Coaker v. Nova Scotia (Attorney General), 2018 NSSC 291

SUPREME COURT OF Nova Scotia Citation: Coaker v. Nova Scotia (Attorney General) , 2018 NSSC 291 Date: 2018-11-30 Docket: Hfx. No. 479938 Registry: Halifax Between: Matthew Coaker, Chad Harvey Leopold, Kaz Cox, Matthew Grimm, Robert Sanford, Randolph Riley, Matthew Lambert and Nelson Calles Applicants v. The Attorney General of Nova Scotia representing her Majesty the Queen in right of the Province of Nova Scotia and the Central Nova Scotia Correctional Facility Respondents Library Heading Judge: The Honourable Justice Peter P. Rosinski Heard: November 5, 2018, in Halifax, Nova Scotia Subject: Habeas corpus and mootness

Summary: Pursuant to

section 79 of the Correctional Services Act Regulations an entire range or

section of the Burnside correctional facility, housing inmates, was ordered on rotational

schedule or “locked down” by the superintendent, between September 2 and 24 2018. Numerous inmates filed habeas corpus applications in response. These were consolidated for hearing, save for one - Pratt v. AGNS , 2018 NSSC 243 decided September 19, 2018, per Chipman J. At the time of the hearing the lockdown had ended. The applicants wished the court to determine the lawfulness of their detention during the lockdown in spite of the mootness of the issue. Issues: Is this a proper case for going on to hear the merits of the lawfulness of the detention during lockdown?

Result: It is not a proper case to do so; no costs awarded given the novel nature of the legal argument. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: Coaker v. Nova Scotia (Attorney General) , 2018 NSSC 291 Date: 2018-11-30 Docket: Hfx . No. 479938 Registry: Halifax Between: Matthew Coaker, Chad Harvey Leopold, Kaz Cox, Matthew Grimm, Robert Sanford, Randolph Riley, Matthew Lambert and Nelson Calles Applicants

v. The Attorney General of Nova Scotia representing her Majesty the Queen in right of the Province of Nova Scotia and the Central Nova Scotia Correctional Facility Respondents Judge: The Honourable Justice Peter P.

Rosinski Heard: November 5, 2018, in Halifax, Nova Scotia Counsel: Sarah White, Hanna Garson and Grace MacCormick for the Applicants Duane Eddy for the Respondents By the Court: Introduction [ 1 ] Nine inmates at the Burnside Jail [1] filed applications for habeas corpus in relation to a so-called “lockdown” of the North 3 (general inmate population) cells, that began on or about September 2, 2018 and ended on September 24, 2018. [2] Their applications were consolidated by order of Justice Chipman on September 26, 2018. [ 2 ] Collectively, they filed a Notice of Motion on October 9, 2018, in which they requested the following relief: Move for an order that their applications be heard before this Honourable Court despite their having been released from the rotational

schedule or “lockdown” on the North Three Unit of Central Nova Correctional Facility. [ 3 ] In their September 18, 2018 letter to Justice Chipman their counsels stated that the objective of their application(

s) included: The current tensions in [CNSCF] are helped by determination of the legality of the administrators decisions regarding use of the lockdowns and the conditions of a lockdown… the [court’s] determination may provide guidance for prison authorities and decision- makers, as well as validate prisoners’ concerns and provide direction for future policies…. Both the decisions underlying the administrative decisions to lock down North 3, the continued use of lockdown, and the conditions of the lockdown were unlawful and unreasonable, and violate

Section 7 and

Section 12 of the Canadian Charter of Rights and Freedoms . [ 4 ] By the November 5 hearing date, the applications for habeas corpus were moot – the court was no longer in a position to remedy any unlawful detention of the inmates. Nevertheless, they and their counsel suggest that despite the mootness, it is appropriate for this court to determine the lawfulness of their detention on “lockdown” on its merits. [ 5 ] The inmates argue that lockdowns and close confinement are two forms of deprivation of residual liberty which are not synonymous.

They note that although Corrections Nova Scotia has jurisdiction to “closely confine” individuals and has the jurisdiction to “lockdown” ranges of correctional institutions pursuant to

Section 79 of the Correctional Services Act Regulations ,

Section 79 is the only statutory authority to lockdown a full range or entire correctional institution, and there being no Nova Scotian case law applying the

common-law principles of natural justice and duties of substantive and procedural fairness, [3] the court should make a declaration in relation to such administrative decision-makers’ unrestricted reliance upon

Section 79 of the Regulations . [ 6 ] While, when considered as an abstract matter, it may seem that perhaps there should be some articulated limits on correctional services staff reliance upon

Section 79 of the Regulations in the form of a declaration from the court, however when examined through the lens of contextual realities, and the jurisprudence, the persuasiveness of that reasoning falters. [ 7 ]

Section 79 of the Correctional Services Act Regulations reads: [4] Conditions for confinement of offenders in custody

(1) A Superintendent may impose different conditions of confinement 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 correctional facility.

(3) For reasons of safety, security or order in the correctional facility, a Superintendent may restrict access to the correctional 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 may be, to their sleeping areas; and

b) restricting entry to the correctional facility or that part, as the case may be. [ 8 ] Let me explain why I decline to go on to hear this application on its merits. Background [ 9 ] The general facts are not in dispute. [ 10 ] These inmates were detained in the North 3 unit of the Burnside Jail.

That is a general inmate population unit, whose inmates, all other things being equal, are permitted to be out of their cell during any random day of a seven-day period as follows: [5] 1. 8:00 a.m. – 12:00 noon: unlock 2. 12:00 noon – 1:30 p.m.: lockdown 3. 1:30 p.m. – 6:00 p.m.: unlock 4. 6:00 p.m. – 7:00 p.m.: lockdown 5. 7:00 p.m. – 10:00 p.m.: unlock 6. 10:00 p.m. – 8:00 a.m.: lockdown [ 11 ] In contrast, during the “lockdown” or rotational

schedule implemented by the Superintendent, each inmate in North 3 was let out of their cell for progressively more time daily as circumstances changed. [6] The lockdown was imposed “due to security concerns as well as intelligence information concerning the security of the facility.” [ 12 ] More specifically: … [initially] North 3 inmates were placed on four cell rotation. This rotation started September 2, 2018 at 1:35 PM. The inmates were locked down from September 1, 10 PM to September 2, 1:35 PM which is when the four-cell rotation started.

At various times from September 2 to September 5 all rotations were stopped not only in North 3, but in other areas due to operational requirements. At 3:30 p.m. on September 5, 2018 the N3 rotations were increased to 10 inmates at a time being out of their cells for two-hour rotations. At this time, there are four separate rotations within North 3. Each rotation is out for two hours at a time.

That currently has each inmate out of their cell a minimum of four hours per day. [7] [ 13 ] In the sworn September 13, 2018, affidavit of Brad Ross, Deputy Superintendent at Burnside, he provides greater detail regarding the reason for the rotational schedule/lockdown [8] : Several staff have submitted reports stating threats of harm and death were being shouted at them from inmate cells. Officers were not able to identify who the inmates were due to them being in their cells. Also, information has been gathered that officers may be at risk of assault in North 3.

On August 30, 2018 an officer received information that officers were going to be assaulted for removing water bags from the unit. On September 1, 2018 information was given that another inmate was assaulted in North 3 for refusing to assault a correctional officer. Additional information was given that an officer was going to be assaulted outside of the facility if the opportunity was available.

On September 1, 2018 information was given that on September 9 (end of peaceful protest) there would be refusal of inmates to lock in their cells and they were going to “tie off” doors and prevent staff from entering the day room. On September 1, a report was submitted from CNSCF that an inmate had commented that the peaceful protest being held would be over September 9, 2018. The staff then states they heard another inmate yell ‘yeah, and then someone is going to die’.

On September 9, 2018, an inmate was heard yelling at an officer ‘I am going to kill you’ and “I am going to grab your skinny neck’. Several minutes later an inmate was heard yelling, ‘I’m going to snap your neck’. Below is a timeline that was a result of the threats made by inmates on North: September 2, 2018 - North 3 Unit was locked due to safety and security issues in the facility.

The unit was placed on a four-cell rotation allowing one hour out per day for the inmates housed in this unit. 30 minutes of airing court was offered to inmates in this day room; September 4, 2018, North 3 unit was locked due to safety and security issues in the facility. The inmates in North 3 were on an 8-man rotation allowing inmates to be out of confinement for two hours per day. 30 minutes of airing court was offered to inmates in this day room; September 7, 2018 North 3 unit was locked due to safety and security issues in the facility.

The inmates in North 3 were on a 10-man rotation allowing inmates to be out of confinement for two hours per day. 30 minutes of airing court was offered to inmates in this day room; September 9, 2018 North 3 was locked in due to officer work refusals. The work refusals stated that the staff did not feel safe to be in the day room with inmates out of their cells; September 10, 2018, the Occupational Health & Safety committee for CNSCF met and made recommendations based on the work refusals.

Heightened security was added to allow a plan to get inmates out of their cells in a gradual manner based on behaviour. … The current [individual] rotational

schedule is attached hereto as Exhibit “A.” The conditions on North 3 are not indefinite. A risk assessment has been done and as of the date of this my sworn affidavit steps are being taken to let more and more inmates on North 3 out of their cell at the same time in an effort to return North 3 to being unlocked for a total of 11.5 hours per day in accordance with the

schedule outlined in paragraph 7 of this affidavit. As of the date of this my sworn affidavit North 3 remains on a 23 hour [per 24 hour period] lockdown.

Close confinement is defined in Policy and Procedure Subject Number 43.00.00 as follows: 4.1 For the purpose of this policy, close confinement is defined as a restriction imposed on an offender to a cell or an isolated area (e.g. unoccupied day room, temporary housing unit) 4.1.1 that limits interaction with other offenders, or 4.1.2 when an offender chooses to withdraw from the general population of their own accord. 4.2 The Superintendent, or delegate is responsible to identify offenders who may require placement in close confinement for the following reasons: 4.2.1 the security of the facility may be compromised, examples include -concern the offender may be concealing contraband (dry cell) -space limitations -intermittent [sentence] offenders -to protect the safety of other offenders or staff where the offender poses a physical risk to other offenders or staff 4.2.2 at the request of the offender, examples include -the offender has expressed concerns of physical assault from other offenders -the offender requires time alone due to a stressful or emotional event such as a death in their family 4.2.3 protection of the offender, examples include 4.2.3.1 other offenders of indicated intentions to harm the offender 4.2.3.2 a threat from outside the facility 4.2.4 where the offender has received an incident report and pending or following adjudication was sanctioned to close confinement in accordance with the offender disciplinary system. 4.2.5 health of the offender, examples include .1 illness .2 recovering from a surgical procedure .3 safety of other offenders.

Policy and Procedure Subject Number 43.00.00 is attached hereto as Exhibit “B”.[9] When will the law allow a moot application such as this one to proceed to a hearing on the merits? [14] It is important to recall that even if the court hears an application for habeas corpus, there is an element of residual discretionwhich permits a court to refuse a remedy.

While there is no discretion to refuse to hear a habeas corpus application where an inmate hasdemonstrated that there has been a material deprivation of their liberty and makes an arguable case that the deprivation was unlawful, asJustice Blair stated for the court in R. v. Boone, 2014 ONCA 515, leave to appeal refused, [2014] SCCA No. 430: 45 It is true that habeas corpus is a remedy that issues as of right (ex debito justitiae) once the unlawful nature of the detention isestablished. It cannot be denied because another, equally effective remedy - such as judicial review - exists.

That was the issue debated inMay and Khela. As LeBel J. affirmed in Khela, however, the non-discretionary nature of the writ relates to whether the applicant hasraised a legitimate basis for questioning the legality of the detention, not to the ultimate determination of whether, on the whole of therecord, the unlawful nature of the detention is established. There remains a residual discretion in this regard. At paras. 77 and 78, hesaid: First, the traditional onuses associated with the writ will remain unchanged.

Once the inmate has demonstrated that there was adeprivation of liberty and casts doubt on the reasonableness of the deprivation, the onus shifts to the respondent authorities to prove thatthe transfer was reasonable in light of all the circumstances. Second, the writ remains non-discretionary as far as the decision to review the case is concerned.

If the applicant raises a legitimatedoubt as to the reasonableness of the detention, the provincial superior court judge is required to examine the substance of the decisionand determine whether the evidence presented by the detaining authorities is reliable and supports their decision.

Unlike the FederalCourt in the context of an application for judicial review, a provincial superior court hearing a habeas corpus application has no inherentdiscretion to refuse to review the case (see Farbey, Sharpe and Atrill, at pp. 52-56).4 However, a residual discretion will come into playat the second stage of the habeas corpus proceeding, at which the judge, after reviewing the record, must decide whether to dischargethe applicant. [my italicization added] [15] The factors to be considered in deciding whether a moot legal dispute should nevertheless be heard by a court have beenarticulated in: Borowski v.

Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342; and Springhill Institution v.Richards, 2015 NSCA 40, per Beveridge JA.[10] [16] In Richards, Justice Beveridge stated: 52 Nonetheless, the Attorney General asks this Court to exercise its discretion to hear and decide these appeals. He relies on theprinciples set out by the Supreme Court of Canada in Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R.342, and recently applied by that Court in Mission Institution v.

Khela, 2014 SCC 24. 53 Justice Sopinka, writing for the Court in Borowski, stressed that certain established principles guide how a court should exercise itsdiscretion.

These include whether: there is still an adversarial context; resolution will have some practical consequences on the rights ofthe parties; the cases that spark the controversy are of a recurring, but brief duration; it is in the public interest to expend judicialresources to mitigate the social cost of continued uncertainty in the law; adjudicating may be viewed as intruding into the role of thelegislative branch (pp. 358-362). 54 Not all of these factors favour departing from the Court's usual practice not to hear and decide cases in the absence of a livecontroversy.

But on balance, we should pronounce judgment on the issues engaged by these appeals. 55 I say this because both appeals engage issues about the jurisdiction of the Nova Scotia Supreme Court to hear and determineapplications by individuals in Nova Scotia seeking to exercise their right, guaranteed by s. 10(

c) of the Canadian Charter of Rights andFreedoms, to have the legality of their detention determined by way of habeas corpus. Rulings on jurisdiction are "of a recurring naturebut brief duration". 56 I agree with the suggestion of the Attorney General that the nature of adversarial habeas corpus applications that involve transfer andsegregation of inmates and issues of jurisdiction are such that the factual circumstances of a given application can change quickly andwill likely be moot before an appellate court can review the lower court's decision.

This submission tracks closely the reasoning of LeBelJ., for the Court in Khela: [14] Despite being moot, this appeal merits a decision in the circumstances of this case. The nature of habeas corpus applicationsinvolving the transfer and segregation of inmates is such that the factual circumstances of a given application can change quickly, beforean appellate court can review the application judge's decision. This means that such cases will often be moot before making it to theappellate level, and are therefore "capable of repetition, yet evasive of review" (Borowski v.

Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, at p. 364). As was true in May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 14,and Cardinal v. Director of Kent Institution, (SCC), [1985] 2 S.C.R. 643, at p. 652, the points in issue here aresufficiently important, and they come before appellate courts as "live" issues so rarely, that the law needs to be clarified in the instantcase. [my italicization added] [17] In Borowski, Justice Sopinka stated: Mootness

15 The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question . The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case.

This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision . Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice .

The relevant factors relating to the exercise of the court's discretion are discussed hereinafter. 16 The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case .

The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant. … 29 Since the discretion which is exercised relates to the enforcement of a policy or practice of the Court, it is not surprising that a neat set of criteria does not emerge from an examination of the cases.

This same problem in the United States led commentators there to remark that "the law is a morass of inconsistent or unrelated theories, and cogent judicial generalization is sorely needed." (Kates and Barker, "Mootness in Judicial Proceedings: Toward a Coherent Theory", supra, at p. 1387). I would add that more than a cogent generalization is probably undesirable because an exhaustive list would unduly fetter the court's discretion in future cases.

It is, however, a discretion to be judicially exercised with due regard for established principles. 30 In formulating guidelines for the exercise of discretion in departing from a usual practice, it is instructive to examine its underlying rationalia. To the extent that a particular foundation for the practice is either absent or its presence tenuous, the reason for its enforcement disappears or diminishes. 31 The first rationale for the policy and practice referred to above is that a court's competence to resolve legal disputes is rooted in the adversary system .

The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issues are well and fully [page359] argued by parties who have a stake in the outcome. It is apparent that this requirement may be satisfied if, despite the cessation of a live controversy, the necessary adversarial relationships will nevertheless prevail. For example, although the litigant bringing the proceeding may no longer have a direct interest in the outcome, there may be collateral consequences of the outcome that will provide the necessary adversarial context .

This was one of the factors which played a role in the exercise of this Court's discretion in Vic Restaurant Inc. v. City of Montreal , supra. The restaurant, for which a renewal of permits to sell liquor and operate a restaurant was sought, had been sold and therefore no mandamus for a licence could be given. Nevertheless, there were prosecutions outstanding against the appellant for violation of the municipal by-law which was the subject of the legal challenge.

Determination of the validity of this by-law was a collateral consequence which provided the appellant with a necessary interest which otherwise would have been lacking. 32 In the United States, the role of collateral consequences in the exercise of discretion to hear a case is well recognized. In Southern Pacific Co. v. Interstate Commerce Commission, 219 U.S. 433 (1911), the United States Supreme Court was asked to examine an order of the Interstate Commerce Commission which fixed maximum rates for certain transportation charges.

Despite the expiry of this order, it was held, in part, that the remaining potential liability of the railway company to shippers comprised a collateral consequence justifying a decision on the merits. The principle that collateral consequences of an already completed cause of action warrant appellate review was most clearly stated in Sibron v. New York, supra. The appellant in that case appealed his conviction although his sentence had already been completed. At page 55, Warren C.J. stated: ... most criminal convictions do in fact entail adverse collateral legal consequences.

The mere "possibility" that this will be the case is enough to preserve a criminal case from ending "ignominiously in the limbo of mootness." 33 In Canada, the cases of Law Society of Upper Canada v. Skapinker , supra, and R. v. Mercure , supra, illustrate the workings of this principle.

In those cases, the presence of interveners who had a stake in the outcome supplied the necessary adversarial context to enable the Court to hear the cases. 34 The second broad rationale on which the mootness doctrine is based is the concern for judicial economy . (See: Sharpe, "Mootness, Abstract Questions and Alternative Grounds: Deciding Whether to Decide", Charter Litigation.) It is an unfortunate reality that there is a need to ration scarce judicial resources among competing claimants .

The fact that in this Court the number of live controversies in respect of which leave is granted is a small percentage of those that are refused is sufficient to highlight this observation.

The concern for judicial economy as a factor in the decision not to hear moot cases will be answered if the special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it. 35 The concern for conserving judicial resources is partially answered in cases that have become moot if the court's decision will have some practical effect on the rights of the parties notwithstanding that it will not have the effect of determining the controversy which gave rise to the action .

The influence of this factor along with that of the first factor referred to above is evident in Vic Restaurant Inc. v. City of Montreal , supra. 36 Similarly an expenditure of judicial resources is considered warranted in cases which although moot are of a recurring nature but brief duration. In order to ensure that an important question which might independently evade review be heard by the court, the mootness doctrine is not applied strictly . This was the situation in International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders' Exchange , supra.

The issue was the validity of an interlocutory injunction prohibiting certain strike action. By the time the case reached this Court the strike had been settled. This is the usual result of the operation of a temporary injunction in labour

cases. If the point was ever to be tested, it almost had to be in a case [page361] that was moot. Accordingly, this Court exercised itsdiscretion to hear the case. To the same effect are Le Syndicat des Employés du Transport de Montréal v. Attorney General of Quebec, (SCC), [1970] S.C.R. 713, and Wood, Wire and Metal Lathers' Int. Union v. United Brotherhood of Carpenters andJoiners of America, (SCC), [1973] S.C.R. 756. The mere fact, however, that a case raising the same point is likely torecur even frequently should not by itself be a reason for hearing an appeal which is moot.

It is preferable to wait and determine thepoint in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it isultimately resolved. 37 There also exists a rather ill-defined basis for justifying the deployment of judicial resources in cases which raise an issue of publicimportance of which a resolution is in the public interest. The economics of judicial involvement are weighed against the social cost ofcontinued uncertainty in the law. See Minister of Manpower and Immigration v.

Hardayal, (SCC), [1978] 1 S.C.R. 470,and Kates and Barker, supra, at pp. 1429-1431. Locke J. alluded to this in Vic Restaurant Inc. v. City of Montreal, supra, at p. 91: "Thequestion, as I have said, is one of general public interest to municipal institutions throughout Canada." 38 This was the basis for the exercise of this Court's discretion in the Re Opposition by Quebec to a Resolution to amend theConstitution, (SCC), [1982] 2 S.C.R. 793. The question of the constitutionality of the patriation of the Constitution had,in effect, been rendered moot by the occurrence of the event.

The Court stated at p. 806: While this Court retains its discretion to entertain or not to entertain an appeal as of right where the issue has become moot, it may, in theexercise of its discretion, take into consideration the importance of the constitutional issue determined by a court of appeal judgmentwhich would remain unreviewed by this Court. [page 362] In the circumstances of this case, it appears desirable that the constitutionalquestion be answered in order to dispel any doubt over it and it accordingly will be answered. 39 Patently, the mere presence of an issue of national importance in an appeal which is otherwise moot is insufficient.

Nationalimportance is a requirement for all cases before this Court except with respect to appeals as of right; the latter, Parliament has apparentlydeemed to be in a category of sufficient importance to be heard here. There must, therefore, be the additional ingredient of social cost inleaving the matter undecided.

This factor appears to have weighed heavily in the decision of the majority of this Court in Forget v.Quebec (Attorney General), (SCC), [1988] 2 S.C.R. 90. 40 The third underlying rationale of the mootness doctrine is the need for the Court to demonstrate a measure of awareness of its properlaw-making function. The Court must be sensitive to its role as the adjudicative branch in our political framework.

Pronouncingjudgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch.This need to maintain some flexibility in this regard has been more clearly identified in the United States where mootness is one aspect ofa larger concept of justiciability. (See: Kates and Barker, "Mootness in Judicial Proceedings: Toward a Coherent Theory", supra, andTribe, American Constitutional Law (2nd ed. 1988), at p. 67.) [my italicization added] [18] Let me then examine these criteria in this case.

The adversarial context [19] It is argued that these individual applicants may face collateral consequences in the future as a result of their institutionalrecord including that they were present on a range, North 3, when it was in lockdown for reasons of safety and security concerns.

It issuggested that their future security classifications, applications for escorted temporary absences (ETAs) and unescorted temporaryabsences (UTAs) and parole may be affected, should these offenders remain in custody or be re-incarcerated. [20] I am satisfied that these concerns are speculative, and even if such inferences could be made, they are of a de minimis nature,and should be given no weight. [21] On the other hand, I recognize that while these inmates remain in custody in the near future, another lockdown may occur.They presently have the benefit of the talent, experience and effort of three counsel to put forward their position to this court.

I cannotconclude that there is not some semblance of a sufficient adversarial context that could see the matter fully argued by parties who have apotential stake in the outcome.[11] Judicial economy [22] As Justice Sopinka noted in Borowski: It is an unfortunate reality that there is a need to ration scarce judicial resources among competing claimants… The concern for judicialeconomy is a factor in the decision not to hear moot cases will be answered if the special circumstances of the case make it worthwhileto apply scarce judicial resources to resolve it. [23] I cannot overlook that Justice Chipman has adjudicated the lawfulness of the lockdown regarding the period betweenSeptember 1 and September 19, 2018.

As he stated in his decision, 2018 NSSC 243: 17 I am going to briefly summarize the evidence. Counsel for CNSCF entered 3 exhibits and a 4th was entered by Mr. Pratt. All exhibitswent in by consent and may be identified as follows: 1.Mr. Pratt's (aka Downey) Warrant of Remand with respect to 2 counts of assaulting a peace officer, alleged to have occurred on July10, 2018 in Dartmouth;

2.Mr. Ross's 4-page Affidavit (with 3 exhibits attached) deposed September, 13, 2018; 3.Mr. Pratt's Notice of Appeal with respect to an assault he is alleged to have committed on staff at Burnside on July 16, 2018; and 4.Mr. Pratt's Warrant of Remand with respect to uttering threats to cause death or bodily harm dated April 23, 2018. 18 Of the exhibits, I find exhibit number 2 to be most germane to the habeas corpus application as it provides the rationale for theDeputy Superintendent placing North 3 on lockdown.

In this regard para. 6 sets out in detail these reasons for the rotational schedule: … 19 I find this affidavit provides a detailed, clear account of the background and the decision-making framework around the placement ofNorth 3 in lockdown.

I would add that the evidence of Deputy Superintendent Ross and Captain Deal provided further rationale andspecifically addressed the September 9 and 10, 2018 situation at North 3 which resulted in inmates being locked in their cells for morethan 24 hours and perhaps in excess of 36 hours. 20 In particular, I accept that there were occupational health and safety concerns expressed at the Joint Occupational Health and Safety(JOSH) Committee by correctional officers who refused to come to work.

As background, Deputy Superintendent Ross said the guardsexpressed concerns as their were death threats and it was believed a riot was planned by the North 3 inmates. 21 Captain Deal also addressed the work refusal, which he said he investigated. There was a emergency meeting of JOSH Committeemembers as there had been 10 to 12 work refusals. He testified that concerns were expressed about death threats, threats of harm andhostage taking. In the result, the North 3 inmates were confined to their cells on September 9 and 10, 2018 for more than 24 hours andpossibly in excess of 36 hours.

On account of the JOSH Committee's recommendations the situation has since improved and the North 3rotational

schedule has progressively allowed for more time out of cells such that it is anticipated 12 hours per 24 hour period may beachieved. … 28 In the result I conclude the actions of the Institution were lawful and reasonable in the circumstances. Having concluded that theplacement into lockdown was made for reasons grounded in safety and security considerations which I find to be valid, I conclude thedecision was both lawful and reasonable. 29 My role is not to determine what decision I would have made in the circumstances.

In making the decision, the administration musttake into account many factors, including most prominently the safety and security of persons, both of the inmates and the staff. 30 The situation on North 3 was a dangerous one which could have escalated. The reasoning of the decision maker was clear andunderstandable. The pathway and steps they took are evidence to the Court. DUTY OF FAIRNESS 31 The final part of the test asks me to consider whether Burnside has complied with its procedural duties and requirement of fairness.

Ihave concluded they did meet their procedural duties under the governing statute and regulations. [my italicization added] [24] Justice Chipman concluded his analysis based in part on evidence presented by the affidavit of the Deputy Superintendent BradRoss sworn September 13, 2018, and the testimony of Captain Deal, who were available for cross-examination.[12] [25] If I were to consider the matters arising before September 17, 2018 when that matter was heard, there is a real risk that I couldcome to different conclusions than did Justice Chipman.

That is an undesirable and unnecessary result - see British Columbia (AttorneyGeneral) v. Malik, 2011 SCC 18; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, at para. 25, regarding issue estoppel. [26] In effect, the applicants are asking the court for a declaration regarding the limits on when and how “lockdowns” may beimposed in Nova Scotia jails. [27] I bear in mind Justice Binnie’s comments in R. v.

Caron, 2011 SCC 5 about the superior courts’ inherent jurisdiction: 24 The inherent jurisdiction of the provincial superior courts, is broadly defined as "a residual source of powers, which the court maydraw upon as necessary whenever it is just or equitable to do so"… are derived "not from any statute or rule of law, but from the verynature of the court as a superior court of law" (Jacob, at p. 27) to enable "the judiciary to uphold, to protect and to fulfil the judicialfunction of administering justice according to law in a regular, orderly and effective manner" (p. 28).

In equally broad language LamerC.J., citing the Jacob analysis with approval (MacMillan Bloedel Ltd. v.

Simpson, (SCC), [1995] 4 S.C.R. 725, at paras.29-30), referred to "those powers which are essential to the administration of justice and the maintenance of the rule of law", at para. 38. [28] However, superior courts have been repeatedly reminded that they should exercise restraint when being requested to makedeclarations in relation to legal disputes that are not rooted in a firm factual foundation.[13] [29] I recognize that such lockdowns may be of a “recurring nature, but brief in duration”, and therefore generally evasive of judicialreview.

However, in Pratt, Justice Chipman has reviewed the same circumstances as of September 17, 2018. [30] Moreover, based on my review of the associated jurisprudence, I conclude that this is not a proper case for this Court to make adeclaration about the legality of the lockdown decisions in the circumstances of this case, because it would require the court to commentin a very generalized fashion on when and how “lockdowns” may be imposed in Nova Scotia jails.

[ 31 ] This is not a case involving a pressing issue of significant public importance that needs to be resolved by this court at present, nor is there a discernible “social cost” of the claimed continued uncertainty in the law sufficient to require this court to continue on to consider the merits of these habeas corpus applications. By making a declaration as requested by the applicants, would the court be inappropriately infringing on the legislative lawmaking function? [ 32 ] There is express statutory authority for so-called “lockdowns” in s. 79 of the Correctional Services Regulations . By their nature, lockdowns are a blunt instrument of prison administration. This may explain why

section 79 is so broadly drafted. Nevertheless, they are necessary. The administrators of correctional facilities are responsible for the safety and security of staff and inmates alike. They must have the latitude to act quickly and decisively – at times they will have to act based on imperfect information.

In my opinion, in such situations, courts should be particularly deferential to prison administrators, absent compelling evidence of bad faith, which could include capricious disregard for procedural and substantive constitutional guarantees accorded to inmates in similar situations. [ 33 ] Legislatures are the hands of governance, which create legislation (including regulations), whereas courts are the eyes and ears that review their work.

Generally, if there are publicly perceived or identified problems with legislation, the Legislature will be expected to address those. [ 34 ] Alternatively, in some circumstances, a court may be asked to address such problems by interpreting the legislation in an effort to ascertain the legislative body’s intended meaning of wording in legislation. Courts may also be asked to pronounce on whether legislation is consistent with the constitutional principles of Canada. [14] [ 35 ] As I understand their argument, the applicants are asking the court: 1.

To conclude that the applicants did not receive fundamental procedural and substantive protection consistent with the requirements of

section 7 and 12 of the Charter of Rights ; [15] is and furthermore 2. To pass judgment on

section 79 of the Correctional Services Regulations by providing “helpful guidance” to correctional facility staff which would ensure that such lockdown decisions in future are made in a more procedurally and substantively fair manner vis-à-vis all inmates affected. [ 36 ] Based on my extensive exposure to such issues, as a lawyer and judge, I can confidently state that the ongoing provision for the safety and security of inmates, staff and others in correctional facilities of the size of the Burnside Jail, is one of extreme complexity and difficult to maintain due to ever-changing factors beyond the direct control of the facility’s administrators.

An ongoing and vexing reality for administrators is that many prisoners are for various reasons “incompatible” with other prisoners, requiring them not to be housed or transported together. An example can be found in the decision of Justice Duncan in relation to his determination of whether a so-called “federal [penitentiary] remand” for an un-convicted prisoner, James (Jimmy) Bernard Melvin Junior, could or should issue: 2016 NSSC 130 . [ 37 ] The safety and security of staff and inmates at the CNSCF between September 1 and 24, 2018, was an ever-changing unpredictable situation.

Any meaningful examination by the court would take on the appearance of a formal “inquiry” of questions such as: why the superintendent believed it appropriate to lockdown North 3; how he could justify that decision on a day by day basis; what access to supporting information, if any, he relied upon; what information were the inmates entitled to have, and what information did they receive; what opportunities to argue against the continued lockdown should have been afforded to the inmates and were not; and ultimately, were all those decisions between the relevant time period for my purposes, September 17 and September 24, 2018, reasonably justifiable when viewed through the lens of sections 7 and 12 of the Charter of Rights jurisprudence? [ 38 ] To reiterate, absent compelling evidence of bad faith by prison administrators in carrying out their duties, specifically here the imposition of this lockdown, courts should be very deferential to such decision-making.

Justice Chipman has already ruled on this in the Pratt matter. There is no hint of such misconduct in the period between September 13 and 24, 2018. [ 39 ] In my opinion, in the circumstances of this case, these requests are not properly “the business of the court”.

Conclusion [ 40 ] I must exercise my discretion in deciding whether to go on and hear the merits of this otherwise moot application for habeas corpus , bearing in mind the principles set out in the jurisprudence, and with a view to appropriately making access-to- justice considerations paramount in relation to significant issues of public importance. [ 41 ] None of the relevant factors argued by the applicants in this case, individually or cumulatively, satisfy me that it is in the interests of justice to proceed to hear the merits of these otherwise moot applications for habeas corpus . [ 42 ] I dismiss the applications.

Costs [ 43 ] While sometimes costs awards against the unsuccessful party are appropriate in such cases, this may be considered to be a “novel” situation, where there is no express governing jurisprudence. For that reason I decline to make an order awarding costs.

Rosinski, J. APPENDIX "A"

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