COURT FILE NO.: 13-13118
DATE: 20140116
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN and
The Ministry of Community Safety and Correctional Services
Respondents
– and –
Steven Boone
Applicant
Meaghan Cunningham, for the Provincial Crown
Brian G. Whitehead and Melanie Goren, for the Ministry
Paul Champ, for the Applicant
HEARD: December 11 and 13, 2013
REASONS FOR DECISION ON APPLICATION FOR HABEAS CORPUS
R. SMITH J.
[1] Steven Boone (“Mr. Boone”) has brought an application for an order for habeas corpus, requiring the Superintendent of the Ottawa-Carleton Detention Centre (“OCDC” or the “Superintendent”) to remove him from administrative segregation and place him in the general population of the prison with a cellmate.
[2] The applicant has been convicted on three counts of attempted murder, three counts of aggravated sexual assault, two counts of administering a noxious substance, one count of attempt to administer a noxious substance and one count of breach of probation. The above convictions result from the applicant attempting to infect individuals with Human Immunodeficiency Virus (“HIV”) by having unprotected sexual relations without disclosing his HIV positive status.
[3] The applicant was convicted of two counts of aggravated sexual assault in Kitchener, Ontario and sentenced to time served, with enhanced credit for four and a half years.
[4] The applicant submits that the Superintendent has failed to conduct the required review of his segregation every five days as mandated by section 34(3) of the Regulation. The applicant further submits that there has been a denial of procedural fairness to him, by failing to allow him to make submissions and failing to advise him of the reasons for his continued segregation from the general prison population without a cellmate.
[5] The applicant has been held in administrative segregation, at the OCDC since May 29, 2013, a period of 168 days to December 11, 2013. The applicant is awaiting sentencing on the Ottawa charges including the attempted murder convictions in January of 2014. The applicant is also facing a long-term offender application commencing on January 20, 2014.
[6] The Deputy Superintendent testified that the applicant has been placed in segregation to protect other inmates from his manipulative sexual behaviour and possible infection with HIV. The Superintendent is aware of incidents of sexual activities between the applicant and other inmates while he was being held at the OCDC. The Superintendent denied that the applicant’s sexual orientation or the fact that he is HIV positive was the reason he has been placed in administrative segregation. I accept his evidence in this regard.
[7] The Superintendent further testified that the applicant was given an opportunity to make submissions on his continued segregation, every five days, and was adequately advised of the reasons for his continued detention by Mr. Nolet.
[8] The Provincial Crown’s (the “Crown”) position is that even if I were to find that there has been a breach of procedural fairness to the applicant, the remedy of directing the Superintendent to place the applicant in the general prison population with a single cellmate is inappropriate because it would be very unsafe for a cellmate to be placed with the applicant. Further the Crown argues that the OCDC’s offer to place the applicant in the medical wing with several other prisoners and allow him to have regular contact with them, in a common area, during the day is a reasonable proposal. The Crown’s further submits that OCDC’s proposal to transfer the applicant to the Cambridge facility where he would be placed in a single cell at night but have access to the common area with other prisoners during the day, would also be a reasonable proposal.
Analysis
Has the Superintendent Shown that the Applicant’s Detention in Administrative Segregation is Lawful?
[9] The Superintendent acknowledged that placing the applicant in administrative segregation constitutes a deprivation of liberty and that the applicant has met his onus of showing that there has been a further deprivation of his liberty by placing him in segregation. As a result, the onus of establishing the lawfulness of his continued deprivation for over 168 days rests on the detaining authority.
[10] Regulation 778 promulgated under the Ministry of Correctional Services Act, (the “Regulation”) R.R.O. 1990, deals with segregation of inmates. Section 34 of the Regulation states as follows:
- (1) The Superintendent may place an inmate in segregation if,
(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;
(c) the inmate is alleged to have committed a misconduct of a serious nature; or
(d) the inmate requests to be placed in segregation.
(2) When an inmate is placed in segregation under clause (1) (c), the Superintendent shall conduct a preliminary review of the inmate’s case within twenty-four hours after the inmate has been placed in segregation and where the Superintendent is of the opinion that the continued segregation of the inmate is not warranted, the Superintendent shall release the inmate from segregation.
(3) The Superintendent shall review the circumstances of each inmate who is placed in segregation at least once in every five-day period to determine whether the continued segregation of the inmate is warranted.
(4) An inmate who is placed in segregation under this section retains, as far as practicable, the same benefits and privileges as if the inmate were not placed in segregation.
(5) Where an inmate is placed in segregation for a continuous period of thirty days, the Superintendent shall report to the Minister the reasons for the continued segregation of the inmate.
[11] Francis Nolet, the Deputy Superintendent, testified that the applicant was placed in administrative segregation when he returned from Maplehurst on May 29, 2013 pursuant to section 34(1)(a) and (b) of the Regulation. Mr. Nolet testified that he initially advised the applicant that he was being placed in segregation while he investigated allegations of prior sexual activity by the applicant with other inmates at OCDC. Mr. Nolet was aware of evidence that the applicant had engaged in sexual relations with various other inmates in the institution before he was transferred to Maplehurst.
[12] Mr. Nolet discovered a letter to M.D. which confirmed that there had been consensual sexual relations between M.D. and the applicant during 2012. The applicant repeatedly requested by letter that M.D. be assigned as his cellmate.
[13] Mr. Nolet spoke with M.D. who advised him that he did not want to have any contact with the applicant. M.D. has been transferred to the St. Lawrence Valley Correctional and Treatment Centre which provides treatment and counselling for inmates with mental illness.
[14] Mr. Nolet was ultimately unsuccessful in obtaining any cooperation from other inmates with regards to the allegations that the applicant had engaged in sexual relations with inmates other than M.D.
[15] The letter from the applicant to M.D. revealed that the applicant is a highly manipulative character. He both professed to love M.D. and then threatened to expose him on Google and social media by publishing the fact that M.D. had engaged unprotected sexual relations with an HIV positive man, and as a result he told M.D. that no girl would want to be with such a person and that he was his forever.
[16] The Institution does not permit sexual relations between inmates, but the nurses do provide the inmates with condoms and lubricant if requested.
[17] The applicant had requested and had been given condoms along with lubricant in April and May of 2012. Mr. Boone testified that he gave the condoms and lubricant to other inmates. The applicant requested condoms and lubricant on four occasions, three times in April and once in May of 2012. The Superintendent submits that if the applicant requested condoms and lubricant on four occasions that it is most likely that he was engaged in sexual activities with other inmates.
[18] From the above evidence, I am satisfied that the Superintendent was aware that the applicant had been engaged in a sexual relationship with M.D., had heard rumours that the applicant had engaged in sexual activities with other inmates, and was aware that the applicant had previously requested and been provided with condoms and lubricant on four different occasions. As a result, I find the Superintendent had reasonable grounds to believe that the applicant was engaging in sexual activities with other inmates while he was detained at OCDC.
[19] The Segregation Decision/Review form completed by Mr. Nolet, is attached at exhibit C to Mr. Nolet’s affidavit sworn December 5, 2013. Mr. Nolet testified that he filled in the first part of the form, which included the section “Inmate advised of an opportunity to make oral or written submissions” in his office before he went to meet with the applicant to discuss his continued segregation. The space on the form to summarize the inmate’s submissions was left blank and the reason given on the form for continued detention was: “Admitted to [segregation] for: Own protection/security”.
[20] Mr. Nolet testified that what he meant by “security” was both the applicant’s security and the security of other inmates. The first page of the form was dated and signed on May 29, 2013 and again on June 3, 2013. Every five days, thereafter, Mr. Nolet used the same form and indicated that the reason for continued detention was “security”. He initialled the forms every five days thereafter indicating that he had reviewed the applicant’s continued segregation and had decided that it had to continue.
[21] On July 10, 2013 the District Administrator, Brian Patterson, reviewed the form completed by Mr. Nolet and indicated that he supported continued segregation, but that Mr. Nolet should complete the front of the form and state the “security” reason.
[22] The applicant disputes that a hearing or meeting was ever held by Mr. Nolet on May 29 or 30, 2013. He testified that his requests to be transferred from segregation were always refused without reasons and that Mr. Nolet would tell him that he knew the reason or often stated that he was kept in segregation “for liability reasons”. Mr. Boone also testified that Mr. Nolet told him many times that “you should know the reasons”.
[23] The applicant wrote numerous letters which are included in the evidence requesting that a cellmate be placed with him at OCDC. Initially, he specifically requested that M.D. be placed with him but M.D. advised Mr. Nolet that he wanted no further contact with the applicant. The applicant also requested that T.J. and D.B. become his cellmate. Mr. Nolet investigated and contacted both individuals. The applicant told Mr. Nolet that T.J. was his cousin. When Mr. Nolet interviewed T.J., he advised him that he had never met the applicant and had only been lodged in the cell beside Mr. Boone and he did not wish to be Mr. Boone’s cellmate. Both individuals advised Mr. Nolet that they did not know the applicant and did not want to be placed in a cell with him. The applicant also requested that J.H. be his cellmate, however, Mr. Nolet investigated this request and found that J.H. was very violent and it would have been unsafe to place J.H. with the applicant.
[24] The applicant wrote a letter to T.J., which is attached to Mr. Nolet’s affidavit at page 197, in which he proposed all sorts of sexual activities between them. The applicant testified that the letter was a joke. I do not agree with the applicant’s characterization and find that the letter was written to T.J. to attempt to establish a sexual relationship with him.
Offers to Accommodate the Applicant
[25] On July 8, 2013 the Superintendent offered to move the applicant to the health care unit in Pod-A. There are three cells in the Pod-A medical area. The Superintendent proposed to have the applicant placed in a single cell with the ability to socialize in a common area during the regular daytime schedule. There are two other cells in this area, and so the Superintendent proposed to place five inmates in this area. The Superintendent acknowledged that this proposal involved some loss of privacy as there are observation windows in these medical cells. The applicant refused this proposal as he insisted on having a cellmate who would stay with him overnight.
[26] The Superintendent made a second proposal to transfer the applicant to Cambridge, a facility which has single cell accommodation available for the applicant and where the applicant could socialize with other inmates, in a common area, during the day, but be alone in a cell at night. The applicant refused this offer stating that it was too far from Ottawa and again requested that a cellmate be provided to him at OCDC.
[27] The institution also offered to allow the applicant to take courses which would allow him to socialize with his teachers but this proposal was also refused by the applicant.
Compliance with Procedural Fairness
[28] I accept Mr. Nolet’s evidence that he advised the applicant, after he was transferred back to OCDC from Maplehurst, that he was initially detained in segregation, while he investigated allegations that the applicant had previously engaged in sexual activities with other inmates. I accept Mr. Nolet’s evidence that he spoke with the applicant on a regular basis during his walk around, and that he investigated and responded to the applicant’s request for various specific cellmates as set out in the numerous letters written by the applicant.
[29] However, I find the procedure adopted by the Deputy Superintendent did not fully comply with the principles of natural justice and procedural fairness. The Segregation Decision/Review form should not have been completed before the Superintendent or his designate met with the applicant and heard the submissions made by the applicant. The applicant should have been given an opportunity to make submissions on his continued detention either orally or in writing, at the review to be conducted every five days as stipulated by the Regulation. A summary of the applicant’s submissions should have been recorded on the form or attached as a schedule either at or immediately after each five day review. The applicant should have been advised of the reasons for his continued segregation.
[30] The reasons given for the applicant’s continued segregation should also have been more detailed. Mr. Nolet should have stated, as he did in his testimony, that the applicant continued to be detained in segregation for his own protection and for the safety of other inmates based on his convictions for attempted murder and aggravated sexual assault for attempting to infect others with HIV without disclosing his HIV positive status and the evidence that the applicant had engaged in sexual relations at OCDC with other inmates in the past. He should also have referred to the section of the Regulation that he relied upon.
[31] Notwithstanding that the Deputy Superintendent failed to record the submissions of the inmate and failed to give detailed reasons for the applicant’s continued detention in segregation, at each five day review. Mr. Nolet did investigate and respond to the many letters requesting a cellmate and requesting a number of various individuals that he asked to be placed in the cell with him. The applicant was also fully aware that he had been convicted of attempted murder and aggravated sexual assault of a number of different individuals for attempting to infect them with HIV and was told that the Deputy Superintendent was investigating the allegations of sexual acts by the applicant on or about May 29, 2013.
Remedy
[32] The applicant seeks an order that the Superintendent move him from administrative segregation and placed him in the general population of the prison with a cellmate.
[33] The Superintendent would have been aware of the findings, about the applicant, by Warkentin J. in her decision R. v. Boone, 2013 ONSC 79, dated January 3, 2013. At para 41 she stated as follows:
In his on-line chats and text messages, Mr. Boone bragged about his ability to manipulate young men into having unprotected sex with him and bragged about his ability to infect others with HIV by lying to them about his HIV positive status.
[34] At para 44 she stated as follows:
After considering all the chat log evidence that was admitted from the first trial, the evidence of the complainants and other witnesses as admitted from the first trial, I find that Mr. Boone did have the intent to infect others with HIV and that he actively sought out individuals with whom he could engage in unprotected anal intercourse in order to achieve that purpose. I also find that Mr. Boone clearly understood the risks of having unprotected anal sex while being HIV positive and knew that he had a high viral load.
[35] At para 46 Warkentin J. stated:
The evidence from the chat logs and from the other witnesses at the first trial depicts Mr. Boone as someone who is manipulative and who finds it quite easy to find willing sexual partners. There was no evidence before the court in any of the chat logs or from any of the witnesses, except BLW, that showed Mr. Boone was interested in or had engaged in sexual interactions with others who were unwilling partners. There was no evidence that Mr. Boone ever forced himself on anyone.
[36] Warkentin J. ultimately acquitted the applicant of attempted anal penetration even though she found that Mr. Boone intended to attempt to infect an individual with HIV.
[37] In his letter dated October 8, 2013 from the Deputy Superintendent to the Superintendent Mr. Nolet stated that on the 29th of May 2013, the applicant was interviewed and made aware of the reason he was placed in segregation. The report also states that on July 8, 2013, the applicant was interviewed and notified that he was offered to be moved to the health care unit and to be able to have access to the TV. The applicant refused to be moved and wanted to stay in Pod-A. The report also states that a number of interviews were held between the Superintendent and the applicant.
[38] The Superintendent offered the applicant two options which would allow him to socialize during the day with other inmates, to play cards, scrabble and have conversations, as he testified he desires, but where he would be alone in his cell at night. The proposals would also ensure the safety of other inmates.
[39] The first proposal was to place the applicant in the medical wing at OCDC where he could spend time in a common area with other inmates during regular daytime hours and be placed in a cell by himself overnight. The second proposal was a transfer to Cambridge where he could be placed in a single cell overnight and be allowed to spend time in a common area with other inmates to socialize during the day. Both proposals would remove the psychological harm to the applicant of remaining alone in administrative segregation and provide him with the opportunity to socialize with other inmates in the common area during the day time and provide protection and ensure the safety of other inmates who could be placed with the applicant alone overnight. The applicant refused both proposals and demands to be given a cellmate at OCDC.
[40] While I find that there has been a denial of procedural fairness to the applicant by failing to allow the applicant to make submissions either orally or in writing, every five days, and to respond to the applicant giving clear reasons for his continued segregation as part of each five day review, I also find that, in the circumstances, the applicant was fully aware of the reason that he was being kept in segregation due to his recent convictions for attempted murder and aggravated sexual assault for attempting to infect other individuals with HIV while engaging in sexual intercourse.
[41] The applicant also wrote many letters requesting that he be placed with a cellmate which were reasonably refused by the Superintendent for the safety of the cellmate. There was also evidence that Dr. Ward had informed the applicant that he was in segregation due to the risk he posed to other inmates and due to his history of unprotected sex with other inmates without disclosing his HIV status. These reasons should have been recorded on the five day review form but are also evidence that the applicant was aware of the reason he was in segregation.
[42] The Superintendent also advised the applicant that the reason for his continued detention was “security” as written on the form and by verbally stating that it was for “liability issues”. In this context I find that the applicant was aware that he was being kept in segregation to ensure the safety of other inmates who might have been placed with him as a cellmate, however the more detailed reasons should have been given and the section of the Regulation relied on should have been indicated.
[43] After considering all of the evidence including the above findings of Warkentin J. concerning the accused abilities to manipulate young men into having unprotected sex, the evidence that the accused has been convicted of attempted murder of three individuals and convicted of aggravated sexual assault on several others by attempting to infect them with HIV, the evidence that the applicant had engaged in unprotected sexual relations with M.D., that he requested condoms and lubricant on four occasions in 2012, I find that if the applicant is placed with a cellmate there is a very high risk that the applicant would manipulate the cellmate into having sexual intercourse and a high risk that this cellmate would contact HIV putting any such cellmate in a dangerous situation if placed with the applicant.
Disposition
[44] As a result, I find that the Ministry has shown that the administration segregation of the applicant in a cell by himself overnight is lawful and necessary in the circumstances to ensure the safety of other inmates and in particular any cellmate placed with the applicant to comply with section 34(1)(b) of the Regulation.
[45] I further find that both of the proposals made by the Superintendent to accommodate the applicant’s need for social contact and to ensure the safety of other inmates, as required by Regulation 34(1)(b), were reasonable in the circumstances.
[46] Given that I find it would be unsafe for an inmate to be placed with the applicant in the same cell and that it is necessary for the applicant remain alone in a cell at night, the application is dismissed. However, given the length of time the applicant has been in segregation, the Superintendent is ordered to continue to offer the proposals made to the applicant until he is sentenced and transferred to a prison.
Mr. Justice Robert J. Smith
Released: January 16, 2014
COURT FILE NO.: 13-13118
DATE: 20140116
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN and
The Ministry of Community Safety and Correctional Services
Respondents
– and –
Steven Boone
Applicant
REASONS FOR Decion on application for habeas corpus
R. SMITH J.
Released: January 16, 2014