I am on the board of the East Coast Prison Justice Society (ECPJS) but am writing this on my own behalf.
On March 13, 2025, the NSCA overturned Justice Rosinski’s January 2024 decisions that the staff-shortage based lockdowns of Durell Diggs (Diggs) and Ryan Wilband (Wilband) – who were prisoners at the Central Nova Scotia Correctional Facility (aka Burnside) – were unlawful. They found that he overstepped his jurisdiction for habeas corpus applications by ruling on systemic issues of persistent staff-shortage based lockdowns in Nova Scotia prisons – rather than just on the individual cases before him – and by suggesting how such lockdowns could be avoided. For clarification – for those who are unaware – a lockdown is where all prisoners in a range, unit, or the entire prison are locked in their cells when they should be out in the general population and can result in prisoners being trapped in their cells for days, over 24 hours, the majority of the daytime, or anything in between.
The NSCA decision needs to be kept within its narrow confines. The NSCA decision is particularly about the limits of a habeas corpus application, which the NSCA held is designed to address only individual deprivations of liberty. Just at the NSCA ruled that Justice Rosinski overstepped his jurisdiction for a habeas corpus application, it is crucial that the NSCA decision is not overstated to imply that the conditions experienced by prisoners at Burnside and other Nova Scotia prisons are lawful. The lockdowns, and other conditions related to staff and resource shortages, have resulted in violations of prisoner human rights in Nova Scotia.
I will first briefly address the NSCA’s interpretation of the narrow application of habeas corpus then move on to the more crucial issue of the suffocating lockdowns and other abhorrent prison conditions in Nova Scotia, which still require urgent attention and action.
Quick note about the nature of habeas corpus
For those who do not know what habeas corpus is, here is a very brief run-down. The writ of habeas corpus breaks down to a request to come before the court to claim an unjust deprivation of liberty and seek to remedy the injustice by having the liberty increased – or returned to – a just condition, including full liberty. In the prison context, it has been used to, for example, get prisoners out of solitary confinement or moved from maximum security to medium security institutions. The origin of the application is very old, dating to at least 1166, under the reign of Henry II of England, and being further elaborated in the Magna Carta of 1215 – which limited the power of the King of England – where protections were granted against arbitrary imprisonment. Since then, habeas corpus applications have become present internationally. In Canadian law, habeas corpus applications raise issues of violations of rights of prisoners under the Canadian Charter of Rights and Freedoms, to be free from unlawful or arbitrary deprivations of liberty. Prisoners in Nova Scotia, whether federal or provincial, can make habeas corpus applications to the Nova Scotia Supreme Court to seek a reprieve from the harshness of their conditions of confinement. It is an application that is treated with urgency, in that it is prioritized over other applications and makes its way into court relatively quickly.
Habeas corpus seen by NSCA as having narrow application
The NSCA kept habeas corpus in the narrow confines they saw expressed in other Canadian court decisions. They ruled that Justice Rosinski did not have the jurisdiction to make the systemic rulings he did, noting that, “It was improper for the judge to examine alleged historical deprivations of liberty instead of confining his review to the ‘here and now’,” (para 47); and that, “the judge’s decision was not in the nature of habeas corpus but was in reality a review of operational decisions at CNSCF” (para 48). They cited earlier rulings to support the narrow application. They cited Jennings v. Nova Scotia (Attorney General) (2023 NSSC 148), and highlighted the following paragraph:
[37] Broader constitutional, political or policy issues can be addressed in the proper form. If a person claims that their constitutional rights have been infringed by what they claim to be the government’s failure to adequately resource provincial jails, that would require substantial evidence and would have to be litigated in a way that is not summary in nature.
They further cited Foeller v. Nova Scotia (Attorney General) (2023 NSSC 149), noting the following from that decision:
[14] The rotational lockdowns were implemented because there were not enough correctional officers to safely operate the facility in the normal way. The administration of the facility can only make efforts to hire and train more people. Whether they should be allocated more resources to do that is not an issue for this habeas corpus.
[15] A judge on a habeas corpus application would place safety and security at risk by ordering the end of the lockdown notwithstanding those staffing issues. Ordering that the government provide more resources to hire and train staff would involve the review of government policy and priorities which would not be appropriate particularly in the summary form of a habeas corpus application. The court can only assess whether those responsible for the jail acted reasonably given the circumstances that they faced.
They also cited the Alberta decision, R. v. Haug, 2011 ABCA 153, noting the following paragraph (emphasis in decision):
[6] The appellant has overestimated the jurisdiction of the Court of Queen’s Bench to monitor the activities of the Correctional Service of Canada. The appellant originally applied for habeas corpus as a method of attaining the relief he wanted. Habeas corpus is a specialized procedure that allows the court to review the legality of the detention of a prisoner, and to release the prisoner if his detention is unlawful. While it has occasionally been used to review the conditions of detention of serving prisoners, it is not a general remedy to be used to supervise the conduct of corrections officials. In the federal system that responsibility primarily falls within the jurisdiction of the Federal Courts, and possibly some administrative tribunals with the appropriate jurisdiction.
Importantly, they did not make any comment about the lawfulness or unlawfulness of conditions of confinement in Nova Scotia jails. There are also parts of Justice Rosinski’s decisions that should not be disturbed by the NSCA’s decision. Of particular note, there were factual findings in the Diggs and Wilband decisions based on testimony from witnesses about conditions of confinement. Notably, the following from Diggs (minus what “the law requires”) should still apply as a finding of fact of the standard for time out of a cell per day:
[83] As the evidence demonstrates (and I would say the law requires), Mr. Diggs would normally have been entitled to be out of his cell for IO to 12 hours a day…
As noted, I am focused on the present, not what may result from an appeal to the Supreme Court of Canada. However, I will make a short comment about the idea that habeas corpus cannot be used to address systemic deprivations of liberty. Lockdowns are a systemic – range-wide, unit wide, or prison-wide – act. They affect all prisoners within the locked area, depriving them all of liberty simultaneously. If lockdowns cannot be challenged by habeas corpus – to seek immediate reprieve from the harshness of deprivations of liberty – there is a loophole for the prison (and government) to escape the application of Charter scrutiny on an urgent basis. Making non-urgent applications, such as Charter challenges, to the lawfulness of staff-shortage based lockdowns, would take far too long, rendering the issue of liberty a theoretical exercise; damage done. A right without meaningful remedy is no right at all.
NSCA did not comment about conditions of confinement
The NSCA could have offered comment on the dire circumstances for prisoners in Nova Scotia, without stating anything about lawfulness, but they did not. There was only one passing, and indirect, reference to the conditions of confinement, that Justice Rosinski’s efforts were “well-intentioned” (my emphasis):
[40] …The judge examined the responses to staff shortages at the CNSCF and made recommendations as to how they may have been addressed. Recommendations are the mandate of Royal Commissions. The judge’s well-intentioned approach was not within his jurisdiction on a habeas corpus application.
In contrast, Justice Brothers offered comment on the harshness of conditions of confinement, despite dismissing a habeas corpus application in 2023. In Downey v. Nova Scotia (Attorney General) (2023 NSSC 204), she ruled that she could not grant reprieve to Mr. Downey, suffering from rotational lockdowns, due to the fact that the lockdowns were facility wide, not directed at him personally. But she also noted (para 94):
Confining persons in custody – many of whom may have pre-existing mental health issues – to their cells for exorbitant periods of time does nothing to assist and support their rehabilitation… Even a person with robust mental health would find it challenging to be regularly confined to a cell, often for more than 20 hours per day, with little notice and no ability to earn more time out. This practice is dehumanizing, and it is setting these individuals up to fail. They deserve better
Conditions of confinement in Nova Scotia prisons are unlawful
In the 1979 Supreme Court of Canada case, Solosky v. The Queen (1979 CanLII 9 (SCC), [1980] 1 SCR 821), the Supreme Court affirmed the human rights of prisoners, noting, “a person confined to prison retains all of his civil rights, other than those expressly or impliedly taken from him by law.”
Meanwhile, the United Nations’ Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) has provided clear direction to all state parties about human rights standards required for prisoners.
Conditions in Nova Scotia’s provincial jails fall below justifiable legal standards. As noted above, I am on the board of ECPJS but writing here on my own behalf. Our organization has been monitoring jail conditions at provincial pails in the province for several years, through our Visiting Committee project. Our most recent annual report (report) details the harsh conditions of confinement in NS jails, including solitary confinement, lockdowns, lack of access to medical care, and lack of access to addictions treatment. The report emphasizes the tragic impacts of harsh conditions, noting a disturbing trend of deaths in custody.
There were six deaths in provincial jails between September 2022 and the report’s release date, in September 2024. As the report noted, this was the highest number of deaths in custody ever recorded (to ECPJS’s knowledge) over the same period in the province’s history. As the report notes (p. 4):
… these deaths must be situated in light of continuing institutional patterns whereby the vulnerability and marginalization common to incarcerated populations – including intersecting oppressions based in disability, poverty.
ECPJS has had a longstanding concern about the lack of a mandatory public inquiry into every death in custody. Under the Fatality Investigations Act, the province only conducts an inquiry at its discretion, a process that lacks full accountability for every life lost in custody.
The increased deaths in custody cannot be separated from the harshness of the conditions of confinement, including near continuous lockdowns during the reporting period and extending to time ECPJS’s report was released. The report states (p. 5):
Throughout 2023-24, Nova Scotia has subjected provincially incarcerated people – particularly persons held at the Burnside jail – to near-continuous “lockdowns,” described by callers to the VC’s jail line as profoundly destructive to their mental and physical health. This same period (from January 2023 to date) has yielded an unprecedented number of deaths in provincial custody, five of six of which have occurred at the Burnside jail.
Lockdowns are but one form of severe restriction of liberty. Individual solitary confinement includes administrative segregation (for own safety or safety of the institution), disciplinary segregation (as punishment for a prisoner breaking rules), and health segregation (on health / mental health grounds).
Likely the most severe form of solitary confinement is health segregation, where prisoners are often placed if on suicide watch or due to instances of self harm. Prisoners in health segregation are under 24-hour observation, in conditions of constant lighting. Rule 43(1)(c) of the Mandela Rules states that constantly lit conditions constitute torture or other cruel, inhuman or degrading treatment. Mandela Rule 45(2) prohibits solitary confinement for even one day if the conditions would exacerbate mental or physical disability.
Prisoners experience additional deprivations in access to health care. This included cutting off their medications based on allegations of “diverting” medications away from medical uses (report: p. 44, 45). Such interference should be considered an affront to prisoners’ security of the person and circumvents the authority of healthcare providers to address the health needs of patients. There are, no doubt, a number of measures in between all or nothing. Access to physicians and psychiatrists has also been sorely lacking. The report states (p. 46):
… individuals with significant and worsening conditions have been forced to wait lengthy periods of time without any update on when they will be granted access to a physician or psychiatrist. While awaiting medical attention, especially in lockdown circumstances, callers reported increasing feelings of hopelessness, depression and anxiety.
Prisoners who suffer from addictions upon entry to provincial jails have likewise been subjected to deprivation. Prisoners with opioid addictions have been denied opioid addiction treatment if they did not already have a diagnosis of substance use disorder before incarceration (report: p. 44). Others have been denied access to anti-anxiety and ADHD medications even if prescribed such medications in the community. Mandela Rule 24 requires that prisoners should enjoy the same standards of health care in prison as in the community.
Also notable is that fact that Nova Scotia prison guards continued to advocate about their lack of job retention and lack of adequate compensation by the Province, well after the Diggs and Wilband decisions. Short-staffing increases lockdowns and reduces services and supports for prisoners. This piles stresses upon prisoners, that reflect back on the staff and back on the prisoners in a constantly spinning cycle, often expressed in the form of violence and abuses.
The condition of prisons in Nova Scotia are the responsibility of the province, which has failed to address the problems in any meaningful way. Instead, they spent resources on appealing the decision of Justice Rosinski.
Do not lose sight of the unjust conditions in Nova Scotia prisons
Long time human rights, prison law and Aboriginal rights lawyer and advocate for prison justice, Michael Jackson, has written about his years of prisoner rights advocacy as, “exposing the darkest places in this country to legal and public scrutiny.”
For the last year, Justice Rosinski’s decisions and declarations of unlawful lockdowns in Nova Scotia prisons have been useful as precedents that such conditions were unjust for all prisoners in Nova Scotia. The decisions gave prisoners some hope for reprieve from deprivations of liberty, and for increased credit for time served in miserable conditions.
The ruling by the NSCA could be read by the general public as a signal that the condition of prisoners in Nova Scotia is not such an urgent matter, and whatever light may be shining on prison conditions will thus be dimmed. The harsh conditions of confinement require attention and action to protect the human rights of prisoners. Prisoners must not be left in dehumanizing conditions. They are part of society. Inhumanities they suffer will reflects on the human rights standards of society as a whole. As often quoted from bygone Russian writer, Fyodor Dostoyevsky, “The degree of civilization in a society can be judged by entering its prisons.”
To keep tabs on developments in prison justice in Nova Scotia, please see ECPJS’s website: https://www.eastcoastprisonjustice.ca/