Today, Nova Scotia Supreme Court Justice Kevin Coady published a decision, saying that the way two prisoners at the Burnside Jail are being held in solitary confinement is unfair, and he wants the jail administrators to address the situation, and if they don’t within 14 days, he wants to see the prisoners in court, potentially in order to set them free.
Coady’s decision represents a seismic shift in how the courts oversee jail operations. And that shift is years in the making, and comes about because prisoners themselves, usually with no outside help, are forcing the courts to deal with the injustices of solitary confinement.
The lawyers representing jail administrators have long argued that the case law gives the administrators wide latitude to run the jails as they see fit, and the courts should only intercede when there are obvious egregious conditions.
Of course, the prisoners have tried to fight back. They do this by filing “habeas corpus” applications with the court. I’ve followed dozens of prisoners through the system as they file these applications. Typically, a prisoner will complain that he’s being locked in his cell for too many hours a day, usually with what from the prisoner’s perspective is a weak or non-existent justification.
But it takes a day or two for the prisoner’s habeas application to make its way from the jail to the court, and then another day or two for the judge to decide to hear it, and then another day or two to actually hear the complaint. By that time, the harsh lockdown conditions have been relaxed, so the judge decides that the issue is moot — that is, since there are no long harsh lockdown conditions, there’s nothing to decide on.
Once that non-decision is rendered, however, the jail often again imposes harsh lockdown conditions, and round-and-round we go, with prisoners complaining, delays in getting those complaints heard, the jail at least temporarily relaxing the conditions that led to the complaints in the first place, and the judge deciding the complaint is moot. Repeat. Repeat again.
Dylan Gogan and Dylan Roach
But segregation — what most people call “solitary confinement” — is at yet another level of harshness, and this is where prisoners are making the biggest change.
The change began when Dylan Gogan and Dylan Roach, neither of whom had lawyer or legal training, mounted a court challenge against being placed in solitary confinement. As I wrote in 2017:
Both were placed in the federal system, but are being held in the provincial jail at Burnside as they have scheduled court appearances in Halifax.
An internal jail email from December 18, 2014 was entered into evidence; the email established a new jail policy that effectively put all federal prisoners in solitary confinement while at the jail.
Gogan and Roach pointed out they had committed no disciplinary infractions. They hadn’t fought with other prisoners or other guards. They were not at risk of being attacked. It was simply an administrative decision to place the federal prisoners in solitary confinement to keep them out of the general jail population.
Justice Gerald Moir wrote in his decision:
They are confined to their cells in Burnside twenty-three hours a day. This is not because they are being disciplined. This is not because they need protection. This is not because they need to be investigated for classification.
Mr. Gogan and Mr. Roach are confined twenty-three hours a day for reasons that have nothing to do with them as individuals.
Mr. Roach was brought here on October 27, 2015. He was bound over to this court, and we remanded him to Burnside pending his trial on January 21, 2016. He is serving a life sentence without parole for thirteen years.
Mr. Gogan described the cell in which he is locked alone for twenty-three hours a day. It is about seven by nine feet. There is a set of bunks but only one mattress. He has a stool and a toilet. That is it.
Mr. Roach’s conditions are similar except his is a single bed, there is no bench, and the room is equipped for a person with mobility problems. Mr. Roach is not such a person.
To lock a man alone in a cell for twenty-three hours a day is not merely to deprive him of the common room. It is to deprive him of social interaction, of the simplest personal amusements such as cards or television, of the most rudimentary activities that keep us sane. “[S]olitary confinement (or segregation) for a prolonged period of time can have damaging psychological effects on an inmate …” [citing an Ontario court ruling]
Let me return for a moment to the facts of Mr. Gogan’s and Mr. Roach’s confinement. They spend twenty-three hours a day in a nine by seven feet cell with a bed, a mattress, a window, maybe a stool or a bench, and no other amenities. The one hour exception is for showers, any visitors, and a little time in the common room with little or no social interaction. Mr. Gogan put it mildly when he said “it’s certainly hard on your mind”.
Moir’s decision had huge effects. It changed jail policy, but it also laid the legal groundwork for future habeas applications from other prisoners.
El Jones heard Dylan Gogan speak at a workshop on prison law. She wrote:
It turns out that [Gogan] had filed eight previous applications before it was accepted by the court. He has been incarcerated in Nova Scotia, Alberta, and New Brunswick, and despite the difficulties he experienced filing in Nova Scotia, he said that the other provinces were worse because they wouldn’t even waive the fee for the application.
Gogan has no formal legal education, but with each filing, he said he learned and figured out what he needed to do. He also spoke about learning from talking to other incarcerated people, and they passed on their knowledge.
Gogan spoke about how he would constantly read and learn. At the beginning he made mistakes, but he would learn from those errors for the next application. He figured out what cases to reference from reading files, seeing what cases were cited, and then finding those cases and studying them.
Think about this man, incarcerated in terrible conditions, unable to access the most basic resources, teaching himself case law from scratch. This man went without the small things that make jail even slightly more bearable — canteen food, phone calls — to spend everything he had on printing cases. Think of him, inside a segregation cell, reading thousands of pages of law, learning how to advocate for himself, getting his application rejected again and again and still persisting. That work changed segregation practices in Nova Scotia for everybody. That work set a precedent that others suffering in the same conditions could use to advocate for their rights.
It was clear to me, watching from the outside, that prisoners were teaching each other how to write habeas corpus applications. Both the volume and, frankly, the quality of the applications was increasing. The applications were bolstered by a manual written by lawyer Hanna Garson, which provided a step-by-step guide to the habeas process. Garson, along with advocates from the East Coast Prison Justice Society and particularly Legal Aid lawyer Claire McNeil, worked to extend funding and representation to prisoners.
Still, the prisoners were mostly frustrated, as time and time again their applications were deemed moot.
But then came Maurice Pratt’s habeas application last year. The Court of Appeal laid out the circumstances:
Mr. Pratt filed a habeas corpus application seeking his release from close (solitary) confinement. He claimed his detention was unlawful.
The Honourable Justice Peter P. Rosinski convened a teleconference with Mr. Pratt (self-represented) and counsel for the respondents. Mr. Pratt wanted to have his application heard on the merits. The respondents asked the judge not to set the matter down for a hearing. At the conclusion of the call, the judge rendered an oral decision. The judge declined his jurisdiction to hear the application. He said Mr. Pratt’s habeas application was moot and summarily dismissed it.
However, after rendering his oral decision, the judge requested additional information and submissions from the respondents’ counsel. There were numerous communications between the judge’s office and counsel. The communications revealed that the judge intended to release a written decision, but before doing so he wanted additional materials. Mr. Pratt was not copied, at any time, on the communications between the judge’s office and counsel. Mr. Pratt was not invited to respond to the additional materials requested by the judge.
Although the judge initially declined jurisdiction to hear the matter, in a written decision (2019 NSSC 6) rendered some months later, the judge went on to deal with substantive aspects of the application and materially expanded his reasons for concluding Mr. Pratt’s application was moot. In doing so, the judge relied on the information not disclosed to Mr. Pratt.
Mr. Pratt argues the judge made serious errors that warrant appellate intervention. He claims the judge erred in declining to exercise his jurisdiction in the first instance, and further compounded this error by proceeding to gather additional information without any notice to Mr. Pratt or providing him with an opportunity to make submissions. Mr. Pratt says the manner in which his habeas application was disposed of was fundamentally unfair.
Mr. Pratt challenges the judge’s establishment of new legal principles for dispensing with habeas applications. Mr. Pratt was being held in a provincially-operated prison. In his written decision, the judge determined, without providing any authority, that the binding legal framework for determining a habeas application should differ if the applicant prisoner is held within a provincially-operated correctional facility as opposed to a federal correctional facility. The judge made this and other determinations respecting the applicable principles absent these issues being raised by the parties and absent any submissions from the parties.
The three-judge Court of Appeal ruled in Pratt’s favour, with Justice Elizabeth Van den Eynden writing:
It is also important to recognize the additional challenges self-represented prisoners face in advancing their habeas claims. It cannot be seriously disputed that, as a general statement, prisoners face challenges in advancing litigation. These challenges are particularly pronounced for prisoners in restricted detention, such as solitary confinement. There are added challenges if the prisoner has underlying literacy and/or mental health issues.
Given the many prisoner appeals and chambers matters before this Court, I can take judicial notice of the challenges self-represented prisoners face in getting legal documentation prepared and filed, gaining access to legal research, and even receiving or sending mail pertaining to active matters.
There is a role for lower court judges to manage habeas corpus applications with particular regard to facilitating access to justice for self-represented applicants.
Mr. Pratt invited this Court to offer clarification and guidance. In his factum, Mr. Pratt stated:
This appeal raises significant questions concerning the procedures to be employed by reviewing courts in response to applications for habeas corpus. It provides a rare and significant opportunity to this Court to clarify the steps that courts below should follow to protect the fairness and integrity of habeas corpus as [sic] fundamental remedy with historical and constitutional significance in our legal system and constitutional democracy.
This appeal also indirectly raises access to justice questions as many habeas corpus claimants come before the court without the benefit of legal representation. In this context, it is of heightened importance that courts below employ procedures and practices that enhance access to justice, rather than closing the door in cases that engage significant human rights interests.
There were numerous material shortcomings in the handling of this application. This Court’s identification and response to these shortcomings hopefully provides clarity respecting the proper procedures and legal principles to be employed by the reviewing court with respect to habeas applications and will guard against similar future errors and ensure that the remedy remains robust, as it should regardless of whether the applicant is in a provincial or federal prison.
As stated, lower courts must diligently guard against the erosion of the habeas corpus remedy in the prison context. Fair and speedy processes are necessary to ensure the urgent objective of hearing habeas corpus applications on an expedited basis is realized.
I don’t know how or if the ruling affected Pratt’s confinement, but it nudged the case law into a new understanding of the court’s role in taking habeas corpus applications seriously, and not simply dismissing them as “moot.”
Rae’Heem Downey and Andre Gray
Which brings us to today’s ruling from Justice Coady, who wrote:
Mr. Downey and Mr. Gray are inmates currently held on remand at the Central Nova Scotia Correctional Facility. Mr. Downey has been in custody since August 2, 2018 and has served 201 days in close confinement (segregation). Mr. Gray has been in custody since March 12, 2019 and has served 267 days in close confinement.
Deputy Superintendent Richard Verge filed an affidavit and was examined on both direct and cross examination. The following is a summary of his evidence:
• The Applicants have an institutional history of non-compliance with the rules. As a result of assaults and other behaviours, they were sanctioned and placed in segregation. Upon completion of their sanctions on May 26, 2020 they remained in close confinement.
• Mr. Downey and Mr. Gray are “protective custody” inmates. Consequently, they cannot be placed in the general population.
• There are two protective custody ranges in the facility. In general there is no difference in living conditions, restrictions or privileges between protective custody living units and general population living units.
• Neither Mr. Downey nor Mr. Gray agreed to these possible placements on the basis there were “incompatibles” in those areas. The facility deemed these concerns to be credible and did not feel it could mitigate the risk of physical harm. They remained in segregation until a review was conducted on June 10, 2020.
I haven’t spoken with Downey or Gray. But when I read between the lines here, I understand that the prisoners feared for their safety in the protective custody unit — so called “incompatibles” would harm them.
Verge’s affidavit continues:
• This internal review board determined that the Applicants would be placed in the health care unit (HCU). The HCU is normally reserved for inmates recovering from illness or for medical treatment. It is a segregation unit. The applicants are scheduled to remain in the HCU until such time they can be placed in a protective custody living unit without risk of harm.
• The facility explored the possibility of transferring the Applicants to another correctional center as is often done in similar situations. The transfer requests were denied by the proposed receiving facilities.
• The Applicants are permitted out of their cells for a minimum of one hour each 24-hour period and a maximum of two and a half hours. This is dependant on the institution’s ability to facilitate such privileges.
• The HCU is physical isolation. The only difference between a close confinement unit and the HCU is that there is a window in the HCU. Inmates are unable to mingle and must stay in their cells except for short periods in the “Airing Court”.
• The facility has determined that the only suitable placement is in the HCU. There will be ongoing reviews but it is unlikely that an alternative placement will occur in the foreseeable future.
• Mr. Downey’s trial is scheduled for September, 2020 while Mr. Gray’s trial is scheduled for November, 2020. Due to the COVID pandemic, it is extremely unlikely that these trials will proceed as scheduled.
“In essence,” wrote Justice Coady, “the Respondents argue that the present placement is reasonable because there are no other available options. In other words, it is the best it can do in the circumstances.”
Coady went on to detail why that isn’t good enough. He quotes the Gogan decision:
Segregation in penal institutions has been the subject of much critical debate in the legal community and among the public. In Gogan v. Nova Scotia (Attorney General), 2015 NSSC 360, Justice Moir commented at para. 20:
“To lock a man alone in a cell for twenty-three hours a day is not merely to deprive him of the common room. It is to deprive him of social interaction, of the simplest personal amusements such as cards or television, of the most rudimentary activities that keep us sane. “[S]olitary confinement (or segregation) for a prolonged period of time can have damaging psychological effects on an inmate…”: Boone v. Ontario (Community Safety and Correctional Services), 2014 ONCA 515 at para. 21.
And Coady cites the Pratt decision:
I believe it is fair comment that prior to Justice Van den Eynden’s decision in Pratt v. Nova Scotia (Attorney General), 2020 NSCA 39, habeas corpus applications were not getting the respect and attention they deserved. Prior to Pratt there was a real danger that the rights demanded by habeas corpus could be watered down.
The inquiry into whether Mr. Downey’s and Mr. Gray’s placement in HCU is a reasonable decision is a fact driven inquiry involving the weighing of various factors and “possessing a negligible legal dimension”.
I have concluded that the ongoing placement of Mr. Downey and Mr. Gray in the HCU is not a reasonable outcome. If it were a temporary arrangement, I would find it reasonable. However, to leave them in segregation indefinitely is not acceptable. I make this decision on the evidence recognizing the difficulty faced by the institution and affording it considerable deference.
Leaving Mr. Downey and Mr. Gray in the HCU indefinitely offends the principles of habeas corpus and the Charter of Rights and Freedoms. The institution must find a resolution. Consequently, I order that if a solution is not found within 14 days of this decision, Mr. Downey and Mr. Gray are to be brought before this Court for a Criminal Code review of their detention.
So it’s taken five years, but prisoners — acting on their own accord, teaching themselves and each other how to file habeas applications — have helped add to the case law and provide more court oversight of jails. Five years ago, the courts mostly ignored habeas applications, or didn’t take them seriously. Now, we’ve got a Supreme Court justice threatening to set two prisoners free because the jail administration refuses to respect their charter rights.
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