2021 NBPC 13, 2021 NBPC 13

2021NBPC13 Provincial Court Province of New Brunswick Date: November 16, 2021 Docket: 15807713 &5814813 Her Majesty, The Queen - and - Nikita Dedam Decision on Application Appearances: Melanie MacAulay, for Her Majesty the Queen Alison Menard, for Nikita Dedam Victor Ryan, for Correctional Service of Canada 1 . Nikita Dedam is charged, on two separate informations, with three Criminal Code offences all alleged to have occurred on August 25, 2020.

The most serious of the charges is an allegation that she did commit second-degree murder on the person of Christopher Dedam, contrary to and in violation of s. 235(1) of the Criminal Code of Canada . That charge was laid on April 1, 2021 and she made her first appearance before the court on that date via video from Nova Institution for Women in Truro, Nova Scotia. 2 .

At the time of her first appearance she was in that facility, a federal penitentiary within the meaning of the Corrections and Conditional Release Act, [1] as a result of the revocation of her parole upon her arrest in August for the alleged events described above. 3 . Ms. Dedam has been remanded to that facility consistently since the time of her first appearance until the date of the hearing of this application. The warrant of committal requiring her incarceration for the offense for which parole was revoked expired on August 13, 2021.

On her appearance on July 6, 2021 the judge who remanded her endorsed that a federal remand was recommended. On her appearance on August 10, 2021, before me, she alerted the court that her warrant of committal was set to expire, and she requested a remand to the facility in which she was serving a sentence. I remanded her to that facility. 4 .

For her appearance on August 17, 2021 counsel for the federal Department of Justice, acting for the Correctional Service of Canada (CSC), requested to be heard on the location of the remand and filed correspondence and an affidavit in support of a request that her remand, following the warrant expiry, be to a provincial institution. After allowing the parties to make brief representations, and hearing from counsel for CSC, I ordered Ms.

Dedam remanded to a federal institution until her next appearance and directed counsel for CSC to serve the materials he had submitted on all of the parties in anticipation of a further request for remand to a federal institution. 5 . Eventually, Ms. Dedam, through counsel, acknowledged that the application for a federal remand was hers to make and she filed an application seeking to be remanded to a federal correctional facility pending trial.

6 . The Attorney General of New Brunswick, the prosecuting body, supports the application of the accused. CSC opposes the application. The Issues 7 . This application raises three issues:

i) Do I have jurisdiction to order a federal remand for pre-trial detention;? ii) If the answer to the first issues is yes, under what circumstances may I order such a remand; and iii) Ultimately, after considering the issues above, should the application be granted. Analysis Do I have jurisdiction to order a federal remand for pre-trial detention 8 . The first issue to be decided is, to some degree, simple. All parties agree that pursuant to the provisions of the Criminal Code , I have jurisdiction to grant the relief requested.

Despite this concession, I will examine the statutory basis that controls the issue as it may be relevant to the remaining questions. 9 . On the day of her first appearance before the Provincial Court for charges that included the alleged offence contrary to s. 235(1) Ms. Dedam was in custody, her parole having been revoked as a result of her arrest on the current charges. She was, as previously noted, incarcerated at Nova Institution. 10 . As Ms. Dedam was charged with an offence listed in

section 469 of the Criminal Code , I was obligated to “o rder that the accused be detained in custody until he is dealt with according to law and shall issue a warrant in Form 8 for the committal of the accused.” [2] There is no discretion to release where the offence charged is one listed in

section 469 . Only a judge presiding in a superior court of criminal jurisdiction may release such an accused. [3] 11 .

Section 516 dictates that during the course of any proceedings under

section 515, on application by the prosecutor or the accused, the judge may adjourn the proceedings and remand the accused to custody in prison. [4] 12 . Prison is defined in

section 2 of the Criminal Code as “a penitentiary, common jail, public or reformatory prison, lock-up, guard- room or other place in which persons who are charged with or convicted of offences are usually kept in custody .” [5] There is nothing in the other operative sections to displace this general description. 13 . It is apparent, therefore, that I have jurisdiction to remand a person in Ms. Dedam’s circumstances to a federal institution under the provisions described above.

Duncan, J. came to the same conclusion in the case relied upon by counsel for CSC. [6] Under what circumstances may I order a federal remand 14 . Given that I have determined that I have the power to remand the accused to a penitentiary, the second question at issue is what circumstances dictate such a remand? Counsel for CSC has proposed that “federal penitentiaries should not be used as remand facilities for un-convicted persons except in exceptional circumstances.” [7]

15 . It is beyond question that most remands for pre-trial detention pursuant to the provisions described above are to remand facilities operated by the provincial governments. In the affidavit of Malinda Sill support for that position is provided, which I will return to below. The proposition of CSC, however, is one that first requires an

interpretation of the provision of the Criminal Code above. 16 . There is nothing in the language of ss. 515 , 516 or 522 of the Criminal Code that establishes a place of remand of first instance, nor do the sections suggest that there be exceptional circumstances for a remand to a penitentiary. 17 . In R. v. St-Cloud [8] Wagner, J. (as he then was) writing for the majority, considered s. 515(10)(

c) in the context of an argument that this ground of detention, the tertiary ground so called, was limited to exceptional circumstances. [9] At paragraph 53, the Court rejected the assertion, based upon the absence of any such qualifying language in the section. Moreover, the appellant correctly points out that s. 515(10)(

c) Cr.C . is worded clearly and that it does not require exceptional or rare circumstances. This

interpretation is consistent with this Court's recent decision in R. v. Summers , 2014 SCC 26 , [2014] 1 S.C.R. 575 (S.C.C.) , which concerned the sentencing provisions of s. 719(3) and (3.1) Cr.C . Section 719(3) provides that in determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence and may credit a maximum of one day for each day spent in custody.

However, s. 719(3.1) specifies that, "if the circumstances justify it", the maximum can be increased to one and one-half days for each day spent in custody. The Court interpreted this provision as follows [10] : ... this provision is free of any language limiting the scope of what may constitute "circumstances". The legislature could easily have provided that only "exceptional circumstances" or "circumstances other than the loss of eligibility for early release and parole" justify enhanced credit.

As Cronk J.A. observed, language limiting the scope of the word "circumstances" is used elsewhere in the Criminal Code .

For example, reference is made to "exceptional circumstances" or "compelling circumstances" in s. 672.14(3) (fitness assessments last no longer than 30 days, except they may last for 60 if "compelling circumstances" so warrant), s. 672.47(2) (when an accused is found unfit to stand trial, a disposition must be made within 45 days but, in "exceptional circumstances", may be made within 90 days) and s. 742.6(16) (when an offender breaches a conditional sentence order, in "exceptional cases" some of the suspended sentence may be deemed to be time served).

The absence of qualifications on "circumstances" in s. 719(3.1) is telling since Parliament did restrict enhanced credit, withholding it from offenders who have been denied bail primarily as a result of a previous conviction (s. 515(9.1)), those who contravened their bail conditions (ss. 524(4)(

a) and 524(8)(a)), and those who committed an indictable offence while on bail (ss. 524(4)(

b) and 524(8)(b)). Parliament clearly turned its attention to the circumstances under which s. 719(3.1) should not apply, but did not include any limitations on the scope of "circumstances" justifying its application. 18 . As in the provisions considered in R. v. St-Cloud (and in R. v. Summers [11] which is relied upon in St-Cloud ) , the operative sections here contain no language which restricts the power to remand to any of the places defined as prison. Absent such limiting words, there is no basis to read such words into the sections. 19 . Counsel for CSC relies on Duncan, J.s’ decision in R. v.

Melvin to support their argument. Justice Duncan, in that decision, did not consider the statutory

interpretation question I have addressed and his use of the term “exceptional circumstances” appears to me to be a recognition of the reality that pre-conviction detentions are typically not to federal penitentiaries, rather than a pronouncement that the term “exceptional circumstances” should be read into the Criminal Code sections to limit the discretion or power of the judicial officer ordering the detention. To the extent that the decision stands for the latter proposition, I am not bound by that decision and decline to follow it. 20 .

Counsel for CSC also suggests that they are not proposing that the words exceptional circumstances be read into the section, but rather that it be used as a guide to courts. Specifically, they suggest their position is, to paraphrase, less about reading in than about understanding reality. With respect, the provisions are free “of any language limiting the scope" of the power to remand. As the Supreme Court noted in R. v. Summers , Parliament could “easily have provided that only "exceptional circumstances”” [12] would justify a remand to a penitentiary.

In not doing so, one can assume they had turned their attention to the realities. 21 . Based upon a plain reading of the sections, I find that I have a power to remand an unconvicted accused person to a penitentiary and that I do not require any exceptional circumstances to exercise this power.

Should Nikita Dedam be Remanded to a Penitentiary 22 . Despite my finding above, I accept the uncontroverted proposition that the overwhelming majority of persons in pre-trial detention are remanded to provincial institutions (at least in New Brunswick). Absent language compelling this reality, why is this the case? Justice Duncan deals with this in Melvin based upon the evidence before him which is, to some degree consistent with the evidence before me. He draws the following conclusions:

i) federal institutions are structured to house prisoners that are serving sentences that by law are lengthier and of a pre- determined duration; [13] ii) a federal remand can result in being held in an institution that is in another part of the country which may impact access to counsel; [14] iii) federal institutions do not have separate remand units and are not designed for that purpose; [15] iv) managing remanded unconvicted persons may be disruptive for other inmates that are serving sentences; and

v) It is contrary to the International Convention on Civil and Political Rights, to which Canada is a signatory to, house accused persons with convicted persons except in exceptional circumstances. [16] 23 . On the last point above, CSC has indeed invoked Canada’s obligations under the International Convention on Civil and Political Rights . It is worth noting that while Canada signed the convention on May 19, 1976, it has not amended the Criminal Code to obligate remands to be made to special remand facilities.

I do not take this to mean that Parliament has ignored the provisions of the Convention , but rather that it feels that the present provisions of the Code can meet those obligations. 24 . The question for me remains whether I should grant the application for remand to a federal penitentiary. While I have rejected the proposition that I should read into the Code language requiring exceptional circumstances, an application for a federal remand is not the normal course and a request to deviate from the norm cannot be based on the preference of the applicant.

The preference of the applicant is relevant only to the extent that it motivates the application. The applicant bears the burden of establishing that the relief requested should be granted. 25 . In my view an application for a remand for an unconvicted accused awaiting trial to a federal penitentiary should only be ordered where such a remand promotes the best interests of the administration of justice considering the following non-exhaustive factors: a.

Safety and Security: Under this heading I would include the safety and security of the accused, other persons detained in the respective institution, and correctional staff. b. Trial Readiness: Here I am concerned with access to counsel, ability to make pre-trial appearances before the court and ability to access materials relevant to trial preparation. c. Accused Well Being : The medical and psychological well being of the accused, absent the safety and security concerns I mentioned above, is a relevant consideration. d.

Impact on Institutional Operations: Both the provincial and federal facilities may be impacted by a particular accused persons presence. The relative impact on both facilities, so much as it can be determined, is relevant. 26 . As I note above, these are non-exhaustive considerations. Based upon the particular circumstances of an application other considerations may arise. In this case, the considerations I have listed are those that are relevant in my decision. Safety and Security 27 . There is one aspect of the evidentiary record here that is markedly different from that in Melvin .

In that case Duncan J. noted that in the case of Mr. Melvin, there were a high number of incompatibles between Mr. Melvin and other inmates and staff in the provincial institution. The evidence from provincial correctional services in that case indicated that, despite trying three separate remand facilities, Mr. Melvin presented significant difficulties in managing his remand period in respect of his personal safety, the safety of other inmates and the safety of correctional staff. [17] In contrast, Duncan J. found that “Mr. Melvin is managing in the federal institution in a more constructive manner.” [18]

28 . No evidence was presented to me to suggest that Mr. Dedam has had difficulty being managed in a provincial remand facility in the past. Her application is based upon access to better medical care, less restrictive isolations, and access to indigenous practices. 29 . Likewise, based upon the evidence before me the status quo, that is her remand to Nova, has also presented no safety or security issues for the accused, other persons detained in the institution, nor correctional staff. There may be other concerns, but there is no evidence she is unsafe, nor that her presence has made others unsafe. 30 .

There is a relevant consideration here with respect to safety and security; the absence of a Custody Rating Scale. The uncontroverted evidence from Malinda Sill is that, in the absence of a conviction, the Custody Rating Scale is missing data and the “Assessment for Decision” report will be flawed. [19] This, she opines, has the potential to jeopardize safety and security. 31 . I accept the logic of Malinda Sill’s conclusion. In this case, however, its impact is blunted by three things.

First, Nikita Dedam was, at the time of her first appearance before the Court, a dual status person, being both an inmate serving a sentence and an accused person. Based upon the evidence of Malinda Sill, I draw the reasonable inference that a Custody Rating Scale and Assessment for Decision report would have been completed upon the revocation of the accused’s parole for the alleged offences before the court (or at least updated from one prepared at the time of her original incarceration). Second, while the potential for safety issues may be present, they have not manifested as noted in the paragraph above.

Finally, there is no evidence before me of the practices of provincial facilities upon admission of people in pre-trial custody. It seems apparent then that, given that Ms. Dedam was housed previously in Nova serving a sentence, Nova may be in a better, or at least in no worse position, to a provincial facility to assess security issues related to her. Trial Readiness 32 . There is no evidence before me that trial readiness has been impacted by Ms. Dedam’s remand in Nova Scotia, nor that counsel has been unable to have meaningful access to her client. 33 .

With respect to appearances before the Court, there is an indication in the trial endorsements that on one occasion a warrant of arrest was issued to maintain jurisdiction. Though the endorsement does not indicate why this is so, it is likely a product of an inability to conduct a scheduled video appearance. There is no other indication of issues relating to appearances before the court. 34 . Malinda Sill does note that facility management issues may result in the necessity to transfer Ms.

Dedam to another federal penitentiary elsewhere in the country. [20] This would, undoubtedly, have a negative impact on trial readiness. This is at this point, however, a speculative concern. Accused Well Being 35 . Ms. Dedam, through her evidence, suggests that her experience in Nova is superior to that during previous remands to a provincial remand facility. She is able to receive some programming, have better access to medical care and is subject to less frequent periods of isolation. 36 . Ms. Dedam’s evidence on this point is largely unchallenged and supported by the evidence of Marissa Shephard.

It is, however, dated and based upon a previous experience. The situation in the provincial facility may have changed. That said, there is no evidence before me that contests her version of her likely experience if remanded provincially. 37 . The evidence of Malinda Sill shows that the lack of remand facilities has required, on some occasions, Ms. Dedam to spend some extended periods of time in her cell. These have been limited, however, particularly when compared with her experience as described in her previous provincial remands.

38 . Malinda Sill also says that programming would not be available to Ms. Dedam. [21] This may be so, but it appears that she does have access to a behavioural counsellor, mental health case worker and elders. [22] Impact on Institutional Operations 39 . The evidence offered by CSC makes it clear that, in the words of Malinda Sill, “Ms. Dedam’s time in federal remand has strained Nova’s capacity to deal with circumstances that require the use of the secure unit”.

As Justice Duncan held, however, administrative burdens may be insufficient to outweigh other considerations “that otherwise speak to a federal remand being the appropriate disposition.” [23] 40 . While Nova has clearly had to adjust its operations to accommodate Ms. Dedam’s remand, it appears to have handled the situation with professionalism and an ability to manage facility operations, the safety, security and well-being of Ms. Dedam and those of the federally sentenced inmates.

That may, as Malinda Sill notes, become more problematic in future, but for now the impact on the institution does not seem to be overwhelming. Conclusion 41 . Based upon a consideration of all of the circumstances above, I am satisfied that this is an appropriate circumstance, at present, for a federal remand and I so order. Circumstances may change and it may be appropriate, at some future point, for Ms. Dedam to be remanded to a provincial facility, but for now I find that the applicant has established that the relief sought is appropriate. 42 .

While I have balanced all of the circumstances, I have determined that a remand to the federal facility is in the best interests of the administration of justice based on two overriding considerations. First, the safety and security of Ms. Dedam, other inmates and correctional staff is best served by the status quo given Nova’s superior knowledge of her and capacity to act on that knowledge. Second, the uncontradicted evidence of Ms. Dedam establishes that the status quo is, at least currently, better for her mental and physical health. 43 . I sought and received the consent of the parties to provide an oral

summary of these reasons. [24] I am filing a full written decision, proving a copy to the parties and noting that an oral

summary of this judgment has been read into the record. ______________________________Cameron Gunn, PCJ