Monteith v. Nova Scotia (Attorney General), 2023 NSSC 378

SUPREME COURT OF Nova Scotia Citation: Monteith v. Nova Scotia (Attorney General) , 2023 NSSC 378 Date: 20231122 Docket: No. 523338 Registry: Halifax Between: Peter Monteith Applicant v.

Attorney General of Nova Scotia Respondent Judge: The Honourable Justice Timothy Gabriel Heard: May 12 and 15, 2023, in Halifax, Nova Scotia Final Written Submissions: Written Decision Released: June 2, 2023 November 24, 2023 Counsel: Nasha Nijhawan and Amanda Montgomery, for the Applicant Drew Hampden, for the Respondent By the Court: [ 1 ] The Applicant, Peter Monteith entered the Central Nova Scotia Correctional Facility (“CNSCF” or “the Institution”) on February 4, 2020. Since that date, he has been a resident of the West 2 dayroom, an open protective custody dayroom with full privileges.

The Respondent says that: West 2 is consistently fully open, however, recently there have been several days within the past three weeks where West 2 has altered its

schedule for periods of unlock to rotational unlock times due to staff to inmate ratios. (Respondent's Notice of Contest, page 3, para. 2) [ 2 ] The Respondent alleges that on April 21, 2023, the Applicant participated in a West 2 dayroom disturbance. Several other individuals were involved. He was injured during this incident, and was sent to the hospital as a result. While at the hospital, Mr. Monteith’s cell was searched. A weapon was located therein (a homemade bat). [ 3 ] Mr. Monteith was placed on sanctions (the “first sanctions”).

This involved five days confinement to his cell which was to conclude on April 27, 2023. The Respondent also alleges that the Applicant had requested confinement to his cell at that time for safety- based concerns that he had voiced, which were said to have arisen out of the April 21, 2023 disturbance. [ 4 ] On April 27, 2023, the Applicant’s period of confinement ended, and he was permitted back into the dayroom with some of his peers. While he was still in the dayroom, a search was again conducted of his cell and “brew” (homemade alcohol) was discovered, as well as a second homemade bat.

In addition, a shank was found in the possession of his cellmate.

[ 5 ] The Respondent claims that Mr. Monteith “took ownership” of the bat. This time, the penalty imposed consisted of six days confinement to his cell (the “second sanctions”). It ran continuous from his first sanctions, which had been imposed on April 21, 2023. These sanctions were to end on May 3, 2023. The Applicant did not attend or participate in the disciplinary hearings which resulted in either the first or second sanctions. This will be discussed further below. [ 6 ] Mr. Monteith filed this Habeas Corpus Application on April 28, 2023, while confined for the second sanctions.

The Application is handwritten, and similar in some respects to many other applications made by other inmates in the aftermath of the April 21, 2023 disturbance. However, as will be seen, Mr. Monteith, has some other concerns that are not shared by many (if any) of the others who have made such applications. [ 7 ] Mr. Monteith’s second sanctions began on April 27, 2023 and ended on May 3, 2023. On the latter date, he was immediately placed on a Behavioural Management Plan (“BMP”). He was also placed on a disciplinary report, for another separate incident which was (at the time) pending adjudication.

He remained subject to the BMP until May 17, 2023. [ 8 ] The Respondent’s Notice of Contest concludes as follows: 8. Mr. Monteith was placed on a BMP as a direct response to him being in possession of weapons in the day room , on two separate occasions recently. This has elevated his security risk threat within that day room, requiring additional security measures to be implemented to manage his behaviours. The BMP is implemented for a period of fourteen days and will be reviewed every seven days.

The continuation of his BMP will be based on his behaviour, compliance with facility rules and expectations as well as if he is found to be in possession of any further weapons. Mr. Monteith was issued a letter of expectation to advise him of this. 9. The Respondent takes the position that the deprivation of liberty Mr. Monteith complained of in his notice for habeas corpus dated April 27, 2023, no longer exists given Mr.

Monteith's circumstances have changed, and he is no longer completing the five days of sanctions he incurred as a result of the level stemming from April 27, 2023 (the subject matter of this application and the only rational ground for habeas corpus). Of course, Mr. Monteith was not on a BMP at the time he filed his be habeas corpus on April 28, 2023. (Respondent’s Notice of Contest, pages 5-6) [Emphasis added] [ 9 ] The Respondent goes on to argue that this matter is factually moot.

Although it is conceded that the Court has the discretion to hear the matter (the argument continues), this is not an appropriate circumstance warranting the exercise of that discretion. [ 10 ] Mr. Monteith was able to secure counsel approximately 24 hours before this application was heard by this Court. In his brief, he disputes the Respondent's contentions, and, among other things, argues that the deprivation of liberty to which he was subjected was virtually seamless.

Regardless of whether the Respondent chooses to apply different descriptors and/or assign different reasons for some portions of the deprivation time, he says, nonetheless, that he has been continuously subject to restrictive sanctions for almost an entire month. Most importantly, he says that the sanctions were imposed under circumstances that were procedurally unfair, and/or amounted to a denial of natural justice.

This (his argument continues) deprives the Respondent of the jurisdiction to proceed as it did and makes what was done to him illegal. [ 11 ] The Correctional Services Regulations (the “Regulations”) do provide for a disciplinary hearing in the absence of an offender. In fact,

section 94 of the Regulations provides: If an offender who is the subject of a disciplinary hearing is absent in any of the following circumstances, the superintendent may proceed with the hearing, except for what cannot be done because of the offender's absence: (

a) the offender is voluntarily absent; (

b) the superintendent believes on reasonable grounds that the presence of the offender would jeopardize the safety of a person present at the hearing; (

c) the offender disrupts and is removed from the hearing; (

d) the offender refuses to appear before the superintendent [ 12 ] In this instance, I have not been satisfied that Mr. Monteith was even notified in advance of either disciplinary hearing. The only concrete evidence provided as to Mr. Monteith’s receipt of notice with respect to the hearings, of any sort, is contained in Ms. Critchley’s Affidavit (paragraph 51), which is to the effect that the Applicant was provided with copies of the adjudicator's decisions on May 4, 2023.

This is one day after the second of the two sets of disciplinary sanctions had already been served by the Applicant (and proximate to the time when the BMP was imposed). [ 13 ] I also note that the documents which Ms. Critchley contends were provided on May 4, 2023 are attached as Exhibit “I” to her Affidavit. The first such document, consisting of an “Information Report”, is actually dated May 5 , 2023, as are some of the other documents. Moreover, Ms. Critchley’s actions in providing Mr.

Monteith with the documents (whether they occurred on May 4 or May 5, 2023) appears to have been motivated by a letter that the latter sent to the attention of “Executive Director of Correctional Services” dated May 3, 2023, in which the Applicant states, among other things “I’ve been trying to appeal with grievances [sic] to the “Executive Director” as I’ve been unlawful [sic] detained in a cell since April 21 st without due notice or jurisdiction.” [ 14 ] When Ms. Critchley testified on cross, she indicated that she had personally attempted to serve Mr.

Monteith with the documents on May 4, 2023 (which he refused to accept at that time) because that was the first indication that she had received that he was taking the position that he had not received notice of any of his hearings or with respect to the disciplinary dispositions that had been imposed.

[ 15 ] The Applicant’s letter did, apparently, prompt Ms. Critchley to provide him with some of the documents relevant to the sanctions that had been imposed upon him on April 21 and April 27, 2023. It also prompted a response from Adam Smith, Superintendent at the Institution. Mr. Smith's letter was dated May 3, 2023 (Critchley affidavit Tab “J”) and stated, inter alia , the following: You have written that you wish to appeal against unlawful detention without notice. I am not sure which grievance you are trying to appeal against?

You have submitted a Habeas Corpus application to address being confined and this is in progress. You are subject to BMP’s, and you have received sanctions for breaches of facility rules. You must be specific as to what you are appealing against in order for me to accurately answer this. [ 16 ] It is superfluous to point out that Mr. Smith’s response completely overlooks the fact that Mr. Monteith was contending that he had received notice of neither proceeding, and he had never been provided with any reason as to why he had been detained.

Obviously, in order to have specified, for the purposes of a grievance, that he was concerned about the “sanctions for breaches of facility rules”, he would have had to first know the reasons for which he had been detained. [ 17 ] Included in the documents with which Mr. Monteith was provided (Exhibit “I”) May 4 (or May 5), 2023 is found the Applicant’s Disciplinary Report, generated on April 27, 2023.

In the Disciplinary Report – Level 2 and 3 (page 1 of 8), the investigating officer (whose name is not provided) stated: On the above date and time this officer searched cell 10 and found a large club made from board games and news papers, the club was located beside the toilet concealed in a laundry bag. The club was passed on to the captain. [ 18 ] At page 2 of 8 “Steps taken by the investigator to establish the facts surrounding the incident", dated April 27, 2023 we find the handwritten explanation: - Monteith took ownership of the club and admitted making it.

A similar weapon was seized from him 6 days ago. - There have been a few recent incidents in this dayroom involving violence and Mr. Monteith fears for his safety. He is currently on a rotation with another person on safety for similar reasons. - He is currently double-bunked with another person who also fears for his safety and so isn’t confined on his own. [ 19 ] At the bottom of the page, the box confirming that a copy of the above had been given to the offender is not checked.

Similarly, below that on the form where it says “name and signature or initials of correctional staff who provided copy to the offender” is also blank. [ 20 ] No documentation to suggest that Mr. Monteith was served or provided with anything in relation to the disciplinary hearings held on April 21 and/or April 27, 2023 has been provided by the Respondent. This is compounded by the fact that the Institution made a decision that Mr.

Monteith was not to be permitted to attend either of his disciplinary hearings due to “security concerns”, prompted by concerns over staffing/inmate ratios ( Critchley affidavit, para. 45 ). [ 21 ] One adds to this the fact that of Mr. Monteith was alleged to have participated in the April 21, 2023 disturbance at the Institution. It is uncontroverted that he was observed fleeing from the scene of the of the disturbance. He was injured either as he was attempting to extricate himself from the dayroom, or while fleeing to his cell.

A conclusion was reached that he was running to his cell to obtain the weapon (which was subsequently found there) ( Critchley affidavit, Tab I, p. 9 ) [ 22 ] How it was determined (in the first hearing) that the weapon was owned by Mr. Monteith and that he was responsible for the “brew” in his cell (in the second hearing) is similarly unclear. He had a roommate on both occasions, moreover, he denies taking ownership of the weapon on either occasion.

He also denied making a comment to the unnamed investigator that he had safety concerns. [ 23 ] The circumstances justifying a hearing in the absence of the offender at his disciplinary hearing only apply to the extent of “...what cannot be done because of the offender’s absence” ( Regulations,

section 94 ). This would be the case even if I could conclude that 94(

b) applied, and that there were reasonable grounds for the Superintendent to believe that “...the presence of the offender would jeopardize the safety of a person present at the hearing.” [ 24 ] The Institution argues that

section 94(

b) was applicable, in paraphrase, by saying that Mr. Monteith was accused of possession of a weapon. Therefore, the argument continues, it was determined to have been a risk for only one guard to take him to the disciplinary hearing. Because of staffing issues, the Respondent did not have more than one staff member available to accompany him.

Therefore, the Attorney General argues that it was preferable to conduct the hearing and impose the penalty in absentia , without notifying the Applicant that it was taking place, and without attempting to obtain input or hear from him by any other means. [ 25 ] As a postscript, approximately two days after the Court heard this application, Mr. Monteith’s BMP came to an end. The Respondent did not renew it. Mr. Monteith’s full privileges were restored on May 17, 2023. Issues [ 26 ] The issues are as follows: 1. Has a deprivation of Mr.

Monteith’s residual liberty, along with a legitimate ground to question its legality, been established? 2. If yes, should the Application nonetheless be dismissed because it is factually moot? 3. If no, has the Respondent established that Mr. Monteith’s confinement is/was lawful? 4. If no, what remedy should the court provide?

[ 27 ] 1. Has a deprivation of Mr. Monteith’s residual liberty, along with a legitimate ground to question its legality, been established? [ 28 ] The general principles pertaining to habeas corpus were succinctly summarized by Van den Eynden , JA in Pratt v. NS (Attorney General) , 2020 NSCA 39 : [ 55] The principles that govern are well-known and not controversial. By way of a cursory overview they include: • Habeas corpus is a “non-discretionary” remedy.

It must be issued as of right by the provincial superior courts where the requirements are met. • If the applicant proves a deprivation of liberty and raises a legitimate ground to question the legality of the deprivation the matter must proceed to a hearing. • If the applicant has raised such a ground, the onus shifts to the respondent authorities to show the deprivation of liberty was lawful. • The requirement for a legitimate ground has been characterised as “a legitimate doubt” or “some basis” to question the lawfulness of the detention.

This requirement is different than actual proof that the detention is unlawful. The legal burden to prove lawfulness rests upon the respondent decision maker. • An

interpretation of the test for “legitimate ground” that increases the standard of proof, or imposes technical legal requirements, runs the risk of unduly narrowing the scope of this constitutionally protected remedy. • Thus, when interpreting the legitimate ground requirement attention must be paid to avoid shifting the burden improperly. This is especially so in situations where the applicant claims lack of access to information or reasons concerning their detention. • This

interpretation of the content of the applicant’s obligation to show “grounds” to question the lawfulness of a decision is consistent with the purpose of the remedy to hold authorities to account for incursions on personal liberty. • A challenge to the fairness of the process may be based on procedural violations of either or both the common law or statute.

In determining the fairness of the process, apart from transient or trifling complaints, respondent decision makers are not entitled to deference by the reviewing court. • In short, the rules that govern can be said to favour the prisoner, requiring the respondent decision maker to introduce evidence to justify the deprivation where the prisoner has discharged their evidential burden by establishing a factual context that “bears upon” the legality of the imprisonment.

A claim based on no disclosure or reasons for decision can meet that requirement. [ 29 ] It is well established that the Applicant carries a burden to show a deprivation of “residual liberty” within the institution, and to raise a legitimate question as to its legitimacy.

The onus thereupon shifts to the institution (in this case, the Respondent) to establish that the deprivation of liberty was lawful. [ 30 ] The Applicant has established that his residual liberties were restricted during the periods from April 21-26, 2023, and April 27-May 3, 2023 as a result of penalties imposed in the first and second sanctions, respectively. He was immediately placed in a BMP as soon as the second sanction ended on May 3, 2023. The BMP itself ended on May 17, 2023. I have not been satisfied that he was provided with notice of either the first or second hearings.

He was not permitted to attend either hearing. [ 31 ] The answer to the first question is therefore, “yes”. 2.

If yes, should the Application nonetheless be dismissed because it is moot? [ 32 ] There is no dispute that the issues herein are now moot. [ 33 ] Indeed, there is no suggestion by the Applicant that his current conditions, as opposed to those which existed when he filed his Notice of habeas corpus on April 27, 2023, are other than as described by the Respondent in its counsel’s correspondence with the court dated May 17, 2023: Please accept this letter as the Respondents’ update regarding the application for a writ of habeas corpus brought by...Mr. Monteith.

More specifically, this letter provides an update with respect to the Behaviour Management Plan (“BMP”) that Mr. Monteith was placed on starting May 3, 2023, which was altered on May 10, 2023, during a review, and which was referred to at the hearing on May 12, 2023, and May 15, 2023. Of course, Your Lordship requested that the Respondents provide an update today, May 17, 2023, the date of the scheduled review of Mr. Monteith’s BMP to update the court on what transpired … … I wish to advise that Mr.

Monteith was removed from his BMP on May 17, 2023, at 2:30 p.m. in accordance with the regularly scheduled review process. As of this date and time, Mr. Monteith is no longer on a BMP. Mr. Monteith is no longer subject to the restrictions contained in the BMP . Mr. Monteith is currently residing in the West 2 dayroom, or West 2 and West 2 is an open protective custody dayroom with full privileges ... He may interact with his peers in the West 2 dayroom without specialized or individualized restrictions. ... Mr.

Monteith is now subject to the same traditional periods of unlock as his peers who live in the West 2 dayroom without specialized or individualized restrictions. The hour limitation of Mr. Monteith’s time out in the dayroom is now restored to that of any and made in the dayroom that is not on a BMP. Mr. Monteith has access to full dayroom privileges and rights such as phone, access to the gaming station, workout equipment,

programming, smudging and airing court. [Empasis added] [ 34 ] The genesis of the matter leading to the Applicant filing his writ on April 27, 2023, at least in the sense that the Respondents view it, is set out in the Affidavit of Rachel Critchley, Deputy Superintendent at CNSCF, dated May 10, 2023, which was filed as Exhibit #1. Therein, among other things, she states: 6. At the time of filing [of Mr. Monteith's application for habeas corpus ], Mr.

Monteith was detained as an adult within the Central Nova Scotia Correctional Facility, located at 90 Gloria McCluskey Avenue, Dartmouth, Nova Scotia (“CNSCF”), pursuant to a warrant of committal upon conviction, dated September 8, 2022. . . . 25. In terms of his living unit at the facility, Mr. Monteith was placed in the West 2 dayroom or West 2 on December 23, 2022. He has resided in West 2 since that time. West 2 is an open protective custody dayroom with full privileges. West 2 is consistently fully open, however, recently there have been several days within the past four weeks where West 2 has altered its

schedule for periods of unlock to rotational unlock due to staff to inmate ratios. Mr. Monteith’s Conditions of Confinement 26. On April 21, 2023, Mr. Monteith was one of ten individuals to have participated in a disturbance in the West 2 dayroom. Mr. Monteith was injured during the incident. As a result of his injuries, Mr. Monteith was required to seek medical attention at the hospital. He was transported to the hospital. 27. As a result of Mr. Monteith’s behaviour during the incident, his cell was searched.

It appeared during the incident that he was attempting to retrieve something from his cell but was unable. When Mr. Monteith’s cell was searched, a weapon was located in his cell in the form of a home-made bat. He was placed on a disciplinary report for this incident. 28. When the disciplinary report was adjudicated on April 24, 2023, Mr. Monteith was found guilty. The Provincial Adjudicator determined that Mr. Monteith would serve 5 days in confinement which was scheduled to conclude at 9:00 a.m. on April 27, 2023. Mr. Monteith was confined to his cell for the 5-day period of confinement. 29.

In addition to being locked down for disciplinary concerns, Mr. Monteith also informed correctional officers he was locked in for safety based on the events which occurred on the evening of April 2, 2023. Mr. Monteith was one of three individuals to lock in citing safety concerns. 30. On April 27, 2023, Mr. Monteith completed his 5-day period of confinement in his cell at 9:00 a.m. He was permitted back out into the dayroom with a group of his peers. 31. A true copy of Mr. Monteith’s disciplinary level which was adjudicated on April 24, 2023 is attached to this Affidavit as Exhibit “G 32.

Three hours later around 12:10 p.m. on April 27, 2023, a search was conducted of Mr. Monteith’s cell due to suspicion that home- made alcohol (“brew”) was present in his cell. Unfortunately, during the search of Mr. Monteith’s cell, another weapon, a second home- made bat, was found in Mr. Monteith’ laundry bag, along with the brew. Mr. Monteith was placed on a disciplinary report for this incident. A separate and additional weapon known as a Shank was located on Mr. Monteith’s cell mate. 33. When the disciplinary report was investigated by the Captain, Mr. Monteith took ownership of the weapon. Mr.

Monteith was adjudicated for the disciplinary report and was found guilty by the Provincial Adjudicator. Mr. Monteith was sanctioned to six (6) days in confinement as per his adjudication. He was scheduled to be removed from disciplinary confinement on May 3, 2023 at approximately 12:00 p.m. 34. On April 28, 2023, while Mr. Monteith was confined to his cell for the level he received stemming from the incident on April 27, 2023, Mr. Monteith filed his habeas corpus application which is the subject of this application. . . . [ 35 ] Ms. Critchley’s Affidavit concludes as follows: 90.

Between April 21, 2023, and May 3, 2023, while Mr. Monteith was serving his sanctions, as well as since May 3, 2023, while Mr. Monteith has been on a BMP, CNSCF has made consistent and ongoing efforts to review Mr. Monteith’s conditions of confinement. CNSCF has made numerous decisions with respect to the best location for Mr. Monteith’s placement to ensure the safety and security of both Mr. Monteith and the correctional facility at large. The decisions to confine Mr. Monteith to his cell as a result of his levels on April 21, 2023, and April 27, 2023, were made by the Provincial Adjudicator.

Ultimately, since he finished his sanctions, a decision was made to place Mr. Monteith on a BMP. He is housed in his cell in West 2 at the CNSCF. This is where he remains today while he is safely reintegrated back to the typical hours of unlock. [ 36 ] In his post-hearing submission dated June 1, 2023, Mr. Monteith argues (at page 3) that: ... the Court should find that his close confinement was unlawful because: 1.

His two instances of contiguous disciplinary confinement between April 22 - 27 and April 27 to May 3 were null and void for want of jurisdiction because of numerous grave violations of both the statutory and common law requirements of procedural fairness in two consecutive disciplinary processes. These included a lack of notice of the allegations, a lack of disclosure, a lack of notice of the hearings, a lack of participatory rights in the hearings (including the ability to call evidence), and a lack of notice of the decisions which

restricted his liberty; and 2. His subsequent continued administrative confinement based on a “Behaviour Management Plan” was unreasonable because it wasbased entirely or primarily on the unlawful disciplinary findings and a characterization of his “participation” in a dayroom disturbance onApril 21, 2023, which was entirely unsupported by the evidence. [Emphasis in original] [37] In Mr. Monteith's earlier submissions, he had argued: The Court must therefore reject the submission of the respondents that the continued restriction of Mr.

Monteith’s liberty under a“Behaviour Management Plan” is not a restriction of his residual liberties, or that the Court does not have jurisdiction to consider hisApril 28, 2023, application to extend to his continued confinement [under a BMP]. (Pretrial Submissions, May 12, 2023, p. 4) [38] As earlier noted, both sides agree that the Court is possessed of a discretion to decide most issues. Where they part ways iswhether the Court ought to exercise it. [39] Some guidance is provided in Borowski v. Canada (Attorney General), (SCC), [1989]1 SCR 342.

AsSopinka, J. explained at page 353, a two-step analysis is involved: The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concretedispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessaryto decide if the court should exercise discretion to hear the case ... In the interest of clarity, I consider that a case is moot if it fails tomeet the “live controversy” test.

A court may nonetheless elect to address the moot issue if the circumstances warrant. [40] Whether “circumstances warrant” the exercise of the Court’s discretion seems to be governed by the twin factors of judicialeconomy, and the observation of the proper lawmaking function of the Court. When considering these issues, as the court continues inBorowski: The court must be sensitive to its role as the adjudicative branch in our political framework.

Pronouncing judgements in the absence of adispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch. [41] The Court returned to this topic in Khela v. Mission Institution, 2014 SCC 24: [14] Despite being moot, this appeal merits a decision in the circumstances of this case. The nature of habeas corpus applicationsinvolving the transfer and segregation of inmates is such that the factual circumstances of a given application can change quickly, beforean appellate court can review the application judge’s decision.

This means that such cases will often be moot before making it to theappellate level, and are therefore “capable of repetition, yet evasive of review” (Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, at p. 364). As was true in May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 14,and Cardinal v.

Director of Kent Institution, (SCC), [1985] 2 S.C.R. 643, at p. 652, the points in issue here aresufficiently important, and they come before appellate courts as “live” issues so rarely, that the law needs to be clarified in the instantcase. [42] Our Court of Appeal has also discussed these principles on a number of occasions. For example, in Springhill Institution v.Richards, 2015 NSCA 40, further insight is provided into the types of circumstances which will warrant the exercise of the discretion: [53] ...

These [circumstances] include whether: there is still an adversarial context; resolution will have some practical consequences onthe rights of the parties; the cases that sparked the controversy are of a recurring, but brief duration; it is in the public interest to expendjudicial resources to mitigate the social cost of continued uncertainty in the law; adjudicating may be reviewed as intruding into the roleof the legislative branch. [43] Considering these criteria sequentially, first, I consider that there still is an adversarial context.

While the parties did come tocourt and present their arguments at a time during which Mr. Monteith remained subject to his the BMP, he was released literally daysafterward. The parties were given opportunity to present additional written argument to address their positions in light of thatdevelopment, including arguments as to whether the Court ought to hear the matter and render a decision now that the the Applicant’scase was moot. [44] Second, I consider that resolution will have some practical consequences with respect to the rights of the parties – not only withrespect to Mr.

Monteith personally, but to other inmates.

I cannot help but observe the similarity of the complaints made by Mr.Monteith to those in Pratt, where a disciplinary hearing was held in the absence of the prisoner, who had never been provided with acopy of the complaint, or a chance to respond. (para 66) [45] Finally, I have considered that, as indicated earlier, this case is one that is of a recurring (see for example, Pratt) butcomparatively brief duration, and that it is in the public interest to expend judicial resources to mitigate the “social cost of, continueduncertainty in the law” (per Richards). [46] I do not consider myself, in so doing, to be intruding into the role of the legislative branch of the government.

I am merelybeing asked to determine whether the procedure adopted by the Respondents, which led to Mr. Monteith being penalized twice in a row(which in turn was responsible for his being placed on a BMP immediately consecutive thereto (Critchley affidavit, para 81)), was alegal (i.e. fair) one. [47] I also note that Keith, J. arrived at a similar conclusion in Whelen v. Central Nova, 2022 NSSC 161.There, after considering the

authorities, he observed: 17. Without limitation, a review of the jurisprudence reveals that the following circumstances may justify the Court accepting jurisdiction in an otherwise moot application for habeas corpus : 1. Where there is a valid and arguable concern regarding procedural fairness ; and 2.

Where there is a compelling request for declaratory relief involving, for example, the constitutionality of a provision under which an inmate’s residual liberties are infringed. [Emphasis added] [ 48 ] In the interest of economy I will not address the nature of a BMP, and its interrelationship with a habeas corpus application. It suffices in this context, to observe that the imposition of the BMP (which involved further restrictions upon Mr.

Monteith’s residual liberties after May 3, 2023, and lasted until May 17, 2023) would not have been imposed but for the first and second sanctions which preceded it. [ 49 ] I must consider the seriousness of the allegations of procedural unfairness that have been levelled at the process which led to the imposition of the first and second sanctions.

The allegations are cumulatively tantamount to contentions that the Applicant was not only denied of due process, but any process, before the imposition of two concurrent segments of disciplinary confinement which spanned April 22 to May 3, 2023. [ 50 ] I must also be mindful of the ease with which such incidents could be repeated (if I accept that they occurred in this situation at all).

The Court must also consider the evasiveness of the episodes of which complaint has been made, since occurrences such as these tend to be over and done by the time they reach the Court. [ 51 ] I conclude that the instances of which Mr. Monteith complains are sufficiently egregious to conclude that “circumstances warrant” the exercise of the Court’s discretion to hear this case. This is notwithstanding the fact that the deprivation of his residual liberty is now unquestionably at an end. 3 - Has the Respondent established that Mr. Monteith’s confinement is/was lawful? [ 52 ] As observed earlier, once Mr.

Monteith established that he was deprived of his residual liberties, and a legitimate basis upon which to question it, the onus shifted to the Respondent to demonstrate the legality of that deprivation. [ 53 ] Ms. Critchley was the Respondent’s only witness. In addition to those portions of her affidavit considered earlier, she also deposed as follows: 41. Disciplinary close confinement is imposed following a hearing before an adjudicator. An adjudicator must be a Deputy Superintendent.

If a Deputy Superintendent is unable to act as adjudicator then the Superintendent, with the approval of the Director of Correctional Services, may appoint a person to act as a temporary adjudicator. The following procedures must apply when conducting an adjudication:

a) meet with the offender;

b) explain the contents of the disciplinary report to the offender;

c) hear the offender’s explanations;

d) convene and hear any witnesses, if the safety and security of the witness or any other person is not jeopardized and it would not disrupt the proceeding or the orderly operation and effective delivery of programs and services at the correctional facility the charge(

s) must be read to the offender

e) permit the offender to cross examine a witness, if the safety and security of the witness or any other person is not jeopardized and it would not disrupt the proceeding or the orderly operation and effective delivery of programs and services at the correctional facility. 42. An inmate may be charged with breaching a rule and may be penalized under the Correctional Services Act and the regulations whether or not the act that gave rise to the breach is or could be the subject of a proceeding in a court of law. 43.

When an inmate pleads not guilty, all evidence pertaining to the incident must be presented in accordance with sections 93 (1) sub (2) sub (2A) and sub (3) of the Correctional Services Regulations, and including allowing the inmate to: • make a statement • call a witness • if appropriate, cross examine a witness 44. The inmate may be present at all phases of the hearing unless excluded in accordance with

section 94 of the Correctional Services Regulations for reasons which must be stated in writing. Such reasons include: (

a) the offender is voluntarily absent; (

b) the superintendent believes on reasonable grounds that the presence of the offender would jeopardize the safety of a person present at the hearing;

(

c) the offender disrupts and is removed from the hearing; (

d) the offender refuses to appear before the superintendent. 45. In the case of Mr. Monteith, he was not present during the first or second adjudication due to facility constraints that affected safety and security – staff to inmate ratios at the time . 46. The adjudicator must determine the guilt or innocence of the inmate based on all evidence presented, measured by the “balance of probability” standard, and in accordance with section 93(3) of the Correctional Services Regulations. 47.

At a disciplinary hearing, the adjudicator may accept any evidence that the adjudicator considers appropriate, whether or not it is admissible as evidence in a court of law. 48. At a disciplinary hearing, an adjudicator may rely on a disciplinary report and the results of the investigation under

section 89A of the Correctional Services Regulations without requiring further evidence from the persons who prepared them. 49. Where an inmate pleads guilty or is found guilty , the adjudicator must proceed to make an appropriate disposition based on the circumstances of the offence and the background and character of the adult offender or young person, in accordance with section 95(1) of the Correctional Services Regulations: Imposing penalty 95

(1) The penalty that a superintendent may impose on an offender under subsection 70(1) of the Act for breaching a rule must be one of the following, or a combination of any of the following: (

a) withdrawal in whole or in part of the offender’s privileges; (

b) performance of work; (

c) close confinement for no longer than 15 days in respect of any one confinement; (

d) with the approval of the Executive Director, close confinement for longer than 15 days; (

e) a restorative justice process, including restitution of part or all of the costs to repair the damage done by the offender, in accordance with policies and procedures; (

f) forfeiture of all or part of the remission currently credited to the offender.

(2) In deciding to impose a penalty on an offender for breach of a rule, the superintendent must consider all of the following : (

a) the seriousness of the breach; (

b) the degree of premeditation ; (

c) the degree of awareness that the offender has of having breached a rule ; (

d) the offender’s behaviour since the beginning of their custody; (

e) the circumstances surrounding the breach, including, in particular, the degree of provocation; (

f) whether the offender has breached the same rule in the past; (

g) the possible effects of the penalty on the subsequent behaviour of the offender; (

h) the temporary measures taken under subsection 88(2) following the breach; (

i) the degree of remorse shown by the offender .

(3) An offender who is being penalized by having their communications or correspondence privileges restricted or by undergoing close confinement is not entitled to send or receive a letter or other communication, or to receive a visit, to or from anyone other than the following: (

a) the offender’s spiritual advisor; (

b) the offender’s lawyer; (

c) a representative of the Office of the Ombudsman; (

d) a representative of the Human Rights Commission; (

e) an individual not listed in clauses (

a) to (d), as approved by the superintendent. [Emphasis added] [ 54 ] After the above, Ms. Critchley goes on to say:

50. In deciding the outcome of a disciplinary proceeding against an offender, the adjudicator must inform the offender of the decision and, if applicable, the penalty to be imposed. 51. Mr. Monteith received copies of the adjudicator’s decisions on May 4, 2023. 52. A true copy of the documents that were delivered to Mr. Monteith by hand on May 4, 2023 are attached to the Affidavit as Exhibit “I”. 53. If a penalty includes forfeiture of an offender’s remission, the Superintendent must inform the offender of the amount of remission forfeited and the offender’s new release date. . . . 80.

On May 3, 2023, after his sanctions ended , Mr. Monteith was placed on a Behaviour Management Plan (“BMP”). 81. At the time that Mr. Monteith was placed on a BMP he had recently completed his sanctions for being in possession of a weapon on two separate occasions on April 22, 203, and April 27, 2023. 82. The BMP details that Mr. Monteith is to be housed in his cell in West 2 and limited Mr. Monteith’s unlock privileges to a minimum of 2-hours out of his cell with peers daily. This also includes airing court. Mr. Monteith’s typical hours of unlock were scheduled for 10:00 a.m. to 12:00 p.m. daily. 83.

The BMP also provides a number of officer precautions such as directing that two staff members are present when interacting with Mr. Monteith outside of his cell due to elevated security concerns stemming from his recent history of weapons possession. 84. The BMP was initially scheduled for 14 days with a review after 7 days. 85. A review of Mr. Monteith’s BMP and hours of unlock is scheduled to take place on May 10, 2023. [Emphasis added] [ 55 ] During cross examination, Ms. Critchley confirmed once again that Mr. Monteith was not present at either of the two hearing before the adjudicator.

She explained that staff / inmate ratios were insufficient to spare two guards to take him to the hearing ( see also Critchley Affidavit, para. 45 ). The Provincial Adjudicator proceeded, and imposed the penalties, in Mr. Monteith’s absence. The Applicant therefore was permitted to call no evidence. [ 56 ] In a more exhaustive fashion, and in no particular order of relative importance, it appears that Mr. Monteith was not permitted to: (

a) meet with the adjudicator; (

b) receive an explanation of the disciplinary reports; (

c) offer any explanations; (

d) call any witnesses; or (

e) cross examine a witness. [ 57 ] It is to be noted that with the exception of (d), all of the above are unqualified rights to which Mr. Monteith was entitled ( Correctional Services Act , Regulations, s. 93(1)(a)-(e)). Subsection (

d) allows him to call a witness, provided that doing so does not jeopardize any other person or disrupt the proceeding or “the orderly operation and effective delivery of programs and services at the facility.” [ 58 ] What occurred in this matter may be more finely parsed. The Respondent claims that Mr. Monteith participated in the dayroom disturbance, yet his evidence is that he fled, and that he was injured as a result of it. The only evidence presented is that Mr.

Monteith was observed fleeing from the disturbance to his cell, which was closed behind him after he entered ( Critchley affidavit, Disciplinary Report, Tab I, p. 9 ). [ 59 ] In fact, the language (at Tab I, page 9), as employed by the unnamed Investigator, is suggestive: - This writer asked [redacted] to search West 2 Cell 10, assigned to Peter Monteith, before we returned him to the dayroom after his Med T/A for a suspected eye injury sustained during an earlier incident.

PIC Monteith had been running desperately for his cell to grab something during the earlier melee, but was locked in by another PIC before he could get that something. This was what caused this writer to be suspicious of what he might have been going for . - During the search, a large makeshift club was found, made of what appears to be newspapers and Bristol board, with torn sheets wrapped around it, and looped into a wrist strap at the bottom.

This club was very solid and heavy and would be a dangerous weapon to use against others. - Picture of this club with standard computer monitor for scale is in the Pictures folder. [ 60 ] How the author of that report had determined that Mr. Monteith was “running desperately to his cell to get something during the earlier melee, but was locked in before he could get that something by another P/C” was not disclosed.

[61] Moreover, how could the adjudicator (who imposed the first sanctions) have (apparently) agreed with this “observation” in thecomplete absence of any input from Mr. Monteith? Similarly, how could the inference been drawn that the weapon was that of theapplicant rather than that of his roommate? [62] In addition, as we have seen, the institutional documents to which prior reference has been made do advert to Mr. Monteith“taking ownership” of a bat (Critchley affidavit, para 33). This partially accounted for the imposition of the second sanction, on April 27,2023.

They also mention that he requested segregation (at some point) for his safety. However, since he was not permitted input intoeither of the adjudicator’s decisions, or to either set of sanctions, which were imposed, he was not provided with opportunity to disputethe allegations, explain them, or call evidence of his own. In any event, the investigator to whom he “took ownership” of the bat, and ofwhom he requested protective segregation, is not named. [63] Mr.

Monteith was similarly provided no opportunity to provide any information to the Adjudicator relevant to the imposition ofpunishment, which also clearly violated s. 95(2) of the Regulations. [64] The non exhaustive factors enunciated in Baker v. Canada (Minister of Citizenship and Immigration), (SCC),[1999] 2 SCR 817 remain extant when consideration is given to whether the Applicant was afforded procedural fairness.

They include: i. the nature of the decision; ii. the nature of the statutory scheme; iii. the importance to the individual affected; iv. the legitimate expectations of the person challenging the decision; and v.

The choices of procedure made by the decision-maker. [65] In para 28 of Baker, we find: The values underlying the duty of procedural fairness relate to the principle that the individuals affected should have the opportunity topresent their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and openprocess, appropriate to the statutory, institutional, and social context of the decision. [Emphasis added] [66] These factors received some elaboration in Kelly v. Nova Scotia Police Commission, 2006 NSCA 27.

There, Cromwell, JA, ashe then was, observed, albeit within the context of administrative tribunals: [19] The judge’s concern was not that the Board improperly exercised its discretion or that any decision or ruling it made was in itselfreviewable. Those are the kinds of matters that we typically think of as engaging the standard of judicial review. The standard of reviewis generally applied to the “end products” of the Board’s deliberations, that is, to its rulings and decisions: see C.U.P.E. v. Ontario(Minister of Labour), 2003 SCC 29 , [2003] 1 S.C.R. 539 at para 102.

In this case, the judge was concerned that the processfollowed by the Board had resulted in unfairness – in other words, that the Board had failed in its duty to act fairly. This concern goes tothe content of the Board’s duty of fairness, that is, to the manner in which its decision was made: C.U.P.E. at para. 102. [20] Given that the focus was on the manner in which the decision was made rather than on any particular ruling or decision made bythe Board, judicial review in this case ought to have proceeded in two steps.

The first addresses the content of the Board’s duty offairness and the second whether the Board breached that duty. In my respectful view, the judge did not adequately consider the first ofthese steps. [21] The first step – determining the content of the tribunal’s duty of fairness – must pay careful attention to the context of the particularproceeding and show appropriate deference to the tribunal’s discretion to set its own procedures. The second step – assessing whether theBoard lived up to its duty -- assesses whether the tribunal met the standard of fairness defined at the first step.

The court is to interveneif of the opinion the tribunal’s procedures were unfair. In that sense, the court reviews for correctness. But this review must beconducted in light of the standard established at the first step and not simply by comparing the tribunal’s procedure with the court’s ownviews about what an appropriate procedure would have been. Fairness is often in the eye of the beholder and the tribunal’s perspectiveand the whole context of the proceeding should be taken into account.

Court procedures are not necessarily the gold standard for thisreview. [Emphasis added] [67] As the Supreme Court of Canada had earlier pointed out in May v. Ferndale Institution, 2005 SCC 82 , [2005] 3 SCR809: 77 A deprivation of liberty will only be lawful where it is within the jurisdiction of the decision-maker. Absent expressprovision to the contrary, administrative decisions must be made in accordance with the Charter. Administrative decisions that violatethe Charter are null and void for lack of jurisdiction: Slaight Communications Inc. v. Davidson, (SCC), [1989] 1 S.C.R.1038, at p.

Section 7 of the Charter provides that an individual’s liberty cannot be impinged upon except in accordance with theprinciples of fundamental justice. Administrative decisions must also be made in accordance with the common law duty of proceduralfairness and requisite statutory duties. [Emphasis added]

[ 68 ] I have considered the entire context within which the impugned actions of the Respondent were taken. I have considered the nature of the decision – which was to impose disciplinary sanctions upon an individual, as well as the detailed statutory and regulatory regime which dictates the manner in which such decisions are to be made. [ 69 ] The importance of the process to the individual affected, Mr. Monteith cannot be overstated. When one is incarcerated, one’s residual liberties become critical.

The Applicant had legitimate expectations that he would be notified of, and be permitted input, at both hearings, and prior to the imposition of sanctions. [ 70 ] The Applicant was entitled to a high level of procedural fairness. [ 71 ] And yet, he was neither notified of, or permitted to attend, either of the disciplinary hearings that resulted in the two sets of sanctions which unquestionably constituted deprivations of his residual liberty.

Pursuant to s. 93(1) of the Regulations, the superintendent was required to meet with the offender beforehand, explain the contents of the disciplinary report, and hear any explanations, as we have already earlier observed. The Superintendent must also convene and hear witnesses, with cross-examination by the offender permitted. Mr.

Monteith was also to have been accorded the opportunity to call witnesses of his own: "if the safety and security of the witness or any other person is not jeopardized, and it would not disrupt the proceeding of the orderly operation and effective delivery of programs and services at the correctional facility" (s. 93 (1) d and e). [ 72 ] While a Tribunal has the discretion (in some cases) to set its own processes, they must be fair ones. Where there is a statutory or regulatory mandate, that process must be followed. And deviations that are more than trivial must be satisfactorily explained.

And even then, the deviation(

s) must not result in procedural unfairness. [ 73 ] The Respondent has adverted to the fact that Mr. Monteith was facing serious charges involving weapons, and staff to inmate ratios did not permit him to be escorted safely with less than two officers. This is not an answer, at least not in the present context.

The Respondent has not explained why it was so pressing that the two hearings that had been scheduled could not have been adjourned or delayed until sufficient staffing ratios would permit his personal attendance. [ 74 ] Moreover, even if it had been established that there was some validity to the respondent’s concerns in this regard, it is still not persuasive. In an era when inmates often attend routine court appearances remotely by video, why something similar could not have been arranged to enable Mr. Monteith to testify in these proceedings is similarly unexplained.

Even if a “safe” type of an escort to the video conferencing room could not be arranged, could he not participate by phone or video link from his cell? [ 75 ] Perfection is not required. Maybe these alternatives were not practical either.

However, at the very least, much more of an explanation than what has been provided is required in circumstances where there is such a marked departure from the procedure prescribed by the Regulations, which govern the manner in which the Respondent is required to conduct disciplinary hearings. [ 76 ] Similarly, many of the same considerations apply when the imposition of penalty is being considered. The mandatory considerations relating to penalty under s. 95(2) of the regulations include consideration of "mitigating factors".

It is therefore a fair inference that this implies that the accused person is to be permitted to speak prior to the imposition of same. [ 77 ] In Cain v.

Canada (Correctional Services) , 2013 NSSC 367 , Van den Eynden, J. (as she was then) observed: [34] … this Court’s role is not to determine whether the administrative segregation and/or the security classification was the “proper decision” but rather whether the Respondent had the jurisdiction to make those decisions and whether such decisions were lawful and reasonable in the circumstances, taking into consideration the rights and procedural safeguards which Mr.

Cain is to be afforded at law . [Emphasis added] [ 78 ] In oral argument, the Respondent contended that the confinement decisions were based upon the Applicant's prior discipline history combined with the specific incidents. Therefore, they are entitled to deference. Counsel went on to advert to the Applicant's institutional security assessment level as evidence that he is a "very challenging" inmate who does not follow rules. [ 79 ] In support of this argument, counsel cited Williams v. Central Nova Correctional Facility , 2022 NSSC 159 .

In Williams , the applicant had complained of restrictions under a security management plan that were exacerbated by pandemic related public health measures. In those circumstances, Norton J said: [12] In this case the evidence overwhelmingly establishes that Mr. Williams was a threat to the security of CNSCF, its staff and other inmates and the SMP developed for Mr. Williams was reasonable, measured and justified. Mr. Williams is a challenging inmate to manage.

He is assessed with a high security risk due to his history of conduct and his refusal by times or inability by times to comply with facility rules and staff directions. His confinement in the CCU for part of the period under consideration was due to disciplinary action imposed following adjudication in compliance with the facility rules and regulations. That adjudication is not subject to review by this court on a habeas corpus application. [13] I am satisfied by the evidence that the facility complied with its procedural duties and requirement of fairness. Mr.

Williams was provided with a letter outlining the standard of behaviour required in order for him to be placed on a rotation with other inmates. His placement in a single cell rotation was a result of his own negative behaviour. [ 80 ] Context is crucial, however. The Applicant in Williams appeared to have been objecting to his security classification and its consequences. He did not allege procedural failures. Williams does not stand for the proposition that deference is due whenever the Institution fails to comply with proper process.

[ 81 ] The Attorney General says that the evidence indicates that the applicant "was given very clear reasons for displacement and confinement by way of the adjudicative process and through discussions with the correction staff" (AGNS brief, May 10, 2023, p. 14i). As has already been stated, the Court does not accept this. [ 82 ] It was further argued that Ms. Critchley's evidence (to the effect that it would be standard practice to provide such notice) should be taken into account as evidence that the applicant actually received notice.

This argument is obviously untenable and shall not receive further comment herein. [ 83 ] Counsel for the Respondent also argued that there is no specific "timeliness" requirement for notification under s. 96, and adverts to the fact that Ms. Critchley testified that she immediately attempted to provide the reasons to the applicant as soon as when she learned that he was alleging that he had not received them. [ 84 ] While I do observe that there is no precise timeline specified, s. 96(1) does open with the words "[o]n deciding the outcome of a disciplinary proceeding against an offender...".

This suggests that notice is due at the time the discipline is imposed, not upon some future date after it has expired. Moreover, the Attorney General's

interpretation would fly in the face of the fact that there is a time limit within which to request a review by the Superintendent, and it runs from "the date of the decision" (regulations, s. 98 (3)). [ 85 ] As to the “procedure” to which Mr.

Monteith was subjected, the Attorney General has failed to meet its burden to demonstrate either that a procedurally fair process was followed when the two disciplinary levels were imposed, or that the failures to observe the proper process and follow the mandated procedure prescribed by the Regulatory was justified and reasonable in the circumstances. [ 86 ] In substance, the respondent is claiming an unreviewable discretion to dispense with mandatory procedures. It does so by cloaking it in a claim that deference is owed by the court.

It is sufficient to answer with the words of the Court of Appeal in Pratt , at para 55 : [i]n determining the fairness of the process, apart from transient or trifling complaints, respondent decision-makers are not entitled to deference by the reviewing court. [ 87 ] Finally, I return to the BMP. The respondent does concede that the BMP constituted deprivation of residual liberty. However, the Attorney General simultaneously argues that the BMP is not legitimately before the court because Mr. Monteith’s habeas corpus application was filed before it was imposed.

In these specific circumstances, this argument is tenuous. As was pointed out earlier, there is no dispute that the BMP was only imposed because of the disciplinary levels that are at issue here. It would not have been imposed but for the results of the two procedurally flawed and unfair disciplinary hearings which preceded it. [ 88 ] Clearly, a BMP may constitute lawful detention when the criteria for placement and close confinement, specified under sections 74(

b) and (

c) of the Act, are observed. However, those provisions permit a placement and close confinement "to protect the security of the correctional facility or the safety of other offenders" or where "the offender is alleged to have breached a rule of a serious nature..." This has no application, however, in circumstances such as these, where the BMP appears to have been "entirely based on the conclusions of the two disciplinary hearings" (applicant's brief, May 12, 2023, p.10) each of which, on their face, violated the applicant's procedural rights.

Its imposition exacerbated penalties imposed as a result of two prior consecutive procedurally flawed and unfair disciplinary hearings. Conclusion 4. What remedy should the Court provide? [ 89 ] This application is granted. Since the issues are moot, the Applicant is entitled to the only remedy which this Court is able to provide: a declaration that his residual liberties were unlawfully restricted from April 22, 2023 until May 17, 2023 when the two sets of sanctions and the BMP (which were consecutively imposed) ended. Costs [ 90 ] The usual result would require each side to bear their own costs.

Due to the egregious nature of the violation of virtually all of the applicant's most fundamental and basic rights in the circumstances, I will award him costs in the amount of $300. It will be payable by the Respondent to Mr. Monteith’s counsel in trust. Gabriel, J.