Judge rules lockdowns due to staff shortages at Nova Scotia jails are unlawful

Cells are seen during a media tour of renovations at the Central Nova Scotia Correctional Facility in Halifax on Tuesday, May 15, 2018. THE CANADIAN PRESS/Andrew Vaughan

HALIFAX -

A pair of Nova Scotia Supreme Court rulings that say it is illegal to lock down inmates in provincial jails because of staffing shortages are being praised by an advocacy group as a victory for prisoner rights.

Lawyer Hanna Garson of the non-profit law firm PATH said the decisions by Justice Peter Rosinski in the cases of two inmates mean it's now up to the province to to decrease the jail population through bail, community sentences and temporary absence leaves.

"Our courts have finally said 'Enough is enough, individuals in custody still have human rights, and they are not disposable,"' Garson said in an interview Monday.

In decisions dated Friday, Rosinski found that inmates Durrell Diggs and Ryan Wilband experienced "ongoing material deprivation" of their liberty while incarcerated at the Central Nova Scotia Correctional Facility last fall.

The judge says Diggs was detained at the jail for 51 days from Sept. 13 to Nov. 3. On 38 of those days the "low security risk" inmate was confined to his cell for 22 hours per day, while on another eight days he was confined for 21 hours.

"That is the equivalent of being in close confinement or administrative segregation," Rosinski wrote.

The court document says that under full staffing at the jail, inmates should be safely out of their cells for up to 12 hours a day. It says that at a minimum, 19 correctional officers are required to safely let inmates out of their cells for nine hours or more per day.

"The less correctional officers that show up for work, the more severe the lockdowns will become each day," the ruling states.

Wilband, also described as a "low-risk general population inmate" on remand, was continually confined to his cell for "extraordinarily long periods of time each day," between Oct. 31 and Nov. 28 due to staffing shortages, the judge said. Evidence presented in court showed that on three of those days, Wilband had no time out of his cell.

Rosinski characterized the lockdowns as "unlawful" and said that in the Diggs case, Nova Scotia's attorney general had not shown that the lockdowns were reasonable.

"It is not a privilege to be out of one's cell. It is presumptively an entitlement," the judge wrote.

Rosinski suggests better planning to ensure full staffing, distributing inmates throughout the provincial system and using bail and temporary absence leaves as ways of dealing with persistent staff shortages.

"I emphasize that the decision by Nova Scotia that is directly in issue here, is the daily decision to order total or partial lockdowns on any given day," he said.

The decisions follow a series of complaints known as habeas corpus applications related to the Halifax-area jail. In a habeas corpus application, a judge assesses the conditions of a person's confinement to determine whether their Charter rights have been violated and they should be granted a remedy, such as more time out of their cell.

Until Rosinski's ruling, the courts have consistently maintained that lockdowns triggered by a lack of staff cannot be addressed via habeas corpus.

Garson said the difference this time is that the inmates in the two cases were represented in court by lawyers who were able to argue against the province, along with the fact that there seemed to be no end in sight to the lockdowns. Previously, many of the inmates who brought cases represented themselves in court.

"It seems the courts were less willing to continue to define the lockdowns as lawful as time went on and the situation wasn't addressed," she added.

Garson said if the province doesn't heed the court's suggestions for remedies, it could be subject to a class-action suit seeking damages on behalf of inmates. Notice of such an action was filed last month with Nova Scotia's attorney general.

The Justice Department said Monday that it is reviewing the court's decision and its recommendations while it continues efforts to increase staffing at the jail.

"We have dedicated a full-time position to focus on recruitment and retention and have implemented a continuous open application process that is seeing positive results," spokeswoman Deborah Bayer said in an email.

Bayer said the department recently hired 39 new staff for the Central Nova Scotia Correctional Facility, including 14 correctional officer recruits, who will start work early next month.

This report by The Canadian Press was first published Jan. 15, 2024.

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