Ryan v. Nova Scotia (Attorney General)

Ryan v. Nova Scotia (Attorney General) Court Supreme Court Date 2015-09-11 Citation 2015 NSSC 286 Docket Hfx 442285 Judge/Registrar/Adjudicator Chipman, James L. (Honourable Justice) Document Type Decision Relations Library Sheet - Ryan v. Nova Scotia (Attorney General) - 2015 NSSC 286 - 2015-09-11 - Library Sheet Decision Content SUPREME COURT OF Nova Scotia Citation: Ryan v. Nova Scotia (Attorney General), 2015 NSSC 286 Date: 2015-09-11 Docket: Hfx No. 442285 Registry: Halifax Between: Daniel Angus Ryan Applicant v. The Attorney General of Nova Scotia representing Her Majesty the Queen in right of the Province of Nova Scotia and Central Nova Scotia Correctional Facility Respondent Judge: The Honourable Justice James L. Chipman Heard: September 11, 2015 in Halifax, Nova Scotia Counsel: Daniel Angus Ryan, self-represented Applicant Duane Eddy, for the Respondent The Attorney General of Nova Scotia Orally by the Court: Introduction [1] As I indicated prior to our recess, I am prepared to render an oral decision today. Habeas corpus applications are time sensitive and it is important to give a decision as quickly as possible. In the time from today’s date, I reserve the right in the event a transcript of this decision is requested to edit and expand upon my reasoning. This will in no way impact on the substance of my decision. [2] At the outset, I want to thank both Mr. Ryan and counsel, Mr. Eddy for the materials filed in advance and, in particular, we have from Mr. Ryan the Notice for Habeas Corpus, filed August 14, 2015. From the Attorney General of Nova Scotia, we have their brief dated August 26, 2015 and the affidavit of the Deputy Superintendent currently working within and for the correctional facility, Mr. Scott Keefe, deposed August 25, 2015. [3] In explaining the reasons for my decision, I will endeavor to summarize the relevant background, the positions of the parties, review specific findings made on the facts before me and review the relevant law I took into consideration. [4] Daniel Angus Ryan is currently detained in the Central Nova Scotia Correctional Facility, at 90 Gloria McCluskey Avenue, Dartmouth, Nova Scotia (“CNSCF”), pursuant to a warrant of remand dated April 30, 2015. Mr. Ryan is on remand awaiting sentencing on several criminal charges. [5] Mr. Ryan is presently housed in an administrative closed confinement day room (segregation). As a result of being placed in an administrative closed confinement day room, Mr. Ryan does not have any direct interaction with other inmates detained within the CNSCF. Mr. Ryan’s contact with other inmates is restricted due to Mr. Ryan’s continued efforts to fashion weapons and due to the correctional facility’s concern for the safety of other inmates and staff. [6] As part of today’s evidence, Mr. Keefe gave oral evidence and he was cross-examined by Mr. Ryan. In addition, the Crown called Christopher Fraser and Mr. Fraser gave viva voce evidence in respect of his role with Mr. Ryan at CNSCF. [7] For Mr. Ryan, he gave sworn evidence in respect of what has transpired in the time that he has been at CNSCF. He also called Tracy Dominix to speak to a program, which I will review later, which goes by the acronym, IBSU. [8] Again, I want to thank both Mr. Ryan and Mr. Eddy for their helpful submissions made today. Rest assured I have considered all the evidence and submissions very carefully before rendering this decision. Issue [9] The question for today is whether Mr. Ryan’s continued placement in administrative segregation is lawful or unlawful. Mr. Ryan has made the application and alleges it is unlawful. At this time, Mr. Ryan remains in administrative segregation, where he has been for approximately two months. [10] In my view, Mr. Ryan’s placement in segregation is a deprivation of his residual liberty, so the burden shifts to the respondent Crown to argue the deprivation is lawful. Positions of the Parties [11] Mr. Ryan submits he should be released into the general population because he has received generally positive feedback and that there have been no incidents involving staff at CNSCF. He adds that no offender is saying they do not want him in the general population. He says he has very few privileges in segregation, that he has a son and visitation is even restricted, and that he is restrained and that it is “overkill” to keep him there. [12] As for the Crown, they point out it has been just two months that Mr. Ryan has been in administrative segregation and that he has a significant history justifying his continued placement. Accordingly, the Attorney General opposes any order that would release Mr. Ryan into the general inmate population of CNSCF. The Attorney General submits that there is a rational, intelligible and objective basis for Mr. Ryan’s continued detention in segregation, which is in evidence through the affidavit of Scott Keefe. Discussion/Analysis [13] The affidavit of Mr. Keefe was the only affidavit filed. This does not mean it was the only evidence but it is, in my view, important and Mr. Keefe was of course cross-examined on the affidavit. I will not repeat all of the paragraphs of the affidavit (there are 29 of them) but I wish to touch on the most significant (unchallenged) assertions. [14] At page 2, para. 13, Mr. Keefe deposes that an inmate may be placed in administrative closed confinement for the following reasons: 1) The security of the facility may be compromised; 2) To protect the safety of other inmates; and 3) At the request of the inmate. [15] Here the inmate Mr. Ryan, of course, is not requesting this but the evidence of Mr. Keefe in his affidavit and orally and of Mr. Fraser in his oral evidence is that to release Mr. Ryan would compromise the security of CNSCF and could jeopardize the safety of other inmates and also the staff. [16] Also from Mr. Keefe’s affidavit at para. 17: Mr. Ryan’s contact with other inmates has been restricted due to Mr. Ryan’s continued efforts to fashion weapons and due to the correctional facility’s concern for the safety of other inmates and staff. [17] He goes on in paras. 26 and 29 of the affidavit: 26. After serving his last disciplinary period of close confinement, on July 17, 2015, Mr. Ryan remained in administrative close confinement on a sentence management plan (SMP). Mr. Ryan was given a copy of the SMP and was made aware that he would not be released into an open day room until he completed the terms and conditions outlined in the SMP. … 29. Daniel Angus Ryan continues to be detained in administrative close confinement under a sentence management plan due to his failure to take responsibility for his actions and the finding that I made that there is a high risk that Mr. Ryan will compromise the safety and security of inmates or staff if released into the general inmate population of the facility. Mr. Ryan’s release from administrative close confinement is contingent on Mr. Ryan’s behaviour, adherence to the SMP, and acceptance of responsibility of his actions. [18] Mr. Keefe and Mr. Fraser went further in their oral evidence to outline why, in their collective view, it is not the time to release Mr. Ryan into the general population. When asked about specifics , both drew reference to the Offender Incident Report. In argument Mr. Eddy emphasized this document as well, which is found at Tab C and further amplified at Tab D of Mr. Keefe’s affidavit. The document traces and summarizes Mr. Ryan’s disciplinary reports: there are 21 incidents involving Mr. Ryan between June 21, 2014 and July 16, 2015. [19] I found through cross-examination that Mr. Ryan made the point through two examples, that there were no convictions in Court. Nevertheless, Mr. Keefe spoke to the view of the CNSCF in respect of those incidents involving Mr. Ryan. [20] I must say that I find myself somewhat sympathetic to Mr. Ryan’s predicament. He remains in segregation for 23 of 24 hours of the day. In the result, his access to programs is limited. He has been unable to meaningfully participate in various programs; for example, anger management. Undoubtedly a number of these programs would be of assistance to him. [21] If I thought Mr. Ryan was going to remain in administrative segregation forever, I would be gravely concerned. However, that is not necessarily the case. Indeed, there remains a reasonable prospect he will move to the IBSU, which is a new unit which will hopefully come on stream later this year. I found Mr. Fraser’s evidence quite compelling in this area as he spoke to this unit hopefully allowing Mr. Ryan the possibility to reintegrate into the general population. As Mr. Fraser suggested, it would be a stepping stone which would better assist Mr. Ryan in ultimately coping and residing safely in the general population. [22] My overriding view is that at this stage I am simply too concerned with releasing Mr. Ryan into the general population. To the extent my view matters (and I will explain later in terms of what the law has to say on this) when I carefully examine Mr. Keefe’s affidavit I find myself concerned for Mr. Ryan, concerned for the other inmates and the staff. There is a track record here. It is a track record that I would sincerely hope, as I am sure Mr. Ryan does, he can move on from. But it has really just been a couple of months and Mr. Ryan does not come to this Court with a clean slate. He has the history I have spoken of, the history that’s documented in Mr. Keefe’s affidavit and spoken of by both Mr. Keefe and Mr. Fraser. [23] I am particularly concerned with the shanks which were found on Mr. Ryan during past attempts to move Mr. Ryan out of segregation. This in fact leads me to wonder what will happen the next time? The overriding concern here, as the law suggests, is that we have to be mindful of the safety of all of those within CNSCF. [24] Earlier I said my view may not matter and that is because of what the law says in respect of other reported cases that have come before this one. Decisions of prison administrators, such as have been made by those at CNSCF, are afforded considerable deference by the Court. The deference is afforded for good reason. In the result, my role as a Supreme Court Justice hearing a habeas corpus application is not to review all of the evidence so as to make a new decision on the evidence. It is also not my role to determine whether a placement decision such as we have in this case was the correct decision. [25] In making such decisions, prison administrators must take into consideration the safety and security of many stakeholders: the staff, other inmates, the public, and so forth. Prison administrators (here Mr. Keefe, Mr. Fraser and Ms. Dominix) have specific and sometimes special knowledge of the safety concerns. They are in a better position than the Court in assessing and mitigating the risks with respect to prisons. That is why, in part, they are afforded considerable deference. It is not the Court’s role to second guess. My role is to determine whether the Respondent had the jurisdiction to make the decision and whether that decision was lawful and, as Mr. Eddy has argued, reasonable in the circumstances. [26] In this analysis, I must consider whether the decision is within an appropriate range of outcomes. In other words, can it be said the decision was reasonable? Can it stand? Even if I felt differently, I would have to find a way to say CNSCF’s decision was completely unreasonable, and I do not find the decision to keep Mr. Ryan in segregation is unreasonable. [27] I cannot deal with hypotheticals, but months from now if we find out that Mr. Ryan has appropriately behaved and there has been no new stepdown graduated unit developed, even Mr. Eddy conceded, that may be for another day. But at this point with the passage of the two months, and having regard to what I have called Mr. Ryan’s track record, I do not take issue with the decisions of the administration. Accordingly, at the end of the day, I find myself in agreement with them but, more importantly, find that the decision is reasonable. [28] I come to this conclusion with reference to the Corrections Services Act, and the regulatory framework and directives that go along with it, and a number of the decisions which have been brought to my attention by the Crown in this case, namely: Coin v. Canada, 2013 NSSC 367; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190; Munoz v. Alberta,2004 ABQB 769; R. v. C.V., 2005 NSSC 71; R. v. Miller, [1985] 2 S.C.R. 613; May v. Ferndale, 2005 SCC 82; Kahela v. Mission Institution, 2011 BCCA 450; Bradley v. Canada (Correctional Service), 2011 NSSC 503 and 2012 NSSC 173; and Samms v. Leblanc, 2004 NBQB 140. [29] So those are among the most important cases that I’ve reviewed and cases that give me comfort in coming to my decision. Having regard of these authorities, I must consider all of the evidence before me. This includes the oral evidence I heard today and the affidavit evidence. I find the premise contained in para 29 of Mr. Keefe’s affidavit to be persuasive: 29. Daniel Angus Ryan continues to be detained in administrative close confinement under a sentence management plan due to his failure to take responsibility for his actions and the finding that I made that there is a high risk that Mr. Ryan will compromise the safety and security of inmates or staff if released into the general inmate population of the facility. Mr. Ryan’s release from administrative close confinement is contingent on Mr. Ryan’s behaviour, adherence to the SMP, and acceptance of responsibility of his actions. I find that assertion, based on my review of all of the evidence, to be correct. Disposition [30] Having regard to the evidence and law, I find the Respondent Crown had the authority to make the decision challenged by the Applicant. I find CNSCF’s decision to be clearly anchored in the legislation and the caselaw. I find the conduct of the prison administration and the steps taken thus far have been fair and appropriate and reasonable in the circumstances. I find that the Crown witnesses Mr. Keefe and Mr. Fraser were, in effect, overseeing the file and overseeing the inmate Mr. Ryan, and that they acted reasonably and appropriately in the circumstances. [31] On balance, I find no merit in the assertions of Mr. Ryan. Having regard to all of the evidence and authorities, I hereby reject his application for an Order for habeas corpus. In the result, I deny his request to be released into the general population. [32] With that I want to thank Mr. Ryan for his efforts today. I want to emphasize what I said earlier in my decision that today is not the end of the road for you, Mr. Ryan. You are not being released from segregation today, but that possibility remains and the door is not being closed in the future. So I want to thank you for your submissions, and I want to thank you, Mr. Eddy, for your submissions and also the Crown witnesses. Chipman, J.