



COURT OF APPEAL FOR ONTARIO

CITATION: Ogiamien v. Ontario (Community Safety and
    Correctional Services), 2017 ONCA 667

DATE: 20170823

DOCKET: C62234 & C62241

Strathy C.J.O., Laskin and Trotter JJ.A.

BETWEEN

Jamil Osai Ogiamien; Huy Nguyen

Applicants

(Respondents)

and

Her
    Majesty the Queen in Right of Ontario as represented by the Ministry of
    Community Safety and Correctional Services,
and the Superintendent of
    Maplehurst Correctional Complex and

the Attorney General of
    Canada

Respondents

(Appellants)

Ian Hicks and Nicholas Dodokin, for the appellant the Attorney
    General of Canada

Hart Schwartz, Michael Dunn and Savitri Gordian, for the
    appellant the Attorney General of Ontario

Barbara Jackman, appearing as
amicus curiae

Jamil Ogiamien,
    acting in person

Huy Nguyen, acting
    in person

Heard: February 21, 2017

On appeal from the judgment of Justice Douglas K. Gray of
    the Superior Court of Justice dated May 10, 2016, with reasons reported at 2016
    ONSC 3080, 132 O.R. (3d) 176.

Laskin J.A.:

A.

INtroduction

[1]

Jamil Ogiamien and Huy Nguyen were detained at Maplehurst Correctional
    Complex, Ogiamien for three years and Nguyen for one year. Both had been
    remanded there. Ogiamien was awaiting an immigration hearing; Nguyen was awaiting
    a trial on firearms charges. During their detention, lockdowns were frequent.
    When a lockdown occurred at Maplehurst, inmates such as Ogiamien and Nguyen,
    who were housed in remand units and would typically have access to a dayroom
    and programs, instead remained locked in their cells.

[2]

Both Ogiamien and Nguyen brought an application under s. 24(1) of the
Canadian
    Charter of Rights and Freedoms
, claiming that the lockdowns violated their
    rights under ss. 7, 9 and 12 of the
Charter
. As they were
    self-represented, the application judge appointed an
amicus curiae
to
    assist the court.

[3]

In lengthy and thorough reasons, the application judge concluded that
    the frequent lockdowns subjected Ogiamien and Nguyen to cruel and unusual
    treatment contrary to s. 12 of the
Charter
. He found that most of the
    lockdowns resulted from staff shortages and that the frequency and duration of
    these lockdowns alone violated s. 12. He made no finding on either s. 7 or s.
    9. He awarded
Charter
damages of $60,000 for Ogiamien and $25,000 for
    Nguyen, even though neither had specifically sought damages and neither the
    Attorney General of Ontario nor the Attorney General of Canada was given the
    opportunity to make submissions on whether
Charter
damages were an appropriate
    and just remedy for the s. 12 violations.

[4]

The Attorney General of Ontario and the Attorney General of Canada
    appeal. They raise four issues:

1. Did the application judge overstate
    the frequency, duration and impact of the lockdowns affecting Ogiamien and
    Nguyen?

2. Was the treatment of Ogiamien and
    Nguyen under the lockdowns that affected them cruel and unusual contrary to s.12
    of the Charter?

3. Did the application judge err in
    awarding
Charter
damages without giving the Attorneys General an
    opportunity to make submissions on whether damages were an appropriate and just
    remedy?

4. If Ogiamiens and Nguyens s. 12
    rights were violated, were
Charter
damages an appropriate and just
    remedy?

[5]

Amicus
raises two additional issues;

5. If the lockdowns did not violate
    Ogiamiens and Nguyens s. 12 rights, did they violate their s. 7 rights?

6. If no violation of s. 12 or s. 7 is
    found, is Nguyen entitled to the remedy of
h
abeas corpus
?

[6]

I would answer the questions posed in the first three issues yes, no
    and yes. It is unnecessary to answer the question posed in fourth issue. I
    would answer no to the questions posed in the fifth and sixth issues. Thus I
    conclude that the effect of the lockdowns did not violate Ogiamiens and
    Nguyens
Charter
rights. In reaching that conclusion I emphasize that
    this case was not litigated as a general inquiry into the conditions and
    treatment of inmates at Ontarios maximum security correctional institutions,
    or even specifically at Maplehurst. The focus of this case was narrower: the
    effect of the lockdowns on the treatment of two inmates at Maplehurst.

B.

THE MAIN LEGAL FRAMEWORK: CRUEL AND UNUSUAL TREATMENT

[7]

Although Ogiamien and Nguyen claimed violations of sections 7 and 9 of
    the
Charter
,
the focus of their application was s.12. Section
    12 of the
Charter
guarantees that [e]veryone has the right not to be
    subjected to any cruel and unusual treatment or punishment. This case is about
    treatment, not punishment. The lockdowns at Maplehurst were an exercise of
    state control over Ogiamien and Nguyen and amounted to treatment under s.
    12:
Rodriguez v British Columbia (Attorney General)
,
[1993] 3
    S.C.R. 519, at p.611. And this court has held that the test to establish a
    violation of s. 12 is the same for treatment as it is for punishment:
R. v. Olson
(1987), 62 (O.R. (2
nd
) 321 (C.A.) at p. 336, affd, [1989] 1 S.C.R.
    296.

[8]

To establish a violation of s. 12 a claimant need not show separately
    that the treatment is both cruel and unusual. The words cruel and unusual
    colour each other and together express a standard or norm. See
Miller and
    Cockriell v. The Queen
,
[1977] 2 S.C.R. 680, at pp. 689-690.

[9]

But cruel and unusual is a high bar to meet. The Supreme Court has
    used various expressions to describe this high bar: so excessive as to outrage
    standards of decency; grossly disproportionate to what would have been
    appropriate; grossly disproportionate for the offender, such that Canadians
    would find the punishment abhorrent or intolerable. The point underlying these
    expressions is that merely excessive treatment or disproportionate treatment is
    not enough to establish a s. 12 violation. In the context of punishment the
    Supreme Court has cautioned against stigmatizing every excessive or every
    disproportionate sentence as being a constitutional violation. So too with
    treatment. See
Miller and Cockriell,
at p. 688;
R. v. Smith
,
[1987] 1 S.C.R. 1045, at para. 54;
R
    v Morrissey
2000 SCC 39, at para. 26;
R. v. Nur
,
2015 SCC 15, [2015] 1 S.C.R. 773, at
    para. 39; and
R. v. Tinker
, 2017 ONCA 552, at para. 126.

[10]

Lamer J.s expression in
Smith
grossly disproportionate to what
    would have been appropriatesuggests a two-step inquiry to determine whether
    treatment has been cruel and unusual. The first step establishes a benchmark. In
    this case step one looks at the treatment of Ogiamien and Nguyen under
    appropriate prison conditionsthat is their treatment under ordinary
    conditions in the remand units when there were no lockdowns.  Step two assesses
    the extent of the departure from the benchmark. In this case step two looks at
    the effect of the lockdowns on Ogiamiens and Nguyens treatment. If the effect
    of the lockdowns resulted in treatment that was grossly disproportionate to
    their treatment under ordinary conditions then their s.12 rights would be
    violated.

[11]

The application judge followed this approach. He also took into account
    the reason for most of the lockdowns  staff shortages  and concluded that
    these lockdowns gave rise to treatment of Ogiamien and Nguyen that was grossly
    disproportionate or so excessive as to outrage standards of decency. In
    reaching his conclusion he made extensive findings on the ordinary conditions
    in the remand units at Maplehurst, in effect step one of the s. 12 inquiry. He
    also made findings on the treatment of inmates under lockdowns, in effect step two
    of the s. 12 inquiry.

[12]

The Attorneys General accept the application judges findings on the
    ordinary conditions in the remand units without lockdowns. And to some extent
    they accept his findings on conditions in the remand units when lockdowns were
    imposed. But they disagree with his findings on the frequency, duration and
    impact of the lockdowns affecting Ogiamien and Nguyen, and thus they disagree
    with his analysis of step two of the s. 12 inquiry. Their disagreement gives
    rise to the first and most important issue on the appeal: did the application
    judge overstate the frequency, duration and impact of the lockdowns affecting
    Ogiamien and Nguyen? To put that issue, as well as several of the other issues
    in context, I will summarize the application judges findings on the conditions
    at Maplehurst and the treatment of inmates in the remand units.

C.

Conditions at Maplehurst Correctional complex

(1)

The institution

[13]

Maplehurst is a large maximum security jail in Milton, Ontario. It
    houses adult males, typically 1000-1100 at a time.

[14]

The categories of inmates comprise inmates who are serving a sentence of
    two years less a day, inmates who have violated parole, inmates who have been
    remanded and a small number of inmates on immigration holds.

[15]

Maplehurst consists of eight living units: units 5, 6 and 7 are units for
    inmates who have been convicted and sentenced and are usually classified as a
    lower risk. Units 1, 8, 9, 10 and 11 are units for remanded inmates and inmates
    awaiting immigration hearings.
[1]

(2)

Ogiamien and Nguyen

[16]

The application judge released his decision in May 2016. From April 2013
    to the release of the decision, except for a few brief periods, Ogiamien was at
    Maplehurst among the general remanded population, mainly in unit 11. Ogiamien
    was detained under the
Immigration and Refugee Protection Act
, S.C.
    2001, c. 27. He was detained at Maplehurst, a maximum security facility,
    because his criminal record made him unsuitable for detention at an immigration
    holding centre. In June 2016 Ogiamien was released from Maplehurst on
    conditions.

[17]

Nguyen was remanded to Maplehurst in May 2015, as I have said awaiting
    trial on several firearms charges. He remained at Maplehurst continuously up to
    the release of the application judges decision. Nguyen was also housed mainly
    in unit 11, but at the time of his application he was in unit 10.

(3)

Ordinary living conditions in remand units 8, 9, 10 and 11

[18]

Each of these four remand units is divided into six wings: A, B, C, D, E
    and F. Each wing houses 32 inmates and has 16 cells, so two inmates to a cell.
    Each wing in a unit has a dayroom where inmates may socialize, shower, watch
    television, read and make telephone calls. Each unit also has a doctors office
    and a nurses office, and a nurse is continuously on site.

[19]

Because the remand units constitute a maximum security facility,
    continuous restrictions are imposed on the movement and liberty of inmates.
    These restrictions are imposed by physical barriers, close staff supervision
    and limited access to the community.

[20]

The regular daily schedule for inmates, such as Ogiamien and Nguyen, in
    the remand units permits daily access to the dayroom six hours per day  two
    hours in the morning, two hours in the mid-to-late afternoon and two hours in
    the early evening. In addition, the inmates have access to the exercise yard
    20-30 minutes a day, and have available a wide range of programs, everything
    from religious programs to anger management, addiction awareness, peer
    mentoring, individual counselling and many others. Visits from lawyers, family
    and friends are permitted up to three times per day, which typically coincide
    with the times inmates are in the dayroom.

[21]

Inmates in the remand units eat all their meals in their cells, not in
    the dayroom. They are required to eat in their cells to minimize the
    possibility of bullying while eating their food. Each cell is 15 feet long, 7 ½
    feet wide and 9 feet high. It has a toilet, sink, table, stool and a bunk bed
    for two inmates. Each cell also has a window to allow in natural light.

(4)

Lockdowns at Maplehurst

(a)

Types of lockdowns

[22]

Lockdowns at Maplehurst are of two types: a full lockdown, in which all
    remand units are locked down; and a partial lockdown, in which one or more but
    not all remand units are locked down. Full or partial lockdowns may last a full
    day or part of a day.

(b)

Authority and reasons for lockdowns

[23]

Generally, lockdowns are imposed to ensure the security of the
    institution and the safety of inmates and staff. They are authorized under the
    provisions of the
Ministry of Correctional Services Act
,
R.S.O. 1990, c. M.22 and the general regulations
    passed under that Act. The decision whether to order a lockdown rests with the
    superintendent responsible for the management of Maplehurst or with the
    superintendents delegate. Standing Orders give the superintendent wide
    discretion on whether to order a lockdown and on the scope and duration of one
    if it is ordered [s]ince no two situations are exactly alike.

[24]

However, on my reading of the record, the superintendent exercises
    discretion to order a partial or full lockdown for one of four reasons:

·

To conduct searches, for example for weapons or drugs;

·

To deal with security related emergencies within the institution,
    for example when an inmate requires immediate medical help or has attempted
    suicide, or when inmates are engaged in serious assaults against each other;

·

To get an unusually large number of remanded inmates to their
    various court appearances, which can be at the Toronto, Milton, Burlington or
    Kitchener courthouses; or

·

To ensure the safety of inmates and staff where insufficient
    staff are available to maintain regular operations in a particular area of the
    institution.

[25]

This last reason for lockdowns  insufficient staff  accounted for the
    vast majority of lockdowns at Maplehurst, led to Ogiamiens and Nguyens
    application, and resulted in the application judges finding of a s. 12 violation.

[26]

Maplehurst may not have enough staff at any given time for several
    reasons: pre-authorized absences provided for by the collective agreement
    governing employees at Maplehurst; unscheduled absences also provided for by
    the collective agreement, for example a bereavement leave or emergency home
    care required for an ill child; the transfer of staff to another area of the
    institution for an emergency; not enough staff to backfill absences; a number
    of inmates requiring hospital escorts; and mandatory staff training.

(c)

The Ministrys efforts to reduce staff absences and increase the number
    of correctional officers

[27]

When a correctional officer is absent without advance notice, the Ministry
    can call on fixed term employees (on contract) to backfill a vacant position.
    Or, the Ministry can offer overtime pay to fill a temporary vacancy. Working
    overtime, however, is voluntary, and especially during negotiations for a new
    collective agreement staff will not sign up for it.

[28]

In 2009, the Attendance Support Management Pilot Program was introduced
    into the collective agreement. The Program provides a financial incentive to
    encourage correctional officers to maintain good attendance. The Program helped
    reduce staff absences but they still remained high. In 2013, the parties to the
    collective agreement agreed to reduce compensation for sick days, a measure also
    aimed at reducing staff absences.

[29]

In addition to taking steps to reduce absences among existing staff, the
    Ontario government identified training new correctional officers as a priority
    over the next three years to increase staff levels in Ontario correctional institutions.

[30]

The recruitment and training of new correctional officers takes between
    six months and a year. And the capacity to train new officers depends on the
    availability of existing correctional officers to do the training. Most
    training by correctional officers is on a voluntary basis. At the beginning of
    collective bargaining in 2014 and into the first five months of 2015, correctional
    officers refused to do any training. Still, Ontario plans to recruit and train 600
    to 700 new correctional officers per year between 2016 and 2020. Some have
    already completed their training and have been assigned to Maplehurst.

(d)

General conditions under lockdowns

[31]

The general conditions under lockdowns at Maplehurst and their impact on
    the inmates in the remand units provide context for the impact of the lockdowns
    affecting Ogiamien and Nguyen.

[32]

Maplehurst contends that lockdowns are a measure of last resort. But it
    also concedes that lockdowns create a difficult environment for inmates and
    staff. They are unpredictable. They create stress, anxiety and tension because
    inmates are in conditions of close confinement during the period of the lockdown.
    Access to the dayroom and the exercise yard is curtailed. So is access to many
    of the programs otherwise available. Access to showers, clean clothes and
    bedding is restricted.

[33]

Still, although essential programs may be delayed during a lockdown,
    they are maintained. These programs include court attendances, lawyer visits,
    immigration detention reviews and importantly, health care services, such as
    daily medication rounds and visits to doctors. Other programs, such as showers,
    telephone access and personal visits, are maintained where possible.

[34]

Unit managers have discretion to try to minimize the disruption of
    normal operations caused by a lockdown. For example, they may be able to unlock
    the cells for small groups of inmates at a time, thus facilitating access to
    showers and the use of telephones. The application judge found that the
    correctional authorities attempt, as best they can, to ameliorate the impact of
    lockdowns when they occur. He added, however, that in his view those
    attempts, by and large, are ineffective.

[35]

The application judge found that the statistical evidence on the
    frequency of lockdowns yielded the following percentages:

·

2014  lockdowns occurred on 46% of the days

·

2015  lockdowns occurred on 55% of the days

·

January-March
    2016  lockdowns occurred on 40% of the days

[36]

And as I have said, staff shortages were responsible for the
    overwhelming percentage of these lockdowns. But these statistics reflect the
    overall percentages of lockdowns throughout all of the remand units. They do
    not reflect the frequency or even the duration of lockdowns specifically affecting
    Ogiamien and Nguyen. The frequency and duration of those lockdowns and their
    impact on Ogiamien and Nguyen give rise to the first issue on appeal, to which
    I now turn.

D.

the issues

(1)

Did the application judge overstate the frequency, duration and impact
    of the lockdowns affecting Ogiamien and Nguyen?

[37]

Under step two of the s. 12 inquiry the court has to consider the effect
    of the lockdowns on the treatment of Ogiamien and Nguyen. The application judge
    concluded that as a result of the lockdowns their treatment was so excessive as
    to outrage standards of decency, or was grossly disproportionate to their
    treatment under ordinary conditions at Maplehurst.  The Attorney General of
    Ontario and the Attorney General of Canada submit that in reaching this
    conclusion the application judge significantly overstated the frequency,
    duration and impact of the lockdowns affecting Ogiamien and Nguyen.
Amicus
acknowledges that the application judge misstated the frequency of the
    lockdowns. I agree with the submission of the Attorneys General.

(a)  Frequency of the lockdowns
    affecting Ogiamien and Nguyen

[38]

In his analysis of whether s. 12 had been violated, the application
    judge found (at para. 246 of his reasons): For the time that is covered by
    this application, the relevant units at Maplehurst have been locked down for
    about 50 per cent of the time. Indeed, in 2015 they were locked down for 55 per
    cent of the time. These percentages capture the total number of lockdowns at
    Maplehurst, either full or partial. But these percentages significantly
    overstate the percentages of days where lockdowns affected either Ogiamien or
    Nguyen, because the overall percentages do not properly take into account
    partial lockdowns that did not affect the units where Ogiamien and Nguyen were
    housed, or the times when either Ogiamien or Nguyen was absent from Maplehurst
    during a lockdown.

[39]

This litigation is about the s. 12 rights of Ogiamien and Nguyen, not
    the rights of all remanded inmates at Maplehurst. The correct percentages when
    Ogiamiens and Nguyens units were under a lockdown that affected them are as
    follows
[2]
:

·

Ogiamien  2014: 22%

·

Ogiamien  2015: 30%

·

Ogiamien  2016: 22%

·

Nguyen  2015: 33%

·

Nguyen  2016: 22%

These percentages are significantly less than the
    percentages the application judge relied on.

(b)  Duration of lockdowns

[40]

The application judge also found (at paras. 247 and 257 of his reasons)
    that: During the times when the units are locked down, inmates are held in
    their cells for 24 hours per day  If a lockdown occurs, an inmate will be
    locked in his cell for 24 hours per day.

[41]

The record does not support this finding. Instead, the record shows that
    lockdowns may occur for only part of a day, and for the remainder of that day
    remanded inmates had full access to services and programs, including access to
    the dayroom. For example, in the 214 day period from May 1 to November 30,
    2015, approximately one third of the lockdowns affecting Ogiamien and Nguyen
    were only for part of the day.
[3]

(c)  Impact of the lockdowns
    affecting Ogiamien and Nguyen

[42]

As the application judge fairly noted the general impact of a lockdown,
    which I have discussed earlier, also affected Ogiamien and Nguyen. Nguyen, for
    example, gave evidence that during a lockdown he had a lot of stress, no
    stimuli, no exercise and no personal visits from family and friends. Ogiamien
    testified that during a lockdown he was denied any form of programming, clean
    linen and clothes, and access to a telephone.

[43]

However, both Ogiamien and Nguyen acknowledged that during a lockdown the
    staff tried its best to maintain access to essential services and programs,
    including medical services and visits with their lawyer. Nguyen also acknowledged
    that during lockdowns he was able to access the shower program; Ogiamien, on
    the other hand, claimed that he was denied a shower for a week or more at a
    time.

[44]

I accept that the conditions at Maplehurst under a lockdown caused
    hardship for Ogiamien and Nguyen. But in assessing the impact of the lockdowns,
    respectfully, the application judge made two findings with which I cannot
    agree. One finding is contrary to the record; the other is not supported by the
    record.

[45]

First, at para. 250 of his reasons, the application judge found that Messrs.
    Ogiamien and Nguyen, not being convicted criminals, are forced to share their
    time in incarceration with convicted offenders. In making this finding the
    application judge referred to international standards for prisoners, which
    prescribe that [u]ntried prisoners shall be kept separate from convicted
    prisoners.
[4]

[46]

The application judge was mistaken. Inmates in the remand unit at
    Maplehurst do not share their time in their cells with inmates who have been
    convicted and are serving a sentence. They share their time in cells with other
    inmates on remand.

[47]

Second, at para. 252 of his reasons, the application judge considered
    the conditions of detention during lockdown as tantamount to segregation or
    solitary confinement. He wrote:

Here the concern is magnified. The conditions of
    detention during lockdowns are very close to segregation or solitary
    confinement. In some ways they are worse. The inmate is holed up with another
    inmate not of his choosing. The actual periods of confinement for 24 hours a
    day are entirely arbitrary, and unpredictable, both as to timing and length.

[48]

I do not think the comparison is apt. Lockdowns are, I agree,
    unpredictable. And the inmate is holed up with another inmate not of his
    choosing. However, the jurisprudence suggests that arbitrariness is at most a
    minimal consideration in the s. 12 inquiry. See
Smith
, at para. 63. And
    even if it had more relevance, lockdowns are not imposed arbitrarily; they are
    imposed for reasons of safety and security.

[49]

More important, I think it is unwise to compare conditions under
    lockdowns at Maplehurst with conditions under solitary confinement, at least
    without expert evidence comparing the impact of each. Yet no expert evidence
    was led in this case to support the application judges finding that sharing a
    cell during a lockdown is in some ways worse than solitary confinement.
    Moreover, it is at least fair to say that the physical and social isolation and
    the resulting psychological and physical effects that accompany solitary
    confinement are not present when an inmate shares his cell with another inmate.
    During a period of a lockdown, the two inmates can converse with each other,
    play cards or board games, even watch television through the window of the door
    to their cell (depending on the cells angle).

(d) Summary

[50]

In summary the lockdowns affecting Ogiamien and Nguyen occurred about
    half as frequently as found by the application judge, in some instances were of
    a shorter duration and had less of an impact than found by the application
    judge.

(2)

Was the treatment of Ogiamien and Nguyen under the lockdowns that
    affected them cruel and unusual contrary to s. 12 of the Charter?

[51]

The application judge concluded that the lockdowns resulted in treatment
    of Ogiamien and Nguyen that was so excessive as to outrage standards of
    decency, was disproportionate and was degrading, and so violated s. 12. His
    conclusion appears to have been driven by three considerations: first, the
    frequency, duration and impact of the lockdowns; second, the reason for the
    great majority of the lockdowns  staff shortages; and third, the decision of
    Nordheimer J. in
R. v. Jordan
,
[2002] O.J. 5250 (S.C.J.).

[52]

Amicus
supports the application judges conclusion and the considerations
    he relied on. And she adds a fourth consideration to support his finding of a
    s. 12 violation: she submits that the conditions at Maplehurst among the
    remanded population were already so onerous that the effect of the lockdowns on
    top of these onerous conditions gave rise to cruel and unusual treatment.

[53]

In my opinion, none of these considerations, taken individually or
    collectively, supports a conclusion that the s. 12 rights of Ogiamien and
    Nguyen were violated. Their treatment under lockdowns undoubtedly added to the
    hardships they experienced at Maplehurst but it was not treatment that met the
    high bar of being grossly disproportionate or so excessive as to outrage
    standards of decency.

[54]

The first consideration is the key consideration. In determining whether
    treatment is cruel and unusual the focus must be on the effect of the conduct
    in question, here the lockdowns. Did their frequency, duration and impact give
    rise to cruel and unusual treatment?

[55]

As I have discussed, the application judge significantly overstated the extent
    of the lockdowns affecting Ogiamien and Nguyen. In his analysis, at para 246,
    which I quoted earlier, lockdowns occurred about 50 percent of the time, and 55
    percent of the time in 2015, or on average 15-17 days a month. But as I have
    tried to illustrate, the lockdowns affecting Ogiamien occurred only 22% of the
    time or on average 6-7 days a month in two of the three years he was at
    Maplehurst, and 30-33% of the time or on average 10 to 11 days a month in the
    third year Ogiamien was at Maplehurst and in the twelve months Nguyen was
    there.

[56]

Also, on the application judges analysis, during lockdowns Ogiamien and
    Nguyen were essentially locked in their cells 24 hours a day. But the record
    shows that some of the lockdowns lasted only a morning, an afternoon, an
    evening or perhaps two thirds of a day, after which remanded inmates, including
    Ogiamien and Nguyen, had access to the dayroom, showers, telephones and regular
    programs. Finally, the application judge overstated the impact of the lockdowns
    by finding  wrongly  that Ogiamien and Nguyen were locked in a cell with a
    convicted criminal, and by equating conditions under a lockdown to segregation
    or solitary confinement.

[57]

I accept that the effect of lockdowns in a correctional facility can
    give rise to cruel and unusual treatment. And I accept that though some
    lockdowns are inevitable in a maximum security facility, while Ogiamien and
    Nguyen were at Maplehurst lockdowns occurred more often than they should have. Had
    I agreed with the application judges findings on frequency, duration and
    impact I might well have deferred to his conclusion. But it seems to me that
    the lockdowns that did affect Ogiamien and Nguyen did not occur with such
    frequency or last so long or have such an adverse impact to give rise to cruel
    and unusual treatment. The treatment of Ogiamien and Nguyen under lockdowns
    compared to their treatment under ordinary conditions may have been excessive
    or disproportionate, but it was not grossly disproportionate. Thus their
    treatment did not meet the high bar required to establish a s.12 violation.

[58]

Further, while these lockdowns occurred Ogiamien and Nguyen were not
    entirely foreclosed from the services and programs they ordinarily had. They
    still received necessary medical attention, could meet with their lawyers,
    could on occasion use showers and telephones, and were transported to their
    court appearances.

[59]

The second consideration the application judge relied on was the reason
    for the vast majority of the lockdowns  staff shortages. Drawing on decisions
    such as this courts judgment in
R. v. Olson
, he commented at para. 234
    of his reasons:

[T]he conditions of incarceration must be judged based, at
    least in part, on the reasons why they are imposed. In cases where they are
    imposed because of legitimate safety and security considerations, the imposed condition
    cannot be said to be cruel and unusual. However, in other circumstances, that
    might not be so.

[60]

The application judge then distinguished between lockdowns due to staff
    shortages and lockdowns due to safety and security concerns. In his view,
    lockdowns caused by staff shortages are not imposed for legitimate safety and
    security concerns. Rather, they arise because the Ministry has been unwilling
    or unable to have sufficient staff available. He concluded, at para. 267, that
    the lockdowns caused by staff shortages violated Ogiamiens and Nguyens s. 12
    rights:

For the foregoing reasons, I conclude that the
    rights of Mr. Ogiamien and Mr. Nguyen under s. 12 of the
Charter
have
    been violated, by virtue of the lockdowns to which they have been subjected
    since their incarceration at Maplehurst, and the adverse conditions to which
    they have been subjected during those lockdowns. The actual lockdowns that give
    rise to the violations are those that occurred because of the staff shortages.
    However, those lockdowns were exacerbated by the additional lockdowns that
    occurred for safety and security reasons. In other words, if the only lockdowns
    that occurred were on account of staff shortages, they would have constituted a
    violation of s. 12 because of their frequency and duration. Because of the
    additional lockdowns that occurred, the impact of the staff shortage lockdowns
    was greater.

[61]

I do not agree with the application judges reasoning in these paragraphs.
    At bottom, even lockdowns imposed because of staff shortages are imposed to
    ensure the security of the institution and the safety of staff and inmates.
    Without sufficient staff Maplehurst cannot guarantee safety and security under
    ordinary living conditions in the remand units. So it imposes a lockdown.

[62]

But as important, it is not the reason for the lockdowns but their
    effect on treatment that is the focus of the s. 12 inquiry  in this case the
    denial of privileges and programs Ogiamien and Nguyen ordinarily had when not
    locked down, and the stress that came with being confined with another person
    in close quarters for an extended period of time. In
Smith
at para 64,
    Lamer J. made the point that a punishment is or is not cruel and unusual
    irrespective of why the violation has taken place. Applying his point to this
    case, the treatment of Ogiamien and Nguyen was or was not cruel and unusual
    regardless of the reason why the lockdowns were imposed.

[63]

Still, I can appreciate why the application judge distinguished among
    the reasons for the lockdowns. It is one thing to impose a temporary lockdown
    because of widespread fighting among inmates or because of the need to search
    for weapons and drugs. It is quite another to impose frequent lockdowns because
    the institution has not enough correctional officers to supervise regular
    operations. I think it is at least fair to say that if frequent lockdowns due
    to staff shortages led to the treatment of an inmate that was grossly
    disproportionate to what was appropriate administrative expediency or
    convenience would not come to the rescue of the
Charter
violation. In
    other words, had the frequency, duration and impact of the lockdowns due to
    staff shortages resulted in treatment so excessive as to outrage standards of
    decency, the pre-authorized or unscheduled unavailability of correctional
    officers would have been no answer to Ogiamiens and Nguyens
Charter
claims. I simply conclude that on the record before us, the treatment of
    Ogiamien and Nguyen caused by the lockdowns did not rise to the level of a s.
    12 violation.

[64]

The third consideration the application judge relied on was
R. v.
    Jordan
. In that case, as the application judge noted, Nordheimer J.
    identified the problem of lockdowns caused by staff shortages. Yet in
    conditions far worse than at Maplehurst, he found no violation of s. 12.

[65]

In
Jordan
,
the
    accused was detained at the Toronto East Detention Centre. He applied for bail
    pending his trial on charges that included attempted murder. He complained that
    his treatment at the Centre was cruel and unusual. Nordheimer J. found that the
    Toronto East Detention Centre was overcrowded and understaffed. Three inmates
    were assigned to cells designed for two inmates. Lockdowns for security
    occurred frequently  13 in one of the months for which there was evidence.
    Although Nordheimer J. said that he did not wish to be seen as countenancing
    the state of affairs in the detention facilities, in his view the conditions
    in the Centre did not amount to cruel and unusual treatment of the accused.
Jordan
does not support the application judges conclusion.

[66]

Finally, I will address
amicus
submission that in considering
    whether a s. 12 violation has been made out we must take as a starting point
    that ordinary conditions at Maplehurst, even without lockdowns, were already
    very onerous. One example of onerous conditions, cited by
amicus
and
    briefly discussed by the application judge, is double bunking, two inmates to a
    cell. Double bunking is contrary to the
United Nations Standard Minimum
    Rules for the Treatment of Prisoners (Nelson Mandela Rules)
, which call
    for untried prisoners to sleep singly in separate rooms.

[67]

I do not accept
amicus
submission. As I stated in the
    introduction, this case was not litigated as an inquiry into ordinary conditions
    of detention at Maplehurst. It is a case about the effect of lockdowns on the treatment
    of Ogiamien and Nguyen. Still, I share Nordheimer J.s concern not to be
    understood as countenancing the conditions in remand detention facilities.
    Indeed, courts have frequently recognized the onerous conditions inmates suffer
    in pre-trial detention. See
R. v. Summers
, 2014 SCC 26, [2014] 1
    S.C.R. 575, at para. 2.

[68]

But no evidence was led that conditions in the remand units at
    Maplehurst were any worse or more onerous than at any other maximum security
    institution. No evidence was led about the impact of double bunking or of any
    other conditions of detention at Maplehurst. What was before the application judge
    and before this court was whether the treatment of Ogiamien and Nguyen under
    lockdowns, compared to their treatment under ordinary living conditions, rose
    to the level of cruel and unusual treatment. I conclude that it did not.

[69]

I would set aside the application judges conclusion that Ogiamiens and
    Nguyens s. 12 rights were violated because of lockdowns.

(3)

Did the application judge err in awarding
Charter
damages without giving the Attorneys General an
    opportunity to make submissions on whether damages were an appropriate and just
    remedy?

[70]

As I would hold that the lockdowns did not violate the s. 12 rights of
    Ogiamien and Nguyen, it is not necessary to deal with the application judges
    damages award. Still I will comment briefly on the procedure he followed.

[71]

The application judge acted on his own initiative in awarding Ogiamien
    and Nguyen damages for the violation of their s. 12 rights. Neither Ogiamien
    nor Nguyen nor
amicus
sought damages under the
Charter
and
    the parties were not given any opportunity to make submissions on whether
Charter
damages ought to have been awarded.

[72]

Specifically, neither Ogiamien nor Nguyen sought damages in their notice
    of application.
Amicus
delivered a notice of constitutional question
    but it too did not contain a claim for damages (although, in fairness, it did
    request a just and appropriate remedy under s. 24(1) of the
Charter
).
    The mandatory notice of claim under s. 7(1) of the
Proceedings Against the
    Crown Act
,
R.S.O. 1990 c. P.27
    also was not given. Although self-represented litigants should have wide
    latitude in the way they give notice, in this case none of the documents the
    applicants filed, or that were filed on their behalf, alerted the Attorneys
    General that damages were being sought. Ogiamien and Nguyen, and
amicus
,
    sought only two remedies for a violation of s. 12: an order prohibiting future
    lockdowns at Maplehurst because of staff shortages, and an order transferring
    Ogiamien to an immigration holding centre.

[73]

The Attorneys General submit that the lack of notice and an opportunity
    to make submissions on damages amount to a denial of procedural fairness. On
    that ground alone they contend that even if we were to uphold the application
    judges finding of a violation of s. 12, his awards of damages cannot stand.
Amicus
,
    too, concedes that the case would have to be returned to the trial court for a
    hearing on damages.

[74]

I agree with the position of the Attorneys General and
amicus.
Even if I were to uphold the s. 12 violations I
    would set aside the awards of damages because of a denial of procedural
    fairness. I would thus answer yes to the question raised by this issue.

(4)

If Ogiamiens and
    Nguyens s. 12 rights were violated, were Charter damages an appropriate and
    just remedy?

[75]

Under s. 24(1) of the
Charter
, a court may order any remedy it
    considers appropriate and just for a
Charter
violation. The range of
    available remedies includes damages.

[76]

In awarding Ogiamien and Nguyen damages for a violation of their s. 12
    rights, the application judge applied the four step analysis prescribed by the
    Supreme Court of Canada in
Ward v. City of Vancouver
,
2010 SCC 27, [2010] 2 S.C.R. 28. The
    Attorneys General submit that the application judge misapplied
Ward
.

[77]

In the light of my conclusion that s. 12 was not violated, is
    unnecessary to address the application judges assessment of damages. Nor would
    it be beneficial to do so as he made his assessment without the benefit of
    submissions from the parties.

(5)

If lockdowns did not violate Ogiamiens and Nguyens s. 12 rights, did
    they violate their s. 7 rights?

[78]

Amicus
puts forward the alternative submission that even if the
    lockdowns did not violate the s. 12 rights of Ogiamien and Nguyen they violated
    their s. 7 rights. Section 7 was raised before the application judge but he
    made no finding on it. He assumed, without deciding, that s. 7 need not be
    considered if this case otherwise falls under s. 12. He also assumed, without
    deciding, that if a violation of s. 12 is not found there is no residual right
    under s. 7 that is left to be adjudicated. I have found no violation of s. 12.
    In my view, it is not necessary to decide whether there can be a residual s. 7
    violation where no s. 12 breach has been found because Ogiamien and Nguyen
    cannot establish that the lockdowns violated their s. 7 rights.

[79]

Section 7 of the
Charter
guarantees that [e]veryone has the
    right to life, liberty and security of the person and the right not to be
    deprived thereof except in accordance with the principles of fundamental
    justice. Ogiamien and Nguyen do not argue that their initial detention at
    Maplehurst amounted to a breach of their s. 7 rights. They argue, instead, that
    the frequent lockdowns deprived them of their residual liberty, which is protected
    by s. 7, and that the deprivation was not in accordance with the principles of
    fundamental justice because it was imposed arbitrarily. I do not accept either
    branch of this argument.

[80]

In the recent case of
Canada (Attorney General) v. Whaling
,
2014 SCC 20, [2014] 1 S.C.R. 392, at
    para. 57, Wagner J. quoted a passage from the earlier judgment of McLachlin J.
    in
Cunningham v. Canada
,
[1993] 2 S.C.R. 143, in which she discussed the standard for showing that an
    inmates conditions of confinement can amount to a further or residual
    deprivation of liberty under the first branch of s. 7:

Generally speaking, offenders have
    constitutionally protected expectations as to the duration, but not the
    conditions, of their sentences. Various changes in the management of an
    offenders parole are not punitive, even though they may engage the offenders
    liberty interest by marginally increasing the likelihood of additional
    incarceration. McLachlin J. (as she then was) held as follows in
Cunningham
:

The
Charter
does not protect against insignificant or trivial limitations of rights . It
    follows that qualification of a prisoners expectation of liberty does not
    necessarily bring the matter within the purview of s. 7 of the
Charter
.
    The qualification must be significant enough to warrant constitutional
    protection. To require that all changes to the manner in which a sentence is
    served be in accordance with the principles of fundamental justice would
    trivialize the protections under the
Charter
. To quote Lamer J. in
Dumas
[
v. Leclerc Institute
,

[1986] 2
    S.C.R. 459
],

at p. 464,
there must be a substantial change in
    conditions amounting to a further deprivation of liberty
. [p. 151] (my
    emphasis)

[81]

In my view, the frequency, duration and impact of the lockdowns
    affecting Ogiamien and Nguyen caused a change in their conditions of
    incarceration at Maplehurst, but not a substantial change. During a lockdown neither
    was singled out or dealt with more harshly than any other inmate in the remand
    units. Neither was placed in administrative segregation. Neither was
    transferred to a different and higher risk or higher security correctional
    institution. These latter instances might have amounted to a substantial change
    sufficient to trigger a deprivation of Ogiamiens and Nguyens residual liberty
    under s. 7. The lockdowns did not.

[82]

And even if the lockdowns deprived Ogiamien and Nguyen of their residual
    liberty under s. 7, the deprivations were nonetheless in accordance with the
    principles of fundamental justice. Law or policy will not be in accordance with
    the principles fundamental justice when it is arbitrary, that is when no
    rational connection exists between its purpose and its effects on liberty:
Canada
    (Attorney General) v Bedford
, 2013 SCC 71, at para.111.

[83]

Lockdowns at Maplehurst are unpredictable. Indeed lockdowns are a necessary
    response to unpredictable events, be they unscheduled staff absences, inmate
    altercations, or an urgent need to check for weapons. But lockdowns are not
    arbitrary. The primary purposes of a lockdown are to ensure the security of the
    institution and the safety of the staff, inmates and even the community. Even
    lockdowns imposed because of staff shortages have as their underlying purposes
    security and safety.

[84]

These purposes are rationally connected to their effects. Locking
    inmates in their cells during lockdowns, imposed for example because of staff
    shortages, enhances security and the safety of everyone at Maplehurst. And
    where possible unit managers at Maplehurst try to mitigate the adverse effects of
    lockdowns by, for example, permitting groups of inmates at a time to use the
    showers and the telephones.

[85]

The frequent lockdowns at Maplehurst did not violate the s. 7 rights of
    Ogiamien and Nguyen.

(6)

If no violation of s. 12 or s. 7 is found, is Nguyen
    entitled to the remedy of
habeas corpus?

[86]

The ancient remedy of
habeas corpus
 literally
    you have the body  is enshrined in s. 10(c) of the
Charter
: Everyone
    has the right on arrest or detention  to have the validity of the detention determined
    by way of
habeas corpus
and to be released if the detention is not
    lawful.
Amicus
submits that if we were to overturn the application
    judges finding of a s. 12 violation and to reject her argument on s. 7 we
    should grant Nguyen the remedy of
habeas corpus
and order his release from Maplehurst.
Amicus
does not seek
habeas corpus
relief for Ogiamien as he was released from
    Maplehurst before this appeal was heard.

[87]

In their original notice
    of application, Ogiamien and Nguyen sought
habeas corpus
. The application, however, soon focused on whether
    their s. 12 rights had been violated.
Habeas corpus
was raised but not pressed before the application
    judge. He referred to it briefly in his reasons but made no finding on it. In
    this court it was again raised by
amicus
but not strongly argued. I would not grant Nguyen
    relief by
habeas corpus
.
    In my view this case turns solely on s. 12 of the
Charter
.

[88]

As I have said, Nguyen does not challenge his detention at Maplehurst. As
    with his other
Charter
claims he challenges the conditions of his
    detention. Although
h
abeas corpus
is an extraordinary remedy it
    is available not just for detention itself but for the conditions of an
    inmates detention. See
R. v. Miller
,
[1985] 2 S.C.R. 613. In the latter situation, however,
habeas corpus
may remedy living conditions in a prison where the inmate faces physical
    confinement or a deprivation of liberty that is more restrictive than the
    confinement of other inmates. Typically
habeas corpus
has been granted
    where a prisoner has been placed in administrative segregation, confined in a
    special handling unit or transferred to a higher security institution.

[89]

In the present case, Nguyen did not face conditions of confinement more
    restrictive than those faced by other remanded inmates. And I have already
    concluded that his conditions under lockdown did not rise to the level of cruel
    and unusual treatment. In my opinion Nguyen is therefore not entitled to the
    remedy of
habeas corpus
.

E.

Conclusion

[90]

I conclude that the lockdowns at Maplehurst did not violate Ogiamiens
    and Nguyens
Charter
rights. I would allow the Attorneys Generals
    appeals, set aside the order of the application judge and dismiss the
    application.

[91]

The application judge held that this was not a case for costs, and I
    agree. I would make no costs order.

Released: G.R.S. August 23, 2017

John Laskin J.A.

I agree. G. R. Strathy
    C.J.O.

I agree. G.T. Trotter J.A.





[1]
Unit 1 is not a general population unit. Units 2, 3 and 4 comprise the Vanier
    Centre for Women, a separate institution.



[2]

The record does not contain any information about Ogiamiens
    absences from Maplehurst for 2014 or 2016 or about Nguyens absences for 2016.
    The information about Nguyens absences for 2015 also appears incomplete.



[3]
The record only discloses information on the duration of the lockdowns for the
    period between May 1 and November 30, 2015. Nevertheless, this information
    shows that the application judges conclusion that each lockdown was
    necessarily for a 24 hour period is inaccurate. For some days, the record does
    not stipulate when a lockdown ended or states that the information is
    unknown.



[4]

United Nations Standard Minimum Rules for the Treatment of Prisoners (the
    Nelson Mandela Rules)
, GA Res. 70/175, UNGA, 70th Sess.,
    UN Doc. A/Res/70/175 (2015).


