Devlin v. Canada (Attorney General), 2020 NSSC 238

SUPREME COURT OF Nova Scotia Citation: Devlin v. Canada (Attorney General) , 2020 NSSC 238 Date: 20200909 Docket: SAM 499447 Registry: Amherst Between: Michael Devlin Applicant v.

Her Majesty The Queen, The Attorney General for Canada, and Superintendent of the Springhill Institution Respondent DECISION RE: INJUNCTION MOTION Judge: The Honourable Justice Jamie Campbell Heard: September 9, 2020, in Halifax, Nova Scotia Counsel: Lisa Teryl, for the Applicant Heidi Marie Collicutt, for the Respondent By the Court (orally): [ 1 ] This matter was heard as a motion for an injunction this morning (September 9, 2020) at 10:00 am. Mr.

Devlin is an inmate in a federal medium-security institution who wants to have his transfer to a maximum-security institution delayed until his application for habeas corpus to review the legality of the decision can be heard. [ 2 ] The materials submitted by the Department of Justice Canada were filed in Amherst at 4:30 pm yesterday. Those materials are a brief and two affidavits. Together they are at least 200 pages in length. I received them just as the motion commenced by telephone. Decision was reserved until now, September 9, 2020 at 4:00 pm.

Background [ 3 ] Michael Devlin, the applicant is now incarcerated in the Springhill Institution. That is a medium-security correctional institution. On October 13, 2020 there is a habeas corpus application scheduled to be heard in which Mr. Devlin is contesting his transfer to the maximum-security Atlantic Institution in Renous, New Brunswick. The Warden of the institution at Springhill authorized Mr. Devlin’s emergency transfer to Renous on July 23, 2020 based on Mr. Devlin’s deteriorating behaviour. When Mr.

Devlin was told about the emergency transfer he began to engage in self-injurious behaviour and was placed on suicide watch. Based on his mental health status the emergency transfer was cancelled and a standard offender security level and involuntary transfer process was initiated. The reclassification and involuntary transfer are the subject of the habeas corpus application set for October 13, 2020. [ 4 ] The authorities want to transfer Mr. Devlin now. They do not want to wait until October 13. Mr. Devlin was provided with the decision authorizing his involuntary transfer on August 31, 2020.

Under the Corrections and Conditional Release Regulations SOR/92- 620 , at

section 12 , an inmate must be provided written notice of the final decision respecting transfer and the reasons for the decision. That has been done and the Warden is within her statutory authority to transfer Mr. Devlin to Renous. In her opinion that is the least restrictive environment that provides Mr. Devlin with the degree of care and control necessary, as described in

section 28 of the Corrections and Conditional Release Act , SC 1992, c. 20 . [ 5 ] That transfer would take place in the face of a pending habeas corpus hearing challenging the basis for the reclassification and transfer. The court has the jurisdiction to issue interim relief, including an interlocutory injunction. Richards v. Springhill Institution 2015 NSCA 40 . The issue here is whether the institution should be enjoined from proceeding with the transfer until the habeas corpus

application can be heard on October 13. The Test [ 6 ] The test for injunctive relief involves three parts. There must be a serious issue to be tried. The applicant for relief must establish that he would suffer irreparable harm if the injunction is not granted. And the balance of convenience must favour the requested injunction. The granting of an injunction is an extraordinary remedy and there must be special and compelling circumstances that justify such exceptional judicial intervention. Serious Issue [ 7 ] The parties do not contest that the issue for the habeas corpus application of whether Mr.

Devlin’s transfer is legally justified is a serious one. That first part of the test presents a low threshold, that has been met. Irreparable Harm [ 8 ] Transfer to Renous has been identified as a significant stressor for Mr. Devlin. It is a maximum-security institution. It is inherently a more dangerous, difficult and unpleasant place to live. [ 9 ] The Attorney General has provided the affidavit of Heidi Simpson a Clinical Social Worker. Based on her review of file materials and her personal interactions with Mr. Devlin she concluded that Mr.

Devlin’s mental health status did not contraindicate a transfer to maximum-security. Several steps were recommended in preparation for a possible transfer. Those steps were taken to diminish the impacts of the transfer on Mr. Devlin. She has reviewed coping techniques with Mr. Devlin and together they have created a safety plan to help him when he experiences thoughts of suicide or self-injury and to help him avoid a state of intense crisis. Contact has already been made with the resources at Renous to facilitate continuity of care. [ 10 ] The Attorney General notes that Mr.

Devlin himself has at times declined opportunities presented to him to lessen the stress of the transfer. For example, he has not participated in the multidisciplinary team meeting to discuss his case. The Attorney General argues that Mr.

Devlin should not be able to claim that he will be harmed by the transfer, when he has himself presented a barrier to the efforts made to help him in overcoming the harms that he claims a transfer will cause. [ 11 ] The fact that a plan must be put in place to mitigate the stress involved in a transfer to a maximum-security institution suggests that it is an event that causes stress. The level of stress may be greater or less for some people and for Mr. Devlin it is apparently significant. That stress may be mitigated by taking some steps but there is no suggestion that it is eliminated.

The transfer to a maximum- security institution causes harm to the inmate, like Mr. Devlin, who is transferred. There is no way to accurately measure the degree of that harm but there is evidence that it is an event that causes some level of harm. [ 12 ] That harm is irreparable. If Mr. Devlin’s habeas corpus application is successful and he is ordered to be returned to Springhill, he will no longer be in Renous. The stress caused by the experience of being transferred is not undone by being sent back.

Balance of Convenience [ 13 ] The Warden of the Springhill Institution concluded that the risk presented by Michael Devlin could only be managed at a maximum-security penitentiary. He had intimidated correctional staff by making statements such as “don’t fucking touch me, goof” and “you wanna go”, getting in an officer’s face, getting in an officer’s personal space and hindering an officer’s egress from his cell. He is alleged to have used disrespectful and derogatory names for correctional staff.

He has made comments like, “If you want to play games let’s play games, I’m going to slash up so place me into an observation cell” and “ I know how the system works and I’m going to make this a long day for you.” He is alleged to have repeatedly been in the possession of contraband items like tattoo paraphernalia, wires, razorblades, and an unauthorized lighter. He is alleged to have been in the possession of a handmade sharp weapon about 12 inches long. That last allegation will be addressed at the habeas corpus application. [ 14 ] The Warden concluded that Mr.

Devlin requires a highly structured environment not provided by a medium-security facility. Springhill, as a medium-security institution provides less supervision for offenders. Transferring Mr. Devlin to Renous will mean that he will be subject to increased interventions, including less unsupervised time, closer scrutiny by officers, and an increased number of searches. The Attorney General argues that these features are required for Mr. Devlin’s safe management and for the safety and security of the institution. “To hold Mr.

Devlin in a medium-security penitentiary, in the face of the express opinion of seasoned prison administrators that such an environment does not possess adequate structure, is contrary to not only the statutory regime and obligations imposed on CSC, but also to the public interest.” Those are strong words. If the court does not accept the opinion of the seasoned prison administrators, and Mr.

Devlin remains in a place without adequate structure, the safety within the institution and of the public in general, could be compromised. [ 15 ] That argument is made in the face of a habeas corpus application set for October 13, 2020. If the judge hearing that motion grants it, Mr. Devlin will be returning to the institution at which the seasoned prison administrators of whom counsel spoke, believe there is inadequate structure. There is of course a chance that just that will happen. It is not for me, at this stage to prejudge the merits of that application. [ 16 ] Right now, Mr. Devlin is at Springhill.

The authorities there are, as they are obliged to do, making every reasonable and legal effort to provide for his safe management and for the safety and security of the institution. He is being kept in a unit separated from other inmates and is on a 20-hour lockdown. He is allowed out of his cell for 4 hours each day. That step has been taken to provide for security and management. He is prepared to agree to that. It is not sustainable in the long term but there is no evidence to suggest that it cannot be maintained as a precautionary measure until the habeas corpus application is heard. Conclusion

[ 17 ] If Mr. Devlin is transferred before the application is heard, he will suffer harm by virtue of undergoing the transfer itself. If he remains, and if he presents the kinds of risks identified by the managers of the institution at Springhill, those risks can be managed pending the hearing and ultimately the resolution of the habeas corpus application. An interlocutory injunction will be issued to prevent Mr. Devlin from being transferred from Springhill to Renous before the matter is again before the court on October 13, 2020 for the hearing of the habeas corpus application. Campbell, J.