Nagle-Cummings v. Nova Scotia (Attorney General), 2020 NSSC 188

SUPREME COURT OF Nova Scotia Citation: Nagle-Cummings v. Nova Scotia (Attorney General) , 2020 NSSC 188 Date: 20200616 Docket: Pic. No. 498214 Registry: Pictou Between: Jacob B. Nagle-Cummings Applicant v. The Attorney General of Nova Scotia, representing Her Majesty in the right of the Province of Nova Scotia and Northeast Nova Scotia Correctional Facility Respondent Library Heading Judge: The Honourable Justice Scott C. Norton Heard: June 12, 2020, in Pictou, Nova Scotia Written Decision: June 16, 2020 Subject: Habeas Corpus procedures and law

Summary: Mr. Nagle-Cummings filed an application for habeas corpus while he was in disciplinary close confinement. He claimed his detention was illegal. Issues:

(1) Were the Applicant’s residual liberty interests being infringed?

(2) Did the Applicant raise a legitimate ground to question the legality of the deprivation?

(3) Was the Applicant’s detention a lawful and reasonable infringement of the Applicant’s residual liberty interest?

Result:

(1) The Applicant’s residual liberty interests were being infringed by the disciplinary close confinement and rotational schedule.

(2) The complaints made by the Applicant in the Notice of Application and as further explained by the Applicant at the motion for directions were sufficient to satisfy the threshold set out by the Supreme Court of Canada in Mission Institution v. Khela, 2014 SCC 24 .

(1) The evidence demonstrated a rational, intelligible, and objective basis for implementing the rotational

schedule on the unit. Additionally, the management team at the Institution continued to monitor the dynamic of the unit and, with good behaviour observed, gradually increased the time out of cells for Mr. Nagle-Cummings. The ultimate intention of the Institution was to remedy the deprivation of liberty in a manner that was safe and secure for Mr. Nagle-Cummings, the correctional staff, and the overall management of the facility. The Respondent institution had jurisdiction to take the steps they did and that their decision to restrict the residual liberty of Mr. Nagle-Cummings was lawful.

(2) The application was dismissed. 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: Nagle-Cummings v. Nova Scotia (Attorney General) , 2020 NSSC 188 Date: 20200616 Docket: Pic. No. 498214 Registry: Pictou Between: Jacob B. Nagle-Cummings Applicant v. The Attorney General of Nova Scotia , representing Her Majesty the Queen in right of the Province of Nova Scotia and Northeast Nova Scotia Correctional Facility Respondent DECISION Judge: The Honourable Justice Scott C.

Norton Heard: June 12, 2020, in Pictou, Nova Scotia Written Decision: June 16, 2020 Counsel: Jacob B. Nagle Cummings, self-represented Myles Thompson, for the Respondent By the Court:

[ 1 ] Jacob Nagle-Cummings (“Mr. Nagle-Cummings” or the “applicant”) is an inmate currently held on remand at the Northeast Nova Scotia Correctional Facility (“NNSCF” or “Institution”) housed on the Alpha-2 (A-2) living unit. [ 2 ] On May 25, 2020 Mr. Nagle-Cummings filed an application for habeas corpus . The applicant alleges he is being “unjustly locked in cell [sic] by jail” and that the detention is illegal because “human rights violations”, “policy of jail violations”, and “no contact to legal counsel properly [sic]”. [ 3 ] On May 26, 2020, the Court deemed that the habeas corpus application by Mr.

Nagle-Cummings was in proper form and it was accepted for filing. [ 4 ] A motion for directions by teleconference was held on Monday, June 1, 2020 at 10:00 AM. A hearing was held on June 12, 2020, [ 5 ] At the conclusion of the hearing I dismissed the application with written reasons to follow. These are those reasons. HABEAS CORPUS PROCESS [ 6 ] This is the first application for habeas corpus that has come before the Supreme Court since the Court of Appeal decision in Pratt v.

Nova Scotia (Attorney General) , 2020 NSCA 39 [“ Pratt 2020”]. [ 7 ] The Pratt 2020 decision has fundamentally altered the way in which habeas corpus applications are dealt with in this province. [ 8 ] The Court of Appeal has undone Justice Rosinski’s attempt ( Pratt v. Nova Scotia (Attorney General) , 2019 NSSC 6 [“ Pratt 2019”], to establish a framework for dealing with habeas corpus applications in a way the meets the high priority demands of such applications, while ensuring that scarce judicial resources and court time are not misused on frivolous applications. The Court of Appeal found that a

summary dismissal of the merits of a habeas corpus application at a “stage one” teleconference was procedurally unfair. [ 9 ] In the result, until such time as the Nova Scotia Supreme Court develops a new procedure that is timely, clear, and procedurally fair to all parties, applications for habeas corpus must strictly adhere to Civil Procedure Rule 7. [ 10 ] The Court of Appeal in Pratt 2020 adopted the following guiding principles for habeas corpus applications in Nova Scotia: [55] The principles that govern are well-known and not controversial.

By way of a cursory overview they include: • Habeas corpus is a “non-discretionary” remedy.

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

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

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

interpretation of the content of the applicant’s obligation to show “grounds” to question the lawfulness of a decision is consistent with the purpose of the remedy to hold authorities to account for incursions on personal liberty. • A challenge to the fairness of the process may be based on procedural violations of either or both the common law or statute. In determining the fairness of the process, apart from transient or trifling complaints, respondent decision makers are not entitled to deference by the reviewing court.

• In short, the rules that govern can be said to favour the prisoner, requiring the respondent decision maker to introduce evidence to justify the deprivation where the prisoner has discharged their evidential burden by establishing a factual context that “bears upon” the legality of the imprisonment. A claim based on no disclosure or reasons for decision can meet that requirement. See May v. Ferndale Institution , supra; Mission Institution v. Khela , 2014 SCC 24 ; Ogiamien v. Ontario (Community Safety and Correctional Services) , 2017 ONCA 839 ; J. Farbey, R. J. Sharpe and S.

Atrill, The Law of Habeas Corpus , 3rd ed (Oxford: Oxford University Press, 2011). [ 11 ] In Pratt 2020, the Court of Appeal suggested that Rule 7 provides the “starting point” for the comprehensive framework for habeas corpus and noted that “Rule 7.14 authorizes a judge to provide directions for a quick and fair determination of an applicant’s detention” [para 19]. However, in its decision, the Court of Appeal concluded that Mr. Pratt’s November 6, 2018 teleconference hearing “…was not a hearing on the merits.

Rather it was a motion for directions.” [para 22]. [ 12 ] Until directed otherwise, the “stage one” teleconference should be used as a motion for date and directions pursuant to Rule 7.13(2), which provides: 7.13

(1) Habeas corpus takes priority over all other business of the court.

(2) When a notice for habeas corpus is filed, a judge must immediately do all of the following: (

a) appoint the earliest practical time and date and a place for a judge to give directions on the course of the proceeding; (

b) order any person detaining the applicant to bring the applicant before the judge at the set time and date; (

c) order a respondent to produce all documents relating to the detention immediately to the court; (

d) cause the parties to be notified of the time, date, and place of the hearing for directions. [ 13 ] In this case, the Court set June 1, 2020 (4 court days from the date of filing) at 10:00 am as the earliest practical time, date and place for a teleconference to give directions and notified the parties of such, thereby satisfying Rules 7.13(2)(

a) and (d). While the respondent, the Attorney General of Nova Scotia (“AGNS”), was not given a formal order in the form of Form 7.13 to bring the applicant before the Court, it made arrangements to do so. Furthermore, the AGNS was not formally ordered to produce all documents relating to the applicant’s detention; however, in accordance with Rule 7.13(2)(

c) and

section 5 of the Liberty of the Subject Act, R.S.N.S., c. 253 , , the AGNS produced copies of such records to its brief as Appendices A-I. [ 14 ] The initial requirements of an application for habeas corpus were stated by the Supreme Court of Canada in Mission Institution v. Khela , 2014 SCC 24 , (“ Khela ”): [30] To be successful, an application for habeas corpus must satisfy the following criteria. First, the applicant must establish that he or she has been deprived of liberty. Once a deprivation of liberty is proven, the applicant must raise a legitimate ground upon which to question its legality.

If the applicant has raised such a ground, the onus shifts to the respondent authorities to show that the deprivation of liberty was lawful. [references deleted] [ 15 ] The Court of Appeal in Pratt 2020 stated at paragraph 55 that “[i]f the applicant proves a deprivation of liberty and raises a legitimate ground to question the legality of the deprivation the matter must proceed to a hearing.” [ 16 ] In my view, these two inquiries are most efficiently made at the time of the motion for directions.

This approach allows the Court to proceed in a manner that meets the high priority demands of such applications, while ensuring that scarce judicial resources and court time are not misused on frivolous applications. [ 17 ] The deprivation of residual liberty is often admitted by the respondents on such applications. If it is not admitted, it is open to the Court to take oral affirmed testimony from the applicant at the time of the recorded motion for directions.

This approach addresses the concern identified by the Court of Appeal with the difficulties that inmates may have marshalling materials in support of an application for habeas corpus . If the applicant is unable to establish a deprivation, or the application has become moot as defined by the authorities (see Coaker v Nova Scotia (Attorney General) , 2018 NSSC 291 ), it is open to the Court to dismiss the application at the time

of the motion for directions as failing to meet the required threshold described in Khela and Pratt 2020. [ 18 ] As to the legitimacy of the ground or grounds to question the legality of the deprivation, the notice filed with the Court by an applicant rarely provides enough explanation of the ground(

s) upon which its legality is being challenged. Once again, in my view, it is appropriate for the Court to offer the applicant an opportunity to provide a more expansive explanation of the ground or grounds upon which legality is being challenged at the time of the motion for directions. As the Court of Appeal directed in Pratt 2020, the requirement for a legitimate ground has been characterised as “a legitimate doubt” or “some basis” to question the lawfulness of the detention. This requirement is different than actual proof that the detention is unlawful.

The legal burden to prove lawfulness rests upon the respondent decision maker. Where the applicant has discharged their evidential burden by establishing a factual context that “bears upon” the legality of the imprisonment, the legitimacy test has been satisfied. A claim based on no disclosure or reasons for decision can meet that requirement. [ 19 ] In Khela , the Supreme Court of Canada confirmed that an inmate may challenge the reasonableness of their deprivation of liberty which resulted from a federal administrative decision. The Court said: [72] ...

"Reasonableness" is therefore a "legitimate ground" upon which to question the legality of a deprivation of liberty in an application for habeas corpus . . . . [74] As things stand, a decision will be unreasonable, and therefore unlawful, if an inmate's liberty interests are sacrificed absent any evidence or on the basis of unreliable or irrelevant evidence, or evidence that cannot support the conclusion, although I do not foreclose the possibility that it may also be unreasonable on other grounds.

Deference will be shown to a determination that evidence is reliable, but the authorities will nonetheless have to explain that determination. THE Nagle-Cummings application PRocess [ 20 ] The Notice filed by the applicant says that he is “unjustly confined to cell”.

At the motion for directions the AGNS admitted that the applicant’s residual liberty had been and continued to be denied by administrative “rotations” or “lockdowns”. [ 21 ] I found that the applicant had established a deprivation of liberty and accordingly went on to assess the second part of the Khela threshold. [ 22 ] The applicant’s Notice stated that his detention was illegal because: “human rights violations”, “policy of jail violations”, and “no contact to legal counsel properly [sic]”.

These phrases are general and vague and do not of themselves permit the Court to determine if they are legitimate or frivolous and vexatious, for example; they are based on forms copied from prior applications filed by other inmates with no common basis of fact.

While the burden is on the respondent to show that a deprivation of residual liberty is legal, the applicant must provide some factual context that bears upon the legality of the deprivation of liberty and is thereby a “legitimate” ground as required by Khela . [ 23 ] Accordingly, at the motion for directions, the applicant was asked to further explain why he argues that his deprivation is illegal.

He stated: • He continues to be held on a “rotation” or “lockdown” after completing a period of disciplinary close confinement and without adequate explanation. • By “human rights violation” and “jail policy violations” he means being locked in his cell for 23 hours per day when others were fully released after the disciplinary sanctions were completed. • He was given a 6-day disciplinary sanction but remains on a “rotation” after 15 days. • His release from his cell for 30 minutes at 7:00 am is not at a time that permits him to be in contact with his lawyer. [ 24 ] I found that the applicant discharged his evidentiary burden to establish a factual context that bears upon the legitimacy of the deprivation of his residual liberty on the basis that his ongoing “rotation” was unreasonable. [ 25 ] Accordingly, I gave directions pursuant to Rule 7.14: (

a) set a date for the court to determine the legality of the detention; [June 12 ,2020]

(

b) order a person detaining the applicant to bring the applicant before the court for the hearing; [Ordered the AGNS and Institution to do so] (

c) set dates for filing affidavits and briefs; [Applicant June 5, 2020; Respondents June 10, 2020] (

d) order production of a document not already produced; [Ordered materials produced by AGNS to be incorporated in the affidavit to be filed along with copies of any institutional policies relied upon by the institution] (

e) order attendance of a witness for direct examination, if the evidence is not obtained by affidavit; [ not applicable] (

f) order attendance of a witness for cross-examination; [ordered witness for AGNS and Institution to be present for cross if requested by applicant] (

g) determine what documents will constitute the record; [the materials appended to the AGNS brief along with any applicable legislative provisions, regulations and policies relied upon by the Institution] (

h) start a proceeding, under Rule 89 - Contempt, against a person who receives an order to bring the applicant before the judge or produce a document and fails to make every reasonable effort to comply with the order; [not applicable] (

i) adjourn the proceeding and make any order necessary to obtain the presence of the applicant. [not applicable] [ 26 ] In addition, I ordered that the Institution provide the applicant with paper and pen and opportunity to prepare his affidavit and brief. HABEAS CORPUS HEARING [ 27 ] The hearing proceeded as planned on June 12, 2020. The applicant filed a written signed statement on June 5, 2020. The respondent filed an unsigned affidavit from John C. Hawkins, Deputy Superintendent of the NNSCF and a brief of legal argument. The applicant acknowledged receiving these materials.

Due to restrictions related to the Covid-19 pandemic, the hearing was held with the applicant appearing by video from the institution and the respondent witness and counsel by phone. Both the applicant and Mr. Hawkins were affirmed and swore to the truthfulness of the written statement and unsigned affidavit respectively. Counsel for the Attorney General declined to cross-examine the applicant. The applicant did briefly cross-examine Mr. Hawkins. Factual Background [ 28 ] In his signed statement filed with the Court on June 5, 2020, and sworn at the hearing to be true, Mr. Nagle-Cummings admits that he took

part in assaulting another inmate on May 17, 2020 and that he received a sanction of six days confined to cells from a Provincial adjudicator. However, he stated that after the six days expired he remained on “a rotational status”, and that he “believe(

s) that if I’m judicated (sic) to a limited time to my cell it should only be that amount and nothing more.” [ 29 ] Mr. Nagle-Cummings believes that being placed on rotation is “strictly punishment even though (Superintendent Landry) and other captains say otherwise.” [ 30 ] His statement makes the following additional complaints: • While serving the disciplinary sanction he was not permitted recreation time for 4 of the 6 days; • He did not receive medical attention in a timely manner; • He objected to comments made by the correctional officers about the cause of his medical requirements and the credibility or reliability of his complaints.

[31] He testified at the hearing that he had been placed on medical segregation for the past 48 hours and wanted to be returned to thegeneral population. [32] Mr. Hawkins evidence established that Mr. Nagle-Cummings is a remanded inmate currently being detained within theNortheast Nova Scotia Correctional Facility (NNSCF) located at 10202 Sherbrooke Road, Priestville, Nova Scotia. [33] Mr. Nagle-Cummings is housed in the Alpha-2 living unit [Hawkins Affidavit, Exhibit “B”]. [34] On May 17, 2019 at 1308 hours, an assault with a weapon occurred in the A-2 living unit.

The victim was assaulted by multipleinmates and was seriously injured. This incident is currently under criminal investigation by the RCMP. [35] Mr. Nagle-Cummings was one of the inmates who participated in the assault. For taking

part in this assault, Mr. Nagle-Cummings was adjudicated on May 19, 2020 and received a sanction of 6-days confined to cells. These sanctions ended on May 23, 2020at 1307 hrs [Hawkins Affidavit, Exhibit “I”]. [36] In addition to these sanctions, Mr. Nagle-Cummings had recently received several other “levels” (disciplinary incidents) forvarious breaches of the rules while on the A-2 living unit, including: a. April 24, 2020 - Mr. Nagle-Cummings entered the cell of another inmate and assaulted the other inmate. Following the assault, Mr.Nagle-Cummings refused a direct order to return to his cell and lock in.

He was adjudicated and received 5-days confined to cells.[Hawkins Affidavit, Exhibits “F” and “G”] b. April 25, 2020 – Mr. Nagle-Cummings was found to have contraband prescription medication hidden in his cell. He was adjudicatedand received 6-days confined to cells. [Hawkins Affidavit Exhibit “H”] [37] Aside from Mr.

Nagle-Cummings’ disciplinary incidents, there have been multiple other incidents along with multipleimprovised weapons recovered in the A-2 living until over the past 2-months involving the same group of inmates [Hawkins Affidavit,Exhibits “J-P”]. [38] Therefore, following the sanctions served stemming from the group assault, prison administrators at NNSCF determined that, inorder to ensure the safety and security of the unit, Mr.

Nagle-Cummings and several other inmates who participated in the assault wouldbe placed on a rotation of two-hours out-of-cell time (7:00 AM – 8:00 AM on weekdays, 8:00-9:00 AM on weekends, plus one hour inthe unit from 1:00 PM-2:00 PM). [39] The management team at NNSCF meets weekly (Mondays) to examine whether the dynamics on the unit have changed to allowmore inmates out of cells at the same time. The rotation noted above was in effect from May 23, 2020 until June 1, 2020. On Monday,June 1, 2020, Mr. Nagle-Cummings’ rotational

schedule and time out of cells was increased to 5.5 hours (7:00 AM-8:00 AM and 1:00PM – 5:30 pm). [40] On Monday, June 8, 2020, NNSCF management met again and determined that the dynamics on the unit had further improved,allowing Mr. Nagle-Cummings’ time out of cells to be further increased to 7:00 AM -1:00 PM and 1:00 PM – 5:30 PM daily. [41] It was anticipated that if Mr.

Nagle-Cummings and the other inmates on rotation continued with good behaviour, the rotationwould end on Monday, June 15, 2020. [42] However, on June 10, 2020, credible information was received that there may be another improvised weapon on the A-2 livingunit. This information suggested Mr. Nagle-Cummings may be involved. While conducting a search for the weapon, Mr. Nagle-Cummings was observed in a state of intoxication. Mr. Nagle-Cummings had slurred speech, was swaying while walking and had adisheveled appearance.

He was escorted to health care for assessment [Hawkins Affidavit, Exhibit “S”]. [43] For this detrimental behaviour, Mr. Nagle-Cummings received a disciplinary “level” and is awaiting adjudication with theProvincial adjudicator [Hawkins Affidavit, Exhibit “T”]. [44] At the time of the hearing, Mr. Hawkins confirmed that the applicant had been moved to a health care cell for observation dueto him being observed as exhibiting signs of impairment. HABEAS CORPUS – THE LAW [45] The effect of habeas corpus is to release a person from an unlawful detention - which is the object of the remedy.

In addition tobeing available under s. 24 (1) of the Canadian Charter of Rights and Freedoms, as a remedy within the jurisdiction of superior courts,habeas corpus is specifically protected under s. 10 (

c) of the Charter which provides that everyone has the right on arrest or detention tohave the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. [46] Habeas corpus can be based on “any legal standard which supports a conclusion that the continued incarceration of anindividual would be lacking in, or contrary to, legal authority” - The Criminal Lawyers' Guide to Extraordinary Remedies, (Canada LawBook Inc., 2000), at pp. 85-86. [47] Moreover, the prevailing view now is that the restraints on individual liberty which are reviewable by way of habeas corpus areno longer limited solely to cases of illegal incarceration.

For example, the decision in R. v. Gamble, (SCC), [1988] 2S.C.R. 595, (para. 62 to 81) implies that the writ is now available whenever any liberty interest protected by s. 7 of the Charter isinfringed. It is available to challenge secondary forms of detention which limit the applicant's residual liberty, even where deprivation ofthe applicant's liberty interest is not actual but is threatened. [48] Habeas corpus can be used to challenge three different deprivations of liberty: the initial deprivation of liberty, a substantial

change in conditions amounting to a further deprivation of liberty, and a continuation of the deprivation of liberty. Deprivation of Residual Liberty [49] In R v.

Miller, (SCC), [1985] 2 SCR 613, , the Supreme Court of Canada noted the following with respect tosegregation at paragraph 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 he speaks in favourof such an application of habeas corpus, and by Dickson J., as he then was, in Martineau, supra, where, with reference to the decision ofthe disciplinary board which sentenced the inmate for a disciplinary offence to 15 days in the penitentiary's special corrections unit, hesaid 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. 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.

Any significant deprivation of that liberty, such as that effected byconfinement in a special handling unit meets the first of the traditional requirements for habeas corpus, that it must be directed against adeprivation of liberty. [emphasis added] [50] The Court concluded the following at paragraph 35: Confinement in a special handling unit, or in administrative segregation as in Cardinal, is a form of detention that is distinct and separatefrom that imposed on the general inmate population. It involves a significant reduction in the residual liberty of the inmate.

It is in fact anew detention of the inmate, purporting to rest on its own foundation of legal authority. It is that particular form of detention ordeprivation of liberty which is the object of the challenge by habeas corpus. It is release from that form of detention that is sought. Forthe reasons indicated above, I can see no sound reason in principle, having to do with the nature and role of habeas corpus, why habeascorpus should not be available for that purpose.

I do not say that habeas corpus should lie to challenge any and all conditions ofconfinement in a penitentiary or prison, including the loss of any privilege enjoyed by the general inmate population.

But it should lie inmy opinion to challenge the validity of a distinct form of confinement or detention in which the actual physical constraint or deprivationof liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution. [emphasis added] Overriding Charter Considerations [51] Notwithstanding the jurisdictional limitations which this Court outlines in R. v. V.-F..2005 NSSC 71, the superior courts alwaysretain jurisdiction to review an individual’s incarceration.

Furthermore, the Court in Gamble, supra, suggests that the remedy of habeascorpus should evolve and expand to apply to all unconstitutional deprivations of liberty protected under s. 7 of the Charter whichprovides that: “7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except inaccordance with the principles of fundamental justice.” [52] The decision in Gamble establishes that not only does the Charter expand the forms of liberty protected by habeas corpus, butthat it also requires the remedy to be administered in a flexible and generous manner.

In Gamble, Wilson J. stated, at paragraph 64, thatin reviewing detentions of individuals by way of habeas corpus, courts have not “bound themselves to limited categories or

definitions ofjurisdictional review when the liberty of the subject is at stake” and that this trend should be continued under the Charter so that“distinctions which have become uncertain, technical, artificial and, most importantly, non-purposive should be rejected”. Civil Procedure Rule 7 [53] Pursuant to Rule 7.16, the Supreme Court of Nova Scotia has jurisdiction to issue a writ of habeas corpus if the infringement ofan applicant’s residual liberty interest is found by the Court to be unreasonable and therefore "unlawful" or “illegal”.

The Court mayorder the release of the inmate into the general inmate population of the correctional facility pursuant to Rule 7. The Statutory Regime [54] The relevant legislative regime pertaining to the review of the Applicant’s detention is the Correctional Services Act, S.N.S.2005 c. 37 s. 1. (the “Act”). Pursuant to s. 39 of the Act, the duties of the superintendent of the NNSCF include implementing policiesand procedures to ensure the safe and secure operation, management, and administration of the NNSFC. The superintendent may

delegate his duties and responsibilities with respect to the placement of inmates within the facility under

section 38 of the Act. Sections74 and 75 of the Act dictate the authority and requirements for placing a person in solitary confinement. [55] The AGNS noted in its submission that there is no required amount of time out of an inmate’s cell prescribed by the Act. TheCorrectional Services Regulations, N.S. Reg. 99/2006 (the “Regulations”), s. 79 allows the superintendent to confine an offender incustody: Conditions for confinement of offenders in custody 79

(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 orpart 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, totheir sleeping areas; and (

b) restricting entry to the correctional facility or that part, as the case may be. [56]

Section 81 of the Regulations dictates that an offender in close confinement must “be allowed at least 30 minutes of exerciseoutside the cell during each 24-hour period.” [57] Correctional Services Policy 43.000 further addresses the use of administrative and disciplinary close confinement within NovaScotia’s correctional facilities [Hawkins Affidavit, Exhibit “Q”]. [58] In Coaker, supra, this Court acknowledged that

section 79 of the Regulations provides the express statutory authority forimplementing rotational “lockdowns”. Justice Rosinski also held that the implementation of rotations is a necessary tool for prisonadministrators and that courts should be deferential to prison administration when rotations are used for the purpose of maintaining thesafety and security of the institution: [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 arenecessary. The administrators of correctional facilities are responsible for the safety and security of staff and inmates alike. They musthave the latitude to act quickly and decisively – at times they will have to act based on imperfect information. In my opinion, in suchsituations, courts should be particularly deferential to prison administrators, absent compelling evidence of bad faith, which could includecapricious disregard for procedural and substantive constitutional guarantees accorded to inmates in similar situations.

The Standard of Review [59] The applicable standard of review with respect to the placement and form of detention of an inmate in a provincial correctionalfacility is "reasonableness". [60] Based on the new framework outlined in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65,(“Vavilov”) there is a starting presumption of reasonableness as the standard of review. There is no statutory appeal whereby thelegislature has indicated it intends a different standard to apply.

Further, the Superintendent’s decision does not give rise to anyconstitutional questions, general questions of law of central importance to the legal system as a whole or questions regarding thejurisdictional boundaries between administrative bodies.

Accordingly, the presumption of the reasonableness standard is not rebutted.(para. 23) [61] The majority decision in Vavilov explained the role of the reviewing court applying a reasonableness standard as follows: [82] Reasonableness review aims to give effect to the legislature’s intent to leave certain decisions with an administrative bodywhile fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law: seeDunsmuir, at paras. 27-28 and 48; Catalyst Paper Corp. v.

North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 10;Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3, atpara. 10.

[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. The Federal Court of Appeal noted in Delios v.

Canada (Attorney General), 2015 FCA 117 , 472 N.R. 171 , that, “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”: at para. 28; see also Ryan, at paras. 50-51.

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. [ 62 ] While the judgment in Vavilov was made in the context of written reasons having been given by the decision maker, the majority of the Court noted that in many cases neither the duty of procedural fairness nor the statutory scheme will require that formal reasons be given at all (para 136).

In this regard the majority stated: [137] Admittedly, applying an approach to judicial review that prioritizes the decision maker’s justification for its decisions can be challenging in cases in which formal reasons have not been provided. This will often occur where the decision-making process does not easily lend itself to producing a single set of reasons, for example, where a municipality passes a bylaw or a law society renders a decision by holding a vote: see, e.g., Catalyst; Green; Trinity Western University .

However, even in such circumstances, the reasoning process that underlies the decision will not usually be opaque. It is important to recall that a reviewing court must look to the record as a whole to understand the decision, and that in doing so, the court will often uncover a clear rationale for the decision: Baker , at para. 44. For example, as McLachlin C.J. noted in Catalyst , ‘[t]he reasons for a municipal bylaw are traditionally deduced from the debate, deliberations, and the statements of policy that give rise to the bylaw’: para. 29.

In that case, not only were ‘the reasons [in the sense of rationale] for the bylaw . . . clear to everyone’, they had also been laid out in a five-year plan: para. 33. Conversely, even without reasons, it is possible for the record and the context to reveal that a decision was made on the basis of an improper motive or for another impermissible reason, as, for example, in Roncarelli .

Application of the Standard of Review [ 63 ] Under Vavilov , for a decision to be reasonable: 1) its reasoning must be internally coherent, i.e. rational and logical; and 2) it must be justified in relation to the constellation of law and facts that are relevant to it. [ 64 ] The Court in Vavilov articulated several factors to assess, although they are not a checklist and were offered merely to highlight when a reviewing court may lose confidence in the decision: [106] It is unnecessary to catalogue all of the legal or factual considerations that could constrain an administrative decision maker in a particular case.

However, in the sections that follow, we discuss a number of elements that will generally be relevant in evaluating whether a given decision is reasonable, namely the governing statutory scheme; other relevant statutory or common law; the principles of statutory

interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. These elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context. They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached.

The Test for Habeas Corpus [ 65 ] The relevant issues to be addressed in response to Mr. Nagle-Cummings’ habeas corpus application are as follows: I. Are the Applicant’s Residual Liberty Interests Being Infringed? As stated, the Attorney General conceded this at the telephone motion for directions and again in its submissions at the hearing. Mr. Nagle-Cummings is on a rotational schedule, often called “lockdown”. By definition, his residual liberty interests are being infringed. II. Has the Applicant Raised a Legitimate Ground to Question the Legality of the Deprivation?

As stated above, at the motion for directions I determined that the complaints made by the applicant in the Notice of Application and as further explained by the applicant at the motion for directions were sufficient to satisfy the threshold set out by the Supreme Court of Canada in Khela . III. Is the Applicant’s current form of detention a lawful and reasonable infringement of the Applicant’s residual liberty interest?

The burden is upon the respondent to establish the deprivation of residual liberty is lawful and reasonable. [ 66 ] In this case, the respondent led evidence through Deputy Superintendent Hawkins. Deputy Superintendent Hawkins possesses

knowledge and related practical experience in matters of institutional safety and security. I found Deputy Superintendent Hawkins to be reliable and credible. [ 67 ] No written reasons were provided by the decision maker, nor were they required by the statutory scheme. [ 68 ] The decision to continue to implement a rotational

schedule for particular inmates on A-2 is internally coherent as it follows from the evidence regarding Mr. Nagle-Cummings’ involvement in the assault from May 17, 2020 and his involvement with the dynamic on the A-2 unit regarding the presence of improvised weapons. The evidence used to make the determination to continue the rotational

schedule is present in the Affidavit of Deputy Superintendent Hawkins, and although the decision itself is unwritten, the reasons can clearly be deduced from the factual circumstances surrounding how the decision was made. [ 69 ] As to the legal and factual constraints of the decision, I am of the view that I should give deference to the decisions made by the Deputy Superintendent related to safety and security.

The Deputy Superintendent exercised discretionary decision-making power provided by statute, he has relative expertise in the management and administration of correctional facilities (generally), and the scope of his authority is broad and outlined within the Correctional Services Act . This decision was not made to punish Mr. Nagle-Cummings.

The decision was made to reduce the likelihood of further assaults taking place on the unit, to maintain better control over the unit, to more easily examine the dynamics within the unit, and to ultimately ensure the safety and security of the inmates, staff and the correctional facility. [ 70 ] In Cain v. Correctional Services Canada, 2013 NSSC 367 , Justice Van Den Eynden (as she then was) wrote the following: [33] I have considered the principle of deference respecting the decision of administrators in penal institutions.

I am mindful of the deference afforded respecting such administrative decisions, as is the subject matter of this case. In particular, administrative segregation and classifications respecting security. Deference is referred to in many authorities including, Khela v. Mission Institution (supra), Dunsmuir (supra), and Bradley (supra), a decision of the New Brunswick Queens Bench, as well as Samms v.

LeBlanc, 2004 NBQB 140 . [34] In short, this Court's role is not to determine whether the administrative segregation and/or the security classification was the "proper decision" but rather whether the Respondent had the jurisdiction to make those decisions and whether such decisions were lawful and reasonable in the circumstances, taking into consideration the rights and procedural safeguards which Mr.

Cain is to be afforded at law. [ 71 ] With respect to the use of lockdowns, Justice Chipman in Pratt v Nova Scotia (Attorney General) , 2018 NSSC 243 (“Pratt 2018”), found that the use of lockdowns for safety and security purposes can be lawful and reasonable and that a judge’s “role is not to determine what decision [he/she] would have made in the circumstances.

In making the decision, the administration must take into account many factors, including most prominently the safety and security of persons, both of the inmates and the staff.” (paragraph 29) [ 72 ] The impact of Vavilov in the context of habeas corpus was the subject of this Court’s decision in Cox v. Nova Scotia (Attorney General) , 2020 NSSC 81 . On the topic of deference, Justice Jamieson stated (at para. 33): The Majority also indicated that in conducting a reasonableness review the court should be attentive to the application by decision makers of specialized knowledge.

They said that expertise can play a role in the application of the reasonableness standard: 93 An administrative decision maker may demonstrate through its reasons that a given decision was made by bringing that institutional expertise and experience to bear: see Dunsmuir, at para. 49. In conducting reasonableness review, judges should be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons.

Respectful attention to a decision maker’s demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision. This demonstrated experience and expertise may also explain why a given issue is treated in less detail. (see also para 145) [ 73 ] In R v.

Ryan , 2015 NSSC 286 , Justice Chipman outlined the following with respect to the level of deference afforded to decisions made by a Superintendent that pertains to safety and security measures: 24 Earlier I said my view may not matter and that is because of what the law says in respect of other reported cases that have come before this one. Decisions of prison administrators, such as have been made by those at CNSCF, are afforded considerable deference by the Court. The deference is afforded for good reason.

In the result, my role as a Supreme Court Justice hearing a habeas corpus application is not to review all of the evidence so as to make a new decision on the evidence. It is also not my role to determine whether a placement decision such as we have in this case was the correct decision. 25 In making such decisions, prison administrators must take into consideration the safety and security of many stakeholders: the staff, other inmates, the public, and so forth. Prison administrators (here Mr. Keefe, Mr. Fraser and Ms. Dominix) have specific and sometimes special knowledge of the safety concerns.

They are in a better position than the Court in assessing and mitigating the risks with respect to prisons. That is why, in part, they are afforded considerable deference. It is not the Court's role to second guess. My role is to determine whether the Respondent had the jurisdiction to make the decision and whether that decision was lawful and, as Mr. Eddy

has argued, reasonable in the circumstances. [ 74 ] Having reviewed all of the materials, read and listened to the evidence, and having considered the positions of the parties, I am satisfied that the Institution had jurisdiction to take the steps they did and that their decision to restrict the residual liberty of Mr. Nagle- Cummings was lawful. [ 75 ]

Section 39 of the Act outlines the duties of the Superintendent of the NNSCF, which include implementing policies and procedures to ensure the safe and secure operation, management and administration of the facility. Sections 74 and 75 of the Act provide authority and set out the requirements for placing a person in close or solitary confinement. There is no required amount of time out of one’s cell prescribed by the Act. The Regulations , at s. 79 , address conditions for confinement in custody.

For example, they state that the Superintendent may impose different conditions of confinement for different offenders within the correctional facility. [ 76 ] The more critical part of the analysis in the present circumstances is to determine whether the decision was reasonable in all of the circumstances. [ 77 ] As directed by Vavilov , in assessing the reasonableness of the decision I have looked at whether the decision is internally coherent and rational and whether the decision can be justified in light of the legal and factual constraints that bear on the decision to place the Applicant on “lockdown” or “rotation” thereby depriving him of residual liberty. [ 78 ] I have previously reviewed the evidence as I accepted it from the affidavit and the viva voce evidence.

I find that, substantively and procedurally, the decision to continue to implement a rotational

schedule was lawful and reasonable. I find, based on the evidence before the Court, that the Institution’s decision to place the applicant on rotation was reasonable. It was an internally coherent, logical and rational decision. The evidence presented by the respondent illustrates a rational chain of analysis in coming to the decision which is based on safety and security considerations.

Further, I find the decisions to be justified in relation to the law and facts relevant to the decisions, including the governing statutory scheme, the evidence before the decision-maker, and the impact of the decision on the Applicant. There is no basis to find the decisions were untenable on the evidence before the Court. [ 79 ] My role is not to determine what decision I would have made in the circumstances.

In making the decisions, the administration must consider many factors including, most prominently, the safety and security of persons, both the inmates and the staff. [ 80 ] The final part of the test asks me to consider whether the Institution has complied with its procedural duties and requirement of fairness. Decisions that affect the liberty interests of inmates must be made fairly. [ 81 ] In Cain , supra, the issue of procedural irregularities had been strongly argued and were at the center of that application. The Court had the following to say: 47 Mr. Cain has raised procedural and due process concerns.

Although the process followed by the Respondents might not be perfect, I find that overall on balance, Mr. Cain's segregation placement was handled in a manner that, in the circumstances of this case, was generally compliant with the Respondents' obligation at law, including ensuring due process and procedural fairness was appropriately afforded to Mr. Cain. [ 82 ] I adopt this analysis and rationale in the present case. CONCLUSION [ 83 ] The evidence demonstrates that there exists a rational, intelligible, and objective basis for implementing the rotational

schedule on the A-2 unit. Additionally, the management team at NNSCF has continued to monitor the dynamic of the A-2 unit and, with good behaviour observed, has gradually increased the time out of cells for Mr. Nagle-Cummings. This further demonstrates the reasonableness of the Deputy Superintendent’s decision. The ultimate intention is to remedy the deprivation of liberty in a manner that is safe and secure for Mr. Nagle-Cummings, the correctional staff, and the overall management of the facility. [ 84 ] Mr. Nagle-Cummings is lawfully detained within the NNSCF on the A-2 unit.

Given the circumstances, the discretionary decision to place Mr. Nagle-Cummings on rotation for the safety and security of the A-2 unit was reasonable. [ 85 ] Mr. Nagle-Cummings’ application for habeas corpus is dismissed. [ 86 ] There will be no costs awarded. Norton, J.