Sandeson v. Nova Scotia (Attorney General), 2022 NSSC 340

SUPREME COURT OF Nova Scotia Citation: Sandeson v. Nova Scotia (Attorney General) , 2022 NSSC 340 Date: 20221201 Docket: Hfx No. 507045 Registry: Halifax Between: William Michael Sandeson Applicant v. The Attorney General of Nova Scotia, and The Executive Director of Correctional Services Respondents Decision Judge: The Honourable Justice Peter P. Rosinski Heard: October 20, 2022, in Halifax, Nova Scotia Counsel: William Sandeson, self-represented Applicant Myles Thompson, for the Respondents By the Court: I - Introduction [ 1 ] In August 2020, Mr.

Sandeson, a former Dalhousie University medical student, was facing a re-trial in relation to a charge of first-degree murder (retrial ordered by court in 2020 NSCA 47 , issued June 17, 2020). [1] [ 2 ] Pending that re-trial, he had been remanded to the Central Nova Scotia Correctional Facility [“Burnside Jail”]. At present, he remains remanded on the first-degree murder charge. [ 3 ] Mr. Sandeson was cited in a disciplinary report of August 24, 2020 for having breached institutional rules: “disobey a lawful order”, and “threaten others”. He disagreed with that outcome.

Adjudicator/Deputy Superintendent Tracy Dominix’s August 26, 2020 decision, concluded he was “responsible” on both counts (i.e., a determination of his “responsibility” for the cited “breaches” – that Mr. Sandeson did “disobey a lawful order; and threaten others” – based on Mr. Sandeson’s communicated acceptance to the adjudicator of responsibility for both offences), pursuant to s. 71 of the Correctional Services Act (“ Act ”), SNS 2005, c. 37 . [2] [ 4 ] Pursuant to s. 72 of the Act , Chief Superintendent (“CS”) Scott Keefe, acting in the capacity of Executive Director, rejected Mr.

Sandeson’s appeal of the disciplinary decision rendered August 26, 2020 (in relation to an incident on August 24, 2020), by Adjudicator Dominix. [ 5 ] His decision is the “final” decision permitted by s. 73 of the Act . [ 6 ] Consequently, Mr. Sandeson filed a Notice of Judicial Review in this court on January 21, 2022. [ 7 ] He is requesting that this court quash a February 8, 2021 decision of CS Keefe (based on the grounds in his Application). [ 8 ] I have carefully reviewed the Record, the affidavit evidence and testimony of Mr.

Sandeson (whose credibility I found wanting at times) and of CS Keefe (whose credibility I found compelling), the relevant legislation and applicable jurisprudence. [ 9 ] I am satisfied that the decision of CS Keefe to confirm the adjudicator’s decision was “reasonable”, and that Mr.

Sandeson was afforded a sufficient level of procedural fairness throughout the disciplinary process from August 24, 2020, to February 9, 2021. [ 10 ] I am specifically satisfied that CS Keefe did consider the reasonableness of the finding of “responsibility” on the disciplinary report at the adjudication level, and did respond to the arguments that were raised by Mr. Sandeson. [3] [ 11 ] Specifically in relation to the procedural issues, based on the affidavit evidence of the Chief Superintendent generally, and

specifically as contained at paras. 37, 56-84 of his affidavit, as supplemented by his viva voce testimony, I am satisfied that there was a fundamentally fair process throughout the investigation and appeal by Mr. Sandeson of the “threaten others” charge. No material prejudice was occasioned to Mr. Sandeson’s position by any of the procedural steps that were taken by Correctional Services staff. [ 12 ] Adjudicator Dominix properly informed Mr.

Sandeson on August 26 about the allegations arising on August 24, 2020, while he was meeting with Deputy Superintendent (“DS”) Richard Verge, Assistant Deputy Superintendent (“ADS”) Stephen Pothier and Captain William Newhook. She requested, and he offered, his recollection of events. [4] CS Keefe’s confirmation of her decision is reasonable. [ 13 ] I therefore dismiss his application for “an order quashing the decision and substituting a finding of ‘not guilty’ for the offence ‘threaten others’”. II - Background

i) The Events Before August 24, 2020 [ 14 ] While remanded to the Burnside Jail in August 2020, Mr. Sandeson claimed to be experiencing mental health issues. He wished to be in a segregated cell –specifically in the Health Care Unit [“HCU”]. [5] [ 15 ] On August 2, 2020 , Mr. Sandeson wilfully disobeyed a direct order to return to his general population cell. [6] [ 16 ] The circumstances were described as follows [Disciplinary report, Record Tab 2, p. 2]: “The inmate stated that he would not go back to the West Day Room 1.

He stated that he would go on suicide watch if he is forced to go back to the West Day Room 1. He also said that he has mental issues and insists to go to CCU [closed confinement unit, aka: “segregation”]. He also said that he would not check in as PC [protective custody].

The inmate did not appeared [sic] to be assaulted or having any injuries.” [7] [ 17 ] On or about August 2, 2020 , he was temporarily placed in the HCU, to allow for an assessment of his mental state by the staff there. [ 18 ] The staff, and the premises of the HCU itself are supervised directly by the Nova Scotia Health Authority, rather than Correctional Services, which is responsible for the remainder of the Burnside Jail. [ 19 ] As a result of his disobeying a direct order on August 2, 2020, he received a disciplinary citation, or “level”, for breach of a rule.

The citation is the equivalent to being “charged” with violating the correctional institution’s rules. [ 20 ] On August 5, 2020 , Adjudicator Dominix determined that the facts thereof were as follows [Mr. Sandeson did not attend the hearing – see Record Tab 2, p. 3 of 8: where the adjudicator on August 5, 2020 ticked the box “offender refused to participate or could not participate due to safety/security concerns”.

This particular disciplinary hearing is not directly in issue here]: “I find based on a balance of probability that based on the reports submitted by the [correctional] officer, the inmate being moved from the day room to HCU and the supervisor’s investigation, the inmate is guilty [“breached rule”]. [8] [ 21 ] The Activity History Notes of August 17, 2020 , read [as reported by ASD Pothier]: “… states he will hurt another inmate if he returns to a unit .

States that he cannot cope with the situation and needs professional help it is not getting it from our healthcare.… Offered to move offender to IDR and TDR Day Rooms if he qualifies. States he is not right and should not be moved… have been in conversations with healthcare staffing supervisor waiting for information so a better placement can be made.” ii) The events on and after August 24, 2020 [ 22 ] On August 25 2020 , DS Verge issued a Disciplinary Report “level” against Mr. Sandeson: [9] “ Meet with inmate on August 24, 2020, with ADS Pothier and Capt. Newhook.

Discussed placement options, inmate refused all placement options and made indirect threats stating he would hurt someone if placed on a unit. Inmate claims to be hearing voices, healthcare is not supportive of these claims as medical hold has been denied. Inmate has been housed in HCU since 02/08/2020 to provide headspace at own request. Healthcare is not supportive of HCU placement.

Inmate placed in CCU due to these comments and risk of concerns.” [ 23 ] Notably the Activity History Notes from DS Verge created at 2:41 pm August 25, 2020, read as follows [Tab1, p. 22]: Met with inmate in North managers office with North managers Pothier and Newhook. Inmate has been denied medical hold by healthcare services. … Inmate has refused all placement options offered to inmate, inmate has been offered placement in West 1 (general population unit) West 3 (IDR), North 4 (rotational unit).

… Decision and comments: inmate placed in CCU for refusing placement, inmate placed on discipline report. Inmate made statements to this writer, ADS Pothier and Capt. Newhook that placement around anyone will resort in his use of violence as he has continued to have thoughts of hurting other inmates. [ 24 ] The following Activity History Notes read: [August 26, 2020] inmate Sandeson sanctions have been provided, at this time inmate is continuing to refuse placement, inmate at this time remains in CCU on his own request on administrative hold. [August 27, 2020] spoke with inmate during inspection.

Inmate states he is hearing voices… continues to refuse all placement offered and is currently housed in CCU at his own request… Inmate stated during meeting with North unit managers that if housed with inmate he will attempt to harm whoever he is around, this inmate was placed on a discipline report for threats and remains in CCU as placement cannot be determined at this time. [September 1, 2020] spoke with inmate during inspection. … Inmate at this time continues to refuse placement offered by that facility. [ 25 ] On August 26, 2020, Adjudicator Dominix determined that the facts of the August 24, 2020 meeting between Correctional staff DS Verge, ADS Pothier and Captain Newhook and Mr.

Sandeson were as follows [based on DS Verge’s comments in the Form’s “Steps taken by the investigator to establish the facts surrounding the incident”

section – Tab 3, p. 2 of 8]: You are alleged to have breached the following rule: disobey any lawful order, threaten others Description of the breach of the rule: While conducting an interview with the above inmate he was told he would be removed from healthcare cells because the healthcare staff had no medical hold on him. He was given the opportunity to choose any day room to move to, but he refused. He was ordered by this officer [(D Supt Verge) see p.2 of 8 at Tab 3] and he stated he was homicidal, and he would kill another inmate if he was placed on a living unit.

He stated he had no particular person he was angry with, but he would choose a victim or multiple victims and just see how many he could get before staff stopped him. It appears Mr. Sandeson is using these threats to remain in isolation, which staff have explained is not healthy for his mental health. … Hearing by adjudicator The following steps were completed: Met with offender Explained the contents of the investigation and discipline report Listened to the offender’s explanations … Offender admits [offences] as written hearing suspended – proceed to

section 4

Summary of hearing: Issues: Inmate states that he has not been in HCU since June but rather July. Inmate Sandeson states that he did make comments but cannot recall exactly what was said but said them so that he could remain in isolation. Inmate stated he was guilty for disobeying direct order. Facts – I find that… The disciplinary report was detailed and accurate. The follow-up conducted supports the level. Reason for finding – I find based on a balance of probability that… Based on the report and follow-up by the Superintendent as well as the conversation with the inmate during the hearing; the inmate is guilty . Disposition

[given the choices of “breached rule”; “admitted to breach of rule”; “did not breach rule…” The adjudicator checked off:] Breached Rule [10] Penalty imposed by adjudicator Confined to segregation for 3 days less 2 days already confined, equals 1 day remaining. [11] III - The Appeal Process [12] [ 26 ] Mr. Sandeson filed a notice of appeal from Adjudicator Dominix’s decision. [13] [ 27 ] Given the importance that Mr.

Sandeson attributes to the “threaten others” conclusion of August 26, 2020, I find it dubious that after filing an appeal on September 3, 2020, he took no sooner action before he re-filed his appeal in January 2021 [see Tab 8, p. 1 and Tab 5, p. 1 Record]. [ 28 ] The contents of his January 2021 Notice of Appeal included 2 handwritten pages of appeal grounds which included: Reasons for appeal – following a meeting with CNSCF administration today, it came to light that my original appeal filed September 3, 2020, has gone missing and was not uploaded to JEIN. This is a re-filing of that appeal.

Please see attached sheet with the reasons for the appeal of a disciplinary report for “threaten others”. Sandeson should be found not guilty for the disciplinary report – level III of “threaten others”, for a number of reasons.

Each enumerated reason is sufficient on its own to merit a finding of not guilty, but it is argued, that in compiling each point raised by the inmate, a finding of not guilty is required to address the pattern of neglect of procedure. 1) The inmate was not provided a copy of the disciplinary report prior to his adjudication hearing, harming his ability to organize and prepare a defence. 2) The disciplinary report was neither signed nor initialed by the reporting correctional staff. 3) The inmate was not provided a copy of the adjudicator’s findings until the inmate made a specific request for same on September 3, 2020. 4) The disciplinary report improperly checks the box “offender admits as written”, contrary to the inmate entering a plea of not guilty for the offences “threaten others” as noted by Adjudicator Dominix in her notes following the hearing.

Sandeson pled guilty only to the offence of “disobey any lawful order”. 5) Sandeson filed an appeal of the offences the same day that he was made aware of both the “description of the breach of the rule” and the errors in the completion of the form (points 1-4), filed September 3, 2020. Sandeson has never received a response to his appeal, nor have staff been able to subsequently locate the appeal document itself. 6) Sandeson contests the specific characterization and details of the offence of “threatens others”. Sandeson raised this issue during the hearing (see notes of Dominix).

Despite this denial of guilt, Sandeson was not advised of his ability to call witnesses – despite the step being listed on the disciplinary report [notably, this box is indeed left empty on the disciplinary report]. 7) The offence of “threaten others” is not satisfied by the report writer’s allegations. Even at their worst, which Sandeson nevertheless decries as false, the comments are neither sufficiently specific or believable. Indeed, staff continued to pressure Sandeson to move to a day room after he made inflammatory comments, belying the staff’s real appreciation of the danger posed by Sandeson.

Such an attitude is evident in the last line of the description where the writer includes “it appears Mr. Sandeson is using these threats to remain in isolation”. 8) Sandeson is allowed to request a placement in administrative segregation according to the Correctional Services Act . Sandeson did raise this issue in a prior appeal and during the interview in question. Staff noted and reported to Sandeson that they had collected intelligence revealing a risk to his personal safety. The inmate’s behaviour must be considered in this context.

For all of these reasons, the inmate Sandeson implores you to overturn the finding of guilt for the offence of “threatens others” and amend the description of the breach of the rule to include only the first two sentences as they are sufficient to support the plea and finding of guilt for the offences “disobey any lawful order”. [ 29 ] I note Mr. Sandeson also included an addendum: “Inmate appeal: disciplinary report – threaten others” on February 4, 2021. I infer that CS Keefe also considered this communication from Mr. Sandeson. IV - The Decision Under Review [ 30 ]

Section 72 of the Act states: The Executive Director, may, in accordance with the regulations, confirm, vary or set aside the decision on appeal and may make such other decision the Executive Director considers appropriate. [ 31 ] On February 8, 2021, CS Keefe concluded that his response on review of Mr. Sandeson’s appeal was that there be “no change” to the decision appealed from; with comments that: “staff submitted a detailed discipline report to which you were found guilty. Your mental health claims are not supported by healthcare and your state of mind does not excuse comments made.”

[ 32 ] CS Keefe also filed an affidavit and was cross-examined thereon. I found CS Keefe’s evidence to be credible (and reliable). [ 33 ] In his affidavit he stated: 60 I can advise the court that I reviewed all the documents provided by Mr. Sandeson as well as the other materials set out in the record filed with the court on April 27, 2022. … 84 With respect to some of the other alleged breaches of procedural fairness raised by Mr. Sandeson I can state the following:

a) Regarding the disciplinary report being signed or initialed by the reporting officer – this had no bearing on my decision on appeal and the name of the reporting officer was written out on the disciplinary report of August 24, 2020 (See Record Tab 3, p. 1 of 8).

b) Regarding Mr. Sandeson not being made aware of the adjudication decision – Mr. Sandeson’s adjudication on August 26, 2020 was conducted by video link. Following the adjudication, Mr. Sandeson would typically have been informed verbally of the outcome. Furthermore, Mr. Sandeson’s Activity History Notes from August 26, 2020 note that ‘inmate Sandeson sanctions have been provided’ (see Record Tab 1, p. 22 of 28).

c) Regarding Mr. Sandeson’s claim that the disciplinary report improperly indicates that the Applicant pleaded guilty – the adjudicator found Mr. Sandeson admitted guilt to the offences of disobeying a direct order and made an admission of making comments ‘but cannot recall exactly what was said’. The adjudicator then selected “offender admits as written hearing suspended” (See Record Tab 3, p. 3 of 8).

d) Regarding misplacing/losing the original inmate appeal documents – it was acknowledged by the correctional facility that these documents were misplaced. Despite being outside the statutory timeline for seeking an appeal, Mr. Sandeson was still given the opportunity to appeal.

e) Regarding being informed of the right to hear and cross-examine witness [sic] - this process is available where the offender denies guilt. In this case, the adjudicator found that Mr. Sandeson had made an admission to ‘making comments’ to ‘remain in isolation’.” [ 34 ] During his cross-examination, CS Keefe added that part of the process of his deciding the appeal includes him reading the initial appeal document, Activity History Notes; the August 24, 2020, disciplinary report; the notes of the adjudicator. He also spoke to DS Verge and asked him to confirm what was said regarding the threats.

He contacted him because he was a direct witness to the incident and the senior person of the three, ADS Pothier, Captain Newhook and DS Verge. [ 35 ] He stated that in relation to his confirmation of the adjudicator’s “threaten others” decision, he had no knowledge of Mr. Sandeson’s criminal record (if any), did not speak to the adjudicator, nor did he examine Mr.

Sandeson’s disciplinary record otherwise. [ 36 ] He elaborated that whether an offender got into the HCU depended on the availability of space there and also whether there were other persons who more urgently required housing there – as well, input would be sought from the medical staff there since priority would be given to those who are in the most medical need. [ 37 ] When he spoke to DS Verge, DS Verge told him [14] : that Mr.

Sandeson was aware (I infer from the context that this was a reference to at or about the relevant time of August 24, 2020) that he would be given a “level” for his conduct on August 24, 2020; that on or about August 24, 2020, DS Verge told Mr. Sandeson what had happened could affect his legal situation, and that Mr. Sandeson understood this and replied, that he would deal with that when it comes up. [ 38 ] CS Keefe concluded that from the materials provided, and his review: the adjudicator had concluded on a balance of probabilities, that Mr. Sandeson committed both breaches; Mr.

Sandeson did not expressly “plead not guilty” to either, nor did he expressly contest the disciplinary report contents; the adjudicator was entitled to conclude that Mr. Sandeson breached both of the rules. [ 39 ] I am satisfied that he reasonably concluded this. V - Mr. Sandeson’s Position [15] [ 40 ] Mr. Sandeson filed an affidavit in which he referenced the August 24, 2020 meeting with ADS Pothier, Captain Newhook and DS Verge.

He stated in relation to that meeting: “… I shared information with the three aforementioned individuals regarding the reasons for my mental health assessment and what was communicated to me by the facility psychiatrist. At no point during the meeting of August 24, 2020 , was I informed that I would receive a disciplinary report for the offence of ‘threaten others.’ At no point prior to the adjudication hearing of August 26, 2020, was I informed that I had received a disciplinary report for the offence ‘threaten others’.

At no point during the adjudication hearing was I informed that I had been found guilty of the offence ‘threaten others’. At the adjudication hearing I pleaded guilty to disobeying a direct order. I pleaded not guilty to the offence ‘threaten others’ and I expressly rejected having made any comment during the August 24, 2020 meeting that could have been, or be, construed as threatening. I was neither informed of my right to hear and cross-examine any witnesses nor was I afforded the opportunity to do so during the adjudication hearing.

I left the adjudication hearing with the belief that I’d been found not guilty for the offence ‘threaten others’ .

At no point between the adjudication hearing and the evening of September 3, 2020, was I informed that I had been found guilty of theoffence ‘threaten others’. The evening of September 3, 2020, I made a verbal request to Capt. Ryan Frankton, for a copy of the August 24, 2020 disciplinaryreport. Mr. Frankton provided me with a copy of the disciplinary report that same evening. I filed a Notice of Appeal within less thanthree hours of receiving a copy of the disciplinary report. [My italicization added] [41] Mr. Sandeson was not cross-examined on his affidavit.

Nevertheless, I found his credibility “wanting at times”.[16] He isself-servingly selective in his presentation of facts.[17] [42] Therein, Mr. Sandeson starts recounting what he considers important evidence only on or after August 3, 2020. [43] But on August 2, 2020, he received a disciplinary report for refusal to obey a direct order (much like the one on August 24,2020) and for which he was adjudicated in absentia on August 5, 2020. [44] He does not state when he became aware that he would receive a disciplinary report/level for the August 2, 2020, or August 24,2020, incidents.

He merely says at what point he was not aware thereof. [45] He says that – not at the time of the meeting August 24, 2020 – nor prior to the adjudication of August 26, was he aware that hehad received a disciplinary report for the August 24, 2020 offence of “threaten others”. [46] ADS Pothier’s disciplinary report against him cites the offences as at 1:05 PM on August 24, 2020, and the report is signed onthe same date. The Activity History Notes indicate the meeting had been documented by, at the latest, 2:41 PM that day. [47] It seems odd that, if Mr.

Sandeson was unaware that this disciplinary report included ‘threaten others’, that he made no mentionof it to the adjudicator on August 26, 2020 – nor did he ask for an adjournment to prepare himself – or request a hearing. His positionbefore me is difficult to accept given that the adjudicator’s comments indicate that Mr.

Sandeson explained his position regardingAugust 24, 2020 to the adjudicator, after the contents of the investigation and discipline report were recounted to him. [48] His position is also at odds with the assertion that he was informed on August 24, 2020 (as recounted by DS Verge to CS Keefeduring his consideration of the appeal), that he would receive a disciplinary report/level for the offence “threaten others”.[18] [49] Where the evidence of Mr.

Sandeson regarding the August 24, 2020 hearing is in conflict with that of the adjudicator, CSKeefe, and the plain content of the documentation available, I generally incline to accepting the evidence of the latter, and thedocumentation’s content.[19] [50] Even if Mr. Sandeson had not received a copy of his disciplinary report regarding his behaviour on the afternoon of August 24,2020, at the time of his hearing with Adjudicator Dominix, commencing at 10:57 AM on August 26, 2020, the events were fresh in hismind. Moreover, he knew what it was all about because she told him.

This is confirmed by her having placed a checkmark in each of thefollowing boxes (signifying that she had completed those tasks) in the Disciplinary Report form: “met with the offender; explained the contents of the investigation and discipline report; listened to the offender’s explanations.” [51] It is Mr. Sandeson’s burden to establish that CS Keefe’s confirmation of Adjudicator Dominix’s decision was not a reasonableoutcome, or that he was not afforded sufficient procedural fairness throughout the disciplinary process (pursuant to Baker v.

Canada(Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 and Canada (Minister of Citizenship andImmigration) v. Vavilov, 2019 SCC 65). [52] I accept that on a judicial review of the Executive Directors’ decision from the finding of the adjudicator, the fairness of theappeal process is subject to a “reasonableness” standard. [53] The responsibility to examine the fairness of the process from the investigative stage to the finding of the adjudicator is uponthe Executive Director.

The fairness of the process from the investigative stage to the adjudicative determination is subject to a“correctness” standard (i.e. compliance with the Act, Regs. and relevant policies on matters of meaningful significance). [54] There is no basis to conclude that the Executive Director did not consider that issue, or that he was not satisfied on a“correctness” standard that procedural fairness was respected during that stage of the proceeding. [55] I am satisfied that the procedural process herein was sufficiently fair throughout. [56] Similarly in relation to whether the Executive Director’s decision to confirm the adjudicator’s findings that the offence of“threaten others” had been proved on a balance of probabilities, the standard of review is reasonableness. [57] I am amply satisfied that the Executive Director’s decision is reasonable. [58] Mr.

Sandeson has not satisfied me that his decision was not based on an internally coherent reasoning that is both rational,logical, faithful to and consistent with the governing legislative scheme, the available evidence, and information before the ExecutiveDirector. Conclusion [59] The application for judicial review is dismissed without costs.

Rosinski, J. [1] Mr. Sandeson was offered the opportunity to request a publication ban given his criminal charge, however he advised Justice Hoskins on August 9, 2021, according to a transcription of the appearance: “I have spoke with counsel in the criminal matter and I’m fine with moving ahead without the publication ban in place.”