Ogiamien et al. v. Her Majesty the Queen in Right of Ontario, represented by the Ministry of Community Safety and Correctional Services et al.

[Indexed as: Ogiamien v. Ontario (Ministry of Community Safety and Correctional Services)]

Ontario Reports

Ontario Superior Court of Justice,

Gray J.

May 10, 2016

132 O.R. (3d) 176 | 2016 ONSC 3080

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Case Summary

Charter of Rights and Freedoms — Cruel and unusual treatment or punishment — Remand detainee and immigration detainee in maximum security prison applying successfully under s. 24(1) of Charter [page177] for damages for violations of their Charter rights arising from frequent lockdowns caused primarily by staff shortages — Lockdowns violating applicants' rights under s. 12 of Charter — Systemic remedy or mere declaration that Charter had been violated not being appropriate remedies — Canadian Charter of Rights and Freedoms, ss. 12, 24(1).

JO was an immigration detainee in a maximum security prison, and HN was a remand detainee. Over a 214-day period, JO experienced 74 days of lockdown (of which 68 were caused by staff shortages) and HN experienced 70 days of lockdown (of which 66 were caused by staff shortages). During the lockdowns, they were confined to their cells (where they were double-bunked) and did not have access to the day room, public visits or inmate programs. It was very difficult, if not impossible, for them to take showers or make phone calls while the prison was in lockdown. JO and HN brought an application under s. 24(1) of the Canadian Charter of Rights and Freedoms for a remedy for violations of their Charter rights arising from the lockdowns.

Held, the application should be allowed.

In determining whether the applicants' Charter rights were violated, reference to international standards was permissible, but their usefulness was limited. There were at least two international standards that were not being observed here. First, the applicants, who were not convicted criminals, were forced to share their time in incarceration with convicted criminals. Second, they were double-bunked. The conditions of detention during lockdowns were very close to segregation or solitary confinement. In some ways, they were worse, as inmates were holed up with a cellmate not of their choosing. The timing and length of the lockdown periods were dependent on something that was irrational and unpredictable -- namely, lack of staff. The government had known about the understaffing problem since at least 2002, and had not chosen to invest sufficient resources to alleviate the problem. The treatment of the applicants was so excessive as to outrage standards of decency, was disproportionate and was degrading. It violated s. 12 of the Charter.

A systemic remedy, such as an order prohibiting the imposition of lockdowns due to staffing inadequacies, would not be appropriate and just. Any systemic remedy was unlikely to benefit the applicants personally, as they would likely no longer be at the institution by the time any systemic remedy was implemented. If a systemic remedy was to be awarded, it would be more appropriate to do so in the context of a class proceeding. A mere declaration that s. 12 of the Charter had been violated would also not be an appropriate and just remedy, as it would do little or nothing to vindicate the applicants' individual rights. JO should be awarded damages in the amount of $60,000, and HG should be awarded damages in the amount of $25,000.

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Other cases referred to

Ahmad v. Canada (Attorney General), [2015] O.J. No. 6277, 2015 ONSC 7010 (S.C.J.); Almrei v. Canada (Attorney General), [2003] O.J. No. 5198, [2003] O.T.C. 1104, 60 W.C.B. (2d) 93 (S.C.J.); Bacon v. Surrey Pre-trial Services Centre, [2010] B.C.J. No. 1080, 2010 BCSC 805, 11 Admin. L.R. (5th) 1, 88 W.C.B. (2d) 286; Baroud v. Canada (Minister of Citizenship and Immigration) (1995), 1995 638 (ON CA), 22 O.R. (3d) 255, [1995] O.J. No. 43, 121 D.L.R. (4th) 308, 77 O.A.C. 26, 26 C.R.R. (2d) 318, 28 Imm. L.R. (2d) 123, 52 A.C.W.S. (3d) 993 (C.A.); Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861 (1979); Biever v. Alberta (Director of Edmonton Remand Centre), [2015] A.J. No. 1044, 2015 ABQB 609; Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, [2013] S.C.J. No. 72, 2013 SCC 72, 366 D.L.R. (4th) 237, 452 N.R. 1, 312 O.A.C. 53, 2014EXP-30, J.E. 2014-21, 303 C.C.C. (3d) 146, 7 C.R. (7th) 1, 297 C.R.R. (2d) 334, 110 W.C.B. (2d) 753; Canada (Attorney General) v. Whaling, [2014] 1 S.C.R. 392, [2014] S.C.J. No. 20, 2014 SCC 20, 2014EXP-972, J.E. 2014-524, EYB 2014-234794, 455 N.R. 1, 351 B.C.A.C. 43, 9 C.R. (7th) 38, 372 D.L.R. (4th) 58, 306 C.R.R. (2d) 96, 309 C.C.C. (3d) 129, 112 W.C.B. (2d) 434; Canada (Attorney General) v. White, [2015] O.J. No. 5977, 2015 ONSC 6994, 26 C.R. (7th) 235, 126 W.C.B. (2d) 50 (S.C.J.); Cardinal v. Kent Institution, 1985 23 (SCC), [1985] 2 S.C.R. 643, [1985] S.C.J. No. 78, 24 D.L.R. (4th) 44, 63 N.R. 353, [1986] 1 W.W.R. 577, J.E. 86-41, 69 B.C.L.R. 255, 16 Admin. L.R. 233, 23 C.C.C. (3d) 118, 49 C.R. (3d) 35, 15 W.C.B. 331; Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, [2007] S.C.J. No. 9, 2007 SCC 9, 276 D.L.R. (4th) 594, 358 N.R. 1, J.E. 2007-455, 54 Admin. L.R. (4th) 1, 44 C.R. (6th) 1, 152 C.R.R. (2d) 17, 59 Imm. L.R. (3d) 1, EYB 2007-114995, 154 A.C.W.S. (3d) 363; Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness) (2015), 127 O.R. (3d) 401, [2015] O.J. No. 5438, 2015 ONCA 700, 343 C.R.R. (2d) 146, 92 Admin. L.R. (5th) 147, 390 D.L.R. (4th) 598, 340 O.A.C. 211, 38 Imm. L.R. (4th) 210, 259 A.C.W.S. (3d) 131; Cockriell v. The Queen, 1976 12 (SCC), [1977] 2 S.C.R. 680, [1976] S.C.J. No. 91, 70 D.L.R. (3d) 324, 11 N.R. 386, [1976] 5 W.W.R. 711, 31 C.C.C. (2d) 177, 38 C.R.N.S. 139; Collin v. Canada (Solicitor General), 1982 5264 (FC), [1982] F.C.J. No. 160, [1983] 1 F.C. 496 (T.D.); Conway v. Barbaree, [2010] O.J. No. 2466, 215 C.R.R. (2d) 230, 88 W.C.B. (2d) 265 (S.C.J.); Corner v. Canada, [2002] O.J. No. 4887, [2002] O.T.C. 986, 119 A.C.W.S. (3d) 502 (S.C.J.); Crews v. Canada (Correctional Service), 1994 4799 (SK QB), [1994] S.J. No. 396, 126 Sask. R. 181, 24 W.C.B. (2d) 553 (Q.B.); Criminal Trial Lawyers' Assn. v. Alberta (Solicitor General), [2004] A.J. No. 838, 2004 ABQB 534, [2005] 5 W.W.R. 348, 32 Alta. L.R. (4th) 52, 364 A.R. 109, 188 C.C.C. (3d) 538, 122 C.R.R. (2d) 49, 132 A.C.W.S. (3d) 887; Cunningham v. Canada, 1993 139 (SCC), [1993] 2 S.C.R. 143, [1993] S.C.J. No. 47, 151 N.R. 161, J.E. 93-847, 62 O.A.C. 243, 11 Admin. L.R. (2d) 1, 80 C.C.C. (3d) 492, 20 C.R. (4th) 57, 14 C.R.R. (2d) 234, 19 W.C.B. (2d) 276; Dumas v. Leclerc Institute, 1986 38 (SCC), [1986] 2 S.C.R. 459, [1986] S.C.J. No. 61, 34 D.L.R. (4th) 427, 72 N.R. 61, J.E. 86-1135, 3 Q.A.C. 133, 22 Admin. L.R. 205, 30 C.C.C. (3d) 129, 55 C.R. (3d) 83, 25 C.R.R. 307; [page179] Egan v. Quinte Detention Centre, 2008 19224 (ON SC), [2008] O.J. No. 1624, 171 C.R.R. (2d) 42 (S.C.J.); Gogan v. Nova Scotia (Attorney General), [2015] N.S.J. No. 544, 2015 NSSC 360, 367 N.S.R. (2d) 309, 126 W.C.B. (2d) 459; Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, [2002] S.C.J. No. 85, 2002 SCC 84, 221 D.L.R. (4th) 257, 298 N.R. 1, J.E. 2003-126, 100 C.R.R. (2d) 1, 44 C.H.R.R. D/363, 119 A.C.W.S. (3d) 43; Hay v. Canada (National Parole Board), 1985 3638 (FC), [1985] F.C.J. No. 610, 13 Admin. L.R. 17, 21 C.C.C. (3d) 408, 18 C.R.R. 313, 14 W.C.B. 397 (T.D.); Hill v. British Columbia, 1997 4136 (BC CA), [1997] B.C.J. No. 1255, 148 D.L.R. (4th) 337, [1997] 10 W.W.R. 691, 93 B.C.A.C. 40, 36 B.C.L.R. (3d) 211, 50 Admin. L.R. (2d) 309, 38 C.C.L.T. (2d) 182, 71 A.C.W.S. (3d) 672 (C.A.); Iwanicki v. Ontario (Minister of Correctional Services), [2000] O.J. No. 955, [2000] O.T.C. 181, 45 W.C.B. (2d) 600 (S.C.J.); Jaballah v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 420, 2004 FC 299, 247 F.T.R. 68, 38 Imm. L.R. (3d) 179, 129 A.C.W.S. (3d) 1178; L. (B.R.) v. Canada, 2000 14829 (FC), [2000] F.C.J. No. 108, 181 F.T.R. 89, 45 W.C.B. (2d) 373 (T.D.); Maltby v. Saskatchewan (Attorney General), 1982 2320 (SK QB), [1982] S.J. No. 871, 143 D.L.R. (3d) 649, 20 Sask. R. 366, 2 C.C.C. (3d) 153, 4 C.R.R. 348, 9 W.C.B. 9 (Q.B.);

Statutes referred to

Canadian Bill of Rights, S.C. 1960, c. 44, s. 2(b)

Canadian Charter of Rights and Freedoms, ss. 1, 7, 8, 9, 10, (c), 11, 12, 13, 14, 23, 24(1)

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 109(1)

Criminal Code, R.S.C. 1985, c. C-46

Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 55 [as am.]

Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A [as am.]

Motor Vehicle Act, R.S.B.C. 1996, c. 318 [as am.]

Authorities referred to

Hogg, P.W., Constitutional Law of Canada, 5th ed. (Toronto: Carswell, 2007)

Tarnopolsky, W., "Just Desserts or Cruel and Unusual Treatment or Punishment? Where do we look for Guidance?" (1978), 10 Ottawa L. Rev. 1

Treaties and conventions referred to

United Nations, Standard Minimum Rules for the Treatment of Prisoners (August 30, 1955)

United Nations, Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) (September 29, 2015)

APPLICATION for a remedy under s. 24(1) of the Charter.

Jamil Ogiamien, self-represented.

Huy Nguyen, self-represented.

Barbara Jackman, amicus curiae

Brian G. Whitehead and Hera Evans, for Ministry of Community Safety and Correctional Services and superintendent of Maplehurst Correctional Complex.

Daniel Guttman and Savitri Gordian, for Attorney General of Ontario.

Ian Hicks, Sharon Stewart Guthrie, Nicholas Dodokin and Sybil Thompson, for Attorney General of Canada.

[1] GRAY J.: — Messrs. Ogiamien and Nguyen allege violations of their rights under the Canadian Charter of Rights and Freedoms, and request remedies. They allege that the violations arise from the conditions of their incarceration at Maplehurst Correctional Complex in Ontario, and specifically arise out of "lockdowns" that occurred with some frequency.

[2] For the reasons that follow, I have determined that their rights under the Charter were violated, and I have determined that they are entitled to damages as a remedy.

Procedural History

[3] This matter originated as an application for a writ of habeas corpus, and first came before Miller J. on July 31, 2015. No one appeared to respond to the application, and Miller J. determined that it had not been properly served. Ontario Public [page182] Service Employees Union ("OPSEU") had been named as a party as well as the government parties.

[4] After the matter was served, it then came before Miller J. again on August 7, 2015. At that time, she adjourned it again to September 18, 2015. On that date, Conlan J. dismissed the application as against OPSEU, and adjourned the matter to October 5, 2015, and on that date Coats J. adjourned it to October 8, 2015 when it came before me. I then became seized of the matter.

[5] On October 8, 2015, I ordered the production of certain material, and I appointed amicus curiae for the assistance of the court. Subsequently, Ms. Jackman was formally appointed as amicus and she thereafter attended the hearing to provide assistance to the court.

[6] On November 23, 2015, I made it clear that Messrs. Ogiamien and Nguyen, not being solicitors, had no right to represent the other people identified in their application as being affected by the lockdowns at Maplehurst. This case had not been certified as a class proceeding, and in the final analysis it was simply an application brought on their own behalf.

[7] On the same date, I ordered, on consent, that that the matter proceed by way of affidavits to be served and filed by the applicants, with the assistance of Ms. Jackman, and responding affidavits to be served and filed by the respondents. I ordered that cross-examinations on the affidavits take place before me, and that legal arguments be filed in writing.

[8] I also determined that, in view of the allegations made by the applicants in their habeas corpus application, I would regard the application as also having been brought under s. 24(1) of the Charter, alleging potential violations of ss. 7, 9 and 12 of the Charter. I requested Ms. Jackman, as amicus, to serve and file the necessary notice under s. 109(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, and she did so.

[9] As the Attorney General of Canada was entitled to do, counsel for the Attorney General of Canada appeared on January 7, 2016 in response to the notice given under s. 109(1) of the Courts of Justice Act. On that date, Ms. Jackman requested that the Attorney General of Canada be added as a party, since Mr. Ogiamien was held in custody at Maplehurst as an immigration detainee, pursuant to an agreement between the Government of Canada and the Government of Ontario, and that it was arguable that the Government of Canada should be responsible for any Charter violations and any remedy that may be ordered if any violations were to be found. After hearing submissions, I ordered that the Attorney General of Canada be added as [page183] a party, and thereafter counsel for the Attorney General of Canada appeared, filed material and made submissions.

[10] With some extensions of time for filing material and conducting cross-examinations, the matter was finally argued on April 1, 2016.

[11] I note that a separate habeas corpus proceeding is underway to challenge the legality of Mr. Ogiamien's detention. That proceeding is before Justice Coats. The proceedings are entirely separate, and nothing determined in this case is intended to influence the proceedings before Justice Coats.

Background

[12] Maplehurst Correctional Complex is a correctional institution operated by the Ontario Ministry of Community Safety and Correctional Services. It is a maximum security facility that provides for custody of adult males. Maplehurst typically houses between 1,000 and 1,100 inmates. It provides secure custody of inmates who are remanded, who have violated parole, who are serving sentences of up to two years less a day, and those subject to immigration holds.

[13] Maplehurst consists of eight living units and an infirmary. Units 1, 8, 9, 10 and 11 are remand units while Units 5, 6 and 7 house inmates who have been sentenced and classified as lower risk. Units 5, 6 and 7 are dormitory-style units with communal washrooms and shower facilities. Because sentenced inmates housed in Units 5, 6 and 7 have been classified as lower risk and do not have washroom facilities in their sleeping quarters, those units cannot be locked down so as to keep offenders locked in their individual cells.

[14] Units 2, 3 and 4 comprise the Vanier Centre for Women, which is a separate institution housing female inmates.

[15] Due to its status as a maximum security facility, restrictions are continuously imposed on the movement and liberty of inmates at Maplehurst through physical barriers, close staff supervision and more limited access to the community.

[16] Each remand living unit in the general population (Units 8, 9, 10 and 11) is divided into six wings -- A, B, C, D, E and F. Each unit houses 192 inmates in cellular accommodations built to house two inmates per cell. Each wing houses approximately 32 inmates in 18 cells, two inmates per cell. Each wing in a unit has a day room area where inmates may socialize. Remanded inmates eat their meals in their cells and not in the day room. [page184]

[17] The regular daily schedule for inmates, such as the applicants, who are housed in general population in remand living units (Unit 8, 9, 10 and 11) is as follows:

(a) 0800 -- 0930 -- inmates locked down in cells for meal service -- breakfast;

(b) 0930 -- 1130 -- day room access;

(c) 1130 -- 1330 -- inmates locked down in cells for meal service -- lunch;

(d) 1330 -- 1530 -- day room access;

(e) 1530 -- 1730 -- inmates locked down in cells for meal service -- supper;

(f) 1730 -- 1930 -- day room access;

(g) 1930 -- 0800 -- inmates locked down in cells overnight.

[18] Thus, inmates in general population are out of their cells and in the day room for up to six hours a day. When inmates are in their cells, most, but not all, can see the television, which is mounted high up on a wall in the day room.

[19] When inmates have access to the day room, they are able to watch television, read newspapers or other reading material, and make phone calls. Inmates are typically offered access to the exercise yard for 20 to 30 minutes each day. Inmates also have access to a variety of programs, including showers, spiritual programming and access to program rooms. When there is no lockdown, lawyer and professional visits can occur three times during a normal day, coinciding with the same time inmates are in the day room. When there is no lockdown, healthcare, chaplaincy, volunteers and other program visits will occur three times during a normal day, during times approximating seven hours per day.

[20] When there is no lockdown, public visits will occur during three periods during a normal day, again roughly coinciding with the times inmates are in the dayroom.

[21] Various programs are available at Maplehurst for sentenced and remand inmates, and immigration detainees. They include religious programs for a variety of religions; anti-criminal thinking; Alcoholics Anonymous; anger management; addiction awareness; Life's Healing Choices; continuing education; John Howard Society; release from custody; addiction programs; orientation; education sessions; library programs; food [page185] production; laundry; Salvation Army; peer mentoring; tutoring; and individual counselling and support.

[22] Each unit has three program rooms available for individual and group programs and professional visits (including visits with lawyers and time to review disclosure materials relating to court matters). There is also a room for chaplaincy and other programs.

[23] Inmate cells in Units 8, 9, 10 and 11 at Maplehurst are 15 feet long, 7.5 feet wide and 9 feet high. A typical cell has a toilet and sink, bunk beds, a table and stool and a window for natural light. The door to the cell has a window and a hatch that can be opened for speaking with inmates and passing trays of food and clothing. Nursing rounds typically occur up to four times a day and medications are dispensed through the grill of the dayroom when inmates are not locked down in their cells.

[24] In the day room, there are three phones for placing collect calls, two showers areas and a number of tables and chairs for inmates to socialize. There is also a chin-up bar for exercise. Each unit will typically have a nurse's office and doctor's office and nursing is on-site 24 hours a day. If there are medical concerns, inmates can be taken to hospital and in an emergency, 911 will be called.

[25] Jamil Ogiamien was remanded into custody at Maplehurst on April 26, 2013. There are no criminal charges under which he is being held. He is being held on a Canada Border Services Agency order for detention dated March 24, 2014. He is detained at Maplehurst pursuant to an agreement between the Governments of Canada and Ontario to house certain immigration detainees in provincial correctional institutions. He is one of only 13 inmates at Maplehurst who are being detained solely for immigration purposes.

[26] Mr. Ogiamien has been housed intermittently at North Central Correctional Centre in late 2014 and early 2015. Since April 8, 2015, he has remained at Maplehurst.

[27] Mr. Ogiamien is housed in the general population where he has a cellmate and has day room privileges. As a general population inmate, he has the same rights as any other inmate at Maplehurst. Since May 2015, he has been primarily housed in Unit 11, C wing.

[28] Huy Nguyen was remanded into custody at Maplehurst on May 8, 2015 on various firearms-related charges. He has not yet been tried.

[29] Mr. Nguyen is housed in the general population, where he has a cellmate and has day room privileges. As a general population inmate, he has the same rights as any other inmate at [page186] Maplehurst. Since his admission, he has been primarily housed in Unit 11. He is currently housed in Unit 10, C wing.

[30] Both Mr. Ogiamien and Mr. Nguyen have been placed in segregation on occasion for disciplinary reasons.

[31] The main affidavit filed by the Government of Ontario and Maplehurst was that of Chuck Marchegiano, who is the deputy superintendent of administration and staff relations at Maplehurst. Mr. Marchegiano deposes that a lockdown refers to a period of time when inmates who are housed in general population remand living units and who would have typically have access to the day room and inmate programming, instead remain locked in their cells. Maplehurst has standing orders which define and spell out reporting requirements, priorities and potential measures relating to lockdowns. A "full" lockdown refers to locking down Units 1, 8, 9, 10 and 11 for all or part of a day. A "partial" lockdown can refer to one or more of those units (or one or more wings in a unit) being locked down for all or part of a day.

[32] Mr. Marchegiano deposes that lockdowns are sometimes necessary to ensure the security of the institution and the safety of staff and inmates. In addition, the institution may use lockdowns to facilitate searches. He deposes that each situation is monitored to minimize the disruption to the inmates where possible and to assess when units can be returned to a non-lockdown status.

[33] In addition to lockdowns for safety, security and to facilitate searches, inmates may also be locked down due to staff absences. They can be caused by pre-authorized absences provided for by the collective agreement; entitlements to unscheduled absences provided for by the collective agreement (i.e., bereavement leave, care of sick child, etc.); numbers of inmates requiring community escorts to hospitals; mandatory training either within or outside of the institution; redeployment of staff to other areas within the institution to deal with emergencies or searches; and insufficient staff available to cover absences.

[34] Pursuant to the standing orders, an incident report is generated where it is determined that a lockdown is necessary for the safe management of the institution. Where a lockdown is called due to staffing shortages, the incident report that is generated will detail the factors leading up to the shortage, including the number of community escorts and the reasons why staff are absent.

[35] Mr. Marchegiano deposes that lockdowns are a last resort. Staff, managers and senior administrators do not want to have [page187] to lock down the institution unless necessary. Lockdowns create a difficult environment for both staff and inmates.

[36] There are tools at the disposal of managers and senior administrators to ensure the institution is appropriately staffed. When staff are absent, the ministry can call upon fixed-term employees to backfill vacant positions. Fixed-term staff are hired two weeks in advance of when they are required to work based on upcoming vacancies.

[37] Once the availability of fixed-term staff has been exhausted, permanent correctional officers are given the opportunity to backfill vacancies by working overtime hours. Overtime is voluntary.

[38] The respondents filed statistics that disclose lockdowns from January 1, 2014 to March 31, 2016.

[39] In 2014, the units in which the applicants were housed were locked down, in whole or in part, for 167 days, or 46 per cent of the total days in that year.

[40] In 2015, the units in which the applicants were housed were locked down, in whole or in part, for 199 days, or 55 per cent of the total days in that year.

[41] From January 1, 2016 to March 31, 2016, the units in which the applicants were housed were locked down, in whole or in part for 36 days, or 40 per cent of the total days to the end of March.

[42] Some detailed statistics were filed with respect to lockdowns affecting Messr. Ogiamien and Nguyen for the period May 1, 2015 to November 30, 2015, a period of seven months. Of the 214 days during that period, Mr. Ogiamien was locked down for 74 days, of which 68 were caused by staff shortages. Mr. Nguyen was locked down for 70 days, of which 66 were caused by staff shortages.

[43] The evidence is somewhat unclear as to the overall proportion of the lockdowns that were as a result of staff shortages, as opposed to safety and security concerns. The chart supplied by the respondents for 2014 and 2015 appear to suggest that all of the lockdowns were as a result of staff shortages, but I am not prepared, on the evidence I heard, to conclude that that was the case. However, it is also clear that a very large number were caused by staff shortages, and if the specific sample from May to November 2015 is reasonably reflective of the percentages generally, it is clear that the overwhelming percentage of lockdowns are caused by staff shortages. It is apparent that the larger percentage in 2015 was contributed to by the negotiations between the Government of Ontario [page188] and OPSEU that took place, to a large degree, in 2015. I will have more to say about that later.

[44] The frequency of lockdowns in 2016 seem to have abated somewhat, but they nevertheless occur on a regular basis. Once again, most are caused by staff shortages.

[45] While I have no statistical information regarding 2013, it should be noted that Mr. Ogiamien has been at Maplehurst since April 26, 2013. I will assume, in the absence of evidence to the contrary, that the frequency of lockdowns in 2013 since Mr. Ogiamien's arrival has been approximately the same as it was in 2014, and that a significant number of those lockdowns were due to staff shortages.

[46] On cross-examination, Mr. Marchegiano acknowledged that many, if not most, of the programs that are normally available to inmates are not available during periods of lockdown.

[47] He acknowledged that all remand inmates and immigration holds are kept under maximum security notwithstanding that they have not been convicted of any crime. He also acknowledged that lockdowns are rare in the medium security part of the institution. He stated that there are 13 inmates, including Mr. Ogiamien, who are being held at Maplehurst on immigration holds. Mr. Marchegiano acknowledged that during lockdowns, inmates are locked in their cells for 24 hours per day, with two people to a cell. Attempts are made to let them out occasionally, but during such times it is difficult for inmates to make telephone calls or have showers. When there is no lockdown, and inmates are in the day room, the cells are locked, and inmates must use the washroom in the day room.

[48] Mr. Marchegiano acknowledged that there are a number of segregation cells. They are used for disciplinary purposes and sometimes for protection.

[49] Normally, there are five correctional officers for 192 inmates. A unit could be locked down if only one officer was missing.

[50] When pressed on cross-examination, Mr. Marchegiano testified that he could not agree or disagree that there is a degree of hardship on inmates during a lockdown. He did acknowledge, however, that there is generally an adverse reaction by inmates as a whole during lockdowns. There is considerable noise and banging on cell walls and other items during lockdowns. He acknowledged that public visits and programs are cancelled during lockdowns.

[51] Mr. Marchegiano testifed that efforts are made to keep up professional visits, including visits from lawyers and health care visits, during lockdowns. He acknowledged, however, that there may be a curtailment of professional visits in the sense [page189] that they may have to take place through glass as opposed to being unobstructed.

[52] Mr. Marchegiano acknowledged on cross-examination that the institution does not clean the cells. The inmates clean their own cells, and are given supplies to do so. He acknowledged that during lockdowns there will likely be delays in getting supplies to the inmates. He also acknowledged that during lockdowns there will likely be delays in getting laundry done.

[53] Another affidavit filed by the respondents was that of Daryl Pitfield, who is the acting director of the Institutional Services Branch at the Ministry of Community Safety and Correctional Services. Among other things, he oversees the labour management group for the office of the assistant deputy minister. For several years, he has provided labour relations advice to the ministry.

[54] Mr. Pitfield deposes that the ministry seeks correctional officer recruits on a province-wide basis through advertisements. At one time, the recruitment process was somewhat relaxed, but now involves an enhanced screening process. Candidates who pass through the screening process then progress to the training stage. There is a nine-week program at the Ontario Correctional Service College, which is run by the government. After training, recruits are assigned to specific institutions for orientation and site-specific training. In total, the screening process, selection and training takes six to 12 months.

[55] Various measures have been instituted in an attempt to improve the attendance of correctional officers. In the negotiations for the 2009-2012 collective agreement, the government proposed the introduction of an attendance support management pilot program, which was ultimately added to the collective agreement.

[56] Mr. Pitfield testified that the most recent round of collective bargaining with OPSEU began in October 2014. Ultimately, a settlement was reached on January 9, 2016.

[57] Mr. Pitfield testified that during collective bargaining, there were certain additional pressures.

[58] Instruction at the Ontario Correctional Services College is supplied for the most part by correctional officers who are temporarily employed by the college. Those officers volunteer for the assignments. Following the commencement of collective bargaining in October 2014, the correctional officers withdrew their training services from January 2015 to May 2015, and also refrained from applying for training positions. Under the collective agreement, the ministry is prohibited from hiring training professionals who are not members of the union. As a result of [page190] the actions of the correctional officers, there were no graduating classes in the first half of 2015.

[59] During collective bargaining, there were many instances where staff were refusing to sign up for overtime. In addition, the number of unplanned sick leave absences increased during collective bargaining.

[60] I asked Mr. Pitfield, during his cross-examination on his affidavit, whether the government had considered whether the collective actions of correctional officers constituted an illegal strike, contrary to the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, and if so, whether any consideration was given to applying to the Ontario Labour Relations Board for a remedy. Mr. Pitfield advised that consideration had, indeed, been given to the issue, but in the end, a decision was made to not apply to the board.

[61] On behalf of the respondents, affidavits sworn by Crystal Miller were filed. She is the manager, health care services at Maplehurst. In her main affidavit, she described the delivery of healthcare at Maplehurst. For the purpose of this proceeding, it is not necessary to review her affidavit in detail, except to note that significant medical and nursing services are provided. Attempts are made to maintain services as much as possible during a lockdown. She deposes that during a lockdown, nurses will administer medication either by going cell to cell or by providing medication through the dayroom hatch. She acknowledged that lockdowns may sometimes cause delays in the administration of medication. She deposes that nurses exercise clinical judgment in determining how to administer medication in these situations. She deposes that during lockdowns, all medical appointments, including appointments at institutional physicians or psychiatrists, clinics and community health centres are triaged by a nurse, in consultation with a physician if necessary. Based on the clinical judgment of the nurse and/or physician, non-urgent appointments may be rescheduled.

[62] I note that from the material filed, both Mr. Ogiamien and Mr. Nguyen were able to obtain medical services, where needed, during periods of lockdown, although there were a few occasions when medical appointments for Mr. Ogiamien had to be postponed because of lockdowns.

[63] During cross-examination, Ms. Miller testified that she could not comment on the impact that lockdowns have on people. She testified that lockdowns will impact different people differently. However, she acknowledged that there could be negative impacts on people as a result of lockdowns. She testified that the government does not have any mechanism to monitor [page191] impacts and has no mandate to collect any information. She testified that all that really can be done is to deal with people who raise issues during lockdowns.

[64] The Attorney General of Canada filed affidavits sworn by Satvir Tak and Adriano Giannini.

[65] Mr. Tak is the manager of the Toronto Immigration Holding Centre in Toronto.

[66] Mr. Tak deposes that Canada Border Services Agency officers have the authority to arrest and detain persons they have reasonable grounds to believe are inadmissible and are a danger to the public or are unlikely to appear for examination, an inadmissibility hearing or removal from Canada. He deposes that this authority is found in s. 55 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.

[67] Mr. Tak deposes that implicit in an officer's authority to arrest and detain is a discretion to decide where someone is housed upon arrest. Such persons may be held at an immigration holding centre. However, in some cases they are detained in provincial correction facilities.

[68] Mr. Tak deposes that the Toronto Immigration Holding Centre is intended to house only low-risk detainees. Since September 2014, officers are required to assess a detainee's risk level by using the national risk assessment for detention.

[69] For some reason, which Mr. Tak could not explain, the national risk assessment for detention was not completed with respect to Mr. Ogiamien prior to January 22, 2016.

[70] Those who cannot be admitted to the Toronto Immigration Holding Centre include those who have a criminal record or have outstanding charges; are fugitives; are an escape risk; have a history of violence; pose a danger to themselves or others; have exhibited disturbing behaviour; are suicidal; have serious medical issues; or are being transferred from a jail or other detention centre who have not passed the jail's medical assessment. He deposes that if cases of that sort are detained at the Toronto Immigration Holding Centre, serious situations may result.

[71] Mr. Tak deposes that the Toronto facility is only one of two immigration holding centres in Canada which houses detainees beyond short-term periods. The second such facility is in Laval, Quebec.

[72] On January 21, 2015, an agreement was signed between the Ontario Minister of Community Safety and Correctional Services, and the Federal Minister of Public Safety and Emergency Preparedness regarding persons detained under the Immigration and Refugee Protection Act. A copy of that agreement is attached as an exhibit to Mr. Tak's affidavit. [page192]

[73] Mr. Tak deposes that under the terms of the contract Canada Border Services Agency has with the company that owns the premises in which the Toronto facility is located, the facility will hold only low-risk detainees. He deposes that the insurance policy that governs the building precludes the detention of individuals with a criminal record or outstanding criminal charges.

[74] On cross-examination, Mr. Tak acknowledged that the Government of Canada is familiar with the fact that there are lockdowns that occur at Maplehurst. He testified that the Government of Canada relies on the provincial correctional system to deal appropriately with lockdowns. He acknowledged that it is the Government of Canada's duty to understand how the provincial facility operates before a decision is made to send someone to a provincial facility.

[75] Mr. Giannini is the manager of the Immigration Holding Centre in Laval, Quebec. In general, he confirmed that similar criteria are used in determining what immigration detainees can be placed at the Laval facility.

[76] Fifteen affidavits were filed on behalf of the applicants, including affidavits sworn by Mr. Ogiamien and Mr. Nguyen. Mr. Ogiamien and Mr. Nguyen were cross-examined at the hearing, and counsel for the respondents elected to cross-examine some of the other deponents.

[77] I have not relied on the affidavits filed by deponents other than the applicants themselves, except for the purpose of background, and to determine whether some of the impacts deposed to by the applicants are generic or systemic in nature.

[78] Mr. Nguyen deposes that lockdowns are very inhumane to the inmates. He deposes that being locked down in a cell all weekend limits people from getting in touch with family or lawyers, and prevents people from accessing showers, which can cause illness and disease. He deposes that they lost yard time so that they missed on vitamin D, which boosts mood and keeps inmates from lashing out. He deposes that if they are lucky the staff does try to launch a shower program so people can have a chance to clean up and get back to their cells one by one. He deposes that this seldom keeps up and sometimes they don't shower for the entire weekend.

[79] Mr. Ogiamien deposes that lockdowns can be for as many as 25 days in a month, for three days at a time. Inmates are denied showers for as many as three to 15 days. He deposes that he has been denied showers for as many as seven days on five different occasions. [page193]

[80] Mr. Ogiamien deposes that during lockdowns, inmates are denied clean linen, including bedsheets; cleaning supplies; AA meetings; religious meetings; anger management, etc. He deposes that inmates are denied therapeutic exercises and any form of recreation.

[81] Mr. Ogiamien deposes that lockdowns are the cause of inmates fighting amongst themselves. When they are let out during short periods during lockdowns, inmates fight over showers and phones, and if they do not get to use the shower or a phone there is no guarantee that an inmate will get another brief unlocked period for the next seven days or more. He deposes that inmates gang up or use weapons just to get a shower or a telephone.

[82] Mr. Ogiamien deposes that inmates bang on their cell doors all night out of frustration, so that it is difficult to sleep peacefully. He deposes that some inmates pull the water sprinklers in their cells just to get a shower. He deposes that medication is not consistent, as there is insufficient staff to escort the nurse on medical runs. Medical appointments are cancelled, and there is a higher rate of inmates' ailments.

[83] During a brief unlocked period during lockdowns, inmates cannot go inside their cells to use the restroom. There is only one toilet in the dayroom to satisfy 32 inmates in each wing, so inmates must fight over priority for who gets to use the toilet.

[84] It should be noted that of the many times Mr. Ogiamien was seen or assessed by a nurse or a physician since the date of his admission to Maplehurst, there were three occasions during which he was unable to be assessed because of a lockdown or due to staffing constraints.

[85] Joshua Barreira swore an affidavit on December 16, 2015. He deposes that there was one month during which he was let out of his cell only five times. He swore "if you're not used to this, it can drive a man suicidal or depressed and that leads to drugs or worse". He swore "this lockdown is not human and can turn one crazy. Animals don't get locked up for a month at a time in a box without consequences, so why do we?"

[86] Mr. Barreira deposes that when Maplehurst is locked down, they don't allow visitors. He swore that his mother was unable to see him for weeks. He deposed that his mother called every day to see if there were visits and on a number of occasions the jail said yes. Accordingly she drove from out of town, waited in line for an hour, then found out that visits were cancelled. Another time, her supervisor said if she left her workplace to go on a visit, she would be fired. She came anyway, and when she got to Maplehurst the visit was cancelled. [page194]

[87] Lucas Bovell swore an affidavit on December 15, 2015. He deposes that lockdowns cause stress and other emotional problems. He said being in lockdown all weekend is "very poor hygiene", which causes sickness. He deposes that during lockdowns they are unable to use the phones to contact lawyers and family.

[88] Nathan Ross Clayton swore an affidavit on December 15, 2015. He deposes that being locked up all the time is not good for inmates. He says they cannot take a shower and therefore have bad hygiene and he has dry skin from the sweat. Further, he cannot use the phone to talk to his family.

[89] Matthew Costain swore an affidavit on December 15, 2015. He deposes:

Me being locked in my cell all the time has had a negative effect on my physical and mental health. I am not able to speak to my family when the institution was on lockdown, even when my four-year-old daughter had surgery on her neck and throat.

[90] He also deposes:

When we are on lockdown, there is no calls, no yard time, no showers, for days. They don't give us new clean clothes -- they even take the clean clothes out of our cells.

[91] Donald P. David swore an affidavit on December 15, 2015. He deposes that almost every weekend he is locked down and stays in his cell for the whole weekend. There are no showers, no phone calls and no visits. It starts on Friday evenings and goes on through to Monday. Sometimes they are locked down on weekdays also. The reasons he keeps hearing from the correctional officers is that they are short staffed.

[92] Mr. David deposes that he is 48 years old and is a type 2 diabetic. He says that locking him up in a cell for two or more days is not something good for his medical condition. He needs at least 20 minutes every day of "yard time". His health can rapidly decline if he is not given his rights to go out in the inmate yard area. When the jail is locked down, there are times he cannot go to see the nurse to check his blood sugar and blood pressure.

[93] Rob Gaudette deposes that lockdowns due to short staff are ridiculous. There are no lawyer calls, no visits and no showers for days on end.

[94] Andrew Green deposes that the jail is locked down almost every day, and inmates are denied showers, phone calls, visits, mail, laundry, fresh air, hygiene products and religious programs. The food schedule has been delayed by two hours each meal. Some inmates are sleeping three to one cell.

[95] Mr. Green deposes that when he asked the correctional officers why they are being treated like this, they told him they [page195] are short of staff. They've also told him that they don't agree with what's going on but they cannot do anything to change these conditions.

[96] Amal Greensword deposes that because of all the lockdowns he does not get much opportunity to discuss his case with his lawyer. He deposes that they get lockdowns more often than other units due to staff shortages. They don't get any programs during lockdowns.

[97] Mr. Greensword deposes that they had just been locked down for seven days ending Monday, December 14. He was told it was for a search. He deposed that during this period they had a shower program three times, for 20 minutes the first two times, then for 30 minutes. He deposed that they only got fresh clothes once right before the lockdown ended.

[98] Noah Kahsay deposes that since his arrest in early 2013, the jail has been locked down to the point where the lockdown days have added up to a full year, 365 days, and still counting. During those lockdowns, inmates are denied phone calls, showers, visits, fresh clothes or sheets, hot meals, access to legal counsel by phone or visit, access to religious programs, access to correctional programs, and some inmates are sleeping three to a cell.

[99] Aleksandar Mihajlovic deposes that since he has been in Maplehurst, he has been locked down in excess of seven days in a row. He deposes that this has affected him mentally and physically, and his personal hygiene. Further, when inmates are locked down for days on end the other inmates get into physical altercations over the showers and the phones. During his first three months, starting from June 10 to September, he can only recall one weekend he was not on lockdown. For this reason, his family has not been able to come and visit due to the fact that they work during the week and reside out of town. Further, his ability to communicate with his lawyer is diminished because of the lockdowns.

[100] Mustafa Muhammed deposes that his father cannot visit him because every weekend is a lockdown and there are no programs running. His father works during weekdays. He says, "I rarely see the sky and breathe fresh air, or get any sun. Rarely do I get my Friday prayers to practice my religion."

[101] Paul Murray deposes that he was brought to Maplehurst on July 30, 2015, and has been on lockdown for a total of 38 days in August and September 2015. He says that from July to mid-August, he was only let outside for yard time four times. He says family and friends have constantly come to visit only to be denied visits during the lockdowns. [page196]

[102] Michael Nanan deposes that they have been getting locked down for no reason, and inmates haven't been able to make phone calls when necessary. He says some inmates need to make important phone calls to lawyers and they have been getting locked down for multiple days at a time.

[103] Mr. Nanan deposes that inmates have been getting in-custody pre-sentencing reports and should be able to access programs in order to get a decent PSR. Because of the lockdowns, they have been unable to do so, and the only answer they get is because they are short staffed. He says there have been weeks that they don't even get clean clothes, maybe one T-shirt a week.

[104] In addition to his affidavit, Mr. Nguyen also gave some evidence viva voce before he was cross-examined.

[105] He testified that during lockdowns, the main impacts on himself are a lack of visits from his family; no phone calls; very limited showers; no stimuli; he cannot talk to anyone except his cellmate; there is poor hygiene, particularly because of living at close quarters with his cellmate; it is hard to co-exist with his cellmate; there is no one else to talk to; there is not enough light; there is no opportunity for exercise. He testified that in the last few weeks prior to the hearing, lockdowns had been almost continuous. There is no television or radio. There is only a toilet, bed and some shelves and a table, and two seats. If there is a lockdown, he has gone almost a week without a shower. Medical appointments have been delayed.

[106] Mr. Nguyen testified that he has to wash his own laundry. He sometimes can go for two weeks or three weeks without a change of clothes. If lawyer visits occur at all during lockdowns, they are through glass only.

[107] Mr. Nguyen testified that during lockdowns there is much stress and anxiety. All there is is himself and his cellmate. He said it can drive you mad. He said there is too close contact for a long period. It is not hygienic, and it smells. He said it is gloomy and depressing and drives him mad.

[108] Mr. Nguyen testified that lockdowns affect his relationship with his family. He has been trying to fix his relationship with his little sister. If lockdowns occur, he cannot call her when he said he would, and thus to his sister he is not keeping his word.

[109] On cross-examination, he acknowledged that sometimes showers are permitted during lockdowns. However, there is no yard access, even if a lockdown is for only one-half of a day. [page197]

[110] Mr. Nguyen acknowledged that there were some visitors during lockdowns, including some lawyer visits. There were some transactions at the canteen during lockdowns.

[111] Paul Murray was cross-examined. He testified that he has three children and a girlfriend. He said they have tried to come to see him. They call ahead, but when they arrive and a lockdown is in progress, they are turned away.

[112] Mr. Murray testified that on lockdown days if his lawyer comes to the institution, he can only see him through glass.

[113] Mr. Murray testified that during lockdowns, stress and tension are higher. Showers are very limited. After three or four days, inmates will be let out for about 15 minutes to use the showers and the telephones. Everyone wants to use them, but that cannot happen. People act out when they are stressed, particularly during and after lockdowns.

[114] On cross-examination, Mr. Murray said that during August 2015, he was locked down for 24 out of 30 days. For ten days, he could not take a shower.

[115] Joshua Barreira was cross-examined. He gave some direct evidence.

[116] Mr. Barreira testified that guards told him lockdowns were because of short staffing. He was told, "If you don't like it, riot." He said there were no showers during lockdowns. His lawyer was either turned away or sometimes he could see him through glass. He said visits from other family members were cancelled.

[117] Mr. Barreira testified that inmates cannot take programs in the jail while there are lockdowns. He said relationships with other inmates are seriously affected. He said showers occur perhaps every three or four days during lockdowns, and everyone wants to use the phone. He said stress is high.

[118] On cross-examination, Mr. Barreira acknowledged that his alleged difficulty in seeing his lawyer was not in his affidavit. He confirmed that his mother had called ahead and was told she could see him, but when she arrived the institution was locked down, and he could not see his mother.

[119] On re-examination, he testified that there is nothing to occupy one's time during a lockdown. Sleep is affected, and the mind races.

[120] Mr. Kahsay was cross-examined. He testified that lockdowns are traumatizing. He confirmed that he had put in a request to transfer that was refused. He said that during a period of 60 days there were a handful of showers.

[121] Mr. Ogiamien was cross-examined. He gave some direct testimony at the hearing. [page198]

[122] He said there were lockdowns in 2013. They were bad then. The number varied by month.

[123] Mr. Ogiamien testified that during lockdowns he could not use the telephone. Sometimes he went 14 days without a shower. Sometimes he went for a week without a change of clothes. Sometimes he went for a month with no sheet changes. He requested to be transferred many times. He wanted to go the "Immigration Jail". He was never given any reason why he could not.

[124] Mr. Ogiamien testified that he now has anxiety disorder. He had never had that condition before.

[125] On cross-examination, Mr. Ogiamien acknowledged that there had been professional visits during lockdowns. He said that he could not see a psychiatrist for some considerable time because of the lockdowns. He acknowledged that he has a criminal record. He has a number of health issues, including high blood pressure and anxiety.

[126] Mr. Ogiamien acknowledged that lockdowns will impact individuals differently.

Submissions

[127] Ms. Jackman, amicus curiae, submits that lockdowns are unpredictable, in the sense that no one knows when they will occur, or for how long they will occur. They occur with such frequency that significant disruption of the lives of inmates is inevitable. Inmates have listed many problems arising from lockdowns, including lack of yard time and physical activity; problems with hygiene including unclean cells, limits on access to showers, and limits of supply of clean clothing; restrictions on access to family and friends, including limits on phone use and cancellation of visiting hours; restrictions on access to counsel due to limits on phone use and cancellation or limitations on visits; restrictions on ability to participate in beneficial programs; and negative psychological effects, including stress, anger, helplessness, frustration and tension within the inmate population.

[128] Ms. Jackman notes that many of these observations by inmates are not contradicted by the respondents' affidavits. At most, they can only say that they were not aware of these issues or they were not brought to their attention. Sometimes it is suggested that the correctional personnel have done things to alleviate the problems, but they are primarily related to health care and professional visits. She notes that the ministry witnesses appeared to be unable or unwilling to acknowledge the impact of lockdowns on inmates. [page199]

[129] Ms. Jackman submits that the ministry has known about the problem of staff shortages, and the fact that lockdowns result from them, for many years. In some cases, including one decided by Nordheimer J. in 2002, the problem has been acknowledged. However, it would appear that very little has been done to overcome the problem. Only recently, it appears, has very much been attempted to train more staff and to develop measures to reduce absenteeism. Mr. Marchegiano would not give an opinion as to whether the problem of frequent lockdowns would be resolved within the next five years.

[130] It is clear, from the evidence, that the problems related to lockdowns were exacerbated during the negotiation process between OPSEU and the provincial government. Mr. Pitfield acknowledged that this was so.

[131] Ms. Jackman submits that the court should consider the basic standards for fair treatment of detainees under international and regional human rights bodies and agencies. One of the main standards, which Canada endorsed in 1975, is the United Nations, Standard Minimum Rules for the Treatment of Prisoners. There are many others. On September 29, 2015, the United Nations General Assembly adopted the United Nations, Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules).

[132] Many of the standards have common elements concerning fair and humane treatment, including

(a) access to adequate and appropriate medical and health services;

(b) access to legal representation and advice;

(c) the ability to maintain social and familial ties;

(d) conditions of detention which ensure the maintenance of order and the safety and protection from violence of those within the prison complex;

(e) access to programs, activities and services, including educational, vocational, remedial, moral, spiritual, social, health and sports based, and exercise;

(f) access to reading materials;

(g) appropriate accommodation and living space which meet requirements of health, both physical and mental, and sanitary requirements, including climatic conditions, appropriate lighting, heating, ventilation and cleanliness; [page200]

(h) access to the means to maintain adequate personal hygiene, including bathing and showers, toilet articles necessary for health and cleanliness, shaving and haircuts;

(i) access to clean clothing and bedding;

(j) access to food of nutritional value adequate for health and strength;

(k) access to an external independent agency with the jurisdiction to address inmate complaints and conduct regular monitoring of the facility; and

(l) separation of convicted from untried prisoners, and separation of civil prisoners from persons imprisoned by reason of a criminal offence.

[133] Ms. Jackman submits that lockdowns impact on the compliance with basic standards of treatment in many ways, including

(a) detracting from the ability of inmates to maintain good mental and physical health because of the increased tension and frustration among them caused by the close conditions of confinement;

(b) limitations on access to space for exercise and fresh air, which negatively impact on good health;

(c) limitations on access to healthcare;

(d) limitations on access to programs, activities and services -- educational, vocational, remedial, moral, spiritual, social, health and sports based, and exercise;

(e) non-compliance with sanitary and cleanliness standards, with respect to personal hygiene, including access to showers and clean clothes and bedding, and with respect to living accommodations and facilities; and

(f) failure to provide a safe space for inmates, in that access to guards is limited during lockdowns, tensions increase among inmates, and they may be at increased risk of harm and have limited access to food.

[134] Ms. Jackman notes that detention in remand maximum security facilities has been recognized by Canadian courts as particularly onerous, to the extent that extra credit is given for time spent in such institutions when determining an appropriate sentence on conviction. For many years, courts routinely [page201] would give credit at a ratio of 2 to 1, or even 3 to 1, for pre-trial custody, and even now credit at a ratio of 1.5 to 1 is specifically recognized in the Criminal Code, R.S.C. 1985, c. C-46 and has been endorsed by the Supreme Court of Canada.

[135] Ms. Jackman submits that the court has jurisdiction to provide for relief on an application for habeas corpus with certiorari in aid where the complaint is grounded in the form of confinement. In this case, the complaint is the imposition of a more restrictive form of detention through lockdowns on a frequent and ongoing basis.

[136] Ms. Jackman submits that relief by way of habeas corpus is available even if no Charter right is contravened. Relief is available if the detention is found to be "not lawful"; it is not required that the detention be found to be "not constitutional". It is also available as a remedy for Charter breaches.

[137] Ms. Jackman submits that the treatment of the applicants constitutes violations of ss. 9, 12 and 7 of the Charter.

[138] Section 9 of the Charter prohibits arbitrary detention. Ms. Jackman submits that the frequent, random and unplanned nature of the lockdowns due to staffing inadequacies is arbitrary, as being imposed without institutional justification. It may be that occasional lockdowns would not be seen as arbitrary, if they are justified for legitimate safety and security reasons or as an avoidable but necessary occurrence in the operation of a large jail caused by occasional staffing problems. However, lockdowns at Maplehurst have been occurring on average every other day over a two-year period. The primary reason is inadequate staffing. They are not exceptional and there is no effective monitoring of their occurrences, nor has there been any real effort to end them.

[139] Section 12 of the Charter prohibits cruel and unusual treatment or punishment. Accepting that, to violate s. 12, treatment or punishment must be "so excessive as to outrage standards of decency", or that it is "grossly disproportionate" such that Canadians would find the punishment "abhorrent or intolerable", that standard is met here.

[140] Each case must be considered on its own facts, both contextually and cumulatively. Canadian courts have determined that some forms of detention can offend s. 12. For example, in one case an institution was found to have breached s. 12 by arbitrarily placing an applicant in solitary confinement, in unsanitary conditions. In another case, the court found that some inmates were entitled to a remedy because the conditions in which the inmates lived, double-bunking and locked up 18-23 hours per day without access to recreational activities, and [page202] provided inadequately cleaned underwear, were grossly disproportionate, intolerable and degrading to human dignity, and, as such, breached their s. 12 Charter rights.

[141] In this case, some of the basic standards for detainees are not fully met at Maplehurst. The addition of frequent, random and unplanned lockdowns over a two-year period constitutes cruel and unusual treatment. It is not imposed as a punishment; rather, it appears to have become a normal part of Maplehurst's operation through indifference and a failure to consider the needs, interest and rights of inmates on remand and immigration holds.

[142] Ms. Jackman submits that the treatment of the applicants constitutes a breach of s. 7 of the Charter. She submits that the conditions under which a person is detained engage the interests of liberty and security of the person. In this case, the testimony of the applicants and the other inmates who provided affidavits underscore the stressful nature of random, frequent lockdowns. In this case, the treatment of Mr. Nguyen, who is on remand, and Mr. Ogiamien, who is on an immigration hold, are particularly problematical because their detention does not arise from a conviction for a criminal offence.

[143] Ms. Jackman submits that there does not appear to be any foreseeable change in the frequency of lockdowns at Maplehurst. While more staff are apparently being trained and recruited, it is entirely uncertain as to when, if ever, this will ameliorate the problem. Furthermore, no other avenues of reducing the impact on inmates have been considered.

[144] Ms. Jackman submits that the frequent lockdowns which have become part of the regular operation of Maplehurst will not end unless there is a court order requiring that they end, for all but legitimate security concerns.

[145] Ms. Jackman submits that an appropriate order would include the prohibition of the imposition of lockdowns due to staffing inadequacies, together with an order returning the matter to the court in six months time in order to monitor the situation. Furthermore, she submits that Mr. Ogiamien should be transferred to the Immigration Holding Centre under the responsibility of the Federal Minister of Public Safety.

[146] Mr. Nguyen, in his submissions, argued that staff shortages were the main reason that lockdowns occurred. He submitted that the frequency of lockdowns had not changed over time. The lockdowns caused considerable hardship, including the unavailability of programs. As remedies, Mr. Nguyen argued that inmates should be allowed out of their cells and on the range for longer periods. They should be entitled to eat on the [page203] range, rather than in their cells as is currently the case. He submitted that there should be more telephones available to inmates, and there should be more social workers.

[147] Mr. Ogiamien, in his submissions, submitted that the lack of staff in the institution renders it unsafe. He submitted that there is a lack of medical treatment during lockdowns.

[148] Mr. Ogiamien submitted that the situation became worse during collective bargaining, and he submitted that no one represents the interests of inmates during collective bargaining. The position of the inmates appears to be used simply as a bargaining chip.

[149] Mr. Ogiamien noted that the position of immigration holds, such as himself, appears to be questionable. He noted that there is no assessment conducted of immigration detainees, notwithstanding that it is required by statute.

[150] As remedies, Mr. Ogiamien proposed that there be two officers in each range; that each inmate be permitted to eat outside his cell; that shower shoes be furnished to inmates; additional pillows be furnished to inmates; a better selection of books, including those in other languages and based on other cultures, be furnished; that court forms be furnished to inmates, including those for judicial review and habeas corpus; that inmates be given access to internet and fax facilities; that better food receptacles, including cups, bowls and spoons be furnished; that additional program rooms be furnished; that additional cleaning utensils be furnished; and that additional money for indigent children be provided.

[151] Mr. Ogiamien requested that he be ordered to be transferred from Maplehurst to a federal immigration facility.

[152] Counsel for the Attorney General of Ontario and the Ministry of Community Safety and Correctional Services submit that this application should be dismissed.

[153] Fundamentally, counsel submit that there should be deference paid to decisions of prison administrators who are better able to make decisions involving the administration of prisons than judges.

[154] Counsel submit that the conditions of the applicants' incarceration do not constitute violations of the Charter. Further, no grounds for habeas corpus have been advanced.

[155] Counsel note that no expert evidence has been called here to establish that the conditions of the applicants' detention are inadequate.

[156] Counsel submit that a number of cases have been decided, in which it is made clear that the matters complained of here do not give rise to any remedy, whether by way of habeas corpus or [page204] under the Charter. Counsel particularly rely on R. v. Jordan, [2002] O.J. No. 5250 (S.C.J.); R. v. Olson (1987), 1987 4314 (ON CA), 62 O.R. (2d) 321, [1987] O.J. No. 855 (C.A.), affd 1989 120 (SCC), [1989] 1 S.C.R. 296, [1989] S.C.J. No. 7; R. v. Morrissey, [2003] O.J. No.1475, [2003] O.T.C. 337 (S.C.J.); and R. v. Sanchez, 1996 848 (ON CA), [1996] O.J. No. 7, 34 C.R.R. (2d) 368 (C.A.).

[157] Counsel submit that in order to succeed in a claim under s. 12 of the Charter, it must be shown that the conditions of incarceration are egregious, and shock the conscience of the court and the public. Counsel submit that the applicants have not come close to showing that that standard is met here.

[158] Counsel submit that in the final analysis, lockdowns are imposed only to ensure the security of the facility and staff, and inmate safety. They are not arbitrary. They are simply a last resort for managing the institution based on the particular circumstances faced by the institution on any given day.

[159] Counsel note that there were challenges to the staffing of Maplehurst during collective bargaining, but that since the conclusion of bargaining the ministry has made a concerted effort to recruit new staff and alleviate the problem of lockdowns that occur as a result of insufficient staffing. Counsel submit that the government should be given an opportunity to engage in good faith efforts in that regard.

[160] In terms of remedies, counsel submit that habeas corpus is not available to prohibit future temporary lockdowns. At most, it is available to challenge the validity of a particular form of custody, including confinement in a special handling unit, placement in administrative segregation or reclassification, and being held in an institution having a particular security designation. Counsel submit that habeas corpus is not available to challenge any and all conditions of confinement. The courts should be reluctant to use habeas corpus to analyze the details of prison conditions, in order to avoid embroiling the courts in the management of prisons.

[161] Counsel note that the legality of Mr. Ogiamien's detention is being determined in other habeas corpus proceedings before Justice Coats. In the current case, in order to avail themselves of the remedy of habeas corpus, the applicants must make out a deprivation of residual liberty. The onus rests on the applicants to do so. In this case, they have not satisfied the onus of demonstrating that lockdowns constitute a deprivation of their residual liberty.

[162] If it can be said that the applicants have demonstrated a substantial change in their residual liberty, the ministry and the Attorney General have demonstrated that temporary lockdowns [page205] are not unlawful, unreasonable or arbitrary. Rather, they are the result of reasonable decisions made for the purpose of maintaining the safety of inmates and staff, and the security of the institution. They are decisions of last resort, and are imposed only when absolutely necessary.

[163] Counsel submit that lockdowns, in the situation as presented in the evidence in this case, do not infringe the applicants' s. 12 Charter rights. While prison conditions such as overcrowding may infringe s. 12, the threshold for establishing a breach of s. 12 is high. Only punishment or treatment that is "grossly disproportionate" runs afoul of the constitutional guarantee. Ordinary burdens, inconveniences and loss of privileges do not offend s. 12.

[164] Counsel submit that the court should be cautious in relying on international law documents, as they are only tangentially relevant to issues that arise under the Charter. The courts of this country have adopted their own jurisprudence in interpreting the guarantees under the Charter. International standards, that reflect a broad variety of political and social circumstances, have limited application in Canada. In any event, the ministry is in compliance with general international standards.

[165] Counsel submit that while conditions during temporary lockdowns are less than optimum, the evidence establishes that the institution works extensively to provide services and privileges, including professional visits, access to showers and access to telephones.

[166] Counsel submit that the protection from arbitrary detention under s. 9 of the Charter has no application here because s. 9 is limited to challenges to the initial arrest or detention of a suspect.

[167] Counsel submit that s. 7 of the Charter has no application here. The constitutional validity of detention conditions is properly reviewed under s. 12 of the Charter. There is no room for any residual analysis under s. 7 if s. 12 has not been violated.

[168] In any event, counsel submit, there has been no deprivation of the applicants' residual liberty interests here. The temporary lockdowns at Maplehurst are imposed for valid operational and safety reasons.

[169] Counsel submit that, in this case, any deprivation of a s. 7 interest is in accordance with the principles of fundamental justice. Temporary lockdowns are imposed only for the purpose of staff and inmate safety. The imposition of temporary lockdowns has proved effective and necessary in protecting the safety of staff and inmates. Thus, any deprivation of liberty or security of the person is in accordance with the principles of [page206] fundamental justice, and any claim under s. 7 of the Charter must be rejected.

[170] Counsel submit that if any violation of the Charter is found to have occurred, the court should restrict itself to granting a declaration only. Any intrusive remedy, such as ordering the ministry not to lock down the institution, or to take steps to remediate the situation, would be an unwarranted intrusion on the governance of the institution by those charged with the task of doing so, and would involve the court in directing how the institution is to be run. Counsel submit that the court should be most reluctant to do so, and in any event is not well equipped to do so.

[171] Counsel for the Attorney General of Canada adopts the submissions of the ministry and the Attorney General of Ontario as they relate to whether habeas corpus is available, and/or any Charter rights of the applicants have been infringed. Counsel restricted his submissions to whether a Charter remedy for Mr. Ogiamien should include an order transferring him from Maplehurst to an immigration holding centre.

[172] Counsel submits that such an order would be inappropriate in the circumstances, as eligibility for detention in an immigration holding centre is determined by way of an assessment carried out by a Canada Border Services Agency officer under the national risk assessment for detention process.

[173] Counsel notes that such an assessment has been carried out for Mr. Ogiamien, and he has been assessed as a high-risk detainee. The immigration holding centres are only equipped to handle detainees with a lower risk profile. Mr. Ogiamien has criminal convictions in the United States and Canada and has outstanding criminal charges in the Province of Quebec. Thus, he is clearly in a high-risk category.

[174] Pursuant to the terms of the contract between Canada Border Services Agency and the owner of the property where the immigration holding centre is located, only persons assessed as suitable, or low risk, are to be housed at the immigration holding centre. Further, the insurance on the property refers to it as a low-risk detention centre.

[175] Counsel submits that the agreement between Canada and Ontario respecting the detention of immigration detainees provides that parties will endeavour to ensure to the extent possible that persons detained pursuant to that agreement are not commingled with inmates detained in respect of a criminal charge. Counsel notes that the lawfulness of that agreement has not been challenged. [page207]

[176] Counsel referred to a large number of cases in their written and oral submissions. They include, not in any particular order, Almrei v. Canada (Attorney General), [2003] O.J. No. 5198, [2003] O.T.C. 1104 (S.C.J.); Bacon v. Surrey Pre-trial Services Centre, [2010] B.C.J. No. 1080, 2010 BCSC 805; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, [2013] S.C.J. No. 72; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, [2007] S.C.J. No. 9; Criminal Trial Lawyers' Assn. v. Alberta (Solicitor General), 2004 ABQB 534, [2004] A.J. No. 838, 188 C.C.C. (3d) 538 (Q.B.); R. v. MacPherson, 1996 10188 (NB KB), [1996] N.B.J. No. 182, 177 N.B.R. (2d) 1 (Q.B.); May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, [2005] S.C.J. No. 84; McCann v. Canada, 1975 2267 (FC), [1975] F.C.J. No. 161, [1976] 1 F.C. 570 (T.D.); Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, [2014] S.C.J. No. 24; Morin v. Canada (National Special Handling Unit Review Committee), 1985 24 (SCC), [1985] 2 S.C.R. 662, [1985] S.C.J. No. 80; R. v. Gamble, 1988 15 (SCC), [1988] 2 S.C.R. 595, [1988] S.C.J. No. 87; R. v. Johnson, [2011] O.J. No. 822, 2011 ONCJ 77; R. v. Khan, [2003] O.J. No. 5644 (C.J.); R. v. Kravchov, 2002 79565 (ON CJ), [2002] O.J. No. 2172, 4 C.R. (6th) 137 (C.J.); R. v. Miller, 1985 22 (SCC), [1985] 2 S.C.R. 613, [1985] S.C.J. No. 79; R. v. Monje, 2011 ONCA 1, [2011] O.J. No. 1, 273 O.A.C. 392 (C.A.); R. v. Morant, [2013] O.J. No. 2177, 2013 ONSC 1969 (S.C.J.); R. v. Permesar, [2003] O.J. No. 5420 (C.J.); R. v. Prince, [2006] O.J. No. 3776, 2006 ONCJ 349; R. v. Rezaie (1996), 1996 1241 (ON CA), 31 O.R. (3d) 713, [1996] O.J. No. 4468 (C.A.); R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, [1987] S.C.J. No. 36; R. v. Smith, [2003] O.J. No. 1782 (C.J.); R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32; R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895, [2005] S.C.J. No. 53; Reference Re Motor Vehicle Act (British Columbia) S. 94(2), 1985 81 (SCC), [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73; Singh v. Canada (Minister of Employment and Immigration), 1985 65 (SCC), [1985] 1 S.C.R. 177, [1985] S.C.J. No. 11; Spindler v. Millhaven Institution, 2003 32901 (ON CA), [2003] O.J. No. 3449, 175 O.A.C. 251 (C.A.); Trang v. Alberta (Edmonton Remand Centre), [2006] A.J. No. 1473, 2006 ABQB 834; Trang v. Alberta (Edmonton Remand Centre), [2010] A.J. No. 31, 2010 ABQB 6; Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness) (2015), 2015 ONCA 700, 127 O.R. (3d) 401, [2015] O.J. No. 5438 (C.A.); R. v. Jordan, supra; R. v. Olson, supra; R. v. Aziga, [2008] O.J. No. 3052, 2008 CarswellOnt 4619 (S.C.J.); R. v. Morrissey, supra; Corner v. Canada, [2002] O.J. No. 4887, [2002] O.T.C. 986 (S.C.J.); Iwanicki v. Ontario (Minister of Correctional Services), [2000] O.J. No. 955, [2000] O.T.C. 181 (S.C.J.); Weatherall v. Canada (Attorney General), 1993 112 (SCC), [1993] 2 S.C.R. 872, [1993] S.C.J. No. 81; Munoz v. Alberta (Edmonton Remand Centre), [2004] A.J. No. 1344, 2004 ABQB 769; Maltby v. Saskatchewan (Attorney General), 1982 2320 (SK QB), [1982] S.J. No. 871, 2 C.C.C. (3d) 153 (Q.B.); [page208] Soenen v. Edmonton Remand Centre, 1983 1113 (AB KB), [1983] A.J. No. 709, 8 C.C.C. (3d) 224 (Q.B.); Crews v. Canada (Correctional Service), 1994 4799 (SK QB), [1994] S.J. No. 396, 126 Sask. R. 181 (Q.B.); Suman v. Canada (Attorney General), [2012] O.J. No. 374, 2012 ONSC 677 (S.C.J.); Biever v. Alberta (Director of Edmonton Remand Centre), [2015] A.J. No. 1044, 2015 ABQB 609; Egan v. Quinte Detention Centre, 2008 19224 (ON SC), [2008] O.J. No. 1624, 171 C.R.R. (2d) 42 (S.C.J.); Dumas v. Leclerc Institute, 1986 38 (SCC), [1986] 2 S.C.R. 459, [1986] S.C.J. No. 61; Conway v. Barbaree, [2010] O.J. No. 2466, 215 C.R.R. (2d) 230 (S.C.J.); R. v. Campbell, [2010] O.J. No. 4962, 2010 ONSC 6168 (S.C.J.); McArthur v. Regina Correctional Centre, 1990 7609 (SK QB), [1990] S.J. No. 165, 56 C.C.C. (3d) 151 (Q.B.); R. v. Boone, 2014 ONCA 515, [2014] O.J. No. 3173, 312 C.C.C. (3d) 27 (C.A.); Jaballah v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 420, 2004 FC 299; Baroud v. Canada (Minister of Citizenship and Immigration) (1995), 1995 638 (ON CA), 22 O.R. (3d) 255, [1995] O.J. No. 43 (C.A.); R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, [2003] S.C.J. No. 79; R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, [1987] S.C.J. No. 62; R. v. Farrell, 2011 ONSC 2160, [2011] O.J. No. 1813, 275 C.C.C. (3d) 128 (S.C.J.); L. (B.R.) v. Canada, 2000 14829 (FC), [2000] F.C.J. No. 108, 181 F.T.R. 89 (T.D.); R. v. Munoz, [2006] A.J. No. 1596, 2006 ABQB 901; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, [2000] S.C.J. No. 39; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, [2015] S.C.J. No. 15; R. v. Sanchez, supra; R. v. Milne, 1987 38 (SCC), [1987] 2 S.C.R. 512, [1987] S.C.J. No. 73; R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697, [1990] S.C.J. No. 131; Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, [2002] S.C.J. No. 85; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, [2008] S.C.J. No. 6; R. v. Chan, 2005 ABQB 615, [2005] A.J. No. 1118, 387 A.R. 123 (Q.B.); Cardinal v. Kent Institution, 1985 23 (SCC), [1985] 2 S.C.R. 643, [1985] S.C.J. No. 78; Cunningham v. Canada, 1993 139 (SCC), [1993] 2 S.C.R. 143, [1993] S.C.J. No. 47; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32; Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392, [2014] S.C.J. No. 20; Ahmad v. Canada (Attorney General), [2015] O.J. No. 6277, 2015 ONSC 7010 (S.C.J.); and Canada (Attorney General) v. White, [2015] O.J. No. 5977, 2015 ONSC 6994 (S.C.J.).

[177] I consulted a number of cases on my own, including Collin v. Canada (Solicitor General), 1982 5264 (FC), [1982] F.C.J. No. 160, [1983] 1 F.C. 496 (T.D.); Hay v. Canada (National Parole Board), 1985 3638 (FC), [1985] F.C.J. No. 610, 21 C.C.C. (3d) 408 (T.D.); Piche v. Canada (Solicitor General), 1989 7246 (FCA), [1989] F.C.J. No. 204, 47 C.C.C. (3d) 495 (C.A.); R. v. Downey, [1989] O.J. No. 436, 42 C.R.R. 286 (Dist. Ct.); Gogan v. Nova Scotia (Attorney General), [2015] N.S.J. No. 544, 2015 NSSC 360; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, [2010] S.C.J. No. 27; [page209] Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214, [2015] S.C.J. No. 24; Hill v. British Columbia, 1997 4136 (BC CA), [1997] B.C.J. No. 1255, 148 D.L.R. (4th) 337 (C.A.); Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63; United States of America v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, [2001] S.C.J. No. 8; Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861 (1979); and Brown v. Plata, 563 U.S. 493, 131 S. Ct. 1910 (2011).

Analysis

[178] This application is brought as a habeas corpus application, as well as an application under s. 24(1) of the Charter, alleging violations of ss. 7, 9 and 12 of the Charter. It is instructive to examine how the courts have applied the principles arising from these types of proceedings, as they relate to conditions in correctional facilities.

a) Habeas corpus

[179] The remedy of habeas corpus, with or without certiorari in aid, was traditionally applied simply to determine the legality of a person's detention. If the detention was unlawful, the court could order that the detainee be released from custody.

[180] More recently, however, the remedy of habeas corpus has been applied to determine whether the treatment of a prisoner, who is lawfully in custody, nevertheless is unlawful. Notionally, the detainee is held in a "prison within a prison". The Supreme Court of Canada has made it clear in a number of cases that habeas corpus is available to challenge the terms of imprisonment if they are unlawful, and that it is not necessary to order the detainee discharged from custody altogether. Rather, it can be ordered that the detainee's terms of imprisonment be altered so that the illegality is removed.

[181] Cases in the Supreme Court of Canada that have addressed the issue include R. v. Miller, supra; Morin v. Canada, supra; R. v. Gamble, supra; May v. Ferndale Institution, supra; and Mission Institution v. Khela, supra.

[182] The availability of habeas corpus is now enshrined in s. 10(c) of the Charter. For that reason, among others, the Supreme Court of Canada has made it clear that the remedy of habeas corpus is of fundamental importance in Canada, and is not to be cut down because of the availability of other remedies, save and except in exceptional circumstances: see May v. Ferndale Institution, supra; and Mission Institution v. Khela, supra.

[183] Notwithstanding the expansive availability of habeas corpus that has developed in the last several decades, the remedies available on habeas corpus are somewhat restricted. [page210] In appropriate circumstances, the court can order the detainee released from custody. If the complaint is that the inmate is being unlawfully denied a less restrictive detention status, or that his or her terms of imprisonment constitute unlawful restrictions on his or her liberty, the court can order that the inmate be placed in an appropriate custodial regime, or can order that the restrictive terms no longer apply to the inmate. Broader remedies, such as damages or intrusive orders to make alterations in Charter-breaching conditions must flow from s. 24(1) of the Charter, if at all.

b) The [Canadian Charter of Rights and Freedoms](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[184] Applications for habeas corpus are often combined with applications under s. 24(1) of the Charter. It reads as follows:

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[185] I will have more to say about s. 24(1) later, but I simply pause to note that it constitutes an extraordinarily broad grant of authority for a court to make orders of virtually any kind to rectify a Charter breach. As broad as the provision is, a court must, of course, act judicially in making an order under s. 24(1), and again I will have more to say about this later.

[186] The provisions of the Charter that are in issue here are ss. 7, 9 and 12. They read as follows:

7. Everyone 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.

8. Everyone has the right not to be arbitrarily detained or imprisoned.

9. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[187] Section 7 of the Charter is the bedrock on which ss. 8-14 of the Charter rest. This was discussed by Justice Lamer, for the majority of the Supreme Court of Canada, in Reference Re Motor Vehicle Act, supra.

[188] The issue in that case was whether a provision in the British Columbia Motor Vehicle Act [R.S.B.C. 1996, c. 318], that made an offence one of absolute liability, and then imposed a minimum term of imprisonment, contravened s. 7 of the Charter. The court had little difficulty in holding that a provision that [page211] imposed liability for an offence, without the possibility of any defence, and then imposed a mandatory term of imprisonment, affected a liberty interest. The issue before the court was whether the deprivation of that liberty interest had been effected in accordance with the principles of fundamental justice. The main debate was whether the principles of fundamental justice were restricted to principles of natural justice, or whether they included basic substantive rights. The court held that the principles of fundamental justice are to be found in the basic tenets of our legal system, and held that the challenged provision of the Motor Vehicle Act violated s. 7 of the Charter as the court interpreted it.

[189] In discussing the principles arising under s. 7 of the Charter, Lamer J. took the opportunity to discuss the relationship between s. 7 and ss. 8-14. At para. 27, he stated:

Sections 8-14, in other words, address specific deprivations of the "right" to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7. They are designed to protect, in a specific manner and setting, the right to life, liberty and security of the person set forth in s. 7.

[190] At para. 28, he stated:

Sections 8-14 are illustrative of deprivations of those rights to life, liberty and security of the person in breach of the principles of fundamental justice. For they, in effect, illustrate some of the parameters of the "right" to life, liberty and security of the persons; they are examples of instances in which the "right" to life, liberty and security of the person would be violated in a manner which is not in accordance with the principles of fundamental justice. To put matters in a different way, sections 7-14 could have been fused into one section, with inserted between the words of section 7 and the rest of those sections the oft utilized provision in our statutes, "and without limiting the generality of the foregoing (s. 7) the following shall be deemed to be in violation of a person's rights under this section".

[191] At para 61, he stated:

Sections 8-14 address specific deprivations of the "right" to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of section 7. They are therefore illustrative of the meaning, in criminal or penal law, of "principles of fundamental justice"; they represent principles which have been recognized by the common law, international conventions and by the very fact of entrenchment in the Charter, as essential elements for a system for the administration of justice which is founded upon a belief in the dignity and worth of a human person and the rule of law.

[192] These passages have sometimes been interpreted to mean that the rights set forth in ss. 8-14 of the Charter are exclusive. In other words, if something is not captured by one of those provisions, there is no room to capture it under s. 7. [page212] To take an example that is relevant to this case, if it is alleged that treatment or punishment constitutes a violation of s. 12 of the Charter, and that allegation is not made out, it cannot be contended, so the argument goes, that there is some residual authority to find that the impugned conduct violates s. 7.

[193] There is relatively little jurisprudence on the ambit of s. 9 of the Charter, beyond the initial decision or action to detain a person. Whether it deals with the conditions of detention, after the detainee has actually been detained, is an open question. Professor Hogg in his text, Constitutional Law of Canada, 5th ed. (Toronto: Carswell, 2007), at p. 49-9, states as follows:

Arbitrariness under section 9 is concerned with the adequacy of the standards prescribed by law for a detention or imprisonment. Section 9 is not concerned with the nature or duration of the detention or imprisonment. The question whether a detention or imprisonment is disproportionately severe for the offence for which it was imposed is not an issue under s.9. Under the Charter, the severity of a treatment or punishment is to be reviewed under s.12, which prohibits "cruel and unusual treatment or punishment".

[194] I am prepared to accept the view of Professor Hogg in this case, and will confine my consideration to whether the treatment of the applicants constitutes a violation of s. 12, and perhaps s. 7. It is to s. 12 that I will now turn.

[195] For ease of reference, s. 12 of the Charter provides as follows:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[196] Many assume that the inspiration for this provision came from the Eighth Amendment to the United States Constitution, which reads as follows:

Excessive bail shall not be required, nor excessive fines imposed nor cruel and unusual punishments inflicted.

[197] However, the Eighth Amendment drew its own inspiration from the English Bill of Rights of 1688, which included the following provision:

That excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.

[198] Both the Bill of Rights and the Eighth Amendment are restricted in their terms to "punishments". In the United States, any complaint as to the conditions of imprisonment could not be maintained, particularly pre-conviction imprisonment, unless those conditions could be said to be a form of punishment. Accordingly, American cases interpreting the Eighth Amendment are of limited assistance. [page213]

[199] In Canada, the precursor to s. 12 of the Charter was enacted as part of the Canadian Bill of Rights [S.C. 1960, c. 44], enacted in 1960. Section 2(b), which is still in force, provides as follows:

2. Every law of Canada shall, unless it is expressly declared by an Act of Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

(b) impose or authorize the imposition of cruel and unusual treatment or punishment[.]

[200] Unlike the British and American versions, this provision includes the word "treatment" in addition to "punishment". This formulation was continued in s. 12 of the Charter.

[201] By including the word "treatment" in s. 2(b) of the Canadian Bill of Rights and in s. 12 of the Charter, it can only be concluded that it was intended that these provisions go considerably beyond what is covered in the British and American provisions. The word "treatment" is a word of broad import, and it will undoubtedly include conditions of detention that do not, strictly speaking, amount to punishment. If treatment is cruel and unusual it is prohibited by s. 12 of the Charter, just as much as cruel and unusual punishment would be.

[202] There had originally been some debate as to the meaning of the term "cruel and unusual". It was unclear as to whether a particular treatment or punishment had to be both "cruel" and "unusual" in order to contravene the provision. It now seems to be accepted that the words colour each other, and are to be considered together as a compendious expression of a norm. As stated by Laskin C.J.C. in Cockriell v. The Queen, 1976 12 (SCC), [1977] 2 S.C.R. 680, [1976] S.C.J. No. 91, at pp. 689-90 S.C.R., in interpreting s. 2(b) of the Canadian Bill of Rights:

The various judgments in the Supreme Court of the United States, which I would not discount as being irrelevant here, do lend support to the view that "cruel and unusual" are not treated there as conjunctive in the sense of requiring a rigidly separate assessment of each word, each of whose meanings must be met before they become effective against challenged legislation, but rather as interacting expressions colouring each other, so to speak, and hence to be considered together as a compendious expression of a norm. I think this to be a reasonable appraisal, in line with the duty of the court not to whittle down the protections of the Canadian Bill of Rights by a narrow construction of what is a quasi-constitutional document. [page214]

[203] This approach was essentially approved by Lamer J. in R. v. Smith, supra, at para. 45, where he stated, "Abandoning the debate as to whether aecruel and unusual' should be read disjunctively or conjunctively, most courts have clearly taken the Laskin approach as set out in Miller and Cockriell and have treated the phrase aecruel and unusual' as a aecompendious expression of a norm'".

[204] Most of the cases interpreting and applying s. 12 of the Charter have to do with punishment rather than treatment. A considerable number have to do with whether minimum terms of imprisonment violate s. 12.

[205] Different words have been used to describe what may be considered to be cruel and unusual. They include "so excessive as to outrage standards of decency"; "grossly disproportionate"; and "degrading and inhuman": see R. v. Smith, supra, paras. 53 and 54.

[206] R. v. Smith involved a claim that a minimum sentence of seven years in custody for the importation of a narcotic violated s. 12 of the Charter. The Supreme Court of Canada, by a majority, held that it did. The case dealt with the issue of "punishment" rather than "treatment".

[207] At para. 44, Lamer J. referred with approval to an article by Professor Tarnopolsky, as he then was, "Just Desserts or Cruel and Unusual Treatment or Punishment? Where do we look for Guidance?" (1978), 10 Ottawa L. Rev. 1, and a summary of various tests that Professor Tarnopolsky proposed:

(1) Is this punishment such that it goes beyond what is necessary to achieve a legitimate penal aim?

(2) Is it unnecessary because there are adequate alternatives?

(3) Is it unacceptable to a large segment of the population?

(4) Is it such that it cannot be applied on a rational basis in accordance with ascertained or ascertainable standards?

(5) Is it arbitrarily imposed?

(6) Is it such that it has no value in the sense of some social purpose such as reformation, rehabilitation, deterrents or retribution?

(7) Is it in accord with public standards of decency or propriety?

(8) Is the punishment of such a character as to shock general conscience or as to be intolerable in fundamental fairness? [page215]

(9) Is it unusually severe and hence degrading to human dignity and worth?

[208] At para. 45, Lamer J. noted that an overview of the cases decided under s. 12 reveals that these tests are those substantially resorted to.

[209] While I noted earlier that "treatment" is a broader word than "punishment", and would undoubtedly incorporate the conditions of pre-trial incarceration, nevertheless the same prohibitory words "cruel and unusual" are used. It seems to me that the meaning to be given to the words "cruel and unusual" may differ somewhat depending on whether it is treatment or punishment that is being considered. To some extent, the specific circumstances of the individual must be considered in determining whether that person is being treated in a cruel and unusual manner. The position of a pre-trial detainee, as well as an immigration detainee, neither of whom have been convicted of any crime, is significantly different than one who has been convicted of a crime and is serving a sentence. Different conditions may well apply depending on the circumstances. Whether they are necessarily cruel and unusual may depend, to some extent, on whether those differences are significant.

[210] There is some controversy as to the use that may be made of international treaties and other recognized standards respecting custodial conditions. Some of them have been adopted by Canada, and some have not.

[211] One such standard, that has been adopted by Canada, is the Standard Minimum Rules for the Treatment of Prisoners, promulgated by the United Nations. Two of its provisions, which have relevance here, are:

8. The different categories of prisoners shall be kept in separate institutions or parts of institutions taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment. Thus,

b. untried prisoners shall be kept separate from convicted prisoners;

9(1) where sleeping accommodation is individual cells or rooms, each prisoner shall occupy by night a cell or room by himself. If for special reasons, such as temporary overcrowding, it becomes necessary for the central prison administration to make an exception to this rule, it is not desirable to have two prisoners in a cell or room.

[212] The United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), adopted in 2015, include the following provisions: [page216]

Rule 1

All prisoners shall be treated with the respect due to their inherent dignity and value as human beings. No prisoner shall be subjected to, and all prisoners shall be protected from, torture and other cruel, inhuman or degrading treatment or punishment, for which no circumstances whatsoever may be invoked as a justification. The safety and security of prisoners, staff, service providers and visitors shall be ensured at all times.

Rule 3

Imprisonment and other measures that result in cutting off persons from the outside world are afflictive by the very fact taking from these persons the right of self-determination by depriving them of their liberty. Therefore the prison system shall not, accept as incidental to justifiable separation or the maintenance of discipline, aggravate the suffering inherent in such a situation.

Rule 111

2. Unconvicted prisoners are presumed to be innocent and shall be treated as such.

Rule 112

1. Untried prisoners shall be kept separate from convicted prisoners.

Rule 113

Untried prisoners shall sleep singly in separate rooms, with the reservation of different local custom in respect of the climate.

[213] There are many other international standards, which it is unnecessary to review. Many contain provisions that are similar to those I have just quoted.

[214] The only standard drawn to my attention that specifically deals with lockdowns is the Standard on Treatment of Prisoners contained within the Criminal Justice Section Standards of the American Bar Association. Standard 23-3.9 "Conditions during lockdown" includes the following:

(a) The term "lockdown" means a decision by correctional authorities to suspend activities in one or more housing areas of a correctional facility and to confine prisoners to their cells or housing areas.

(b) A lockdown of more than one day should be imposed only to restore order; to address an imminent threat of violence, [page217] disorder or serious contagion; or to conduct a comprehensive search of the facility.

[215] It appears to be common ground that international standards, whether they be binding on Canada or not, do not themselves give rise to any avenue of relief in a Canadian court. The parties differ on whether they can be used for any purpose, and specifically as an aid to interpreting the rights set out in the Charter. In my view, international standards can be used by a court as an aid in interpreting the rights conferred by the Charter, but that some caution must be observed.

[216] In Bacon v. Surrey Pre-trial Services Centre, supra, Justice McEwan noted, at para. 272, that there are numerous published articulations of a general nature that prisoners should be treated with respect, and in a manner that acknowledges the inherent dignity of the human person. At para. 274, he quoted the following passage from the judgment of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, [2002] S.C.J. No. 3, at para. 60:

International treaty norms are not, strictly speaking, binding in Canada unless they have been incorporated into Canadian law by enactment. However, in seeking the meaning of the Canadian Constitution, the courts may be informed by international law. Our concern is not with Canada's international obligations qua obligations; rather, our concern is with the principles of fundamental justice. We look to international law as evidence of these principles and not as controlling in itself.

[217] In Trang v. Alberta (Edmonton Remand Centre), supra, Marceau J., commencing at para. 938, considered the applicability of international standards in interpreting and applying the Charter. In particular, he considered the Standard Minimum Rules for the Treatment of Prisoners ("SMR"). At para. 942, he stated "The SMRs are guidelines only, not rules. They will be considered within the context of the test under s.12: whether the treatment outrages standards of decency and are grossly disproportionate."

[218] Initiatives within the international community denouncing the death penalty were referred to at some length by the Supreme Court of Canada in United States of America v. Burns, supra, where the court had to determine whether the extradition of two fugitives from justice to the United States, without assurances from the American Government that the death penalty would not be imposed, contravened the Charter. The court held that it did.

[219] At para. 79, the court referred to the judgment of Lamer J. in Re B.C. Motor Vehicle Act, supra, where he said international conventions could be used as an aid to the interpretation of the Charter. [page218]

[220] Commencing at para. 85, the court referred to a number of international reports and conventions relating to the death penalty. At para. 92, the court stated:

The existence of an international trend against the death penalty is useful in testing our values against those of comparable jurisdictions. This trend against the death penalty supports some relevant conclusions. First, criminal justice, according to international standards, is moving in the direction of abolition of the death penalty. Second, the trend is more pronounced among democratic states with systems of criminal justice comparable to our own.

[221] From these cases, I conclude that reference to international standards is permissible, but their usefulness is limited. In the final analysis, the rights enshrined in our Charter reflect the consensus of Canadians as to what those rights should be, and the interpretation of those rights must be grounded in a Canadian perspective. At most, the international standards, assuming there is a consensus, can only assist as a guidepost as to what standards should be recognized and applied by a Canadian court. However, they are not determinative.

[222] An example that is relevant to the case at hand is the standard relating to double-bunking. Clearly, the Standard Minimum Rules for the Treatment of Prisoners contemplate that there should be no double-bunking. That is obviously not a standard that is used or applied at Maplehurst. That does not mean, however, that double-bunking, standing alone, will violate the Charter.

[223] Different courts have considered the issue of double-bunking. To date, no court has ruled that double-bunking, by itself, is a constitutional violation: see Collin v. Canada (Solicitor General), supra; and Piche v. Canada (Solicitor General), supra. The Supreme Court of the United States, in Bell v. Wolfish, supra, also held that double-bunking does not constitute a violation of the Eighth Amendment. Fundamentally, the court held that double-bunking did not amount to "punishment" for pre-trial detainees. However, the court noted that inmates generally are locked into their rooms from 11:00 p.m. to 6:30 a.m. and for brief periods during the afternoon and evening headcounts. During the rest of the day, they may move about freely between their rooms and the common areas. Accordingly, they are required to spend only seven or eight hours each day in their rooms, during which all or most of the time, they are presumably sleeping. During the remainder of the time they are free to move between their rooms and the common area.

[224] In the case I recently referred to, Trang, Marceau J., at para. 1005, stated:

Rather, the courts have adopted the approach of considering the question of double-bunking as a significant circumstance to be assessed in light of [page219] other relevant circumstances including the availability of exercise, cell amenities and floor space, time spent in cells and length of incarceration.

[225] In my view, this is the appropriate approach. The international standard prescribes an ideal. It is a starting point, and nothing more. It reflects what would ordinarily be regarded as common sense: to the extent possible, people should not be cooped up in close quarters with the same person all the time, without any choice in the matter. Apart from the fact that one may not get along with the particular person, it is inevitable that being at close quarters will potentially require putting up with the other person's moods, hygiene or lack thereof, and disposition, without any opportunity for escape during the periods when the cells doors are locked.

[226] There are cases that have considered whether lockdowns and similar phenomena, such as segregation, or solitary confinement, constitute violations of the Charter. One of the earliest was McCann v. Canada, supra, which was actually an application in which reliance was placed on s. 2(b) of the Canadian Bill of Rights. The Charter was not yet in force. Heald J. held that solitary confinement constituted cruel and unusual treatment or punishment contrary to s. 2(b) of the Canadian Bill of Rights.

[227] Other cases in which similar issues have been considered include Bacon v. Surrey Pre-trial Service Centre, supra; Trang v. Alberta (Edmonton Remand Centre), 2006 ABQB 834, [2006] A.J. No. 1473 (Q.B.), supra; Trang v. Alberta (Edmonton Remand Centre), 2010 ABQB 6, [2010] A.J. No. 31 (Q.B.), supra; R. v. Jordan, supra; R. v. Olson, supra; R. v. Azija, supra; R. v. Morrissey, supra; Munoz v. Alberta (Edmonton Remand Centre), supra; Soenen v. Edmonton Remand Centre, supra; R. v. Boone, supra; and R. v. Sanchez, supra.

[228] In some cases, relief was granted and in some cases it was not. In some cases, the issue was segregation or solitary confinement, and in some cases there were periods of lockdown with corresponding deprivations of one privilege or another; similar, in some respects, to this case.

[229] In cases where solitary confinement or segregation was used with a rational explanation for its use, the courts were not inclined to find a violation of the Charter. A good example is Olson.

[230] Clifford Olson was, before his death, one of the most reviled criminals in Canadian history. He had murdered 11 children and was sentenced to life in prison. He had a long history of protective custody because of his unpredictable behaviour with other inmates, and he was at risk in the general population. He spent 23 hours of each day in his cell and the other hour in the [page220] exercise facilities of the prison. However, he enjoyed all of the other privileges enjoyed by prisoners save only those that followed from the nature of his confinement. He made no complaint about the nature of the place or cleanliness or the lack of food or reasonable comfort, nor he did he complain that he was arbitrarily denied any privileges ordinarily enjoyed by other inmates.

[231] Justice Brooke, for the Court of Appeal, held that there was no violation of s. 12 of the Charter. He noted that Mr. Olson was a dangerous man, having been convicted of 11 counts of first degree murder and had a lengthy criminal record. He noted that those charged with the administration of prisons had very good reason to fear for the maintenance of order and discipline in the institution. There was good reason to fear for the protection of the staff and other inmates and to fear that Mr. Olson's life may be taken if he were to be allowed into the general population. Thus, as far as Mr. Olson was concerned, his treatment did not constitute cruel and unusual treatment or punishment.

[232] Another good example is R. v. Boone. Mr. Boone had been segregated in solitary confinement for more than a year. The superintendent of the prison took the position that Mr. Boone's confinement in administrative segregation was necessary both for the protection of other inmates and for the protection of Mr. Boone. Mr. Boone was HIV positive, and he had a predisposition towards having sexual relations with other male prisoners.

[233] Justice Blair, for the Court of Appeal, noted that transfer to solitary confinement is a serious deprivation of liberty and security of the person. At para. 3, he stated: "There has been a growing recognition over the last half-century that solitary confinement is a very severe form of incarceration, and one that has a lasting psychological impact on prisoners." Nevertheless, Justice Blair held that there was no violation of the Charter in the circumstances. He held that the application judge was properly satisfied that the administrative segregation of Mr. Boone was lawful and necessary to ensure the safety of other inmates, and, in particular, any cellmate placed with him.

[234] The point that is made in these cases is that the 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 may not be so.

[235] In Bacon v. Surrey Pre-trial Services Centre, supra, an inmate had been placed in "administrative segregation", a form of solitary confinement. He was permitted one hour out of his [page221] cell per day, which was also his opportunity to shower and to contact counsel.

[236] One of the main justifications for treating the inmate this way was described by McEwan J., at para. 269, as follows:

Among the justifications offered by the respondent for confining the petitioner in a cell made for punishment -- for a period longer than the maximum term imposed as punishment, in circumstances that included virtually the same deprivations (down to pens and nail clippers, and asthma inhalers) as those imposed on inmates who are being punished -- is that resources are straitened. That can hardly be an excuse, however, for treating one presumptively innocent inmate worse than another. It is, in fact, a compelling reason why measures to compensate for the specific hardships related to the resource limitation of the physical plant ought to have been implemented.

[237] At para. 353, McEwan J. concluded as follows:

The respondent is in breach of s. 12 of the Charter in arbitrarily placing the petitioner in solitary confinement, in failing to appropriately mitigate his circumstances in solitary confinement, and in unlawfully denying him the other rights to which he was entitled, significantly threatening his psychological integrity and well-being. These impositions collectively amount to cruel and unusual treatment.

[238] In the 2006 decision of Trang v. Alberta (Edmonton Remand Centre), the complaint was that the treatment of inmates while they were being transported between correctional institutions breached their rights under ss. 7 and 12 of the Charter. The inmates were handcuffed and shackled while transported, and the transport compartments were unpadded, cramped and without sufficient headroom. They complained that the conditions of their incarceration during such trips were inhumane, degrading and unnecessary. Justice Marceau held that the conditions did not violate s. 12 of the Charter, in that they were not so excessive that they outraged standards of decency, nor were they grossly disproportionate.

[239] Notwithstanding the conclusion on s. 12, Marceau J. held that s. 7 of the Charter was violated. At para. 85, he stated, "while some aetreatment' like torture, will fall within s. 12 as disproportionate, prison conditions that do not aeshock the conscience' may still breach principles of fundamental justice other than proportionality".

[240] At para. 132, Justice Marceau concluded that it was only the safety of escort officers that was considered when the then compartments were implemented. No systemic or comprehensive study of inmate safety concerns was undertaken. He held that this approach was arbitrary, in that it almost entirely ignored inmate safety, and was irrational, because its emphasis on security concerns was not consistent. He held that the [page222] respondents did not seriously turn their minds to occupant safety issues until the court proceedings had been commenced.

[241] In the 2010 decision in Trang v. Alberta (Edmonton Remand Centre), Marceau J. considered an allegation that remanded inmates were confined to double-bunk cells for 18-23 hours per day. The cells provided inadequate privacy for washroom facilities, inadequate for two persons and only one table and chair. Inmates took meals in their cells and many were on units with rotating lockdowns, so that they infrequently had time outside their cells. There were other complaints.

[242] Justice Marceau held that the conditions of incarceration experienced by the applicants were intolerable and degrading to human dignity and worth, and thus violated s. 12 of the Charter.

c) Have the applicants' [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights been infringed?

[243] I will assume, without deciding, that s. 9 of the Charter has no application, as argued by the respondents. It is unnecessary for my decision to determine whether s. 9 of the Charter has been violated.

[244] Similarly, I will assume, without deciding, that s. 7 of the Charter need not be considered if this case otherwise falls under s. 12. I will assume, again without deciding, that as contended by the respondents, if a violation of s. 12 is not found there is no residual right under s. 7 that is left to be adjudicated. If, of course, a violation of s. 12 is found, it is not necessary to reach s. 7.

[245] Have the applicants' rights under s. 12 been violated? The answer is yes.

[246] 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.

[247] During the times when the units are locked down, inmates are held in their cells for 24 hours per day and are only let out on occasion, for short periods, to attempt to take showers and make phone calls. It was largely uncontradicted by the respondents that during such periods it is difficult, if not impossible, for inmates to have sufficient time or facilities to make phone calls and have showers.

[248] While inmates are being locked down, they are required to spend their time entirely with their cellmates with whom they are confined involuntarily. They do not get to choose their cellmates. Whether or not they like them or get along with them, they must spend all of their time with them, and only them, and must put up with their idiosyncrasies, and their hygiene or lack of hygiene. [page223]

[249] It is not to be forgotten that Mr. Nguyen and Mr. Ogiamien are not in Maplehurst because they have been convicted of any offence. Mr. Nguyen has not yet been tried, and is presumed innocent. Mr. Ogiamien has spent three years in Maplehurst, not because he has been convicted of any offence, but because he is being held there at the direction of the federal immigration authorities.

[250] There are at least two international standards that are not being observed here. First, Messrs. Ogiamien and Nguyen, not being convicted criminals, are forced to share their time in incarceration with convicted offenders. Second, they are double-bunked. Furthermore, while not necessarily an infringement of any international standard, they are being held in a maximum security facility even though they have not been convicted of any offence.

[251] As I observed earlier, the non-observance of an international standard does not, standing alone, mean that s. 12 of the Charter has been violated. However, it is a starting point. Other features of detention, that go along with the non-observance of international standards, will increase the concern.

[252] 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.

[253] The timing and length of the lockdown periods are dependent on something that is equally irrational and unpredictable, namely, lack of staff. This is, or should be, entirely within the control of the government. The government knows how many people it requires to staff the units in the correctional facility, and it is within their control to ensure that sufficient staff are available.

[254] What is extraordinary about this is that the government has known about the problem since at least 2002 when Nordheimer J. identified it in Jordan, supra.

[255] The respondents called little evidence to dispute the effects of lockdowns that were deposed to by the applicants and by other deponents of affidavits. Many of the complaints would be intuitively obvious in any event, but they included increased stress; restrictions on visits from family and friends; restrictions on phone calls; restrictions on showers; lack of stimuli; poor hygiene, both of the inmates themselves and stemming from forced association with cellmates; difficulty of co-existing with cellmates; lack of exercise; insufficient light; restrictions on contact with counsel; and reduction or