Decisions of the Court of Appeal

COURT OF APPEAL FOR ONTARIO

CITATION: Boone v. Ontario (Community Safety and

Correctional Services), 2014 ONCA 515

DATE: 20140703

DOCKET: C58393

MacPherson, Blair and Pepall JJ.A.

BETWEEN

Steven Boone

Appellant

and

Ministry of Community Safety and Correctional Services

and

Her Majesty the Queen

Respondents

Paul Champ and Christine Johnson, for the appellant

Brian G. Whitehead and Melanie Goren for the respondents

Heard: April 25, 2014

On appeal from the judgment of Justice Robert J. Smith of the Superior Court of Justice, dated January 16, 2014, with reasons reported at 2014 ONSC 370.

R.A. Blair J.A.:

OVERVIEW

[1]          Habeas Corpus is one of the oldest writs in the land.  Dating back in its present form to the mid-fifteenth and sixteenth centuries, it permits the court to require the Crown to bring a detained person before it to determine whether the deprivation of that person’s liberty is unlawful.  If it is, the detention must be set aside.  Known as the “Great Writ”, habeas corpus has been entrenched in s. 10(1) of the Canadian Charter of Rights and Freedoms.

[2]          In recent years, habeas corpus has become a remedy frequently sought in superior courts by inmates seeking to challenge internal prison decisions, including decisions relating to the terms of their placement within the institution.  The Supreme Court of Canada has affirmed that the writ may be used “to release a person from a particular form of detention although the person will lawfully remain under some other restraint of liberty:” R. v. Miller, [1985] 2 S.C.R. 613, at p. 638.  Transfer to solitary confinement – a serious deprivation of liberty and security of the person – is often the target of such a challenge.

[3]          The appellant has been segregated in solitary confinement at the Ottawa-Carleton Detention Centre (“OCDC”) for more than a year.  There has been a growing recognition over the last half-century that solitary confinement is a very severe form of incarceration, and one that has a lasting psychological impact on prisoners.[1]

[4]          The appellant is an HIV-positive inmate with a predisposition towards having sexual relations with other male prisoners – sometimes without their knowledge of his condition, and sometimes with it.  On this application, the Superintendent of OCDC takes the position that the appellant’s confinement in administrative segregation is necessary both for the protection of other inmates and for his own protection as well.  The Superintendent has offered the appellant certain alternatives, however, designed to permit the appellant to mix with the prison population during the day but to be confined in a cell alone at night.

[5]          The appellant disputes that position.  He seeks an order returning him to be housed with the general inmate population, and with a cellmate, as was the case before the transfer.  He has even requested specific cellmates.  He has rejected the Superintendent’s proposed alternatives.

[6]          After a hearing and a careful review of the evidence, Justice Robert J. Smith held that, although there had been a failure to comply fully with the principles of procedural fairness in certain aspects of the transfer process, the appellant’s detention in solitary confinement was not unlawful.  He therefore dismissed the application for habeas corpus.  The appellant seeks to have that decision set aside and an order granted allowing the application principally on the basis that, once having found a breach of procedural fairness – regardless of the nature of the breach – the application judge had no discretion to refuse to issue the writ.

[7]          For the reasons that follow, I would dismiss the appeal.  However, in my view, any of the alternatives proposed by the Superintendent was reasonable.  Which of the alternatives is best suited to the situation – or whether there is another alternative that will achieve the same purpose – is for the prison authorities to determine, following proper procedures.

FACTS

[8]          The appellant has been convicted of very serious offences: attempted murder, aggravated sexual assault, and several related offences relating to circumstances where he knowingly had unprotected sex without disclosing his HIV-positive status with the intent to inflict his victims with HIV.  It is said that he knowingly sought out partners for that purpose.  He is presently the subject of a long-term offender application.

[9]          In the meantime, he has been incarcerated on remand at the OCDC since May 2010 awaiting his sentencing hearing.  OCDC is a maximum security institution.  The appellant was initially housed in Pod C, a protective custody wing where he was allowed day room privileges and had a cell mate (M.D.) for approximately 12 hours per day.  This form of accommodation ended, however, when OCDC officials discovered a letter from the appellant to M.D. confirming that they were engaging in sexual relations.  At the same time, rumours were circulating in the institution that the appellant was engaged sexually with other inmates as well.  He was transferred to administrative segregation on May 29, 2013.  There, he remains to the present time.

[10]       There were differing versions of what the appellant was told at the time of his transfer, and thereafter, and of the opportunities he had to respond to the transfer.

The Institution’s Position

[11]       The Deputy Superintendent charged with the transfer, Mr. Nolet, testified that he spoke with the appellant on the day following the transfer and explained to him the reasons for it.  The transfer was for the safety of both the appellant and the other inmates, having regard to the appellant’s sexual relations with his cellmate and the rumours of the appellant’s sexual relations with other inmates.  Mr. Nolet also said that he had listened to the appellant’s side of the story. 

[12]       Mr. Nolet filled out a Segregation Decision/Review form where he indicated the reasons for the appellant’s segregation as “[o]wn protection/security”.  He testified that, by “security”, he meant the security of both the appellant and the other inmates.  He also said that he reviewed the circumstances of the appellant every five days, as required by the regulations, and completed segregation review forms for each of those reviews.  He also testified that he met with the appellant, and discussed the appellant’s concerns, regularly during his twice-a-week tours of the segregation area.  The appellant knew well from Mr. Nolet and others the reasons why he was in segregation, the case he had to meet, and his right to make submissions.

[13]       In support of Mr. Nolet’s testimony, the Crown also points to correspondence between the appellant and others indicating that he understood why he was in segregation and that he had the right to make submissions.  For example, the appellant wrote to another inmate, saying: “I’m stuck in this pod because of the shit that happened between [M.D.] and I”.  He wrote many letters to the institution requesting cellmates (in some cases, specific cellmates in addition to M.D.) or asking to be returned to Pod C where he would have a cellmate.  These submissions were made orally as well.

[14]       The appellant’s situation was also reviewed with senior managers at the Detention Centre during weekly segregation meetings.  Thirty-day reviews, as required by Ministry policy, were also completed as required.

The Appellant’s Position

[15]       The appellant tells a different story.  He says that he was never provided with a reason for his initial placement in segregation or with any other meaningful explanation thereafter.  Nor was he given a chance to respond to his situation.

[16]       The appellant attacks Mr. Nolet’s evidence, arguing that it does not clearly show that the appellant had been told the reasons for his transfer or that he had a fair opportunity to respond.  He also argues that the evidence did not support a transfer to administrative segregation on the basis of his relationship with M.D., since that relationship was consensual, or on the basis that he had had sexual relations with other inmates (with the exception of one incident in which he was forced by another inmate to have oral sex with a third inmate), or on the basis that his security or that of other inmates was in jeopardy.

[17]       The appellant does acknowledge that he made requests to have a cellmate in segregation and that he asked to be returned to Pod C with a cellmate.  In some cases he asked that M.D. be placed in the cell with him, saying that they were in love and wished to marry.[2]  In other cases, he asked to be placed with inmates he had met in adjoining cells in segregation.  He testified that he always advised these individuals of his HIV-positive status.

[18]       In addition, the appellant attacks the Segregation Decision/Review form which Mr. Nolet completed in relation to his initial transfer.  It was dated May 29, 2013, the date of the transfer, and completed as of that date, but Mr. Nolet did not meet with the appellant until the following day.

The Offers to Accommodate the Appellant

[19]       OCDC made several offers to the appellant that would have released him from segregation, placed him in alternative accommodations, and allowed him to socialize with other inmates, but without a cellmate.  The proposals were:

(i)  to transfer the appellant to a different Wing at OCDC, where he would have access to the day room, but be alone at night in his cell;

(ii)  to transfer him to the health care unit at OCDC, where he would have the company of other inmates;

(iii)  to transfer him to the Chatham jail, where he would have day room access but sleep alone in a cell at night; or

(iv)  to allow him to participate in chaplaincy programs and school programs with other inmates.

[20]       The appellant rejected all of these offers.  He wants either to have a cellmate while in segregation or to be placed back in Pod C where he will have a cellmate.

ANALYSIS

[21]       As noted above, solitary confinement (or segregation) for a prolonged period of time can have damaging psychological effects on an inmate and calls for the imposition of safeguards and limits to the resort to such punishment: see the Vantour Report, at pp. 16-17.[3]  It was in response to these kinds of concerns that the Legislature enacted the procedural requirements for placing and holding inmates in solitary confinement that are now found in Regulation 778 of the Ministry of Correctional Services Act, R.R.O. 1990, Reg. 778.  These Regulations include the requirements for five-day reviews by the Superintendent and 30-day reports to the Minister.

[22]       There can be no doubt, therefore, that confining the appellant to administrative segregation for more than a year constitutes a very serious deprivation of his liberty and security interests.  Given that there are alternatives available, it seems to me that the appellant’s continued confinement in segregation should cease.

[23]       On the other hand, the application judge found that “if the [appellant] is placed with a cellmate there is a very high risk that [he] would manipulate the cellmate into having sexual intercourse and a high risk that this cellmate would contact [sic] HIV putting any such cellmate in a dangerous situation if placed with the applicant”.  Given that finding – amply supported in the record – the appellant cannot be returned to a situation where he would have a cellmate again.

[24]       Therein lies the dilemma in these proceedings.

The Application Judge’s Decision

[25]       The Superintendent of OCDC acknowledged that placing the appellant in administrative segregation amounted to a deprivation of liberty.  As a result, the application judge properly concluded that the onus shifted to the detaining authority to establish the lawfulness of the appellant’s continued detention in segregation.

[26]       The application judge found that the Superintendent had reasonable grounds to believe that the appellant was engaging in sexual activities with other inmates while detained in the general inmate population: Mr. Nolet was aware that the applicant had engaged in unprotected sex with M.D., had heard rumours that he had engaged in sexual activities with other inmates (although those allegations could not be verified), and was also aware that the appellant had requested and received condoms and lubricant on four occasions.

[27]       With respect to the appellant’s allegations of procedural unfairness, the application judge found that, while the procedures followed did not fully comply with the principles of natural justice and with procedural fairness in some respects, the transfer procedure, overall, was not procedurally unfair, and the detention of the appellant in administrative segregation was not unlawful.  He therefore refused to issue the writ of habeas corpus.

[28]       In this regard, the application judge accepted Mr. Nolet’s evidence that he had advised the appellant at the time of the initial transfer that he was being segregated pending an investigation into his sexual activities with other inmates, including M.D.; that Mr. Nolet had spoken to the appellant on a regular basis during his regular twice-weekly walk-arounds; and that Mr. Nolet had investigated and responded to the appellant’s requests for various specific cellmates.  These findings were open to him on the record.

[29]       The application judge found, nonetheless, that “the procedure adopted by the Deputy Superintendent did not fully comply with the principles of natural justice and procedural fairness” in three specific ways:

(i)  The Segregation Decision Review form should not have been completed before Mr. Nolet had met with the appellant and heard his submissions;

(ii) The appellant should have been given an opportunity to make oral or written submissions on his continued segregation at every five-day review, and a summary of his submissions should have been recorded on the form or attached as a schedule; and

(iii)  The appellant should have been provided with clearer and more detailed reasons for his continued segregation, including references to the applicable statutory provisions.

[30]       In spite of these failings, however, the application judge was satisfied that the administrative segregation of the appellant was lawful and necessary to ensure the safety of other inmates and, in particular, any cellmate placed with the appellant.  His reasons for arriving at this conclusion may be summarized as follows:

(i)           The appellant was fully aware of the reason he was being kept in segregation;

(ii)          The appellant had rejected reasonable proposals by the Superintendent that would have removed the psychological harm of being alone in segregation while ensuring the safety of other inmates;

(iii)        The appellant’s requests to be given a cellmate were reasonably refused by the Superintendent;

(iv)        The Superintendent would have been aware of the findings made in an earlier decision by Warkentin J. that the appellant bragged about his ability to manipulate young men into having unprotected sex with him and to infect others with HIV by lying to them and that he had actively sought out individuals for that purpose; and

(v)         If the appellant were placed with a cellmate, there was a very high risk that he would manipulate that cellmate into having sexual intercourse with him and a high risk that this cellmate would contract HIV, thus putting any cellmate in a dangerous position.

[31]       The appellant contests these findings, but, in my view, they were open to the application judge on the record, and there is no basis for interfering with them.

The Grounds of Appeal

[32]       The appellant raises two principal grounds of appeal.  First, he argues that, having found a breach of procedural fairness, the application judge erred in assuming he had a residual discretion to deny a habeas corpus remedy.  Secondly, he submits that the application judge erred in finding that the appellant posed a valid safety and security concern, a finding that was important in the application judge’s decision to refuse to grant the remedy.

[33]       There is ample evidence to support the application judge’s findings regarding the safety and security concerns raised by the appellant’s situation, however, and I do not think anything further needs to be said about the second ground of appeal.  I will therefore confine my analysis to the first ground of appeal.

          The Statutory and Regulatory Framework

[34]       The operation of provincial correctional institutions is governed by the Regulation under the Ministry of Correctional Services Act.  Under s. 2(1) of Regulation 778, the Superintendent of the correctional institution is responsible for “the management of the institution and for the care, health, discipline, safety and custody of the inmates under the Superintendent’s authority”.  This undoubtedly includes the ability to determine the terms according to which the inmates under his or her authority will be housed.  Section 3 of the Regulation allows the Superintendent’s duties to be delegated to a designated person – in his case, the Deputy Superintendent, Mr. Nolet – and grants the Superintendent or designate the power to place an inmate in segregation.

[35]       In this case, Mr. Nolet exercised the authority provided under s. 34(1) of the Regulation in order to place the appellant in administrative segregation.  Section 34(1) permits the Superintendent to do so if, amongst other things,

a)   in the opinion of the Superintendent, the inmate is in need of protection;

b)   in the opinion of the Superintendent, the inmate must be segregated to protect the security of the institution or the safety of other inmates.

[36]       The obligations resting on the Superintendent when such a step is taken are set out in the remainder of s. 34.  The Superintendent must conduct a preliminary review of the inmates’ case within twenty-four hours after the inmate has been placed in segregation, and if of the opinion that the continued segregation of the inmate is not warranted, shall release the inmate from segregation: s. 34(2).  The circumstances of each segregated inmate are to be reviewed at least once in every five-day period to determine whether the continued segregation is warranted: s. 34(3).  The segregated inmate is entitled, as far as possible, to the same benefits and privileges as if the inmate were not placed in segregation: s. 34(4).  And, where the inmate is placed in segregation for a continuous period of thirty days, the Superintendent must report to the Minister the reasons for the continued segregation: s. 34(5).

[37]       There is also a Special Management Inmates Policy put in place by the Ministry.  It provides that, when an inmate is placed in segregation, the inmate is to be advised of the reasons, status, and duration of the segregation and of any changes to those conditions.  A Segregation Decision/Review form is to be prepared.  The inmate is also to be advised of his or her right to make a submission to the Superintendent in writing or in person within five days of being segregated, and the inmate’s decision is to be documented on the review form.  In addition, the Policy states that, when an inmate has been in segregation for a continuous period of 30 days, the Regional Director will review the reasons for the continued segregation in the Superintendent’s review form to determine whether the continued detention is supported.  Before that review form is completed and sent to the Regional Director, the inmate is to be provided an opportunity to make a written submission or have an interview with the Superintendent or designate.

[38]       As noted, the application judge found that the Deputy Superintendent had failed to comply fully with these requirements in the three ways outlined above.

Did the Application Judge Err In Assuming He Had A Residual Discretion To Deny A Habeas Corpus Remedy, Having Found There Was A Breach Of Procedural Fairness?

[39]       The appellant submits that, once the application judge concluded there were breaches of procedural fairness, he had no discretion to refuse to grant the habeas corpus remedy and was obliged to order that the appellant be returned to and placed in Pod C with a cellmate, as he was before his transfer to segregation. 

[40]       In contrast, the Ministry argues that not all breaches of procedural fairness necessarily require the writ to issue. Here, the breaches of procedural fairness identified by the application judge were minor and technical in nature. It was open to the application judge to hold that these breaches did not render the detention unlawful since he found that the appellant was fully aware of the reason he was being kept in segregation, and that he had been given the opportunity to respond to his situation.

[41]       In my view, the appellant’s blanket assertion that, once a breach of procedural fairness is found to have occurred, habeas corpus must be granted to return him to Pod C with a cellmate, is too broad.  The application judge held that there were aspects of the transfer process that did not fully comply with the principles of procedural fairness, but he found that the detention itself was not procedurally unfair.  Instead, he concluded that, on all of the evidence, and in spite of the procedural missteps, the detention was not unlawful and declined to issue the writ.  This decision was reasonable and based on an ample evidentiary foundation.  I would not interfere with it.

Habeas Corpus

[42]       To be successful, an applicant for habeas corpus must show (a) a deprivation of liberty and (b) that the deprivation of liberty was unlawful: May v. Ferndale Institution, [2005] 3 S.C.R. 809, at para. 74; and Mission Institute v. Khela, 2014 SCC 24, at para. 30.  Between these points, there are other considerations in play, however.

[43]       First, once a deprivation of liberty has been shown, and the applicant has raised a legitimate ground on which to question its validity, the onus shifts to the Crown to show that the deprivation was lawful.  Secondly, where a deprivation of liberty has occurred, and a legitimate ground to question its validity has been raised, the hearing judge must proceed to a hearing; there is no discretion to do otherwise.  Finally, the hearing judge retains a “residual discretion” at this second stage of the proceedings to decide, after reviewing the record, whether to discharge the applicant: see Khela, at paras. 30 and 78.

[44]       These considerations bear on the appellant’s contention that, once the application judge found breaches of procedural fairness, he had no discretion to refuse to grant the writ of habeas corpus.  The appellant is mistaken in his characterization of the writ in this way, in my view.

[45]       It is true that habeas corpus is a remedy that issues as of right (ex debito justitiae) once the unlawful nature of the detention is established.  It cannot be denied because another, equally effective remedy – such as judicial review – exists.  That was the issue debated in May and Khela.  As LeBel J. affirmed in Khela, however, the non-discretionary nature of the writ relates to whether the applicant has raised a legitimate basis for questioning the legality of the detention, not to the ultimate determination of whether, on the whole of the record, the unlawful nature of the detention is established.  There remains a residual discretion in this regard.  At paras. 77 and 78, he said:

First, the traditional onuses associated with the writ will remain unchanged.  Once the inmate has demonstrated that there was a deprivation of liberty and casts doubt on the reasonableness of the deprivation, the onus shifts to the respondent authorities to prove that the transfer was reasonable in light of all the circumstances.

Second, the writ remains non-discretionary as far as the decision to review the case is concerned.  If the applicant raises a legitimate doubt as to the reasonableness of the detention, the provincial superior court judge is required to examine the substance of the decision and determine whether the evidence presented by the detaining authorities is reliable and supports their decision.  Unlike the Federal Court in the context of an application for judicial review, a provincial superior court hearing a habeas corpus application has no inherent discretion to refuse to review the case (see Farbey, Sharpe and Atrill, at pp. 52-56).[4]  However, a residual discretion will come into play at the second stage of the habeas corpus proceeding, at which the judge, after reviewing the record, must decide whether to discharge the applicant.

                                                          [Emphasis added.]

[46]       Where there has been a denial of the right to a fair hearing, the administrative decision will always be unlawful.  However, not all procedural breaches will necessarily result in procedural unfairness and the denial of the right to a fair hearing: see Khela, at para. 90; Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges Act, Superintendent), 2010 ONCA 856, at paras. 65-67; and Uniboard Surfaces Inc. v. Kronotex Fussboden GmbH and Co. KG (F.C.A.), 2006 FCA 398, [2007] 4 F.C.R. 101, at para. 24.

Habeas Corpus in the Context of This Case  

[47]       That was the question facing the application judge, and it was open to him, after embarking on the habeas corpus hearing, to consider whether, on the record as a whole, the appellant’s detention in segregation was lawful, in spite of the procedural flaws that he found to have existed.

[48]       I accept that the appellant was entitled to be provided with clear reasons for his detention.  Although, at the end of the day, the application judge was satisfied that the appellant knew the reasons for his detention, the finding that he was detained without having been given “clear reasons” for his continued segregation was sufficient to “raise a legitimate ground upon which to question the legality of the deprivation”: Khela, at para. 86.  On the Khela analysis, the next stage was to determine – based on the record – what was to happen in terms of the discharge.

[49]       The application judge embarked on that exercise, and the thrust of his reasons for concluding that the appellant’s detention in administrative segregation was not unlawful can be summarized as follows.  There were some procedural flaws in connection with the segregation process, but, at the end of the day, the appellant was “fully aware” of the reasons for his continued detention in segregation.  He had opportunities – and, on many occasions, took advantage of those opportunities, both orally and in writing – to make submissions to the prison authorities about it.  In spite of the flaws, therefore, the overall process of placing and keeping the appellant in administrative segregation was not procedurally unfair.  In addition, the Superintendent’s decision was reasonable, given the information he had.  Accordingly, the placement of the appellant in administrative segregation was not unlawful, and the writ of habeas corpus could not issue.

[50]       I see no flaw in this overall approach.  Indeed, for the following reasons, I would place even less emphasis on the factors identified by the application judge as procedural flaws than he did.

[51]       As outlined above, at para. 29, the application judge’s view that there had been a failure to comply fully with the principles of procedural fairness was based primarily on his view that (i) the Segregation Decision Review form should not have been completed before Mr. Nolet heard the appellant’s submissions; (ii) the appellant should have been given a chance to make submissions at every five-day review, and a summary of those submissions should have been recorded; and (iii) the appellant should have received clearer, more detailed, and statutorily-qualified reasons for his continued segregation.

[52]       The first of these identified concerns is inconsequential.  While Mr. Nolet should not have completed the Segregation Decision/Review form before meeting with the appellant, the record establishes that its contents reflect what occurred.

[53]       The second is not a procedural flaw, in my opinion.  Nothing in either the Regulations or the Policy provides an inmate with the right to make submissions either orally or in writing in connection with the every five-day review.  As noted above, the Policy requires that the Superintendent or the Superintendent’s designate “review” the detention every five days; that the inmate be advised of the reason, status, and duration of the segregation and any changes to those conditions; that the inmate be advised of the right to make submissions within five days of being segregated; and that the inmate’s decision be documented on the review form.  Where the inmate is segregated for 30 days or more, the Regional Director’s review is triggered, and the inmate is entitled either to make written submissions or to have an interview with the Superintendent or Deputy Superintendent.  On the record, these all occurred in substance here. 

[54]       Prisons are not administrative tribunals and, although inmates are entitled to the benefits of natural justice and administrative fairness, to impose on prison officials the full panoply of requirements for what is, in effect, an administrative hearing every five days is not realistic, notwithstanding the severe impact of administrative segregation on an inmate. 

[55]       The third identified criticism does, indeed, reflect a procedural fairness concern.  Nonetheless, the record shows that Mr. Nolet, and even the Superintendent, Mr. Last, were in continuing contact with the appellant; that there were regular interviews with him; and that he presented the administration with a constant stream of written and oral statements protesting his segregation and demanding that he be provided with a cellmate of choice.  In addition, he was advised of the reasons for his continued detention by Dr. Ward, a forensic psychiatrist who has been working with the appellant during his incarceration at OCDC. 

[56]       The principles of natural justice require that a person subject to administrative detention be advised of the reasons for that detention and be given an opportunity to be heard in response to that case: see May, at para. 92.  At the end of the day, the application judge was satisfied that these requirements had been met because the appellant was “fully aware” of the reasons for his continued segregation and had been given – and had taken advantage of – the opportunity to respond. This was sufficient to outweigh the concern that the reasons provided could have been accompanied with more detail and made clearer.

[57]       Despite the procedural flaws that may have existed, the appellant was not denied a fair hearing.

[58]       I would not give effect to this ground of appeal.

Disposition

[59]       For the foregoing reasons, the appeal must be dismissed and the decision of the application judge not to issue the writ of habeas corpus upheld.

[60]       Like the application judge, however, I am satisfied that the offers made to the appellant to try to accommodate his concerns were entirely reasonable.  The application judge concluded his reasons by stating that the Superintendent was “ordered to continue to offer the proposals made to the applicant until he is sentenced and transferred to a prison”.  I see no reason why the Superintendent is limited to “[continuing] to offer” the alternatives.  The Superintendent’s responsibilities for managing the institution include the care, discipline, safety, and custody of the inmates: Regulation 778, s. 2(1).  In my view, the manner in which inmates are housed falls within those responsibilities and may be imposed on the inmates, provided proper procedures are followed, should the Superintendent be so advised.

“R.A. Blair J.A.”

“I agree J.C. MacPherson J.A.”

“I agree S.E. Pepall J.A.”

Released: July 03, 2014