CITATION: Her Majesty the Queen v. Bond, 2015 ONSC 1798
COURT FILE NO.: 17/15
DATE: 20150319
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by the MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES and the VANIER CENTER FOR WOMEN, Respondent
AND:
SUZANNE BOND, Applicant
BEFORE: GRAY J.
COUNSEL: Amal Chaudry, Counsel for the Respondent
Richard B. Mwangi, Counsel for the Applicant
HEARD: March 12, 13 & 17, 2015
ENDORSEMENT
[1] Suzanne Bond makes application for a writ of habeas corpus with certiorari in aid, requesting an order returning her to the general population of Vanier Centre for Women (“Vanier”) from segregation; an order quashing disciplinary sanctions imposed on her; and an order requiring Vanier to permit her to examine materials furnished to her or her counsel by way of disclosure in connection with criminal charges outstanding against her.
[2] To some extent, regulations made under the Ministry of Correctional Services Act have relevance to this case. The relevant provisions taken from Reg. 778, as amended, are attached as an appendix to this endorsement.
[3] Ms. Bond has criminal charges outstanding in Kitchener and Milton. The trial in Kitchen is imminent. The charges in Milton have trial dates fixed. She is in custody awaiting trial on the charges.
[4] Ms. Bond has received disclosure in connection with those charges, although since she has had counsel the disclosure has been furnished to him.
[5] Ms. Bond has been in Vanier since October 30, 2014. Since at least November, 2014, she has been treated in a fashion that she considers to be improper and unlawful.
[6] In November, 2014, she says she was in segregation because she refused to sign a blank accident report. The main substance of her current complaints occurred on January 17, 2015. It was alleged that she was involved in three incidents, all of which were considered misconducts, for which she received 29 days in segregation with loss of all privileges, and an additional ten days, for a total of 39 days. She says she was not accorded due process as required by the regulations. Accordingly, she submits the misconducts should be quashed.
[7] She says she was not given appropriate facilities to review the disclosure furnished to her or her counsel in connection with her criminal charges. She says she has not been allowed a private room or sufficient time, and has not been provided with appropriate paper and writing implements. She submits that orders should issue to remedy the situation.
[8] By the time the matter was argued before me, Ms. Bond had been released from segregation and was in the general population of the institution. Accordingly, her habeus corpus application was moot. Thus, the only matters argued were the due process allegations with respect to her misconducts, and her application with respect to her ability to access the disclosure on her criminal charges.
[9] With respect to the due process issues, what is before me is really an application for judicial review. Pursuant to s. 5 (2) of the Judicial Review Procedure Act, I must grant leave for the matter to be heard by me rather than by the Divisional Court. The respondent did not argue that I ought not to hear the matter, so I will grant leave. With respect to the disclosure issue, I assume I have the necessary jurisdiction as a judge of a court of inherent jurisdiction and, to the extent there may be Charter issues involved, I would have jurisdiction under s. 24 of the Charter. This is, of course, subject to whether this court, or some other court or tribunal, should more properly entertain the matters before me.
[10] Most of the factual issues between the parties are in dispute. Some viva voce evidence was called at the hearing. I ordered Vanier to produce certain videotape evidence that Ms. Bond asserted would assist her in sorting out the factual issues.
[11] At the end of the day, the factual disputes will not have a material impact on my decision.
[12] The merits of the actual misconducts alleged to have been committed by Ms. Bond are not, strictly speaking, before me. What is before me is whether any procedural unfairness has occurred in dealing with the misconducts, and if so, what remedy is appropriate. Overlaid on these issues is whether any remedy at all is appropriate, having regard to certain appeal rights that Ms. Bond has.
[13] To be placed in segregation is a serious matter. If an inmate is in segregation, she is held in a cell for 23 ½ hours per day, and loses all privileges such as access to the canteen. This is particularly serious where, as here, an inmate has been placed in segregation for a significant period of time. For this reason, the procedural safeguards accorded to the inmate are particularly important.
[14] As I noted earlier, the parties are in dispute as to whether the appropriate procedural safeguards were accorded to Ms. Bond. It is not possible, on this record, to come to any definitive conclusions with respect to them. The videotapes that I ordered produced are not particularly helpful in this regard.
[15] Even if Ms. Bond were able to make out her allegations, in my view, the extraordinary remedy of certiorari should not be granted in this case because she has an avenue of appeal. Pursuant to s. 33 of Reg. 778, Ms. Bond has the right to appeal to the Minister of Correctional Services.
[16] Ms. Bond alleges that she has attempted to appeal, but documents that she has given the institution in that regard have simply disappeared. Furthermore, she says she was never advised of her right to appeal, and she was not given an inmate handbook until late February 2015.
[17] I have some difficulty with Ms. Bond’s submission that she was unaware of her right to appeal. She was in segregation in November, 2014, and the appropriate regulations are posted. Furthermore, her sister was able to send an email to the Assistant Deputy Minister of Correctional Services and there is no reason to believe that she could not have availed herself of that avenue of communication.
[18] In any event, s. 33 of the Regulation does not contain any specific time limit for appeal to the Minister, and it is still open to Ms. Bond to avail herself of that avenue.
[19] In my view, before utilizing the extraordinary remedy of certiorari, Ms. Bond should avail herself of the appeal rights that are accorded to her under the Regulation.
[20] As for Ms. Bond’s request that I grant relief respecting her alleged inability to access her disclosure in the criminal cases, there is a threshold issue as to whether this court should entertain her request or whether the trial court in her criminal cases should deal with the matter.
[21] Pursuant to R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, an accused person has the constitutional right to disclosure of all relevant material in the possession of the police and the Crown. Ordinarily, where an accused is represented by counsel, disclosure is made to counsel, and the accused will have an opportunity to review the disclosure through counsel.
[22] Where an accused is in custody, he or she must be given an adequate opportunity to review the disclosure in order that his or her right to make full answer and defence can be attained. Once again, where an accused is represented by counsel, in most cases that review can and should be done through counsel.
[23] In this case, Ms. Bond insists that she be given a separate opportunity to access and review her disclosure so that she, personally, can be given a complete opportunity to make full answer and defence.
[24] Where an accused is represented by counsel, this is not necessarily an easy issue to address. Hypothetically, even where an accused person is represented by counsel, it may be necessary for her to have an adequate opportunity to review the disclosure independently of counsel. The right to disclosure may be illusory if an adequate opportunity to review it is not made available.
[25] In this particular case, the respondent asserts that adequate opportunities to review the disclosure have been made available to Ms. Bond. First, the respondent asserts that Vanier was not in possession of the disclosure until quite recently. Second, once the institution had the disclosure in its possession, it made the material available to Ms. Bond in accordance with its internal rules. Being a maximum security institution, Ms. Bond cannot be given access to the disclosure anytime she wishes. There are rules that must be followed.
[26] At the end of the day, what must be decided is whether Ms. Bond has been deprived of the opportunity to review her disclosure to an extent that her right to a fair trial has been infringed. In my view, the court that is in the best position to make that assessment is the trial court seized of her criminal cases. In this case, that is the Ontario Court of Justice.
[27] That court will be in a much better position to assess whether Ms. Bond’s fair trial rights have been infringed, having regard to all the circumstances. That court will be in a much better position to grant whatever remedy is appropriate, if, indeed, her fair trial rights have been infringed. Furthermore, if the Canadian Charter of Rights and Freedoms has been violated, that court will be in a position to grant an appropriate remedy pursuant to s. 24 of the Charter, and will be in a better position to determine what that remedy should be.
[28] For all of these reasons, Ms. Bond’s application is dismissed.
[29] This is not a case for costs.
Gray J.
Date: March 19, 2015
APPENDIX – EXCERPTS FROM REG. 778, MADE UNDER THE MINISTRY OF CORRECTIONAL SERVICES ACT.
- (1) The Superintendent of a correctional institution is responsible for the management of the institution and for the care, health, discipline, safety and custody of the inmates under the Superintendent’s authority, and, without limiting the generality of the foregoing, the Superintendent shall,
(a) supervise the admission and release of each inmate from the institution;
(b) supervise the recording, guarding and disposition of inmate property;
(c) conduct reviews in discipline cases;
(d) supervise the admission and conduct of persons visiting the institution; and
(e) supervise the searches conducted on inmates and employees.
Any power, duty or function conferred or imposed upon or exercised by a Superintendent under the Act or this Regulation may be delegated by the Superintendent to any person or persons to act as designated representative of the Superintendent for the purpose of the effective administration of the Act and the delegation shall be subject to such limitations, restrictions, conditions and requirements as the Superintendent considers necessary for the purpose.
(1) There shall be one or more health care professionals in each institution to be responsible for the provision of health care services within the institution and to control and direct the medical and surgical treatment of all inmates.
(3) The health care professional shall immediately report to the Superintendent whenever the health care professional determines that an inmate is seriously ill.
- (1) An inmate commits a misconduct if the inmate,
(a) wilfully disobeys a lawful order of an officer;
(b) commits or threatens to commit an assault upon another person;
(c) makes a gross insult, by gesture, use of abusive language, or other act, directed at any person;
(d) takes or converts to the inmate’s own use or to the use of another person any property without the consent of the rightful owner of the property;
(e) damages any property that is not owned by the inmate;
(f) has contraband in his or her possession or attempts to or participates in an attempt to bring contraband in or take contraband out of the institution;
(g) creates or incites a disturbance likely to endanger the security of the institution;
(h) escapes, attempts to escape or is unlawfully at large from an institution;
(i) leaves a cell, place of work or other appointed place without proper authority;
(j) gives or offers a bribe or reward to an employee of the institution;
(k) counsels, aids or abets another inmate to do an act in contravention of the Act and regulations;
(l) refuses to pay a fee or charge that the inmate is required to pay under the Act or regulations;
(m) obstructs an investigation conducted or authorized by the Superintendent;
(n) wilfully breaches or attempts to breach any other regulation or a written rule, of which the inmate has received notice, governing the conduct of inmates; or
(o) wilfully breaches or attempts to breach any term or condition of a temporary absence.
(2) An inmate shall be deemed to have received notice of a regulation or rule governing the conduct of inmates when the regulation or rule is included in the handbook provided to the inmate or posted in a conspicuous place in the institution.
(3) No inmate shall be disciplined for any breach of the written rules governing the conduct of inmates except by the Superintendent.
- (1) Where an inmate is alleged to have committed a misconduct, the Superintendent shall decide, as soon as possible, whether or not the inmate committed the misconduct.
(2) Before making a decision under subsection (1), the Superintendent shall ensure that the inmate is notified of the allegation and is given an opportunity for an interview, which shall be held not later than ten days after the day on which the alleged misconduct became known to the Superintendent, to discuss the allegation with the Superintendent.
(3) At the interview with the Superintendent, the inmate is entitled to present arguments and explanations to dispute the allegation and to question the person or persons making the allegation as well as any other witnesses to the incident.
(4) The Superintendent may permit any person, including an interpreter, to attend the interview and assist in any manner that the Superintendent considers appropriate.
(5) The Superintendent may, during an interview held under subsection (2), adjourn the interview, but no such adjournment shall be for more than three clear days, except with the consent of the inmate.
(6) The Superintendent shall inform the inmate within two days after the day of the interview concerning the Superintendent’s decision, the reasons for the decision and the disciplinary measure imposed, if any.
(7) Where the inmate does not notify the Superintendent within one day of receiving notification of the allegation under subsection (2) that the inmate wishes an interview with the Superintendent, the Superintendent may decide the matter and shall inform the inmate of the decision, the reasons for the decision and the disciplinary measure imposed, if any.
(8) After making the decision under subsection (6) or (7), the Superintendent shall make a record of the case noting the nature of the allegation, the arguments and explanations presented by the inmate, if any, and the decision, reasons and disciplinary measure imposed by the Superintendent in the case.
(1) Where the Superintendent determines that an inmate has committed a misconduct, the Superintendent may impose one or more of the following disciplinary measures:
Loss of all or some privileges for a period not greater than 120 days including the privilege of purchasing items from the institutional canteen.
A change of program or work activity.
A change of security status.
A reprimand.
Revocation of a temporary absence permit.
(2) Where the Superintendent determines that an inmate has committed a misconduct of a serious nature, the Superintendent may impose, in addition to any of the disciplinary measures imposed in subsection (1), one of the following disciplinary measures:
Close confinement for a definite period not greater than thirty days on a regular diet.
Close confinement for an indefinite period not greater than thirty days on a regular diet.
Revoked:
Forfeiture of a portion or all of the remission that stands to the inmate’s credit but no such forfeiture shall exceed fifteen days without the Minister’s approval.
Subject to the approval of the Minister, suspension of the eligibility of an inmate to earn remission for a period of up to two months.
Revoked:
(1) The Minister, when requested by an inmate, may review a decision of the Superintendent where,
(a) the inmate alleges that the Superintendent did not make the decision in accordance with the procedures set out in this Regulation; or
(b) the inmate has been disciplined by having a portion or the whole of his or her remission forfeited or by receiving a suspension from eligibility to earn remission.
(2) The Superintendent, upon being notified of the Minister’s review, shall immediately provide the Minister with a copy of his or her record of the inmate’s case.
(3) Upon completion of the review, the Minister may confirm or vary the decision of the Superintendent or direct the Superintendent to reconsider the case, and the Minister shall forthwith notify the inmate and the Superintendent of the decision and the reasons therefor.
(4) The decision of the Minister is final.
- (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.