Adams v. Nova Institution, 2021 NSSC 313

SUPREME COURT OF Nova Scotia Citation: Adams v. Nova Institution , 2021 NSSC 313 Date: 20211112 Docket: Tru. No. 498177 Registry: Truro Between: Lisa Adams Applicant v. Warden of Nova Institution for Women, Correctional Services Canada and Attorney General of Canada Respondents DECISION Judge: The Honourable Justice John A.

Keith Heard: November 9, 2020, in Truro, Nova Scotia Corrected Decision: The text of the original decision has been corrected according to the attached erratum dated November 18, 2021 Final Written Submissions: June 25, 2021 Counsel: Jessica Rose and Emma Halpern , counsel for the Applicant Lisa Adams Ami Assignon , counsel for the Respondents Warden of Nova Institution for Women, Correctional Services Canada and Attorney General of Canada Jack Townsend , counsel for the Attorney General of Nova Scotia on a watching brief By the Court: Introduction [ 1 ] The Applicant, Lisa Adams, was an inmate at the Nova Institution for Women (the “ Nova Institution ”).

On May 6, 2020, Nova Institution’s Acting Warden, Claude Demers (the “ Warden ”), had reasonable grounds for believing that Ms. Adams was carrying contraband in her vagina. He authorized Ms. Adams’ placement in a “dry cell” pursuant to

section 51 (

b) of the Corrections and Conditional Release Act , S.C. 1992, c. 20 , as amended (the “ CCRA ”). [ 2 ] A “dry cell” is the place within a prison where a unique form of solitary confinement occurs.

Inmates reasonably suspected of carrying contraband in a “body cavity” are separated, strip searched and placed alone in a cell on the expectation that the contraband will be “expelled”. [1] It is called a “dry cell” because there are no plumbing fixtures, and the water is turned off. [ 3 ] Once isolated in a dry cell, the inmate is afforded no privacy, allowed minimal social interaction, and kept under constant observation so that any suspected contraband will not be hidden, destroyed, or manipulated.

The inmate remains in dry cell until any suspected contraband is expelled or circumstances dispel any reasonable expectation the contraband will be expelled. [ 4 ] Ms. Adams acknowledged that the Warden had reasonable grounds for believing she was carrying contraband in her vagina. Indeed, there was considerable evidence to support the Warden’s belief. Among other things, she admitted to smuggling a tobacco cigarette into the penitentiary in her vagina. In addition, testing revealed traces of methamphetamine (crystal meth) in the room where Ms. Adams was housed within Nova Institution.

That said, after detained in dry cell, Ms. Adams adamantly and consistently denied carrying any contraband in her vagina.

[ 5 ] On May 22, 2020, Ms. Adams was released from dry cell after a pelvic examination demonstrated that, in fact, she was not carrying any contraband in her vagina. By that time, she had spent more than 15 days in the dry cell. [ 6 ] In sum, the Warden (or “institutional head”, to use the language found in the CCRA ) had reasonable grounds for suspecting Ms. Adams was carrying contraband in her vagina. However, 15 days of dry cell detention eventually proved those suspicions wrong. [ 7 ] During Ms. Adams’ time in dry cell, the record shows that she suffered emotionally and psychologically.

She also suffered needlessly – and not simply because Ms. Adams was not actually concealing contraband in her vagina. More importantly for the purposes of this proceeding, Ms. Adams and the Federal Crown agree that the original decision to place Ms. Adams’ in dry cell was unlawful, as were the decisions which kept her there for 15 days. [ 8 ] Despite agreement that Ms. Adams’ dry cell detention was unlawful, a dispute subsists around why Ms. Adams’ detention was unlawful. [ 9 ] Ms.

Adams says that her dry cell detention was unlawful because the enabling provisions in the CCRA ( sections 51 and 52 ) violate sections 7 , 8 , 12 , and 15 of the Canadian Charter of Rights and Freedoms (the “ Charter ”) and are unconstitutional. She asks that they be declared void and of no effect. [ 10 ] The Respondents Corrections Services Canada, the Attorney General of Canada and the Warden argue that Nova Institution’s staff (including Nova Institution’s acting Warden) failed to properly administer or apply the statutory scheme in a lawful manner.

In this decision, I refer to the Respondents collectively referred to as the “ Federal Crown ” although, where necessary for identification purposes, I will refer to the Warden separately. In submissions filed October 30, 2020, the Federal Crown wrote at paragraph 53: …it is conceded that

section 51 was not applied properly when it was decided to place the applicant in a dry cell for the reason that she was suspected of concealing contraband in her vagina. [ 11 ] However, the Federal Crown continues, the dry cell provisions of the CCRA cannot be condemned as unconstitutional because “

section 51 does not contemplate the placement in a dry cell of a female that is suspected of concealing contraband in her vagina.” [2] The Federal Crown argues that the problem in Ms. Adams’ case was “maladministration” [3] and not a constitutional failure within the CCRA . Nova Institution staff simply failed to understand the limits of their statutory authority.

No evidence was filed as to whether Nova Institution’s alleged misunderstanding was a single, isolated incidence or whether it reflected a more common occurrence within penitentiaries generally. [ 12 ] The Warden did not file an affidavit and takes no position in this proceeding. He neither agreed nor disagreed with the Federal Crown’s use of the term “maladministration” in connection with Ms. Adams’ dry cell detention. [ 13 ] That said, the Federal Crown’s legal arguments were largely dedicated to a preliminary jurisdictional issue. Ms.

Adams was released from dry cell a few days after commencing this application. From a strictly doctrinal perspective, the only available remedy in an application for habeas corpus is release from unlawful detention. Therefore, the Federal Crown says, within the strict confines of habeas corpus , Ms. Adams’ release exhausted all remedial options; eliminated any live controversy; and rendered this proceeding moot. In the circumstances, the Federal Crown concludes that the Court should decline any residual jurisdiction to adjudicate upon Ms. Adams’ Charter claims.

As part of this argument, the Federal Crown points to other procedural and evidentiary problems which arise if the Court allows complex, constitutional matters to be litigated within the highly specialized and often accelerated process of habeas corpus . [ 14 ] For the reasons which follow, I find that: 1. Despite the fact that Ms. Adams commenced this proceeding as an application for habeas corpus and despite Ms. Adams being released from dry cell after these proceedings were commenced, the matter is not moot.

Cases in which release from detention do not render an application for habeas corpus moot should be rare and exceptional. However, this is one such rare and exceptional case. The Court’s residual discretion is engaged to consider Ms. Adams’ Charter claims.

Section 51 of the CCRA , as informed by the statutory definition of “body cavity” under

section 46 of the CCRA , offends

section 15 of the Charter and is not saved by

section 1 of the Charter ; and 3. In terms of remedy, as indicated, the Federal Crown acknowledges that dry cell detention where contraband is reasonably suspected of being carried in a vagina is unlawful. It describes Ms. Adams’ dry cell detention as “maladministration”. If the dry cell provisions of the CCRA are deemed unconstitutional, the Federal Crown proposes a tailored remedy in which

section 51 (

b) is read down such that it is of no force or effect to the extent it applies to inmates suspected of carrying contraband in the vagina. The Federal Crown’s admissions and remedial proposal mitigates the Charter violation under the CCRA , as currently drafted, and helps prevent any future breach. However, respectfully, it oversimplifies the problem and fails to recognize the fact that the search and seizure provisions of the CCRA were drafted in an integrated and internally cohesive manner. They work together to, among other things, prevent the importation of contraband into a prison.

In doing so, they seek to maintain prison security and preserve order while, at the same time, ensuring that conditions of detention remain safe and humane for the inmate population generally and those inmates who place their own health at grave risk when carrying contraband in a vagina. In this case, the issue is not limited to

section 51 (b).

Section 51 generally is affected. The statutory definition of “body cavity” under

section 46 is also implicated. Other provisions in the CCRA are similarly engaged. Moreover, eliminating dry cell detention as an appropriate response to suspected contraband carried in a vagina does not mean that it is suddenly permissible for an inmate to carry contraband in a vagina. It is not. Carrying contraband in a vagina represents a very serious threat to security, health, and safety within a prison; and it remains an offence under the CCRA .

If the Federal Crown’s tailored remedy is accepted, how might prison administrators properly and effectively respond under what remains in the CCRA where there is a reasonable suspicion that contraband is being carried in a vagina? The risk cannot simply be ignored. Indeed, the facts in this case reveal at least some of the problems which begin to surface if a more comprehensive assessment is not undertaken. In my view, a tailored remedy focussed only on the dry cell provisions in

section 51 (b) (and otherwise ignoring the broader statutory scheme) is

unsafe. At the same time, these issues and policy decisions which arise are for Parliament, not the Court. Parliament should be affordedthe opportunity to assess the implications associated with the identified Charter breach and develop an appropriate legislative response.Thus,

section 51(b), as informed by the definition of “body cavity” under

section 46, is declared to be of no force and effect, but thedeclaration is suspended for a period of 6 months from the date of this decision. Issue 1: Should the Court Decline Jurisdiction to Determine theConstitutional Issues in the Context of This Application forHabeas Corpus? [15] The ancient writ of habeas corpus springs from the same elemental beliefs which underpin the rule of law. Both reflect acommitment to equality before the law and a deep aversion to the arbitrary exercise of power.

Over the centuries, habeas corpus hascome to be recognized as a dominant force guarding the fundamental right to individual liberty against unlawful detention by the state (see, for example, Khela v Mission Institution, 2014 SCC 24 (“Khela”), at paragraphs 27 – 30; Canada (Public Safety and EmergencyPreparedness) v Chhina, 2019 SCC 29, at paragraphs 19 – 30 (“Chhina”); and G. (D.) v Bowden Institution, 2016 ABCA 52, atparagraphs 105 – 122)[4] While written in the context of a Charter challenge of certain provisions of Canada’s Extradition Act, thefollowing words from Chief Justice McLachlin in United States v Ferras, 2006 SCC 33, resonate with equal force when explaining thesignificance of habeas corpus in a free and democratic society (paragraph 19): It is an ancient and venerable principle that no person shall lose his or her liberty without due process according to the law, which mustinvolve a meaningful judicial process.

The idea is as old as the Magna Carta (1215), Clause 39 of which provided: "No free man shall beseized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor willwe proceed with force against him, or send others to do so, except by the lawful judgement of his equals, or by the law of the land." [16] The importance of habeas corpus among Canada’s basic rights and freedoms is so significant as to warrant special recognitionin the Charter.

Section 10(

c) of the Charter states that “Everyone has the right on arrest or detention to have the validity of thedetention determined by way of habeas corpus and to be released if the detention is not lawful.” [17] Given the clear connection between habeas corpus and the notion of detention, the writ plays a vital role in corrections lawwhere the issue of detention (including the treatment of persons who are already lawfully detained) looms large.

Habeas corpus hasbecome an accessible and expeditious method for imprisoned persons to challenge unlawful restraint or detention. [18] However, the scope of habeas corpus within corrections law is limited by several important qualifications, including: 1. Habeas corpus is not an alternative method for challenging the legality of a conviction (May v Ferndale Institution, 2005 SCC 82,at paragraphs 36, referred to below as “May”).

It is also not available as a method of dodging other, proper channels for pursing suchthings as bail, parole, or similar forms of legislated release where there is already a complete, comprehensive and expert procedure (Mayat paragraph 50; Khela at paragraph 42; R v Pearson, (SCC), [1992] 3 S.C.R. 665; and Haug v Warden of DorchesterInstitution, 2020 NBCA 32 (“Haug”) at paragraph 28); 2. Once convicted and incarcerated, an inmate’s personal autonomy and liberty is already, justifiably restricted.

Thus, the writ ofhabeas corpus responds only to the incremental or residual loss of liberty which an inmate faces following imprisonment (May atparagraphs 27 – 28). In Dumas v Centre de detention Leclerc de Laval, (SCC), [1986] 2 S.C.R. 459, the Supreme Courtof Canada elucidated on the nature of the residual loss of liberty by noting that there must be a substantial change in conditionsamounting to a further deprivation caused by the imprisonment itself (at page 464); and 3. Habeas corpus seeks to address unlawful detention. It does not promote the general cause of “freedom” in every form of humanexperience.

Thus, the liberty interest protected by habeas corpus involves some form of physical restraint or confinement.[5] Attemptsto exploit the writ of habeas corpus as some cure-all or panacea for any restriction, no matter how trivial, has been rejected as harmful tothe proper administration of justice (see Miller at paragraph 36; Haug at paragraph 22; Brewer v Her Majesty the Queen, 2020 NSSC308 (“Brewer”) at paragraph 32; R v Latham, 2018 ABCA 308 at paragraph 7; Larente v Bonnefogel, 2018 ABQB 82 (“Larente”) atparagraph 15; Lee v Canada (Attorney General), 2018 ABQB 40 (“Lee”), at paragraph 211; and Ewanchuk v Canada (AttorneyGeneral), 2017 ABQB 237 (“Ewanchuk”) at paragraph 51).

There are a number of good reasons to limit the types of detention whichcan be properly addressed through an application for habeas corpus. They include: a. The fact that applications for habeas corpus race to the top of the Court’s docket and often occur at a highly acceleratedpace. Nova Scotia Civil Procedure Rule 7.13(1) states: “Habeas corpus takes priority over all other business of the court.”[6] Thissense of urgency is created precisely because the underlying issues around liberty and unlawful detention are pressing and worthy of theCourt’s immediate attention.

The same cannot be said of any minor or trivial infringement of privileges. Moreover, from the perspectiveof Court administration and the just determination of disputes, significant problems arise if any perceived infringement of liberty is givenpriority under the aegis of habeas corpus and rushed through to final adjudication; and b.

There are often alternate procedures by which other concerns or complaints may be adjudicated including, for example,judicial review or internal complaints processes developed within a correctional facility. [19] Having said that, administrative segregation”[7] has been recognized as often being worthy of the Court’s attention becauseinmates are separated from the general prison population and subjected to more significant restrictions of their liberty. It has beendescribed by the Supreme Court of Canada in R v Miller, (SCC), [1985], 2 S.C.R. 613 (“Miller”) as a “prison within aprison” (at paragraph 32).

In Miller, the Supreme Court of Canada wrote: I do not say that habeas corpus should lie to challenge any and all conditions of confinement in a penitentiary or prison, including the

loss of any privilege enjoyed by the general inmate population.

But it should lie in my opinion to challenge the validity of a distinct formof confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certainprivileges, is more restrictive or severe than the normal one in an institution. [paragraph 35] [20] In addition, more recent jurisprudence is replete with commentary as to the potentially serious and damaging effects associatedwith solitary confinement (see, for example, Pratt v Nova Scotia (Attorney General), 2020 NSCA 39 (“Pratt”), at paragraph 60; Wilcox vAlberta, 2020 ABCA 104 (“Wilcox”) at paragraphs 21 – 23 and 48 - 49; Corporation of the Canadian Civil Liberties Association v HerMajesty the Queen, 2019 ONCA 243 (“CCCLA”), and British Columbia Civil Liberties Association v Canada (Attorney General), 2019BCCA 228 (“BCCLA”)).

Leave to appeal to the Supreme Court of Canada has been granted in both CCCLA ([2019] SCCA No 96) andBCCLA ([2019] SCCA No 308), with the Supreme Court of Canada directing that these two matters be heard together. [21] There is one further preliminary but important point to emphasize at the outset: because habeas corpus is dedicated toaddressing unlawful deprivations of an inmate’s residual physical liberty, the remedy is release. (See Khela at paragraphs 42 and 55;Haug at para 31; and Fraser v Kent Institution (1997), (BC CA), 130 C.C.C.(3d) 393 (B.C.C.A.) at paragraph 22). [22] The remedial reach of habeas corpus is important.

In the vast majority of cases, release will serve to bring an end to anycontroversy which might properly be resolved through the writ of habeas corpus. [23] Still, a residual discretion remains. Rare cases arise in which the Court might seek to adjudicate on the underlying issuesdespite the inmate’s release from detention. It becomes necessary to distinguish those cases in which the remedy of release eliminatesthe underlying controversy from those exceptional cases where, despite release, alternative remedies (e.g. ancillary, declaratory relief)might still be pursued through the habeas corpus procedure.

See, for example, Wilcox and A.H. v Fraser Health Authority, 2019 BCSC227 (“A.H. v Fraser Health”) where the issues were sufficiently important as to justify granting declaratory constitutional relief eventhough the applicant had been released from her conditions of detention. [24] One of the reasons release from detention might not preclude the possibility of ancillary remedies through a habeas corpusapplication is that applications which legitimately raise concerns around an unlawful detention would be automatically andunceremoniously defeated simply by releasing the detained inmate.

Release becomes a method for avoiding scrutiny. Unlawfuldetentions might be perpetuated (or repeated) by simply releasing the inmate before judicial oversight can occur. In Pratt, the NovaScotia Court of Appeal succinctly described the problem of escaping determination of legitimate claims which are “subject to repetitionyet evasive of review because individual circumstances in prisons can quickly change before appellate review of the challengeddecision” (at paragraph 8). On this issue, I note that while the Crown described the circumstances around Ms.

Adams’ detention as“maladministration”, no specific evidence was tendered to establish that, in fact, Ms.

Adams’ experience was a singular or isolatedincident or, alternatively, whether other women have been similarly detained in dry cell for the same reason. [25] The Federal Crown refers to a “large body of jurisprudence throughout Canada supporting the principle that the only availableremedy in a habeas corpus application is release”.[8] This body of jurisprudence centres in Alberta and the Federal Crown quotesspecifically from Larente where Henderson, J. states: “the only remedy that may result from a habeas corpus application is release…Declaratory relief is not available via habeas corpus” (at paragraph 10). [26] The Federal Crown also quotes from the Alberta Court of Appeal decision in Trang v Alberta (Director, Edmonton RemandCentre), 2007 ABCA 263 (“Trang”), for the proposition that declarations “may not be granted where the dispute has become academic,or will have no practical effect on resolving any remaining issues between the parties” (paragraph 15; see also paragraphs 16 – 18 ofTrang). [27] Respectfully, the Alberta jurisprudence relied upon by the Federal Crown is distinguishable and does not support a categoricalban on granting ancillary declaratory relief in the context of a habeas corpus proceeding where the prisoner has already been releasedfrom detention. [28] As to Larente: 1.

In Larente, Henderson, J cites Khela in support of the proposition that “the only remedy that may result from a habeas corpusapplication is release” (paragraph 10) As indicated above, that statement is true, in terms of strictly defining the remedial scope ofhabeas corpus alone. However, in Khela, the Supreme Court of Canada also stresses that a person found to have been unlawfullydetained must be released and his/her liberty restored but does not limit or extinguish the Court’s ability to grant ancillary relief inappropriate circumstances even where the release has already been achieved (paragraphs 27 – 30).

These statements echo similarcomments from the earlier Supreme Court of Canada decision in R v Gamble, (SCC), [1988] 2 S.C.R. 595 (“Gamble”). 2. In support of the further statement at paragraph 10 of Larente that “Declaratory relief is not available via habeas corpus”,Henderson, J. cites Ewanchuk and McCargar v Canada, 2017 ABQB 416 (“McCargar”).[9] However, in my view, Ewanchuk standsprimarily for the widely accepted proposition that vague, declaratory relief involving trivial complaints should not be entertained in thecontext of an application for habeas corpus.

Similarly, McCargar confirms the equally justifiable proposition that habeas corpus shouldnot be exploited as an expedited means of seeking stand-alone declaratory relief without any reasonable connection to the underlyingliberty interests which activate the writ (at paragraph 48). The considerations change significantly where, as here, the underlying factsand relief sought implicate the sort of fundamental issues around personal liberty that arise in cases involving administrative segregationor, as here, dry cells. 3.

Tellingly, in Larente, Henderson, J. left open the issue of when declaratory relief might yet be granted as part of an application forhabeas corpus (where the remedy is otherwise limited to release). He concluded his decision by giving Mr. Larente time to respond to anumber of outstanding questions including “Why, in law, habeas corpus may be used as a basis for the Court to make declarations?” (atparagraph 18). [29] As to Trang, the Alberta Court of Appeal rejected the request for ancillary declaratory relief after the release of detainedprisoners had occurred.

However, the following distinguishing features are important:

1. Trang was expressly decided outside the confines of habeas corpus. By way of background, a number of incarcerated persons filedapplications for habeas corpus to address numerous complaints ranging from the type of entertainment made available to them to thevans being used to transport them to and from judicial proceedings. The Chambers Judge declared certain aspects of the transportationbreached the applicants’

section 7 Charter rights. The issues which concerned the Chambers Judge included such things as protrusions,sharp corners and edges in the inmate compartments of the transportation vans even though, with one exception, there was no directevidence that any of the applicants suffered any inconvenience or discomfort (paragraphs 5-6). The Crown made numerous attempts todismiss the habeas corpus proceedings on the basis that the inmates’ release rendered the matter moot. These efforts failed.

Indeed, anearlier decision of the Alberta Court of Appeal concluded that there remained a “live controversy” between the parties (Trang v Alberta(Director, Edmonton Remand Centre), 2005 ABCA 66). Thus, the arguments around release and mootness within the context of habeascorpus were clearly res judicata and off-limits. In the subsequent decision relied upon by the Federal Crown, the Alberta Court ofAppeal expressly noted that “the issue of mootness should not be re-opened at this time” (paragraph 11); 2. The facts in Trang are extremely unique.

By the time this matter came before the Alberta Court of Appeal, all charges had beenstayed, effectively bringing the underlying criminal proceedings to an end. All of the applicants had been released from custody. Moreover, during the life of the proceedings, one applicant had served his entire sentence and could no longer argue that a breach ofsection 7 rights might assist with sentencing; another applicant had died; and another was deported. In addition, the declaration beingsought by the applicants was criticized as overly generic given the facts that: a.

There were no findings as to which prisoners were transported in which vans on which date; b. There was no finding as to whether any of the applicants were actually exposed to the defects identified by the ChambersJudge; and c. There was no finding that any of them actually suffered any prejudice. Faced with these facts, the Court concluded that: “The relief granted is theoretical and abstract, and of no practical use to any of theapplicants” (at paragraph 17).

The Court further noted the allegations were based on a “thin record” and emphasized that “Declaratoryrelief in abstract inquisitorial proceedings such as these is not appropriate where concrete legal proceedings by directly affected thirdparties can address the issues” (paragraph 19). These facts are clearly distinguishable from the circumstances facing Ms. Adams in thiscase. Among other things, Ms. Adams’ dry cell experience was much more excruciating than the comparatively trivial complaints inTrang. Moreover, and unlike Trang, all parties concede that the deprivation of liberty in Ms.

Adams’ case was unlawful. Further, Ms.Adams remained an inmate at Nova Institution as at the date of the hearing. Finally, Ms. Adams’ position turns exclusively on theconstitutionality of the underlying legislation. [30] Importantly, the recent decision of the Alberta Court of Appeal in Wilcox also confirms a more expansive and generous view. In that decision, Mr. Wilcox was placed in solitary confinement immediately upon his arrival at the Edmonton Detention Centre. Heremained in solitary confinement for 13 months. While still in solitary confinement, Mr. Wilcox filed an application for habeas corpus.

By decision rendered March 22, 2019, the Notice of Application was struck on account of what were said to be fatal deficiencies. Mr.Wilcox appealed. On April 17, 2019, Mr. Wilcox was released from solitary confinement. His appeal was only heard about six monthslater. Because Mr. Wilcox had already been released, the question of mootness arose on appeal. Writing for the Court, Greckol, J.A.concluded at paragraph 27: …despite its mootness, this appeal should be decided.

The gathering evidence and judicial consideration of placement in solitaryconfinement confirm that the issues raised in this appeal are of sufficient importance that they ought to be decided. The rationalearticulated in Khela for deciding that case applies: the placement of prisoners directly into solitary confinement at the ERC is acircumstance that can arise time and again, yet be beyond the reach of appellate review because the challenge to the placement neverreaches appeal as a live issue.

The law needs to be clarified in the instant case. [31] This more expansive view is similar to the perspective taken by the Nova Scotia Court of Appeal in Pratt and Richards. [32] In sum, the issue is not whether the Court has jurisdiction to grant ancillary relief in the context of an application for habeascorpus.

Rather, the issue is how to draw the line separating those rare cases where release in a habeas corpus application may beinsufficient (e.g. the Court should accept jurisdiction to consider ancillary, declaratory relief) and the vast majority of cases where releaseis sufficient, ending the dispute and rendering the matter moot. [33] To be clear, this is not to say that ancillary, declaratory relief is required for (or even relevant to) every application for habeascorpus which involves closed confinement or administrative segregation.

In my view, and as indicated, it would be the rare andexceptional case where release does not bring an application for habeas corpus to an end. By the same token, it cannot be automaticallyand categorically ruled out as a possibility. [34] In the facts of this case and strictly speaking, the remedial reach of habeas corpus was reached when Ms. Adams was releasedfrom dry cell.

Nevertheless, the Court retains the residual jurisdiction to grant declaratory relief in appropriate circumstances. [35] In drawing a line which determines which habeas corpus cases might merit ancillary (including declaratory) reliefnotwithstanding release from detention, the two-step test for mootness set out in the seminal case of Borowski v Canada (AttorneyGeneral), (SCC), [1989] 1 S.C.R. 342 (“Borowski”) applies. [36] The two steps which comprise the Borowski test are: 1.

To determine whether a question of law requires the Court to examine whether an intervening effect has rendered the issues mootand eliminated any live, legal dispute or, alternatively, whether a concrete, live dispute continues to exist as between the parties; and 2. The second step is discretionary in nature. It enables the Court to “decide, in the exercise of their discretion, that it is nevertheless inthe interest of justice that the appeal be heard” (Doucet Boudreau v Nova Scotia (Department of Education), 2003 SCC 62 (“Doucet-

Boudreau ”), at paragraph 17 ). [ 37 ] It is the second step of the Borowski test which is normally engaged when the applicant has already been released in the context of an application for habeas corpus . This is consistent with the decision of the Nova Scotia Court of Appeal in Pratt (at paragraph 8 ). While Pratt focussed primarily on the question of procedural fairness, I note a similar conclusion was reached in A.H. v Fraser Health Authority where broader constitutional issues were also raised within the context of an application for habeas corpus .

Warren, J. concluded at paragraph 127: For purpose of the habeas corpus aspect of the proceeding, it is not necessary to find that the detention was also unlawful because it was procedurally unfair or unreasonable. F.H.A.'s conduct in detaining A.H. for nearly a year without judicial authorization was a flagrant overstepping of its authority under the AGA [British Columbia’s Adult Guardianship Act ].

It would be pointless to entertain a debate about whether the detention could be justified on grounds that it was carried out in a manner that was procedurally fair or reasonable because both of those inquiries assume the existence of the jurisdiction to detain. For the reasons already expressed, there is no reasonable

interpretation of the AGA that would authorize a designated agency to detain someone, without judicial authorization, for nearly a year. For the reasons expressed below, F.H.A.'s conduct in detaining A.H. was not only procedurally unfair, it also was such as to justify findings of very serious Charter violations. [ 38 ] I note that the second step of the Borowski test is sufficiently robust to consider and weigh the impact of certain additional factors including: 1. The concern around whether the underlying issues are sufficiently important and prone to repetition but evasive of review, as indicated; and 2.

The additional concerns raised by the Federal Crown including: a. The need to ensure that the declaratory remedy remains a rare occurrence in the context of habeas corpus proceedings and is not exploited to pursue complaints around privileges or matters which are far removed from the protected liberty interest and/or trespass upon matters properly pursued through another procedure or forum; and b.

Addressing and balancing the unique procedural and evidentiary problems which arise when litigating Charter issues in the context of an application for habeas corpus . [ 39 ] In C.S.J.L.M. v Nova Scotia (Community Services) , 2019 NSCA 59 (“ C.S.J.L.M. ”), Chief Justice Wood summarized the three basic rationales which inform the second step of the Borowski test and which determine whether the Court will exercise its discretion to hear a matter even if it is deemed moot under the first step of Borowski . They are: 1.

Necessity for an adversarial context which is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome. 2. The importance of conserving scarce judicial resources and considering whether the circumstances of the dispute justify applying those resources to its resolution. 3.

Sensitivity to the courts' adjudicative role and ensuring that it will not intrude into the role of the legislative branch by pronouncing judgments in the absence of a dispute affecting the rights of litigants. [at paragraph 10] [10] [ 40 ] I turn now to apply the three rationales in the second step of Borowski in the specific circumstances of this case. An Adversarial Context and a Live Issue [ 41 ] In my view, a live issue exists as between the parties.

Conflicting positions and vigorous advocacy attests to the ongoing adversarial context. [ 42 ] In Nova Scotia (Community Services) , the Nova Scotia Court of Appeal determined that there was no genuine adversarial context as the parties were largely in agreement on the underlying facts. Intervening amendments to the governing statute further removed any residual controversy (at paragraphs 64 – 65). [ 43 ] By contrast, the parties in this dispute agree only on the fact that, for the purposes of this proceeding, Ms. Adams’ detention in dry cell was unlawful.

As indicated, they disagree on the more critical issue as to why the decision to place Ms. Adams in dry cell detention was unlawful. This controversy sparks a live issue between these parties, the significance of which becomes elevated given the serious consequences associated with the decision to place Ms. Adams in dry cell. [ 44 ] The following chronology briefly summarizes Ms. Adams’ personal experience in dry cell detention and exemplifies the concern expressed in cases such as Pratt , Wilcox, CCCLA and BCCLA : 1. May 2, 2020: Ms.

Adams was caught using methamphetamine (crystal meth) at a community residential facility in Cape Breton and immediately returned to the Nova Institution. Prior to her return, Ms. Adams was subjected to a body scan. At that time, the persons reading and interpreting the body scan images expressed no concerns around contraband being hidden in a body cavity; 2. May 5, 2020: Ms. Adams was caught smoking a tobacco cigarette which she admitted to smuggling into the institution in her vagina. Subsequent testing in Ms. Adams’ residence at Nova Institution suggested the presence of methamphetamine on Ms.

Adams’ personal items, among other things. At that time, personnel at the Cape Breton residential facility were asked to re-check Ms. Adams’ original body scan. This time, they concluded that body scan images revealed multiple, round packages resembling balloons concealed

in Ms. Adams’ vagina. The fact that the prior review of the same body scan did not raise any concern as to the presence of contraband (let alone multiple round packages) was attributed to the inexperience of the person who originally reviewed the images. Nevertheless, it should be noted that subsequent toxicology reports received after Ms. Adams’ release from dry cell expressed the opinion that “it is reasonable to conclude the offender used meta-amphetamine after May 2, 2020” (i.e. after Ms. Adams had actually returned to Nova Institution); 3. May 6, 2020: Armed with the new information suggesting that Ms.

Adams smuggled contraband into the Nova Institution, all parties agree that acting Warden Claude Demers developed the reasonable belief that Ms. Adams had concealed contraband in her vagina. That belief should be viewed in the context of the facts in the preceding paragraph. Setting aside the subsequent decision to keep Ms. Adams in dry cell and notwithstanding Ms. Adams’ insistence that she was not carrying contraband in her vagina while detained in dry cell, the evidence is more than sufficient to justify the parties’ agreement that the Warden’s belief was reasonable in the circumstances.

Based on the Warden’s reasonable belief, he authorized Ms. Adams’ placement in dry cell. He immediately communicated both his decision and the reasons for his decision to Jay Pyke (Correction Service of Canada’s Regional Deputy Commissioner – Atlantic Region) and Adele MacInnes Meagher (Assistant to the Regional Deputy Commissioner – Atlantic Region and former Warden at Nova Institution); 4. May 7, 2020: A mental health clinic note indicated that Ms. Adams was considered low risk for suicide and self injury.

However, it also noted mental health issues including “her disclosed history of suicide attempt her heightened level of anxiety or inability to regulate her emotions effectively without support”. This note was consistent with a Mental Health Triage and Assessment Report also dated May 7, 2020 which confirmed, among other things, “5 suicide attempts by hanging, medication and tying a bag over her head”. That note also confirmed Ms. Adams’ historic and lengthy use of crystal meth. In any event, the clinic note recommended regular monitoring and further recommended that Ms.

Adams “have a chair with the back to perform her grounding exercises when experiencing anxiety”. It does not appear that this small comfort (i.e. a chair to help with her grounding exercises) was offered to Ms. Adams for at least a week. On May 14, 2020, Ms. Adams herself repeated the request for a chair to assist with her grounding exercises; 5. May 9, 2020: A Search Authorization after a 72-hour re-evaluation recommended that Ms. Adams remain in dry cell because there was “no change in information to the original search authorization” and no contraband retrieved; 6. May 10, 2020: Ms.

Adams was observed placing a blanket over her head. Ms. Adams complied with a request to remove the blanket. She was then seen quietly rocking on her bed. Notes taken by prison staff indicate that Ms. Adams also faced “great mental distress” due to the lack of privacy afforded to her when urinating or attempting to have a bowel movement. Later this day, Ms. Adams’ mental health declined further. Staff notes indicate that Ms.

Adams “had difficulty articulating clear responses and appeared to be overwhelmed by interaction staring into the distance rocking grabbing her hair and not responding when asked if she would like to see someone from mental health.” Her condition subsequently improved to the point that she was able to have her first bowel movement while being monitored in the dry cell. No contraband was found at this time or on any other future occasion. Later that day, Ms. Adams had a shower and is then recorded as feeling “almost like a human again”; 7.

May 11, 2020: An observation report from Nova Institution’s health services again noted that a “prolonged stay in such an environment would likely result in a deterioration of the mental stability of this client”; 8. May 12, 2020: Ms. Adams initially consented to an X-ray to disprove the presence of contraband in her vagina and allow for her release from dry cell. However, staff notes indicate the physician refused to proceed on the basis that Ms. Adams’ consent was coerced and invalid because she was “given the ultimatum to go through with this nonmedical procedural or remain in isolation”.

In other words, like and odd, Catch-22 logical maze, Ms. Adams’ overwhelming wish to be released from dry cell somehow prevented her from consenting to a procedure that would allow her to fulfill that wish (i.e. release); 9. May 13, 2020: Ms. Adams was offered a pelvic examination as a means of disproving the presence of contraband in her vagina. Unfortunately, by this time, her mental health had deteriorated to the point that she was unable to process the suggestion. Staff reports from that day describe Ms.

Adams as being “unable to have a coherent conversation” and that she kept repeating “I’m stuck … I’m stuck in the middle … I’m stuck in the middle” and “I don’t know … I don’t know … I don’t know if I am here”. Ms. Adams was also reported to be “talking to somebody” and “speaking incomprehensible words”. A separate mental health clinic note indicated that Ms. Adams was “not able to communicate” and “speaking in a low pressured voice but her speech was nonsensical and disorganized.” This report continued by noting that “Ms.

Adams also seems to be responding to possible tactile hallucinations in that she was continuously rubbing her hands up and down her arms however this could be also be an attempt to self soothe”. It concluded by describing Ms. Adams as being in a dissociative state “silently staring at the wall and twirling a strand of her hair”. She was said to be “pale, eyes were red and hair was messy”. Subsequent reports written later that day suggest an improvement in her condition; 10. May 14, 2020: Ms. Adams was prescribed clonazepam on the basis that it was “essential to prevent disassociation and suicide attempts”. 11.

May 15, 2020: Ms. Adams sat up on the edge of her bed started rocking and appeared to be upset. On this occasion, staff notes record Ms. Adams as saying she felt “stuck in a box” and upset that everything she wanted to do had to be authorized. She was offered yard time but declined the offer. She was also offered use of the shower but declined. She is reported to have eventually broken down crying, saying “I can’t do this. I take my glasses off and can’t see anyone and I just hear people everywhere.” The same report then describes Ms.

Adams bending over in the dry cell with her arms folded across her chest, quietly crying; 12. May 17, 2020: A mental health clinic note indicates that Ms. Adams was sitting on the edge of her bed rocking from side to side crying and pulling at her hair. The same note states that Ms. Adams “was speaking aloud saying they might as well just kill me now, I just want to die.” Ms. Adams was described as appearing distressed and disheveled; and complained of “living like a caged animal”; 13. May 18, 2020: Nova Institution staff report that Ms. Adams contemplated writing suicide notes but tore them up.

Staff notes further say that Ms. Adams “shared the dark thought that if she were to die in custody an autopsy would be completed and she would be

exonerated of the accusations being made against her.” 14. May 20, 2020: A pelvic examination is conducted by a qualified medical practitioner and with Ms. Adams’ consent. Unlike the earlier attempt to conduct an X-ray, no issues were raised regarding Ms. Adams’ ability to consent to this examination. The physician confirmed that there was no contraband in Ms. Adams’ vagina. A bowel movement later that day again tested negative for any contraband; 15. May 22, 2020: Acting Warden Demers authorizes Ms. Adams’ release from dry cell. [ 45 ] Suffice it to say that Ms.

Adams’ complaints are neither abstract nor trivial nor minor. Rather, they touch upon matters that strike at the heart of the sort of fundamental rights habeas corpus was created to protect. And it bears repeating that there remains an important, legitimate dispute over whether her unlawful detention was the result of unconstitutional legislation or “maladministration”. [ 46 ] Further, even though Ms.

Adams was released from dry cell shortly after this application was filed, she remained an inmate and vulnerable to the uncertainties of the dry cell process identified in this proceeding. [ 47 ] At this point, it is appropriate to address one of the Federal Crown’s primary concerns. The process of habeas corpus is accelerated and highly specialized. Applications for habeas corpus are given top priority and race to the top of the Court’s docket.

Nova Scotia Civil Procedure Rule 7.13(1) states: “ Habeas corpus takes priority over all other business of the court.” [11] [ 48 ] The Federal Crown submits that litigating complex disputes, including the constitutionality of legislation, requires a degree of time necessary to assemble expert evidence and permit sober reflection.

The Federal Crown notes that the fast-track speed with which applications for habeas corpus are litigated cannot easily coexist with the more relaxed timeframes available under the Civil Procedure Rules to exchange expert opinion evidence in advance of a hearing. (See Nova Scotia Civil Procedure Rule 55) [ 49 ] Beyond that practical issue of time, the Federal Crown also relies upon Toure v Canada (Public Safety & Emergency Preparedness) , 2018 ONCA 681 , where the Ontario Court of Appeal expressed concern that the “stark contrast” between: 1.

On the one hand, a typical application for habeas corpus where the onus falls largely upon the authorities to justify the legality of the detention; and 2.

On the other hand, a Charter claim where the onus falls, in the first instance, upon the applicant to establish an evidentiary foundation sufficient to support the high bar associated with this type of proceeding. [ 50 ] As the Ontario Court of Appeal wrote in Toure , the difference “makes it difficult to hear both habeas corpus and Charter claims together in an expeditious manner while also providing the necessary evidentiary foundation” (at paragraph 79). [ 51 ] To illustrate the evidentiary point, the Federal Crown describes the evidence before this Court as scant and devoid of any expert opinion, particularly when compared against the extensive record (including expert reports) filed in: 1.

The case of CCCLA where the Ontario Court of Appeal considered certain provisions of the CCRA authorizing administrative segregation and concluded that “prolonged administrative segregation of any inmate, which is segregation for more than 15 consecutive days, does not survive constitutional scrutiny under

section 12 [of the Charter ].” (paragraph 4); 2. The case of BCCLA where the British Columbia Court of Appeal agreed, among other things, that sections 31 – 33 and 37 of the CCRA were of “no force and effect because those provisions authorize: (

a) the prolonged, indefinite administrative segregation of inmates: (

b) institutional heads to sit in review of their own segregation decisions; and (

c) the internal review of segregation decisions.” In this decision the Court further declared that “inmates have a constitutional right to be represented by counsel at segregation review hearings” (at paragraph 5). [ 52 ] However, respectfully, in the particular circumstances of this case, the concerns raised by the Federal Crown (while legitimate) are insufficient to require the Court to decline jurisdiction. My reasons include: 1. The key threshold issue which divides the parties turns on a question of statutory

interpretation. The Federal Crown says that the impugned provisions of the CCRA must be interpreted so as to exclude the possibility of women being placed in dry cell for concealing contraband in their vagina. The Federal Crown explains that “Section 51 [an impugned dry cell provision of the CCRA ] requires the “expectation that the contraband will be expelled”. This means that a dry cell can only be used to recover contraband ingested or hidden in the rectal area.” [12] Therefore, the impugned dry cell provisions must necessarily exclude contraband concealed in a vagina even though: a.

Section 46 of the CCRA specifically defines “body cavity” as including either the “rectum or vagina” (emphasis added); b.

Section 51 of the CCRA authorizing dry cell detention does not refer to contraband being concealed in the “rectum” alone. It refers to “body cavity” which, again, is statutorily defined as including rectum or vagina. Under this

interpretation, placing Ms. Adams in dry cell is better characterized as “maladministration” by Nova Institution staff – not constitutionally defective legislation. I return to the merits of this argument below. However, on the preliminary jurisdictional issue, I am satisfied that the more narrow question of statutory

interpretation can be fairly adjudicated in this proceeding; 2. While the habeas corpus process is normally an accelerated process, that was not the case here. Ms. Adams was released from dry cell on May 22, 2020 - shortly after she filed her application for habeas corpus on May 19, 2020. Any initial urgency vanished when Ms. Adams was released from dry cell. The parties subsequently appeared in Court and agreed upon a

schedule to hear this matter. The initial hearing date was October 5, 2020, subsequently adjourned to November 9, 2020 – almost six months after the Notice was originally filed. All parties were afforded both an opportunity to establish a mutually acceptable

schedule and a timeline which unfolded

over months, not days. The

schedule is more relaxed than would be acceptable in a typical habeas corpus application. Moreover, ifeither party sought additional time to introduce expert opinion evidence, they had the opportunity to make that request. Neither sideexpressed any specific concern regarding the schedule; and there is no evidence before me that either party was denied time to file expertopinion evidence or was forced to accept deadlines which they considered prejudicial; 3.

The Federal Crown correctly notes that unique procedural and evidentiary problems arise when litigating Charter claims in thecontext of an application for habeas corpus. In the circumstances of this case, conflicting evidentiary burdens are mitigated because theFederal Crown admits Ms. Adams’ detention was unlawful for the purposes of this proceeding; and 4. In written submissions, the Federal Crown says that “there are more appropriate procedures, such as tort or Charter challenge,available to Ms.

Adams”[13] However, when asked during oral argument if the Federal Crown reserved the right to allege res judicata ifMs. Adams discontinued the current application and commenced a different procedure, counsel for the Federal Crown indicated that shedid not have instructions. Thus, the merits of Ms.

Adams’ constitutional claims were placed at risk (and might become evasive ofreview) if the Court declined jurisdiction. [53] Related to this issue, the Supreme Court of Canada has cautioned that “Charter decisions should not and must not be made in afactual vacuum.” (In MacKay v Manitoba, (SCC), [1989] 2 SCR 357, referred to as “MacKay”, at paragraph 9) TheCourt further observed that “In light of the importance and the impact that these decisions may have in the future, the Courts have everyright to expect and indeed insist upon the careful preparation and presentation of the factual basis in most Charter cases.” (MacKay, atparagraph 8) [54] In MacKay, the appellants challenged the constitutionality of certain provisions in Manitoba’s Elections Finances Act, S.M.1982-83-84, c. 45.

The Supreme Court of Canada observed that “there has been not one particle of evidence put before the Court” (atparagraph 12). The Court further observed that the appellants, in oral argument, relied mainly upon “a number of unsubstantiatedpropositions”. At trial and before the Manitoba Court of Appeal and again at the Supreme Court of Canada, the constitutional challengewas dismissed. [55] Distilled to its essence, MacKay stands for the proposition that constitutional challenges devoid of evidence and a properfactual foundation will be dismissed. That is a risk necessarily borne by the party advancing the claim.

These issues speak to thestrength (or weakness) of Ms. Adams’ claims as a relevant factor in deciding whether to accept jurisdiction. The Federal Crown’swritten submissions implicitly acknowledge this conclusion. At paragraphs 52 and 53 of their written submissions filed September 29,2020, the Federal Crown states: The presentation of facts is essential to a proper consideration of Charter issues. A decision on the Charter issues raised by Ms. Adamsmust be carefully considered in light of the importance and impact the decision from this court could have in the future.

Any Charter decisions made in the case at hand would be made in the factual vacuum. Ms.

Adams cannot simply import factual findingsfrom the British Columbia Court of Appeal in [British Columbia Civil Liberties Association v Canada (Attorney General), 2018 BCSC62] and from the Ontario Court of Appeal in Corporation of the Canadian Civil Liberties Association v Her Majesty the Queen, 2019ONSC 243], two cases that dealt with different sections of the CCRA and that will undergo a review of the Supreme Court of Canada. [56] The Federal Crown repeats that argument at paragraphs 21 and 22 of its written submissions filed October 30, 2020: The Applicant further cites BCCLA and CCLA and then makes the unfounded and not relied upon evidence extrapolation that theconclusion of the course in these jurisdictions as they relate to administrative segregation apply to a dry cell placement.

The Applicant’s allegation of systemic maladministration is based on scant evidence. [57] In short, the Federal Crown criticizes the lack of evidence presented by Ms. Adams and describe it as neither cogent norpersuasive. They suggest that the record before the Court is incapable of sustaining Ms. Adams’ Charter claims. Respectfully, these arearguments which respond to Ms. Adams’ Charter claims. They are not a basis for declining jurisdiction to determine those claims.

Scarcity of Judicial Resources [58] One of the Federal Crown’s arguments is that: “Where concepts specific to administrative law are sufficient to resolve adispute, it is unnecessary to resort to the Canadian Charter. It is not useful to use the Court’s resources to delve into Charter questionssince the question of legality of the detention has been resolved.”[14] In support of this conclusion, the Respondents rely uponparagraph 135 from the decision of Deschamps and Abella, JJ. in Multani v Commission Scolaire Marguerite-Bourgeoys, 2006 SCC 6(“Multani”).

At paragraph 135, Deschamps and Abella, JJ noted: The scope of the Canadian Charter is broad.

Section 52 guarantees the supremacy of the Constitution of Canada. This incomparable toolcan be used to invalidate laws that infringe fundamental rights and are not justified by societal goals of fundamental importance.However, where the concepts specific to administrative law are sufficient to resolve a dispute, it is unnecessary to resort to the CanadianCharter. [59] Respectfully, the Federal Crown’s reliance on this passage in Multani is misplaced.

The majority decision was written byCharron, J. (McLachlin C.J.C., Bastarache, Binnie and Fish JJ. concurring); and it did not share Justice Deschamp’s view on the primacyof administrative law in the circumstances. For the majority, Charron, J. concluded that the administrative law standard was notapplicable and, instead, focussed on constitutional principles to determine the case.

For example, at paragraph 16, she wrote: With respect for the opinion of Deschamps and Abella JJ., I am of the view that this approach could well reduce the fundamental rightsand freedoms guaranteed by the Canadian Charter to mere administrative law principles or, at the very least, cause confusion betweenthe two. It is not surprising that the values underlying the rights and freedoms guaranteed by the Canadian Charter form part — andsometimes even an integral part — of the laws to which we are subject. However, the fact that an issue relating to constitutional rights is

raised in an administrative context does not mean that the constitutional law standards must be dissolved into the administrative lawstandards. The rights and freedoms guaranteed by the Canadian Charter establish a minimum constitutional protection that must be takeninto account by the legislature and by every person or body subject to the Canadian Charter. The role of constitutional law is thereforeto define the scope of the protection of these rights and freedoms. An infringement of a protected right will be found to be constitutionalonly if it meets the requirements of s. 1 of the Canadian Charter.

Moreover, as Dickson C.J. noted in Slaight Communications Inc. vDavidson, (SCC), [1989] 1 S.C.R. 1038 (S.C.C.), the more sophisticated and structured analysis of s. 1 is the properframework within which to review the values protected by the Canadian Charter (see also Attis v New Brunswick District No. 15 Boardof Education, (SCC), [1996] 1 S.C.R. 825 (S.C.C.) [hereinafter Ross], at para. 32).

Since, as I will explain below, it isthe compliance of the commissioners' decision with the requirements of the Canadian Charter that is central to this appeal, it is myopinion that the Court of Appeal's analysis of the standard of review was inadequate and that it leads to an erroneous conclusion. [60] Finally on the issue of scarce judicial resources, in Nova Scotia (Community Services), the Nova Scotia Court of Appealelaborated on the second element by noting at paragraph 67 that: The lack of an adversarial context informs the second rationale.

The courts are full of live controversies, with real issues impacting uponthe lives of real litigants. It is hardly a secret that the administration of justice is often criticized for backlogs and delay. Before adding atime consuming constitutional reference to the docket, it is "preferable to wait and determine the point in a genuine adversarial context”. [61] The existence of a genuine adversarial context similarly informs whether scarce judicial resources should be expended toresolve the dispute.

I am satisfied that resolving the legal uncertainty which exists here will achieve a tangible and practical benefit forthese parties and others within the prison system. The issues raised by the parties and the significance of these issues within thecorrectional system are important and certainly sufficient to merit the Court’s attention. Not Intruding on The Legislative Branch by Pronouncing Judgments in the Absence of a Genuine Dispute [62] There is an important issue with respect to statutory

interpretation which I address below. However, resolution of that issue isdetermined on the basis of the governing law; within the context of the Court’s proper role as the adjudicative branch of government;and, importantly, within the context of a genuine dispute. Conclusion on Declaratory Relief (and Constitutional Claims) in an Application for Habeas Corpus [63] In the particular circumstances of this case and for the reasons given above, I am not prepared to decline jurisdiction todetermine the Charter issues raised by Ms. Adams.

In my view, this is one of the rare and exceptional cases in which the applicantseeking habeas corpus is entitled to seek declaratory relief. Issue 2: Interpreting the Term “Body Cavity” Under Sections51 and 52 of the CCRA [64] The Federal Crown argues that: 1. Dry cell detention was never intended as a response to contraband concealed in a vagina because the impugned sections of theCCRA, if properly interpreted, do not contemplate that possibility.

Put slightly differently, the Federal Crown argues that dry celldetention is for the purpose of retrieving contraband which is reasonably suspected of being concealed in the rectum only, and not thevagina. In the context of the dry cell provisions, that statutory intention is achieved by excluding “vagina” from the statutory definitionof “body cavity” under

section 46 of the CCRA. I discuss the Federal Crown’s arguments in greater detail below. However, very briefly,the Federal Crown says that for the purposes of dry cell detention under

section 51(b), the statutory definition of “body cavity” mustnecessarily narrow to mean “rectum” only, with the words “or vagina” being eliminated. The chain of reasoning is: a. Dry cell detention under

section 51(

b) requires an “expectation that the contraband will be expelled”; and b. There can be no legitimate expectation that contraband could be expelled by a vagina; c. Therefore, for the purposes of

section 51(

b) alone, the statutory definition of “body cavity” in

section 46 mustnecessarily be restricted to meaning rectum, and cannot include vagina. 2. The decision to detain Ms. Adams in dry cell and leave her there for more than 15 days was an isolated and localized (not systemic)incident of “maladministration”. Nova Institution staff failed to properly interpret and administer the dry cell provisions of the CCRAwhen they placed Ms. Adams in dry cell under the suspicion of concealing contraband in her vagina.

The Federal Crown states that thisfailure does not render the impugned provision of the CCRA unconstitutional because the Supreme Court of Canada’s decision in LittleSisters Book & Art Emporium v Canada (Minister of Justice), 2000 SCC 69 (“Little Sisters No. 1”) stands for the proposition that if animpugned provision is capable of being administered constitutionally, it is constitutionally valid. I begin by reviewing the statutory scheme in the CCRA.

I then consider the relevant principles of statutory construction applied directlyto the impugned dry cell provisions, including an assessment of the presumption around constitutionality. I conclude with anexamination of the Federal Crown’s arguments regarding Little Sisters No. 1 and the obligation to exercise a statutory grant of discretionin a constitutional manner. The Statutory Scheme [65] The CCRA describes the purposes of the correctional system and the paramount consideration of the correctional service at

sections 3 and 3.1 . The system’s purpose, as set out at

section 3 , is to “contribute to the maintenance of a just, peaceful and safe society” by “(

a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and (

b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.” [ 66 ]

Section 3.1 provides that “The protection of society is the paramount consideration for the Service in the corrections process.” [ 67 ]

Section 4 enumerates the “principles that guide the Service in achieving the purpose referred to in

section 3”.

They include: 1. “the Service uses the least restrictive measures consistent with the protection of society, staff members and offenders” (section 4(c)); 2. “offenders retain the rights of all members of society except those that are, as a consequence of the sentence, lawfully and necessarily removed or restricted” (section 4(d)); and 3. “correctional policies, programs and practices respect gender, ethnic, cultural, religious and linguistic differences, sexual orientation and gender identity and expression, and are responsive to the special needs of women, Indigenous persons, visible minorities, persons requiring mental health care and other groups” (section 4(g)). [ 68 ] These broad purpose provisions contribute to the

interpretation of the specific set of provisions governing the search for, and seizure of, contraband – including the use of dry cells. [ 69 ] The CCRA makes it clear that possession of contraband is clearly prohibited and constitutes a

summary conviction offence (

Section 45 ). [ 70 ] Sections 46 – 67 of the CCRA are broadly entitled “Search and Seizure” and, generally speaking, contain the statutory authorization to: 1. Search for contraband in a variety of circumstances and using a variety of methods including non-invasive search, frisk search, strip search, body cavity search, X-ray, dry cell, and urinalysis; and 2. Seize contraband, when found. [ 71 ] It is apparent that Parliament intended to craft a coordinated and internally cohesive approach. [ 72 ] “Contraband” is broadly defined in section 2(1) as meaning: “(

a) an intoxicant, (

b) a weapon or a component thereof, ammunition for a weapon, and anything that is designed to kill, injure or disable a person or that is altered so as to be capable of killing, injuring or disabling a person, when possessed without prior authorization, (

c) an explosive or a bomb or a component thereof, (

d) currency over any applicable prescribed limit, when possessed without prior authorization, and (

e) any item not described in paragraphs (

a) to (

d) that could jeopardize the security of a penitentiary or the safety of persons, when that item is possessed without prior authorization; ( objets interdits )” [ 73 ] The “Search and Seizure” sections may be broken down further as follows: 1.

Definitions :

Section 46 contains a number of

definitions applicable to the process of searching for and, if found, seizing contraband; 2. Searches : The following subheadings deal with searches within a penitentiary setting: a. Searches of Inmates: Sections 47 – 57; b. Searches of Cells:

Section 58; c. Searches of Visitors: Sections 59 – 60; d. Searches of Vehicles:

Section 61 e. Warnings to be Posted:

Section 62; and f. Searches of Staff: Sections 63 – 64. It is important to distinguish the statutory authority to search for contraband within a prison setting from the statutory authority to seize contraband. Certain provisions reference seizing contraband as a statutory precondition for conducting a search. For example,

section 52 authorizes the “body cavity search” of an inmate where, among other things, it is “necessary in order to find or seize the contraband” (emphasis added). Similarly, section 53(1)(

b) permits a frisk search or strip search of all inmates in a prison where, among other things, it is necessary in order to seize the contraband and avert the danger” to human life or safety or to the security of the penitentiary in accordance with section 53(1)(a). However, to be clear, these sections simply clarify the conditions under which a search may occur withing a prison setting. The statutory authority to physically seize contraband is addressed in

section 65, discussed below.

3. Seizure : Section 65(1) confers the broad authority “to seize contraband found in the course of a search conducted pursuant to sections 47 to 64, except a body cavity search or a search described in paragraph 51 (a) [an x-ray].” [ 74 ] Focusing more closely on the issue of contraband concealed in a “body cavity”, the statutory process of searching and seizing may be summarized as follows: 1. The CCRA only addresses the process for searching and seizing contraband concealed in the body cavity of an inmate. It does not extend to prison staff or visitors to the prison, for example; 2. The terms “body cavity” and “body cavity search” for the purposes of sections 47 to 67 are defined at

section 46 as follows: “’body cavity’ means the rectum or vagina”; “’body cavity search’ means the physical probing of a body cavity, in the prescribed manner...” 3. The specter of carrying contraband into a prison though a “body cavity” first emerges at

section 50 with the provision that “[w]here a staff member believes on reasonable grounds that an inmate is carrying contraband in a body cavity, the staff member may not seize or attempt to seize that contraband, but shall inform the institutional head.” 4. There are three statutory options to find (or search for) the contraband: X-ray; dry cell; and body cavity search. Two (X-ray and body cavity search) require inmate consent, among other things. The third (dry cell) does not involve consent from the inmate. The more specific statutory requirements: a.

X-ray (section 51(a)): Where an institutional head is satisfied that there are reasonable grounds to believe an inmate “has ingested or is carrying contraband in a body cavity”, the institutional head may authorize in writing the use of an X-ray machine by a qualified X-ray technician. However, consent must be obtained from both the inmate and a qualified medical practitioner (section 51(a)); b. Dry cell (section 51(b)): An institutional head may authorize dry cell detention where the following three statutory conditions are met: i.

There are reasonable grounds to believe an inmate has ingested or is carrying contraband in a body cavity; ii. There is an “expectation that the contraband will be expelled”; and iii. Notice must be given to “the penitentiary’s medical staff” when the institutional head authorizes dry cell detention. I note that dry cell detention does not require either the inmate’s consent or the involvement of a qualified medical practitioner. In fact, dry cell appears as the only direct and clear option available to an institutional head to seize contraband carried in a body cavity without inmate consent; and c.

Body Cavity Search (section 52): Where an institutional head is satisfied that there are reasonable grounds to believe an inmate is carrying contraband in a body cavity, the institutional head may also authorize in writing a body cavity search. However, the following additional conditions apply: i. The institutional head must be satisfied there are reasonable grounds to believe a body cavity search “is necessary in order to find or seize the contraband”; ii. The body cavity search must be “conducted by a qualified medical practitioner”: and iii. The inmate’s consent must be obtained. 5.

As to the process of seizing contraband, section 65(1) generally enables a staff member to seize contraband “ found in the course of a search conducted pursuant to sections 47 to 64”. This obviously includes contraband carried or concealed in a “body cavity” under sections 51 and 52 . However, the following two exceptions apply: a. The X-ray procedure under

section 51(

a) is restricted to finding contraband in a body cavity. A staff member may not seize contraband found by x-ray (section 65(1)); b. A staff member may not seize contraband found during a body cavity search. Rather, “A medical practitioner conducting a body cavity search may seize contraband or evidence relating to a disciplinary or criminal offence found in the course of that search.” (section 65(2), emphasis added) 6. No qualifications or exceptions apply with respect to the ability of a staff member to seize contraband found during dry cell detention. Interpreting the Statutory Provisions Regarding Dry Cell Detention

[75] The caselaw contains little commentary on the meaning of the dry cell provisions in the CCRA. [76] In R v Johnson, 2016 ONSC 3947, the court remarked that a dry cell “is, as its name implies, a cell without water. It is a smallcell with no toilet and no sink... Prisoners who are to be searched are placed in a ‘dry cell’ to ensure there is no destruction or eliminationof evidence from the person or clothing of the prisoner” (at paragraph 37).

In R v Multani, 2017 BCPC 210, the Court said, “The purposeof such a placement is to prevent the prisoner from flushing anything down the toilet should the prisoner excrete anything while incustody” (at paragraph 31). [77] Unfortunately, these descriptions as to the purpose of dry cell detention do not assist in interpreting the statutory preconditions(or restrictions) surrounding the decision to authorize dry cell detention under

section 51(b). [78] In my view, it necessary to turn to principles of statutory construction, beginning with Driedger’s “modern principle”: “Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context, in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” (Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (LexisNexis, 2014) at §2.1 (“Sullivan on the Construction of Statutes”). Iacobucci, J affirmed this principle in Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 , [2002] 2 SCR 559 atparagraphs 26 – 30). [79] The point of departure is the statutory wording. Recall that dry cell detention under

section 51(

b) requires that each of thefollowing conditions be met: 1. “reasonable grounds to believe that an inmate has ingested contraband or is carrying contraband in a body cavity”; 2. “the expectation that the contraband will be expelled”; and 3. “notice to the penitentiary medical staff”. [80] Again, it is agreed that the institutional head had a reasonable belief Ms. Adams was carrying contraband in her vagina. Furthermore, under

section 46, “’body cavity’ means vagina or rectum”. In short, there is no confusion or controversy around the needfor reasonable grounds to believe an inmate has ingested or is carrying contraband. However, for the purposes of

section 51(

b) alone,there is a dispute around the meaning of the term “body cavity”. [81] As to the second statutory precondition, there is a dispute over how an institution head develops an “expectation that thecontraband will be expelled” and whether that requirement must necessarily narrow the statutory definition of “body cavity” undersection 46 so that it no longer means “vagina or rectum” but, instead, means “rectum and not vagina”. [82] As to the third statutory requirement, there is no dispute around the meaning or need to notify the penitentiary’s medical staffwhen the institutional head authorizes dry cell detention. [83] Ultimately, the issues can be distilled to the following related questions: 1.

How does an institutional head develop an “expectation” that contraband will be “expelled” for both the initial authorization of drycell detention under

section 51(

b) and, subsequently, for the inmate’s ongoing detention in dry cell? 2. What does it mean to “expel” contraband from a body cavity for the purposes of

section 51(b)? 3. Does the requirement for an “expectation” that the contraband will be “expelled” narrow the statutory definition of “body cavity”for the purposes of dry detention under

section 51(b)? [84] These questions are important given the Federal Crown’s position that “the expectation that the contraband will be expelled”limits both: 1. The term “body cavity” in

section 46 becomes limited to “rectum” alone (and excludes “vagina”) for the purposes of

section 51(b)only; and 2. The process of expelling contraband (and the related expectation that contraband will be expelled) revolves entirely around theinvoluntary movements of the digestive tract. That is, the only permissible “expectation” under

section 51(

b) is one which recognizesthat contraband can only be “expelled” through the digestive tract. [85] In its written submissions, the Federal Crown explains that the reference in

section 51(

b) to an “expectation that the contrabandwill be expelled”: means that a dry cell can only be used to recover contraband ingested or hidden in the rectal area.[15] [86] The Federal Crown repeatedly confirmed this proposed

interpretation in its written submissions: 1. “The proper

interpretation of

section 51 is that it only authorizes a placement in a dry cell where inmates suspected of concealinggoods in their digestive tract.”[16] 2. The dry cell provisions of the CCRA “do not contemplate the placement in a dry cell of a female inmate that is suspected ofconcealing contraband in her vagina.”[17] 3. The “expectation that the contraband will be expelled” in

section 51(

b) of the CCRA:

means that a dry cell can only be used to recover contraband ingested or hidden in the rectal area. The nature of the digestive system makes it so that the placement will not be indefinite. [18] [ 87 ] Respectfully, I am unable to accept the Federal Crown’s proposed, narrow

interpretation of “body cavity” for the purposes of

section 51(

b) alone; with the broader and explicit statutory definition applying everywhere else in the CCRA . This conclusion is supported by the eight reasons which follow. [ 88 ] First, the ordinary meaning of “body cavity” in

section 51 (

b) is precise and unequivocal. It “means rectum or vagina”, in no uncertain terms. Moreover, the

section 46 definition of “body cavity” does not appear in the general

interpretation provisions (

section 2 of the CCRA ). Rather, the

definitions at

section 46 were specifically and expressly created for the search provisions of sections 47 to 67. Nothing in

section 51 , or anywhere else in the CCRA , suggests that the clear and express definition of “body cavity” becomes narrower in

section 51 (

b) than in any other provision. [ 89 ] Second, the Federal Crown acknowledges that the statutory definition under

section 46 (i.e. that “’body cavity’ means rectum or vagina”) applies consistently through the CCRA . However, the Federal Crown argues, this meaning suddenly splinters into two different meanings in

section 51 : the consistent, statutory meaning for

section 51 (a) (use of an X-ray machine) but a different, more narrow meaning under

section 51 (b) (dry cell). Respectfully, if the legislature had intended that “body cavity” meant one thing for

section 51 (

a) and another thing for

section 51 (b), it would not have used the same term in the

preamble for both subsections; suggesting the same term applies equally to (and has a consistent meaning for) both subsections. [ 90 ] On this, there is nothing in the broad definition of “contraband” (section 2(1)) that would exclude carrying contraband in the vagina. Nor could there be because even the Federal Crown acknowledges that certain provisions of the search and seizure provisions contemplate the possibility that “contraband” could be carried in the vagina (see, for example, sections 51 (

a) and 52). [ 91 ] Third, when interpreting a statutory definition, Sullivan on the Construction of Statutes says, “[t]he legislature dictates that, for the purpose of interpreting certain legislation, the defined term is to be given the stipulated meaning.” (at §4.31) [ 92 ] In the case of an exhaustive definition, “generally introduced by the verb ‘means’”, Sullivan on the Construction of Statutes confirms that “the statutory definition displaces any understanding of the term based on dictionary

definitions or linguistic intuition.”(at §4.34) [ 93 ] The definition of “body cavity” in

section 46 is an exhaustive one. A “body cavity” is one of two things: either a rectum or vagina. There is no language to the effect of the word “includes” that might denote a non-exhaustive definition ( Sullivan on the Construction of Statutes at §§4.38-39). Nor is there any language to suggest that the statutory definition narrows for

section 51 (b) (dry cell) alone but is otherwise consistent throughout the statute. [ 94 ] The

Interpretation A

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