Lambert v. Nova Scotia (Attorney General), 2020 NSSC 282

SUPREME COURT OF Nova Scotia Citation: Lambert v. Nova Scotia (Attorney General) , 2020 NSSC 282 Date: 20201007 Docket: Halifax , No. 499726 Registry: Halifax Between: Matthew Lambert Applicant v. Attorney General of Nova Scotia Respondent Decision on Habeas Corpus Application Judge: The Honourable Justice Christa M.

Brothers Heard: August 21, August 25, and September 11, 2020, in Halifax, Nova Scotia Counsel: Matthew Lambert, Self-Represented Myles Thompson, for the Respondent By the Court: Overview [ 1 ] There are procedures that must be followed and adopted to ensure that habeas corpus matters are dealt with expeditiously and fairly. An unusual circumstance arose in this matter which calls for comment.

Can the Attorney General of Nova Scotia rely on a confidential source or confidential information to justify the deprivation of an inmate’s residual liberties without providing the reviewing court with the underlying information? The Supreme Court of Canada has held that, in the context of federal penitentiaries, a correctional facility that withholds such information from an inmate should, if challenged on an application for habeas corpus , provide the court with a sealed affidavit containing the information that has been withheld from the inmate.

Despite the fact that provincial legislation does not address the withholding of information from inmates, this cannot mean that the court should be furnished with less information and inmates housed in provincial facilities should be afforded fewer procedural safeguards than their federal counterparts.

Background [ 2 ] On August 10, 2020, Matthew Lambert filed a Notice of Habeas Corpus which sets forth the following grounds: It is impossible for the applicant to leave detention because: Locked in cell for 22 hours a day, on a man rotation Grounds for review The applicant says the detention is illegal because: W4 is allocated for inmates with multiple and or recent levels, my last level was June 25 and it’s the only level I was received in 8 months, I was put on this range July 27 th .

I haven’t received any disclosure either. [ 3 ] Pursuant to Civil Procedure Rule 7.14, a teleconference was scheduled on August 13, 2020 for a motion for directions before the Honourable Justice Peter Rosinski. Given that Mr. Lambert was confined to his cell for 22 hours a day on a rotational lockdown, Justice Rosinski found that Mr. Lambert had established a prima facie case and a hearing of the matter was scheduled for August 21, 2020. Evidence

[ 4 ] Deputy Superintendent Bradley Ross swore an affidavit on August 19, 2020, that was filed with the court on August 20, 2020. He gave testimony and was cross examined at the hearing. [ 5 ] Deputy Superintendent Ross described the North 4 Unit as a step-down unit, which is different than close confinement. Before this unit was established, inmates with behavioural problems or who had levels would be placed in close confinement and eventually returned to general population.

Now, if an inmate has a history of behavioural issues, the step-down unit can be used to manage and encourage those who are having difficulties to improve their behaviour. [ 6 ] Deputy Superintendent Ross testified that the North 4 unit is necessary given the issues facing the institution, such as in mate behavioural issues, shortage of staff, incompatibles, Covid-19 and the Public Health protocols limiting transfers between facilities. [ 7 ] Deputy Superintendent testified that Mr.

Lambert was detained at the Central Nova Scotia Correctional Facility (“CNSCF”) after being transferred from the Cape Breton Correctional Facility on June 5, 2020. He had been housed on general population units until he was moved to North 4 on July 29, 2020. [ 8 ] The affidavit of Deputy Superintendent Ross describes North 4, why the unit was created, and why Mr. Lambert was placed there: 44.

In July of 2020 the CNSCF made the decision to split North 3, the sole general population unit in the facility, into two separate units, North 3 and West 1 with two separate dayrooms due to a number of serious inmate and staff assaults that took place in the North 3 unit while it was the only general population unit. The North 3 unit and everyone housed there was then moved to North 4 the following day. This included Mr. Lambert. 45.

The North 4 unit was created as a separate step down unit where inmates who experienced continued and consistent behavioral issues in the sole general population unit, now West 1, could be housed until their behavior improved, reducing security risk for staff and other inmates. 46. Inmates housed on North 4 unit were placed on this unit due to having already been unsuccessfully placed with other inmates in other units at CNSCF resulting in their removal. Due to COVID-19, most of these inmates, including Mr.

Lambert, cannot be transferred to any other facility in Nova Scotia and therefore the only other alternative housing option would be housing in the close confinement unit which the CNSCF wishes to avoid as a long term placement option. Mr. Lambert was aware of this decision as set out in the Activity Notes from July 28, 2020, attached here as Exhibit “E”. [ 9 ] Inmates on North 4 are placed on a rotation unlock and are permitted to be out of their cells for a minimum of 2 hours per day, with a peer. Additional time is allowed depending on how many inmates are on the unit and the staffing complement.

This rotational unlock is subject to a daily review by senior management. As of August 19, 2020, there were only three inmates on North 4. All three, including Mr.

Lambert, were allowed out of their cell together and could be out of their cell for up to 6 hours. [ 10 ] Placement decisions are based on several factors, including incompatibility with other inmates, availability of beds, Institutional Security Risk (“ISA”), inmate’s health concerns, intelligence information, and the status of an inmate. [ 11 ] The inmates on North 4 are given all the same privileges as inmates located in North 3, with the exception that they get less time in the dayroom.

They have at least 30-45 minutes of exercise outside and are allowed out of their cells for a minimum of 2 hours with a peer. As noted earlier in these reasons, this time out of cells can be increased depending on the number of inmates on the unit and the staffing complement. Clothing, meals, library access, PlayStation 4, telephone and visits are all available to the inmates on North 4. [ 12 ] On July 27, 2020, Mr. Lambert’s ISA level was assessed and increased to “12 – High”. Mr.

Lambert was placed on North 4 on July 29, 2020 because of the incompatibles, concerns for other inmate safety, ISA, and intelligence about the risk Mr. Lambert posed to the facility’s safety. Mr. Lambert was involved in several assaults at the facility and had been on discipline levels. The information concerning his discipline is appended to Deputy Superintendent Ross’ affidavit at Tab D and lists the variety of infractions, including contraband, damage to property, unauthorized movements, involvement in an assault on June 25, 2020, detrimental behaviour and causing a disturbance. [ 13 ] Mr.

Lambert’s Activity History, appended as Tab E to the Ross affidavit, states in relation to his placement dated July 29, 2020 as follows: This inmate has been placed into a unit subject to rotational unlock. (CNSCF-N3) This unit is now a specialised unit and inmates on this unit are currently 10 in number and are generally problematic inmates that have differing issues such as, security issues, violence towards other inmates or staff, higher security (ISA) rating, or behavioural needs which makes them difficult to place with other inmates in any general population unit within the CNSCF and been removed.

Due to COVID-19, this inmate cannot currently be transferred to any other NS facility and therefore the only other alternative housing option for the inmate at CNSCF would be in segregation, which his clearly not a suitable long-term option other than when absolutely necessary. The inmates on this unit socialise, clean, operate and function together for a common purpose and reward, and therefor they are challenged and disciplined as a unit.

Due to several recent violent altercations, security risks and incompatibility issues with other inmates, this inmate will remain on this rotational unit, until behaviour improves for the safety, good order, discipline, and control of this facility. This rotation will be reviewed daily by my senior managers. [ 14 ] In addition, at the hearing on August 25, 2020, the court heard for the first time that there was confidential information that Mr. Lambert posed a risk to the security of the facility. The Deputy Superintendent acknowledged that Mr.

Lambert had not been told about this information, as it was confidential and could not be shared with Mr. Lambert. [ 15 ] The evidence is that after 30 days on North 4, there is a review to determine if the inmate can be moved to general population. The institutional review board reviews placements. The Deputy Superintendent indicated that he was unaware of any current bad behaviour or incidences since Mr. Lambert was placed in North 4.

[16] Also, during the time Mr. Lambert was housed in North 4, three out of the six inmates housed in the unit had been moved,which meant that the remaining three could be out of their cells more (for 6 hours per day or more). When there is a staff shortage,inmates are given less time out of the cells. Deputy Superintendent Ross noted that the facility was experiencing a critical staff shortageat times. [17] Mr. Lambert was moved to North 4 on July 29, 2020 because information was gained that he presented a significant risk to thesafety and security of the institution.

Deputy Superintendent Ross was questioned by Mr. Lambert as to what falls into the category ofsafety and security of the institution, to which the response was contraband, escape risks and potential assaults. [18] Mr. Lambert contends that the only information he was given about this placement was that it was related to the safety andsecurity of the institution. During cross-examination, Mr. Lambert narrowed in on the evidence given by Deputy Superintendent Rossconcerning the basis for the placement and the allegation that he posed an escape risk. Mr. Lambert asked for particulars.

DeputySuperintendent Ross testified that Mr. Lambert had fashioned some ropes out of sheets and nail clippers. However, additionalinformation was gathered that could not be disclosed to Mr. Lambert. Deputy Superintendent conceded during cross-examination thatduring the 20 years the facility was operating, there had been no successful escape attempts. Deputy Superintendent agreed that since hewas placed on North 4, Mr. Lambert had had no levels. [19] There are guidelines in place setting out when an inmate may be placed on North 4. These were referred to in Alcorn v. NovaScotia (Attorney General), 2020 NSSC 276.

Under the guidelines, Mr. Lambert met two out of three of the criteria -- problematicbehaviour plus a security risk. [20] After much cross-examination, it became apparent that the information the facility was concerned about, and which resulted inMr. Lambert’s confinement on North 4, was confidential and not known to Mr. Lambert. [21] Deputy Superintendent Ross confirmed after much questioning on cross-examination that the only reason Mr. Lambert wasbeing held in North 4 was as a result of the confidential information.

Position of the Attorney General [22] The Attorney General submitted that the decision of the institution to place Mr. Lambert on North 4 was reasonable. Theyasked me to accept the testimony of the Deputy Superintendent without question, despite not having the confidential information beforeme in a sealed affidavit. I was told to accept that the intelligence was credible, and that Mr. Lambert posed a security risk to theinstitution. I inquired about disclosure of the information to the court. The initial response I received was that the Attorney General wasnot required, by law, to provide the information.

The Attorney General relied upon the decision in Naugle-Cummings v. Nova Scotia(Attorney General), 2020 NSSC 188, for the position that there is no requirement to disclose the reasons for placement if the informationmight pose a risk to the health and safety of persons. [23] The Attorney General submits that the applicant was placed on North 4 for a variety of reasons, including his high institutionalsecurity assessment, assaults on inmates, other behavioural infractions, contraband, posing an escape attempt, and posing a threat to thesafety and security of the institution. Mr.

Lambert was placed in North 4 to more closely monitor and mitigate risks. I was asked to givedeference to the decision in light of the fact that the institution administrators are “experts to mitigate and manage risk”. [24] The Attorney General also references staffing issues in the facility. This is all against the backdrop of the Covid-19 pandemicand the institution dealing with mitigating those risks.

The respondent argues that deference should be given to administrative decisionsmade by the Deputy Superintendent that relate to the safety and security of the facility, particularly in the context of the pandemic. TheAttorney General submits the court should not interfere with the day to day safety and security and administrative functioning of thefacility. Law and Analysis [25] The remedy of habeas corpus is to release a person from an unlawful detention. The North 4 unit is neither a generalpopulation unit, nor a close confinement unit.

It does, however, pose an increased limitation on an inmate’s time out of cells, dependingon the number of inmates held on North 4 and the staffing complement. Two hours per day is the standard for inmates to be out of cellson North 4. This can increase depending on the number of inmates and number of staff. Inmates can be out of their cells for 6 hours ormore per day (Ross Affidavit para 50). [26] It was commented in R. v. Miller, (SCC), [1985] S.C.J. No. 79, that there are degrees of deprivation of libertywithin an institution, and placement on North 4 is clearly an additional deprivation of Mr.

Lambert’s residual liberties. [27] The ability of this court to remedy unlawful conditions imposed on inmates has a long history. This history arises in the contextof segregation or close confinement. In R. v.

Miller, supra, the court commented on conditions of confinement as follows: 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 in The Law of Habeas Corpus, p. 149, where he speaks infavour of such an application of habeas corpus, and by Dickson J. (as he then was) in Martineau, supra, where, with reference to thedecision of the disciplinary board which sentenced the inmate for a disciplinary offence to 15 days in the penitentiary's specialcorrections unit, he said 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. R.,

(SCC), [1980] 1 S.C.R. 821 at 839, 16 C.R. (3d) 294, 50 C.C.C. (2d) 495, 105 D.L.R. (3d) 745, 30 N.R. 380 [Fed.]), and that there maybe significant degrees of deprivation of liberty within a penal institution. The same perception is reflected in the reasons for judgment ofMcEachern C.J.S.C. and Anderson J.A. in Cardinal and Cory J.A. in the case at bar on this issue. In effect, a prisoner has the right not tobe deprived unlawfully of the relative or residual liberty permitted to the general inmate population of an institution.

Any significantdeprivation of that liberty, such as that effected by confinement in a Special Handling Unit, meets the first of the traditional requirementsfor habeas corpus, that it must be directed against a deprivation of liberty. 33 Moreover, the principle that habeas corpus will lie only to secure the complete liberty of the subject is not invariably reflected inits application. There are applications of habeas corpus in Canadian case law which illustrate its use to release a person from a particularform of detention although the person will lawfully remain under some other restraint of liberty.

Examples are the use of habeas corpusto recover the custody of children (Stevenson v. Florant, (UK JCPC), [1927] A.C. 211, 46 C.C.C. 362, [1926] 4 D.L.R.897, affirming (SCC), [1925] S.C.R. 532, [1925] 4 D.L.R. 530 (P.C.) [Que.]; Dugal v. Lefebvre, (SCC),[1934] S.C.R. 501, 62 C.C.C. 178, [1934] 4 D.L.R. 552 [Que.]), to release a person on parole where the parole has been unlawfullyrevoked (Re Cadeddu and R. (1982), (ON CA), 41 O.R. (2d) 481, 35 C.R. (3d) xxviii, 4 C.C.C. (3d) 135, 146 D.L.R.(3d) 653 (C.A.); Swan v. A.G. B.C. (1983), (BC SC), 35 C.R. (3d) 135, (sub nom.

Re Swan and R.) 7 C.C.C. (3d) 130,150 D.L.R. (3d) 626 (B.C.S.C.)), and to transfer an inmate from an institution in which he has been unlawfully confined to anotherinstitution (Bell v. Dir. of Springhill Medium Security Inst. (1977), (NS CA), 38 C.R.N.S. 1, 34 C.C.C. (2d) 203, 19N.S.R. (2d) 216 (C.A.) ; R. v. Frejd (1901), (ON CA), 22 O.L.R. 566, 18 C.C.C. 110 (C.A.)). In all of these cases theeffect of habeas corpus is to release a person from an unlawful detention, which is the object of the remedy.

The use of habeas corpus torelease a prisoner from an unlawful form of detention within a penitentiary into normal association with the general inmate population ofthe penitentiary is consistent with these applications of the remedy. [28] Mr. Lambert seeks release to the general population unit through the vehicle of habeas corpus. The remedy of habeas corpusis to be administered in a flexible and generous manner (R. v. Gamble, (SCC), [1988] 2 S.C.R. 595). The question iswhether it is engaged in these circumstances. Burden of Proof [29] The Attorney General accepted that the placement of Mr.

Lambert into North 4 did constitute a deprivation of his residualliberty. As a result of this acknowledgement, the burden of proof shifts to the institution to prove that the deprivation is lawful andreasonable. In Khela, supra, the court commented on reviewing such deprivations: 74 As things stand, a decision will be unreasonable, and therefore unlawful, if an inmate’s liberty interests are sacrificed absent anyevidence or on the basis of unreliable or irrelevant evidence, or evidence that cannot support the conclusion, although I do not foreclosethe 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. Statutory Regime [30] The statutory regime pertaining to the review of Mr. Lambert’s detention is the Correctional Services Act, S.N.S. 2005, c.

Section 39 of that Act sets forth the duties of the superintendent of the CNSCF, including implementing policies and procedures to ensurethe safe and secure operation, management, and administration of the CNSCF.

Section 74 and 75 of the Act dictate the authority andrequirements when placing a person in solitary confinement. The relevant provisions of the Correctional Services Act are as follows: Close confinement 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 thesafety of other offenders’ (

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

d) the offender requests. Close confinement 75 Where an offender has been placed in close confinement, the superintendent … (

b) shall, in accordance with the regulations, conduct a review of the close confinement. [31]

Section 79 of the Correctional Services Regulations provides the following authority for Correctional Services to utilizedifferent types of confinement: 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 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. [ 32 ] Crawley v. Nova Scotia (Attorney General), 2020 NSSC 221 , refers to

section 79 as providing the expressed statutory authority for implementing rotational lockdowns (see also: Coaker v. Nova Scotia (Attorney General) 2020 NSSC 252 ). The institution does have the authority to create and utilize North 4. Standard of Review [ 33 ] The applicable standard of review with respect to detention of inmates is reasonableness ( Pratt v. Nova Scotia (Attorney General) , 2020 NSCA 39 ). Canada (Minister of Citizenship and Immigration) v.

Vavilov , 2019 SCC 65 , set forth the starting presumption of reasonableness on review of an administrative decision. [ 34 ] In order for a decision to be reasonable, it requires two elements: 1. the decision’s reasoning must be internally coherent; and 2. the decision must be justified in light of the legal and factual constraints that bear on the decision. [ 35 ] Vavilov , supra , articulates several contextual factors for a court to consider when assessing whether a decision is reasonable.

In applying this standard, I acknowledge that prison administrators exercise their discretionary decision-making power in the context of having expertise in the management and administration of correctional facilities. [ 36 ] In acknowledging the deference that should be afforded to administrative decisions and administrators in penal institutions, I refer to the decision of Van den Eynden, J. (as she then was), in Cain v. Canada (Correctional Services) , 2013 NSSC 367 , at paragraphs 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. Atlantic Institution, 2004 NBQB 140 (N.B. Q.B.) [ 37 ] In reviewing the decision of administrators at the CNSCF the comments of Chipman, J. in Ryan v.

AGNS , 2015 NSSC 286 , are of assistance: 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 having 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 mush 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 risk 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. [ 38 ] It is clear deference should be afforded to prison administrators when making such decisions. Before I can decide whether the decision to place Mr. Lambert on North 4 was reasonable, I must address the facility’s reliance on the confidential information. Confidential Information [ 39 ] The parties were to return to court on August 25, 2020.

A day in advance of that decision, I was provided with correspondence from the Attorney General indicating that the condition of Mr. Lambert’s confinement had changed. On Monday, August 24, 2020, at approximately 2:30 pm, Mr. Lambert was transferred from North 4 to West 1, a general population unit. [ 40 ] This decision to transfer Mr. Lambert was made following his 30-day review and was based on his good behaviour, and the administrative satisfaction that Mr. Lambert’s safety and security risk could be managed and mitigated while in general population. The Attorney General advised that the fact that Mr.

Lambert’s conditions of confinement and behaviour were reviewed and, upon review, Mr. Lambert was removed from North 4, supported the conclusion that he was afforded procedural fairness with regard to being placed on North 4. Simply put, the Attorney General says the process worked. [ 41 ] On August 25, 2020, Mr. Lambert confirmed that he had been moved to the general population unit. At that time, I advised the Attorney General that I was not satisfied with their approach to the matter and their reliance on confidential information that they were refusing to provide to the court.

I noted that, in my view, the proper procedure was to provide a sealed affidavit or sealed material for the

court to assist in its review. All parties agreed to return on September 9, 2020, so that this issue could be addressed. [42] With Mr. Lambert’s conditions of confinement having changed, the matter was not at the level of urgency that would usuallybe seen in a habeas corpus application. Mr. Lambert also agreed that he wanted the court to have the confidential information so that itcould do the work of determining whether the decision was reasonable. Sealed Affidavit [43] A sealed affidavit was provided to the court pursuant to Civil Procedure Rule 85.06.

This information includes confidentialintelligence that was gathered by Correctional Services and that led to the decision to place Mr. Lambert in North 4. The information issubject to privilege and, having reviewed that information, I agree that it is privileged information that is properly the subject of thesealed affidavit. In so concluding, I rely on R. v. Leipert, (SCC), [1997] 1 S.C.R. 281. [44] On cross-examination of Deputy Superintendent Ross, it became apparent that one, if not the only, or most significant, reasonfor placing Mr.

Lambert on North 4 was that Correctional Services had obtained privileged information that led prison administrators tobelieve that Mr. Lambert posed a serious risk to the safety and security of the CNSCF. This factored heavily into his placement on North4. [45] Upon hearing this evidence, I expressed concerns regarding the privileged information which appeared to be a significant factorin the decision to place him on North 4. I referred to the Supreme Court of Canada’s decision in Mission Institution v.

Khela, 2014 SCC24, which dealt with an inmate in a federal penitentiary who filed an application for habeas corpus after prison administrators decided tomove the inmate from a medium to a maximum-security institution. The Khela decision addressed the duty to disclose reasons fortransfer to assist the court in determining whether the transfer decision was procedurally fair. This was pursuant to the federalcorrections statutory scheme.

The Supreme Court in Khela stated the following regarding disclosure and procedural fairness atparagraphs 82 and 83: As this Court put it in Cardinal, one of the cases in the Miller trilogy, “there is, as a general common law principle, a duty ofprocedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and whichaffects the rights, privileges or interests of an individual” (p. 653).

Section 27 of the CCRA guides the decision maker and elaborates onthe resulting procedural rights (May, at para. 94). In order to guarantee fairness in the process leading up to a transfer decision, s.27(1) provides that the inmate should be given all the information that was considered in the taking of the decision, or a

summary ofthat information. This disclosure must be made within a reasonable time before the final decision is made. The onus is on the decisionmaker to show that s. 27(1) was complied with. This disclosure is not tantamount to the disclosure required by R. v. Stinchcombe, (SCC), [1991] 3 S.C.R.326. As the Court stated in May, “[t]he requirements of procedural fairness must be assessed contextually” (para. 90, citing Ruby v.Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3, at para. 39; Knight v. Indian Head School Division No. 19, (SCC), [1990] 1 S.C.R. 653, at p. 682; Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999]2 S.C.R. 817, at para. 21; Chiarelli v. Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 711,at p. 743; Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3, at para. 82). In this context, the inmate’s residual liberty is at stake, but his orher innocence is not in issue. Stinchcombe requires that the Crown disclose all relevant information, including “not only that which theCrown intends to introduce into evidence, but also that which it does not” (p. 343).

Section 27 does not require the authorities to produceevidence in their possession that was not taken into account in the transfer decision; they are only required to disclose the evidence thatwas considered. Further, whereas Stinchcombe requires the Crown to disclose all relevant information, s. 27 of the CCRA provides thata

summary of that information will suffice. [46] The Attorney General argues that the administrators at the CNSCF are not subject to federal statutory schemes and there are noanalogous statutory requirements for disclosure built into the provincial act or regulations. [47] In Khela, the court reviewed the federal legislation.

Section 27(3) of the Corrections and Conditional Release Act, S.C. 1992c. 22 provides that where the Commissioner has reasonable grounds to believe that disclosure of information under Section 27(1) or (2),would jeopardize the safety of any person or the security of the penitentiary or conduct of a lawful investigation, they may authorize awithholding of information from the inmate to the extent necessary to protect the interests. [48] In Khela, supra, the court acknowledged the significant deference that must be afforded to the Commissioner when informationis withheld for these reasons: 89 Section 27(3) authorizes the withholding of information when the Commissioner has “reasonable grounds to believe” that shouldthe information be released, it might threaten the security of the prison, the safety of any person or the conduct of an investigation.

TheCommissioner, or his or her representative, is in the best position to determine whether such a risk could in fact materialize. As a result,the Commissioner, or the warden, is entitled to a margin of deference on this point. Similarly, the warden and the Commissioner are inthe best position to determine whether a given source or informant is reliable.

Some deference is accordingly owed on this point as well.If, however, certain information is withheld without invoking s. 27(3) , deference will not be warranted, and the decision will beprocedurally unfair and therefore unlawful. [49] The court went on, however, to indicate that when prison administrators rely on Section 27(3) to withhold information as abasis to justify a transfer, they should submit a sealed affidavit to the reviewing court: 87 Where, pursuant to s. 27(3) , the correctional authorities do not disclose to the inmate all the information considered in theirtransfer decision or a

summary thereof, they should generally, if challenged on an application for habeas corpus, submit to the judge ofthe reviewing court a sealed affidavit that contains both the information that has been withheld from the inmate compared with theinformation that was disclosed and the reasons why disclosure of that information might jeopardize the security of the penitentiary, thesafety of any person or the conduct of a lawful investigation.

88 When the prison authorities rely on kites or anonymous tips to justify a transfer, they should also explain in the sealed affidavit why those tips are considered to be reliable. When liberty interests are at stake, procedural fairness also includes measures to verify the evidence being relied upon. If an individual is to suffer a form of deprivation of liberty, “procedural fairness includes a procedure for verifying the evidence adduced against him or her” ( Charkaoui v.

Canada (Citizenship and Immigration) , 2008 SCC 38 , [2008] 2 S.C.R. 326, at para. 56 ). [ 50 ] The Attorney General in the matter before me says that while this federal statutory scheme is binding upon federal facilities, it is not binding on provincial facilities. I do not think that is entirely accurate. I refer to the recent decision in Pratt v. Nova Scotia (Attorney General ), supra . In this decision, the court commented upon procedural fairness in federal institutions versus provincial ones. The court in Pratt commented at paragraph 90 : As correctly identified by the appellant, this analysis is flawed.

The appellant provided thorough and helpful submissions to explain the error. The following is a

summary of those submissions: • The judge’s conclusion there should be different principles for habeas corpus in provincial correctional facilities (compared to those detained in federal facilities) departs from the clear and established binding principles.

The presumption could erode the important oversight role provincial superior courts have over unlawful detention claims by prisoners held in provincially-operated correctional facilities. • There was no evidence before the judge to support his conclusion that provincial applications “necessarily involve less profound and more short-term matters” and in theory a deprivation of liberty in a provincial institution could exceed that imposed in a federal facility in terms of duration. • In terms of the jurisprudence, the principles applied by courts in habeas corpus appear uniform across correctional bodies, as well as other bodies such as immigration authorities.

For example, the Supreme Court of Canada in Khela reached the opposite conclusion.

It determined those detained in federal prisons should have the same rights to habeas corpus as those detained in provincial prisons. • One area in which the judge departed from the established principles was in finding that provincial correctional policies are “fundamentally fair”: … generally, speaking if an institution has fundamentally fair policies made applicable to it, as I find are in existence at present , or internal rules to similar effect, and it follows those in any particular case, an inmate will have presumptively received fundamentally fair treatment and process, and not be able to make out an arguable case otherwise. [emphasis added] • The judge found the provincial policies at issue to be “fundamentally fair” in the absence of any evidence, argument or precedent.

The judge failed to identify whether he was referring to all correctional policies, or specific policies. The judge failed to provide any detailed analysis of the policies or provide reasons for his conclusions they are fair. In addition, policies can change. There was no proof these were the same policies in place on November 6. • At the time of the November 6 teleconference, the respondents had not submitted copies of any correctional policies to the court in support of its position. The correctional policies at issue are not law, but rather matters of fact.

In the absence of any evidence concerning the correctional policies and their application, the judge erred in law in making any findings concerning the “fairness” of the correctional policies. • Alternatively, if the Nova Scotia correctional policies have the status of ‘law’, the fairness of the application of those policies by the respondent correctional facility involves mixed questions of fact and law requiring evidence. In the absence of such evidence concerning the application of otherwise fair policies, the judge erred in making any findings concerning the fairness of the process afforded Mr.

Pratt in this case. [ 51 ] It is true that the provincial legislation does not mandate the disclosure to inmates of all information considered in a transfer decision or authorize the withholding of information in some circumstances. However, for a judge to review a decision of a provincial correctional institution relying on confidential information, it is prudent to provide the information to the judge, unless there is a legal basis for not providing it. Any privileged information obtained by a facility can be shared with the court, which is in the circle of privilege.

It is procedurally fair to furnish the information so the court can properly undertake its review of decisions concerning inmate placements. Without the information, this court is not in a position to do the important work required on a habeas corpus application. [ 52 ] Based on the affidavit and viva voce evidence, as well as the confidential information, there is a rational, intelligible and objective basis for having placed Mr. Lambert on North 4. The information contained in the sealed affidavit provide a clear basis for this court to conclude the decision was reasonable.

It is information which is credible and reliable. I also accept the evidence of Deputy Superintendent Ross, who testified in a forthright manner and gave internally consistent evidence. [ 53 ] Furthermore, Mr. Lambert was advised that he would be reintegrated into the general population unit if he was able to maintain a reasonable period of good behavior (30 days). North 4 is, in essence, a behavioural modification unit. Mr. Lambert was reintegrated after those 30 days. [ 54 ] Given my review of the significant confidential information, I am satisfied that Mr.

Lambert was lawfully detained within the CNSCF in North 4. The decision was reasonable. Return to North 4 on September 1, 2020 [ 55 ] On September 9, 2020, I was advised that Mr. Lambert’s conditions of confinement had changed again. After being returned to the general population unit, he was placed back in North 4. At first, given that this was a new detention, I thought that a new habeas corpus application should be set down. However, both the Attorney General and Mr. Lambert wished for me to deal with his current

placement on North 4. Mr. Lambert was clear he wanted the court to undertake the review. [ 56 ] Additional information was provided, by the Attorney General, in a sealed affidavit addressing the reasons for his current placement on North 4. I am unable to disclose any aspect of this information in these reasons. The information is subject to privilege. I find that the information provided to me under the sealed affidavit contains both reliable and credible information as to why Mr. Lambert was placed on North 4 on September 1, 2020.

The information satisfies me that the decision to remove him from general population and place him on North 4 on a second occasion was entirely reasonable. Conclusion [ 57 ] Given my findings, I dismiss the habeas corpus application without costs to any party. Brothers, J.