KIJPUKTUK, NOVA SCOTIA (15 January 2024)
In a historic decision, the Honourable Justice Rosinski, of the Supreme Court of Nova Scotia (NSSC), has ruled that lockdowns in provincial jails caused by staff shortages are unlawful, marking a significant triumph for prisoner rights across the province. This ground-breaking victory comes after years of persistent efforts by PATH lawyer, Hanna Garson, to rectify the ongoing injustice faced by prisoners.
“The decisions of the Honourable Justice Rosinski of the NSSC send a strong message that the perpetual and restrictive lockdowns of individuals in provincial custody is not lawful. Now it’s incumbent on our government to ensure that this message translates from the written word into an actual improvement of conditions in custody and respect of prisoners' rights through, amongst other things, a decreased prison population via bail, community sentences and temporary absence,” said Hanna Garson, Staff Lawyer at PATH.
The case, Diggs v Nova Scotia (Attorney General), 2024 NSSC 11 along with its partner case, Wilband v Nova Scotia (Attorney General), 2024 NSSC 12, hinged on the government's claim that habeas corpus was not an available remedy in cases where the entire prison population experienced the same deprivation of liberty. This assertion, previously accepted by the Court, had only been addressed by self-represented applicants lacking the advantage of legal training and education to advance counter arguments. PATH challenged this notion, arguing that the NSSC had historically misinterpreted an oft-cited Supreme Court of Canada case and successfully convinced the Court to reconsider its stance.
The Court ultimately found that both applicants had been unlawfully detained during various lockdowns experienced throughout their incarceration. Despite ongoing staff shortages, the Court provided three suggestions for the government to consider:
a) over-staffing institutions, noting that having more staff than required is preferable to the alternative;
b) distributing prisoners throughout provincial institutions to prevent burdening facilities suffering from staff shortages; and
c) encouraging joint efforts from corrections and prosecutors to permit more prisoners to be placed on bail pending their trials and for more prisoners serving sentences to be granted temporary absences.
The Court noted that increasing the use of bail and temporary absences was a successful strategy during the COVID-19 pandemic to comply with various public health protocols. PATH urges the government to take swift acting, observing that lockdowns are continuing to happen at multiple institutions across the province.
The impact of this landmark decision will serve as a precedent for future cases involving collective rights violations in correctional facilities. The ruling affirms that the legal system must adapt to evolving interpretations and circumstances, ensuring that justice is accessible to all.
PATH is extremely thankful to their donors who make their pro bono work possible. Consider contributing to their efforts through their partner charity, the Elizabeth Fry Society of Mainland Nova Scotia, to ensure their pro bono work can continue.
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Staff Lawyer, PATH Legal
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