Diggs v. Nova Scotia (Attorney General), 2024 NSSC 11

SUPREME COURT OF Nova Scotia Citation: Diggs v. Nova Scotia (Attorney General) , 2024 NSSC 11 Date: 20240112 Docket: 527613 Registry: Halifax Between: Durrell Diggs Applicant v.

Attorney General of Nova Scotia and The Nova Scotia Health Authority Respondents Decision on Habeas Corpus Application Judge: The Honourable Justice Peter Rosinski Heard: November 27, 2023, in Halifax, Nova Scotia Counsel: Hanna Garson and Emma Arnold, for the Applicant Adam Norton, for the Respondent (AGNS) Scott Campbell and Erin McSorley, for the Respondent (NSHA) By the Court: 1-Introduction [1] [ 1 ] This Court has the broadest jurisdiction of any trial court in Nova Scotia. [ 2 ] As a non-statutory court, it has “inherent jurisdiction”. [ 3 ] However, as Justice Bateman stated Ocean v .

Economical Mutual Insurance Co. , 2009 NSCA 81 , at para. 77 : Inherent jurisdiction does not bestow an unfettered right to do what, in the judge’s opinion, is fair as between the parties. A court’s resort to its inherent jurisdiction must be employed within a framework of principles relevant to the matter in issue. … [2] [ 4 ] Sometimes, in spite of a legal problem that cries out for a solution, there is simply no way, even for this Court, to respond in a way that remedies that problem. [ 5 ] As Justice Malcolm Rowe, the 2022 W.R.

Lederman Visitor at Queen’s Law , indicated in his remarks in presenting the Lederman Lecture to faculty and students of the Law Department on October 17, 2023 (the following being, in part, the author, Ken Cuthbertson’s

summary of Justice Rowe’s words): [3] [Justice] Rowe noted that because the courts apply and interpret the laws made by our elected officials, the legal and legislative processes are inextricably linked. However, that doesn’t mean judicial decisions are inherently political. Rather, they are based on “coherent and rigorously analytical methodology,” and this is what gives them legitimacy.

Rowe said that while it’s essential that the courts stay within their defined role, judges must also be aware of the need for the law to evolve in line with societal change, all the while maintaining tolerance, and fairness. [ 6 ] Mr. Diggs was incarcerated on remand at the Central Nova Scotia Correctional Facility [“CNSCF”], for 51 days from September 13- November 3, 2023 , while pending his trials in December 2023. [4] [ 7 ] The very real problem in the present case, is that Mr.

Diggs, who has been a (“low security risk”) general population inmate with full privileges, and has had no disciplinary violations during his time there, was confined to his cell for 22 hours per day for 38 days - and confined to his cell for 21 hours per day for 8 days of his 51 days as a result of daily staffing shortages.

[ 8 ] When Mr. Diggs was out of his cell only for two hours or less per day , that is the equivalent of being in “close confinement” or administrative segregation. [5] [ 9 ] The daily process is that, with advance notice, a number of qualified Correctional Officers are instructed and expected to attend each morning – if they all attended, absent unforeseeable exceptional circumstances otherwise, the inmates should be safely out of their cells for up to 10 to 12 hours that day. [6] [ 10 ] However, the previously “extraordinary” recourse to lockdowns has become the presently “ordinary”. [ 11 ] Mr.

Diggs made his habeas corpus application on October 19, 2023 in order to be released from the ongoing lockdowns. [7] [ 12 ] I conclude that he was unlawfully detained by those lockdowns. [ 13 ] However, because he was moved to North Nova Correctional Facility on November 3, 2023, I can no longer release him from the lockdowns at CNSCF. [ 14 ] Nevertheless, as a remedy, I will issue a declaration that he was unlawfully detained by the lockdowns during those days at CNSCF. [ 15 ] Let me go on to explain these conclusions in more detail. 2-The background to this habeas corpus Application [ 16 ] Durell Diggs is a 25-year-old African Nova Scotian. [ 17 ] He was detained in custody [“on remand” in common court parlance] at the CNSCF - located in the Burnside Industrial Park, which is commonly referred to as the “Burnside” Jail (e.g. see R. v.

Lilly , 2023 NSCA 80 ) from September 13 to November 3, 2023 , pending his trial in December 2023, on Criminal Code charges. [8] [ 18 ] While I recognize that a substantial Correctional Services staff effort must have gone into assembling the materials for, and in association with Counsel, the preparing of affidavits of Deputy Superintendent Ryan Hill and Chief Superintendent Jeffrey Awalt, some of the Burnside Jail’s administrative records placed in evidence before me were not complete, and in some respects not reliable enough for me to draw conclusions therefrom, particularly: the Rotation Schedules (Exhibit 8 to D/S Hill’s affidavit) for the dates: October 15, and October 27 – November 3, 2023 (9 days); and the “North Unit Airing Court Logs” for September 11 to November 3, 2023 – Exhibit 9 to D/S Hill’s affidavit.

In relation to those dates, because the records were not provided at all for some dates, or that the Court could not rely on them as a result of omissions thereon or uncertainties created by their incompleteness, and the burden to show the detention was lawful/reasonable is upon the Attorney General, I will consider these records as having not been proven to show that Mr.

Diggs’ was not deprived of his residual liberty on those dates where his evidence is to the effect that he was so deprived. [ 19 ] On October 19, 2023, as a self-represented litigant, he filed an Application, entitled Notice for Habeas Corpus , seeking release from the segregation-like conditions of his detention while on remand. [9] [ 20 ] He claims that during the entirety of his 51 days there, ongoing staffing shortages, caused either complete (him being confined to his cell 22 or more hours per day) or rotational lockdowns (him being typically released from his cell for more than 2 hours - but less than the “normal operations” 10-12 hours out of cells that would exist but for staffing shortages every day (see para. 54 of D/S Hill’s affidavit).

He says these lockdowns caused him to suffer an ongoing material deprivation of his residual liberty within the prison, which deprivations also interfered with his opportunity to be in the fresh air of the Airing Court, and timely access to healthcare (including provision of his medications by staff of the Nova Scotia Health Authority). [10] [ 21 ] There are a number of notable legal issues to be resolved in this case. [11] [ 22 ] In

summary, in relation to each of them, the Attorney General argues the following grounds for dismissing Mr. Diggs’ Application: 1 - the application is moot because Mr. Diggs has been transferred to the North Nova Jail on November 3, 2023; 2 - Mr. Diggs has not suffered any deprivation of residual liberty , because “Mr.

Diggs was in the same conditions of confinement as other inmates, and therefore there was no deprivation of his residual liberty.”; 3 - even if there was a deprivation of residual liberty, the decisions that led to that deprivation were lawful and reasonable ; and 4 - even if the decisions that led to that deprivation were not lawful and reasonable, there is no remedy available to Mr. Diggs because “Mr. Diggs is already assigned to an open day room as a ‘general population’ inmate in another facility, [North Nova] .… There is no authority for a declaration affecting Mr.

Diggs future rights in the event he returned to [the Burnside Jail]. There is no other open living unit at the [Burnside Jail] currently where Mr. Diggs may be ‘released” to avoid the implications of the [Burnside Jail’s] rolling rotational schedule… a declaration is an inappropriate remedy with no potential effect, and this Honourable Court should not grant an unenforceable order under a habeas corpus application.” (November 17, 2023, Brief) [ 23 ] In

summary, I respond as follows:

1 - Is this matter legally “moot”? [ 24 ] I conclude that it is not. [ 25 ] The applicable legal principles are not in dispute, (see for example, Justice Beveridge’s reasons in Springhill Institution v. Richards , 2015 NSCA 40 ). The application is not moot because: the issues raised are subject to repetition yet evasive of review otherwise; the circumstances herein raise novel and broader issues: Pratt v. Nova Scotia (Attorney General), 2020 NSCA 39 . I referenced those principles in my decision in Coaker v.

Nova Scotia (Attorney General) , 2018 NSSC 291 , which is based on distinguishable facts, but was also the first to recognize that a Superintendent of a Provincial Correctional Facility in Nova Scotia could impose rotational lockdowns in order to ensure the safety and security of inmates and staff pursuant to

section 79 of the Correctional Services Act Regulations.

In the case at Bar, I am satisfied that : there is a proper adversarial context; that the resolution will have some practical consequences on the rights of the parties (the Court’s decision is based on more recent circumstances including an argument that staffing shortages’ impact on inmates receiving their medications which involves the NSHA which was joined as a Respondent here, in a situation which has persisted to the detriment of inmates since at least 2022); I have more fulsome evidence than previously garnered regarding what has been done to remedy staffing shortages at CNSCF; as well as I have had the benefit of able counsel for Mr.

Diggs to fulsomely advocate for him and incidentally other inmates, including his counsel having brought new and challenging perspectives to issues addressed by other Justices of this Court, including directly challenging their conclusions that the Attorney General is correct, that there is NO material deprivation of his residual liberty in Mr. Diggs’ circumstances. In my view, it is in the interests of justice to revisit this issue, in spite of the importance of judicial comity- as reflected in the concept of horizontal stare decisis described in the reasons from R. v.

Sullivan , 2022 SCC 19 ); and that this is an example of a case that sparks a controversy of a recurring but brief (daily) duration, and it is in the interests of justice to expend judicial resources thereon, bearing in mind that the proposed adjudication must not intrude into the role of the legislative branch. Lastly, I observe that my decision may be of assistance by virtue of its being published to self represented inmates, counsels, and other members of this Court or beyond. I will say no more about mootness in my reasons. 2 - Has Mr.

Diggs proved that there been a material deprivation of his residual liberty, and raised a legitimate ground to question the legality thereof? [ 26 ] I conclude that he has, and there was an ongoing material deprivation of his residual liberty between September 13- November 3, 2023. 3 - Has the Respondent Attorney General demonstrated that its decisions were made lawfully (i.e. within its legislative jurisdiction, and that the process by which it came to those daily decisions and the outcomes themselves were both reasonable ( Canada (Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC 65 )? [ 27 ] It has not. [12] [ 28 ] The Attorney General has not shown that the daily decisions regarding Mr. Diggs’ confinement under total or partial lockdowns at Burnside Jail were “reasonable” over the 51 days he was confined there. 4. - What remedy is appropriate? [ 29 ] Because Mr. Diggs is no longer in custody at CNSCF, the possibilities are limited to a declaration that Mr.

Diggs has suffered an ongoing material deprivation of his residual liberty, (and incidentally interferences with him receiving his medications on a timely basis), as a result of staffing shortages at the CNSCF. [ 30 ] This Court has a broad jurisdiction pursuant to the common law. It is thereby entitled to make a declaration that Mr. Diggs was, to a material degree, unlawfully deprived of his residual liberty. [ 31 ] It has been argued that the Court should make a declaration that Mr. Diggs’ s. 10(

c) Charter rights have been violated, pursuant to section 24(1) of the Charter of Rights . In my opinion, doing so is inappropriate because the

summary procedure of habeas corpus would there be hijacked to import a substantive Charter remedy - such as a breach of ss. 7 , 12 or 15 (which may require that the Respondent have the opportunity to call evidence to justify such circumstances under s. 1 Charter - e.g. Canadian Civil Liberties Association v. Canada , 2019 ONCA 243 ; and Dorsey v.

Canada (Attorney General), 2023 ONCA 843 , at para. 45 ). [ 32 ] In order to avoid the latter controversy, I will render a declaration here only pursuant to the common law. [ 33 ] To the extent that there remain ongoing daily staff shortages which cause material deprivations of residual liberty to other CNSCF inmates experiencing similar circumstances, there is utility by inclusion in these written reasons that the Court is suggesting that the Superintendent should consider preventing these in future, by: [13] i) “ Over staffing ”- requiring more staff to muster each morning than the minimum that would otherwise be required, given the foreseeable potential absences each day, such that the chances of there being a less than full complement of staff are dramatically reduced. ii) Transferring inmates from out of the Correctional Centre which is suffering from acute staffing shortages on an ongoing daily basis, to those that are not as locked down and have residual capacity to accept new inmates.

Transferring inmates from CNSCF to one or more of the other three Provincial Correctional Facilities has recently been tried. [14] iii) Directly requesting that the Provincial and Federal Prosecution Services consider revisiting with Correctional Services, and

counsel for inmates on remand , permitting some inmates to be placed on bail pending their trials; or for those serving sentences permitting Temporary Absences , which were all used during Covid 19 to make the CNSCF Public Health Protocol compliant. [15] [ 34 ] It also remains open to this Court upon habeas corpus applications to remedy such ongoing deprivations of residual liberty by the use of bail hearings contemplated by the Liberty of the Subject Act , RSNS 1989, c. 253 , as complemented by Nova Scotia Civil Procedure Rules: [16] Liberty of the Subject Act Order for Discharge or Bail s. 6(2) The Court by order, or the judge by order in writing signed as aforesaid, may require the immediate discharge of the prisoner or may direct his bailment in such manner, and for such purpose, and with the like effect in proceeding, as is allowed upon habeas corpus .

Bail s. 6(3) Such bail, when ordered, may be entered into before any justice of the peace specially named in such order, or any justice of the county or place if no such justice is named. Civil Procedure Rule 7 Interim Release on Habeas Corpus 7.15 “A judge may order bail for an applicant.”; Final Determination Following Habeas Corpus 7.16 “A judge may release or remand the applicant on determining whether or not the deprivation of liberty is legal.” [ 35 ] Justice Kevin Coady of this Court relied upon this provision in Downey and Gray v.

Attorney General (Nova Scotia) , 2020 NSSC 213 , wherein at para. 21 , he ordered: Leaving Mr. Downey and Mr. Gray in the HCU indefinitely offends the principles of habeas corpus and the Charter of Rights and Freedoms . The Institution must find a resolution. Consequently, I order that if a solution is not found within 14 days of this decision, Mr. Downey and Mr. Gray are to be brought before this Court for a Criminal Code review of their detention. [17] [ 36 ] Therein, he also stated: [15] The inquiry into whether Mr. Downey’s and Mr.

Gray’s placement in HCU is a reasonable decision is a fact driven inquiry involving the weighing of various factors and “possessing a negligible legal dimension”. ( Khela , para. 76 ) [ 16 ] In Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , the Supreme Court of Canada recognized there was a need for better guidance on the proper application of the reasonableness standard.

The Court commented on the issue at para. 11: 11 … The Court has heard concerns that reasonableness review is sometimes perceived as advancing a two-tiered justice system in which those subject to administrative decisions are entitled only to an outcome somewhere between "good enough" and "not quite wrong". … [ 17 ] The Court directed that the analysis begins with a presumption that reasonableness is the applicable standard in all cases and that reviewing Courts “should derogate from this presumption only where required by a clear indication of legislative intent or by rule of law”. (para. 10) [ 18 ] The Vavilov Court discussed the reasonableness standard of review at paras. 12 – 15: 12 … Reasonableness review is methodologically distinct from correctness review.

It is informed by the need to respect the legislature's choice to delegate decision-making authority to the administrative decision maker rather than to the reviewing court. In order to fulfill Dunsmuir's promise to protect "the legality, the reasonableness and the fairness of the administrative process and its outcomes",

reasonableness review must entail a sensitive and respectful, but robust, evaluation of administrative decisions: para. 28. 13 Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers.

However, it is not a "rubber- stamping" process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review. 14 On the one hand, courts must recognize the legitimacy and authority of administrative decision makers within their proper spheres and adopt an appropriate posture of respect. On the other hand, administrative decision makers must adopt a culture of justification and demonstrate that their exercise of delegated public power can be "justified to citizens in terms of rationality and fairness": the Rt. Hon. B.

McLachlin, "The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law" (1998), 12 C.J.A.L.P. 171, at p. 174 (emphasis deleted); see also M. Cohen-Eliya and I. Porat, "Proportionality and Justification" (2014), 64 U.T.L.J. 458, at pp. 467-70. 15 In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified.

What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker's place. These paragraphs provide the guidance the Court recognized was needed in judicial reviews. [ 19 ] I have concluded that the ongoing placement of Mr. Downey and Mr. Gray in the HCU is not a reasonable outcome. If it were a temporary arrangement, I would find it reasonable.

However, to leave them in segregation indefinitely is not acceptable. I make this decision on the evidence recognizing the difficulty faced by the institution and affording it considerable deference.” [My bolding added] [ 37 ] Since Mr. Diggs was transferred from the CNSCF to North Nova on November 3, 2023, it is not possible to “release” him from lockdown confinement(

s) at the CNSCF. 3-The difference between systemic problems and the relevant “decisions” regarding why, on any given day, Mr. Diggs was locked down in his cell [38] While lockdowns have continually persisted for many months, [18] the underlying systemic staffing problem is one that ultimately only government can effectively address. [19] [39] But in a habeas corpus application the Court is not permitted to look into these systemic issues. They are not “legal” issues in the present circumstances. [20] [40] Nevertheless, in the case of Mr.

Diggs, he has clearly experienced a substantial (or “material” as I also call it) daily deprivation of his residual liberty, and the responses of Correctional Services have not remedied that problem. [41] The direct factual cause responsible for daily lockdowns, is that Correctional Officer staffing levels have been insufficient to allow a safe environment for both staff and inmates alike. At a minimum, 19 Correctional Officers are required to be available each day “on the floor” of the inmate cell areas, to safely permit inmates out of cell times in the order of 9 + hours per day.

The less Correctional Officers that show up for work, the more severe the lockdowns will become each day. [42] Correctional Services staff’s responses (i.e. the daily staffing decisions which determine whether a partial / total lockdown will be imposed and are so inter-connected as to be virtually indistinguishable), individually assessed, but contextually seen cumulatively, in relation to Mr. Diggs, were arguably not always within a range of reasonable choices, given the duration over which, and at the times directly relevant to Mr.

Diggs, staffing absences were continually occurring on a daily basis. [43] This problem had persisted for so long, that an ongoing trend had emerged which made it markedly foreseeable to Correctional Services staff, that there would be continual daily staff shortages and therefore lockdowns in response at the relevant times that Mr.

Diggs experienced the lockdowns herein. [44] I emphasize that the “decision” by Nova Scotia that is directly in issue here, is the daily decision to order total or partial lockdowns on any given day. [45] Pursuant to Civil Procedure Rule 7 “Judicial Review and Appeal”, in Rule 7.01, we find: “decision” includes all of the following: (

i) an action taken, or purportedly taken, under legislation, (ii) an omission to take action required, or purportedly required, by legislation,

(iii) a failure to make a decision; “decision-making authority” includes anyone who makes, neglects to make, takes, or neglects to take a decision. [46] The lockdowns caused Mr. Diggs to have experienced a material deprivation of his residual liberty. [47] Other inmates like Mr.

Diggs - who would otherwise be entitled to be out of their cells for up to 10 to 12 daytime-hours every day when a full complement of Correctional Officer staff are present that day - have also remained “locked down” in their cells for 10 to 12 daytime-hours for a substantial number of days, as a result of insufficient staff being present on a given day to safely unlock inmates for a reasonable amount of time per day. [48] Once a material deprivation of residual liberty has been established by the inmate (Mr.

Diggs), the burden is upon Nova Scotia to present evidence upon which the Court can conclude that Nova Scotia’s daily responses were within a reasonable range of choices available to them. [49] The evidence regarding the reasonableness of daily staffing decisions in Mr. Diggs case, is limited to generalized statements by Nova Scotia’s witnesses to the effect that the process was that: each day the number of Correctional Officers required for the day (19 “on the floor” of the jail) had been previously given notice that they are to muster on the morning of the assigned workday.

If for some reason they did not appear for work as scheduled, there was insufficient time to have a replacement called out, and so there would be one or more of the minimum number of required staff “not present” for that day- and this would materially affect how much time inmates would receive out of their cells that day. [50] The evidence suggests that Nova Scotia could have taken more robust steps to avoid such lockdowns, such as: 1. “over staffing” i.e., given the near certainty of staffing shortages during the time periods relevant to Mr.

Diggs, calling out more staff to muster than the minimum number that are ordinarily required each day, could have reasonably avoided altogether or reduced significant numbers of days (and length of time the inmates were confined to their cells) when there were lockdowns as a result of staffing shortages; 2. transferring inmates to other Provincial Correctional Facilities so that even with the foreseeably reduced staff numbers, CNSCF Correctional Officers could have reduced the number of days and length of time that inmates were confined to their cells (as Chief Superintendent Awalt noted in his affidavit at para. 48, such transfers of inmates to other Correctional Facilities were possible, but not used until November 3, 2023); 3. directly requesting that the Provincial and Federal Prosecution Services consider revisiting with Correctional Services, and Counsel for inmates on remand, permitting some inmates to be placed on bail pending their trials instead, or for those serving sentences permitting Temporary Absences, which were all used during Covid 19 to make CNSCF Public Health Protocol compliant. [51] According to Chief Superintendent Awalt (paras. 7-11 affidavit): There is no formal policy on the number of officers necessary to do the work at CNSCF.

This is a determination that must be made through the Department of Finance, Correctional Services, and the Public Service Commission. … Historically, Correctional Services determined that for the ordinary operation of the CNSCF, there needs to be at least 100 general staff members and approximately 80 relief staff members to relieve these general staff members in the event of short-term leave, vacation, illness, or exigent circumstances to ensure the safety and security of the facility by ensuring a full staffing complement.

In 2021, the trend became that the general staff members began going off on short-term or long-term disability in relation to workplace injuries, mental health concerns, and other issues connected to the type of work performed in the correctional facilities. This trend resulted in the use of relief staff to fill in the general staff roles over longer periods of time. During these periods there have been issues with backfilling these already backfilled positions if our relief Central are unavailable due to illness or for various other reasons I became Chief Superintendent in July 2023.

I was aware that there were two issues causing critical staff shortages, and that these are continuing issues I was seeking to address:

a) attendance of General Staff and Relief Correctional Officers; and

b) hiring practices resulting in gaps in the time it took to hire.

… The number of leaves for long-term and short-term illness at CNSCF has increased significantly over the last several years… There is no effective means to terminate these employees if their absences are justified. … I have made all possible efforts to increase the attendance of our Correctional Officers in CNSCF and will continue to explore our options as outlined below to ensure we have as close to our full staffing complement as possible. … Prior to 2018, the average amount of applicants received by Correctional Services for Correctional Officer positions with 400 to 500 per year.

In 2023, the number of applications that Correctional Services have received for Correctional Officer positions has been approximately 180. This amount is similar to the number of applications in the last few years. Of those recent applications 14 were accepted, have completed training, and chose to continue in their role as correctional officers at CNSCF. After receiving the judgement of this Honourable Court in Downey v.

Nova Scotia (Attorney General) , 2023 NSSC 204 , in entering my new position as Chief Superintendent in July 2023, I turned my mind to hiring efforts to ensure we had the relief staff necessary to backfill for our General employees who were on leave as discussed above. [21] …I have determined that we will have an assessable positive effect on staffing for CNSCF by March 2024, with a full staffing complement estimated by July 2024.

The goal once a full staffing complement is available, would be in phase 2 to move back to a direct supervision model which I am aware is better for both inmates and staff in terms of safety and service provision for inmates. [52] It must be remembered that the “decision” that is the focus of the “reasonableness” analysis, is the daily response of Correctional Services to the ongoing pattern of daily staffing shortages. [53] Ancillary thereto is the interconnected question of what reasonable steps were taken to avoid staff shortages each day, and thereby avoid altogether the need for lockdowns. [54] Past (i.e. before the relevant dates alleged as material deprivations by the inmate) systemic decisions per se that lead to present staffing shortages are only to be contextually examined in a habeas corpus application. [55] However, in Mr.

Diggs’ case, he has claimed that his deprivation of liberty started on Sept. 13, 2023.

Therefore, I am examining 51 consecutive days , and I am therefore entitled to assess the reasonableness of the specific daily responses by Correctional Services for each day, keeping that context in mind . [22] [56] Therefore, where there have been staffing shortages for a sufficient number of days that a reasonably foreseeable trend had emerged, from which one could conclude that in the next number of days there is a reasonable prospect that there will be further staffing shortages, then the Superintendent of CNSCF should reasonably expect there to be further shortages of staff and plan therefor - e.g. by always calling out sufficient extra persons to muster on a daily basis, so that even if some call in as unavailable, at least a full complement will still be in place.

If more staff than are minimally required work on a particular day, there likely will be work for them that needs to be done. [57] A potential practical solution would be to begin “over-staffing” in the future until there is no longer a reasonable prospect of the insufficient daily staffing situation. [58] Henceforth, should this overstaffing be feasible; there being a reasonable prospect of insufficient numbers of staff in the ensuing days; and the Superintendent does not “overstaff”, then it may be fair for a Court to conclude that the Superintendent’s decision/management of that issue was not “reasonable”, if there was a consequent decision to impose lockdowns, creating a material deprivation of inmates’ residual liberty on a particular day. [59] Importantly, I will add here that over-staffing is only a feasible solution, if there are in real terms sufficient relief or “backfill” Correctional Officers from which group the additional “overstaffed” personnel can be drawn on a particular day. [60] I was not satisfied on the evidence presented that Nova Scotia had established that it had considered this option and others proactively during the days relevant to Mr.

Diggs incarceration - or that they were not feasible for other reasons. [23] [61] I conclude that Correctional Services daily decisions regarding the use of lockdowns affecting Mr.

Diggs, were not demonstrated by it to be within a range of reasonable outcomes in the continuing circumstances that prevailed at CNSCF between September 12 and November 3, 2023. [62] Although he has been released from detention in CNSCF as of November 3, 2023, and consequently the matter is factually moot, nevertheless, I am of the view that a declaration should issue, to the effect that he was unlawfully detained for each of those days that I conclude his deprivation was “unlawful”.

[63] Once there is a material deprivation of residual liberty established, the burden is on the Respondent (Nova Scotia) to satisfy the Court more likely than not that - in the sense referred to in V avilov - 2019 SCC 65 - the decisions made were “reasonable”. [64] Nova Scotia has the information and records that are relevant to this issue insofar as staffing at the CNSCF is concerned. Nova Scotia has the burden to establish that its daily decisions were “reasonable”.

It therefore also has the burden to provide evidence in support of its position. [65] In present circumstances, the evidentiary record does not establish that Nova Scotia could not have over-staffed the usual standard Correctional Officer complement (19 per day “on the floor”) required each day to permit full unlocks of all inmates. Therefore, it has not established that its daily decisions were “reasonable”, in light of the continual and foreseeable trend of staff absences, at the relevant times. [66] I appreciate that I must approach such a review on a deferential basis.

As stated in Vavilov : 83 It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review , and they are, at least as a general rule, to refrain from deciding the issue themselves.

Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. …Instead, the reviewing court must consider only whether the decision made by the administrative decision maker - including both the rationale for the decision and the outcome to which it led - was unreasonable. [67] It is critical to recognize that the particular context here modifies the application of the above noted quotation in the circumstances of this case.

That is because, this is not a traditional judicial review based on a “record” alone where a successful applicant (Mr. Diggs in this case) must demonstrate that the “decision made” is “unreasonable”/ not one that is within a range of reasonable outcomes. Habeas corpus has trial-like processes in addition to having a “record” that is produced by the Respondent to the Court. [68] This is an important distinction between traditional judicial reviews and habeas corpus applications in relation to an assessment of the “reasonableness” of the Respondent’s daily decision(s).

Once a material deprivation of residual liberty has been established by Mr. Diggs, the evidentiary burden to show that the decision(

s) made was lawful/ “reasonable” is then on the Respondent - as opposed to typically being in administrative law on the judicial review Applicant (in this case Mr. Diggs) to show that the decision made was not within a range of reasonable outcomes. 4-The circumstances of Mr. Diggs detention at the CNSCF - why I conclude that there is a material deprivation of his residual liberty A - The evidence [69] Mr.

Diggs through his affidavit (it was prepared by counsel for him on or about November 24, 2023 in anticipation of him affirming and signing it on November 27, 2023 during his testimony), and viva voce testimony, gave evidence that: 1 - “During the entire time I was incarcerated at CNSCF , the facility was under lockdown conditions… I cannot remember a day when I was at CNSCF that we were not on a lockdown.” [24] 2 - “On most days, I was let out of my cell for less than two hours” 3 - “I was only able to go outdoors and get fresh air three times during my time at CNSCF.

One of those times was because of the Correctional staff wanted to search the Unit, so the whole Unit had to go outside.” 4 - “Lockdowns have had a significant negative impact on my mental health… Lockdowns also impaired my ability to engage in activities that help me regulate my mental health… I was diagnosed with bipolar depression and clinical depression when I was a teenager.

When not properly medicated, I am irritable, have a short fuse, and easily triggered, and can be aggressive or violent… I also informed the nurse that I had prescriptions for Naproxen due to lower back and joint pain and a stomach medication to alleviate side effects from the Naproxen. I told correctional staff about my mental health concerns almost every other day… On two occasions between September 11 and November 3, 2023 I was not unlocked to go to… receive the medication… I don’t remember the specific days.

Four or five times I was given my Trazodone at the wrong time… It is important that I take the Trazodone before going to bed because it helps me fall asleep and the effects start acting overnight so I wake up in a more stabilized mood. This stability is very important for the treatment of my bipolar disorder… missing a single dose, or taking it at the wrong time immediately aggravates the symptoms of my bipolar disorder.” [70] I am satisfied, more likely than not, that Mr.

Diggs testified truthfully in his affidavit and viva voce testimony regarding these facts. [25] [71] He argues that the decisions made by Correctional Services in response to these foreseeable ongoing staffing shortages have not been reasonable during those 51 days, and therefore the consequent deprivation of his residual liberty was unlawful. [26]

[72] I am satisfied, more likely than not, that for 28 of those 51 days Mr.

Diggs was in segregation-like detention (2 hours or lessout of his cell each day); and he was for 3 hours or less out of his cell for 8 further days.[27] [73] Once out of their cells during their “unlock” times, inmates are entitled at a minimum to at least 30 minutes per day of outdoortime per s. 57(1) of the Correctional Services Act, and supposed to be “offered” time in the “Airing Court” - which is the outside fenced-in yard and is the only opportunity for inmates to be in the fresh air outside of the building. [74] The North Unit (Mr.

Diggs was on North 4) Airing Court Logs (Exhibit 9 to D/S Hill’s affidavit) are all in evidence except forSeptember 16 and October 18, 2023. However, the handwritten details of what occurred on manifold days for which there are Logsavailable, are incomplete or unreliable insofar as determining whether Mr. Diggs North 4 Unit (and Mr. Diggs) was offered airing timeand had the opportunity to attend in the Airing Court.[28] [75] I am satisfied that it is more likely than not, that Mr. Diggs was not offered and given the opportunity to take advantage ofAiring Court time for at least 14 days.[29] [76] Mr.

Diggs was categorized as a “low” security risk while he was an inmate at CNSCF, and he was a “general population”inmate (paras. 14 and 68, D/S Hill’s affidavit). [77] Within the entire inmate population, that group of inmates has the greatest freedom of movement within the jail. Moreover, asthe Supreme Court of Canada made clear in Canada v.

Solosky, (SCC), [1980] 1 SCR 821: “A person confined to prisonretains all of his civil rights, other than those expressly or impliedly taken from him by law” (p. 839). [78] I note here that, in evidence and pleadings in the case before me and many others preceding it, the Attorney General hasrepeatedly conceded the following “starting-point” proposition: On an ideal day at CNSCF, where the appropriate staff to inmate ratio is in place, all open day rooms, including North 4, wouldbe unlocked from 7:30 AM to 12 noon; from 1:30 PM to 6 PM; and from 7 PM to 10 PM – a total of 12 hours. A. This baselineunlock

schedule is not mandated in law, regulations or policy. It is the current normal operating

schedule arrived upon throughemergency and operational management planning at times when a full complement of staff is present at the facility. (See for exampleD/S Hill’s affidavit at para. 24 herein)[30] [79] The Attorney General has been consistent in its position that, ordinarily, if a full staff complement (19 Correctional Officers) ispresent at the facility, Mr. Diggs would be expected to be unlocked for 10-12 hours each day.[31] B- The evidence establishes that there is in law, a material deprivation of Mr. Diggs’ residual liberty [80] The statutory authority for the lockdowns imposed upon Mr.

Diggs arises from section 79(3) of the Correctional ServicesRegulations. It provides a very broad discretion. [81] The Attorney General argues that as long as Mr.

Diggs’ lockdown conditions are no different from the other general populationinmates at CNSCF on a given day (that is, when they collectively experience total lockdowns for 22 hours a day or rotational/partiallockdowns for lesser but still substantial periods of time per day) therefore, there is no substantial deprivation of his residual liberty. [82] Let me bluntly state my own position regarding some of these legal issues. 1-all general population inmates are prima facie entitled to as much time out of their cells per day as is reasonable in all thecircumstances (suggested in the evidence here to be 10-12 hours when a full complement of staff are present at the jail) unless theCorrectional Facility management can justify with reasons, a statutory and factual basis for proportionately reducing that prima faciestandard. 2-the lockdowns that Mr.

Diggs endured were substantial/material deprivations of his residual liberty. That Mr. Diggs as a generalpopulation inmate, endured material deprivations of his residual liberty as a result of the lockdowns, which were also concurrently ineffect in relation to and suffered by all other general population inmates at the Burnside Jail, does not, in law, preclude a court fromconcluding that he suffered a material deprivation of his residual liberty. [83] As the evidence demonstrates (and I would say the law requires), Mr.

Diggs would normally have been entitled to be out of hiscell for 10 to 12 hours a day, but for months long, and most of his days at Burnside Jail (28 of 51), he was out of his cell 2 hours or less,and for 8 further days he was out of his cell 3 hours or less. [84] It is not a “privilege” to be out of one’s cell.[32] [85] It is presumptively an entitlement. [86] The starting point for assessing whether Mr.

Diggs has suffered a material deprivation of his residual liberty, is to considertogether, two separate components: 1. “the relative or residual liberty permitted to the general inmate population of an institution” (para. 32 in Miller); and 2. when a state of “normal association” exists between the inmates of the general population (para. 27 in Miller). [87] The Supreme Court of Canada did not intend that the relevant comparator be: The actual residual liberty permitted to the general inmate population (at the relevant times the applicant inmate was claiming they werematerially deprived of their residual liberty).

[88] The Supreme Court of Canada intended that the comparator - or starting point - when assessing any suggested materialdeprivation of residual liberty of an individual inmate, must be: The residual liberty permitted to the general inmate population when a state of normal association exists between the inmates. [89] This is why the Attorney General’s reference to the other “general population” inmates’ concurrent lockdown circumstances asbeing the appropriate comparator to Mr.

Diggs circumstances is a false premise. [90] Special notice should be taken of how the Supreme Court of Canada characterized the issue it was deciding in Miller, becauseit was based upon factual circumstances that are distinguishable from those in Mr. Diggs’ case. [91] In Miller, the Applicant was materially deprived of his residual liberty, and he could be returned back “into normal associationwith the general population” -whereas Mr. Diggs could not be returned “into normal association with the general population” - becausethey too were on lockdown:[33] 27.

I turn to the question whether habeas corpus will lie to determine the validity of the confinement of an inmate of a penitentiaryin a special handling unit and to obtain his release from such confinement, if it is found to be unlawful, into normal association with thegeneral population of the penitentiary. [My underlining added] [92] The following references reinforce that Miller does not support the Attorney General’s position: 32.

The British Columbia courts in Cardinal and the Ontario Court of Appeal in the case at bar applied the notion of a "prisonwithin a prison" in holding that habeas corpus would lie to determine the validity of confinement in administrative segregation or aspecial handling unit, and if such confinement be found unlawful, to order the release of the inmate into the general population of thepenitentiary. … This statement reflects the perception that a prisoner is not without some rights or residual liberty (see also Solosky v.

The Queen, (SCC), [1980] 1 S.C.R. 821 at p. 839) and that there may be significant degrees of deprivation of liberty within a penalinstitution. The same perception is reflected in the reasons for judgment of McEachern C.J.S.C. and Anderson J.A. in Cardinal and CoryJ.A. in the case at bar on this issue.

In effect, a prisoner has the right not to be deprived unlawfully of the relative or residual libertypermitted to the general inmate population of an institution.’ 35 … Confinement in a special handling unit, or in administrative segregation as in Cardinal, is a form of detention that is distinct andseparate from that imposed on the general inmate population. It involves a significant reduction in the residual liberty of theinmate. It is in fact a new detention of the inmate, purporting to rest on its own foundation of legal authority.

It is that particular form ofdetention or deprivation of liberty which is the object of the challenge by habeas corpus. It is release from that form of detention that issought. For the reasons indicated above, I can see no sound reason in principle, having to do with the nature and role of habeas corpus,why habeas corpus should not be available for that purpose. I do not say that habeas corpus should lie to challenge any and allconditions of confinement in a penitentiary or prison, including the loss of any privilege enjoyed by the general inmate population.

But itshould lie in my opinion to challenge the validity of a distinct form of confinement or detention in which the actual physicalconstraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normalone in an institution. [My underlining added] [93] In its Brief, the Attorney General states, under the heading “No deprivation of residual liberty”: 17 As this Honourable Court articulated in Downey 2023, there is no deprivation of residual liberty if Mr.

Diggs was subject to the sameconditions or of restrictions as the general population of the facility. Justice Brothers citing the Ontario Court of Appeal case Ogiamienheld the following: 91 In Ogiamien, the Ontario Court of Appeal noted that habeas corpus ‘may remedy living conditions in a prison where the inmatefaces physical confinement or a deprivation of liberty that is more restrictive than the confinement of other inmates’ including where aninmate has been placed in administrative segregation, confined in a special handling unit, or transferred to a higher security institution(para. 88).

The court held that Mr. Nguyen was not entitled to the remedy of habeas corpus because he did not face conditions ofconfinement more restrictive than those faced by the other inmates. The same is true for Mr. Downey. [94] Let me briefly examine some cases which set out the background for the arguments. [95] Justice Brothers’s comprehensive decision in Downey v. Nova Scotia (Attorney General), 2023 NSSC 204, reflects thejurisprudence to date regarding this issue: [8] Stage one of this habeas corpus application was heard by the Honourable Justice Arnold, who scheduled it for a stage twohearing.

The Crown filed a brief on May 23, 2023, relying heavily on the recent decision of Justice Campbell in Jennings v. NovaScotia (Attorney General), 2023 NSSC 148. Like Mr. Downey, Mr. Jennings filed an application for habeas corpus challenging the

lawfulness of rotational lockdowns on North 3 unit at the CNSCF. Justice Campbell held that the lockdowns, implemented due tostaffing shortages, were both reasonably required and reasonably implemented. The Crown further relies on Ewanchuk v.Canada (Attorney General), 2017 ABQB 237, which held that lockdowns, even those caused by staffing numbers, are not“substantial” deprivations of liberty, and therefore do not engage a habeas corpus remedy. [9] CNSCF and the AGNS emphasize that the rotational lockdowns challenged by Mr. Downey are implemented facility-wide.They note that Mr.

Downey consistently receives equal time out of his cell as his peers in protective custody and those housed inthe general population units. He is not being treated differently or more harshly than anyone else in custody at CNSCF. … Habeas Corpus [52] Habeas corpus is a remedy used to release a person from an unlawful detention. It is specifically protected under s. 10(

c) of theCharter, which provides that everyone has the right on arrest or detention to have the validity of the detention determined by wayof habeas corpus and to be released if the detention is not lawful. In Pratt v. Nova Scotia (Attorney General), 2020 NSCA 39, JusticeVan den Eynden, writing for the court, affirmed that “habeas corpus is a fundamental remedy with historical and constitutionalsignificance in our legal system” (para. 54).

The courts have held that habeas corpus is available to challenge different deprivationsof liberty, including the initial deprivation of liberty, substantial change in conditions amounting to a further deprivation ofliberty, and a continuation of the deprivation of liberty (Dumas v. Leclerc Institute, (SCC), [1986] 2 S.C.R.459; Gogan v. Canada (Attorney General), 2017 NSCA 4). … [54] In R. v. Miller, (SCC), [1985] S.C.J. No. 79, cited by the respondent, the Supreme Court of Canadaexpanded the scope of habeas corpus by making it available to free inmates from “a prison within a prison”.

The courtelaborated on the notion of a “prison within a prison” as follows: 32 The British Columbia courts in Cardinal and the Ontario Court of Appeal in the case at bar applied the notion of a "prison within aprison" in holding that habeas corpus would lie to determine the validity of confinement in administrative segregation or a specialhandling unit, and if such confinement be found unlawful, to order the release of the inmate into the general population of thepenitentiary.

The concept of a "prison within a prison" is referred to by Sharpe, The Law of Habeas Corpus (1976), p. 149, where hespeaks in favour of such an application of habeas corpus, and by Dickson J., as he then was, in Martineau, supra, where, with referenceto the decision of the disciplinary board which sentenced the inmate for a disciplinary offence to 15 days in the penitentiary's specialcorrections unit, he said at p. 622: Moreover, the board's decision had the effect of depriving an individual of his liberty by committing him to a 'prison within a prison'.

Inthese circumstances elementary justice requires some procedural protection. The rule of law must run within penitentiary walls. This statement reflects the perception that a prisoner is not without some rights or residual liberty (see also Solosky v. TheQueen, (SCC), [1980] 1 S.C.R. 821 at p. 839) and that there may be significant degrees of deprivation of libertywithin a penal institution. The same perception is reflected in the reasons for judgment of McEachern C.J.S.C. and AndersonJ.A. in Cardinal and Cory J.A. in the case at bar on this issue.

In effect, a prisoner has the right not to be deprived unlawfully ofthe relative or residual liberty permitted to the general inmate population of an institution. Any significant deprivation of thatliberty, such as that effected by confinement in a special handling unit meets the first of the traditional requirements for habeas corpus,that it must be directed against a deprivation of liberty. 33 Moreover, the principle that habeas corpus will lie only to secure the complete liberty of the subject is not invariably reflected in itsapplication.

There are applications of habeas corpus in Canadian case law which illustrate its use to release a person from aparticular form of detention although the person will lawfully remain under some other restraint of liberty. Examples are the useof habeas corpus to recover the custody of children (Stevenson v. Florant, (UK JCPC), [1927] A.C. 211, aff'g (SCC), [1925] S.C.R. 532; Dugal v. Lefebvre, (SCC), [1934] S.C.R. 501); to release a person on parole wherethe parole has been unlawfully revoked (Re Caddedu (1982), 4 C.C.C. (3d) 135; Swan v.

Attorney General of BritishColumbia (1983), (BC SC), 35 C.R. (3d) 135); and to transfer an inmate from an institution in which he has beenunlawfully confined to another institution (Re Bell and Director of Springhill Medium Security Institution (1977), (QCCA), 34 C.C.C. (2d) 203; R. v. Frejd (1910), (ON CA), 22 O.L.R. 566). In all of these cases the effect of habeascorpus is to release a person from an unlawful detention, which is the object of the remedy.

The use of habeas corpus to release aprisoner from an unlawful form of detention within a penitentiary into normal association with the general inmate population ofthe penitentiary is consistent with these applications of the remedy. [Emphasis added] [55] The court added at para. 36: Confinement in a special handling unit, or in administrative segregation as in Cardinal, is a form of detention that is distinct andseparate from that imposed on the general inmate population. It involves a significant reduction in the residual liberty of theinmate.

It is in fact a new detention of the inmate, purporting to rest on its own foundation of legal authority. It is that particularform of detention or deprivation of liberty which is the object of the challenge by habeas corpus. It is release from that form ofdetention that is sought. For the reasons indicated above, I can see no sound reason in principle, having to do with the nature and roleof habeas corpus, why habeas corpus should not be available for that purpose.

I do not say that habeas corpus should lie to challengeany and all conditions of confinement in a penitentiary or prison, including the loss of any privilege enjoyed by the generalinmate population. But it should lie in my opinion to challenge the validity of a distinct form of confinement or detention inwhich the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is morerestrictive or severe than the normal one in an institution.

[Emphasis added] [56] In R. v. Gamble, (SCC), [1988] 2 S.C.R. 595, the court made it clear that habeas corpus is not to be narrowlyor technically applied. It can be invoked to redress all illegal deprivations of constitutionally protected liberty interests. [57] The Supreme Court of Canada summarized the test on an application for habeas corpus in Mission v. Khela, 2014 SCC 24: [30] To be successful, an application for habeas corpus must satisfy the following criteria. First, the applicant must establish that he orshe has been deprived of liberty.

Once a deprivation of liberty is proven, the applicant must raise a legitimate ground upon which toquestion its legality. If the applicant has raised such a ground, the onus shifts to the respondent authorities to show that the deprivation ofliberty was lawful. … [58] In Khela, the court held that the scope of review on habeas corpus includes a review for substantive reasonableness.

After noting that reasonableness should be regarded as “one element of lawfulness” (para. 65), Lebel J. stated: [74] As things stand, a decision will be unreasonable, and therefore unlawful, if an inmate’s liberty interests are sacrificed absentany evidence or on the basis of unreliable or irrelevant evidence, or evidence that cannot support the conclusion, although I donot foreclose the possibility that it may also be unreasonable on other grounds.

Deference will be shown to a determination thatevidence is reliable, but the authorities will nonetheless have to explain that determination. [75] A review to determine whether a decision was reasonable, and therefore lawful, necessarily requires deference (Dunsmuir, atpara. 47; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 59; Newfoundland and LabradorNurses’ Union, at paras. 11-12). An involuntary transfer decision is nonetheless an administrative decision made by a decision makerwith expertise in the environment of a particular penitentiary.

To apply any standard other than reasonableness in reviewing such adecision could well lead to the micromanagement of prisons by the courts. … Lockdowns [60] Before turning to the test for habeas corpus, I will review the legislative provisions relied on by the AGNS as authority forrotational lockdowns. I will also discuss several authorities where lockdowns of this nature have been considered. [61] Neither the Correctional Services Act, S.N.S. 2005 c. 37, nor the Correctional Services Regulations, N.S.

Reg.99/2006 prescribe a specific amount of time that each person in custody must be allowed out of their cell per day. [62] Under s. 39 of the Correctional Services Act, the duties of the superintendent of the CNSCF include implementingpolicies and procedures to ensure the safe and secure operation, management, and administration of the CNSCF. Thesuperintendent may delegate his duties and responsibilities with respect to the placement of inmates within the facility under

section 38of the Act. Sections 74 and 75 of the Act authorize the superintendent to place a person in “close confinement” if certainrequirements are met. [63]

Section 79 of the Correctional Services Regulations authorizes a superintendent to impose different conditions ofconfinement on different offenders: 79

(1) A superintendent may impose different conditions for different offenders within the correctional facility.

(2) An offender held in a correctional facility may be restricted from associating with another offender held in the correctionalfacility.

(3) For reasons of safety, security or order in the correctional facility, a superintendent may restrict access to thecorrectional facility or part of it by (

a) confining the offenders held in the correctional facility or those of them who are normally held in that part, as the case maybe, to their sleeping areas; and, (

b) restricting entry to the correctional facility. [64] Correctional Services Policy 43.000 addresses the use of administrative and close confinement within Nova Scotiacorrectional facilities.

Section 14 provides that inmates who are housed in a form of confinement but have been provided withaccess to out-of-cell programs and privileges and to interact with other inmates in excess of two hours daily do not meet thecriteria of close confinement.” [My bolding added] [96] In Heiser v.

Bowden Institution, 2022 ABCA 300, the Court canvassed some of the considerations in habeas corpusapplications regarding material deprivations of residual liberty: Demonstrating An Invalid Deprivation of Liberty [24] At the first stage, an applicant for habeas corpus contesting his detention must “raise a legitimate ground upon which toquestion its legality”: Khela at para. 30.

There are potentially three different deprivations of liberty (the initial deprivation of liberty, asubstantial change in conditions amounting to a further deprivation of liberty, and a continuation of the deprivation of liberty): Dumas vLeclerc Institute, (SCC), [1986] 2 SCR 459 at p. 464. If grounds are shown, “the onus shifts to the respondentauthorities to show that the deprivation of liberty was lawful”: Khela at paras. 40-41.

[25] Habeas corpus cannot, for example, be used to challenge the correctness of the underlying conviction that caused theapplicant to be incarcerated in the first place, or to reduce the sentence imposed: R. v Gamble, (SCC), [1988] 2 SCR 595at pp. 636-38. Habeas corpus is only available to deal with existing “here and now” deprivations of liberty, not historical deprivations ofliberty that have ended: R. v Charley, 2018 ONSC 1163 at paras. 32-33, 405 CRR (2d) 57; Ewanchuk v Canada (AttorneyGeneral), 2017 ABQB 237 at para. 23, 54 Alta LR (6th) 135; J. Farbey & R.J.

Sharpe, The Law of Habeas Corpus, 3rd ed (Oxford:Oxford University Press, 2011) at pp. 198-99. Since the onus shifts once the applicant has raised a legitimate ground to question hisdetention, the onus will generally be on the state authority to identify the order or authority that justifies his present detention.The basis of the applicant’s present deprivation of liberty is a question of fact in every case. [26] Habeas corpus is available to review detentions, and also to review “a significant reduction in the residual liberty of theinmate”: May v Ferndale Institution, 2005 SCC 82 at para. 28, [2005] 3 SCR 809.

However, as the Court noted in Canada (AttorneyGeneral) v Whaling, 2014 SCC 20 at para. 59, [2014] 1 SCR 392: “. . . not all expectations of liberty in the parole context areconstitutionally protected”. [27] There is a line to be drawn between what are “significant reductions” in liberty, and other less serious changes in thestatus of the applicant that he regards as being undesirable. The remedy provided by habeas corpus is not to be trivialized. Thepoint was made in Dumas v Leclerc Institute, (SCC), [1986] 2 SCR 459 at para. 10: . . .

I do not say that habeas corpus should lie to challenge any and all conditions of confinement in a penitentiary or prison,including the loss of any privilege enjoyed by the general inmate population. But it should lie in my opinion to challenge thevalidity of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinctfrom the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution. . . .

Mapara v Ferndale Institution (Warden), 2012 BCCA 127 at paras. 15-16, 22, 318 BCAC 139, leave to appeal refused [2012] 3 SCR x,as summarized in the headnote, confirmed: The appellants’ complaints did not engage a superior court’s habeas corpus jurisdiction. The writ was not available to challenge alladministrative decisions made by corrections officials but to challenge only those decisions that resulted in a substantial change in theconditions of an inmate’s confinement that adversely affected his or her residual liberty interests.

The denial of an escorted temporaryabsence, like the denial of parole, did not change an inmate’s liberty status and was, therefore, not subject to challenge by way of habeascorpus. The boundary between “loss of privileges” and “a significant reduction in residual liberty” justifying review by habeas corpus isnot capable of precise definition. [28] Examples of the attempted inappropriate use of habeas corpus can be found.

For example, in R. v Latham, 2018 ABCA267 one asserted ground for review by habeas corpus was “sufficient access to the library, to his legal papers, and to other resources suchas photocopying and facsimile transmissions”. The Court confirmed at para. 9: The writ of habeas corpus is a fundamental constitutional remedy designed to review the legality of detentions. It is not intended to beused as an all-purpose remedy to allow serving prisoners to raise any and all complaints and grievances they have about the condition oftheir detention, or their parole status.

There are specialized procedures in place to deal with those complaints. As was confirmed in R. v Latham, 2018 ABCA 308 at para. 7: The applicant erroneously regards the great writ of habeas corpus as being some sort of legal Swiss Army knife that can be used toengage any grievance he has. Habeas corpus is a limited remedy designed to address wrongful detentions and loss of liberty only. Itis not available as of right for any type of dispute that a person chooses to raise, just because that person is detained.

It is not a method ofautomatically bypassing specialized procedures in place to address grievances about detention and parole. While the superior courtsalways retain a discretion to grant habeas corpus notwithstanding the availability of other remedies, it is a discretion that is judiciouslyexercised. The applicant’s attempt to use habeas corpus to invite the superior courts to review the management of the corrections andparole systems is inappropriate.

To illustrate, the revocation or denial of parole would often involve a restrain on liberty sufficient to engage habeas corpus,whereas a challenge to minor conditions on parole (e.g. as to residence, no-contact, employment, etc.) generally would not. [29] Decisions like Latham dismiss applications for habeas corpus because the grounds for issuance of the writ have not beenmade out, not because of any lack of jurisdiction. They do not stand for the proposition that nothing relating to parole can amount to aresidual loss of liberty justifying an application for habeas corpus.

In fact, these decisions confirm the discretionary jurisdiction of thesuperior court to review by habeas corpus parole and other decisions that significantly restrain the liberty of the subject. [30] Wherever the line may be between “loss of privileges” and “a significant reduction in residual liberty” the revocationof the appellant’s parole, and his resulting return to custody, clearly involved a sufficiently significant restriction in his liberty tojustify review by habeas corpus. [My bolding added] [97] To the extent that courts have concluded that a lockdown equally affecting all general population inmates does not effect a“substantial deprivation of residual liberty”, I respectfully, yet strongly, disagree. [98] The only authority that expressly supports the Attorney General’s position is Justice Laskin’s reasons in Ogiamien v.

Ontario(Community Safety and Correctional Services), 2017 ONCA 667: [57] I accept that the effect of lockdowns in a correctional facility can give rise to cruel and unusual treatment. And I accept that though

some lockdowns are inevitable in a maximum-security facility, while Ogiamien and Nguyen were at Maplehurst lockdowns occurredmore often than they should have. … [80] In the recent case of Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392, at para. 57, Wagner J.quoted a passage from the earlier judgment of McLachlin J. in Cunningham v.

Canada, (SCC), [1993] 2 S.C.R.143, in which she discussed the standard for showing that an inmate’s conditions of confinement can amount to a further orresidual deprivation of liberty under the first branch of s. 7: Generally speaking, offenders have constitutionally protected expectations as to the duration, but not the conditions, of their sentences.Various changes in the management of an offender’s parole are not punitive, even though they may engage the offender’s libertyinterest by marginally increasing the likelihood of additional incarceration.

McLachlin J. (as she then was) held as followsin Cunningham: The Charter does not protect against insignificant or “trivial” limitations of rights …. It follows that qualification of a prisoner’sexpectation of liberty does not necessarily bring the matter within the purview of s. 7 of the Charter. The qualification must besignificant enough to warrant constitutional protection. To require that all changes to the manner in which a sentence is served be inaccordance with the principles of fundamental justice would trivialize the protections under the Charter. To quote Lamer J.in Dumas [v.

Leclerc Institute, (SCC), [1986] 2 S.C.R. 459], at p. 464, there must be a “substantial change inconditions amounting to a further deprivation of liberty”. [p. 151] (my emphasis) [81] In my view, the frequency, duration and impact of the lockdowns affecting Ogiamien and Nguyen caused a change in theirconditions of incarceration at Maplehurst, but not a substantial change. During a lockdown neither was singled out or dealt withmore harshly than any other inmate in the remand units. Neither was placed in administrative segregation.

Neither wastransferred to a different and higher risk or higher security correctional institution. These latter instances might have amounted to asubstantial change sufficient to trigger a deprivation of Ogiamien’s and Nguyen’s residual liberty under s. 7. The lockdowns did not. …. [86]…

(6) If no violation of s. 12 or s. 7 is found, is Nguyen entitled to the remedy of habeas corpus? … [87] In their original notice of application, Ogiamien and Nguyen sought habeas corpus. The application, however, soon focusedon whether their s. 12 rights had been violated. Habeas corpus was raised but not pressed before the application judge. Hereferred to it briefly in his reasons but made no finding on it. In this court it was again raised by amicus but not strongly argued. Iwould not grant Nguyen relief by habeas corpus.

In my view this case turns solely on s. 12 of the Charter. [88] As I have said, Nguyen does not challenge his detention at Maplehurst. As with his other Charter claims he challenges theconditions of his detention. Although habeas corpus is an extraordinary remedy it is available not just for detention itself but forthe conditions of an inmate’s detention. See R. v. Miller, (SCC), [1985] 2 S.C.R. 613.

In the latter situation,however, habeas corpus may remedy living conditions in a prison where the inmate faces physical confinement or a deprivationof liberty that is more restrictive than the confinement of other inmates. Typically, habeas corpus has been granted where a prisonerhas been placed in administrative segregation, confined in a special handling unit or transferred to a higher security institution [89] In the present case, Nguyen did not face conditions of confinement more restrictive than those faced by other remandedinmates.

And I have already concluded that his conditions under lockdown did not rise to the level of cruel and unusual treatment. In myopinion Nguyen is therefore not entitled to the remedy of habeas corpus. [My bolding added] [99] There is no jurisprudence binding me in circumstances similar to that of Mr.

Diggs, that states, as Justice Laskin put it inNguyen:[34] In the latter situation, [regarding the “conditions of an inmate’s detention”]….habeas corpus may remedy living conditions in a prisonwhere the inmate faces physical confinement or a deprivation of liberty that is more restrictive than the confinement of otherinmates. [100] Justice Laskin’s reference to “more restrictive than the confinement of other inmates” is clearly a reference to the actualconditions of restriction of the notional “general population inmate” group in that case- who were found to be under the restraint of thesame lockdowns as was Mr.

Nguyen. [101] In my respectful opinion, this is an unwarranted extension and misreading of the reasoning of the Supreme Court of Canadajurisprudence. [102] As the Court in Miller (para. 35) put the threshold test of deprivation of residual liberty (regarding confinement in a specialhandling unit, or in administrative segregation): It is in fact a new detention of the inmate, purporting to rest on its own foundation of legal authority;

[103] The lockdowns imposed on Mr. Diggs rested on “their own foundation of legal authority”: s. 79(3) of the Correctional ServicesRegs per Coaker, 2018 NSSC 291; and were “a new detention of the inmate”. [104] The proper comparator for whether Mr.

Diggs has suffered a material deprivation of residual liberty is not the actual conditions ofrestriction of the notional “general population inmate” group, but rather the conditions that would prevail in relation to the “generalpopulation inmate” group in the normal course of operations of the correctional facility –the starting point being the maximumpresumptive liberty within the correctional facility that must be accorded to those inmates, unless the State can justify some lesser libertyor residual liberty. [105] Moreover, my position is also consistent with a purposive approach to the procedural scheme of habeas corpus which theSupreme Court of Canada has endorsed. [106] Would the Supreme Court of Canada really have intended that, simply because all general population inmates are locked down,partially or fully, for several months without interruption, that not one of them (or more) could even claim that they had suffered amaterial deprivation of their residual liberty? [107] The further and very disconcerting consequence of the Attorney General’s reasoning and conclusion, is that as long as allgeneral population inmates suffer a similar level of deprivation of residual liberty (no matter how severe), the Attorney General wouldnever have to answer the question whether such (partial or total) lockdowns were “lawful” (i.e. that there was legislative authoritytherefor, and that the decisions made were “reasonable”), because the habeas corpus analysis would end with the answer that there is nomaterial deprivation of residual liberty established. [108] In my opinion, it is only if the effects of these lockdowns are considered in relation to the “general population inmates” standardin normal operating circumstances of a correctional facility, which on the evidence here suggests a presumptive maximum time out ofcell (i.e. 10-12 hours per day) is the norm, that the habeas corpus procedure can fulfil its supervening purpose, as it was intended by theSupreme Court of Canada, and given its inclusion in s. 10(

c) of the Charter. [109] Only if Mr. Diggs’ detention is compared to what level of liberty a general population inmate would experience at CNSCF undernormal operations, can one meaningfully assess whether there has been any material deprivation of his residual liberty. [110] Habeas corpus was described by Justice Van den Eynden in Pratt, 2020 NSCA 39, at para. 54 as: A fundamental remedy with historical and constitutional significance in our legal system. The oversight obligation of reviewingprovincial superior courts is a very important function.

This obligation cannot be given short shrift even if it may be, by times,challenging, cumbersome and inconvenient. [111] Moreover, numerous courts have cautioned against the “erosion” of habeas corpus protections. [112] The Attorney General’s position amounts to an “obliteration” of habeas corpus protections, without any underlying persuasiverationale therefor. 5-No violation of Horizontal Stare Decisis [113] I reject the Attorney General’s argument that I am bound by horizontal stare decisis to accept the decisions of my colleaguesthat, in law, Mr.

Diggs could not have suffered “a material deprivation of his residual liberty” if all the other general population inmateswere suffering the same purported deprivation of residual liberty, by way of partial or total lockdowns.[35] [114] In R. v. Sullivan, 2022 SCC 19, the Court spoke authoritatively about horizontal stare decisis. [115] My colleague Justice Patrick Murray recently set out a helpful

summary thereof in Roach v. Nordic Insurance Co. of Canada,2023 NSSC 342: [36] The rule of “horizontal stare decisis” was recently addressed in R v. Sullivan, 2022 SCC 19 (see paras 73-77). Kasirer J. said,for the Court: [73] Horizontal stare decisis applies to decisions of the same level of court. The framework that guides the application ofhorizontal stare decisis for superior courts at first instance is found in [Re Hansard Spruce Mills, (BC SC), [1954] 4DLR 590 (BCSC)], described by Wilson J. as follows (at p. 592): . . . I will only go against a judgment of another Judge of this Court if: (

a) Subsequent decisions have affected the validity of the impugned judgment; (

b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered; (

c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of thetrial require an immediate decision without opportunity to fully consult authority.

.... [75] The principle of judicial comity — that judges treat fellow judges’ decisions with courtesy and consideration — aswell as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteriaare met. Correctly stated and applied, the Spruce Mills criteria strike the appropriate balance between the competing demands ofcertainty, correctness and the even-handed development of the law. Trial courts should only depart from binding decisions issued by acourt of coordinate jurisdiction in three narrow circumstances: 1.

The rationale of an earlier decision has been undermined by subsequent appellate decisions; 2. The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or 3.

The earlier decision was not fully considered, e.g. taken in exigent circumstances. [37] As the defendant points out, the court made clear that exceptions to stare decisis are narrow: “mere personal disagreementbetween two judges is not a sufficient basis to depart from binding precedent” (para 74). [38] As to decisions taken per incuriam, the court said: [77] ... [A] judge can depart from a decision where it was reached without considering a relevant statute or binding authority. In otherwords, the decision was made per incuriam, or by inadvertence, a circumstance generally understood to be “rare”...

The standard to finda decision per incuriam is well-known: the court failed to consider some authority such that, had it done so, it would have come to adifferent decision because the inadvertence is shown to have struck at the essence of the decision. It cannot merely be an instance inwhich an authority was not mentioned in the reasons; it must be shown that the missing authority affected the judgment... [Emphasis added.] [116] Ms.

Garson has argued in her Brief: 115 This Court is not bound in its decision by prior cases relating to lockdowns because the facts are distinguishable, and the earlierdecisions were made in exigent circumstances that could not enable a thorough consideration. [117] She highlights Mr.

Diggs diagnosed mental illnesses and the delays in his medication being provided as a basis to argue that theimpact on him is much more significant, that a reasonable expectation exists that similar offenders will reside at CNSCF in future whowill find themselves under these lockdowns, and in light of the serious constitutional issues involved, and the fact that there have notbeen fully engaged legal counsel on any of the earlier cases dealing with this issue, that it is appropriate for this Court to revisit theissue. [118] She argues that the cases from this Court to date, have misinterpreted the Supreme Court of Canada’s reasons in Miller andrelated cases, and this should be a good basis for revisiting the issue. [119] Ms.

Garson as counsel for Mr. Diggs has vig

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