R. v. Farrell, 2011 ONSC 2160

CITATION : R. v. Farrell , 2011 ONSC 2160 COURT FILE NO.: 08-30391-02 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by the Public Prosecution Service of Canada ) ) ) Allyson Ratsoy, for the Federal Crown ) Respondent ) ) - and - ) ) ) HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by the Ministry of Community Safety and Correctional Services ) ) )) Brian G.

Whitehead, for the Ministry of Community Safety and Correctional Services ) Respondent ) ) -and- ) CORY PATRICK FARRELL Applicant ))))))) Jeffrey Langevin, Langevin, Morris, Smith LLP, for the Applicant HEARD: March 31, April 1, 2011 DECISION LALONDE J. [ 1 ] This application was brought pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms (“the Charter ”) by way of notice of motion on behalf of the Applicant, a remand inmate at the Ottawa-Carleton Detention Centre (“OCDC”). He seeks a declaration that his rights under the Charter have been violated by the treatment he is receiving at OCDC.

The Applicant claims that the treatment constitutes cruel and unusual punishment, contrary to

section 12 of the Charter .

Issues: I. Is the remedy of habeas corpus available to the Applicant in light of his current circumstances of detention? II. Has the Applicant’s rights under

section 12 of the Charter been violated? III. In the event that the Applicant succeeds on his Charter argument, can he be released under section 24(1) of the Charter ? History of the Proceedings Taken from the factum of Her Majesty the Queen in right of Canada that I accept as correct. [ 2 ] Mr. Farrell is charged with offences under the Criminal Code and the Controlled Drugs and Substances Act. A copy of the indictment is included in the Crown’s application record.

The charges arise from a long term investigation undertaken by the Ottawa Police Service – Project Bulldawg – which targeted cocaine trafficking in the city of Ottawa. [ 3 ] Mr. Farrell was charged on an information sworn January 10, 2007. He turned himself in to the police on February 9, 2007. At the conclusion of his first bail hearing he was detained by Justice of the Peace Girault on March 2, 2007. He then brought an application for bail review and was released by Mr. Justice Kealey on April 19, 2007. [ 4 ] In December, 2007 Mr. Farrell was charged with breaching the conditions of his release.

He was convicted of five counts of breach on August 22, 2008 by Mr. Justice Waugh in Ottawa. After serving his sentence (120 days, all served in pre-trial custody), Mr. Farrell was released, on the Crown’s consent, on his own recognizance. [ 5 ] On June 29, 2009 Mr. Farrell was again charged with breaching the conditions of his release, in Kingston. He was released on a recognizance in Kingston, with terms which were essentially identical to the terms of his release in Ottawa, on July 27, 2009. [ 6 ] On October 20, 2009 Mr.

Farrell was again charged with breaching the conditions of his release (both the Kingston and Ottawa recognizances) in Brockville. He was detained following a bail hearing by Justice of the Peace Doran. He brought an application for bail review before Mr. Justice Kane which was dismissed on March 5, 2010. [ 7 ] Mr. Farrell pleaded guilty to one count of breaching his recognizance in Kingston on January 21, 2010. Following a trial, he was convicted of six counts of breach in Brockville by Mr. Justice Anderson on September 27, 2010. [ 8 ] Mr.

Farrell brought a further application for bail review during the course of his trial on the Project Bulldawg charges before the trial judge, Madame Justice Parfett. This application was dismissed on December 20, 2010. [ 9 ] Since being charged with the Project Bulldawg offences in February, 2007, Mr. Farrell has been convicted of 12 counts of breaching various conditions placed upon him. It is as a result of his history of breaching that Mr. Farrell has been continuously detained since October 20, 2009 while awaiting trial. [ 10 ] Mr.

Farrell’s trial on the Project Bulldawg charges was ongoing between January 4 and March 11, 2011 before Madame Justice Parfett. The trial will resume on June 13, 2011 for two weeks. The Crown agrees with the applicant’s statement that the trial will not be completed until the fall of 2011. Applicant’s Position [ 11 ] The Applicant has been in custody continuously in the Provincial Remand Centre since October 20, 2009. He applied for judicial interim release in December 2010.

The application was dismissed and he remained in custody in the Provincial Remand Centre pending the disposition of his outstanding charges. [ 12 ] The Applicant is subjected to bright florescent lights between 6:00a.m. and 11:00p.m. every day. Furthermore, in the “day room” there are 1000 watt high pressure sodium lights that radiate from the ceiling. The extended exposure to intense and bright light gives the Applicant headaches, which have allegedly resulted in vision problems. He sees spots on a regular basis.

The Applicant is concerned that his vision will be permanently affected. [ 13 ] Issues have also arisen with respect to the Applicant’s adjustment to prolonged periods of intense light. [ 14 ] There is no proper access to the yard facilities providing the Applicant exposure to fresh air. He claims he is unable to access the yard because there are no hats, mitts, gloves or proper footwear with which to go outside; the outdoor area is covered in snow.

The coats that are provided are old, small and thin and completely inappropriate for outdoor activity in Ottawa. [ 15 ] The detention center has changed its telephone system recently so as to disallow three-way calling. The problem with this arrangement is twofold. Firstly, in 2011 most people use cellular telephones. When three-way calls are disallowed, it is almost impossible to contact family members. Most cellular phones are not equipped to accept collect calls. [ 16 ] The applicant is unable to effectively instruct counsel on the telephone as a result of this change in the telephone arrangement.

Almost every telephone call is interrupted by a machine that announces that three-way calls are not allowed; the line is then disconnected. Despite not being three-way calls, as they are being placed to a lawyer’s office on a collect call basis, the system continuously interrupts the calls without notice. In the course of a long and complicated trial, the Applicant claims he is simply unable to instruct his counsel by telephone.

[ 17 ] Furthermore, the telephone is unavailable to inmates between 4:15p.m. and 7:00p.m. This is the best time to reach trial counsel because they are in their offices after Court. Preparing for Court is virtually impossible without access to the telephone in the early evening hours. [ 18 ] There is limited access to programs and education. Inmates 21 or older must pay for school credits to get a high school diploma. There are virtually no programs available to inmates who are housed in a remand centre for a long period of time. [ 19 ] Clothes and blankets are never changed.

The inmates’ clothing is shared between all of the inmates. There is a laundry service; however, the same clothes are never returned to the same person. The same applies to the linen. This is a very unhealthy practice, particularly for someone who is in the institution for a prolonged period of time. The Applicant has red spots and rashes from the condition of the clothing and bedding. [ 20 ] The meals at the detention centre are insufficient and produced on a four week cycle. The portions are small and the Applicant is consistently hungry.

The only other option is to pay for canteen food; however, that food is “snack food” and unhealthy. [ 21 ] There is limited access to reading material and the available material is questionable. The Ottawa Detention Centre has a library and the books are old and almost all of them have many pages missing. Essentially, books are not available because they are not maintained. Library access is irregular.

There are books available in the canteen at $15.00 each; however, after a long period of time in jail, money is scarce and the selection is limited to 8 different books. [ 22 ] The detention centre rations toilet paper, toothbrushes, deodorant, soap, shaving cream and toothpaste. There are 16 items distributed between 32 prisoners. This causes frenzy when the material is distributed because there is never a sufficient supply. [ 23 ] The only exercise equipment available for the prisoners is a chin-up bar and a pull-up bar in the yard. There is no outlet for stress relief.

Consequently, there are often fights between inmates over petty matters. The Applicant is also experiencing significant skin irritations such as pimples and rashes which he attributes to stress. [ 24 ] There is a constant flow of cold recycled air being blown into each cell. The vent is corroded and covered with black dirt or mold. The vents which circulate the air have little suction and are generally ineffective. It is also extremely dry. The Applicant suffers from nose bleeds almost every day as well as dry skin and constant itchiness.

The air quality is awful. [ 25 ] It takes 2 to 4 weeks to be seen by a doctor once a request has been made. The Applicant has been constantly sick because of the physical conditions that have been described herein. Because of a significant delay in being able to see a doctor, in most cases the Applicant has recovered naturally from the illness before having access to treatment. This is painful and causes a significant discomfort to the applicant. Furthermore, there is significant stress in knowing many of the inmates have diseases such as HIV and hepatitis.

Inmates are compelled to use the same nail clippers, showers, toilets and sinks. [ 26 ] The beds are metal and the mattresses are extremely thin. Neck and back pain result from any extended period of time spent on the bed. Position of Her Majesty the Queen in Right of Canada Taken from the factum of Ms. Ratsoy [ 27 ] The prosecution of the applicant on his charges under the Criminal Code and Controlled Drugs and Substances Act is being conducted by Her Majesty the Queen in right of Canada, as represented by the Public Prosecution Service of Canada.

The central issues on this application relate to the conditions of the applicant’s incarceration at OCDC, which falls within the mandate of the Ministry of Community Safety and Correctional Services, represented on this application by counsel for Her Majesty the Queen in right of Ontario.

Both HMQ in right of Canada and HMQ in right of Ontario are respondents to this application. [ 28 ] The Public Prosecution Service adopts the submission as set out in the materials of HMQ in right of Ontario that the applicant has failed to establish an infringement of his rights under s. 12 of the Charter . [ 29 ] The applicant remains detained by virtue of the detention order made by Madame Justice Parfett on December 20, 2010. He is not challenging the lawfulness of that detention order.

Rather, he has framed his habeas corpus application under s. 12 of the Charter of Rights and Freedoms, alleging that the conditions of his incarceration constitute a breach of his right not to be subjected to any cruel and unusual treatment or punishment. Should the applicant succeed on his Charter argument, the court can order his release under s. 24(1) of the Charter . [ 30 ] Subject only to the question of whether or not the conditions of the applicant’s detention violate s. 12 of the Charter , his detention is lawful.

Nevertheless, the applicant is asking, as an alternative remedy to release, that the judge hearing the habeas corpus application “hold a review of the detention of Cory Farrell forthwith.” He has included in his application record two unsworn affidavits from Karen Desmoreux and Kristen Cayen, both dated November 15, 2010. These are copies of affidavits filed on the applicant’s bail review before Madame Justice Parfett in December, 2010, when the affiants Desmoreux and Cayen were proposing themselves as sureties.

Neither affidavit has any bearing on the issues before the court on the habeas corpus application. [ 31 ] The Respondent submits that the court hearing the habeas corpus application has no jurisdiction to review the detention of the applicant outside of the scope of the

section 12 application.

Part XVI of the Criminal Code provides a complete regime for determining the issues of release and detention before and during trial. Under s. 523(2), the court before which an accused person is being tried has the exclusive jurisdiction to determine the release or detention of the accused until the completion of the trial. [ 32 ] A habeas corpus application should not be used as an alternate means of reviewing detention when a statutory regime exists for

that purpose. In R. v. Pearson , [1992] 3 S.C.R. 655, at paras. 25-26 , Lamer J. stated: Outside the narrow circumstances of this case, habeas corpus is not a remedy for a denial of bail. As Wilson J. noted in R. v. Gamble , [1998] 2 S.C.R. 595 (S.C.C.) at p.642, “under s. 24(1) of the Charter , courts should not allow habeas corpus applications to be used to circumvent the appropriate appeal process. In the context of bail, a s.520 review is the ‘appropriate appeal process’ which should not be circumvented by habeas corpus….” Position of Her Majesty the Queen in Right of Ontario Taken from Mr.

Whitehead’s factum [ 33 ] Mr. Farrell asserts the circumstances of his housing at OCDC are inappropriate and calls for the extraordinary remedy of habeas corpus . He claimed that the lighting, yard access, telephone access, programming and education, inmate clothing and blankets, meals, library, toiletries, exercise facilities, air quality, medical treatment, and bedding at the institution all pose issues that violate his right to be free from cruel and unusual treatment as protected by

section 12 of the Charter . [ 34 ] The evidence from OCDC, that being the affidavits of Catherine Wilson and Scott Mason, indicate that the Applicant has not complained about the living conditions or health issues that were raised before the court in this Application. Contrary to the Applicant’s evidence, telephone access to his counsel via three-way call exemption has been resolved as of February 15, 2011.

Scott Mason repeated this conclusion during his testimony at the hearing. [ 35 ] This Respondent, as represented by the Ministry of Community Safety and Correctional Services (“MCSCS”), respectfully submits that Mr. Farrell’s living conditions and health care treatment are reasonable and fall far from outraging the community’s standards of decency. Mr. Farrell has not established a violation of s. 12 of the Charter , and as such, this Honourable Court should dismiss the Application in its entirety.

The OCDC [ 36 ] The OCDC is a maximum security correctional institution under the Ministry of Correctional Services Act (“ MCSA ”). It provides custody for adult males and females who have been sentenced, remanded, violated parole, or who are subject to an immigration hold. The capacity of the OCDC is 595 and the facility consists of general population units, protective custody units, segregation cells, and a health care unit containing four cells for inmates requiring close monitoring by health care staff.

Given its status as a maximum security institution, restrictions are continuously imposed on the movement and liberty of inmates by physical barriers, close staff supervision, and more limited access to the community. Evidence of Catherine Wilson (Ms. Wilson) [ 37 ] Catherine Wilson is the Heath Care Manager at OCDC. She is a registered nurse in charge of overseeing health care at the institution. She testified that there are 16 full time nurses as well as 14 part time nurses that give nursing care 24 hours a day, 7 days a week at OCDC. The institution is also served by Dr. Robert Tate and Dr.

Staples who give medical care to the inmates. There are also 4 psychologists on staff. There are no dentists at the institution so the inmates are sent out for dental care. [ 38 ] Ms. Wilson reviewed the Applicant’s care at the institution. She explained the Applicant’s health record as she received it from Brockville and as it was recorded at OCDC. The Applicant has been suffering from stress and anxiety. He has been given, on a regular basis, anti-depression medication as prescribed by Dr. Tate.

She confirmed that there was no record of nose bleeds in her records and gave the opinion that air quality would not be responsible for nose bleeds. She further confirmed that the Applicant had not been complaining to nurses about the living conditions at OCDC. [ 39 ] The Applicant had requested to see the mental health nurse at the institution on September 22, 2010, when his court case was coming up. As a result, Ms. Wilson stated that Dr. Staples increased the medication that the Applicant had been taking. Again, on October 5, 2010, Dr.

Tate increased the Applicant’s dosage of Seroquel for treatment reasons that need not be repeated here. [ 40 ] Ms. Wilson’s evidence was given in a forthright manner and without hesitation. She refused to speak for Dr. Tate when she was asked for information not within her expertise. Evidence of Scott Mason (Mr. Mason) [ 41 ] Scott Mason is the Deputy Superintendant of Operations at OCDC. He started as a Correction Officer in 1991 and has worked his way up to his present position. He testified that the Applicant is in protective custody at the institution because he requested that option following altercations.

It became apparent to the Applicant that he could not get along in the general population

section of the institution. The Applicant’s signed request was filed with the court. [ 42 ] Mr. Mason testified that the Applicant has not requested to return to the general population area as “housing is pretty identical.” Mr. Mason explained that the Applicant was made a server/cleaner on February 2011, a position coveted by inmates. The Applicant lost this position on March 25, 2011 because of his frequent court appearances. The server/cleaner position allows an inmate more freedom of movement because he helps the guards with the serving of meals and the cleaning of the common areas.

This means that he has more access than other inmates to the telephone and television. [ 43 ] Mr. Mason explained that the new telephone technology prevented three way calls but that the problem was fixed for the inmates in February 2011. The Applicant’s counsel has also availed himself of a lawyer’s exemption for three way calls that facilitates

communications between a solicitor and client. The access defence program allows, according to Mr. Mason, a lawyer to fix his time ofcontact with an inmate. [44] Mr. Mason explained that all inmates receive visits from relatives in an orange jumpsuit. The orange jumpsuit helps control thecomings and goings at OCDC and is a must for security reasons. There is no reason why the Applicant cannot see his son. There isalso no reason for the Applicant to be out of reading materials. Ms. Mason candidly admitted that the library is in a woeful state but thatthe problem is being fixed.

Had the Applicant registered for courses, which he did not do, he could have received books. This was aresource problem at the institution. But supplies of toilet paper on the range, air quality, mattresses and cleaning of air vents were not aresource problem and were being handled appropriately. [45] I accept Mr. Mason’s non exaggerated and straightforward account of how OCDC is run, without reservation. The Law Accepted as correct as set out in Mr. Whitehead’s factum Habeas Corpus –Availability [46] In R. v.

Miller, (SCC), [1985] 2 S.C.R. 613, at paras. 32, 33, 36, Ledain J. stated that habeas corpus is availableto challenge the validity of a particular form of administrative confinement, such as confinement in a special handling unit or inadministrative segregation, purporting to rest on its own legal foundation, such as an authorizing statute or regulation.

Lawful incarceration results in necessary limitations in privileges and rights to maintain institutional security [47] The Courts have recognized that lawful incarceration brings about the necessary withdrawal or limitation of many privileges andrights, a retraction justified by the considerations underlying our penal system. There must be a mutual accommodation betweeninstitutional needs and objectives and the provisions of the Constitution that are of general application. This principle applies equally toremanded as well as sentenced inmates.

A person in custody simply does not possess the full range of freedoms of an un-incarceratedindividual. The problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions. [48] In Maltby v. Saskatchewan (Attorney General) (1982), (SK KB), 2 C.C.C. (3d) 153 (Sask. Q.B.) at para. 20,Justice Sirois stated: Prison officials and administrators should be accorded wide-ranging deference in the adoption and execution of policiesand practices that in their judgments are needed to preserve internal order and discipline and to maintain institutional security.

Suchconsiderations are peculiarly within the province and professional expertise of corrections officials, and in the absence of substantialevidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily deferto their expert judgment in such matters: Pell et al. v. Procunier, Corrections Director et al. (1974), 417 U.S. 817 at p. 827. The unguidedsubstitution of judicial judgment for that of the expert prison administrators on matters such as this would to my mind be inappropriate.

No right to habeas corpus unless continued deprivation of liberty becomes unlawful [49] In Egan v. Quinte Detention Centre (2008), (ON SC), 171 C.R.R. (2d) 42 (Ont. S.C.) at paras. 40-42, thecourt stated that there are three different deprivations of liberty in a correctional context: (1) the initial deprivation of liberty; (2) asubstantial change in conditions amounting to a further deprivation of liberty; and (3) a continuation of the deprivation of liberty. [50] In Egan, supra, at para. 37, the court also stated that the onus of making out a deprivation of liberty rests with the Applicant.

Ifmet, the onus of establishing the lawfulness of that deprivation rests on the detaining authority. [51] There is no challenge in this case to the validity of Mr. Farrell’s initial deprivation of liberty. He went into custody after violatinga number of his bail conditions and being subsequently detained pursuant to s. 515 of the Code. Neither is Mr. Farrell being deprived ofany rights or privileges available to other inmates living in the general population. In fact, by virtue of his status as a server/cleaner, Mr.Farrell had more privileges than other inmates. As stated in R. v.

C.V. (2005), 2005 NSSC 71 , 233 N.S.R. (2d) 69 (S.C.), atpara. 23, in order to avail himself of habeas corpus, Mr. Farrell must demonstrate that the continuation of his initially valid deprivationof liberty is unlawful. [52] In R. v. Miller, supra, at para. 32, the Supreme Court recognized that “In effect, a prisoner has the right not to be deprivedunlawfully of the relative or residual liberty permitted to the general inmate population of an institution.” Any significant deprivation ofthat liberty, such as confinement in a special handling unit, meets the first of the traditional requirements for habeas corpus.

Mr. Farrellas a unit server/cleaner had more liberty and telephone access to contact counsel than other inmates in protective custody during mealtimes. Habeas corpus is not available to challenge any and all conditions of confinement, or any privilege or right that an inmate may assert hehas.

[ 53 ] As Justice LeDain stated in Miller : 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 form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution. Decision [ 54 ] I agree with counsel for the Respondents that the Applicant’s substantive complaints under

section 12 of the Charter do not warrant this extraordinary remedy. [ 55 ] I agree with counsel for Her Majesty the Queen in Right of Ontario that: A. Mr. Farrell’s substantive complaints under

section 12 of the Charter do not warrant this extraordinary remedy. B. Habeas corpus is not available to challenge any and all conditions of confinement. Complaints relating to fresh air, medical treatment, meals, the right to call and receive calls from a lawyer, and available counseling are not matters appropriate for habeas corpus and are best addressed by grievance procedures available to inmates within the institution. C. Mr. Farrell should have attempted to rectify these issues through the internal complaint systems available at OCDC.

Habeas corpus is an extraordinary remedy that should not be invoked to review trivial issues. [ 56 ] Mr. Justice Lofchik in R. v. Aziga , [2008] O.J. No. 3052 at paras. 30-33 , undertook a substantial review of the law concerning Mr. Farrell’s type of application. I agree with the following principles extracted from the decision by counsel for Her Majesty the Queen in Right of Ontario: (

a) that the Applicant bears the general onus to establish an infringement of the Charter . In bringing the challenge, he bears both the burden of proof on the evidence, and the ultimate burden of persuasion with respect to the alleged Charter infringement. (

b) that the Supreme Court of Canada has recognized that the detention context of a correctional facility is crucial when considering the nature and extent of an inmate’s Charter interests. (

c) that it is generally recognized that the courts ought to be extremely careful not to unnecessarily interfere with the administration of detention facilities…. The judiciary has been reluctant to second guess administrative decisions made by institutional safety and security officials. Unless there has been a manifest violation of a constitutionally guaranteed right, prevailing jurisprudence indicates that it is not generally open to the courts to question or second guess the judgment of institutional officials. (

d) that it is crucial for the Applicant to support his challenge with a proper evidentiary record, which is necessary and essential to a proper consideration of the Charter issue. Charter decisions should not and must not be made in a factual vacuum. Lofchik J. stated at para. 36: Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues.

Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel. [ 57 ] Here, the Applicant is in protective custody of his own choosing and is not treated differently than inmates housed in general population. His right to liberty of movement is not engaged as the restrictions placed on his movements are lawful. This is not a case of administrative segregation that obliges the Court to assess the situation. [ 58 ] From February 17 to March 25, 2011, the Applicant was a server/cleaner and as a result had more freedom of movement than others.

The day to day routine cited by the Applicant flows inevitably from the operations of a maximum security institution. Since August 16, 2009, the Applicant has seen Dr. Staples on two occasions. The nurses have documented his health complaints on six occasions. An x-ray technician was brought in to x-ray the Applicant’s elbow when he complained of a problem. Medication has been given to the Applicant three times a day for the past seven and a half months. Far from being disproportional treatment that would shock

the conscience of the community, I find that the community would feel that the Applicant had better treatment inside the institution thanwould have been available outside the institution. [59] I have to agree with counsel for Her Majesty the Queen in Right of Ontario that the Applicant added to his own stress whileawaiting the continuance of his trial. He would benefit from seeing his son. Mr. Mason testified that prison officials are concerned withchildren bringing in drugs for the inmates.

It is the Applicant’s choice if he does not want to wear an orange jumpsuit. [60] The Applicant adds to his stress by not taking courses to better his education and distract himself from his legal problems. Thereis no waiting list to participate in the programs. Mr. Mason testified that all reasonable requests for books are considered.

The Applicanttestified that he ran three successful companies and he does not need a high school diploma. [61] In connection with having to exercise in a yard without warm clothing in the winter, I agree that it is not feasible for hygiene andlogistics to equip inmates with hats, mitts and boots to meet winter’s harshest conditions. Mr. Mason testified that the Applicant can askfor extra clothing, and that once outside he is not locked in the yard for a set period of time; the Applicant can ask to be allowed back in.

This is another area where the Applicant’s poor choices have added to his stress. [62] The Applicant is now registered to make calls to his lawyer and testified that he calls him “every day.” I am satisfied that theApplicant did not bring his concerns regarding clothing, blankets, and sufficiency of food to the institution’s attention. Ms.

Wilsontestified that the inmates at OCDC are on 3500 calories a day as recommended by the Canada Food Guide. [63] The lack of privacy that the Applicant complains of is valid, but one must assess that issue with regard to the security concernswhich inevitably arise in the prison context. Unfortunately, that issue naturally flows from the operation of a busy institution where Dr.Tate is asked to see many inmates in one day.

Section 12 of the Charter [64]

Section 12 of the Charter provides: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [65] The Applicant is subject to the treatment decisions of the physicians who are in a contractual relationship with the Ministry todeliver appropriate medical care to inmates in custody. The Applicant was lawfully held at OCDC in accordance with the warrants ofcommittal, the Ministry’s governing legislation and regulation and policies. The medical treatment afforded him as a remanded inmatedoes not constitute cruel or unusual treatment or punishment. The test under

Section 12 of the Charter [66] The threshold for a breach of

section 12 of the Charter is high, and the Applicant’s onus of proving a

section 12 violation arigorous one. Treatment will be “cruel and unusual” in the sense contemplated under

section 12 of the Charter only if it is grosslydisproportionate. Merely disproportionate or excessive treatment is insufficient. Instead, the question is whether the prescribedtreatment is “so excessive as to outrage our standards of decency.” [67] In assessing the Applicant’s complaints that refer to his individual living conditions, as well as the cumulative effect of thoseliving conditions, the conditions of the Applicant’s detention were not so excessive as to outrage standards of decency or grosslydisproportionate to what would have been appropriate.

To call the Applicant’s living conditions at O.C.D.C cruel and unusualpunishment or treatment would trivialize the Charter. [68] A reading of the decisions in Trung v. Alberta (Edmonton Remand Centre) (2010), 2010 ABQB 6 , 205 C.R.R. (2d) 91(Alta. Q.B.) and R. v. C.V., [2005] N.S.J. No. 154 (S.C.) and R. v. Clun, 2005 ABQB 694 , [2005] A.J.

No. 1198 (Q.B.) revealsthat lighting, yard access, telephone access, programs and education, clothing and blankets, meals, library, toiletries, air quality, exercisefacilities, bedding and medical treatment have been considered unfounded or too trivial to amount to cruel and unusual treatment. I findthat in this case, I can easily arrive at the same conclusion for the same reasons. Mr. Farrell’s living conditions do not infringe his rightsunder

section 12 of the Charter. [69] As Mr. Farrell failed to show that his rights have been infringed, he is not entitled to a remedy under section 24(1) of theCharter. He should address his issues through the inmate complaint process; the use of extraordinary remedies to address those issues isinappropriate. [70] The Applicant pleaded that the remand context was different for him as he has been in custody for years. I agree with HerMajesty the Queen in Right of Canada’s submission that we are concerned with seven and a half months of incarceration only.

Even ifdetention in Brockville were added, the total time in custody would amount to one year and five months. This indeed falls short of Mr.Farrell’s characterization of the duration of his incarceration. The Respondent also pointed out that the Applicant’s decision not to seehis son cannot be blamed on the institution. He has not been denied “love” as argued by his counsel. [71] I also agree with counsel for Her Majesty the Queen in Right of Canada that the exclusive jurisdiction for a bail review is in theexclusive jurisdiction of the trial judge.

[ 72 ] I conclude with the words of Lofchik J. in R. v. Aziga , supra : Detention facilities are not nice places for nice people. They are institutions for confinement of people either charged with or convicted of crimes. The Applicant is not being “punished” but simply suffering from what appear to be the inevitable inconveniences of the operation and administration of a large detention centre.

His situation may not be comfortable and it may be considerably aggravated by the length of his stay but I have found in an earlier application that the delay in this case was not caused by an infringement of the Applicant’s constitutional rights. [ 73 ] The totality of the evidence does not show that the conditions experienced by the Applicant would shock standards of decency in the community. There is therefore no

section 12 Charter violation. This application is dismissed. ___________________________ Mr. Justice Paul F. Lalonde Released : April 19, 2011 CITATION : R. v. Farrell , 2011 ONSC 2160 COURT FILE NO.: 08-30391-02

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by the Public Prosecution Service of Canada Respondent - and – HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by the Ministry of Community Safety and Correctional Services Respondent - and – CORY PATRICK FARRELL Applicant DECISION Mr. Justice Paul F. Lalonde Released : April 19, 2011