Kaz Henry Cox Applicant v. The Attorney General of Nova Scotia , representing Her Majesty the Queen in right of the Province of Nova Scotia v. Northeast Nova Scotia Correctional Facility, 2020 NSSC 253

SUPREME COURT OF Nova Scotia Citation: Cox v. Nova Scotia (Attorney General ), 2020 NSSC 253 Date: 20200921 Docket: Pic. No. 500286 Registry: Pictou Between: Kaz Henry Cox 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: September 16, 2020, in Pictou, Nova Scotia Written Decision: September 21, 2020 Counsel: Kaz Henry Cox, self-represented Myles Thompson, for the Respondent By the Court: [ 1 ] Kaz Henry Cox (“Mr.

Cox” or the “applicant”) is an inmate currently held on remand at the Northeast Nova Scotia Correctional Facility (“NNSCF” or “Institution”) housed on the Bravo 3 (also called “B3”) living unit. [ 2 ] On September 9, 2020 Mr. Cox filed an application for habeas corpus . The applicant alleged he is being detained for “unspecified reasons” and that the detention is illegal because: 1. no sanctions/facility breechs (sic); 2. Was given reason contrary to the regular procedure; 3.

Mixing p.c. (protective custody) inmates and G.P. (General Population) inmates is a huge safety issue not only for the P.C. and myself but NSSCF staff also”. [ 3 ] On September 9, 2020, the Court deemed that the habeas corpus application by Mr. Cox was in proper form and it was accepted for filing.

Pursuant to Civil Procedure Rule 7.13(2) an Order issued to compel the Institution to bring the applicant before the court by telephone for a motion for directions hearing and to produce to the court all documents related to the detention. [ 4 ] The motion for directions by teleconference was held on Friday, September 11, 2020 at 9:30 am. In advance of the motion, the Institution produced to the court and the applicant a package of documents related to the detention.

At the conclusion of the motion, I scheduled a hearing to be held on September 16, 2020. [ 5 ] At the conclusion of the hearing on September 16, 2020, I dismissed the application with written reasons to follow. These are those reasons. HABEAS CORPUS PROCESS [ 6 ] I followed the process I described in Nagle-Cummings v Nova Scotia (Attorney General). 2020 NSSC 188 (see paras. 6 - 25). At the motion for directions the respondent conceded that the residual liberty of Mr. Cox was being deprived. I found that Mr.

Cox had raised a legitimate argument that such deprivation was unlawful as required by the decision of the Supreme Court of Canada in Khela , infra .

HABEAS CORPUS HEARING [ 7 ] Due to restrictions related to the Covid-19 pandemic, the hearing was held on September 16, 2020 with the applicant appearing by video from the institution; the other witnesses in the courtroom; and counsel for the respondent by video. [ 8 ] The applicant acknowledged receiving the affidavit and brief filed by the respondent. [ 9 ] The applicant was affirmed and gave viva voce evidence by video. He was not cross-examined. The applicant also called Kevin Willett, Acting Deputy Superintendent of the NSSCF, to give evidence. He was cross-examined by counsel for the respondent.

The respondent filed an affidavit sworn by John C. Hawkins, Deputy Superintendent of the NNSCF, and a brief of legal argument. Mr. Hawkins was cross-examined by the applicant. Factual Background [ 10 ] Mr. Cox testified that he has been housed at the Institution since January 2020 in a general population (“GP”) unit. His daughter was killed in a car accident on August 31, 2020. The next day he was told by ADS Willett that inquiry was being made about arranging a compassionate temporary absence (“TA”) to attend the funeral.

The next day he was told that a transport order needed to be obtained from the Supreme Court. The court issued the order on Thursday, September 3, 2020. ADS Willett told Mr. Cox to be ready to leave on short notice as it was Sheriff Services and not the Institution that was arranging the transportation to the funeral. At that time ADS Willett told him that he would be swabbed for Covid-19 on his return to the Institution and if the swab was negative he would return to his living unit on Alpha 1.

There was no mention of quarantine. [ 11 ] He was transferred first to the Central Nova Scotia Correctional Facility (“CNSCF”) in Dartmouth on Friday, September 4 to be housed overnight. The next day, Saturday, September 5, he attended the funeral. While there, he met with four family members who were all masked. The Sheriffs that transferred him were masked. The correctional officers he dealt with at CNSCF were masked. He was returned to the Institution that same day by noon. He was swabbed and placed in the Close Confinement Unit.

It was at that time that he was first told that he would need to quarantine for 14 days and would be housed on Bravo 3. The swab came back negative and on Monday, September 7 he was moved to Bravo 3. He requested the forms to file the Habeas Corpus Notice. [ 12 ] Mr. Cox says that he does not get a full four hours outside of his cell each day as the

schedule produced by the respondent suggests. He says that this is due to the fact that every time one of the PC inmates requires to be moved, he must be locked up in his cell. He further says that he has had only 2 days of outside recreation since he has been on Bravo 3. [ 13 ] Mr. Cox testified that other inmates had been removed from the Institution for court appearances, medical and dental procedures and returned without the need to quarantine.

He says that even though he is in isolation on B3 he is moved throughout the facility to access his disclosure in his cell in A1 and to use the video and phone booths for court appearances without wearing a mask. He questions why he could not be isolated on A1 instead of B3 which includes PC inmates. Mr. Cox believes that he is being scapegoated by the Institution.

He believes he is being used as an example to show other inmates that he accepted a placement in a living unit that uses close confinement to mix general population inmates like himself with protective custody inmates in the same living unit. [ 14 ] ADS Willett testified that when he advised Mr. Cox that he would be attending the funeral he told him that he would have to follow the “droplet protocol” upon his return. He could not say that he specifically told Mr. Cox that he would be quarantined for fourteen days.

He testified that he was aware that there were other inmates that had been granted a TA who had not been quarantined upon their return. He believed that each case was dealt with in accordance with the directions of public health. [ 15 ] ADS Willett confirmed that the physical design and layout of A1 and B3 are the same. He also confirmed that there have been some inmates housed on B3 for longer than the 14-day quarantine period. [ 16 ] John Hawkins, Deputy Superintendent of the Institution, affirmed under oath the truth of his affidavit filed with the court. That affidavit provided the following evidence: 1. Mr.

Cox (Date of Birth: December 8, 1978) is currently detained on remand as an adult within the Northeast Nova Scotia Correctional Facility (NNSCF), located at 10202 Sherbrooke Rd, Priestville, Nova Scotia, pursuant to a warrant of remand dated August 20, 2020. 2. Mr. Cox’s next court appearance is September 23, 2020 at the Nova Scotia Supreme Court in Halifax. 3. Mr. Cox is on remand awaiting trial on several criminal charges. 4. During this custody term, Mr. Cox was first admitted into NNSCF on January 6, 2020 as a provincial transfer from the Central Nova Scotia Correctional Facility (CNSCF). 5.

Upon arrival to NNSCF, Mr. Cox was placed in the general population (GP) living unit. Mr. Cox continued to live on a GP living unit after his arrival. 6. On September 3, 2020, Mr. Cox requested a compassionate escorted temporary absence from the NNSCF to attend his daughter’s funeral at the Maritime Cremation Centre in Lower Sackville, NS, on September 5, 2020. He obtained a transport order for Sheriff’s Services to escort him to the funeral on September 3, 2020. 7. On September 4, 2020, Mr. Cox was transferred by Sheriff’s Services to CNSCF to be housed overnight. 8. On September 5, 2020, Mr.

Cox was then transferred by Sheriff’s Services from CNSCF to the funeral for his daughter. Following the funeral Mr. Cox was then escorted back to NNSCF and was re-admitted.

9. Due to the COVID-19 global pandemic, Correctional Services, under the guidance and direction of the Nova Scotia Health Authority and infectious disease specialist, Dr. Lisa Barrett (Dr. Barrett), has implemented the following protocol for new admission to Nova Scotia Correctional Facilities: a. Inmates, upon admission will be swabbed to test for COVID-19. The inmate will remain on the close confinement unit (CCU) until a negative test result is received b. Once a negative test is received, the inmate will be relocated to the designated COVID living unit at NNSCF, Bravo 3 (B3). c.

The exception to this rule will be if CCU has no available bed space. d. Inmates placed on the B3 COVID unit will remain on that living unit for 14 days, unless different direction is provided by senior management. e. Once the 14-day quarantine period is satisfied, the inmate will be placed on an appropriate living unit. 10. Since the COVID-19 pandemic began, there have been only a few companionate (sic) temporary absence requests approved for inmates in custody within Nova Scotia Correctional Facilities. As Mr.

Cox’s temporary companionate (sic) absence request was unique, advice was sought by the Director of Correctional Services, John Scoville, from Dr. Barrett of the Nova Scotia Health Authority for guidance and direction on how to mitigate the possible risk of introducing COVID-19 into the NNSCF. 11. After consulting with Dr. Barrett, Director Scoville advised Hawkins that upon re-admission to NNSCF Mr. Cox would be considered a new admission and subject to the COVID-19 admission protocols. The reason for taking this precaution is because Mr.

Cox was attending an event with members of the public who are not subject to the same COVID-19 screening protocols as would other health care professionals, members of Sheriff’s Services, the Courts, or Correctional Services staff. 12. After receiving this direction from Director Scoville, Hawkins advised Acting Deputy Superintendent Kevin Willett of this direction by email I sent on September 4, 2020. 13. In advance of Mr. Cox going on his compassionate escorted temporary absence, Acting Deputy Superintendent Willett explained to Mr.

Cox that upon his return he would be subject to the COVID-19 admissions protocol. 14. An email sent from Acting Deputy Superintendent Kevin Willett to the other Captains of the NNSCF dated, September 4, 2020, outlines the protocol and the fact that Mr. Cox was aware that this process would take place upon his return to NNSCF. 15. According to Deputy Superintendent Willett, Mr. Cox understood and agreed to being subject to the COVID-19 admissions protocol before leaving on his temporary absence. 16. Upon his return to NNSCF on September 5, 2020, Mr. Cox was subject to the COVID-19 admissions protocol.

He was swabbed and placed on CCU. 17. Mr. Cox’s COVID-19 test results came back negative and on September 8, 2020, Mr. Cox was moved to the B3 quarantine unit. 18. The B3 living unit is the designated COVID-19 isolation unit at NNSCF. Other than the CCU, it is the only available unit for isolating inmates upon admission to mitigate the risk of introducing COVID-19 into the correctional facility. 19.

As this is the only unit for isolating inmates before they can be integrated into the correctional facility, this unit must house inmates who identify as general population (GP) and Protective Custody (PC) inmates. 20. Due to safety and security reasons, GP and PC inmates cannot be out of theirs cells and in the B3 day room at the same time. Therefore, B3 has also been designated as a rotational unit. 21. Due to the rotations on the B3 living unit, Mr. Cox receives four (4) hours out of his cell daily. While out of his cell, Mr. Cox, who is a GP inmate, is not in the day room with any PC inmates. 22.

While out of cells on the B3 unit for four (4) hours daily, Mr. Cox’s privileges include: a. Opportunities for showers and recreation each day. b. Canteen services, and Mr. Cox can receive canteen once per week on Wednesday afternoons should he place a canteen order. c. Regular facility meals continue to be served consistent with the facility meals d. Access to a newspaper each day, Monday or (sic) Saturday, for his enjoyment and to assist in maintaining awareness of the community at large. 23. There are two types of close confinement: “Disciplinary Close Confinement” and “Administrative Close Confinement.” 24.

Close confinement is confinement in a close space (i.e. confined to one’s cell) or otherwise under close supervision. Close confinement is defined in Correctional Services Policy & Procedures Subject No. 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 isolated area (e.g.

unoccupied dayroom, 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 on their own accord. 25.

In accordance with Policy 43.00.00, the Superintendent, or delegate is responsible to identify offenders who may require placement in close confinement for the following reasons: 4.3.1 the security of the facility may be compromised 4.3.2 at the request of the offender 4.3.3 protection of the offender 4.3.4 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 4.3.5 health of the offender 4.3.6 safety of other offenders 26. The authority to place Mr.

Cox in CCU then on the rotational B3 unit (a form of administrative close confinement) is identified in the Correctional Services Policy and Procedure Number 43.00.00, and in sections 74 and 75 of the Correctional Services Act , and sections 79, 80, and 81 of the Correctional Services Act Regulations. 27. Close confinement is authorized pursuant to s. 74 and s. 75 of the Correctional Services Act : 74 A superintendent may, in accordance with the regulations, place an offender in close confinement in a correctional facility, if (

a) in the opinion of the superintendent, the offender is in need of protection; (

b) in the opinion of the superintendent, the offender needs to be segregated to protect the security of the correctional facility or the safety of other offenders; (

c) the offender is alleged to or has breached a rule of a serious nature; or (

d) the offender requests. 2005, c. 37, s. 74 . 75 Where an offender has been placed in close confinement, the superintendent (

a) may restrict an offender's privileges; and (

b) shall, in accordance with the regulations, conduct a review of the close confinement 28. Regulation 79 of the Correctional Services Act Regulations gives authority to the Superintendent to impose the following conditions on an inmate as follows: 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 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. 29. Pursuant to section 80(1) of the Regulations, there must be a preliminary review within one (1) day of an inmate’s close confinements. 30. If close confinement continues, section 80 (3) of the Regulations require a full review, conducted by the Superintendent, once every five days. 31. If close confinement continues for ten consecutive days, section 80(4) of the Regulations require that the Executive Director of Correctional Services give permission to continue close confinement. 32. Pursuant to

section 81 of the Regulations, an inmate in close confinement must be allowed at least 30 minutes of exercise outside of their cell during each 24-hour period. 33. It is anticipated that following carrying out his 14-day isolation period, Mr. Cox will then return to a suitable GP living unit on September 21, 2020.

[ 17 ] Mr. Hawkins testified that the protocol for new admissions to the Institution was informed by advice from public health. The protocol was that the new admission would be swabbed and held in CCU until a negative result was received and then placed on B3 for a 14-day quarantine period. With regard to inmates transferred from other correctional facilities, public health had advised that it was not necessary for such inmates to be quarantined. [ 18 ] With respect to the concern raised by Mr.

Cox that other inmates had been removed from the Institution on TA’s for court appearances, medical and dental procedures and returned without the need to quarantine, Mr. Hawkins testified that public health had advised that inmates who had contact with Sheriffs, court staff and medical professionals did not require isolation because all of these contacts were following Covid protocols. [ 19 ] B3 is the only designated Covid isolation unit. The facility does not have adequate space to have separate Covid isolation units for PC and GP inmates.

If there are inmates who are on B3 for longer than 14 days, it is due to issues placing those inmates in other living units unrelated to isolation protocol. [ 20 ] Mr. Hawkins denied that there was any policy or plan for the Institution to integrate PC and GP inmates in the same living units. He said that would create security issues. [ 21 ] He acknowledged that the protocol for dealing with Covid-19 is not in writing. He follows the directions given to him by his superiors based on the information they are provided by public health.

It has been a dynamic situation and much like the public has experienced, the directions have changed as the pandemic has gone on. [ 22 ] With regard to the protocol to apply to the TA for Mr. Cox to attend the funeral, his superior, Director Scoville, obtained specific advice from Dr. Barrett at public health and provided direction to Mr. Hawkins. He in turn provided that direction to all the Captains by email on September 4, 2020. [ 23 ] In cross-examination he stated that he was not aware of any new admission that had not followed the protocol. He explained that the difference between Mr.

Cox and the other TA’s, as he understood it, was that Mr. Cox’s exposure to his family at the funeral was seen as contact with the public and different from the TA’s where inmates were in contact with people who were following Covid-19 protocols such as medical and dental treatment providers. As to the use of other living units to isolate GP inmates, the direction received from public health was that the Institution should not integrate inmates being isolated with any other living units. HABEAS CORPUS – THE LAW [ 24 ] I adopt the

summary of the law including the standard of review as I stated them in Nagle – Cummings at paras. 45-62. Application of the Standard of Review [ 25 ] Under Canada (Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC 65 , 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. [ 26 ] 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 [ 27 ] The relevant issues to be addressed in response to Mr. Cox’s 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. Cox 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 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] 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. [ 28 ] In this case, the respondent led evidence through Deputy Superintendent Hawkins. DS Hawkins possesses knowledge and related practical experience in matters of institutional safety and security.

I found Deputy Superintendent Hawkins to be reliable and credible. [ 29 ] No written reasons were provided by the decision maker, nor were they required by the statutory scheme. However the reasons for the decision can clearly be adduced from the circumstances surrounding how and why the decision was made. [ 30 ] The decision to require Mr. Cox to undergo the isolation protocol for new admissions upon his return from the funeral is internally coherent as it follows from the evidence regarding Mr.

Cox’s entry into the community in an enclosed space with members of the public not subject to Covid-19 screening protocols. Although there are no written protocols from the Nova Scotia Health Authority, the evidence establishes that the decision to establish an isolation protocol was done in consultation with and following direction from public health. Furthermore, the specific decision to require Mr. Cox to be subject to the isolation protocol upon his return from the funeral was reviewed and approved by Dr.

Lisa Barrett. [ 31 ] 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 and informed by the guidance of Dr. Barrett, related to safety and security. The Deputy Superintendent exercised 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 . [ 32 ] This decision was not made to punish Mr.

Cox or to subject him to the stigma of being housed with PC inmates as he has suggested. The decision was made to reduce and mitigate the risk of Covid-19 being introduced to the Institution and, ultimately, to ensure the safety and security of the inmates and staff of the correctional facility. Although Mr. Cox has raised questions about the logic and efficacy of the protocol, that is not for this court to second guess. [ 33 ] In Cain v.

Correctional Services Canada, 2013 NSSC 367 , Justice Van Den Eyden (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. [ 34 ] 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) [ 35 ] 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 pertain 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. [ 36 ] In my view this reasoning is appropriate and amplified by the facts before the court wherein the protocols adopted by the Institution for dealing with Covid-19 have been informed by advice from public health. [ 37 ] 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 in isolation on B3 and thereby depriving him of residual liberty due to the fact that the presence of PC and GP inmates on that unit require it to be on a “rotation”. [ 38 ] 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 isolate Mr. Cox on Bravo 3 was lawful and reasonable. I find the decision to be justified in relation to the law and facts relevant to the decision, 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. [ 39 ] In making the decisions relating to how to manage the risk of Covid-19 in the Institution, the administration must consider many factors including, most prominently, the safety and security of persons, both the inmates and the staff. [ 40 ] 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. [ 41 ] 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. [ 42 ] I adopt this analysis and rationale in the present case. Mr. Cox was aware that he would have to adhere to the droplet protocol. He may not have been told specifically that he was going to be quarantined. Nonetheless, he was aware that he would have to follow the Institution’s protocol.

In addition, he acknowledged at the motion for directions that, had he been told of this requirement at that time, he would not have refused to attend the funeral, which is understandable. CONCLUSION [ 43 ] The evidence demonstrates that there exists a rational, intelligible, and objective basis for requiring Mr. Cox to isolate for fourteen days on Bravo 3 following his return from his daughter’s funeral. [ 44 ] Additionally, in advance of going on his compassionate temporary absence, Deputy Superintendent Kevin Willett explained to Mr. Cox that he would be subject to the protocols. Mr.

Cox may not have understood that this would mean he would move to Bravo 3 for fourteen days of quarantine but that does not make the arrangement unlawful or unreasonable. [ 45 ] The risk of the COVID-19 virus entering a correctional facility is a real and substantial concern. The B3 unit is the only unit other than the CCU that is designated for isolating inmates before they are integrated into the correctional facility. As this is the only unit available for carrying out the isolation protocols, both PC and GP inmates must be housed on B3.

Because PC and GP inmates cannot be out of cells in the open day room at the same time, a rotational

schedule must be implemented to ensure that they do not interact for their safety and security. [ 46 ] I conclude that Mr. Cox is lawfully detained within the NNSCF on the Bravo 3 unit. The Institution acknowledges that upon his completion of the fourteen-day isolation on September 21 he will be returned to a suitable living unit for the general population. [ 47 ] Mr. Cox’s application for habeas corpus is dismissed. [ 48 ] There will be no costs awarded. Norton, J.