Two key habeas corpus decisions were made on January 12 at the Supreme Court of Nova Scotia for the advance of the rights of prisoners: Diggs & Nova Scotia (Attorney General) and Wilband v. Nova Scotia (Attorney General). Lead counsel Hanna Garson and Emma Arnold with PATH Legal recognized the horrendous conditions of prisoners at the Central Nova Scotia Correctional Facility (Burnside) and skillfully advanced this law in this area for the better. I am just going to comment on the longer decision, Diggs. Justice Rosinski recognized the harsh experience of Mr. Diggs (emphasis in original):
Mr. Diggs, who has been a (“low security risk”) general population inmate with full privileges, and has had no disciplinary violations during his time there, was confined to his cell for 22 hours per day for 38 days – and confined to his cell for 21 hours per day for 8 days of his 51 days as a result of daily staffing shortages.
For too long, there has been a disturbing loophole that allowed the prison to thwart arguments by a prisoner that they were unlawfully deprived of their liberty under lockdowns when everyone else was locked down as well. If there was a staffing shortage that resulted in everyone being locked down, because everyone was equally in a terrible spot, no one was worse off, therefore no one’s liberty was deprived. Right?
Wrong as of January 12, 2024. As stated by Justice Rosinski:
[107] The further and very disconcerting consequence of the Attorney General’s reasoning and conclusion, is that as long as all general population inmates suffer a similar level of deprivation of residual liberty (no matter how severe), the Attorney General would never have to answer the question whether such (partial or total) lockdowns were “lawful” (i.e. that there was legislative authority therefor, and that the decisions made were “reasonable”), because the habeas corpus analysis would end with the answer that there is no material deprivation of residual liberty established.
His decision on the legality of lockdowns, and what the “normal” is – as normal as prison can be – was:
1-all general population inmates are prima facie entitled to as much time out of their cells per day as is reasonable in all the circumstances (suggested in the evidence here to be 10-12 hours when a full complement of staff are present at the jail) unless the Correctional Facility management can justify with reasons, a statutory and factual basis for proportionately reducing that prima facie standard.
Justice Rosinski also made suggestions to how the injustice can be remedied:
[33] To the extent that there remain ongoing daily staff shortages which cause material deprivations of residual liberty to other CNSCF inmates experiencing similar circumstances, there is utility by inclusion in these written reasons that the Court is suggesting that the Superintendent should consider preventing these in future, by:[13]
i) “Over staffing”- requiring more staff to muster each morning than the minimum that would otherwise be required, given the foreseeable potential absences each day, such that the chances of there being a less than full complement of staff are dramatically reduced.
ii) Transferring inmates from out of the Correctional Centre which is suffering from acute staffing shortages on an ongoing daily basis, to those that are not as locked down and have residual capacity to accept new inmates.
Transferring inmates from CNSCF to one or more of the other three Provincial Correctional Facilities has recently been tried.[14]
iii) Directly requesting that the Provincial and Federal Prosecution Services consider revisiting with Correctional Services, and counsel for inmates on remand, permitting some inmates to be placed on bail pending their trials; or for those serving sentences permitting Temporary Absences, which were all used during Covid 19 to make the CNSCF Public Health Protocol compliant.[15]
The problem of lockdowns in Nova Scotia prisons has been rampant in the last couple of years. The East Coast Prison Justice Society – I am a board member – issued a press release on November 7, 2023, about the deeply troubling lockdowns at Burnside:
Institutional lockdowns were employed during the COVID pandemic as an exceptional measure. However, instead of becoming less frequent as the pandemic’s intensity waned, lockdowns at Burnside have been used repeatedly over the past two years to manage chronic short staffing, and recently, in apparent response to opioid overdoses.
At Burnside, the majority of those affected by lockdowns are awaiting trial and presumed innocent. Lockdowns disrupt correctional programming, spiritual practices, visits with friends and family, medical treatment, contact with lawyers, and access to external agencies, including the East Coast Prison Justice Society. According to one of our callers, “things are worse than they have ever been.” Over the past five months, callers to our line have reported:
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- Up to 23 hours of daily cell confinement
- Lockdown conditions lasting for weeks at a time
- Limited access to health care services, spiritual practices, and personal hygiene supplies
- Lack of access to showers and clean clothes
- Limited phone access, hindering legal preparations and reporting of conditions of confinement to external agencies
Sadly, media did not pick up on the press release, and matters only became worse, with prisoners continuing to suffer inhumane lockdowns. Now, with the Diggs and Wiliband decisions, there is leverage to demand immediate change and a stop to the institutional lockdowns.
We cannot forget that the default is that prisoners have all their rights as held in the Supreme Court of Canada in Canada v. Solosky, [1980] 1 SCR 821: “A person confined to prison retains all of his civil rights, other than those expressly or impliedly taken from him by law” (p. 839). This decision was referenced by Justice Rosinski.
Prisons quite simply should not have been able to continue the abuses of prisoners’ liberty rights as have been taking place for staff shortages. They have had ample direction on where the standards lie, and they are abysmally off the mark. The United Nations Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) defines solitary confinement as “confinement of prisoners for 22 hours or more a day without meaningful human contact” (rule 44). The Rules prohibit the use of solitary confinement, unless as, “a last resort, for as short a time as possible and subject to independent review.” (Article 45). To be clear, the standard should be, as Justice Rosinski held, “as much time” out of cells as is reasonable, with the standard being 10 – 12 hours. The basis of the lockdowns in the staffing shortages is untenable in light of other options available to avoid lockdowns, including those Justice Rosinski pointed out.
The time that Mr. Diggs, as well as many others incarcerated at Burnside during the same period, have spent in solitary confinement due to staff-shortage based lockdowns has been several weeks. This could be prolonged solitary confinement, defined as “solitary confinement for a time period in excess of 15 consecutive days” (Rules 44). Beyond 15 days should be cruel and unusual treatment or punishment or at least a violation of security of the person, which was held to be the case by Ontario and British Columbia appeal courts in 2019. But it should be emphasized, again, just barely trying to avoid the worst case scenario of violation of fundamental rights reeks of utter dehumanization and bad faith. Splitting hairs over, for example, thirty minutes or an hour out of a cell beyond the minimum requirement of two hours, or fourteen days in lockdown rather than fifteen is offensive to the spirit of the law.
What next?
Pressure will come to bear on Burnside, other Nova Scotia prisons, and the province to act now to uphold the human rights of prisoners. There have been four deaths in custody in Nova Scotia jails in the past year, with one already in January 2024. Such a trend is unacceptable, and justice demands an immediate change.