



COURT OF APPEAL FOR ONTARIO

CITATION: Boone v. Ontario (Community Safety and

Correctional Services), 2014 ONCA 515

DATE: 20140703

DOCKET: C58393

MacPherson, Blair and Pepall JJ.A.

BETWEEN

Steven Boone

Appellant

and

Ministry of Community Safety and Correctional
    Services

and

Her Majesty the Queen

Respondents

Paul Champ and Christine
    Johnson, for the appellant

Brian G. Whitehead and
    Melanie Goren for the respondents

Heard: April 25, 2014

On appeal from the judgment of Justice Robert J. Smith of
    the Superior Court of Justice, dated January 16, 2014, with reasons reported at
    2014 ONSC 370.

R.A. Blair J.A.:

OVERVIEW

[1]

Habeas Corpus
is one of the
    oldest writs in the land.  Dating back in its present form to the mid-fifteenth
    and sixteenth centuries, it permits the court to require the Crown to bring a
    detained person before it to determine whether the deprivation of that persons
    liberty is unlawful.  If it is, the detention must be set aside.  Known as the
    Great Writ,
habeas corpus
has been
    entrenched in s. 10(1) of the
Canadian Charter of Rights and Freedoms
.

[2]

In recent years,
habeas
    corpus
has become a remedy frequently sought in
    superior courts by inmates seeking to challenge internal prison decisions,
    including decisions relating to the terms of their placement within the
    institution.  The Supreme Court of Canada has affirmed that the writ may be
    used to release a person from a particular form of detention although the
    person will lawfully remain under some other restraint of liberty:
R.
    v. Miller
, [1985] 2 S.C.R. 613, at p. 638.  Transfer
    to solitary confinement  a serious deprivation of liberty and security of the
    person  is often the target of such a challenge.

[3]

The appellant has been segregated
    in solitary confinement at the Ottawa-Carleton Detention Centre (OCDC) for more
    than a year.  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.
[1]

[4]

The appellant is an HIV-positive
    inmate with a predisposition towards having sexual relations with other male
    prisoners  sometimes without their knowledge of his condition, and sometimes with
    it.  On this application, the Superintendent of OCDC takes the position that the
    appellants confinement in administrative segregation is necessary both for the
    protection of other inmates and for his own protection as well.  The Superintendent
    has offered the appellant certain alternatives, however, designed to permit the
    appellant to mix with the prison population during the day but to be confined in
    a cell alone at night.

[5]

The appellant disputes that
    position.  He seeks an order returning him to be housed with the general inmate
    population, and with a cellmate, as was the case before the transfer.  He has even
    requested specific cellmates.  He has rejected the Superintendents proposed
    alternatives.

[6]

After a hearing and a careful
    review of the evidence, Justice Robert J. Smith held that, although there had
    been a failure to comply fully with the principles of procedural fairness in
    certain aspects of the transfer process, the appellants detention in solitary
    confinement was not unlawful.  He therefore dismissed the application for
habeas
    corpus
.  The appellant seeks to have that
    decision set aside and an order granted allowing the application principally on
    the basis that, once having found a breach of procedural fairness  regardless
    of the nature of the breach  the application judge had no discretion to refuse
    to issue the writ.

[7]

For the reasons that follow
,
I would dismiss the appeal.  However, in my
    view, any of the alternatives proposed by the Superintendent was reasonable. 
    Which of the alternatives is best suited to the situation  or whether there is
    another alternative that will achieve the same purpose  is for the prison
    authorities to determine, following proper procedures.

FACTS

[8]

The appellant has been convicted
    of very serious offences: attempted murder, aggravated sexual assault, and
    several related offences relating to circumstances where he knowingly had
    unprotected sex without disclosing his HIV-positive status with the intent to
    inflict his victims with HIV.  It is said that he knowingly sought out partners
    for that purpose.  He is presently the subject of a long-term offender
    application.

[9]

In the meantime, he has been
    incarcerated on remand at the OCDC since May 2010 awaiting his sentencing
    hearing.  OCDC is a maximum security institution.  The appellant was initially
    housed in Pod C, a protective custody wing where he was allowed day room
    privileges and had a cell mate (M.D.) for approximately 12 hours per day.  This
    form of accommodation ended, however, when OCDC officials discovered a letter
    from the appellant to M.D. confirming that they were engaging in sexual
    relations.  At the same time, rumours were circulating in the institution that
    the appellant was engaged sexually with other inmates as well.  He was
    transferred to administrative segregation on May 29, 2013.  There, he remains
    to the present time.

[10]

There were differing versions of
    what the appellant was told at the time of his transfer, and thereafter, and of
    the opportunities he had to respond to the transfer.

The Institutions Position

[11]

The Deputy Superintendent charged
    with the transfer, Mr. Nolet, testified that he spoke with the appellant on the
    day following the transfer and explained to him the reasons for it.  The transfer
    was for the safety of both the appellant and the other inmates, having regard
    to the appellants sexual relations with his cellmate and the rumours of the
    appellants sexual relations with other inmates.  Mr. Nolet also said that he had
    listened to the appellants side of the story.

[12]

Mr. Nolet filled out a
    Segregation Decision/Review form where he indicated the reasons for the appellants
    segregation as [o]wn protection/security.  He testified that, by security,
    he meant the security of both the appellant and the other inmates.  He also
    said that he reviewed the circumstances of the appellant every five days, as
    required by the regulations, and completed segregation review forms for each of
    those reviews.  He also testified that he met with the appellant, and discussed
    the appellants concerns, regularly during his twice-a-week tours of the
    segregation area.  The appellant knew well from Mr. Nolet and others the
    reasons why he was in segregation, the case he had to meet, and his right to
    make submissions.

[13]

In support of Mr. Nolets
    testimony, the Crown also points to correspondence between the appellant and
    others indicating that he understood why he was in segregation and that he had
    the right to make submissions.  For example, the appellant wrote to another
    inmate, saying: Im stuck in this pod because of the shit that happened
    between [M.D.] and I.  He wrote many letters to the institution requesting
    cellmates (in some cases, specific cellmates in addition to M.D.) or asking to
    be returned to Pod C where he would have a cellmate.  These submissions were
    made orally as well.

[14]

The appellants situation was
    also reviewed with senior managers at the Detention Centre during weekly
    segregation meetings.  Thirty-day reviews, as required by Ministry policy, were
    also completed as required.

The Appellants Position

[15]

The appellant tells a different story. 
    He says that he was never provided with a reason for his initial placement in
    segregation or with any other meaningful explanation thereafter.  Nor was he
    given a chance to respond to his situation.

[16]

The appellant attacks Mr. Nolets
    evidence, arguing that it does not clearly show that the appellant had been
    told the reasons for his transfer or that he had a fair opportunity to
    respond.  He also argues that the evidence did not support a transfer to
    administrative segregation on the basis of his relationship with M.D., since
    that relationship was consensual, or on the basis that he had had sexual
    relations with other inmates (with the exception of one incident in which he
    was forced by another inmate to have oral sex with a third inmate), or on the
    basis that his security or that of other inmates was in jeopardy.

[17]

The appellant does acknowledge
    that he made requests to have a cellmate in segregation and that he asked to be
    returned to Pod C with a cellmate.  In some cases he asked that M.D. be placed
    in the cell with him, saying that they were in love and wished to marry.
[2]
In other cases, he asked to be placed with inmates he had met in adjoining
    cells in segregation.  He testified that he always advised these individuals of
    his HIV-positive status.

[18]

In addition, the appellant
    attacks the Segregation Decision/Review form which Mr. Nolet completed in
    relation to his initial transfer.  It was dated May 29, 2013, the date of the
    transfer, and completed as of that date, but Mr. Nolet did not meet with the
    appellant until the following day.

The Offers to Accommodate the
    Appellant

[19]

OCDC made several offers to the
    appellant that would have released him from segregation, placed him in
    alternative accommodations, and allowed him to socialize with other inmates,
    but without a cellmate.  The proposals were:

(i)  to transfer
    the appellant to a different Wing at OCDC, where he would have access to the
    day room, but be alone at night in his cell;

(ii)  to transfer
    him to the health care unit at OCDC, where he would have the company of other
    inmates;

(iii)  to transfer
    him to the Chatham jail, where he would have day room access but sleep alone in
    a cell at night; or

(iv)  to allow him
    to participate in chaplaincy programs and school programs with other inmates.

[20]

The appellant rejected all of
    these offers.  He wants either to have a cellmate while in segregation or to be
    placed back in Pod C where he will have a cellmate.

ANALYSIS

[21]

As noted above, solitary
    confinement (or segregation) for a prolonged period of time can have damaging
    psychological effects on an inmate and calls for the imposition of safeguards
    and limits to the resort to such punishment: see the Vantour Report, at pp.
    16-17.
[3]
It was in response to these kinds of concerns that the Legislature enacted the
    procedural requirements for placing and holding inmates in solitary confinement
    that are now found in Regulation 778 of the
Ministry of Correctional
    Services Act
, R.R.O. 1990, Reg. 778.  These
    Regulations include the requirements for five-day reviews by the Superintendent
    and 30-day reports to the Minister.

[22]

There can be no doubt, therefore,
    that confining the appellant to administrative segregation for more than a year
    constitutes a very serious deprivation of his liberty and security interests. 
    Given that there are alternatives available, it seems to me that the
    appellants continued confinement in segregation should cease.

[23]

On the other hand, the
    application judge found that if the [appellant] is placed with a cellmate
    there is a very high risk that [he] would manipulate the cellmate into having
    sexual intercourse and a high risk that this cellmate would contact [
sic
] HIV putting any such cellmate in a dangerous
    situation if placed with the applicant.  Given that finding  amply supported
    in the record  the appellant cannot be returned to a situation where he would
    have a cellmate again.

[24]

Therein lies the dilemma in these
    proceedings.

The Application Judges Decision

[25]

The Superintendent of OCDC
    acknowledged that placing the appellant in administrative segregation amounted
    to a deprivation of liberty.  As a result, the application judge properly
    concluded that the onus shifted to the detaining authority to establish the
    lawfulness of the appellants continued detention in segregation.

[26]

The application judge found that
    the Superintendent had reasonable grounds to believe that the appellant was
    engaging in sexual activities with other inmates while detained in the general
    inmate population: Mr. Nolet was aware that the applicant had engaged in
    unprotected sex with M.D., had heard rumours that he had engaged in sexual
    activities with other inmates (although those allegations could not be
    verified), and was also aware that the appellant had requested and received
    condoms and lubricant on four occasions.

[27]

With respect to the appellants
    allegations of procedural unfairness, the application judge found that, while
    the procedures followed did not fully comply with the principles of natural
    justice and with procedural fairness in some respects, the transfer procedure,
    overall, was not procedurally unfair, and the detention of the appellant in
    administrative segregation was not unlawful.  He therefore refused to issue the
    writ of
habeas corpus
.

[28]

In this regard, the application
    judge accepted Mr. Nolets evidence that he had advised the appellant at the
    time of the initial transfer that he was being segregated pending an
    investigation into his sexual activities with other inmates, including M.D.;
    that Mr. Nolet had spoken to the appellant on a regular basis during his
    regular twice-weekly walk-arounds; and that Mr. Nolet had investigated and
    responded to the appellants requests for various specific cellmates.  These
    findings were open to him on the record.

[29]

The application judge found,
    nonetheless, that the procedure adopted by the Deputy Superintendent did not
    fully comply with the principles of natural justice and procedural fairness in
    three specific ways:

(i)  The Segregation Decision
    Review form should not have been completed before Mr. Nolet had met with the
    appellant and heard his submissions;

(ii) The appellant should have been
    given an opportunity to make oral or written submissions on his continued
    segregation at every five-day review, and a summary of his submissions should
    have been recorded on the form or attached as a schedule; and

(iii)  The appellant should have been
    provided with clearer and more detailed reasons for his continued segregation,
    including references to the applicable statutory provisions.

[30]

In spite of these failings, however,
    the application judge was satisfied that the administrative segregation of the
    appellant was lawful and necessary to ensure the safety of other inmates and,
    in particular, any cellmate placed with the appellant.  His reasons for
    arriving at this conclusion may be summarized as follows:

(i)

The appellant was fully aware of the reason he was being kept in
    segregation;

(ii)

The appellant had rejected reasonable proposals by the Superintendent
    that would have removed the psychological harm of being alone in segregation
    while ensuring the safety of other inmates;

(iii)

The appellants requests to be given a cellmate were reasonably refused
    by the Superintendent;

(iv)

The Superintendent would have been aware of the findings made in an
    earlier decision by Warkentin J. that the appellant bragged about his ability
    to manipulate young men into having unprotected sex with him and to infect
    others with HIV by lying to them and that he had actively sought out individuals
    for that purpose; and

(v)

If the appellant were placed with a cellmate, there was a very high risk
    that he would manipulate that cellmate into having sexual intercourse with him
    and a high risk that this cellmate would contract HIV, thus putting any
    cellmate in a dangerous position.

[31]

The appellant contests these
    findings, but, in my view, they were open to the application judge on the
    record, and there is no basis for interfering with them.

The Grounds of Appeal

[32]

The appellant raises two
    principal grounds of appeal.  First, he argues that, having found a breach of
    procedural fairness, the application judge erred in assuming he had a residual
    discretion to deny a
habeas corpus
remedy.  Secondly, he submits that the application judge erred in finding that
    the appellant posed a valid safety and security concern, a finding that was
    important in the application judges decision to refuse to grant the remedy.

[33]

There is ample evidence to
    support the application judges findings regarding the safety and security
    concerns raised by the appellants situation, however, and I do not think
    anything further needs to be said about the second ground of appeal.  I will
    therefore confine my analysis to the first ground of appeal.

The Statutory and Regulatory Framework

[34]

The operation of provincial
    correctional institutions is governed by the Regulation under the
Ministry
    of Correctional Services Act
.  Under s. 2(1) of
    Regulation 778, the Superintendent of the correctional institution is
    responsible for the management of the institution and for the care, health,
    discipline, safety and custody of the inmates under the Superintendents
    authority.  This undoubtedly includes the ability to determine the terms according
    to which the inmates under his or her authority will be housed.  Section 3 of
    the Regulation allows the Superintendents duties to be delegated to a
    designated person  in his case, the Deputy Superintendent, Mr. Nolet  and
    grants the Superintendent or designate the power to place an inmate in
    segregation.

[35]

In this case, Mr. Nolet exercised
    the authority provided under s. 34(1) of the Regulation in order to place the
    appellant in administrative segregation.  Section 34(1) permits the
    Superintendent to do so if, amongst other things,

a)

in the opinion of the
    Superintendent, the inmate is in need of protection;

b)

in the opinion of the
    Superintendent, the inmate must be segregated to protect the security of the
    institution or the safety of other inmates.

[36]

The obligations resting on the
    Superintendent when such a step is taken are set out in the remainder of s.
    34.  The Superintendent must conduct a preliminary review of the inmates case
    within twenty-four hours after the inmate has been placed in segregation, and
    if of the opinion that the continued segregation of the inmate is not
    warranted, shall release the inmate from segregation: s. 34(2).  The
    circumstances of each segregated inmate are to be reviewed at least once in
    every five-day period to determine whether the continued segregation is
    warranted: s. 34(3).  The segregated inmate is entitled, as far as possible, to
    the same benefits and privileges as if the inmate were not placed in
    segregation: s. 34(4).  And, where the inmate is placed in segregation for a
    continuous period of thirty days, the Superintendent must report to the
    Minister the reasons for the continued segregation: s. 34(5).

[37]

There is also a Special
    Management Inmates Policy put in place by the Ministry.  It provides that, when
    an inmate is placed in segregation, the inmate is to be advised of the reasons,
    status, and duration of the segregation and of any changes to those
    conditions.  A Segregation Decision/Review form is to be prepared.  The inmate
    is also to be advised of his or her right to make a submission to the
    Superintendent in writing or in person within five days of being segregated,
    and the inmates decision is to be documented on the review form.  In addition,
    the Policy states that, when an inmate has been in segregation for a continuous
    period of 30 days, the Regional Director will review the reasons for the
    continued segregation in the Superintendents review form to determine whether
    the continued detention is supported.  Before that review form is completed and
    sent to the Regional Director, the inmate is to be provided an opportunity to
    make a written submission or have an interview with the Superintendent or
    designate.

[38]

As noted, the application judge
    found that the Deputy Superintendent had failed to comply fully with these
    requirements in the three ways outlined above.

Did the Application Judge Err In Assuming He Had
    A Residual Discretion To Deny A
Habeas Corpus
Remedy, Having Found There
    Was A Breach Of Procedural Fairness?

[39]

The appellant submits that, once
    the application judge concluded there were breaches of procedural fairness, he
    had no discretion to refuse to grant the
habeas corpus
remedy and was obliged to order that the appellant
    be returned to and placed in Pod C with a cellmate, as he was before his
    transfer to segregation.

[40]

In contrast, the Ministry argues
    that not all breaches of procedural fairness necessarily require the writ to
    issue. Here, the breaches of procedural fairness identified by the application
    judge were minor and technical in nature. It was open to the application judge to
    hold that these breaches did not render the detention unlawful since he found that
    the appellant was fully aware of the reason he was being kept in segregation,
    and that he had been given the opportunity to respond to his situation.

[41]

In my view, the appellants
    blanket assertion that, once a breach of procedural fairness is found to have
    occurred,
habeas corpus
must be granted
    to return him to Pod C with a cellmate, is too broad.  The application judge
    held that there were aspects of the transfer process that did not fully comply
    with the principles of procedural fairness, but he found that the detention
    itself was not procedurally unfair.  Instead, he concluded that, on all of the
    evidence, and in spite of the procedural missteps, the detention was not
    unlawful and declined to issue the writ.  This decision was reasonable and
    based on an ample evidentiary foundation.  I would not interfere with it.

Habeas Corpus

[42]

To be successful, an applicant
    for
habeas corpus
must show (a) a
    deprivation of liberty and (b) that the deprivation of liberty was unlawful:
May
    v. Ferndale Institution
, [2005] 3 S.C.R. 809,
    at para. 74; and
Mission Institute v. Khela
,
    2014 SCC 24, at para. 30.  Between these points, there are other considerations
    in play, however.

[43]

First, once a deprivation of
    liberty has been shown, and the applicant has raised a legitimate ground on
    which to question its validity, the onus shifts to the Crown to show that the
    deprivation was lawful.  Secondly, where a deprivation of liberty has occurred,
    and a legitimate ground to question its validity has been raised, the hearing
    judge must proceed to a hearing; there is no discretion to do otherwise. 
    Finally, the hearing judge retains a residual discretion at this second stage
    of the proceedings to decide, after reviewing the record, whether to discharge
    the applicant: see
Khela
, at paras. 30
    and 78.

[44]

These considerations bear on the
    appellants contention that, once the application judge found breaches of
    procedural fairness, he had no discretion to refuse to grant the writ of
habeas
    corpus
.  The appellant is mistaken in his
    characterization of the writ in this way, in my view.

[45]

It is true that
habeas
    corpus
is a remedy that issues as of right (
ex
    debito justitiae
) once the unlawful nature of
    the detention is established.  It cannot be denied because another, equally
    effective remedy  such as judicial review  exists.  That was the issue
    debated in
May
and
Khela
.  As LeBel J. affirmed in
Khela
, however, the non-discretionary nature of the writ
    relates to whether the applicant has raised a legitimate basis for questioning
    the legality of the detention, not to the ultimate determination of whether, on
    the whole of the record, the unlawful nature of the detention is established. 
    There remains a residual discretion in this regard.  At paras. 77 and 78, he
    said:

First, the traditional onuses associated with the writ will
    remain unchanged.  Once the inmate has demonstrated that there was a
    deprivation of liberty
and casts doubt on the reasonableness of the deprivation
,
    the onus shifts to the respondent authorities to prove that the transfer was
    reasonable in light of all the circumstances.

Second, the writ remains non-discretionary as far as the
    decision to review the case is concerned.
If the applicant raises a
    legitimate doubt as to the reasonableness of the detention, the provincial
    superior court judge is required to examine the substance of the decision and
    determine whether the evidence presented by the detaining authorities is
    reliable and supports their decision.  Unlike the Federal Court in the context
    of an application for judicial review, a provincial superior court hearing a
habeas
    corpus
application has no inherent discretion to refuse to review the case
    (see Farbey, Sharpe and Atrill, at pp. 52-56).
[4]

However, a residual discretion will come into play at the second stage of
    the
habeas corpus
proceeding, at which the judge, after reviewing the
    record, must decide whether to discharge the applicant
.

[Emphasis
    added.]

[46]

Where there has been a denial of
    the right to a fair hearing, the administrative decision will always be
    unlawful.  However, not all procedural breaches will necessarily result in
    procedural unfairness and the denial of the right to a fair hearing: see
Khela
, at para. 90;
Canadian College of Business
    and Computers Inc. v. Ontario (Private Career Colleges Act, Superintendent)
, 2010 ONCA 856, at paras. 65-67; and
Uniboard
    Surfaces Inc. v. Kronotex Fussboden GmbH and Co. KG (F.C.A.)
, 2006 FCA 398, [2007] 4 F.C.R. 101, at para. 24.

Habeas Corpus
in the
    Context of This Case


[47]

That was the question facing the
    application judge, and it was open to him, after embarking on the
habeas
    corpus
hearing, to consider whether, on the
    record as a whole, the appellants detention in segregation was lawful, in
    spite of the procedural flaws that he found to have existed.

[48]

I accept that the appellant was
    entitled to be provided with clear reasons for his detention.  Although, at the
    end of the day, the application judge was satisfied that the appellant knew the
    reasons for his detention, the finding that he was detained without having been
    given clear reasons for his continued segregation was sufficient to raise a
    legitimate ground upon which to question the legality of the deprivation:
Khela
, at para. 86.  On the
Khela
analysis, the next stage was to determine  based on
    the record  what was to happen in terms of the discharge.

[49]

The application judge embarked on
    that exercise, and the thrust of his reasons for concluding that the
    appellants detention in administrative segregation was not unlawful can be
    summarized as follows.  There were some procedural flaws in connection with the
    segregation process, but, at the end of the day, the appellant was fully
    aware of the reasons for his continued detention in segregation.  He had opportunities
     and, on many occasions, took advantage of those opportunities, both orally
    and in writing  to make submissions to the prison authorities about it.  In
    spite of the flaws, therefore, the overall process of placing and keeping the
    appellant in administrative segregation was not procedurally unfair.  In
    addition, the Superintendents decision was reasonable, given the information
    he had.  Accordingly, the placement of the appellant in administrative
    segregation was not unlawful, and the writ of
habeas corpus
could not issue.

[50]

I see no flaw in this overall
    approach.  Indeed, for the following reasons, I would place even less emphasis
    on the factors identified by the application judge as procedural flaws than he
    did.

[51]

As outlined above, at para. 29,
    the application judges view that there had been a failure to comply fully with
    the principles of procedural fairness was based primarily on his view that (i)
    the Segregation Decision Review form should not have been completed before Mr.
    Nolet heard the appellants submissions; (ii) the appellant should have been
    given a chance to make submissions at every five-day review, and a summary of
    those submissions should have been recorded; and (iii) the appellant should
    have received clearer, more detailed, and statutorily-qualified reasons for his
    continued segregation.

[52]

The first of these identified
    concerns is inconsequential.  While Mr. Nolet should not have completed the
    Segregation Decision/Review form before meeting with the appellant, the record
    establishes that its contents reflect what occurred.

[53]

The second is not a procedural
    flaw, in my opinion.  Nothing in either the Regulations or the Policy provides
    an inmate with the right to make submissions either orally or in writing in
    connection with the every five-day review.  As noted above, the Policy requires
    that the Superintendent or the Superintendents designate review the
    detention every five days; that the inmate be advised of the reason, status,
    and duration of the segregation and any changes to those conditions; that the
    inmate be advised of the right to make submissions within five days of being
    segregated; and that the inmates decision be documented on the review form. 
    Where the inmate is segregated for 30 days or more, the Regional Directors
    review is triggered, and the inmate is entitled either to make written
    submissions or to have an interview with the Superintendent or Deputy
    Superintendent.  On the record, these all occurred in substance here.

[54]

Prisons are not administrative
    tribunals and, although inmates are entitled to the benefits of natural justice
    and administrative fairness, to impose on prison officials the full panoply of
    requirements for what is, in effect, an administrative hearing every five days
    is not realistic, notwithstanding the severe impact of administrative
    segregation on an inmate.

[55]

The third identified criticism
    does, indeed, reflect a procedural fairness concern.  Nonetheless, the record
    shows that Mr. Nolet, and even the Superintendent, Mr. Last, were in continuing
    contact with the appellant; that there were regular interviews with him; and
    that he presented the administration with a constant stream of written and oral
    statements protesting his segregation and demanding that he be provided with a
    cellmate of choice.  In addition, he was advised of the reasons for his
    continued detention by Dr. Ward, a forensic psychiatrist who has been working
    with the appellant during his incarceration at OCDC.

[56]

The principles of natural justice
    require that a person subject to administrative detention be advised of the
    reasons for that detention and be given an opportunity to be heard in response
    to that case: see
May
, at para. 92.  At
    the end of the day, the application judge was satisfied that these requirements
    had been met because the appellant was fully aware of the reasons for his
    continued segregation and had been given  and had taken advantage of  the
    opportunity to respond. This was sufficient to outweigh the concern that the
    reasons provided could have been accompanied with more detail and made clearer.

[57]

Despite the procedural flaws that
    may have existed, the appellant was not denied a fair hearing.

[58]

I would not give effect to this
    ground of appeal.

Disposition

[59]

For the foregoing reasons, the
    appeal must be dismissed and the decision of the application judge not to issue
    the writ of
habeas corpus
upheld.

[60]

Like the application judge,
    however, I am satisfied that the offers made to the appellant to try to
    accommodate his concerns were entirely reasonable.  The application judge
    concluded his reasons by stating that the Superintendent was ordered to
    continue to offer the proposals made to the applicant until he is sentenced and
    transferred to a prison.  I see no reason why the Superintendent is limited to
    [continuing] to offer the alternatives.  The Superintendents
    responsibilities for managing the institution include the care, discipline,
    safety, and custody of the inmates: Regulation 778, s. 2(1).  In my view, the
    manner in which inmates are housed falls within those responsibilities and may be
    imposed on the inmates, provided proper procedures are followed, should the
    Superintendent be so advised.


R.A. Blair J.A.

I agree J.C.
    MacPherson J.A.

I agree S.E. Pepall
    J.A.

Released: July 03, 2014





[1]
James A. Vantour,
Report of the Study Group on Dissociation
(Solicitor-General
    of Canada: Ottawa, 1975), at pp. 16-17 (the Vantour Report).



[2]
A number of the written pleas submitted to the Superintendent concluded with
    the admonition: Love is not a crime, when you are doing time.



[3]
See also:

The Honourable Louise Arbour,
Commission of Inquiry into
    certain events at the Prison for Women in Kingston
(Ottawa: Public Works
    and Government Services Canada, 1996),

at pp. 100-101; The Sub-Committee
    on the Penitentiary System in Canada, Standing Committee on Justice and Legal
    Affairs,
Report to Parliament
(Second Session of the Thirtieth
    Parliament, 1976-1977), at p. 87; United Nations General Assembly, Special
    Rapporteur on Torture,
Interim report of the Special Rapporteur of the Human
    Rights Council on torture and other cruel, inhuman or degrading treatment or
    punishment
, U.N. Doc.

A/66/268,

(2011), at para. 76
.



[4]
Judith Farbey, Robert J. Sharpe, and Simon Atrill,
The Law of Habeas Corpus
,
    3d. ed. (New York: Oxford University Press, 2011).


