Cell lockdowns because of staff shortages ruled illegal by N.S. Supreme Court

The lockdown of individuals in provincial jails because of correctional staff shortages is not legal, the Supreme Court of Nova Scotia has ruled in a pair of landmark decisions.

The groundbreaking victory is a significant triumph for prisoner rights across the province, says PATH (People’s Advocacy and Transformational Hub) lawyer Hanna Garson, who for years has been working to rectify ongoing injustices faced by prisoners.

Justice Peter Rosinski found in a recent written decision that Durrell Diggs, 25, was detained in custody, on remand, at the Central Nova Scotia Correctional Facility (CNSCF) Burnside jail for 51 days, from Sept. 13 to Nov. 3, 2023, while awaiting a December trial on Criminal Code charges.

“The very real problem in the present case is that Mr. Diggs, who has been a ‘low security risk’ general population inmate with full privileges and has had no disciplinary violations during his time there, was confined to his cell for 22 hours per day for 38 days, and confined to his cell for 21 hours per day for eight days of his 51 days as a result of daily staffing shortages,” Rosinski wrote.

“When Mr. Diggs was out of his cell only for two hours or less per day, that is the equivalent of being in ‘close confinement’ or administrative segregation.”

Rosinski found that the daily process, with the proper number of qualified correctional officers working, would have inmates safely out of their cells for up to 10 to 12 hours a day.

“However, the previously ‘extraordinary’ recourse to lockdowns has become the presently ‘ordinary,’” Rosinski said.

‘Unlawfully detained’

Diggs made a habeas corpus application on Oct. 19, 2023, in order to be released from the ongoing lockdowns.

“I conclude that he was unlawfully detained by those lockdowns,” Rosinski wrote.

“However, because he was moved to North Nova Correctional Facility on Nov. 3, 2023, I can no longer release him from the lockdowns at (the Burnside jail).

“Nevertheless, as a remedy, I will issue a declaration that he was unlawfully detained by the lockdowns.”

Rosinski also ruled that Ryan Taylor Wilband, a remanded inmate at the Burnside jail since Sept. 13, 2023, had been continually confined to his cell for extraordinarily long periods of time each day between Oct. 31 and Nov. 28 because of Correctional Services staffing shortages.

“In my opinion, but for four days, due to lockdown decisions, he was likely materially deprived of his residual liberty on a daily basis,” Rosinski wrote of Wilband, also considered a low-risk, general population inmate.

“I highlight that for three days he had no time out of his cell; for a further seven days he had two hours or less out of cell; for a further four days he had three hours or less out of cell; and for a further three days he had less than four hours out of cell.”

Residual liberty

Rosinski concluded that “between Oct. 31 and Nov. 28, 2023, almost without exception, there have been daily substantial deprivations of Mr. Wilband’s residual liberty, and a significant number of the daily decisions made by Correctional Services were not ‘reasonable.’”

Evidence and arguments in the Diggs application were heard on Nov. 27 at the Nova Scotia Supreme Court in Halifax, and evidence in the Wilband application was heard the following day.

Garson, co-counsel along with Emma Arnold for both applicants, said the Rosinski decisions “send a strong message that the perpetual and restrictive lockdowns of individuals in provincial custody is not lawful.”

Garson said it is now incumbent “on our government to ensure that this message translates from the written word into an actual improvement of conditions in custody and respect of prisoners’ rights through, amongst other things, a decreased prison population via bail, community sentences and temporary absence.”

The two cases hinged on the government’s claim that a habeas corpus application from an individual was not an available remedy in cases where the entire prison population experienced the same deprivation of liberty.

Misrepresentation

That assertion, previously accepted by the court, had only been addressed by self-represented applicants lacking the advantage of legal training and education to advance counter-arguments, PATH said, challenging the notion and saying the Nova Scotia Supreme Court had historically misinterpreted an oft-cited Supreme Court of Canada case.

Rosinski ultimately found that both applicants had been unlawfully detained during various lockdowns experienced throughout their incarceration,

Despite ongoing staff shortages, the court provided three suggestions for the government to consider:

• over-staffing institutions, noting that having more staff than required is preferable to the alternative;
• distributing prisoners throughout provincial institutions to prevent burdening facilities suffering from staff shortages; and
• encouraging joint efforts from corrections and prosecutors to permit more prisoners to be placed on bail pending their trials and for more prisoners serving sentences to be granted temporary absences.

The court noted that increasing the use of bail and temporary absences was a successful strategy during the pandemic to comply with public health protocols.

PATH urges the government to take swift action, observing that lockdowns are continuing to happen at multiple institutions across the province.

The impact of this decision will serve as a precedent for future cases involving collective rights violations in correctional facilities, PATH says.

The ruling affirms that the legal system must adapt to evolving interpretations and circumstances, ensuring that justice is accessible to all.