Court of Appeal for Ontario
Date: August 23, 2017
Docket: C62234 & C62241
Judges: Strathy C.J.O., Laskin and Trotter JJ.A.
Between
Jamil Osai Ogiamien; Huy Nguyen
Applicants (Respondents)
and
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services, and the Superintendent of Maplehurst Correctional Complex and the Attorney General of Canada
Respondents (Appellants)
Counsel
Ian Hicks and Nicholas Dodokin, for the appellant the Attorney General of Canada
Hart Schwartz, Michael Dunn and Savitri Gordian, for the appellant the Attorney General of Ontario
Barbara Jackman, appearing as amicus curiae
Jamil Ogiamien, acting in person
Huy Nguyen, acting in person
Heard: February 21, 2017
On appeal from: The judgment of Justice Douglas K. Gray of the Superior Court of Justice dated May 10, 2016, with reasons reported at 2016 ONSC 3080, 132 O.R. (3d) 176.
Laskin J.A.:
A. Introduction
[1] Jamil Ogiamien and Huy Nguyen were detained at Maplehurst Correctional Complex, Ogiamien for three years and Nguyen for one year. Both had been remanded there. Ogiamien was awaiting an immigration hearing; Nguyen was awaiting a trial on firearms charges. During their detention, lockdowns were frequent. When a lockdown occurred at Maplehurst, inmates such as Ogiamien and Nguyen, who were housed in remand units and would typically have access to a dayroom and programs, instead remained locked in their cells.
[2] Both Ogiamien and Nguyen brought an application under s. 24(1) of the Canadian Charter of Rights and Freedoms, claiming that the lockdowns violated their rights under ss. 7, 9 and 12 of the Charter. As they were self-represented, the application judge appointed an amicus curiae to assist the court.
[3] In lengthy and thorough reasons, the application judge concluded that the frequent lockdowns subjected Ogiamien and Nguyen to cruel and unusual treatment contrary to s. 12 of the Charter. He found that most of the lockdowns resulted from staff shortages and that the frequency and duration of these lockdowns alone violated s. 12. He made no finding on either s. 7 or s. 9. He awarded Charter damages of $60,000 for Ogiamien and $25,000 for Nguyen, even though neither had specifically sought damages and neither the Attorney General of Ontario nor the Attorney General of Canada was given the opportunity to make submissions on whether Charter damages were an appropriate and just remedy for the s. 12 violations.
[4] The Attorney General of Ontario and the Attorney General of Canada appeal. They raise four issues:
Did the application judge overstate the frequency, duration and impact of the lockdowns affecting Ogiamien and Nguyen?
Was the treatment of Ogiamien and Nguyen under the lockdowns that affected them cruel and unusual contrary to s. 12 of the Charter?
Did the application judge err in awarding Charter damages without giving the Attorneys General an opportunity to make submissions on whether damages were an appropriate and just remedy?
If Ogiamien's and Nguyen's s. 12 rights were violated, were Charter damages an appropriate and just remedy?
[5] Amicus raises two additional issues:
If the lockdowns did not violate Ogiamien's and Nguyen's s. 12 rights, did they violate their s. 7 rights?
If no violation of s. 12 or s. 7 is found, is Nguyen entitled to the remedy of habeas corpus?
[6] I would answer the questions posed in the first three issues "yes", "no" and "yes". It is unnecessary to answer the question posed in the fourth issue. I would answer "no" to the questions posed in the fifth and sixth issues. Thus I conclude that the effect of the lockdowns did not violate Ogiamien's and Nguyen's Charter rights. In reaching that conclusion I emphasize that this case was not litigated as a general inquiry into the conditions and treatment of inmates at Ontario's maximum security correctional institutions, or even specifically at Maplehurst. The focus of this case was narrower: the effect of the lockdowns on the treatment of two inmates at Maplehurst.
B. The Main Legal Framework: Cruel and Unusual Treatment
[7] Although Ogiamien and Nguyen claimed violations of sections 7 and 9 of the Charter, the focus of their application was s. 12. Section 12 of the Charter guarantees that "[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment". This case is about treatment, not punishment. The lockdowns at Maplehurst were "an exercise of state control" over Ogiamien and Nguyen and amounted to "treatment" under s. 12: Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 611. And this court has held that the test to establish a violation of s. 12 is the same for treatment as it is for punishment: R. v. Olson, (1987), 62 O.R. (2d) 321 (C.A.) at p. 336, aff'd, [1989] 1 S.C.R. 296.
[8] To establish a violation of s. 12 a claimant need not show separately that the treatment is both cruel and unusual. The words "cruel" and "unusual" colour each other and together express a standard or norm. See Miller and Cockriell v. The Queen, [1977] 2 S.C.R. 680, at pp. 689-690.
[9] But "cruel and unusual" is a high bar to meet. The Supreme Court has used various expressions to describe this high bar: "so excessive as to outrage standards of decency"; "grossly disproportionate to what would have been appropriate"; "grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable". The point underlying these expressions is that merely excessive treatment or disproportionate treatment is not enough to establish a s. 12 violation. In the context of punishment the Supreme Court has cautioned against stigmatizing every excessive or every disproportionate sentence as being a constitutional violation. So too with treatment. See Miller and Cockriell, at p. 688; R. v. Smith, [1987] 1 S.C.R. 1045, at para. 54; R. v. Morrissey, 2000 SCC 39, at para. 26; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 39; and R. v. Tinker, 2017 ONCA 552, at para. 126.
[10] Lamer J.'s expression in Smith—"grossly disproportionate to what would have been appropriate"—suggests a two-step inquiry to determine whether treatment has been cruel and unusual. The first step establishes a benchmark. In this case step one looks at the treatment of Ogiamien and Nguyen under "appropriate" prison conditions—that is their treatment under ordinary conditions in the remand units when there were no lockdowns. Step two assesses the extent of the departure from the benchmark. In this case step two looks at the effect of the lockdowns on Ogiamien's and Nguyen's treatment. If the effect of the lockdowns resulted in treatment that was grossly disproportionate to their treatment under ordinary conditions then their s. 12 rights would be violated.
[11] The application judge followed this approach. He also took into account the reason for most of the lockdowns – staff shortages – and concluded that these lockdowns gave rise to treatment of Ogiamien and Nguyen that was grossly disproportionate or so excessive as to outrage standards of decency. In reaching his conclusion he made extensive findings on the ordinary conditions in the remand units at Maplehurst, in effect step one of the s. 12 inquiry. He also made findings on the treatment of inmates under lockdowns, in effect step two of the s. 12 inquiry.
[12] The Attorneys General accept the application judge's findings on the ordinary conditions in the remand units without lockdowns. And to some extent they accept his findings on conditions in the remand units when lockdowns were imposed. But they disagree with his findings on the frequency, duration and impact of the lockdowns affecting Ogiamien and Nguyen, and thus they disagree with his analysis of step two of the s. 12 inquiry. Their disagreement gives rise to the first and most important issue on the appeal: did the application judge overstate the frequency, duration and impact of the lockdowns affecting Ogiamien and Nguyen? To put that issue, as well as several of the other issues in context, I will summarize the application judge's findings on the conditions at Maplehurst and the treatment of inmates in the remand units.
C. Conditions at Maplehurst Correctional Complex
(1) The Institution
[13] Maplehurst is a large maximum security jail in Milton, Ontario. It houses adult males, typically 1000-1100 at a time.
[14] The categories of inmates comprise inmates who are serving a sentence of two years less a day, inmates who have violated parole, inmates who have been remanded and a small number of inmates on immigration holds.
[15] Maplehurst consists of eight living units: units 5, 6 and 7 are units for inmates who have been convicted and sentenced and are usually classified as a lower risk. Units 1, 8, 9, 10 and 11 are units for remanded inmates and inmates awaiting immigration hearings.[1]
(2) Ogiamien and Nguyen
[16] The application judge released his decision in May 2016. From April 2013 to the release of the decision, except for a few brief periods, Ogiamien was at Maplehurst among the general remanded population, mainly in unit 11. Ogiamien was detained under the Immigration and Refugee Protection Act, S.C. 2001, c. 27. He was detained at Maplehurst, a maximum security facility, because his criminal record made him unsuitable for detention at an immigration holding centre. In June 2016 Ogiamien was released from Maplehurst on conditions.
[17] Nguyen was remanded to Maplehurst in May 2015, as I have said awaiting trial on several firearms charges. He remained at Maplehurst continuously up to the release of the application judge's decision. Nguyen was also housed mainly in unit 11, but at the time of his application he was in unit 10.
(3) Ordinary Living Conditions in Remand Units 8, 9, 10 and 11
[18] Each of these four remand units is divided into six wings: A, B, C, D, E and F. Each wing houses 32 inmates and has 16 cells, so two inmates to a cell. Each wing in a unit has a dayroom where inmates may socialize, shower, watch television, read and make telephone calls. Each unit also has a doctor's office and a nurse's office, and a nurse is continuously on site.
[19] Because the remand units constitute a maximum security facility, continuous restrictions are imposed on the movement and liberty of inmates. These restrictions are imposed by physical barriers, close staff supervision and limited access to the community.
[20] The regular daily schedule for inmates, such as Ogiamien and Nguyen, in the remand units permits daily access to the dayroom six hours per day – two hours in the morning, two hours in the mid-to-late afternoon and two hours in the early evening. In addition, the inmates have access to the exercise yard 20-30 minutes a day, and have available a wide range of programs, everything from religious programs to anger management, addiction awareness, peer mentoring, individual counselling and many others. Visits from lawyers, family and friends are permitted up to three times per day, which typically coincide with the times inmates are in the dayroom.
[21] Inmates in the remand units eat all their meals in their cells, not in the dayroom. They are required to eat in their cells to minimize the possibility of bullying while eating their food. Each cell is 15 feet long, 7 ½ feet wide and 9 feet high. It has a toilet, sink, table, stool and a bunk bed for two inmates. Each cell also has a window to allow in natural light.
(4) Lockdowns at Maplehurst
(a) Types of Lockdowns
[22] Lockdowns at Maplehurst are of two types: a full lockdown, in which all remand units are locked down; and a partial lockdown, in which one or more but not all remand units are locked down. Full or partial lockdowns may last a full day or part of a day.
(b) Authority and Reasons for Lockdowns
[23] Generally, lockdowns are imposed to ensure the security of the institution and the safety of inmates and staff. They are authorized under the provisions of the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22 and the general regulations passed under that Act. The decision whether to order a lockdown rests with the superintendent responsible for the management of Maplehurst or with the superintendent's delegate. Standing Orders give the superintendent wide discretion on whether to order a lockdown and on the scope and duration of one if it is ordered "[s]ince no two situations are exactly alike".
[24] However, on my reading of the record, the superintendent exercises discretion to order a partial or full lockdown for one of four reasons:
To conduct searches, for example for weapons or drugs;
To deal with security related emergencies within the institution, for example when an inmate requires immediate medical help or has attempted suicide, or when inmates are engaged in serious assaults against each other;
To get an unusually large number of remanded inmates to their various court appearances, which can be at the Toronto, Milton, Burlington or Kitchener courthouses; or
To ensure the safety of inmates and staff where insufficient staff are available to maintain regular operations in a particular area of the institution.
[25] This last reason for lockdowns – insufficient staff – accounted for the vast majority of lockdowns at Maplehurst, led to Ogiamien's and Nguyen's application, and resulted in the application judge's finding of a s. 12 violation.
[26] Maplehurst may not have enough staff at any given time for several reasons: pre-authorized absences provided for by the collective agreement governing employees at Maplehurst; unscheduled absences also provided for by the collective agreement, for example a bereavement leave or emergency home care required for an ill child; the transfer of staff to another area of the institution for an emergency; not enough staff to backfill absences; a number of inmates requiring hospital escorts; and mandatory staff training.
(c) The Ministry's Efforts to Reduce Staff Absences and Increase the Number of Correctional Officers
[27] When a correctional officer is absent without advance notice, the Ministry can call on fixed term employees (on contract) to backfill a vacant position. Or, the Ministry can offer overtime pay to fill a temporary vacancy. Working overtime, however, is voluntary, and especially during negotiations for a new collective agreement staff will not sign up for it.
[28] In 2009, the Attendance Support Management Pilot Program was introduced into the collective agreement. The Program provides a financial incentive to encourage correctional officers to maintain good attendance. The Program helped reduce staff absences but they still remained high. In 2013, the parties to the collective agreement agreed to reduce compensation for sick days, a measure also aimed at reducing staff absences.
[29] In addition to taking steps to reduce absences among existing staff, the Ontario government identified training new correctional officers as a priority over the next three years to increase staff levels in Ontario correctional institutions.
[30] The recruitment and training of new correctional officers takes between six months and a year. And the capacity to train new officers depends on the availability of existing correctional officers to do the training. Most training by correctional officers is on a voluntary basis. At the beginning of collective bargaining in 2014 and into the first five months of 2015, correctional officers refused to do any training. Still, Ontario plans to recruit and train 600 to 700 new correctional officers per year between 2016 and 2020. Some have already completed their training and have been assigned to Maplehurst.
(d) General Conditions Under Lockdowns
[31] The general conditions under lockdowns at Maplehurst and their impact on the inmates in the remand units provide context for the impact of the lockdowns affecting Ogiamien and Nguyen.
[32] Maplehurst contends that lockdowns are a measure of last resort. But it also concedes that lockdowns create a difficult environment for inmates and staff. They are unpredictable. They create stress, anxiety and tension because inmates are in conditions of close confinement during the period of the lockdown. Access to the dayroom and the exercise yard is curtailed. So is access to many of the programs otherwise available. Access to showers, clean clothes and bedding is restricted.
[33] Still, although essential programs may be delayed during a lockdown, they are maintained. These programs include court attendances, lawyer visits, immigration detention reviews and importantly, health care services, such as daily medication rounds and visits to doctors. Other programs, such as showers, telephone access and personal visits, are maintained where possible.
[34] Unit managers have discretion to try to minimize the disruption of normal operations caused by a lockdown. For example, they may be able to unlock the cells for small groups of inmates at a time, thus facilitating access to showers and the use of telephones. The application judge found that "the correctional authorities attempt, as best they can, to ameliorate the impact of lockdowns when they occur". He added, however, that in his view "those attempts, by and large, are ineffective".
[35] The application judge found that the statistical evidence on the frequency of lockdowns yielded the following percentages:
2014 – lockdowns occurred on 46% of the days
2015 – lockdowns occurred on 55% of the days
January-March 2016 – lockdowns occurred on 40% of the days
[36] And as I have said, staff shortages were responsible for the overwhelming percentage of these lockdowns. But these statistics reflect the overall percentages of lockdowns throughout all of the remand units. They do not reflect the frequency or even the duration of lockdowns specifically affecting Ogiamien and Nguyen. The frequency and duration of those lockdowns and their impact on Ogiamien and Nguyen give rise to the first issue on appeal, to which I now turn.
D. The Issues
(1) Did the Application Judge Overstate the Frequency, Duration and Impact of the Lockdowns Affecting Ogiamien and Nguyen?
[37] Under step two of the s. 12 inquiry the court has to consider the effect of the lockdowns on the treatment of Ogiamien and Nguyen. The application judge concluded that as a result of the lockdowns their treatment was so excessive as to outrage standards of decency, or was grossly disproportionate to their treatment under ordinary conditions at Maplehurst. The Attorney General of Ontario and the Attorney General of Canada submit that in reaching this conclusion the application judge significantly overstated the frequency, duration and impact of the lockdowns affecting Ogiamien and Nguyen. Amicus acknowledges that the application judge misstated the frequency of the lockdowns. I agree with the submission of the Attorneys General.
(a) Frequency of the Lockdowns Affecting Ogiamien and Nguyen
[38] In his analysis of whether s. 12 had been violated, the application judge found (at para. 246 of his reasons): "For the time that is covered by this application, the relevant units at Maplehurst have been locked down for about 50 per cent of the time. Indeed, in 2015 they were locked down for 55 per cent of the time." These percentages capture the total number of lockdowns at Maplehurst, either full or partial. But these percentages significantly overstate the percentages of days where lockdowns affected either Ogiamien or Nguyen, because the overall percentages do not properly take into account partial lockdowns that did not affect the units where Ogiamien and Nguyen were housed, or the times when either Ogiamien or Nguyen was absent from Maplehurst during a lockdown.
[39] This litigation is about the s. 12 rights of Ogiamien and Nguyen, not the rights of all remanded inmates at Maplehurst. The correct percentages when Ogiamien's and Nguyen's units were under a lockdown that affected them are as follows[2]:
Ogiamien – 2014: 22%
Ogiamien – 2015: 30%
Ogiamien – 2016: 22%
Nguyen – 2015: 33%
Nguyen – 2016: 22%
These percentages are significantly less than the percentages the application judge relied on.
(b) Duration of Lockdowns
[40] The application judge also found (at paras. 247 and 257 of his reasons) that: "During the times when the units are locked down, inmates are held in their cells for 24 hours per day … If a lockdown occurs, an inmate will be locked in his cell for 24 hours per day."
[41] The record does not support this finding. Instead, the record shows that lockdowns may occur for only part of a day, and for the remainder of that day remanded inmates had full access to services and programs, including access to the dayroom. For example, in the 214 day period from May 1 to November 30, 2015, approximately one third of the lockdowns affecting Ogiamien and Nguyen were only for part of the day.[3]
(c) Impact of the Lockdowns Affecting Ogiamien and Nguyen
[42] As the application judge fairly noted the general impact of a lockdown, which I have discussed earlier, also affected Ogiamien and Nguyen. Nguyen, for example, gave evidence that during a lockdown he had a lot of stress, no stimuli, no exercise and no personal visits from family and friends. Ogiamien testified that during a lockdown he was denied any form of programming, clean linen and clothes, and access to a telephone.
[43] However, both Ogiamien and Nguyen acknowledged that during a lockdown the staff tried its best to maintain access to essential services and programs, including medical services and visits with their lawyer. Nguyen also acknowledged that during lockdowns he was able to access the shower program; Ogiamien, on the other hand, claimed that he was denied a shower for a week or more at a time.
[44] I accept that the conditions at Maplehurst under a lockdown caused hardship for Ogiamien and Nguyen. But in assessing the impact of the lockdowns, respectfully, the application judge made two findings with which I cannot agree. One finding is contrary to the record; the other is not supported by the record.
[45] First, at para. 250 of his reasons, the application judge found that "Messrs. Ogiamien and Nguyen, not being convicted criminals, are forced to share their time in incarceration with convicted offenders." In making this finding the application judge referred to international standards for prisoners, which prescribe that "[u]ntried prisoners shall be kept separate from convicted prisoners".[4]
[46] The application judge was mistaken. Inmates in the remand unit at Maplehurst do not share their time in their cells with inmates who have been convicted and are serving a sentence. They share their time in cells with other inmates on remand.
[47] Second, at para. 252 of his reasons, the application judge considered the conditions of detention during lockdown as tantamount to segregation or solitary confinement. He wrote:
Here the concern is magnified. The conditions of detention during lockdowns are very close to segregation or solitary confinement. In some ways they are worse. The inmate is holed up with another inmate not of his choosing. The actual periods of confinement for 24 hours a day are entirely arbitrary, and unpredictable, both as to timing and length.
[48] I do not think the comparison is apt. Lockdowns are, I agree, unpredictable. And the inmate is "holed up with another inmate not of his choosing". However, the jurisprudence suggests that arbitrariness is at most a minimal consideration in the s. 12 inquiry. See Smith, at para. 63. And even if it had more relevance, lockdowns are not imposed arbitrarily; they are imposed for reasons of safety and security.
[49] More important, I think it is unwise to compare conditions under lockdowns at Maplehurst with conditions under solitary confinement, at least without expert evidence comparing the impact of each. Yet no expert evidence was led in this case to support the application judge's finding that sharing a cell during a lockdown is "in some ways worse" than solitary confinement. Moreover, it is at least fair to say that the physical and social isolation and the resulting psychological and physical effects that accompany solitary confinement are not present when an inmate shares his cell with another inmate. During a period of a lockdown, the two inmates can converse with each other, play cards or board games, even watch television through the window of the door to their cell (depending on the cell's angle).
(d) Summary
[50] In summary the lockdowns affecting Ogiamien and Nguyen occurred about half as frequently as found by the application judge, in some instances were of a shorter duration and had less of an impact than found by the application judge.
(2) Was the Treatment of Ogiamien and Nguyen Under the Lockdowns That Affected Them Cruel and Unusual Contrary to s. 12 of the Charter?
[51] The application judge concluded that the lockdowns resulted in treatment of Ogiamien and Nguyen that "was so excessive as to outrage standards of decency, was disproportionate and was degrading", and so violated s. 12. His conclusion appears to have been driven by three considerations: first, the frequency, duration and impact of the lockdowns; second, the reason for the great majority of the lockdowns – staff shortages; and third, the decision of Nordheimer J. in R. v. Jordan, [2002] O.J. 5250 (S.C.J.).
[52] Amicus supports the application judge's conclusion and the considerations he relied on. And she adds a fourth consideration to support his finding of a s. 12 violation: she submits that the conditions at Maplehurst among the remanded population were already so onerous that the effect of the lockdowns on top of these onerous conditions gave rise to cruel and unusual treatment.
[53] In my opinion, none of these considerations, taken individually or collectively, supports a conclusion that the s. 12 rights of Ogiamien and Nguyen were violated. Their treatment under lockdowns undoubtedly added to the hardships they experienced at Maplehurst but it was not treatment that met the high bar of being grossly disproportionate or so excessive as to outrage standards of decency.
[54] The first consideration is the key consideration. In determining whether treatment is cruel and unusual the focus must be on the effect of the conduct in question, here the lockdowns. Did their frequency, duration and impact give rise to cruel and unusual treatment?
[55] As I have discussed, the application judge significantly overstated the extent of the lockdowns affecting Ogiamien and Nguyen. In his analysis, at para 246, which I quoted earlier, lockdowns occurred about 50 percent of the time, and 55 percent of the time in 2015, or on average 15-17 days a month. But as I have tried to illustrate, the lockdowns affecting Ogiamien occurred only 22% of the time or on average 6-7 days a month in two of the three years he was at Maplehurst, and 30-33% of the time or on average 10 to 11 days a month in the third year Ogiamien was at Maplehurst and in the twelve months Nguyen was there.
[56] Also, on the application judge's analysis, during lockdowns Ogiamien and Nguyen were essentially locked in their cells 24 hours a day. But the record shows that some of the lockdowns lasted only a morning, an afternoon, an evening or perhaps two thirds of a day, after which remanded inmates, including Ogiamien and Nguyen, had access to the dayroom, showers, telephones and regular programs. Finally, the application judge overstated the impact of the lockdowns by finding – wrongly – that Ogiamien and Nguyen were locked in a cell with a convicted criminal, and by equating conditions under a lockdown to segregation or solitary confinement.
[57] I accept that the effect of lockdowns in a correctional facility can give rise to cruel and unusual treatment. And I accept that though some lockdowns are inevitable in a maximum security facility, while Ogiamien and Nguyen were at Maplehurst lockdowns occurred more often than they should have. Had I agreed with the application judge's findings on frequency, duration and impact I might well have deferred to his conclusion. But it seems to me that the lockdowns that did affect Ogiamien and Nguyen did not occur with such frequency or last so long or have such an adverse impact to give rise to cruel and unusual treatment. The treatment of Ogiamien and Nguyen under lockdowns compared to their treatment under ordinary conditions may have been excessive or disproportionate, but it was not grossly disproportionate. Thus their treatment did not meet the high bar required to establish a s. 12 violation.
[58] Further, while these lockdowns occurred Ogiamien and Nguyen were not entirely foreclosed from the services and programs they ordinarily had. They still received necessary medical attention, could meet with their lawyers, could on occasion use showers and telephones, and were transported to their court appearances.
[59] The second consideration the application judge relied on was the reason for the vast majority of the lockdowns – staff shortages. Drawing on decisions such as this court's judgment in R. v. Olson, he commented at para. 234 of his reasons:
[T]he conditions of incarceration must be judged based, at least in part, on the reasons why they are imposed. In cases where they are imposed because of legitimate safety and security considerations, the imposed condition cannot be said to be cruel and unusual. However, in other circumstances, that might not be so.
[60] The application judge then distinguished between lockdowns due to staff shortages and lockdowns due to safety and security concerns. In his view, lockdowns caused by staff shortages are not imposed for "legitimate safety and security concerns. Rather, they arise because the Ministry has been unwilling or unable to have sufficient staff available". He concluded, at para. 267, that the lockdowns caused by staff shortages violated Ogiamien's and Nguyen's s. 12 rights:
For the foregoing reasons, I conclude that the rights of Mr. Ogiamien and Mr. Nguyen under s. 12 of the Charter have been violated, by virtue of the lockdowns to which they have been subjected since their incarceration at Maplehurst, and the adverse conditions to which they have been subjected during those lockdowns. The actual lockdowns that give rise to the violations are those that occurred because of the staff shortages. However, those lockdowns were exacerbated by the additional lockdowns that occurred for safety and security reasons. In other words, if the only lockdowns that occurred were on account of staff shortages, they would have constituted a violation of s. 12 because of their frequency and duration. Because of the additional lockdowns that occurred, the impact of the staff shortage lockdowns was greater.
[61] I do not agree with the application judge's reasoning in these paragraphs. At bottom, even lockdowns imposed because of staff shortages are imposed to ensure the security of the institution and the safety of staff and inmates. Without sufficient staff Maplehurst cannot guarantee safety and security under ordinary living conditions in the remand units. So it imposes a lockdown.
[62] But as important, it is not the reason for the lockdowns but their effect on treatment that is the focus of the s. 12 inquiry – in this case the denial of privileges and programs Ogiamien and Nguyen ordinarily had when not locked down, and the stress that came with being confined with another person in close quarters for an extended period of time. In Smith at para 64, Lamer J. made the point that "a punishment is or is not cruel and unusual irrespective of why the violation has taken place". Applying his point to this case, the treatment of Ogiamien and Nguyen was or was not cruel and unusual regardless of the reason why the lockdowns were imposed.
[63] Still, I can appreciate why the application judge distinguished among the reasons for the lockdowns. It is one thing to impose a temporary lockdown because of widespread fighting among inmates or because of the need to search for weapons and drugs. It is quite another to impose frequent lockdowns because the institution has not enough correctional officers to supervise regular operations. I think it is at least fair to say that if frequent lockdowns due to staff shortages led to the treatment of an inmate that was grossly disproportionate to what was appropriate administrative expediency or convenience would not come to the rescue of the Charter violation. In other words, had the frequency, duration and impact of the lockdowns due to staff shortages resulted in treatment so excessive as to outrage standards of decency, the pre-authorized or unscheduled unavailability of correctional officers would have been no answer to Ogiamien's and Nguyen's Charter claims. I simply conclude that on the record before us, the treatment of Ogiamien and Nguyen caused by the lockdowns did not rise to the level of a s. 12 violation.
[64] The third consideration the application judge relied on was R. v. Jordan. In that case, as the application judge noted, Nordheimer J. identified the problem of lockdowns caused by staff shortages. Yet in conditions far worse than at Maplehurst, he found no violation of s. 12.
[65] In Jordan, the accused was detained at the Toronto East Detention Centre. He applied for bail pending his trial on charges that included attempted murder. He complained that his treatment at the Centre was cruel and unusual. Nordheimer J. found that the Toronto East Detention Centre was "overcrowded and understaffed". Three inmates were assigned to cells designed for two inmates. Lockdowns for security occurred frequently – 13 in one of the months for which there was evidence. Although Nordheimer J. said that he did not wish "to be seen as countenancing the state of affairs in the detention facilities", in his view the conditions in the Centre did not amount to cruel and unusual treatment of the accused. Jordan does not support the application judge's conclusion.
[66] Finally, I will address amicus' submission that in considering whether a s. 12 violation has been made out we must take as a starting point that ordinary conditions at Maplehurst, even without lockdowns, were already very onerous. One example of onerous conditions, cited by amicus and briefly discussed by the application judge, is double bunking, two inmates to a cell. Double bunking is contrary to the United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), which call for untried prisoners to "sleep singly in separate rooms".
[67] I do not accept amicus' submission. As I stated in the introduction, this case was not litigated as an inquiry into ordinary conditions of detention at Maplehurst. It is a case about the effect of lockdowns on the treatment of Ogiamien and Nguyen. Still, I share Nordheimer J.'s concern not to be understood as countenancing the conditions in remand detention facilities. Indeed, courts have frequently recognized the onerous conditions inmates suffer in pre-trial detention. See R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 2.
[68] But no evidence was led that conditions in the remand units at Maplehurst were any worse or more onerous than at any other maximum security institution. No evidence was led about the impact of double bunking or of any other conditions of detention at Maplehurst. What was before the application judge and before this court was whether the treatment of Ogiamien and Nguyen under lockdowns, compared to their treatment under ordinary living conditions, rose to the level of cruel and unusual treatment. I conclude that it did not.
[69] I would set aside the application judge's conclusion that Ogiamien's and Nguyen's s. 12 rights were violated because of lockdowns.
(3) Did the Application Judge Err in Awarding Charter Damages Without Giving the Attorneys General an Opportunity to Make Submissions on Whether Damages Were an Appropriate and Just Remedy?
[70] As I would hold that the lockdowns did not violate the s. 12 rights of Ogiamien and Nguyen, it is not necessary to deal with the application judge's damages award. Still I will comment briefly on the procedure he followed.
[71] The application judge acted on his own initiative in awarding Ogiamien and Nguyen damages for the violation of their s. 12 rights. Neither Ogiamien nor Nguyen nor amicus sought damages under the Charter and the parties were not given any opportunity to make submissions on whether Charter damages ought to have been awarded.
[72] Specifically, neither Ogiamien nor Nguyen sought damages in their notice of application. Amicus delivered a notice of constitutional question but it too did not contain a claim for damages (although, in fairness, it did request a "just and appropriate remedy under s. 24(1) of the Charter"). The mandatory notice of claim under s. 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990 c. P.27 also was not given. Although self-represented litigants should have wide latitude in the way they give notice, in this case none of the documents the applicants filed, or that were filed on their behalf, alerted the Attorneys General that damages were being sought. Ogiamien and Nguyen, and amicus, sought only two remedies for a violation of s. 12: an order prohibiting future lockdowns at Maplehurst because of staff shortages, and an order transferring Ogiamien to an immigration holding centre.
[73] The Attorneys General submit that the lack of notice and an opportunity to make submissions on damages amount to a denial of procedural fairness. On that ground alone they contend that even if we were to uphold the application judge's finding of a violation of s. 12, his awards of damages cannot stand. Amicus, too, concedes that the case would have to be returned to the trial court for a hearing on damages.
[74] I agree with the position of the Attorneys General and amicus. Even if I were to uphold the s. 12 violations I would set aside the awards of damages because of a denial of procedural fairness. I would thus answer "yes" to the question raised by this issue.
(4) If Ogiamien's and Nguyen's s. 12 Rights Were Violated, Were Charter Damages an Appropriate and Just Remedy?
[75] Under s. 24(1) of the Charter, a court may order any remedy it "considers appropriate and just" for a Charter violation. The range of available remedies includes damages.
[76] In awarding Ogiamien and Nguyen damages for a violation of their s. 12 rights, the application judge applied the four step analysis prescribed by the Supreme Court of Canada in Ward v. City of Vancouver, 2010 SCC 27, [2010] 2 S.C.R. 28. The Attorneys General submit that the application judge misapplied Ward.
[77] In the light of my conclusion that s. 12 was not violated, it is unnecessary to address the application judge's assessment of damages. Nor would it be beneficial to do so as he made his assessment without the benefit of submissions from the parties.
(5) If Lockdowns Did Not Violate Ogiamien's and Nguyen's s. 12 Rights, Did They Violate Their s. 7 Rights?
[78] Amicus puts forward the alternative submission that even if the lockdowns did not violate the s. 12 rights of Ogiamien and Nguyen they violated their s. 7 rights. Section 7 was raised before the application judge but he made no finding on it. He assumed, without deciding, that s. 7 "need not be considered if this case otherwise falls under s. 12." He also assumed, without deciding, that "if a violation of s. 12 is not found there is no residual right under s. 7 that is left to be adjudicated." I have found no violation of s. 12. In my view, it is not necessary to decide whether there can be a residual s. 7 violation where no s. 12 breach has been found because Ogiamien and Nguyen cannot establish that the lockdowns violated their s. 7 rights.
[79] Section 7 of the Charter guarantees that "[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Ogiamien and Nguyen do not argue that their initial detention at Maplehurst amounted to a breach of their s. 7 rights. They argue, instead, that the frequent lockdowns deprived them of their "residual" liberty, which is protected by s. 7, and that the deprivation was not in accordance with the principles of fundamental justice because it was imposed arbitrarily. I do not accept either branch of this argument.
[80] In the recent case of Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392, at para. 57, Wagner J. quoted a passage from the earlier judgment of McLachlin J. in Cunningham v. Canada, [1993] 2 S.C.R. 143, in which she discussed the standard for showing that an inmate's conditions of confinement can amount to a further or residual deprivation of liberty under the first branch of s. 7:
Generally speaking, offenders have constitutionally protected expectations as to the duration, but not the conditions, of their sentences. Various changes in the management of an offender's parole are not punitive, even though they may engage the offender's liberty interest by marginally increasing the likelihood of additional incarceration. McLachlin J. (as she then was) held as follows in Cunningham:
The Charter does not protect against insignificant or "trivial" limitations of rights …. It follows that qualification of a prisoner's expectation of liberty does not necessarily bring the matter within the purview of s. 7 of the Charter. The qualification must be significant enough to warrant constitutional protection. To require that all changes to the manner in which a sentence is served be in accordance with the principles of fundamental justice would trivialize the protections under the Charter. To quote Lamer J. in Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459, at p. 464, there must be a "substantial change in conditions amounting to a further deprivation of liberty". [p. 151] (my emphasis)
[81] In my view, the frequency, duration and impact of the lockdowns affecting Ogiamien and Nguyen caused a change in their conditions of incarceration at Maplehurst, but not a substantial change. During a lockdown neither was singled out or dealt with more harshly than any other inmate in the remand units. Neither was placed in administrative segregation. Neither was transferred to a different and higher risk or higher security correctional institution. These latter instances might have amounted to a substantial change sufficient to trigger a deprivation of Ogiamien's and Nguyen's residual liberty under s. 7. The lockdowns did not.
[82] And even if the lockdowns deprived Ogiamien and Nguyen of their residual liberty under s. 7, the deprivations were nonetheless in accordance with the principles of fundamental justice. Law or policy will not be in accordance with the principles fundamental justice when it is arbitrary, that is when no rational connection exists between its purpose and its effects on liberty: Canada (Attorney General) v. Bedford, 2013 SCC 71, at para. 111.
[83] Lockdowns at Maplehurst are unpredictable. Indeed lockdowns are a necessary response to unpredictable events, be they unscheduled staff absences, inmate altercations, or an urgent need to check for weapons. But lockdowns are not arbitrary. The primary purposes of a lockdown are to ensure the security of the institution and the safety of the staff, inmates and even the community. Even lockdowns imposed because of staff shortages have as their underlying purposes security and safety.
[84] These purposes are rationally connected to their effects. Locking inmates in their cells during lockdowns, imposed for example because of staff shortages, enhances security and the safety of everyone at Maplehurst. And where possible unit managers at Maplehurst try to mitigate the adverse effects of lockdowns by, for example, permitting groups of inmates at a time to use the showers and the telephones.
[85] The frequent lockdowns at Maplehurst did not violate the s. 7 rights of Ogiamien and Nguyen.
(6) If No Violation of s. 12 or s. 7 is Found, Is Nguyen Entitled to the Remedy of Habeas Corpus?
[86] The ancient remedy of habeas corpus – literally "you have the body" – is enshrined in s. 10(c) of the Charter: "Everyone has the right on arrest or detention … to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful." Amicus submits that if we were to overturn the application judge's finding of a s. 12 violation and to reject her argument on s. 7 we should grant Nguyen the remedy of habeas corpus and order his release from Maplehurst. Amicus does not seek habeas corpus relief for Ogiamien as he was released from Maplehurst before this appeal was heard.
[87] In their original notice of application, Ogiamien and Nguyen sought habeas corpus. The application, however, soon focused on whether their s. 12 rights had been violated. Habeas corpus was raised but not pressed before the application judge. He referred to it briefly in his reasons but made no finding on it. In this court it was again raised by amicus but not strongly argued. I would not grant Nguyen relief by habeas corpus. In my view this case turns solely on s. 12 of the Charter.
[88] As I have said, Nguyen does not challenge his detention at Maplehurst. As with his other Charter claims he challenges the conditions of his detention. Although habeas corpus is an extraordinary remedy it is available not just for detention itself but for the conditions of an inmate's detention. See R. v. Miller, [1985] 2 S.C.R. 613. In the latter situation, however, habeas corpus may remedy living conditions in a prison where the inmate faces physical confinement or a deprivation of liberty that is more restrictive than the confinement of other inmates. Typically habeas corpus has been granted where a prisoner has been placed in administrative segregation, confined in a special handling unit or transferred to a higher security institution.
[89] In the present case, Nguyen did not face conditions of confinement more restrictive than those faced by other remanded inmates. And I have already concluded that his conditions under lockdown did not rise to the level of cruel and unusual treatment. In my opinion Nguyen is therefore not entitled to the remedy of habeas corpus.
E. Conclusion
[90] I conclude that the lockdowns at Maplehurst did not violate Ogiamien's and Nguyen's Charter rights. I would allow the Attorneys General's appeals, set aside the order of the application judge and dismiss the application.
[91] The application judge held that this was not a case for costs, and I agree. I would make no costs order.
Released: August 23, 2017
"John Laskin J.A."
"I agree. G. R. Strathy C.J.O."
"I agree. G.T. Trotter J.A."
Footnotes
[1] Unit 1 is not a general population unit. Units 2, 3 and 4 comprise the Vanier Centre for Women, a separate institution.
[2] The record does not contain any information about Ogiamien's absences from Maplehurst for 2014 or 2016 or about Nguyen's absences for 2016. The information about Nguyen's absences for 2015 also appears incomplete.
[3] The record only discloses information on the duration of the lockdowns for the period between May 1 and November 30, 2015. Nevertheless, this information shows that the application judge's conclusion that each lockdown was necessarily for a 24 hour period is inaccurate. For some days, the record does not stipulate when a lockdown ended or states that the information is "unknown".
[4] United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), GA Res. 70/175, UNGA, 70th Sess., UN Doc. A/Res/70/175 (2015).
