Street v. Springhill Institution, 2013 NSSC 348

SUPREME COURT OF NOVA SCOTIA Citation: Street v. Springhill Institution, 2013 NSSC 348 Date: 20130905 Docket: SAM. 418715 Registry: Amherst Between: Charles James Street Applicant v. Warden (Springhill Institution) Respondent Revised Decision: This decision of November 12, 2013 replaces the previously released decision. Corrections have been made. Judge: The Honourable Justice Michael J. Wood Heard: September 5, 2013, in Amherst, Nova Scotia Decision: September 5, 2013 (Orally) Release of Written Decision: October 25, 2013 Counsel: Charles James Street, self-represented applicant Melissa A. Grant, for the respondent By the Court : (Orally)

[1] The applicant, Charles James Street, is a federal inmate, housed at the Springhill Institution in Nova Scotia. He brings thisapplication for habeas corpus to challenge the lawfulness of the decision to transfer him from Millhaven Penitentiary in Ontario. JusticeBourgeois of this Court directed that there be an initial hearing on whether the habeas corpus jurisdiction had been triggered by adeprivation of Mr. Street's residual liberty as a result of the transfer. If there was, a second hearing would be held to decide if thedecision was lawful.

Today was the first hearing. [2] There was affidavit evidence from Mr. Street, as well as Ms. Cairns, who is employed as a parole officer at the SpringhillInstitution. Both of these individuals were cross-examined. [3] Following his conviction in August, 2012, Mr. Street was sentenced to three years incarceration. Initially, he was processedat facilities in Ontario and was given a security status of medium. At the same time, a decision was made to transfer him to SpringhillInstitution, which took place in January, 2013. [4] On August 20, 2013, this habeas corpus proceeding was commenced.

The Supreme Court of Canada in May v. FerndaleInstitution, 2005 SCC 82, [2005] 3 S.C.R. 809, described the required elements for habeas corpus at para. 74 and I will just read thatparagraph. It says: 74 A successful application for habeas corpus requires two elements: (1) a deprivation of liberty and (2) that the deprivation beunlawful. The onus of making out a deprivation of liberty rests on the applicant.

The onus of establishing the lawfulness of thatdeprivation rests on the detaining authority. [5] It is the first requirement that is under consideration in this hearing. [6] I am not prepared to consider the lawfulness or reasonableness of the transfer decision, only whether it deprived Mr. Street ofhis residual liberty. It is relatively rare for a habeas corpus decision to focus on the deprivation of liberty.

If there has been a change insecurity status or imposition of administrative isolation, the first part of the test is usually conceded and the hearing focuses on thelawfulness of the action. [7] Here, we are dealing with a placement decision involving an interregional transfer without a change in security classificationand Ms. Grant, on behalf of the Attorney General of Canada, argued that such a decision could never attract habeas corpus reviewbecause of a lack of impact on an inmate’s residual liberty. [8] The only reported decision that either party was aware of that dealt with such a situation was Bonamy v.

Canada(Commissioner of Corrections) (2000), 2000 SKQB 385 , 198 Sask. R. 252 (Q.B.), a decision of the Saskatchewan Queen'sBench Court, which was issued in September, 2000. In that case, the applicant inmate was transferred from British Columbia toAlberta. As did Mr. Street, the applicant argued that this move restricted his ability to access his home community and family. [9] After considering the legislative requirements to consider access to family and community in assigning an inmate to apenitentiary, the Court stated at para. 20: 20

Section 28(

b) of the Act recognizes the following: (

a) the supportive role an inmate's family may play in his or her rehabilitation;(

b) the potential negative impact on members of an inmate's family if she or he is housed at a location that effectively denies them fromliberal, routine access to the inmate; (

c) the need to maintain an environment that will foster reconciliation between an inmate and his orher estranged family or friends; (

d) the advantage of housing an inmate in the area where he is likely to live upon being released; and (e)that the unwarranted isolation of an inmate from his family and friends may constitute "retribution", an objective inconsistent with theprovisions of ss. 718 to 718(2) of the Criminal Code. In my opinion, the placement of the applicant in a facility approximately 2000kilometres from his home community, without any justification for doing so, results in a confinement of the applicant far more severethan contemplated by the Act. It denied him easy access to his family and friends and to that extent it constitutes a form of isolation thats. 28(

b) seeks to avoid. In my view, the isolation impinges upon the applicant's residual liberty within the prison system comparable tothat considered in Miller v. The Queen, supra. There, the prisoner was isolated from the company of the general prison population. In theinstant case the applicant is isolated from his family and friends by virtue of the substantial travel distance and the obvious resultingcosts.

[ 10 ] Ms. Grant argued that this decision was wrong and would not be decided in the same way in light of later decisions, including May v. Ferndale Institution , supra , as well as Justice Bourgeois ’ decision in Bradley v. Canada (Attorney General), 2011 NSSC 463 . I have reviewed those cases and find no inconsistencies. [ 11 ] In both decisions the issue of infringement of liberty was not disputed and the focus was on lawfulness. That is not the case in this hearing.

I believe that in light of the requirement to consider the inmate's connection to the community set out in s. 28 of the Corrections and Conditional Release Act , as supported by the Commissioner's Directive #705-7, transfer of an inmate may result in a situation where the Court's habeas corpus jurisdiction is triggered, even without an increase in security status. [ 12 ] On this point, I will quote from the Directive and, in particular, Annex F, which is entitled Interregional Movements for Offender Intake Assessments in Interregional Penitentiary Placements.

In s-ss. 4, it says: 4 The sending Regional Deputy Commissioner or delegate will confirm that: . . . . • all of the elements for selection of penitentiary as outlined in

section 28 of the CCRA have been considered. . . . . (

b) accessibility to (

i) the person's home community and family, (ii) a compatible cultural environment, (iii) a compatible linguistic environment... So even the Commissioner's Directive mandates consideration of those factors, which are also found in the Act . [ 13 ] The burden is on the applicant, in this case, Mr. Street, to provide evidence to show that his residual liberty interests have been impaired. Aside from the obvious point that the offence occurred in Ontario and his family resides there, Mr. Street described a family visit to Springhill in August of this year.

He spoke about problems that family members had in securing visiting privileges and the short duration of the actual session. [ 14 ] The difficulties described by Mr. Street are no different for any prisoner who is incarcerated in an area outside of their home community. It could apply to situations where family members live in the same province as the institution, depending upon their access to transportation or their family resources. [ 15 ] On the evidence before me on this application, I am not satisfied that Mr.

Street has met the burden on him to show a sufficient negative impact different from other prisoners on his residual liberty to justify the granting of habeas corpus relief and, as a result, his application is denied.

[ 16 ] Hearing no request from the Crown, the application is dismissed without costs. ______________________________ Wood, J.