and an outside yard with a basketball hoop. Mr. Byron exercised in his own cell because he found the exercise room to be crowded and he did not like to wait for a turn on the machines. Inmates also had very limited access to newspapers – two or three copies per unit.

Broken television [ 77 ] Mr. Byron testified that there was only one small television bolted to a walkway of the upper tier of his cellblock and that it was on approximately 4.5. hours a day. He indicated the TV was broken for a two-week period in June and July and that during that time, he and other inmates were deprived of one of their only sources of mental stimulation. [ 78 ] The evidence showed that it took 17 days for CRC staff to replace the Unit 6 television: from June 22 to July 8, 2019. A new TV had to be ordered and when it arrived, it did not fit the old bracket.

A new bracket then had to be ordered and installed. There was no evidence provided that any alternative activities, past times or recreation were provided to inmates while the TV was out of commission. Shower issues [ 79 ] Mr. Byron testified that there were issues with the showers at the CRC and he and other inmates were forced to either go without showers, or take cold showers during the lengthy time period it took to fix them. [ 80 ] Work orders and records from the CRC confirm that there were issues with the showers during the relevant time period.

From September 20 to 23, 2019 the showers were not working, and from February 27 to 28, 2020 there was no hot water as the boiler was broken. The CRC did not provide any evidence that inmates were allowed to access alternative cleaning facilities – inmates simply did not shower during those time periods. Food, clothing, and bedding issues [ 81 ] Mr. Byron testified that the quality of food at the CRC was terrible. Portions were much smaller than he was used to. Upon his arrest, Mr. Byron weighed 295 lbs. Mr.

Byron lost 45 lbs over 21 months of incarceration. [ 82 ] He testified that the vegetables were often undercooked. At one point he received a piece of meat that was raw. When he complained to CRC staff, it was replaced with a cooked piece of meat. Another time, he received a dessert square that was smaller than what other inmates received. The CRC staff allegedly callously remarked “someone always gets stuck with the crappy one.” [ 83 ] Mr.

Byron did not submit an RFI or file any formal complaint about the quality or food portions at the time. [ 84 ] Alberta Corrections policy documents indicate that they follow the Canada Food Guide’s assessment of nutritional requirements for the average male, and that they have procedures in place to ensure food quality and accommodate bona fide dietary accommodations. Complaints are reviewed by the CRC Director or designate. [ 85 ] Mr. Byron also indicated that the clothing he was given to wear while at the CRC was poor. He had to wear old and re-used underwear that was washed but ratty.

He further testified that bedding he received was often dirty and soiled. Mr. Hagen testified that inmates are allowed full clothing exchange on the weekend and roll change mid-week. Their “roll” consists of sheets, pillow case, and towels. Mr. Byron did not submit an RFI requesting new clothing or bedding while at the CRC. Edmonton Remand Center: March 11, 2020 to December 11, 2020 [ 86 ] Mr. Byron was placed into the general population at the ERC when he arrived on March 11, 2020. Ms. Harris described the intake process and considerations for placement including: current charges, no-contact, incompatibles, etc.

Mr. Byron has a “no-contact” order in place with respect to the four GardaWorld complainants. [ 87 ] At the time, Mr. Byron was to be housed at the ERC for the purpose of attending court and anticipated being returned to the CRC afterwards. Shortly after Mr. Byron arrived at the ERC, on March 17 th , 2020, the Canadian Government declared a Public State of Health Emergency due to the COVID-19 pandemic. [ 88 ] Mr. Byron made several requests to be transferred back to CRC during the month of March. On April 1, 2020, he was advised that the CRC was not accepting inmates and he would not be transferred back.

He was worried because he believed there were guards at the ERC who wanted to hurt him, and his wife had told him to “watch your back.” He was unable to provided evidence of how his wife obtained that information, but thought it was from his lawyer. [ 89 ] Mr. Byron was at the ERC for most of the year 2020, other than a few days spent at the EYOC from June 26 to July 3, 2020. He asked to return to the ERC when he found out EYOC would not be able to facilitate video visits with his wife and children.

His request to return to the ERC was granted, and he remained there until returning to the EYOC on December 11, 2020. COVID-19 protocols, restrictions and response [ 90 ] All the parties agree that in response to the COVID-19 pandemic, most of the few programs and much of the limited available recreation activities at the ERC were terminated or suspended. Exercise programs were suspended, and individual access to the already limited supply of exercise equipment and exercise space became severely limited. Inmates were locked up in their cells for most of the

day. [ 91 ] From March 5 to March 27, 2020 Mr. Byron averaged about 11 hours per day spent outside of his cell. From March 27 to June 16, 2020 – about two and half months – he averaged only 1.5 hours a day spent out of his cell. [ 92 ] An approximate breakdown of Mr. Byron’s time out of cells during the entirety of his pre-guilt incarceration is set out at

Schedule “A” to these reasons. [ 93 ] At the ERC, Mr. Byron’s cell dimensions were 8 x 13 feet, with one corner cut out. Mr. Byron testified that his cellmates changed regularly, with no ability for either inmate to maintain the recommended six feet of distance between them. [ 94 ] Ms. Harris testified that cells were designed to house two inmates, and that double-bunking is primarily a financial issue that is not unique to COVID-19.

If inmates can be housed on their own, they are. [ 95 ] On April 11, 2020, Alberta issued a province-wide masking directive, and recommendations were made for corrections officers to wear masks. [ 96 ] On June 16, 2020, in response to the Alberta Chief Medical Officer of Health (CMOH) announcement that gathering limits be increased to no more than 50 people, Mr. Byron and other inmates began to receive 5 hours out of their cell. The Unit was split into two cohorts and the rotated time out of cell.

Inmates at the ERC were kept on this cycle throughout the remainder of 2020, even when units were put on outbreak status. [ 97 ] As per a May 25, 2020 Memorandum, daily unit symptom screening was to be performed. Mr. Byron stated either a nurse or a guard would ask the questions. Sometimes they would take their temperature and other times the guards would bang on the window and ask if “everything [was] good.” He said nobody wanted to admit to symptoms because they would end up in isolation at the infirmary.

Their response was always “no symptoms.” He indicated that “all the inmates” would lie to the nurses because no one wanted to go to quarantine as it was considered “severe punishment.” [ 98 ] In her testimony, Ms. Harris went through a number of internal Memoranda released during the relevant time period which dealt with the rapidly changing recommendations and responses to the COVID-19 pandemic including: designation of units as quarantine, outbreak, or isolation; masking; distancing; staff eating at desks; and other internal protocols and issues.

She agreed that staff compliance with masking and other protocols was not always perfect, but that in her experience, there was a high level of compliance amongst both staff and inmates. [ 99 ] Ms. Harris testified that the unit designations were determined by Alberta Health Services (AHS). When a unit was on “outbreak” status then no new inmates would be brought in, and no inmates would be moved out of the unit unless court ordered. [ 100 ] Ms. Harris indicated that the restrictions on daily life of inmates during the pandemic increased depending on what was going on.

She said that in order to ensure inmates got sufficient stimulation, ERC staff tried to provide modular learning, activity packages, and different types of tournaments to help the inmates stay engaged while still maintaining AHS restrictions. Exercise and yard access was available but limited, and the ERC had to work with caps on numbers. They tried to engage stakeholders such as the John Howard and the Elizabeth Fry Societies to offer self-study modules, for example. Concerns with lack of addictions programming and psychological counselling had to be dealt with through AHS.

Chaplains were available to talk to inmates individually through an RFI request. [ 101 ] Ms. Harris could find no indication in the records that Mr. Byron had ever complained about inadequate exercise, inability to access a Chaplain or problems with the available reading material, including access to law books, during his time at the ERC. COVID-19 isolation and lost clothing incident [ 102 ] On April 22, 2020, Mr. Byron was assessed for possible COVID-19 symptoms. He testified that he reported an earache; however, records show he reported a sore throat.

After speaking with a doctor over video, he was immediately placed into administrative segregation as per the ERC’s COVID-19 isolation protocol. While in isolation, he was given only 30-45 minutes out of his cell per day. He said his personal items were not brought to him until the evening of the 23 rd and he was not allowed to shower. He washed in the sink. [ 103 ] On cross-examination, Mr. Byron said at the time, he did not think the steps taken by the ERC were reasonable. He was not happy with the experience and was quite sure he did not have COVID-19.

He implied the course of action taken was an overreaction by the institution, and he did not like the way medical staff were “looking after him.” [ 104 ] On April 24, 2020, Mr. Byron was cleared, having no other symptoms, and having tested negative for COVID-19. Mr. Byron testified that when he returned to his regular unit he was not given any extra bedding or clothing and went for a period of five weeks thereafter without a second set of underwear or clothes. He said that as a result, he was forced to wash his clothes in his sink for a period of time. [ 105 ] Mr.

Byron said he asked different guards for help during that time and eventually someone found an extra set of clothing for him. He did not recall who he asked or who eventually helped him. He admitted that during that time period, when he was allowed out of his cell, his would go straight to the phone rather than attending to this issue. [ 106 ] Mr. Byron did not fill out an RFI requesting clothing or raise the issue formally with anyone at the ERC. [ 107 ] A note from April 24, 2020 indicates Mr.

Byron was given new bedding and clothing on his release from the infirmary, although he did not agree with this note. [ 108 ] Ms. Harris testified that inmates at the ERC have access to the laundry twice a week and Mr. Byron could have asked for extra

clothing and bedding if they were needed. She observed he also could have asked a guard to assist him at any time. She further testified that the isolation protocol was developed by taking direction from AHS. Bootcamp and fallout [ 109 ] On July 30, 2020, Mr. Byron was interviewed for the “Bootcamp Unit,” a special unit within the ERC which allows inmates to perform work within the institution in order to obtain additional programming and opportunities. For example, Bootcamp inmates are allowed access to tablets. They have to pay for time on the tablets which are shared between 35 – 40 people.

Tablets could be used to watch movies, send emails and play games on a limited basis. [ 110 ] The Bootcamp Unit is divided up like other units and inmates start at the bottom when they arrive. Depending on their work ethic and demeanor, inmates are then promoted to successive tiers, with different tiers doing different jobs. General cleaning is considered a lower tier job, while “biologicals” is something only top tier inmates are allowed to do.

Only top tier inmates are allowed off the Unit to perform cleaning tasks. [ 111 ] Bootcamp cleaners are not given any kind of formal training with respect to cleaning, or in particular, cleaning up biohazardous or “biological” materials such as vomit and blood. They are given a cart with various cleaning supplies on it, as well as gloves and rubber boots. Masks were given to them as they left the Unit and they were directed to wear them when out of the Unit. Inmates were paid for their work through canteen vouchers. [ 112 ] Mr.

Byron was reluctant to leave his unit to go out on cleaning jobs due to COVID-19 concerns, but he was promoted to the middle tier in August and then to the top tier in October. Inmates in his tier were sent out for an average of 4 – 6 clean-ups per week depending on the week. A clean-up could take anywhere from 5 minutes to 2 hours to complete depending on the issue. Biological clean-ups of urine, blood, and feces would take longer. [ 113 ] In August of 2020, a staff member at ERC contracted COVID-19 and an announcement was made in the news.

On August 24, 2020, the ERC released a Memorandum to staff mandating that all staff wear masks at all time except when they are eating. [ 114 ] Mr. Byron began keeping a log of what he claimed were infraction by guards of the public health measure and policies relating to masking and distancing. Mr. Byron’s detailed notes were entered as an exhibit and adopted by him at the sentencing hearing. Additional evidence was presented to the Court from the Corrections Records, in particular, copies of canteen vouchers, which supported the chronological veracity of his notes. [ 115 ] Mr.

Byron admitted that he kept the notes expressly for the purpose of obtaining Charter relief in his upcoming bail application. He acknowledged that he did not fill out an RFI to advise the administration of his concerns, nor did he raise his concerns with any of the guards directly. [ 116 ] On September 29, 2020, another directive was sent out notifying staff that they are to wear masks at all times. [ 117 ] On October 7, 2020, Mr. Byron received his 90-day Bootcamp letter, early. The 90-day letter is important to inmates because it can be used as a positive character reference for various purposes.

On October 18, 2020, a note appears in Mr. Byron’s record indicating he is “a good role model, respectful, and embraces the Bootcamp program.” [ 118 ] Mr. Byron observed that there were inconsistent practices with respect to cleaning quarantine units. They were told to wear Tyvek suits depending on the guards in charge. Units at that time had three levels: quarantine, isolation, and outbreak. Outbreak units were units with positive COVID-19 cases, and signs to that affect were posted on the doors. [ 119 ] According to his notes, on October 18, 2020, Mr. Byron was sent to the Max C and Max D Units to clean.

At that time, Max C Unit was under quarantine, and Max D was on outbreak status. Mr. Byron was sent in to clean four cells with “COVID-19 isolation” posts on the doors. They had been told there were not to clean COVID-19 units, but when they arrived at the Max Units, that is what they did. [ 120 ] Ms. Harris admitted on behalf of the ERC that this happened. When it was discovered, a Memorandum was sent out indicating it was improper and should not happen again. [ 121 ] On October 22, 2020, Mr. Byron testified that his cleaning unit was again directed to an outbreak unit.

When inmates complained they were not supposed to do this type of cleaning, they were sent somewhere else to clean. [ 122 ] On the same day, Mr. Byron’s counsel, at that time Mr. Crowther, requested that the ERC Director preserve CCTV of those occasions where Mr. Byron had noted guards to be in breach of the COVID-19 polices and directives in place at that time. That request to preserve CCTV evidence was misplaced by ERC staff and not acted upon by the ERC Director. [ 123 ] Crown counsel did not take significant issue with the notes recorded by Mr.

Byron, other than to point out that some of the more egregious alleged violations he recorded were based on information he apparently obtained from other inmates rather than being things he himself observed. [ 124 ] If Mr. Byron had been inflating or lying about his firsthand observations, I do not believe he would have requested CCTV footage, as it would have contradicted him. The fact of the request, in my view, contributes to the reliability and credibility of the firsthand observations recorded in this document. [ 125 ] On October 26, 2020, Mr.

Byron was told by guards that someone had complained about his group of cleaners and they were demoted to the bottom tier and taken off cleaning duties. [ 126 ] The canteen records provided roughly coincided with the notes Mr. Byron had kept regarding the work he performed on the

Bootcamp Unit. The vouchers stop on October 18, 2020; however, he indicated he performed work after that date. [ 127 ] On November 1, 2020, a note appears in Mr. Byron’s record indicating he had demonstrated a poor work ethic and reluctance to mentor new cleaners. He was removed from the Bootcamp Unit entirely on November 2, 2020. Post-Bootcamp [ 128 ] Mr. Byron applied for bail in November of 2020. He sought release in part, on the compassionate basis that his brother was dying of kidney failure and he was a likely and willing donor.

He was denied bail on all three grounds on November 16, 2020. [ 129 ] On November 20, 2020, a directive was issued that all inmates and staff mask in all areas. Inmates were exempted within their own cells, even if shared with another inmate. [ 130 ] Records show that on December 1, 2020, Mr. Byron told staff he was threatened by another inmate and feared for his safety. The inmate who threatened him was then listed as an “incompatible,” which had repercussions for the other people on his unit as it affected the unit rotations. Mr.

Byron said he thought it would be easier to leave the Unit than to stay, but that he did not realize they would not be able to move him out of the Unit because it was on outbreak status at the time. [ 131 ] As a result, Mr. Byron ended up in administrative segregation from December 1 to December 8, 2020. During that time period, Mr. Byron was housed alone and exercised alone until they were able to move him to a different unit on December 8, 2020. He averaged about one hour a day out of his cell. Cleanliness and sanitation [ 132 ] Aside from the cells on the Boot Camp unit, Mr.

Byron testified that every cell he was transferred into was filthy, with hair, sometimes old food, sometimes dry mucus on the walls, and dirt and debris built up around the mattresses. [ 133 ] When transferred to a new cell, he said he did not have any access to cleaning supplies until after his first period of lockup in that cell, which could last up to a full day. They were not given cleaning cloths so would use torn up towels. Inmates were not given access to hand sanitizer. [ 134 ] Ms.

Harris testified that inmates are responsible for the cleanliness of their own cells and given an opportunity every day to clean at around 9 AM. They are provided with cleaning supplies that are stored on the unit including chemicals, rags, toilet brush, etc. If an inmate refuses to clean his cell, progressive discipline is used to enforce cleanliness. [ 135 ] Mr.

Byron complained that cleaning of the communal areas was done by inmate cleaners, who did not regularly wipe down handrails and telephones. [ 136 ] The ERC had a recommendation posted on the wall directing inmates to sanitize the communal telephones between users. Mr. Byron stated they were frequently ripped off and used as spare paper. He said cleaning supplies were not made readily accessible: “Guards would give you wipes if you asked but you’d lose your turn with the phone it you stopped to ask.” [ 137 ] Ms. Harris could not find any record of Mr.

Byron filing an RFI addressing concerns with double-bunking, cell cleanliness, or any other related issues. [ 138 ] As of November 2020, inmates had to wear masks when outside of their cells, but not when they were inside. Blue medical masks were provided by the ERC. Mr. Byron testified that the masks handed out to inmates did not fit him properly because of his beard, implying this put him at a greater risk for contracting COVID-19. He said the institutions could have offered him a specialty mask, but agreed that he had not asked for such a mask and had not raised the issue of mask fit with anyone.

He agreed he had not sought permission from the administration to change his appearance by shaving his beard, stating that he would not shave his beard in any event because “it’s who I am.” [ 139 ] Ms. Harris agreed that the blue masks do not fit well over beards. She agreed that masks exist that are specifically designed for people with beards, but that no specific accommodations with respect to masks for inmates with beards were made. Edmonton Young Offender Center [ 140 ] On December 11, 2020, Mr. Byron was moved to the Annex at the EYOC, where inmates were locked up on a half and half rotation.

This rotation allowed him about 4.5 hours out of his cell each day. [ 141 ] He testified that in general, the guards at the EYOC were nicer and treated him more respectfully than in the other institutions. He was given more food to eat than at the CRC or the ERC as the kitchen followed the Canada Food Guide recommendations for youth, which meant more calories in each meal. He regained some of the weight he lost over the past year and a half. [ 142 ] With respect to time out of cells, from December 11, 2020 to mid-January 2021, he averaged about 5.5 hours.

This went down to 4 hours out of his cell from January 2021 to the time of the sentencing hearing. [ 143 ] Mr. Byron’s cell at the EYOC did not have a toilet or sink. He and other inmates had to request bathroom access from guards when they were in their cells, which they were granted on a “first come, first serve” basis. He shared a cell for a brief period of time, but was in a single occupancy cell for the majority of his time at the EYOC, although most cells at the EYOC are set up for double occupancy. The beds are “youth sized” and Mr. Byron said his feet hang off the edge of the mattress.

The cells have windows to the outside so they can see the small courtyard and have a view of the sky.

[ 144 ] On March 11, 2021, Mr. Byron’s brother died. Records indicated that a psychologist was called in to speak with him about it. [ 145 ] According to Mr. Robson, activities potentially available to Mr. Byron at the EYOC included: TV, courtyard, basketball, books, newspapers, colouring, word games, cards, ping pong table, a recreation room with treadmills and bikes and workout bands, as well as a yoga detox program, Chaplain program, NorQuest self-study school, and support for addictions. [ 146 ] As of May 10, 2021, as a result of pandemic restrictions, Mr.

Byron and other inmates at the EYOC were unable to access the gymnasium, Chapel or any group programming. Those restrictions were lifted at some point during the summer of 2021. It is unknown if they are back on restricted status at the present time. [ 147 ] In May of 2021, Mr. Byron began to access institutional programming including the Terra parenting program, “Courage to Change” self-study. [ 148 ] Mr. Byron remained at the EYOC as of the date of closing submissions on sentence, and apparently was moved back to the ERC some time prior to the October 22, 2021 sentencing date. COVID-19 Protocols [ 149 ] Mr.

Robson testified that as of April 2021, every inmate that transfers to the EYOC Annex has already completed their 14-day quarantine at the ERC. [ 150 ] He indicated that no in-person family visits have been allowed across the province during the pandemic, and that includes the EYOC. If an inmate wants to have a family video visit they have to return to the ERC to do so.

Once the COVID-19 pandemic is over, in-person visits are expected to resume. [ 151 ] With respect to COVID-19 health measures, he said that the EYOC takes recommendations from AHS because “they are the health experts.” This includes health orders related to group sizes. The Executive Director meets with AHS and provides operational advice, but ultimately, “they listen to pandemic specialists who are doctors, and taking care of staff and inmates informs their decision making.” ALLEGED CHARTER BREACHES [ 152 ] Mr.

Byron argued that his ss 7 and 12 Charter rights were breached as a consequence of the above-detailed treatment he received while on remand, including being subjected to enhanced COVID-19 related restrictions. He further argued that the most appropriate remedy to address the breaches in this case, would be to issue a stay of proceedings. In the alternative, he sought a reduction in sentence. [ 153 ] The Charter breaches alleged by Mr. Byron were described and categorized by his counsel generally as follows:

A) Failure to adequately respond to change : a. The CRC failed to provide inmates with alternatives when the TV and showers broke at the CRC, and b. ERC and EYOC’s failed to consider or provide alternatives when programming and recreational restrictions were implemented during the pandemic.

B) Unlawful and unreasonable strip searches : (all three institutions).

C) Cell searches and cell trashing by guards : (primarily in the CRC but also in the other institutions).

D) Poor Living conditions : a. arbitrary and unreasonable placement in the Max Unit at CRC, which housed dangerous inmates and experienced more lockdowns than other units; b. excessive periods of lockup with nothing meaningful to do; c. cramped and unhygienic cell conditions and unhygienic communal areas; d. no access to the outdoors or view of the outside world; e. no access to exercise equipment and almost no access to television; f. limited access to reading material; g. denial of bedding and clothing; h. denial of showers and lack of hot water in showers; i. no access to certain types of programming; j. inadequate, dirty and ill-fitting clothing; and

k. limited access to the telephone and lack of privacy.

E) Failure to provide adequate food and nutrition: (primarily at CRC and ERC).

F) Failure to provide adequate dental care: (all three institutions).

G) Failure to adhere to COVID-19 protocols: a. inability to physically separate from other inmates due to double bunking and remand conditions; b. cleaning of communal areas was poorly done by inmate cleaners; c. cleaning supplies were not made accessible to inmates; d. staff failed to adhere to masking protocols; e. failed to provide him with a mask specifically designed for bearded people; and f. inmates in Bootcamp Unit were improperly sent to quarantine units to clean.

H) Interference with contact with legal counsel: (while at CRC, failure to pass on messages from his lawyer, lack of privacy duringphone calls with his lawyer).

I) False institutional charges: (while at the CRC). [154] Mr. Byron submitted that these breaches should be considered both individually and cumulatively in determining whether hewas subjected to cruel and unusual treatment contrary to s 12 while remanded and also in considering whether his s 7 rights werebreached. [155] With respect to the conditions and restrictions occurring in the course of the COVID-19 pandemic, Mr.

Byron argued that therewas no evidence provided that the deprivations he experienced were in furtherance of any legitimate interest in managing a correctionalfacility or any legitimate interest in managing a correctional facility, during a pandemic or otherwise. ANALYSIS Nature of these proceedings [156] In his written submission, Mr. Byron made broad allegations, arguments and references to the various remand institutions’compliance with international, national, and provincial legislation, standards, and policies.

I note, as Clackson J did in R v Adams, 2016ABQB 648 [Adams], (aff’d 2019 ABCA 149), when presented with similar arguments, that this is not a civil trial and the institutions arenot respondents (at para 68). As Clackson J observed, “whether the system is generally good, bad or indifferent, is of no assistance in thisproceeding” (para 16). [157] I agree. It is not my function in this application to rule on the general experiences of all remanded prisoners. Conversely, itwould not be proper for me to conclude that no Charter breach has occurred simply because Mr.

Byron was treated the same aseveryone else. [158] While proof of “arbitrariness” has a significant role to play in the analysis that follows, equality of treatment is not a sufficienttest for whether someone’s Charter rights have been violated: see Andrews v Law Society of British Columbia, (SCC),[1989] 1 SCR 143. [159] The task before me is to determine whether Mr. Byron’s Charter rights were violated during his pre-guilt incarceration periodbased on the facts that were before me in the hearing. Where legislation, standards, and policies are relevant to that specific task, I willreference them.

Section 12 jurisprudence [160]

Section 12 states: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [161] The majority of the Supreme Court of Canada in R v Smith, (SCC), [1987] 1 SCR 1045 [Smith], set out thecriterion to be applied in determining whether treatment or punishment is cruel and unusual. The test was most recently summarized bythe Supreme Court of Canada in R v Boudreault, 2018 SCC 58 at para 126: This Court has recognized that treatment or punishment will rise to the level of being cruel and unusual where it “is so excessive as tooutrage standards of decency” (R. v.

Smith, (SCC), [1987] 1 S.C.R. 1045, at p. 1072, citing Miller v. The Queen, (SCC), [1977] 2 S.C.R. 680). In R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, McLachlin C.J. explained that a sentence willoffend s. 12 only where it is “grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offenceand the circumstances of the offender” (para. 39).

It is therefore not sufficient that a sentence be “merely excessive”; to be cruel andunusual, it must be disproportionate to the point of being “abhorrent or intolerable”, such that it is incompatible with human dignity (R. v.Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 24; Smith, at p. 1072; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 26).

[162] This is a high bar to meet.

The punishment or treatment complained of must be “abhorrent or intolerable” or so excessive that itwould “outrage standards of decency”: Ogiamien v Ontario (Community Safety and Correctional Services), 2017 ONCA 667 at paras 9and 57 [Ogiamien, CA]; R v Olson (1987), (ON CA), 62 OR (2d) 321 (Ont CA) at para 40 (Westlaw Canada)[Olson]; R v Prystay, 2019 ABQB 8 at para 12 [Prystay]. [163] In Alberta, this test has been applied a number of times to allegations of breaches involving prison conditions and treatment,most notably in the epic case of Trang v Alberta (Director, Edmonton Remand), 2010 ABQB 6 at paras 985 and 986 [Trang].

See also,for example: R v Chan, 2005 ABQB 83, R v Munoz, 2006 ABQB 901 [Munoz]; R v Walters, 2012 ABQB 83 and Prystay. [164] In his dissenting decision in Smith, McIntyre J suggested that prison conditions include, but are not limited to: solitaryconfinement, frequency and condition of searches within prisons, denial of contact with those outside the prison, and imprisonment atlocations a far distance from home, family, and friends.

See also: Olson at para 36. [165] The Supreme Court of Canada in Smith articulated a number of factors to be taken into consideration when determiningwhether the punishment at issue is cruel and unusual. Marceau J in Trang adapted these factors when determining whether “treatment”-specifically, pre-guilt prison conditions - meets the s 12 threshold (at para 1017). See also: Prystay at paras 13-14. [166] The factors, as set out in Smith, are as follows:

(1) Is it such that it goes beyond what is necessary to achieve a legitimate penal aim?

(2) Is it unnecessary because there are adequate alternatives?

(3) Is it unacceptable to a large segment of the population?

(4) Is it such that it cannot be applied upon a rational basis in accordance with ascertained or ascertainable standards?

(5) Is it arbitrarily imposed?

(6) Is it such that it has no value in the sense of some social purpose such as reformation, rehabilitation, deterrence or retribution?

(7) Is it in accord with public standards of decency or propriety?

(8) Is it of such a character as to shock general conscience or as to be intolerable in fundamental fairness?

(9) Is it unusually severe and hence degrading to human dignity and worth? [167] These factors cannot be applied in a vacuum and must be considered in the context of the inmate’s background, personalcircumstances, and institutional situation, which may include the fact that the inmate has not yet been proven guilty: see Trang at paras1018 and 1019; Munoz at para 78).

See also Ogiamien v Ontario, 2016 ONSC 3080 [Ogiamien] at para 209, overturned on appeal byOgiamien, CA. [168] At the same time, the individual’s specific circumstances need to be contextualized within the framework of the correctionssystem more generally, and the need for such institutions to consider that the health and safety of all inmates and prisoners: see Adams atpara 74 and Chan at para 32. [169] In Maltby v AG Saskatchewan, (1982), (SK KB), 2 CCC (3d) 153 (QB), one of the earliest Charterchallenges to conditions of incarceration, Sirois J observed at para 5: The lawful incarceration of the applicants as remand inmates bears with it necessarily reasonable limitations on their rights previouslyenjoyed in a free and democratic society.

These restrictions are no doubt the sort of reasonable restrictions that the framers of theCanadian Charter of Rights and Freedoms envisioned when they included in

section 1 the words ... "guarantees the rights and freedomsset out in it subject only to such reasonable limits prescribed by law ..." (emphasis mine). The institution may and certainly must placerestrictions and limitations on the rights of the applicants so that sufficient security will ensure that they will remain in custody and willnot pose a danger to themselves or to other inmates or staff.

Section 7 jurisprudence [170]

Section 7 of the Charter protects the right to life, liberty, and security of the person. [171] The Supreme Court of Canada in R v Malmo-Levine, 2003 SCC 74 at paras 159-160, advised that the standard for assessingdisproportionality of a prisoner’s treatment is the same whether assessing a potential breach under ss 7 or 12 of the Charter.

If a s 12breach is found, it is not necessary to consider whether there was a s 7 breach: Prystay at para 10. [172] The Supreme Court explained: To find that gross and excessive disproportionality of punishment is required under s. 12 but a lesser degree of proportionality sufficesunder s. 7 would render incoherent the scheme of interconnected “legal rights” set out in ss. 7 to 14 of the Charter attributingcontradictory standards to ss. 12 and 7 in relation to the same subject matter.

Such a result, in our view, would be unacceptable. [173] In para 956 of Trang, Marceau J commented: In keeping with the Supreme Court’s decision in Malmo-Levine, ss. 7 and 12 must be read in a complementary manner. An arbitrary ruleor condition that engages an inmate’s life, liberty or security of the person will only be contrary to s. 7 if that arbitrary rule or condition is

grossly disproportionate. Since the same test applies, it is not necessary to consider s. 7 where s. 12, the more specific provision, is engaged. In my opinion, s. 7 in this context applies only to decisions related to classifications, placements, and the disciplinary process. [ 174 ] Mr. Byron, in his written submissions, argued that Marceau J erred by finding that the rule or condition must be both arbitrary and grossly disproportionate, as these are separate and distinct principles of fundamental justice.

He argued that an arbitrary rule or condition - if it deprives and person of their life, liberty or security of the person- could breach s 7 of the Charter even if it was not also grossly disproportionate. [ 175 ] Our Court of Appeal in Trang v Alberta (Edmonton Remand Center) , 2007 ABCA 263 [ Trang , CA ] at para 35 stated that [a] finding of a breach of s 7 depends on the identification of an impact on the life, liberty or personal security of the applicant by state action.

If that impact arose from state action within the sphere of a fundamental principles of justice, and that state action was arbitrary or irrational, then a breach of the s 7 right could be shown . [ 176 ] Justice Marceau’s observation in Trang does not stand for the proposition that s 7 sets a different or lower standard for assessing a prisoner’s treatment while in custody than what is required under s 12. [ 177 ] In R v Blanchard , 2017 ABQB 369 [ Blanchard ] , Macklin J concluded at para 223 that Mr.

Blanchard’s ss 7 and 12 Charter rights had both been breached, and it was unnecessary to distinguish between the two sections. [ 178 ] Many of the breaches as alleged by Mr. Byron are best considered as allegations of cruel and unusual treatment contrary to s 12 of the Charter . If I find that any of the allegations or complaints made by Mr. Byron do not constitute “treatment” per se , then it may be necessary to consider those allegations or complaints in the context of s 7.

Unfounded allegations [ 179 ] Some of the alleged breaches can be dealt with efficiently at the outset, based on my assessment of the evidence. I have categorized these as “unfounded allegations.” Allegation of inadequate health care [ 180 ] The corrections officials who testified indicated that emergency dental care is available to inmates who need it and who ask for it. Mr. Byron testified that he never asked for any assistance. Having never sought any assistance, it is not surprising none was provided. [ 181 ] The evidence shows that when Mr.

Byron showed signs of illness in April of 2020, the medical staff at the institution gave him prompt and personally directed care. No other evidence was presented on the issue. [ 182 ] Arguments about the general availability and provision of healthcare and practitioner of choice in the remand centers were not properly before me. [ 183 ] As there is a no evidentiary basis for the assertion that Mr. Byron was denied adequate health or dental care, no Charter breach is made out.

Allegation of abusive strip searches [ 184 ] The pros and cons of the strip search policy followed by the various remand centers is also not properly in issue before me. I am concerned only with whether Mr. Byron himself experienced any arbitrary or abusive strip searches. [ 185 ] Mr. Byron did not identify or testify as to any particular strip search he experienced that he felt was unfair, or that caused him any physical or emotional distress. He did not complain that he had experienced any abusive strip searches. [ 186 ] The only evidence I had about the conduct of strip searches came from Mr.

Robson, who explained when and why Mr. Byron would have been strip searched. It was a reasonable explanation, and in my view, appeared to balance institutional needs to ensure safety and security with individual inmate’s right to bodily integrity and autonomy. [ 187 ] There is no evidentiary basis for asserting that Mr. Byron was personally subjected to cruel and unusual punishment in the form of abusive strip searches. Allegation of being subjected to a false institutional charge [ 188 ] I accept that Mr. Byron, while at the CRC, was accused of being involved in an altercation.

After he objected, and the guards reviewed the evidence available to them, they withdrew the accusation. [ 189 ] There was some dispute between the parties as to whether formal charges had ever been laid against Mr. Byron, but even if they had been laid, they were obviously not pursued once the exonerating evidence was received.

This is not evidence of a “false institutional charge” as in: a charge concocted and pursued by the authorities against a prisoner they knew to be innocent. [ 190 ] In my view, the guards at the CRC did what they were duty bound to do in the situation: they acted quickly to protect all the guards and inmates in the area following an altercation. Thereafter, they investigated the incident and either took no further action, or proceeded against someone other than Mr. Byron.

[ 191 ] The actions taken by the guards in the circumstances, on Mr. Byron’s evidence, were reasonable and cannot possibly be construed as cruel and unusual treatment or a violation of his s 7 rights. Interference with legal counsel [ 192 ] Mr. Byron testified, based on information he received from his family members who said they received it from his lawyer, Mr. Beresh, that phone messages from Mr. Beresh were not being passed on to him while he was at the CRC. The Crown properly objected to the nature of this evidence as being unreliable hearsay. [ 193 ] Considered in the context of what Mr.

Hagen said about complaints of missed messages at the CRC, I believe it is possible that some messages from Mr. Beresh did not get through. It is unlikely those messages would have contained substantive legal advice; rather, they would likely have indicated that Mr. Byron needed to call his lawyer. [ 194 ] The admissible evidence contained in the Corrections Records illustrates that Mr. Byron had frequent contact with his lawyer throughout his time at the CRC, and indeed, throughout his time at the ERC and the EYOC.

As the allegation that the CRC wrongfully interfered with his right to counsel has not been proven, no Charter breach arises. Placement in the Max Unit with dangerous inmates [ 195 ] I accept that Mr. Byron had reason to be fearful about being placed in the Max Unit (Unit 6) as a first-time offender with no prior experience in jail. His specific experiences only served to amplify that fear.

I also accept that the CRC made a reasonable decision when they placed him in the Max Unit based on their assessment of the seriousness of the offences for which he had been charged: using an explosive to cause bodily injury to a security guard during the course of an armed, premeditated bank robbery. [ 196 ] Mr. Byron did not request a reclassification when he was at the CRC.

He was eventually reclassified, but as per the Corrections Records, that reclassification appears to have occurred organically, after he had served a period of time on remand without incident. [ 197 ] Whether considered in the context of ss 12 or 7, the initial classification decision in this case appears to have been reasonable, despite the fact that it brought Mr. Byron into contact with dangerous inmates. In any event, Mr. Byron did not challenge or complain about his classification at the time, either through the RFI process or through his experienced legal counsel at the time, Mr. Beresh.

The authorities cannot respond to issues and concerns that they are not aware of. No Charter breach arises with respect to this issue. Complaints about general remand conditions [ 198 ] Many of the factual assertions and complaints Mr. Byron made with respect to general remand conditions were proven during the course of the voir dire . Double-bunking and cell size [ 199 ] The institutional witnesses agreed that at times, prisoners will share a cell with one other person. Ms.

Harris testified that all “double-bunk” cells are designed to house two inmates and the reason prisoners are “double-bunked” usually has to do with a lack of available space. The beds are either bunk-beds or they are on the floor on opposite sides of the shared cell. [ 200 ] There is no evidence that Mr. Byron ever complained about double bunking, or that the particular cells where he experienced double-bunking were not big enough or appropriate for that use. Furthermore, he appears to have spent large periods of time, particularly while at the EYOC, in a single cell. When Mr.

Byron complained about incompatibility with one of his roommates, the authorities responded immediately. [ 201 ] It would be preferable, but it is not practical for all inmates to have spacious single cells. The fact that remand centers in Alberta cannot or do not accommodate single cell bunking in all cases is proof that remand time is “hard time.” It is not proof of a Charter breach. Failure to provide adequate bedding and clothing [ 202 ] I accept that following his release from isolation, Mr. Byron was not given a change of clothing, despite what is indicated on the release form.

There is no explanation for this, other than the obvious one, which is: a mistake was made by the institution. It was the kind of mistake that could have been quickly rectified had Mr. Byron taken the time to focus his efforts on resolving the issue. [ 203 ] The choices Mr. Byron made during that time period resulted in a bad set of circumstances which worsened over time. But the institution is not solely to blame. If Mr. Byron did not get the results he needed by making a casual request to the guards, then Mr. Byron should have filled out an RFI asking for an extra set of clothing and bedding.

The corrections authorities cannot help with issues they are not aware of. [ 204 ] This complaint does not rise to the level of cruel and unusual treatment. Mr. Byron’s role in the perpetuation of the problem challenges the notion that it constituted “treatment” at all. Other complaints [ 205 ] Mr. Byron also complained about the following:

a. his cell at the CRC was excessively cold (he was given extra blankets); b. his clothing and bedding were often stained and soiled (inmates were given frequent opportunities to exchange their clothing and bedding rolls for new, clean ones); c. his cell being “tossed” or “wrecked” during cell searches as evidenced by his wall photos being ripped off and tossed on the floor (Mr.

Robson agreed this happened sometimes and it was against procedure); d. the food was poor quality and consisted of a “one size fits all” diet which caused him to lose a lot of weight (the institutional witnesses testified that they follow the Canada Food Guide recommendations for portions and nutrition); e. the reading materials at the CRC were not expansive and not refreshed very often, newspapers at the ERC were difficult to obtain since copies were shared (Crown witnesses testified as to availability of reading materials at the ERC and the CRC including books, newspapers, magazines, legal texts including the Criminal Code ); f. there was a general lack of mental stimulation (Crown witnesses, and Mr.

Byron, testified that in addition to limited reading materials, inmates could access card, board games, unit televisions, workout equipment, and had radios in their cells and on some units, could access tablets); g. when the unit TV broke at the max unit at the CRC, it took 17 days to fix it during which inmates were deprived of one their only sources of entertainment (Mr. Hagen admitted this had occurred, although in my view, he himself was surprised with how long it had taken when he applied his mind to the issue); and h. at the CRC, the showers were out of commission or lacked hot water (Mr.

Hagen admitted this occurred and indicated the problems were fixed promptly). [ 206 ] Mr. Byron, although obviously familiar with the RFI process, did not file any formal complaint with respect to any of the above issues. This tells me that he was likely able to resolve at least some of the more particularized complaints informally through discussions with the guards. For example, he testified that on one occasion, when he received a piece of r

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