ADMINISTRATIVE LAW REPORTS Fifth Series/Cinqui`Eme S´Erie Recueil De Jurisprudence En Droit Administratif

ADMINISTRATIVE LAW REPORTS Fifth Series/Cinqui`eme s´erie Recueil de jurisprudence en droit administratif

VOLUME 11 (Cited 11 Admin. L.R. (5th))

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[Indexed as: Bacon v. Surrey Pretrial Services Centre] James Kyle Bacon (Petitioner / Applicant) And Debbie Hawboldt, Warden of Surrey Pretrial Services Centre (Respondent) British Columbia Supreme Court McEwan J. Heard: October 5-7, 13-14, 19-20, 22-23, 28-29, 2009; November 3-5, 12-13, 16-17, 2009; December 16, 2009; January 8, 22, 2010; Febru- ary 1, 2010 Judgment: June 9, 2010* Docket: Vancouver 25146, 2010 BCSC 805 K.M. Eldred for Petitioner / Applicant A.K. Fraser, B. Mackey, T. Callan for Respondent Criminal law –––– Prisons and prisoners — Regulation — Conditions and treatment — Segregation –––– Accused was in custody at pre-trial services centre, charged with first degree murder and conspiracy to commit murder, on warrant of committal to be kept safe until trial — Accused was segregated in his room from other inmates for 23 hours per day, his visits were restricted, and he was subjected to numerous deprivations, including access to medical treatment, clean laundry, pillow, regular exercise, telephone and correspondence — Accused ate all meals in his room, did not know in advance when he would leave it, had no access to programmes, and could only use telephone to call his counsel during his one hour out of his cell — Accused was told he would be housed in segregation until trial, which could be several years — Warden claimed that treatment was based on advice from police and media reports that accused’s access to community or public contacts could endanger other persons or put accused at risk — Accused became increasingly anxious and upset, and brought petition for declaratory relief, relief in nature of mandamus and habeas corpus with certiorari in aid on grounds of breach of Canadian Charter of Rights and Freedoms — Petition granted — Decision to place accused in segregation was police-driven, although accused was not assessed as high-risk offender — Accused’s account of his treatment was not contradicted — Accused was treated as prisoner who was being perpetually punished — Warden failed to exercise her

*A corrigendum issued by the Court on July 6, 2010 has been incorporated herein. 2 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th) discretion under Correction Act Regulation by allowing police to unduly influence decision to place accused in separate confinement and in imposition of further deprivations. Criminal law –––– Charter of Rights and Freedoms — Life, liberty and security of person [s. 7] — Principles of fundamental justice — Procedural fairness –––– Ac- cused was in pre-trial custody, charged with first degree murder and conspiracy to commit murder, on warrant of committal to be kept safe until trial — Accused was segregated from other inmates in his room for 23 hours per day, his visits were restricted, and he was subjected to numerous deprivations, including medical treatment, clean laundry, exercise, access to telephone and correspondence — Warden based treatment on advice from police and media reports that accused’s access to community and public contacts could endanger other persons or put accused at risk — Accused became increasingly anxious and hopeless, and brought petition for declaratory relief, relief in nature of mandamus and habeas corpus with certiorari in aid on grounds of breach of Canadian Charter of Human Rights — Petition granted — Warden’s treatment of accused demonstrated fundamental misapprehension of Correction’s mandate under warrant of committal — Warden misused her power to assist police and share information without legal authorization, acting as agent for police — Warden’s handling of accused’s mail was not in manner prescribed by Correction Act and Correction Act Regulation — Warden failed to exercise her discretion under Regulation by allowing police to unduly influence decision to place accused in separate confinement and in imposition of further deprivations — Warden failed to properly consider legal duties under Act in relation to outside contacts in person, by telephone and by mail — Restrictions imposed made it impossible for accused to demonstrate adherence to appropriate standard in order to improve his situation — Warden breached s. 7 of Charter in depriving accused of his liberty and security of person in manner that was contrary to principles of fundamental justice. Criminal law –––– Charter of Rights and Freedoms — Cruel and unusual punishment [s. 12] –––– Accused was in pre-trial custody, charged with first degree murder and conspiracy to commit murder, on warrant of committal to be kept safe until trial — Ac- cused was segregated from other inmates in his room for 23 hours per day, his visits were restricted, and he was subjected to numerous deprivations, including medical treatment, clean laundry, exercise, access to telephone and correspondence — Accused ate all meals in his room, did not know in advance when he would leave it, had no access to programmes, and could only use telephone to call his counsel during his one hour out of his cell — Accused was told he would be housed in segregation until trial, which could be several years — Warden based treatment on advice from police and media reports that accused’s access to community and public contacts could endanger other persons or put accused at risk — Warden would not disclose reasons for treatment of accused to him or his counsel — Accused became increasingly anxious and hopeless, and brought petition for declaratory relief, relief in nature of mandamus and habeas corpus with certiorari in aid on grounds of breach of Canadian Charter of Human Rights — Petition granted — Unlawful imposition of deprivations was unusual treatment — Long periods of unmitigated segregation and deprivations known to cause psychological harm amounted to cruelty — Whether driven by obedience to police directives or by resource limitations, accused had undergone cruel and unusual punishment in breach of s. 12 of Charter. Criminal law –––– Extraordinary remedies — Habeas corpus with certiorari in aid — Grounds for review — Denial of natural justice –––– Accused was in pre-trial Bacon v. Surrey Pretrial Services Centre 3 custody, charged with first degree murder and conspiracy to commit murder, on warrant of committal to be kept safe until trial — Accused was segregated from other inmates in his room for 23 hours per day, his visits were restricted, and he was subjected to numerous deprivations, including medical treatment, clean laundry, exercise, access to telephone and correspondence — Warden based treatment on advice from police and media reports that accused’s access to community and public contacts could endanger other persons or put accused at risk — Accused became increasingly anxious and angry, and brought petition for declaratory relief, relief in nature of mandamus and habeas corpus with certiorari in aid on grounds of breach of Canadian Charter of Human Rights — Peti- tion granted — Declaratory relief in respect of warden’s conduct relating to accused’s mail, placement in separate confinement and imposition of further deprivations was granted — Order in nature of habeas corpus was granted respecting treatment of accused — Whether driven by obedience to police directives or by resource limitations, accused had undergone cruel and unusual punishment in breach of s. 12 of Charter — War- den breached s. 7 of Charter in depriving accused of his liberty and security of person in manner that was contrary to principles of fundamental justice — Warden was still responsible for management of accused’s incarceration, despite breaches of Charter, but treatment was to be limited strictly to authority authorized under Correction Act and Cor- rection Act Regulation — Visiting and telephone privileges were ordered restored, and mail was to be handled as set out in Act and Adult Custody Policy Manual. Cases considered by McEwan J.: Blencoe v. British Columbia (Human Rights Commission) (2000), 2000 SCC 44, 2000 CarswellBC 1860, 2000 CarswellBC 1861, 3 C.C.E.L. (3d) 165, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 38 C.H.R.R. D/153, 81 B.C.L.R. (3d) 1, 190 D.L.R. (4th) 513, [2000] 10 W.W.R. 567, 23 Admin. L.R. (3d) 175, 2000 C.L.L.C. 230-040, 260 N.R. 1, (sub nom. British Columbia (Human Rights Commission) v. Blencoe) 77 C.R.R. (2d) 189, 141 B.C.A.C. 161, 231 W.A.C. 161, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, REJB 2000-20288 (S.C.C.) — followed Charkaoui, Re (2007), 54 Admin. L.R. (4th) 1, (sub nom. Charkaoui v. Canada (Minister of Citizenship & Immigration)) 152 C.R.R. (2d) 17, 2007 SCC 9, 44 C.R. (6th) 1, 59 Imm. L.R. (3d) 1, 2007 CarswellNat 325, 2007 CarswellNat 326, 358 N.R. 1, 276 D.L.R. (4th) 594, (sub nom. Charkaoui v. Canada) [2007] 1 S.C.R. 350, [2007] S.C.J. No. 9 (S.C.C.) — followed Maltby v. Saskatchewan (Attorney General) (1982), 1982 CarswellSask 441, 20 Sask. R. 366, 4 C.R.R. 348, 2 C.C.C. (3d) 153, 143 D.L.R. (3d) 649, [1982] S.J. No. 871 (Sask. Q.B.) — referred to May v. Ferndale Institution (2005), 343 N.R. 69, 34 C.R. (6th) 228, [2005] 3 S.C.R. 809, 2005 SCC 82, 2005 CarswellBC 3037, 2005 CarswellBC 3038, 261 D.L.R. (4th) 541, 204 C.C.C. (3d) 1, 49 B.C.L.R. (4th) 199, 220 B.C.A.C. 1, 362 W.A.C. 1, 38 Admin. L.R. (4th) 1, 136 C.R.R. (2d) 146, [2006] 5 W.W.R. 65, [2005] S.C.J. No. 84 (S.C.C.) — considered Munoz v. Alberta (Director, Edmonton Remand Centre) (2004), 2004 ABQB 769, 2004 CarswellAlta 1612, 369 A.R. 35, [2004] A.J. No. 1344 (Alta. Q.B.) — referred to R. v. Ansari (2008), 2008 BCSC 1492, 2008 CarswellBC 2676 (B.C. S.C.) — considered R. v. Cai (2002), [2003] 3 W.W.R. 423, 104 C.R.R. (2d) 341, 2002 ABCA 299, 2002 CarswellAlta 1587, (sub nom. R. v. Chan (M.K.)) 317 A.R. 240, (sub nom. R. v. 4 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

Chan (M.K.)) 284 W.A.C. 240, 9 C.R. (6th) 184, 9 Alta. L.R. (4th) 28, 170 C.C.C. (3d) 1, [2002] A.J. No. 1521 (Alta. C.A.) — considered R. v. Chan (2005), 2005 ABQB 615, 2005 CarswellAlta 1212, 387 A.R. 123, [2005] A.J. No. 1118 (Alta. Q.B.) — considered R. v. Daunt (2005), 2005 YKSC 34, 2005 CarswellYukon 42, 31 C.R. (6th) 31, 132 C.R.R. (2d) 62, [2005] Y.J. No. 23 (Y.T. S.C.) — followed R. v. Ferguson (2008), [2008] 5 W.W.R. 387, 290 D.L.R. (4th) 17, 371 N.R. 231, 87 Alta. L.R. (4th) 203, [2008] 1 S.C.R. 96, 2008 SCC 6, 418 W.A.C. 79, 2008 CarswellAlta 228, 2008 CarswellAlta 229, 54 C.R. (6th) 197, 228 C.C.C. (3d) 385, 425 A.R. 79, 168 C.R.R. (2d) 34, [2008] S.C.J. No. 6 (S.C.C.) — referred to R. v. Goltz (1991), 8 C.R. (4th) 82, 5 B.C.A.C. 161, 11 W.A.C. 161, [1991] 3 S.C.R. 485, 7 C.R.R. (2d) 1, 67 C.C.C. (3d) 481, 61 B.C.L.R. (2d) 145, 131 N.R. 1, 31 M.V.R. (2d) 137, 1991 CarswellBC 280, 1991 CarswellBC 924, [1991] S.C.J. No. 90, EYB 1991-67055 (S.C.C.) — referred to R. v. McCann (1975), [1976] 1 F.C. 570, 1975 CarswellNat 108, 1975 CarswellNat 108F, 29 C.C.C. (2d) 337, 68 D.L.R. (3d) 661 (Fed. T.D.) — considered R. v. Miller (1985), [1985] 2 S.C.R. 613, 24 D.L.R. (4th) 9, 14 O.A.C. 33, 16 Admin. L.R. 184, 63 N.R. 321, 23 C.C.C. (3d) 97, 49 C.R. (3d) 1, 1985 CarswellOnt 124, 52 O.R. (2d) 585 (headnote only), 1985 CarswellOnt 947, [1985] S.C.J. No. 79 (S.C.C.) — considered R. v. Olson (1987), 22 O.A.C. 287, 1987 CarswellOnt 1402, 62 O.R. (2d) 321, 38 C.C.C. (3d) 534, [1987] O.J. No. 855 (Ont. C.A.) — considered R. v. Precourt (1976), 18 O.R. (2d) 714, 36 C.R.N.S. 150, 39 C.C.C. (2d) 311, 1976 CarswellOnt 22 (Ont. C.A.) — followed R. v. Smith (1987), 1987 CarswellBC 198, 1987 CarswellBC 704, [1987] 5 W.W.R. 1, [1987] 1 S.C.R. 1045, (sub nom. Smith v. R.) 40 D.L.R. (4th) 435, 75 N.R. 321, 15 B.C.L.R. (2d) 273, (sub nom. Smith v. R.) 34 C.C.C. (3d) 97, 58 C.R. (3d) 193, (sub nom. Smith v. R.) 31 C.R.R. 193, EYB 1987-80054, [1987] S.C.J. No. 36 (S.C.C.) — referred to R & J Siever Holdings Ltd. v. Sunridge Merritt Motel Inc. (2008), 2008 BCCA 59, 52 C.P.C. (6th) 33, 420 W.A.C. 237, 251 B.C.A.C. 237, [2008] 7 W.W.R. 591, 2008 CarswellBC 245, 79 B.C.L.R. (4th) 51, 291 D.L.R. (4th) 328 (B.C. C.A.) — considered Ross v. Riverbend Institution (2008), 2008 SKCA 19, 423 W.A.C. 9, 310 Sask. R. 9, 2008 CarswellSask 86, [2008] S.J. No. 96 (Sask. C.A.) — followed S. v. Makwanyane (1995), 1995 (3) SA 391 (South Africa Constitutional Ct.) — considered Sauv´e v. Canada (Chief Electoral Officer) (2002), 98 C.R.R. (2d) 1, 168 C.C.C. (3d) 449, 5 C.R. (6th) 203, [2002] 3 S.C.R. 519, 2002 SCC 68, 2002 CarswellNat 2883, 2002 CarswellNat 2884, 218 D.L.R. (4th) 577, 294 N.R. 1, [2002] S.C.J. No. 66, REJB 2002-35062 (S.C.C.) — considered Storgoff, Re (1945), [1945] S.C.R. 526, 1945 CarswellBC 90, 84 C.C.C. 1, [1945] 3 D.L.R. 673 (S.C.C.) — considered Suresh v. Canada (Minister of Citizenship & Immigration) (2002), 2002 SCC 1, 37 Ad- min. L.R. (3d) 159, [2002] 1 S.C.R. 3, 2002 CarswellNat 7, 2002 CarswellNat 8, 18 Imm. L.R. (3d) 1, 208 D.L.R. (4th) 1, 281 N.R. 1, 90 C.R.R. (2d) 1, [2002] S.C.J. No. 3, REJB 2002-27423 (S.C.C.) — considered Bacon v. Surrey Pretrial Services Centre 5

United States v. Burns (2001), 39 C.R. (5th) 205, 265 N.R. 212, [2001] 3 W.W.R. 193, [2001] 1 S.C.R. 283, 85 B.C.L.R. (3d) 1, 2001 SCC 7, 2001 CarswellBC 272, 2001 CarswellBC 273, 151 C.C.C. (3d) 97, 195 D.L.R. (4th) 1, 81 C.R.R. (2d) 1, 148 B.C.A.C. 1, 243 W.A.C. 1, REJB 2001-22580, [2001] S.C.J. No. 8 (S.C.C.) — considered United States v. Ferras (2006), 268 D.L.R. (4th) 1, 209 C.C.C. (3d) 353, [2006] 2 S.C.R. 77, 2006 SCC 33, 2006 CarswellOnt 4450, 2006 CarswellOnt 4451, 39 C.R. (6th) 207, 351 N.R. 1, 214 O.A.C. 326, 143 C.R.R. (2d) 140, [2006] S.C.J. No. 33 (S.C.C.) — followed Statutes considered: Canadian Bill of Rights, S.C. 1960, c. 44, Pt. I, reprinted R.S.C. 1985, App. III Generally — referred to Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 1 — referred to s. 7 — considered s. 10(c) — referred to s. 11(d) — considered s. 12 — considered s. 52 — referred to Correction Act, S.B.C. 2004, c. 46 Generally — referred to s. 1 “correctional centre” — considered s. 9 — considered s. 19 — considered s. 19.1 [en. 2007, c. 28, s. 2] — considered s. 19(3)(a) — referred to s. 33(1) — considered s. 33(2)(d) — considered s. 33(2)(h) — considered s. 33(2)(s) — considered s. 33(2)(t) — considered s. 33(2)(u) — considered s. 33(2)(v) — considered s. 33(3) — considered Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 503 — considered s. 503(1)(a) — considered s. 515(11) — referred to s. 849 — considered Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 Generally — referred to 6 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

Rules considered: Rules of Court, 1990, B.C. Reg. 221/90 Generally — referred to R. 52(8) — considered R. 63 — considered Forms considered: Criminal Code, R.S.C. 1985, c. C-46 Form 8 — referred to Treaties considered: Basic Principles for the Treatment of Prisoners, G.A. Res. 45/111, 45 U.N. GAOR Supp. No. 49A, U.N. Doc. A/45/49 Generally — referred to Annex, s. 5 — considered Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, C.T.S. 1987/36; 23 I.L.M. 1027; 1465 U.N.T.S. 85; U.N. Doc. A/39/51 Article 1 — considered Article 16 ¶ 1 — considered International Covenant on Civil and Political Rights, 1966, C.T.S. 1976/47; 999 U.N.T.S. 171; 6 I.L.M. 368 Generally — referred to Article 4 ¶ 2 — considered Article 7 — considered Regulations considered: Correction Act, S.B.C. 2004, c. 46 Correction Act Regulation, B.C. Reg. 58/2005 Generally — referred to s. 2 — considered s. 2(1)(b) — considered s. 2(1)(e) — considered s. 2(1)(g) — considered s. 2(1)(h) — considered s. 2(1)(i) — considered s. 2(1)(j) — considered s. 2(2) — referred to s. 2(2)(b) — considered s. 3 — considered s. 14 — considered s. 14(2) — considered s. 15(2) — considered s. 17 — considered s. 17(1)(a) — considered s. 17(1)(a)(iii) — referred to s. 17(1)(a)(iv) — referred to s. 17(2) — considered Bacon v. Surrey Pretrial Services Centre McEwan J. 7

s. 17(4) — considered s. 18 — considered s. 18(1) — referred to s. 18(3) — referred to s. 27 — considered s. 30 — considered s. 30(2) — referred to

PETITION by accused held in pre-trial custody for declaratory relief, relief in nature of mandamus and habeus corpus with certiorari in aid relating to treatment while being held on warrant of committal.

McEwan J.: I Introduction 1 On October 19, 2007, six people were shot and killed in an apartment building in Surrey, British Columbia. It was an appalling event apparently related to an ongoing conflict between rival criminal organizations. Two of the victims had no connection with what occurred other than to be in the wrong place at the wrong time. 2 On April 3, 2009, some 18 months after the killings, the police arrested three people, one of whom was the petitioner. He was charged with one count of first degree murder and one count of conspiracy to commit murder. On the same day, another person believed to be a confederate of the petitioner pled guilty to three counts of second degree murder and one count of conspiracy to commit murder. 3 The petitioner is presently awaiting trial on those charges. No dates have been set and the court has been advised that it may be a matter of years before the case is tried. It is estimated that disclosure will include more than a million pages of text. 4 The petitioner is in custody pursuant to s. 515(11) of the Criminal Code, R.S.C. 1985, c. C-46. It requires persons charged with first degree murder to be detained pending trial unless they show cause why they should be released. The petitioner has not attempted to do so. He is accordingly, being held on a Warrant of Committal issued April 4, 2009 by a judicial justice of the peace, directing the jailer to keep a prisoner “safe” until he can be brought to trial or be otherwise dealt with according to law.

II The Applications (a) The Petition 5 The petitioner claims that the respondent, has failed in her obligation to keep him “safe” within the legal and Constitutional meaning of that term, and has otherwise treated him inappropriately. On September 11, 2009 he brought a Pe- tition seeking orders: 8 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

1. for a Declaration that the Respondent has handled the Petitioner’s mail in a manner that is not prescribed by the Correction Act, S.B.C. 2004, c. 46 and Correction Act Regulation, B.C. Reg. 58/2005; 2. for relief in the nature of mandamus compelling the Respondent to handle the Petitioner’s mail in the manner prescribed by the Correction Act and Correction Act Regulation; 3. for an order quashing the Respondent’s decision to restrict the Peti- tioner’s visits; 4. for an order quashing the Respondent’s decision to restrict the Peti- tioner’s telephone access; 5. for an order for costs in favour of the Petitioner.

(b) The Motion for Habeas Corpus with Certiorari in Aid 6 The petitioner also filed a Notice of Motion for habeas corpus with certiorari in aid seeking his release from administrative segregation — a form of solitary confinement — into the general population of either the Surrey Pretrial Ser- vices Centre (SPSC) or a comparable facility in British Columbia. In the Motion the petitioner more particularly seeks the following orders: 1. An Order in the nature of habeas corpus with certiorari in aid directing the Corrections Branch of British Columbia to move the Applicant to another appropriate pre-trial detention facility in Lower Mainland of British Columbia and place him in the general inmate population, or 2. An Order in the nature of habeas corpus with certiorari in aid directing the Respondent to place the Applicant in the general inmate population at Surrey Pretrial Services Centre; 3. An Order for costs to the Applicant. 7 The grounds are set out as follows: The Applicant is separately confined in the Segregation Unit at the Surrey Pretrial Services Centre and is being unlawfully deprived of his liberty in that: 1. His separate confinement within the Segregation Unit at the Surrey Pretrial Services Centre is not authorized by law because: a. The Respondent has and is exercising the powers vested in her by sections 2(2), 17(1)(a) & 18(1) of Correction Act Regulation, B.C. Reg. 58/2005 for an improper purpose in seeking to assist the police in a criminal investigation; b. The Respondent has fettered her discretion under sections 2(2), 17(1)(a) & 18(1) of Correction Act Regulation by allowing the police to unduly influence or determine the Ap- plicant’s placement in separate confinement; Bacon v. Surrey Pretrial Services Centre McEwan J. 9

c. The Respondent breached her statutory duty under sections 17(4) & 18(3) of the Correction Act Regulation, her common law duties of procedural fairness and natural justice, and her constitutional duties of fundamental justice and due process by deciding to separately confine the Applicant: i. without holding a hearing in which the Applicant could make submissions and challenge the information upon which the Respondent relied; and ii. without providing reasons for her decision and dis- closing all of the relevant information upon which she relied in reaching her decision, and thereby denied the Applicant the opportunity to meaningfully review the decision to continue to separately confine him. d. The Respondent’s decision to confine and to continue to separately confine the Applicant in the Segregation Unit of the Surrey Pretrial Services Centre is patently unreasonable. 2. The Respondent has subjected and is subjecting the Applicant to conditions of confinement that infringe his constitutional rights in that: a. The Respondent has deprived and is depriving the Applicant of his security of person by imposing conditions of confinement that have caused and are causing serious psychological harm to the Applicant contrary to section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”); and b. The Respondent has subjected and is subjecting the Appli- cant to conditions of confinement that are inconsistent with the presumption of innocence and compromise his ability to receive a fair trial contrary to sections 7 & 11(d) of the Charter. 3. The laws that authorize the conditions of the Applicant’s confinement in the Segregation Unit at the Surrey Pretrial Services Centre are unconstitutional in that: a. Section 19(3)(a) of the Correction Act, S.B.C. 2004, c. 46 and sections 2(2), 18(1) & 30(2) of the Correction Act Reg- ulation permit the Corrections Services of British Columbia to subject an untried prisoner to cruel and unusual treatment and thereby infringe section 12 of the Charter, in a manner that is not saved by section 1 of the Charter and is therefore of no force and effect, pursuant to section 52 of the Charter. b. Section 19(3)(a) of the Correction Act, and sections 2(2), 18(1) & 30(2) of Correction Act Regulation permit the Cor- rections Services of British Columbia to deprive an untried 10 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

prisoner of his or her security of person by imposing serious psychological stress on the prisoner and thereby infringe section 7 of the Charter, in a manner that is not saved by section 1 of the Charter and is therefore of no force and effect, pursuant to section 52 of the Charter. c. Section 18(1) of the Correction Act Regulation permits the Corrections Services of British Columbia to deprive an untried prisoner of his or her liberty and security of person in a manner that does not accord with the principles of fundamental justice by failing to provide due process in that: i. The decision-maker is not sufficiently independent and impartial; ii. The decision-maker is not required to hold a hearing before making his or her decision; iii. The decision-maker is not required to disclose the facts upon which his or her decision is made; and iv. The untried prisoner is denied the opportunity to meaningfully review the decision; and thus infringes section 7 of the Charter in a manner that is not saved by section 1 of the Charter and is therefore of no force and effect, pursuant to section 52 of the Charter; d. Section 19(3)(a) of the Correction Act and sections 2(2), 18(1) & 30(2) of Correction Act Regulation permit the Cor- rections Service of British Columbia to subject an untried prisoner to conditions of confinement that are inconsistent with the presumption of innocence and compromise the ability of an untried prisoner to receive a fair trial and thereby infringe sections 7 & 11(d) of the Charter in a manner that is not saved by section 1 of the Charter and is therefore of no force and effect, pursuant to section 52 of the Charter.

(c) The Constitutional Question 8 The petitioner also filed a Notice of Constitutional Question, seeking declarations that: 1. The Respondent has deprived and is depriving the Applicant/Petitioner of his security of person by subjecting him to conditions of confinement that have caused and are causing serious psychological harm to the Ap- plicant/Petitioner contrary to section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”); 2. The Respondent has subjected and is subjecting the Applicant/Petitioner to conditions of confinement that are inconsistent with the presumption Bacon v. Surrey Pretrial Services Centre McEwan J. 11

of innocence and compromise his ability to receive a fair trial contrary to sections 7 & 11(d) of the Charter. 3. Section 19(3)(a) of the Correction Act, S.B.C. 2004, c. 46 and sections 2(2), 18(1) & 30(2) of Correction Act Regulation permit the Corrections Service of British Columbia to subject an untried prisoner to cruel and unusual treatment and thereby infringe section 12 of the Charter, in a manner that is not saved by section 1 of the Charter and is therefore of no force and effect, pursuant to section 52 of the Charter. 4. Section 19(3)(a) of the Correction Act, and sections 2(2), 18(1) & 30(2) of Correction Act Regulation permit the Corrections Service of British Columbia to deprive an untried prisoner of his or her security of person by imposing serious psychological stress on the prisoner and thereby infringe section 7 of the Charter, in a manner that is not saved by section 1 of the Charter and is therefore of no force and effect, pursuant to section 52 of the Charter. 5. Section 19(1) of the Correction Act Regulation permits the Corrections Service of British Columbia to deprive an untried prisoner of his or her liberty and security of person in a manner that does not accord with the principles of fundamental justice by failing to provide due process in that: a. The decision-maker is not sufficiently independent and impartial; b. The decision-maker is not required to hold a hearing before making his or her decision; c. The decision-maker is not required to disclose the facts upon which his or her decision is made; and d. The untried prisoner is denied the opportunity to meaningfully review the decision; and thus infringes section 7 of the Charter in a manner that is not saved by section 1 of the Charter and is therefore of no force and effect, pursuant to section 52 of the Charter. 6. Section 19(3)(a) of the Correction Act and sections 2(2), 18(1) & 30(2) of Correction Act Regulation permit the Corrections Service of British Columbia to subject an untried prisoner to conditions of confinement that are inconsistent with the presumption of innocence and compromise his or her ability to receive a fair trial and thereby infringe sections 7 & 11(d) of the Charter in a manner that is not saved by section 1 of the Charter and is therefore of no force and effect, pursuant to section 52 of the Charter. 9 The Attorney General of Canada was served but has declined to participate in these proceedings. 12 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

10 The Attorney General of British Columbia has appeared both on its own behalf, in relation to the Constitutional question, and as counsel on behalf of the respondent Warden. A simple Response opposing the proceedings has been filed on the Warden’s behalf.

III The Nature of the Proceedings 11 Before addressing the particular ways in which the petitioner says he has been treated inappropriately, I will make some general comments respecting the nature of the remedies sought and the legal framework within which the applications are brought.

(a) Habeas Corpus 12 Habeas corpus is a Writ of ancient origin, pre-dating Magna Carta. It is a fundamental safeguard of liberty, enabling a person who is detained to be brought before a superior court to determine the legality of his detention. 13 The right to bring such an application is explicitly recognized in s. 10(c) of the Canadian Charter of Rights and Freedoms Part I of the Constitution Act, 1982, being schedule B to the Canada Act (U.K.) 1982, c. 11, which includes the right on arrest or detention “to have the validity of [one’s] detention determined by way of habeas corpus and to be released if the detention is not lawful.” 14 Classically, habeas corpus describes a process whereby a Writ was directed to the jailer (or the person having custody of the applicant) to bring the person before the court to show lawful cause for his detention. The Writ issues as of right upon proof of a deprivation of liberty. The burden of proving the lawful- ness of the deprivation of liberty thereafter shifts to the jailer. In practice, the Writ and the hearing to show cause are usually heard together. 15 It is now firmly established that proof that an inmate has been placed in a more restrictive setting within an otherwise lawful detention is a deprivation of liberty. In May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809 (S.C.C.) at para. 76, the Supreme Court of Canada affirmed that “[t]he decision to transfer an inmate to a more restrictive institutional setting constitutes a deprivation of his or her residual liberty”. 16 The respondent has placed the petitioner in “administrative segregation”, a form of solitary confinement, and a markedly more restrictive form of imprisonment than is the norm for either remand or sentenced prisoners. The warden has offered a series of justifications for that treatment which will be examined in detail. Bacon v. Surrey Pretrial Services Centre McEwan J. 13

(b) Civil or Criminal? 17 The Writ of habeas corpus invokes the inherent jurisdiction of the court. It is a summary process concerned with the legality of the particular detention in question. 18 In the latter stages of the hearing, a considerable amount of argument was directed to the question of the proper characterization of these proceedings as criminal or civil. The distinction is not always obvious, and, like proceedings for contempt, may depend on findings made in the course of the hearing itself. It is not, therefore, unheard of that the original process, viewed retrospectively, is brought in a manner that may be formally defective. This may ultimately be of very little moment. In Storgoff, Re, [1945] S.C.R. 526 (S.C.C.), the Supreme Court of Canada ruled that an application for habeas corpus took its character from the nature of the proceedings giving rise to the impugned detention. The petitioner’s detention here has its source in a specific mandate in the Criminal Code requiring those charged with first degree murder to be automatically remanded into the custody of a jailer, unless they show cause why they should be released. 19 The extension of habeas corpus to cases involving the alteration of the conditions of an inmate’s incarceration has required the courts to consider the proper characterization of the proceedings as civil or criminal in the specific context of applications to secure release from solitary confinement. The law on this question is conveniently summarized in Ross v. Riverbend Institution, 2008 SKCA 19 (Sask. C.A.). There, in a case respecting administrative transfers from one federal institution to another, the Saskatchewan Court of Appeal made the following observations at paras 26-30: [26] The availability of a writ of habeas corpus was canvassed in R. v. Storgoff. The court concluded the nature of the prerogative writ of habeas corpus is a procedural writ which may apply in a criminal or civil matter. However, it is the proceeding under which the applicant is placed in custody which determines whether the character of the habeas corpus proceeding is criminal or civil. [27] In Vukelich v. Misson Institution, Prowse J.A. summarized the rule from Storgoff as follows: [31] In separate reasons, six of seven members of the Court in Storgoff agreed that the proceedings were criminal in nature. In brief, the majority held that a writ of habeas corpus was procedural in nature and that an application for habeas corpus took its character from the nature of the proceedings giving rise to the impugned detention. In Mr. Storgoff’s case, his detention arose from the warrant of committal flowing from his conviction for an offence under the Code. Thus, the habeas corpus proceedings were criminal in nature .... 14 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

[32] The Storgoff decision provides an in-depth analysis of the history and characterization of habeas corpus proceedings. It is apparent from that decision that whether an application for habeas corpus is characterized as criminal or civil in nature will depend on the nature of the underlying proceedings giving rise to the detention which is being challenged. [28] The factual situation in Vukelich parallels the case before us. In Vuke- lich, the inmate instituted a habeas corpus application to secure his release from solitary confinement at Mission Institution. Prowse J.A., writing for the majority, referred to the decisions in R. v. Shubley and Winters v. Legal Services Society.Both cases involved the characterization of disciplinary proceedings within penal institutions. It was confirmed that prison disciplinary proceedings are civil proceedings and are non-criminal in nature, i.e. are not criminal proceedings. [29] In Shubley, McLachlin, J. (as she then was) stated: ... Was the prison disciplinary proceeding to which the appellant was subject, by its very nature, criminal? I conclude it was not. The appellant was not being called to account to society for a crime violating the public interest in the preliminary proceedings. Rather, he was being called to account to the prison official for breach of his obligation as an inmate of the prison to conduct himself in accordance with prison rules. If he had been called upon twice to answer to the State for his crime, of the Charter would apply. But section 11(h) does not operate so as to pre- clude his being answerable to prison officials for a breach of discipline as well as to the State for his crime. The internal disciplinary proceedings to which the appellant was subject lack the essential characteristics of a proceeding on a public, criminal offence. Their purpose is not to mete out criminal punishment, but to maintain order in the prison. In keeping with that purpose, the proceedings are conducted informally, swiftly and in private. No courts are involved. They are not, to borrow the words of Wilson J. in R. v. Wigglesworth, [[1987] 2 S.C.R. 541 at p. 560: “of a public nature, intended to promote public order and welfare within a public sphere of activity.” The answer to the first branch of the Wigglesworth test must be that the prison discipline proceedings are not, by their nature, criminal proceedings. They are internal discipline proceedings, even though they arise from the same act as gives rise to criminal proceedings. [30] In the notices of appeal filed by Ross and Latham, each is challenging the administrative decisions of the prison officials which caused them to be transferred from Riverbend to the Saskatchewan Penitentiary. In my view, these are matters related to the administration of the appellants’ sentences. The custody of Ross and Latham at the Saskatchewan Penitentiary is based on decisions made by prison officials pursuant to the CCRA and CCRR. I Bacon v. Surrey Pretrial Services Centre McEwan J. 15

agree with the decisions in Shubley, Winters and Vukelich, and find that the underlying nature of the decision with respect to the custody of Ross and Latham is a civil proceeding. [Footnotes omitted] 20 In the present case, the petitioner does not challenge the legality of the War- rant of Committal but impugns the manner in which prison officials have interpreted the responsibilities that flow from it. That, in turn, involves consideration of the Correction Act, and the Correction Act Regulation, either to determine whether the respondent has interpreted the law correctly, or if she has, whether the Correction Act and Correction Act Regulation themselves infringe the Charter. 21 Although the nature of the police involvement in the petitioner’s remand under the Warrant gives rise to a question that might be characterized as arising on the face of the Warrant itself, both the habeas corpus application and the proceedings respecting specific deprivations arise out of administrative action inside SPSC. For that reason, the proper characterization of the petitioner’s application is that it is civil in nature. 22 The respondent says that the practical consequence of this characterization is that these proceedings are then governed by the Rules of Court which constitute a “code” of procedure, particularly in respect of document disclosure and the potential for costs. This is not exactly so, however, for reasons recently set out in R & J Siever Holdings Ltd. v. Sunridge Merritt Motel Inc., 2008 BCCA 59 (B.C. C.A.), where the Court said, at para.14: [14] In attempting to distinguish Lawson v. Bajpai, the chambers judge fo- cussed on the court’s reliance on Rule 19(24)(c) and overlooked the inherent jurisdiction of the court, which was invoked in the passages emphasized in paragraph 12 above. In addition to the powers conferred by the Rules of Court, the Supreme Court of British Columbia, as a superior court of record, has inherent jurisdiction to regulate its practice and procedures so as to prevent abuses of process and miscarriages of justice: see I.H. Jacob, “The In- herent Jurisdiction of the Court” (1970) 23 Current Leg. Prob. 23 at 23-25. As the author said, at 25, The inherent jurisdiction of the court may be exercised in any given case, notwithstanding that there are Rules of Court governing the circumstances of such case. The powers conferred by the Rules of Court are, generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the court. The two heads of powers are generally cumulative, and not mutually exclusive, so that in any given case, the court is able to proceed under either or both heads of jurisdiction. Thus, it can be seen that in striking out the unauthorized appearance the court in Lawson v. Bajpai exercised both its power under Rule 19(24)(c) and its inherent jurisdiction to prevent abuses of process and miscarriages of justice. 16 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

23 Rule 63 prescribes a petition as the modern procedural substitute for a writ of habeas corpus, for the obvious reason that habeas corpus is a summary procedure and not a trial. The respondent’s vigorous submission, late in the proceeding, that absent an application for an order for discovery, inspection and production of documents under Rule 52(8), the court lacked jurisdiction to order production of the petitioner’s file was simply untenable given the Court’s inherent jurisdiction in the conduct of summary process, and given that certiorari in aid was part of the relief the petitioner sought.

(c) Certiorari in Aid 24 Certiorari in aid of habeas corpus is essentially a direction that an administrative decision maker deliver up its record to enable the court to review such matters as its exercise of jurisdiction, its approach to fairness, its adherence to the rules of natural justice, and whether it has committed errors of law. Certio- rari allows the court to “consider affidavit evidence relating to the validity of the detention and not be limited to examining the face of the order” (Kent Roach, Constitutional Remedies in Canada, looseleaf (Aurora, Ont.: Canada Law Book, 1994) at 2.540. 25 In R. v. Miller, [1985] 2 S.C.R. 613 (S.C.C.), Le Dain J. remarked, at para.14, that “there can be no doubt that certiorari in aid is important if not essential, to the effectiveness of habeas corpus.” 26 In this case, the respondent took the position that newspaper and internet postings collected by the police and passed on to the prison administration were, for court purposes, sufficient evidence of the rationale for her singular treatment of the petitioner. The Court was repeatedly assured that the respondent was in possession of information from “various intelligence sources” that could not be revealed without jeopardizing the safety of the institution. At a point in the midst of the proceedings it became apparent that there was no cogent rationale for the respondent’s resistance to turning over her records pertaining to the petitioner. The documents produced under the order for disclosure cast a significantly different light on the issues, and on the manner in which the case had been de- fended to that point. It will therefore be necessary to trace the way the evidence unfolded in order to assess the respondent’s position, which apparently remains that the petitioner has been appropriately treated.

IV The First Series of Affidavits (a) Petitioner’s Materials 27 The evidence initially submitted by the petitioner was an affidavit setting out his treatment from the time of his arrest and remand to September 20, 2009. His personal evidence was supplemented by a number of exhibited written ex- changes with the prison authorities. Bacon v. Surrey Pretrial Services Centre McEwan J. 17

28 The petitioner’s mother, Susan Ann Bacon, also filed an affidavit about a specific incident involving the police in May of 2009 and the modification of the petitioner’s visiting rights which followed. 29 The petitioner’s materials also included an affidavit by Craig William Ha- ney, a professor of psychology, setting out his personal observations of the petitioner’s conditions in prison, in light of his training and experience.

(b) Respondent’s Materials 30 The petitioner’s materials were initially answered by an affidavit from Steve Phillips, the respondent’s Deputy Warden of Operations, sworn September 30, 2009.

(c) Supplemental Materials 31 These materials were followed by an exchange of supplemental affidavits, one from the petitioner sworn on October 6, 2009, and two more from Deputy Warden Phillips. Deputy Warden Phillips’ affidavit referred on a number of occasions to undisclosed records as the source for certain assertions. An order for disclosure of the records pertaining to the petitioner followed. The consequences of the information disclosed pursuant to that order will be addressed after I have outlined the original evidence upon which this matter proceeded.

V The Petitioner’s Affidavit (a) Pre-Arrest Incarcerations 32 In his affidavit of September 10, 2009 the petitioner started by addressing his previous incarcerations in remand facilities in relation to two different sets of charges. He said that on those occasions he was housed in a regular living unit and was not a problem inmate. His criminal record is not extensive, and he has never served time, outside the time he has spent on remand. 33 The petitioner spent the period from June 2, 2008 to July 9, 2008 in the Segregation “2” unit, and a later period in the Medical Isolation Unit. On that occasion he was housed with his brother, Jarrod. He says that he found segregation much harder than incarceration on a regular living unit even though, on that occasion, he was generally allowed 2 to 3 hours out of his cell each day and had access to a washer and dryer, television, refrigerator, telephone and microwave. He said there were no restrictions on his visits or telephone contacts. He attached a copy of his prison “client” log for that period which described him as “polite and respectful”, “easy to manage” and as presenting “no behavioural issues”. 18 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

(b) Pre-Arrest Police Encounters 34 The petitioner then outlined a series of incidents following his release from prison in 2008 that appear to be attempts by the police to cut him off from the community. These were offered as evidence of a police attitude that, the petitioner claims, influenced his treatment by the respondent and her staff. It is not necessary to review this material in detail. No effort has been made to refute any of the allegations, except that the respondent, Debbie Hawboldt, deposed in an affidavit sworn October 22, 2009, that the paragraphs dealing with police behaviour are matters of which she has “no knowledge.” 35 The assertion that she did not know about these police activities is somewhat surprising because her response to the petitioner’s claims has been heavily reli- ant on newspaper and other sources assembled by the police to justify the manner in which she treated the petitioner. This material included numerous police assertions that confirm that what the petitioner deposed was precisely what they were doing. In a February 11, 2009 Vancouver Sun article, for example, the Ab- botsford police chief is quoted as saying that police have targeted the “notorious Bacon brothers” by having their car leases revoked and having them kicked out of restaurants and community gyms. In an article March 5, 2009, in The Prov- ince, an RCMP spokesman is quoted as saying, [f]or all intents and purposes, [the accused, Karbovanec, Johnston and Bacon] are in custody 24/7. These individuals 24 hours a day, seven days a week, have officers observing them.” These quotations are taken directly from articles placed before the court by the respondent.

(c) Police Custody and the Warrant of Committal 36 When the petitioner was arrested on April 3, 2009, he was held by the police until he was taken before a judicial justice of the peace on April 4, 2009. He was then remanded into custody pursuant to a Warrant of Committal. Section 503(1) of the Criminal Code limits the period of time a prisoner may be held by the police before being brought under judicial authority to 24 hours: 503. (1) A peace officer who arrests a person with or without warrant shall cause the person to be detained in custody and, in accordance with the following provisions, to be taken before a justice to be dealt with according to law: (a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period... 37 The hearing contemplated in s. 503 marks the transition of an arrested person from the control of the investigating authorities to the care of a jailer under the supervision of the court. The Form 8 Warrant of Committal prescribed in the Code is a direction to the police to deliver the accused to the jailer, followed by Bacon v. Surrey Pretrial Services Centre McEwan J. 19

a direction to the jailer to keep that person “safely...until he is delivered by due course of law.” 38 The Warrant of Committal pursuant to which the petitioner was remanded departs from Form 8 in a number of ways. Most significantly, it includes an expanded iteration that the prisoner is to be conveyed safely to “a Prison in the Province of British Columbia, being either in Federal Institution, a Provincial Correctional Centre or a Police Lock-Up” (emphasis added). 39 While s. 849 of the Criminal Code permits some latitude respecting varia- tions in the Forms, the Form used for the petitioner’s remand treats detention in a police lock-up as if it were the equivalent of remand to a jailer. This form of remand has long been considered undesirable, except in exigent circumstances. In R. v. Precourt (1976), 18 O.R. (2d) 714 (Ont. C.A.), Martin J.A., a leading authority on the criminal law, made the following observations, at paras. 722-23: In my view, it was prima facie improper to hold the appellant in police custody after he had appeared before the provincial Judge and had been remanded in custody on the morning of August 2, 1973. Section 454 [rep. & sub. R.S.C. 1970, c. 2 (2nd Supp.), s. 5; am. 1974-75-76, c. 93, s. 46] of the Code provides that a peace officer who arrests a person with or without warrant shall cause the person to be detained in custody and taken before a Justice to be dealt with according to law without unreasonable delay and in any event within a period of 24 hours after the person has been arrested where a Justice is available within the 24-hour period. Where a Jus- tice is not available within a period of 24 hours after the person has been arrested, the person shall be taken before a Justice as soon as possible. ... A police officer who makes a lawful arrest, either with or without warrant, is empowered under s. 454 to detain the person arrested for a reasonable time for investigation before taking him before a Justice. Twenty-four hours constitute the outer limits of that period where a Justice is available within that period: see R. v. Koszulap (1974), 20 C.C.C. (2d) 193 at pp. 200-1, 27 C.R.N.S. 226 at pp. 234-5. The power to detain for investigation a person taken into custody by a constable having probable cause to suspect him of having committed a felony before taking him before a Justice of the Peace is recognized at common law. In Dallison v. Caffery, [1964] 3 W.L.R. 385, Lord Denning said at p. 398: When a constable has taken into custody a person reasonably suspected of felony, he can do what is reasonable to investigate the matter, and to see whether the suspicions are supported or not by further evidence. He can, for instance, take the person suspected to his own house to see whether any of the stolen property is there; else it may be removed and valuable evidence lost. He can take the person suspected to the place where he says he was working, for there he may find persons to confirm or refute his alibi. The constable can put him on an identification parade to see if he is picked out by the witnesses. So long as 20 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

such measures are taken reasonably, they are an important ad- junct to the administration of justice. By which I mean, of course, justice not only to the man himself but also to the community at large. The measures must, however, be reasonable. Similar powers are implicit in the provisions of s. 454 of the Code in relation to all criminal offences in the circumstances envisaged by the section. It could not be suggested that there was anything improper in the investigation conducted by the police on the evening of August 21, 1973, with the apparent assistance of the appellant, or that the investigating officers were not justified in holding the appellant at the police station overnight with a view to placing him and Mackenzie in a line-up the following morning. In my view, however, the appellant should have been taken to the provincial jail as soon as it was practicable to do so following the remand in custody by the Provincial Judge on the morning of August 22nd on the information charging the appellant with robbery. [Emphasis added] 40 Martin J.A. went on to set out the relevant Criminal Code provisions and to reproduce the Warrant of Remand. He made the following further observations at 724-26: 42. The rule requiring the Justice to remand the prisoner to the common jail is of ancient origin: see Hawkins’, Pleas of the Crown (1973), vol. 2, pp. 176-7. Hale says “Regularly the commitment is to be to the common goal of the county” (Hale’s, Pleas of the Crown (1847), vol. 2, p. 123). 43 Sections 465(d) and 457.1 require the Justice to remand the accused in custody in a “prison”. The broad definition of a “prison” contained in the Code no doubt introduces greater flexibility with respect to the custodial facility in which the accused may be confined following a remand by a judicial officer than was the case under the former Code. Nevertheless, it is, I think, clear that the Code contemplates custody of a different character following such a remand than the investigative police custody provided for by s. 454 of the Code. 44 When the accused has been taken before a judicial officer and remanded on an information the investigative process incidental to arrest, previously referred to, has terminated, a decision to invoke the machinery of the criminal law to try the accused has been made, and he is thereafter under the jurisdiction of the Court. I do not intend to imply, however, that the police may not thereafter, in appropriate circumstances, interview the accused, or conduct procedures involving the accused, for example an identification parade. 45 It is implicit, however, in the provisions of the Code and the statutory form of warrant remanding a prisoner that ordinarily where a prisoner is remanded in custody he is to be held in a custodial facility separate from mere holding cells connected with the police function where such a prison is available. ... Bacon v. Surrey Pretrial Services Centre McEwan J. 21

49 The warrant of remand provided for by the Code requires the peace officers to whom it is addressed to forthwith convey the prisoner to the prison specified in the warrant. In my view “forthwith” in the context means as soon as possible in the circumstances: see 37 Hals., 3rd ed., p. 103, para. 183; cf. John Lewis & Co. Ltd. v. Tims, [1952] A.C. 676, where “forthwith” was contrasted with “within a reasonable time”. I do not wish to be taken as holding that in every case the prisoner must be taken to prison immediately. It is possible to imagine circumstances in which delay in conveying the accused to a prison may be justifiable, for example, where the accused’s assistance is sought to find a missing child or to locate a concealed bomb. These examples are not intended to be exhaustive and circumstances of lesser ur- gency might very well justify a reasonable delay. The practice, of course, of detaining a prisoner in holding cells connected with the Court until other prisoners have been dealt with does not infringe the provisions of the Code. In the present case, however, no circumstances emerged on the voir dire by way of explanation for the delay other than Sergeant Lavergne’s explanation that he did not know that the warrant of remand required the prisoner to be forthwith conveyed to the provincial jail. I can only conclude that, prima facie, the detention of the appellant at police headquarters in the circumstances of this case was not a compliance with the warrant remanding the appellant in custody. 41 As Martin, J.A. noted, the courts have recognized that there are circumstances in which it is impracticable for a prisoner to be immediately conveyed from the custody of the police to the custody of the jailer. In remote locations, sometimes all that can be done is to remand a person in custody into police cells pending arrangements for transportation. This was the case in R. v. Daunt, 2005 YKSC 34 (Y.T. S.C.), which involved delay in transporting an accused from Dawson City to Whitehorse, during which the police interrogated the accused. After citing Precourt, Veale, J. made the following observations respecting that practice: [142] There is a vast difference between the investigative custody prior to a remand into the Whitehorse Correctional Centre and the process that must be followed after a court order has been issued and the accused is in court-ordered custody. [143] Although counsel made some submissions on what should happen when the accused moves from investigative custody of the police to court- ordered custody, the issue was not fully researched and argued before me. Nevertheless, given the importance of the issue, I make the following tenta- tive recommendations: 1. The remand order under section 515(11) of the Criminal Code, in Form 8 contemplates that the accused will be transported to a prison and not the police holding cells. This is based upon the principle set out in Precourt that the accused is now under the jurisdiction of the court. 22 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

2. The general police investigative power to interrogate the accused person has terminated. The right to question the accused in the absence of counsel without his consent and the use of police persua- sion to convince the accused to waive his or her right to silence do not exist at this stage, because the accused is under the jurisdiction of the court. The statutory powers, such as executing a DNA warrant, will always remain. A spontaneous utterance of the accused in the course of a DNA warrant may be admissible as a R. v. Portillo, [1999] O.J. No. 3528 (Ont. Sup. Ct. J.) at paragraph 88. 3. There undoubtedly will be circumstances where the accused cannot immediately be transported to a prison. Reasonable delays caused by lack of personnel or transport, for instance, which result in the accused being held in holding cells at courthouses or in detachments cells in small communities are not breaches of remand orders. How- ever, once the remand order is made, the accused is in court-ordered custody, not investigate custody of the police. 4. It will always be a factual determination as to when delay is reasonable and justifiable. The important principle is that the transportation of the accused is paramount and the investigative custody over the accused’s person is terminated. 5. If a circumstance arises where the police are not able to transport an accused in a reasonable time, it is incumbent on the police to bring the matter back to the Justice of the Peace, if it is not raised in the first instance. The accused must have an opportunity to consult and be represented by counsel or duty counsel in person or by telephone. Presumably, counsel will advise the accused that interrogations or interviews are not permitted without the accused’s consent. In other words, the police do not have the right to interrogate the accused as if the accused is in investigative custody. The accused must be advised that in addition to the right to silence, the accused cannot be interviewed without a full and informed consent. These principles were recently reviewed and applied in this province by this court in R. v. Ansari, 2008 BCSC 1492 (B.C. S.C.). 42 Following the issue of the Warrant of Committal on August 4, 2009, the petitioner was not taken into the custody of a jailer, but remained in the custody of the police for two more days. This was not justified on the basis of the kind of investigative circumstances envisioned in R. v. Precourt or the practical difficulties referred to in R. v. Daunt. The police detachment in Surrey is adjacent to the SPSC and attached to it by a tunnel. Matters have been so arranged, however, that the SPSC does not receive male remand inmates on weekends. This has the practical effect of leaving persons arrested late in the week in the hands of the police over the weekend. Bacon v. Surrey Pretrial Services Centre McEwan J. 23

43 In an affidavit sworn October 22, 2009, the respondent explains: 19. The SPSC never admits male inmates into the facility on weekends. This has been the case throughout the six and a half years I have worked at the SPSC as Warden, and my understanding is that this is because we are not funded to have staffing at the facility for that purpose on the weekends. We do, however, admit female inmates from the Vancouver Jail into the SPSC on weekends. When the Corrections Branch ceased to administer the Van- couver Jail in approximately 2006, and that facility passed to the City of Vancouver to operate, there was an agreement that the SPSC would pick up female inmates from the Vancouver Jail on weekends. 44 Mr. Bacon’s evidence as to what happened in the two days following his remand is not challenged: 38. On Saturday, April 4, 2009, I was ordered detained in custody. The warrant of committal included an order that I have no contact with my co-defendants Cody Haevischer, Matthew Johnston or Dennis Karbovanec. 39. Surrey Pretrial is right next door to the Surrey RCMP detachment. The two buildings are connected by an underground tunnel. Rather than lodging me at Surrey Pretrial once there was a warrant for my committal, the police took me to the same building where again I was interrogated by Messrs. Ad- ams and Henderson from approximately 10:00 a.m. to midnight. Again the police brought me back to the Surrey RCMP detachment where I spent the night in police custody. 40. On Sunday, April 5, 2009, the police again took me to the same building where I was interrogated from approximately 10:00 a.m. to 8:00 p.m. 41. Throughout the weekend, when the interrogation broke for meals, the police would move me to what I understood to be Mr. Henderson’s office to eat. On Sunday, during the meal break, Mr. Henderson told me that remand centres are terrible. He said that even a dog needs room to run around and should not be kept in a cage. He told me that he could help me. He would get me out of the remand centre and ensure that I had a good placement at a federal institution if I cooperated with the police. ... 44. The police did not restrict their interrogation to the offences for which I had been charged. They also brought up other individuals and offences about which they told me that they believed I had knowledge. The police told me that they had taken away all my power. The only way I could get back at these people would be to give evidence against them. They repeatedly told me that they thought that I could “rock B.C.” if I told them everything that I knew. I maintained my right to silence through three days of interrogation. 45. When interrogation was completed in the early hours of Monday morning, the police returned me to the Surrey RCMP detachment where I spent the night in police custody. [Emphasis added] 24 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

45 Even if this arrangement could be said to be in keeping with the intention of s. 515(11) of the Code, the police could only be stand-ins for the jailer, and would be under the same duty to keep the prisoner “safe”. As the authorities make clear, the transition from police custody at the point of judicial remand marks a change in the nature of the authority over a remanded person. 46 Certain distinctions should be obvious. The police are agents of the state authority that is investigating and prosecuting the accused. The court stands between that manifestation of the state and the accused. Where the law mandates that the accused be kept in custody, the jailer operates under the supervision of the court. Keeping remand prisoners “safe” includes keeping them in circumstances where they are not subjected to the direction of or supervision of the police. 47 These distinctions appear to have been lost on the authorities involved in this case. The police do not appear to have respected the Warrant of Committal: the petitioner was subsequently removed from the police lock-up and taken away to another building altogether, for questioning. This is fundamentally at odds with the direction given by the Warrant, and with the expectations governing its issue.

(d) The Respondent’s Treatment of the Petitioner (i) Separate Confinement 48 The petitioner’s account of his treatment under the direct control of the respondent starts two days later, on April 6, 2009, when he was taken from the police cells to the SPSC. Upon presentation, the petitioner was given a mental health screening assessment which noted that he was “not a risk for violence or a candidate for special placement”. He was then assessed respecting his medical history and his medications. His admission summary includes a note confirming that he had not been a management problem within the institution on earlier remands. There is, in fact, no suggestion in any of the material before the court that the petitioner has ever been a difficult inmate to manage, or that his behaviour as a prisoner has ever been a threat to the security of the institution. 49 The petitioner was initially placed in what was called Segregation 2, in a cell (206) that opened onto a windowless room with cinderblock walls and a concrete floor. He was kept in his cell for 23 hours a day and was allowed out into another small room, alone, for the other hour. He was subsequently moved to another cell (210) which he said was filthy and smeared with “blood, feces and mucus”. The bed was a concrete slab with a vinyl-covered foam mat. He had one sheet and a thin blanket, but was not allowed a pillow. He said that there was no change of bedding in the five weeks he was there. 50 The petitioner said that he was not allowed a pen until May 4, 2009. He said the lights in his cell were on 24 hours per day. He said that they could be Bacon v. Surrey Pretrial Services Centre McEwan J. 25

dimmed to some degree at night, but that happened only at the discretion of the guards. 51 Cell 210 had a video camera mounted in a corner above the door. It was positioned such that the petitioner could be monitored while using the toilet in his cell. When he attempted to cover the lens, he was advised he could not do so, and threatened with an unspecified disciplinary infraction. 52 On April 30, 2009, Deputy Warden Phillips advised the petitioner’s solicitor that the video monitoring in cell 210 had nothing to do with anything he had done, but was incidental to his placement in that cell which was determined as a matter of administrative convenience. When the petitioner’s counsel queried this, she got the following reply: Further to your letter dated May 12, 2009, James Bacon had been moved to a cell with video surveillance in order to make the best use of available cells. Although the presence of the video camera in issue was not necessitated by security concerns relating to Mr. Bacon, video surveillance is used in areas throughout a correctional centre and inmates are not permitted to disable video cameras. Accordingly, when Mr. Bacon was observed attempting to cover a video camera he was advised this was not permitted and told that any related future attempt could lead to a disciplinary penalty pursuant to the provisions of the Correction Act Regulation. However, I understand no related disciplinary action was required. I would add that the noted prohibition against disabling video cameras applies to all inmates. I also confirm that the cell in question has since been reassigned because of security concerns requiring video surveillance capabilities in relation to another inmate. As a result, your client has been relocated to a cell that has no video surveillance. In conclusion, I do not consider that your client was subjected to harassment as you suggest but, in any event, trust that his relocation resulting from our need to use the cell in question for another inmate resolves your concerns. 53 When counsel asked whether any of the videos monitoring the petitioner had been passed along to the police, Deputy Warden Phillips advised her to ask the police: I would recommend you contact the police regarding whether or not they have been given access as I am unable to respond of their behalf. 54 The petitioner’s one hour out of his cell per day was also his opportunity to shower and to contact counsel. He was not permitted to go outdoors but was simply escorted into the other room. The timing of his hour out varied such that it was impossible to make an appointment to speak to his lawyers: they had to be available to take a call at any random time the prison administration chose to give him. 55 The petitioner said the water in the shower was too hot to stand under. He said the shower room was very cold in the mornings, and for that reason he 26 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

asked to have his hour out later in the day. He said the guards’ response was to give him his hour out first thing in the morning. 56 A telephone was mounted on the wall opposite the shower. The petitioner was not permitted to speak to anyone but legal counsel. There was no furniture in the room, not even a chair to sit on. There were no amenities of any kind. 57 The petitioner said he had no access to a gymnasium. 58 The petitioner said that because he was not allowed to use a telephone to call anyone other than counsel, and there was nothing to do, apart from having a shower, he would generally return to his cell early. His request for nail clippers was denied. He said that he had no ability to do laundry. He said that when he exchanged his dirty clothes for clean clothing, guards rarely brought him clothing that fit. He said that for the first two weeks of his confinement he did not have a change of clothes. He said sometimes guards would help him obtain clean clothes and sometimes they would not. 59 The area into which the petitioner was released for the one hour out was a courtyard with a concrete floor and cinderblock walls. He said it was about 10 feet long and 10 feet wide and that there was nothing there — no greenery, no place to sit, and no exercise equipment. Whether sunlight struck “the yard” (as it was called) depended on the time of year and the time of day. He said he was occasionally permitted to go to this area, aside from his hour out but was not allowed to do so if other prisoners were using it. Even when it was empty, the petitioner says his access seemed to depend on the attitude of the guard on duty. 60 On May 12, 2009, the petitioner said he wanted to vote in the federal election, but was advised that he could not do so. Counsel had to intervene before he was ultimately taken out of his cell at about 6:00 p.m., and allowed to vote. 61 The petitioner said that while he was in Segregation 2, the unit was full and he said that several prisoners in that area appeared to suffer from mental ill- nesses, which caused them to do disturbing things — frequently screaming, ringing emergency buzzers and kicking the cell doors. 62 In mid May 2009, two inmates the petitioner knew were brought into the same unit. They were not allowed to speak to the petitioner and he understood that no one was permitted to speak to him. 63 On May 19, 2009 the petitioner was moved again, to cell 227 in the medical isolation unit. The petitioner said that he was told that this happened because one of his co-defendants, Cody Haevischer, had been moved into cell 210 for disciplinary reasons. 64 The petitioner said that the new cell was larger than cell 210, and had more amenities, including a shower and a radio that gets three stations. He was allowed to put pictures on the wall, and did not appear to be under video surveillance. There was a light switch that lowered but did not turn out the light. There was no microwave or television in the common area because, he was told, an Bacon v. Surrey Pretrial Services Centre McEwan J. 27

inmate had broken them. There was a washer and a dryer, so he was able to do his own laundry. Toward the end of May, he said the broken television was replaced. 65 The petitioner said that on June 12, 2009, a guard named Ms. Baker came to his cell. He said he showed her how cold his food was, and that later in the shift a microwave was placed in the common area. He said, however, that in early July a mentally-ill prisoner being housed in that area destroyed the television and microwave. They were not replaced. 66 The petitioner said that, while he was in the medical isolation unit, he was still not allowed to have a pillow, and that his cell was so cold that he was generally obliged to sleep in his clothing. He had been given a second mat for the bed, but the guards had told him that this was something they might take away at any time. He said his cell smelled of sewage, that his food continued to be cold, and that he was still obliged to eat beside his toilet. He said that there were no exercise facilities in medical isolation. The petitioner said he was still only allowed one hour out per day and that, when he was out, he was all by himself. The timing of these periods remained completely random and he was not told in advance when they would be. 67 The petitioner was refused a television or gaming system by Deputy Warden Phillips on June 1, 2009 on the basis that his placement within that cell was temporary. On June 18, 2009 two guards came to the petitioner’s cell with a television. Although he was initially told that he would have to move to cell 229, which is smaller and had no desk or shower, he was later told he could stay in cell 227 and have a television. 68 On June 19, 2009 a laptop was provided in the petitioner’s cell, but only for the purpose of reviewing the disclosure in his court case. 69 On August 17, 2009, Officer Baker told the petitioner that she was concerned that he was hardly coming out of his cell anymore. She told him that she and three other guards had written a letter saying that he should be able to take his time out in the gym. The petitioner was advised that there were three hours each day when there was no one was in the weight pit, and that they were offer- ing to take him there for one of his hours out so that he could get some exercise. 70 On August 18, 2009, the petitioner said that two managers he had never seen came and told him that he could go to the gym for half an hour twice a week. He was told this was just a trial. He said he has since been taken to the gym on a few occasions, although the schedule is not regular. He said he would, on those occasions generally be taken to the gym right after dinner. These improvements (the television and access to the gym) all followed interventions by the petitioner’s counsel and her advice to the institution that the matter of his treatment at SPSC would be going before the court. 71 The petitioner understands that he is classified as a “separately confined” prisoner rather than “segregated”. He was told that this meant that he had greater 28 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

privileges than a segregated prisoner, although he said that it was very difficult to tell the difference. Segregated prisoners only have one hour per day out of their cell while separately confined prisoners can have up to three hours, if there is time after all of the other prisoners have had their times out. He said that, in reality, there is rarely any time left and that he has rarely been offered additional time. He said that, in any event, because he must be alone on his hours out and has generally been denied the use of a telephone, or any means of exercise, any additional time out makes very little difference. 72 The petitioner said that the only significant difference between him and segregated prisoners is that after ten days in the segregation unit, he was allowed canteen privileges. He said, however, he had no access to a refrigerator and only had access to a microwave for a two-week period. This meant that his choices were limited as he was unable to buy food that needed to be preserved or heated. He said he could only use the microwave during the one hour he had out of his cell. The petitioner said that his unique privileges, after counsel’s interventions, are that he has access to a television and he had 40 minutes a week in the gym. 73 The petitioner has been treated differently from both separately confined and segregated prisoners in that they all have visits and telephone access and he does not.

(ii) Restrictions on Communications (1) Telephone 74 The petitioner said that since his admission to the SPSC, he has not been allowed to use a telephone to call anyone other than his legal counsel, through the staff. He was told of this restriction on his first night in SPSC but was not given a reason for it. 75 On April 16, 2009 the petitioner was advised by letter from Deputy Warden Phillips that “reasonable grounds” existed to believe that unrestricted telephone access might “endanger him or another person”. Mr. Bacon said that he was told the restriction would be lifted when it was established that there was no risk. 76 The petitioner said he was upset in mid-May 2009 because he had been told that the police were trying to manipulate his girlfriend and appeared to be trying to destroy their relationship. He was very anxious to talk to her and obtained a telephone card from another prisoner to phone out. 77 On May 27, 2009 the petitioner was advised that the administration knew that he had been making the unauthorized phone calls, and was told that he was making them look like fools to the police. He was threatened with a disciplinary infraction. The restrictions on his telephone access have never been removed. As at the date of his first affidavit September 10, 2009, he was still only permitted contact with his counsel. Bacon v. Surrey Pretrial Services Centre McEwan J. 29

(2) Visits 78 The petitioner said that on April 10 and 12, 2009, he was allowed visits from his girlfriend, and that on April 11, 2009 his mother visited. On April 17, 2009, a guard, Officer Gola, told him that his visits had been restricted to legal counsel only. The petitioner demanded to know why, and on April 21 Deputy Warden Phillips wrote that his visits were being restricted because “reasonable grounds exist to believe that allowing [him] access to community/public contacts may endanger other persons.” 79 On May 21, 2009, the petitioner said that he was advised by Officer Shergill that he had a visit from his lawyer. He said that when he went to the interview room in the segregation wing, Donald Adams and Derek Brassington, two police officers from the Integrated Homicide Investigation team, were waiting for him. He said that he left immediately, with Corporal Brassington pursuing him down the hallway, saying that they were there to talk to him about whether he could see his parents. 80 On May 22, 2009, the petitioner said that Assistant Deputy Warden McIn- tosh came to see him and told him that the police had given the correctional centre “permission” to allow his parents to visit, but no one else. He said he was also advised at that time that there would be no changes to his telephone access. Since that time, he has been allowed weekly visits with his parents. 81 On April 22 and 27, 2009, counsel for the petitioner had asked why there were such restrictions on his communications. 82 On April 29, 2009, counsel was advised that non-legal visits and telephone calls were being restricted because there were reasonable grounds to believe such conduct would “endanger “the petitioner or other persons”. 83 On May 27, 2009 Deputy Warden Phillips replied to counsel’s suggestion that these restrictions were contrary to law simply by reiterating that there were reasonable grounds to believe that the petitioner’s access to “other community/public contacts may endanger other persons”. 84 On June 11, 2009 Deputy Warden Phillips replied to a further request for grounds for such a belief by saying that the restrictions were reviewed weekly on the basis of information received from police agencies, correctional managers, and other relevant sources of intelligence. 85 On June 24, 2009, in reply to a counsel’s request that he outline the information that he had received and relied on in restricting telephone access and visits, Deputy Warden Phillips indicated that intelligence from third parties had to be kept confidential. He suggested that counsel make a Freedom of Information request. The text of that letter is as follows: I am writing in response to your letters of June 9th, June 12th, June 20th and June 22nd. 30 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

Separate Confinement As stated in the “Separate Confinement Notification” (copy attached), Mr. Bacon is being housed separately to ensure his own safety and the safety of others. Correction Branch is responsible for the safety and security of both the inmates in our custody and members of the community who may be threatened by those inmates To this end, it is important to restrict contact between alleged members of rival gangs, and between inmates and individuals who may either be threatened or harmed, or who may be used as a tool to threaten or harm others. With inmates such as Mr. Bacon, who is charged with a violent crime and allegedly involved in gang activity, we often maintain contact with the police in order to be kept informed about any circumstances that may have an impact on the safety of inmates or the safety of individuals in the community. Inmate Correspondence It is not “standard procedure” to read all incoming and outgoing inmate correspondence. However, it is standard procedure to examine mail to ensure it does not contain contraband. Further, security concerns relating to a particular inmate may mean that their mail is read in order to ensure there is no effort made to contact individuals who are the subject of a ‘no contact’ order or to intimidate members of the community, including potential witnesses. Section 14 of the Correction Act Regulations allows for the interception, monitoring and recording of inmate mail. I can advise that Mr. Bacon’s mail is routinely examined to ensure there is no contraband, his non-privileged correspondence is read and, on occasions where the correctional centre was concerned about the content of the letter, his mail has been copied before it was either sent or delivered to him. Those copies were provided to the RCMP to determine if there was a possible risk to members of the community. On no occasion has the centre failed to forward any of Mr. Bacon’s correspondence or withheld any correspondence from him. Video footage I can confirm that all video footage is recorded over after approximately 30 days. This would apply to cell 210; however I have not personally checked the video footage to determine if it has been recorded over. I have no reason to believe that the video footage still exists. Sources of Intelligence Any security intelligence from third parties must be kept confidential in order to protect those parties. While you may make a request (to Ministry of Public Safety and Solicitor General — BC Correc- tions Branch, PO Box 9284, Stn Prov Gvt, Victoria, BC V8W 9J7) pursuant to the Freedom of Information and Protection of Privacy Act, you will likely find that third party information or sensitive security information will be severed from the documents received.

(3) Mail 86 While the petitioner has been permitted to write and receive letters, his mail has always been read by the staff, specifically by the Assistant Deputy Warden on shift. Bacon v. Surrey Pretrial Services Centre McEwan J. 31

87 The petitioner said that his mail was frequently batched, such that some of it was quite old by the time he received it. He was also advised by some of his correspondents that they had sent him things which he said he has never received. He was particularly concerned that he was not receiving letters from his girlfriend. He began to notice that there were notes on his letters such as “clear to go to Bacon” or “may be forwarded”. He kept copies of one of these post-its notes and appended it to his affidavit. 88 Counsel for the petitioner wrote to Deputy Warden Phillips on June 27, 2009 asking for copies of all mail that had been provided to the RCMP and other police organizations. On July 3, 2009, Deputy Warden Phillips refused to provide such information for “security reasons.

(4) Communication with Counsel 89 With respect to communication with counsel, Deputy Warden Phillips’s letter of April 16, 2009, and a further letter from the respondent on April 29, 2009, stated that the petitioner had unlimited access to the telephones for legal and privileged calls. In practice, the petitioner says this meant that he could only call during his hour out, and because he had no control over when that might be, he could not ensure that counsel would be available to speak to him. Requests to speak to his lawyer have been denied until he has his hour out, which often comes after every other inmate has had his hour out. He has asked to be permitted to call his lawyer during the day, but has sometimes not been given an opportunity to do so until as late as 9:00 p.m. 90 The petitioner described the physical facilities available to make calls to legal counsel. He said he is taken to a room onto which other cells open so that there is no privacy. Corrections staff can hear his side of the conversation and he can hear what they are saying while he is on the telephone. He said that, as a result, there are many things he cannot discuss over the telephone with his counsel. He said that, even when his counsel comes to visit, the rooms they are given are not soundproof. 91 On July 28, 2009, the petitioner’s counsel wrote to Deputy Warden Phillips requesting a soundproof room in which to have Prof. Haney conduct an assessment. She was advised that there was no soundproof room because guards had to be able to hear what was going on. Counsel confirmed the content of this conversation in a letter dated July 28, 2009.

(iii) Medical Treatment (1) Rounds 92 The petitioner said that at about 9:00 a.m. each morning a group of correctional officers, consisting of an Assistant Deputy Warden, 8 to 10 guards and a nurse come around to conduct segregation rounds. One of them typically asks if there are any questions or concerns. Three days per week a doctor comes with 32 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

the group but stands back among the crowd. This obliges a prisoner to discuss any of his health concerns with a large number of people. The petitioner said that he suffers from asthma, and that during his first three weeks in segregation, two of the guards would not allow him to have his inhalers. 93 The petitioner said that on the third day he was in the segregation unit, a guard referred him to a staff psychologist because he was concerned that the petitioner appeared depressed. On April 11, 2009, the petitioner met a doctor, Jennifer Rice, who did not appear to have any particular sympathy for his situation despite the fact that he told her that in a number of ways that he found isolation difficult. The petitioner said that as far as he knew at the time no other attempts had been made to assess his psychological condition.

(2) Psychological Treatment 94 The petitioner said that in mid-May 2009, his anxiety would vary such that it was bad one day and better the next, but that by early June, it was getting pro- gressively worse. He said he was having episodes where he could not control his breathing and would lose concentration, and that he would start to panic, having attacks that would last for an hour as often as three times per day. 95 On June 16, 2009, the petitioner spoke to a Dr. Sharife who attended one of the segregation rounds. Dr. Sharife said he did not know much about anxiety, but he would have Mr. Bacon to see Dr. David Lawson, a staff psychologist. 96 A meeting with Dr. Lawson took place on June 18, 2009. The petitioner’s account of that conversation is as follows: 209. I met with Dr. Lawson on June 18, 2009 in the discipline hearing room. He told me that the interview was not recorded but that he was taking notes for his own memory and for use in further interviews. He said that he would only show them to someone else if ordered to by a court and that anything I say is confidential, so long as I do not confess to a crime or say that I am about to commit one. 210. He said that he heard that I was having problems with anxiety. He asked me when it occurs. I told him that it was in the night and the morning. He asked what happens when the anxiety comes on. I told him that I cannot sit still, my heart races, I feel like I have to control my breathing to keep my throat from closing. I become very irritable and rage consumes me. I could not have a conversation with someone when I am in one of these states. It ends when my heart rate slows down. Then I feel fatigued for a couple of hours. 211. He asked me if I was worried about my safety. I told him that I had no worries whatsoever for my safety in prison. 212. He asked if I knew what triggered my anxiety. I told him the anxiety became a problem in January 2009 when the police began their campaign against me in earnest. I explained what I had gone through and how difficult it was to be cut off from the world because the police had made me the target Bacon v. Surrey Pretrial Services Centre McEwan J. 33

of all this public fear. When I was placed in the Segregation Unit and denied visits and telephone calls, I realized how much power the police had. At this point in the conversation, I became quite upset. I told him how hard it is for me to be restricted in my visits and telephone calls. I expressed the feelings of frustration and powerlessness that the police control causes me. I told Dr. Lawson that I was not in solitary confinement because of gang issues because there were Red Scorpions and U.N. Gang members in this facility on separate living units. I said that I thought that the police were calling the shots in an effort to break me. 213. Dr. Lawson said that he did not believe that the police had anything to do with my conditions of confinement. He said that Steve Phillips was a good man and that the corrections staff at Surrey Pretrial would be offended by the very suggestion that they would allow the police to dictate how a prisoner was treated. He said that he had never heard of such a thing since the facility opened. 214. I became quite angry. I said that I felt that he did not care about my anxiety and was just wasting my time. 215. He told me that anxiety is triggered when the “fight or flight” instinct is engaged but the person is powerless and can neither fight nor flee. He said that I was obviously a fighter but, because I was powerless to fight, I was suffering anxiety. 216. He did say that he would look into the allegations that I had levelled and see what he could do about lessening the restrictions on my visits and telephone calls. ... 97 The petitioner had a second meeting with Dr. Lawson on June 25, 2009. The Petitioner’s account of that conversation is as follows: 217. On June 25, 2009, I met with Dr. Lawson again in the discipline hearing room. He said that our meeting would be brief. He said that he could tell that I was not happy when our last meeting ended. He told me that I was right. He said that he had spoken with Deputy Warden Phillips who confirmed that he had no control and that the police were “running the show”. Dr. Lawson said that he had never seen something like this happen before and that was why he did not believe me when we met previously. He said that he wanted to tell me what he found out so that I would not start thinking that I was crazy. He said that he thought the police were controlling my conditions of confinement to protect at ongoing investigation. He said that the RCMP had poured all of its resources into this investigation and they were not going to let anything compromise it. He said that Deputy Warden Phillips told him that the police said that it would be another 8-10 months before I could have visits and telephone contact and that I would never be moved off the Segregation Unit. He encouraged me in my efforts to obtain an independent psychological evaluation. He said that I will have to take it to court because, otherwise, nothing will change for me until the police say that it does. ... 34 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

218. I am advised by my counsel that she met with Dr. Lawson on July 14, 2009 and he essentially confirmed the details of our meetings as set out above. 219. On June 29, 2009, Ms. Eldred wrote to Deputy Warden Phillips requesting copies of the notes that Dr. Lawson took during our meetings. ... 220. I am advised by my counsel that difficulties arose in the process of obtaining Dr. Lawson’s notes. On July 20, 2009, Ms. Eldred wrote to Dr. Lawson, appealing to him for his understanding and assistance in obtaining disclosure of his records of our meeting in accordance with section 6.12 of the College of Psychologists of British Columbia Code of Conduct. ... 221. I am further advised by my counsel that Dr. Lawson telephoned her on July 21, 2009 and advised her that he had destroyed the notes that he had taken during our meetings after he made his entries into my Client Profile, i.e. my electronic health care records. 98 The petitioner protested on July 31, 2009 that he did not wish to discuss his health concerns with groups of people on the segregation rounds. He was advised that he could not see his doctor alone because that was against policy. Later in the day, Officer Baker, said she would get Dr. Sharife. She arranged for Dr. Sharife and the petitioner to speak in private. Dr. Sharife apparently did not feel confident in treating the petitioner’s anxiety so the petitioner asked for a referral to Dr. Eaves, a psychiatrist. He also told Dr. Sharife about headaches he had been having. Dr. Sharife told him that he would order blood work and gave him prescription for nortriptylene. 99 As of September 10, 2009 (the day he swore his first affidavit), the petitioner had not seen Dr. Sharife again, the blood work Dr. Sharife said he would order had not been done, and he had not seen Dr. Eaves. 100 On July 28, 2009, through the efforts of his counsel, the petitioner arranged to see Prof. Haney for an independent psychological assessment. The petitioner said that there was a flurry of cleaning and activity in the segregation unit on July 28, and that one of the most disruptive prisoners was removed from the unit. Two days after Prof. Haney’s visit, the prisoner was brought back. Prof. Haney spent two hours with the petitioner and then toured the unit.

(3) The Petitioner’s Subjective Condition 101 The petitioner said that he does not believe that he can maintain his sanity in the present conditions. He feels that the isolation of his confinement is destroy- ing him. He said that the days all seem the same, that he feels powerless, and that there are some days when he has difficulty controlling feelings of rage. He said he is not sleeping well. He said he feels the concrete through his mat, and that if he sleeps on his side, his hands and shoulders go numb — which frequently wakes him up. When he lies on his bed during the day, his back is constantly in pain — the result of pre-existing injuries that are not being treated. He said he is eating badly because he has no access to a refrigerator or cooked food. Bacon v. Surrey Pretrial Services Centre McEwan J. 35

He said he has problems with his vision which prevents him from being able to read for any length of time without getting a severe headache. 102 The petitioner said he feels that his memory is deteriorating. He said he has problems focusing and loses control of his thoughts. He said he finds himself daydreaming and has difficulty concentrating. He said he has difficulty following through with any tasks such as letter writing. He said he can only write a few pages and then must put his writing away. He said he often finds on re-reading that the letters make no sense. He said that he sometimes finds himself laughing at nothing. 103 He said that in segregation, with the exception of the time he took to shower, he was locked down effectively 24 hours a day. He was confined in a cell where the light was never turned off, and during the time he was in a cell with a video monitor he knew he was constantly being filmed. 104 In medical isolation, the petitioner has a shower in his cell, but there is nothing for him to do on his hour out, once he has taken out his garbage and obtained clean clothes. He said that he finds himself not wanting to go out of his cell at all. He said he is now uncomfortable around other people. He said he does not want to talk to guards. He said he starts to panic when he hears keys in his door. He said he does not even want to meet with counsel because he is forced to think about the situation he is in. He said this makes him angry and that it may take him hours to calm down afterwards. 105 The petitioner said he fears that if these conditions persist, he will not be in any frame of mind to face his trial. He said he could serve whatever time he must in ordinary remand, but that he cannot tolerate the isolation the respondent has imposed on him. He believes that the police have created an unwarranted aura of fear about him and said that he has no concerns for his personal safety if he were on a regular living unit. Guards have told him that he is the first prisoner that they have seen at Surrey Pretrial who has no telephone calls except to counsel, and is restricted to parental visits only. He said that some are sympa- thetic to him, but that some seem to take pleasure at how he is being treated. He said he is constantly being told to get used to the situation because it is not going to improve. He believes that the respondent is part of a conscious effort to break him, in collaboration with the police.

VI The Response to the Petitioner’s First Affidavit 106 The petitioner’s affidavit sworn September 10, was answered by an affidavit of Deputy Warden Phillips, sworn September 30, 2009. Deputy Warden Phillips said he has been a Corrections Officer in the Corrections Branch since March 1986. The Corrections Branch is under the legal authority of the Ministry of Public Safety and Solicitor General. He is one of two Deputy Wardens at the SPSC and he has held the position since February 2006. He said that in his role as Deputy Warden of Operations, he has overall responsibility for the safety and 36 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

security of the inmates and staff, as well as a mandate to uphold public safety. His job description was tendered: The Deputy Warden manages all security systems and programs for a secure dual gender correctional centre having an operational capacity of up to 238 sentenced and/or remanded and immigration detained male and female adult offenders. This position has a central role in daily safeguarding the public, staff and inmates, consistent with a key objective of the Ministry. The Dep- uty Warden — Operations supervises correctional staff, directs observation and intervention procedures and evaluates the impact of any circumstance or situation that might affect the safety and security, taking corrective action as necessary. The Deputy Warden develops, applies and enforces appropriate policies and procedures for staff and inmate placement, supervision, control and security, and takes a leading role in the investigation of inmate offences, the initiation of formal inmate disciplinary proceedings, and the implementation of formal sanctions. The position develops and implements security programs and policies in the context of current legislation, operational procedures, and the objectives of a wide range of justice-related investigative, regulatory and interest groups. The Deputy Warden — Operations manages and maintains operational effectiveness, readiness and accessibility of all facilities and equipment in the Centre, including buildings and security related communications and computer systems...... The Deputy Warden — Operations maintains a highly controlled internal environment while developing and improving security programs and services that integrate internal resources and agencies. The Deputy Warden takes a leading role in working collaboratively with municipal police; RCMP; police from across Canada and in the USA; justice-related organizations, government agencies; and community groups. [Emphasis added] ..... The position establishes productive internal and external links and working relationships to provide the required levels of security and to integrate cross- agency programs and activities: ..... • Local police forces, municipalities, RCMP, police in other provinces and in the USA to: collaborate on police investigation of persons in custody, investigation of incidents at the Centre, drug interdiction and contingency plans for major disturbances, escapes, or work stop- pages; maintain/coordinate security and safety with the Surrey RCMP, Surrey Provincial Courthouse and Municipal authorities. [Emphasis added] 107 Deputy Warden Phillips explained that the incarceration of members of rival crime groups in correctional centres presents unprecedented logistical challenges Bacon v. Surrey Pretrial Services Centre McEwan J. 37

for the staff. He said that “[v]arious intelligence sources” confirm that alliances between and memberships within these groups frequently change, which places an increased demand on staff, who must be aware of the possibility that they may be caught in the middle of an altercation or attack. He said members of such gangs may become involved in violence towards others. He relied specifically on a memorandum dated April 27, 2009 from Superintendent Robin, an RCMP officer in charge of the Integrated Homicide Investigation Team. This memorandum includes the following observations: Intelligence gathered throughout this investigation indicates that BACON, HAEVISCHER, and Johnston are at risks from a number of rival crime groups, including several murder contracts that are still believed to be outstanding. Due to the fluid membership of these crime groups, it is difficult to identify who are allies and who are enemies. It is also known that Bacon/Red Scorpion crime group itself is fractured with members turning on each other. Investigators believe that risk of violence to BACON, HAEVISCHER and JOHNSTON by unknown rivals is high. Members associated to the Red Scorpion crime group have attempted to locate witnesses, through surveillance and contacts. Investigators are concerned that unrestricted access to visitors and phone will allow Bacon, Haevischer and Johnston to contact witnesses, to intimidate and potentially harm them. This matter is still under investigation and some witnesses and family members still need to be located, threat assessments conducted and measures to protect them put in place. This situation will continue to be monitored and we will advise of any changes in the assessed level of risk. Please contact either Sgt. Joe SOBO- TIN or myself if you wish further clarification. [Emphasis added] 108 Deputy Warden Phillips described the process of behind the petitioner’s initial placement as follows: 18. Mr. Bacon was assessed upon admission by Correctional Supervisor Smart to determine appropriate placement for him within the correctional centre. The assessment indicated a possible risk to Mr. Bacon and other inmates; therefore Mr. Bacon was placed on separate confinement pursuant to Correction Act Regulations (“CAR”) s. 17. He was assigned to cell 206 in the segregation unit. 19. On April 7, 2009 Mr. Bacon’s placement was reviewed by A/Assistant Deputy Warden Crum. A/ADW Crum stated “Inmate BACON, you are being confined separately due to the high profile of the nature of your case and the inherent risk this may pose to yourself and the management of this facility. This placement will be reviewed formally on April 10, 2009”. ... 20. On April 8, 2009, members of the RCMP and the Sheriff’s Integrated Threat Assessment Unit attended SPSC to meet with me and the Deputy Wardens of Operations from NFPC and Fraser Regional Correctional Centre (FRCC). Some persons attended by teleconference. The purpose of this 38 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

meeting was to discuss Mr. Bacon, C. Haevischer, and M. Johnston and to provide us with information that could assist in managing the persons and the rival gang members also in custody in these centres. 21. On April 8, 2009 it was agreed that weekly conference calls would occur between the Deputy Wardens of Operations from the affected correctional centres and members of the RCMP, sheriff’s integrated threat assessment unit, and Crown Counsel’s office. 22. The purpose of these calls was to exchange and discuss current intelligence regarding suspected gang members within the correctional centres and to review inmate confinement restrictions and conditions. 23. Weekly calls commenced April 15, 2009 and continue to this day. Our most recent teleconference occurred today, Wednesday, September 30, 2009 at approximately 10:00 a.m. until 10:16 a.m. Typically these calls range in duration from 15 to 45 minutes. [Emphasis added] 109 Deputy Warden Phillips said that “[at] no time since Mr. Bacon’s admission to SPSC have I been in possession of facts that would lead me to believe he was suitable for placement within the general population.” The Deputy Warden said that at all times since the petitioner’s admission, he has regularly been advised of facts that give rise to significant safety concerns directly affecting the petitioner. He identified “media reports” as the principal source of such concerns. The 15-day “reviews” of the petitioner’s separate confinement required by statute were prepared without hearing from him or giving him any opportunity to Bacon v. Surrey Pretrial Services Centre McEwan J. 39 respond or to make any case for himself. These “paper” reviews are markedly repetitive: REASONS IN SEPARATE CONFINEMENT NOTIFICATIONS Date Decision-maker Statutory Reasons Authorization April 7, 2009 Crum, A/ADW s. 17(1)(a)(iii) — High profile na- is likely to jeop- ture of the case ardize the man- and the inherent agement, risk this may operation of se- pose to Mr. Ba- curity of the fa- con or the man- cility agement of the facility. April 10, 2009 Oates, A/ADW s. 17(1)(a)(iii) — High profile na- is likely to jeop- ture of the case ardize the man- and the inherent agement, risk this may operation of se- pose to Mr. Ba- curity of the fa- con or the man- cility agement of the facility. April 24, 2009 Ross, ADW s. 17(1)(a)(iii) — Media identifies is likely to jeop- him as a promi- ardize the man- nent gang mem- agement, ber. Ensuring operation of se- others do not at- curity of the fa- tempt to get in- cility volved in gang violence by harming him. May 6, 2009 Crum, A/ADW s. 17(1)(a)(iv) — Media continues is likely to be at to identify him as risk of serious a prominent gang harm s. member. Ensuring 17(1)(a)(iii) — is others do not at- likely to jeopard- tempt to get in- ize the manage- volved in gang ment, operation violence by harm- of security of the ing him. facility 40 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

Date Decision-maker Statutory Reasons Authorization May 20, 2009 Price, ADW s. 17(1)(a)(iv) — Media continues is likely to be at to identify him as risk of serious a prominent gang harm s. member. Ensuring 17(1)(a)(iii) — is others do not at- likely to jeopard- tempt to get in- ize the manage- volved in gang ment, operation violence by harm- of security of the ing him. facility June 2, 2009 Ross, ADW s. 17(1)(a)(iv) — Circumstances re- is likely to be at main the same risk of serious and no informa- harm s. tion has come 17(1)(a)(iii) — is forward to war- likely to jeopard- rant change. En- ize the manage- suring others do ment, operation not attempt to get of security of the involved in gang facility violence by harming him. June 16, 2009 Webster, ADW s. 17(1)(a)(iv) — Circumstances re- is likely to be at main the same risk of serious and no informa- harm s. tion has come 17(1)(a)(iii) — is forward to war- likely to jeopard- rant change. En- ize the manage- suring others do ment, operation not attempt to get of security of the involved in gang facility violence by harming him. June 30, 2009 MacIntosh, s. 17(1)(a)(iv) — Media continues A/ADW is likely to be at to identify him as risk of serious a prominent gang harm s. member. Ensuring 17(1)(a)(iii) — is others do not at- likely to jeopard- tempt to get in- ize the manage- volved in gang ment, operation violence by harm- of security of the ing him. facility Bacon v. Surrey Pretrial Services Centre McEwan J. 41

Date Decision-maker Statutory Reasons Authorization July 13, 2009 Oates, A/ADW s. 17(1)(a)(iv) — Media continues is likely to be at to identify him as risk of serious a prominent gang harm s. member. Ensuring 17(1)(a)(iii) — is others do not at- likely to jeopard- tempt to get in- ize the manage- volved in gang ment, operation violence by harm- of security of the ing him. facility July 27, 2009 MacIntosh, s. 17(1)(a)(iv) — Media continues A/ADW is likely to be at to identify him as risk of serious a prominent gang harm s. member. Ensuring 17(1)(a)(iii) — is others do not at- likely to jeopard- tempt to get in- ize the manage- volved in gang ment, operation violence by harm- of security of the ing him. facility August 10, 2009 Parks, A/ADW s. 17(1)(a)(iv) — Charges are still is likely to be at high profile. Reg- risk of serious ular living unit harm would bring risk of serious harm. August 28, 2009 Ross, ADW s. 17(1)(a)(iii) — Circumstances re- is likely to jeop- main unchanged. ardize the management, operation of security of the facility September 7, Webster, ADW s. 17(1)(a)(iii) — Circumstances re- 2009 is likely to jeop- main unchanged. ardize the management, operation of security of the facility 42 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

Date Decision-maker Statutory Reasons Authorization September 22, Phillips, DW s. 17(1)(a)(iii) — Circumstances re- 2009 is likely to jeop- main unchanged. ardize the management, operation of security of the facility 110 Deputy Warden Phillips annexed 186 pages of newspaper reports and internet postings concerning the petitioner and others allegedly involved in gang activities to his affidavit, apparently in the expectation that this material ren- dered the rationale for the respondent’s treatment of the petitioner self-evident. 111 Deputy Warden Phillips confirmed that the petitioner was limited to staff- dialled telephone calls to his legal advisors. The reason he offered is that “it was unknown at the time of his admission whether or not uncontrolled access to the telephone system could present any danger to any persons” (emphasis added). The Deputy Warden says that the petitioner was able to contact his lawyer a minimum of once per day. He attached the petitioner’s personal telephone log to his affidavit to demonstrate this, but it also confirmed the petitioner’s assertion that his opportunities to call out of the institution are entirely random, and would make setting any kind of appointment impossible. 112 Deputy Warden Phillips said that he frequently monitored telephone calls and noted that SPSC records all telephone calls made by an inmate are recorded on a database (the inmate call control system (ICCS)). Although he must have known at the time he made this assertion that this included the petitioner’s privileged calls, he did not disclose this at the time of his affidavit. This will be addressed later in these reasons. 113 Deputy Warden Phillips said that the petitioner made a considerable number of telephone calls to his two brothers and his girlfriend in the early days despite being under restrictions. He suggested that these were calls placed on the petitioner’s behalf by others. He said that on May 26, 2009, it was discovered that the petitioner was bypassing telephone restrictions by using another inmate’s telephone access card. The Deputy Warden says that the petitioner called his girlfriend in this manner on 12 occasions. He then outlined the steps that were taken to prevent the petitioner from talking to anyone but his lawyer. He said that the restriction to legal telephone calls continued to the date of his affidavit “based on information from the RCMP regarding the risk and safety to Mr. Ba- con and members of the public.” 114 Deputy Warden Phillips reported that he monitored who deposited money on behalf of the petitioner (for the purpose of purchasing products from the canteen) and he outlined those contacts. Bacon v. Surrey Pretrial Services Centre McEwan J. 43

115 Deputy Warden Phillips confirmed that the petitioner was not permitted a pen in his cell until May 5, 2009. The rationale he offered was that within the segregation area inmates are usually not permitted to have pens as they have the potential to jeopardize the safety and security of the correctional centre. He said that the petitioner’s access to written correspondence had not been restricted. He acknowledged that all non-privileged incoming and outgoing correspondence related to the petitioner had been monitored. He said that to the best of his knowledge, no correspondence had been withheld from the petitioner. He did not respond to the concern raised in the petitioner’s affidavit as to which of the correspondence had been forwarded to the RCMP. 116 Deputy Warden Phillips noted that the petitioner had been permitted visits with his girlfriend on April 10 and 12, 2009, and with his mother on April 11, 2009, but that from April 14, 2009 on, he was restricted to lawyer visits only on the basis that there were “reasonable grounds to believe that unrestricted visits may endanger Mr. Bacon or another person” [emphasis added]. He noted that on May 22, 2009 visiting restrictions were amended to permit parental visits. He did not address the concerns about the police involvement outlined in the petitioner’s affidavit. He said that “[t]hese restrictions are in place based on information from the RCMP pertaining to the risk and safety of the public.” 117 Deputy Warden Phillips acknowledged that visits from lawyers occur in a general office in the segregation area and that the rooms are not soundproof. He suggested that his staff allows as much privacy as is practicable but that they must monitor the meetings visually. 118 Deputy Warden Phillips did not contradict the petitioner’s description of his time out of his cell. He said that inmates in separate confinement were provided a minimum of one hour of time out, and that additional time may be provided, on request, if it is operationally feasible in light of other inmates’ “ablution” needs. He did not, in any way, contradict the petitioner’s assertion that he had rarely been offered additional time out because there was rarely any time left after other prisoners had had their time out. 119 Deputy Warden Phillips did not address any of the petitioner’s specific complaints about cleanliness. All he said was, “I am unaware of any complaint made by Mr. Bacon arising from the cleanliness of his cell and the SPSC until his concerns were raised through the media.” He certainly did not positively assert that the conditions in the cells were other than as described, focussing instead on the complaint, rather than on the substance of the allegation. 120 Deputy Warden Phillips did not specifically answer the petitioner’s complaints that the guards rarely brought clothing his size except to note, obliquely, that inmates are provided clean clothing and bedding upon request, and that “[a]n inmate may be temporarily denied clean bedding and clothing due to shortages, if other inmates are hoarding items, or if the inmate requires oversize clothing that is not commonly stocked.” 44 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

121 Deputy Warden Phillips said that healthcare is provided in the institution under contract. He said an inmate’s medical information is confidential as between the inmate and the healthcare staff and that correctional staff do not have access to that information. He also said the inmates at SPSC are not permitted to be alone with healthcare staff for safety and security reasons. He did not specifically address the petitioner’s complaint about the nature of the rounds. 122 Deputy Warden Phillips noted that on June 18, 2009 the petitioner was provided with a television in his cell, and on August 18, 2009 he was given approval to enter the south yard weight area twice per week, noting that in each case he is the only inmate from the segregation area that has been accorded those “privileges”. He confirmed that the petitioner is not notified of the times he will be allowed to go to the gym for security reasons. In other words, he again confirmed that petitioner’s times out are random. 123 Deputy Warden Phillips closed his affidavit with an assertion that, since the petitioner was admitted to SPSC in April 6, 2009, he has maintained frequent communication with Deputy Wardens of Operations from affected correctional centres, members of the RCMP, and the Sheriff Services’ Integrated Threat As- sessment Unit. He said that information from the RCMP indicates a high risk to the petitioner from rival crime groups including several murder contracts. He indicated that “the RCMP has significant concern that unrestricted access to visitors and the telephones will allow Mr. Bacon to contact witnesses, to intimidate and potentially harm them.” He said that at no time known to him has the threat to the petitioner other inmates, or members of the public, decreased. 124 Deputy Warden Phillips annexed a letter dated September 30, 2009 from Superintendent John Robin of the RCMP’s Integrated Homicide Investigation Team (IHIT) to his affidavit. Portions of this include: [T]he following recommendations or observations were made by police with respect to the pretrial detention of James BACON: 1. If James BACON were to be introduced into the general population, it would open unrestricted conduits for him to send and receive information through other inmates. As a result, limiting outsiders’ contact with James BACON through phone and visitation restrictions would be ineffective because BACON could send and receive messages through other inmates whose phone and visitation privileges are free. This is particularly a concern with James BACON’S anticipated efforts to intimidate or dissuade witnesses or to broadcast to other members of the Red Scorpions some of the intelligence he has derived from the disclosure. 2. BACON has shown that he is keeping track of potential witnesses or people who have information which could be harmful to him. As a result, unfettered access to other inmates will allow him to pursue information on potential witnesses outside of jail as well as to send direction to some of his subordinates who are on the outside. Bacon v. Surrey Pretrial Services Centre McEwan J. 45

3. With respect to Point 6, potential witnesses in the Surrey Six murder investigation are currently in custody: Releasing James BACON into the general population will enhance his ability to ferret out information on these two individuals, to further investigate and potentially locate them, allowing him to further his efforts to intimidate or deter these witnesses. 4. As per investigative information, Jamie BACON was one of the leaders of the Red Scorpions and, as such, had many followers and admirers both within and outside of his group. If BACON were released into the general population, BACON may not only upset the current balance which may exist in his facility, it is more than likely there would be a spike in violence as BACON deals with his incarcerated enemies and while he regains, through inmates he controls, the kind of power BACON was accustomed to while on the outside. In other words, to release BACON into the general population will result in that institution importing many of the gang politics and ri- valries which exist on the outside, as evidence by violent acts between RS and other groups, including IS, and UN as they have been reported on by the media. As you understand, the information which serves as the underpinning to these points, observations, and recommendations, is currently being reviewed by our investigators and by Crown Counsel for disclosure in the matter of the Surrey six murder case. As such, I am unable at this time to release much of that information until such time as Crown Counsel has properly assessed this matter and, it is likely, it may not be releasable at all at this time. I have included a disc of media reports which concern coverage, in part, of the BACONS, of the Surrey six murder investigation developments, and of the Red Scorpions. This is by no means an exhaustive list of such media reports and I include it only in the hopes that it may be helpful in making a further determination on the in-custody risk which James BACON poses. [Emphasis added] 125 It is apparent that Deputy Warden Phillips received this letter and the 186 pages of media reports that came with it just before he signed his affidavit and annexed the material to it. 126 Deputy Warden Phillips did not significantly contradict any of the particu- lars of the treatment the petitioner outlined in his first affidavit. The petitioner’s account appears, therefore, to be substantially true.

VII Subsequent Affidavits on Matters Arising (a) The Petitioner’s Second Affidavit 127 The petitioner deposed that on Thursday, September 24, 2009, four days after he swore his first affidavit, a correctional officer entered his cell and identified himself as Deputy Warden Phillips. He said the person made a comment 46 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

about finally meeting him. He said the person handed him “a Separate Confine- ment Notification” dated September 22, 2009, and said something to the effect that “as you can see, there’s no change and I don’t see there being any changes.” He said that the person pointed out that the petitioner had been given a television and that he was being allowed to go to the gym. The petitioner said he replied only to say that the matter was going to court and he did not want to discuss it. 128 The petitioner responded to Deputy Warden Phillips’s suggestion that he had breached his restrictions respecting telephone calls by saying that he had never been advised of them in writing, but only in conversation with a guard. He acknowledged that in the early days of his confinement, he arranged for other prisoners to telephone on his behalf, frequently in front of guards. He said that they had told him that there was nothing they could do to stop others from making calls for him. He said he was told it was not an institutional charge, and he was never charged with an institutional offence for doing it, nor were those who helped him. He said Deputy Warden Phillips’s affidavit is the first time that anyone from the SPSC had directly taken issue with his telephone use. 129 The petitioner said that he knew that telephone calls in the segregation unit were monitored and suspected that most, if not all, calls to his family were intercepted. He stopped making the calls through other inmates because it became clear that it was an unsatisfactory way to communicate. 130 The petitioner answered the Deputy Warden’s assertion that he cannot be told in advance when he is going to the gym by saying that there are no inmates around when he goes to the gym because it coincides with the lock down that goes with the guards’ dinner break. He said that on two occasions since he filed this application, guards have told him to put his dinner aside because he is going to the gym, only to renege later. The petitioner said he no longer asks when he will be taken to the gym. He did not go between September 10th and 19th, 2009, then he was taken two days in a row, and then another 10 days went by followed by two days when he was allowed to go, just before his second affidavit. 131 In answer to the Deputy Warden’s assertion that healthcare is available to all inmates upon request, the petitioner said that he had yet to see the psychiatrist, Dr. Eaves, to whom Dr. Sharife had referred him on July 31, 2009, nor had he any of the blood work done or his vitals taken, as he had been told he would. 132 The petitioner’s reply also outlines a series of difficulties described in correspondence beginning on April 22 and 27, 2009, and continuing into August 2009, seeking written reasons for his ongoing confinement in segregation, and his medical records. These communication difficulties appear to be accurately described in a letter dated July 22, 2009, from the petitioner’s counsel to Vicki Hudson, the Manager, Information Access Operations, Ministry of Public Safety and Solicitor General: Since late April, I have been involved in the process of attempting to obtain documents regarding Mr. Bacon and his confinement at Surrey Pretrial Ser- Bacon v. Surrey Pretrial Services Centre McEwan J. 47

vices Centre. To my mind, this should not have been complicated. This is Mr. Bacon’s personal information. Surely, Mr. Bacon, an individual who you are lawfully obligated to treat as an innocent man, would be granted ready access to his own prison records. Instead, we have been met with a barrage of bureaucratic red tape, contradictory information, and unfulfilled promises. We have been told that our requested documents were being forwarded to us, only to find that they were not. I now understand from your conversation this afternoon with Brent Anderson of my office, that request processes that were adequate in April, are no longer honoured in July. As with each problem that we have encountered in this process, the answer is to go back to the beginning and start again. This response neither promotes free access to information nor protects anyone’s privacy except, perhaps, the government. To avoid any confusion, pursuant to section 5 of the Freedom of Information and Protection of Privacy Act, on behalf of James Kyle Bacon, I request the following: All notes, documents, or any other records, whether handwritten, hardcopy, electronic or in any other form, regarding the confinement of James Kyle Bacon at Surrey Pretrial Services Centre including but not limited to: 1. All notes, documents or any other records of communications, including any attachments or enclosures that may also have been conveyed, between any person employed to work at the Surrey Pretrial Services Centre, or any agent or contractor thereof, and any member of law enforcement regarding Mr. Bacon and his conditions of confinement; 2. All notes, document or any other records created by Corrections Officers regarding Mr. Bacon, their interactions with him, and his conditions of confinement, including his client log; and 3. All notes, document or any other records created by health care personnel regarding Mr. Bacon, their interactions with him, and his conditions of confinement, including his client profile. 133 Further difficulties are outlined in correspondence from the petitioner’s counsel to Dr. David Lawson on July 20, 2009: When we met on July 14, 2009, you told to me that you could not provide prisoners with copies of the records that you make regarding your interactions with them. I note, however, that section 6.12 of the College of Psychol- ogists of British Columbia Code of Conduct requires that a “registrant must provide access to and permit the reproduction and release of confidential information about a client to that client, when requested, unless there is a significant likelihood that disclosure of the information would cause: a) a substantial adverse effect of the clients’ physical, mental or emotional heath; or 48 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

b) harm to a third party.” Neither of these exceptions applies in Mr. Bacon’s circumstances. I have been through the Freedom of Information process twice, seeking to obtain records of Mr. Bacon’s medical and psychological care while in custody at Surrey Pretrial Services Centre. To date, I have only been able to obtain his intake records — not because my access has been denied to Mr. Bacon’s additional records, but because they have not been produced to In- formation Access Operations for assessment. The process is inefficient and plodding. It does nothing to ensure the sort of access that the Code of Con- duct recognizes as an inherent right of the client in relationship to his psychologist. As you know, we are seeking to obtain an independent psychological assessment of Mr. Bacon’s condition. These records are very important to the accuracy and thoroughness of that process. I fear that I am dealing with people who do not understand and are not bound by the sort of ethical codes to which we are subject. As one professional to another, I ask that you act to mitigate the harm that is being caused to Mr. Bacon by the institutional malaise that appears to be thwarting Mr. Bacon’s access to his own mental health records. Please make every reasonable effort to locate and disclose to me any records that you have made of your interactions with Mr. Bacon while he has been at Surrey Pretrial. 134 Dr. Lawson’s response on July 21, 2009 was that he had destroyed his notes after making entries in the “client profile”. 135 The petitioner’s counsel also communicated directly with the respondent regarding disclosure of records, in terms similar to those sent to Ms Hudson: Since late April, I have been involved in the process of attempting to obtain documents regarding Mr. Bacon and his confinement in your facility. To my mind, this should not be complicated. This is Mr. Bacon’s personal information. As I understand it, Surrey Pretrial is freely sharing Mr. Bacon’s personal information with the police. Surely, Mr. Bacon, an individual who you are lawfully obligated to treat as an innocent man, would be granted ready access to his own prison records. Instead, we have been met with a barrage of bureaucratic red tape, contradictory information, and unfulfilled promises. Request processes that were adequate in April, are no longer honoured in July. Documents have been destroyed. To avoid any confusion, pursuant to section 5 of the Freedom of Information and Protection of Privacy Act, on behalf of James Kyle Bacon, I request the following: All notes, documents, or any other records, whether handwritten, hardcopy, electronic or in any other form, regarding the confinement of James Kyle Bacon at Surrey Pretrial Services Centre including but not limited to: 1. All notes, document or any other records created by Corrections Officers regarding Mr. Bacon, their interac- Bacon v. Surrey Pretrial Services Centre McEwan J. 49

tions with him, and his conditions of confinement, including his client log; and 2. All notes, document or any other records created by health care personnel regarding Mr. Bacon, their interactions with him, and his conditions of confinement, including his client profile. In my opinion, the destruction of any documents regarding Mr. Bacon is contrary to the Freedom of Information and Protection of Privacy Act and I ask that you take action to insure that such practices cease immediately. As I have been advised today by Vicki Hudson, Manager, Information Ac- cess Operations, a request for information under the Freedom of Information and Protection of Privacy Act only includes documents up to the date of the receipt of the request, you can expect to receive letters similar to this on a daily basis. I am disappointed that your facility has not chosen to approach the matter of Bacon’s access to his prison records with more cooperation and candor. 136 A review of the correspondence suggests that this was an accurate characterization of the manner in which the petitioner had been dealt with respecting his records. These communications are set out in detail in the petitioner’s second affidavit. 137 Notwithstanding counsel’s repeated requests, ten of the exhibits attached to the Deputy Warden’s first affidavit included information that had never previously been disclosed, and some that had previously been redacted.

(b) Deputy Warden Phillips’ Affidavit #2 138 In his second affidavit, Deputy Warden Phillips amplified his response to the petitioner’s first affidavit and responded to the affidavit by Mr. Bacon’s mother, Susan Anne Bacon, sworn August 28, 2009. 139 Mrs. Bacon’s affidavit recounted, from her perspective, a number of events following her son’s arrest and her attempts to visit with him. The significant parts of the affidavit include the following: 8. On April 11, 2009, the first Saturday that Jamie was at Surrey Pretrial, I visited with him for an hour. There was no one in any of the other visiting booths and I was told that I would only be allowed to visit Jamie when no one else was having visitors. 9. My husband and I went later that next week to drop off money and letters for Jamie. We asked the guard on the reception desk if we could go buy some magazines for him. He said that if we went to buy them now, Jamie would have them that afternoon. We came back about an hour later with a variety of magazines, signed them in, and left them with the guard. 10. Sometime shortly after this, we were advised that we would not be allowed to visit Jamie anymore. 50 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

11. On April 16, 2009, my husband and I meet with Ms Annesty and Mr. Stanton at Surrey Pretrial to discuss Jamie’s conditions of confinement. We saw the guard who we had left the magazines with. He told us, quite sympa- thetically, said that Jamie was not being handled like other inmates and we could not leave the magazines for him. He apologized, saying that he did not know this when he told us that it would be OK. He returned the magazines to us. In our meeting with Ms Annesty and Mr. Stanton, they advised us that Jamie was being denied telephone access and visit indefinitely. When we asked why, they told us that there were “safety issues”. They said that we could write to the Warden with any concerns that we might have. 12. On April 22, 2009, we wrote to Warden Hawboldt asking her to review our son’s situation. I attach as Exhibit “A” to this my Affidavit a copy of my letter to Warden Hawboldt dated April 22, 2009. [reference to exhibit deleted] 13. The Warden responded that she could not answer any of our questions without a privacy release from Jamie. By this point, we had retained counsel for Jamie to address his conditions of confinement. We did not continue dealing with official at Surrey Pretrial ourselves as we did not believe that it was going to be productive. 14. In mid April 2009, the police contacted Jamie’s girlfriend and said that they needed to meet with her because they had a warning for her. She asked me to come along, because she did not want to meet with them alone. We met with Doug Henderson and another officer at the Best Western Hotel. Their warning for Jamie’s girlfriend was not specific. They said there was a general threat of retaliations against girlfriends. They told her that she should move. She asked whether her name had been mentioned and the police said no. Mr. Henderson was speaking in a manner that made me very concerned for Jamie. He seemed to me to be saying that the police would keep laying charge after charge so that Jamie would never get out of remand. He told me that he would be happy to meet with me and my husband to tell us their plans for Jamie. 15. In mid May, I contacted Mr. Henderson to take him up on his offer of speaking to David and me about Jamie. 16. On Wednesday, May 20, 2009, David and I met with Doug Henderson and Superintendent John Robin at the RCMP detachment at the Chilliwack Airport. Doug Henderson said that he had interrogated Jamie and that Jamie was a very polite young man. He told us that we should take comfort from the fact that Jamie was safe now — “he will live”. He said that we should be more worried about our other sons. 17. They told us that “gangs” were not as organized or well-defined as the media portrays them as being. They said that “gangs” were always changing. Individuals get together to do one deal and then re-form in different groups to do another. They said it was more like “disorganized crime” and that gangsters are not all that intelligent. Bacon v. Surrey Pretrial Services Centre McEwan J. 51

18. Supt. Robin said that the investigation of the “UN Gang conspiracy” has been on-going for three years. These concerns peaked in May 2008 with the killing of Jonathan Barber. 19. I complained that the police did not treat us like victims when Jamie was shot at in Surrey. I said that we do not feel like we can trust the police. I told them that, as his mother, I was afraid for Jamie’s sanity being held in solitary confinement with no contact with his community. We asked what they could do to help Jamie. 20. Supt. Robin said that he had just had a conference call with Corrections and told them that he was going to meet with us. He said that the police were now in favour of Jamie receiving parental visits. He said that he was prepared to recommend parental visits. They acknowledged that the police had no concerns about us, had never had any concerns about us, and that there had never been anything that indicated that we were in any way involved in criminal activity. We asked if his girlfriend could visit too but they said, “Just the parents for now”. 21. Later that day, Doug Henderson called me to tell me that John Robin had a meeting at Surrey Pretrial at 11:00 a.m. the next day in order to get our parental visits back. 22. On May 22, 2009, Jamie’s lawyer, Kimberly Eldred, called me to advise that she had heard that the police had given Surrey Pretrial permission for David and me to visit Jamie. I called Surrey Pretrial immediately to try [to] set up a visit. When my husband and I started visiting Jamie again, it would only be the three of us in the visitors’ area. There would be no one in the other booths. After a few weeks, there would be other inmates and their visitors in the other booths. We have seen Jamie every week since our visits were reinstated. 140 Deputy Warden Phillips addressed paras. 20 and 21 of Mrs. Bacon’s affidavit by explaining that the Corrections branch has no investigative unit to provide information about security within the institution, and that in order to ensure the safety of the petitioner, as required by the Warrant of Committal, as well as of members of the public, the staff of correctional centres must rely upon “intelligence, confidential information, and general information from various sources about the person entrusted to them.” He went on to say that in order to make decisions with respect to who would be allowed to visit the petitioner, and how he could communicate with others, consideration had to be given to the information provided by the RCMP. He elaborated: l. It is known that inmates in correctional centres use other inmates, relatives and friends to carry messages. The concern with respect to Mr. Bacon was that his parents could be used by Mr. Bacon to relay messages to other gang members, including his brothers. This reasonable belief caused Corrections to restrict all visits from Mr. Bacon’s mother and father for a limited period of time during April and May 2009; m. When new intelligence from the RCMP was provided to Corrections on May 21, 2009 indicating Mr. Bacon’s parents did not pose a threat to secur- 52 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

ity in the community by providing a conduit from Mr. Bacon to other gang members, a decision was made by SPSC staff to permit Mr. Bacon’s parents to visit with him; n. At no time did the RCMP make this decision for corrections staff. 141 The respondent did not address the question of how RCMP officers could purport to represent to Mrs. Bacon that they had control over what would happen within the institution with respect to his visits. Nor did the Attorney General tender any evidence from the police to contradict the conversations reported by Mrs. Bacon. They stand alone as evidence as to what was said, regardless of their inadmissibility as to the truth or the relevance of some of their contents. 142 Deputy Warden Phillips moved on to address the allegations that Dr. Law- son had told him that the police were “running the show” at SPSC, and that “the police said that it would be another 8 to 10 months before [Mr. Bacon] could have visits and telephone contact, and that [Mr. Bacon] would never be removed from the segregation unit.” He commented as follows: a. I have never stated to Dr. Lawson on or around June 25, 2009 or at any time that I have no control and that the police are “running the show” at SPSC; b. I have never stated to Dr. Lawson on or around June 25, 2009, or at any time, that “the police said that it would be another 8-10 months before [Mr. Bacon] could have visits and telephone contact and that [Mr. Bacon] would never be moved off the Segregation Unit”; c. I interpret the statements contained in paragraph 217 as suggesting the police are exercising administrative control over SPSC or the conditions of custody of Mr. Bacon at SPSC, and I reject that suggestion; d. I have not formed the opinion that Mr. Bacon’s visitation or telephone restrictions will remain in place for a specific period of time; Mr. Bacon’s custody at SPSC is assessed regularly and no decision has been made regarding the duration of those restrictions; e. Likewise, I have not formed the opinion that Mr. Bacon will never be moved from being separately confined; decisions involving inmate placement and restrictions require ongoing consideration of available information and I cannot predict the content of that information or its effect on SPSC staff decision-making into the future; f. At no time did the RCMP make decisions regarding the custody of Mr. Bacon for corrections staff. 143 There is no affidavit from Dr. Lawson denying or explaining what the petitioner deposed he said. 144 Deputy Warden Phillips’ second affidavit then goes on to outline his view of the petitioner’s uniqueness: 5. I have never, in my 23-year career as a corrections officer, been involved in a matter of custody such as Mr. Bacon’s. Bacon v. Surrey Pretrial Services Centre McEwan J. 53

a. In this case, there are rival gang members incarcerated in SPSC and in other B.C. Correctional Centres who are charged in connection with a conspiracy to murder Mr. Bacon; b. Mr. Bacon and his associates are charged with conspiracy to commit murder and murder of rival gang members; c. I have been provided information from the RCMP, that I take to be reliable, indicating there are multiple contracts out for Mr. Bacon’s life; d. I have monitored a considerable volume of inmate communications that indicate Mr. Bacon is an active and ongoing target for violence by other inmates, and to my knowledge this threat has existed throughout his incarceration and continues to this date. all of which creates an extreme risk to personal safety within the facility unprecedented in my experience. 6. Decisions by Corrections B.C. regarding the placement of Mr. Bacon has been communicated to him each time his placement in separate confinement is extended. In addition, on April 16, 2009 I provided Mr. Bacon with a response to his request for information, as to why he is separately confined... 145 The letter referred to by Deputy Warden Phillips reads as follows: Re: Special Request #82936 — Request for Information Dear Mr. Bacon, I have received your Special Request dated April 12, 2009. You have inquired about your placement in segregation under separate confinement and also your phone privileges, which I will respond to separately. Correction Act Regulation 17/18 Placement — You have been placed under Separate Confinement (CAR 17 then CAR 18) since your admission to this centre on April 6, 2009. The Corrections Act Regulation authorizes the person in charge (Warden or designate) to confine an inmate separately from other inmates if the person in charge believes on reasonable grounds that the inmate (iii) is jeopardizing the management, operation or security of the correctional centre, or is likely to jeopardize the management, operation or security of the correctional centre. Our information, from various justice agencies, indicates that you may have had some significant gang involvement. Over the past two months there has been significant increase in gang violence in the lower mainland. There are numerous gang members and associates that are in custody in BC correctional centres and until we get more information to assess the potential risk towards you and/or other inmates, you will be held in segregation under the Correction Act Regulation s. 18 (1) Long Term Separate Confinement. You will be informally reviewed on a daily basis by the Assistant Deputy Warden to ensure that your safety is maintained. Phone Privileges — You have unlimited access to the telephones for legal and privileged calls. Access beyond this is restricted at this time as there are reasonable grounds to believe that unrestricted telephone access may endan- 54 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

ger you or another person. Once I have established that there is no risk, it is my hope to resolve your concerns have the restrictions removed as quickly as possible. [Emphasis added] 146 Deputy Warden Phillips concluded his affidavit with an observation that “[t]he decision to place Mr. Bacon in separate confinement, to restrict his telephone communications and to restrict visits has been meant not to punish Mr. Bacon, but to protect him, to protect other inmates and to protect the public from serious injury or possible death.”

(c) Deputy Warden Phillips’ Affidavit #3 147 The Deputy Warden filed a further affidavit, sworn October 21, 2009, in which he responded further to the petitioner’s first affidavit. He specifically addressed the petitioner’s observations about his initial confinement in cell 210 in Segregation 2. Deputy Warden Phillips deposed that the petitioner was in that cell for 35 days. He said that each day a correctional officer, one or two correctional supervisors, an assistant deputy warden, and medical staff attended the cell to inquire after the petitioner’s well-being. He said there is no record from staff members that discloses the cell was filthy or that there was blood, feces, or mucus in the cell. He suggested that if a cell was reported to be dirty, it would be cleaned. He said that he checked the petitioner’s client log with respect to that cell between April 13 and 14, 2009, and that there is no record of the petitioner having made any complaint to staff members. He reiterated upon that going through the client log he saw no record of the petitioner having made any complaint about the conditions of his cell. Again, there is nothing from him or anyone else deposing that conditions were not as described. 148 Deputy Warden Phillips then responded specifically, for the first time, to a number of paragraphs in the petitioner’s first affidavit. Although the petition was brought on under some time pressure, it was evident that that did not entirely account for these serial amplifications. The respondent had clearly hoped to keep the evidence at a level of abstraction that did not fully respond to the detail set out by the petitioner. 149 It is useful to compare what the petitioner and the Deputy Warden actually had to say in these instances. In the first example, the petitioner described the conditions in Segregation 2 as follows: 57. For a bed there was a concrete slab with a vinyl covered foam matt[ress] on it [in cell 210]. It was also dirty. I was given one sheet and a thin blanket. While prisoners on a regular living unit are given pillows, no pillows are allowed in Segregation 2. If a prisoner in Segregation 2 is found to have a pillow the guards will take it away. I was able to obtain two more blankets, but still the cell was cold and I had to sleep in my clothes. I was not given a change of bedding the approximately five weeks that I was in that cell. Bacon v. Surrey Pretrial Services Centre McEwan J. 55

Deputy Warden Phillips responded as follows: (a) Separate confinement cells are located in the Segregation area, the same area as Segregation Cells for operational reasons. (b) Persons held in separate confinement receive clothing and bedding and a mattress unless a safety or security issue exists. (c) Clean bedding is provided on request and inmates generally request clean bedding once or twice a week. (d) I have reviewed the Client Log for the Petitioner for the period April 14 to April 20, 2009 and there is no notation of any complaint with respect to bedding or specifically with respect to a pillow. [Emphasis added] 150 At para. 59 of his affidavit the petitioner described the meals of SPSC: 59. I was given three meals a day which I had to eat in my cell. The food I received was cold and there were no facilities to warm it up. Given the poor quality of the food and the fact that it was served cold and I was forced to eat it within feet of my toilet, I rarely ate an entire meal. The only time that I could dispose of garbage was on my hour out. This included any leftover food and the containers they come in. This means I could have the remains of multiple meals sitting in my cell at any given time. Deputy Warden Phillips responded: (a) Inmate meals are served in meal trays on a meal cart that is designed to maintain food at a reasonable serving temperature. (b) An inmate can eat his meal while sitting on his bed. (c) The head of the Petitioner’s bed was 8 feet away from the toilet in that cell. 151 The petitioner’s complaint that he was not given a pen until May 4, 2004, elicited the following response from the Deputy Warden: (a) Pens present a significant safety and security risk in Segregation because they can be used as a weapon, usually like a knife against other inmates or against themselves; for this reason they are not permitted in segregation. (b) Pencils are permitted and I am not aware that the petitioner did not have a pencil. (c) The petitioner now has a pen. [Emphasis added] 152 The Deputy Warden responded specifically to the petitioner’s complaint that he had no control over the lights in his cell — that they were kept on 24 hours a day and that requests to the guards to dim them were dealt with inconsistently and arbitrarily: (a) All cells in SPSC have two levels of lighting. Night lighting which illuminates the cells so an officer can easily detect an inmate visually is the minimum requirement. General lighting exists sufficient 56 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

for an inmate to read during darkness hours. Night lighting reduces the cell illumination by approximately 75%. (b) Cell lighting in the segregation unit is generally managed by the correctional staff. General lighting is typically turned on at 06:30 hours and turned to night lighting at 22:00. (c) A limited number of cells in the segregation unit have light switches that inmates can operate. Most cells do not have light switches themselves, as there is a history of inmates tampering with them and there have been cases where inmates electrocuted themselves. 153 The petitioner explained his specific concerns regarding videotaping at paras. 64-73 of his first affidavit: 64. On April 30, 2009, my counsel, Kimberly Eldred, advises me that she met with Deputy Warden Steve Phillips to discuss the conditions of my confinement. Deputy Warden Phillips told Ms. Eldred that I was not placed in cell 210 so that I could be monitored but as a matter of facilities management in order to house two prisoners in Segregation 2 who had tampered with the sprinkler system. He confirmed that the video camera in my cell recorded, as well as monitored, my activities. He advised that the police could view those recordings without a search warrant provided they had the permission of the warden, one of the deputy wardens or one of the assistant deputy wardens. 65. On May 9, 2009, Ms. Eldred wrote asking Deputy Warden Phillips to confirm how long the recordings from my cell were retained. She also asked whether the police had been given access to any of the recordings made by the video camera in my cell. [reference to exhibit deleted] 66. On May 12, 2009, one of the guards, Mr. Rai, told me that the video feed from my cell was constantly being watched. He said that Deputy Warden Phillips had said that I would be charged for covering the video camera while I used the toilet and that my canteen privileges would be revoked. Ms. Eldred wrote a letter of protest, questioning the Deputy Warden’s heavy- handed response given that he had said that my placement in a monitored cell was not for the purposes of monitoring me but as a matter of administrative convenience. She asked that the staff at Surrey Pretrial respect what little privacy and dignity I had left. [reference to exhibit deleted] 67. On May 13, 2009, Deputy Warden Phillips advised Ms. Eldred that Sur- rey Pretrial retains the recordings made by the video camera in my cell for 30 days. He said that we should ask the police if we wanted to know whether they have been given access to the recordings from my cell as he could not speak for the police. [reference to exhibit deleted] 68. In response to the Deputy Warden’s letter, Ms. Eldred wrote to ask again whether any one at Surrey Pretrial had given the police access to any of the recordings made by the video camera in my cell. Bacon v. Surrey Pretrial Services Centre McEwan J. 57

[reference to exhibit deleted] 69. On May 21, 2009, Ms. Eldred wrote to remind Deputy Warden Phillips that he had not responded to her inquiry. [reference to exhibit deleted] 70. On May 25, 2009, Deputy Warden Phillips wrote regarding Ms. Eldred’s letter of May 12, 2009. He said that I had been placed in a cell with video surveillance “to make the best use of available cells” and not because of any security concerns they had about me. Despite this, the Deputy Warden said that no inmate was allowed to “disable video cameras”. [reference to exhibit deleted] 71. On May 26, 2009, Deputy Warden Phillips advised Ms. Eldred that the Corrections Branch was “unable to comment on whether video recordings have been disclosed to police as it may compromise any ongoing police investigations”. [reference to exhibit deleted] 72. On June 20, 2009, Ms. Eldred wrote to Deputy Warden Phillips asking if Surrey Pretrial still retained any of the video footage from my time in cell 210, given that 30 days had now passed since I was confined there. [reference to exhibit deleted] 73. On June 24, 2009, Deputy Warden Phillips replied that he has not checked, but he has no reason to believe that any of the video footage from cell 210 still existed. [reference to exhibit deleted] [Emphasis added] Deputy Warden Phillips said the following about the video surveillance: (a) Video surveillance is used in areas throughout a correctional centre for the safety and security of those in a correctional centre. (b) Video surveillance is provided to the police following an inmate assault. (c) I can confirm that no video surveillance of the petitioner was provided to the police. [Emphasis added] 154 Deputy Warden Phillips specifically answered the petitioner’s concerns about the shower. The petitioner had said, at para. 74 of his first affidavit: 74. During my hour out, a guard would pass me a towel, a razor and shaving cream, if they had any, through the slot. There was a shower on the wall perpendicular to the guardroom. It was walled on two sides by glass brick. The fourth side was open to the room. There was no way to control the temperature of the water in the shower. Once it gets going the water was too hot for me to stand under. I had to stand outside of the stream and splash the water towards myself. This room was very cold in the mornings, which made showering even more unpleasant. Because of this, I asked to have my hour 58 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

out later in the day. Instead, the guards started giving me my hour out first thing in the morning. The Deputy Warden’s response in his third affidavit was as follows: I state that ablution periods are rotated amongst inmates by staff to ensure that inmates are not given the same time out each day. However, a review of the Petitioner’s Client Log indicates that while he was housed in Segregation Unit 2 the majority of his ablution periods occurred between 1200 and 2000 hours, while some did occur between 0700 and 1200 hours. [Emphasis added] 155 This once again confirms that, as the petitioner deposed, he had no idea when he would get out of his cell within a range of 13 hours in any given day. 156 In response to the petitioner’s complaint that his cell was not cleaned for six days in a row in early May, Deputy Warden Phillips said that: ...there is no record of a complaint by the Petitioner in the Petitioner’s Client Log that his cell had not been cleaned for 6 days. [Emphasis added] 157 The petitioner had raised issues about nail clippers at para. 78 of his first affidavit: 78. There was one pair of nail clippers that the guards kept for all of the inmates to use. Because of my concern about their unhygienic condition and the spread of disease, I asked the guards whether I could get my own pair of nail clippers that only I would use but they would keep. The guards refused my request. I was then denied nail clippers entirely for two weeks. Deputy Warden Phillips answered this specifically, as follows: (a) There is no record in the Petitioner’s Client Log of any complaint that nail clippers were being withheld from him. (b) Nail clippers can present a safety and security risk because they can be used as a weapon, and therefore they are normally kept by staff. (c) The Petitioner currently has nail clippers in his cell. [Emphasis added] 158 With respect to the petitioner’s complaint that he required his lawyer’s intervention in order to vote in the federal election in May, 2009, Deputy Warden Phillips explained: [A] newer staff member to SPSC did not understand that the opportunity to vote was to be provided to all inmates. As soon as this oversight became known, it was corrected immediately and all inmates held in the segregation unit were given an opportunity to vote. 159 Deputy Warden Phillips said that the petitioner had since been provided with a mattress, pillow, bedding, nail clippers, asthma inhalers, reading material, writing material, a pen, a TV, and a toilet and sink in his cell. He did not explain why the petitioner had earlier been deprived of these things. Bacon v. Surrey Pretrial Services Centre McEwan J. 59

160 Deputy Warden Phillips amplified the reasons for the restriction on all visits except with legal counsel, as follows: (a) On April 14, 2009 the Petitioner’s visits were restricted to legal counsel visits because Corrections Branch staff were concerned that the Petitioner might attempt to intimidate witnesses through his contacts. (b) The concern of Corrections Branch was based on information from the police that the petitioner may use visits as a means of passing information or instructions to other alleged gang members. This information or instruction could involve a range of activities from harassment or intimidation of witnesses to potentially murder. (c) The “Surrey six” murders, one of which includes the murder for which the petitioner is charged, involved the murder of two bystanders uninvolved in gang violence and the police indicated that, for this reason, they were concerned that the Petitioner may go to any extent to prevent witnesses from testifying in court. (d) This information was received from the police both in person and through conference calls. [Emphasis added] 161 In response to the petitioner’s allegation that he was visited on May 21, 2009 by two police officers, Don Adams and Derek Brassington, Deputy Warden Phillips confirms, (from the client log), that there was a visit from the police that day. He responded to the petitioner’s suggestion that he was told he had a lawyer visit that: it is usual practice for correctional officers not to tell an inmate that the police are visiting in case other inmates overhear the conversation; this practice also applies to the segregation unit. This is because inmates do not want to be seen by other inmates to be talking to the police as other inmates may believe they are informing on other inmates.” ...... (c) This practice is for the purpose of protecting an inmate within the correctional centre. (d) The correctional staff leaves it to the inmate to decide whether or not to engage in the visit once the inmate sees the police. An inmate would not be forced to speak to the police. (e) I have spoken to Officer Shergill and he has advised me that he recalls the police attending in plain clothes to visit the Petitioner. The Petitioner asked Mr. Shergill who wanted to see him and Mr. Shergill recalls saying something like, “I’m not sure, I don’t know, maybe a lawyer. 60 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

This confirms that the petitioner was misled into a meeting with police officers whom he had no interest in seeing. 162 Deputy Warden Phillips responded to the allegation that the petitioner’s mail was withheld as follows: (a) If there is mail for the Petitioner, it is delivered to the Petitioner’s cell on a daily basis. (b) Mail is generally forwarded to the Petitioner within two days of receipt at the correctional centre. (c) No correspondence has been withheld from the Petitioner. (d) The Petitioner’s correspondence is first reviewed by me or by another Assistant Deputy Warden if I am absent from the correctional center for an extended period. (e) This review is for the purpose of ensuring that there are no efforts being made by the Petitioner to breach his “no contact” order and to ascertain if the Petitioner is using correspondence as a means of committing or instructing the commission of a criminal offense. 163 Deputy Warden Phillips acknowledged that 8 to 10 letters had been provided to the RCMP because correctional staff were concerned that the letters may have alluded to doing harm to or intimidating others or that the letters were written in “code”. He continued: (b) Correctional staff is not involved with the police investigation and therefore required the expertise and experience of the RCMP, along with RCMP’s familiarity with the Petitioner’s case, in order to determine whether the correspondence for the Petitioner presented a risk. (c) The disclosure of correspondence described in this paragraph is the only incident of which I am aware in which the correctional staff provided any documents or other records in relation to Mr. Bacon to the RCMP. (d) We have not provided the Petitioner or his counsel with copies of the letters that were given to the police because if efforts were being made to circumvent no contact orders or to intimidate witnesses, it is important that the Petitioner not be aware that correctional staff have ascertained his method of circumvention, so that he could then adopt a new strategy. [Emphasis added] 164 It should be noted that the only “no contact” order respecting the petitioner is the Warrant of Remand which enjoins contact with two named co-accused petitioners who are also in custody. 165 Deputy Warden Phillips’ response to the petitioner’s complaint that it is impossible to have privacy in speaking to legal counsel was that “all inmates including the Petitioner use the telephone in the main area that opens out onto all the cells for the purpose of speaking to legal counsel.” Bacon v. Surrey Pretrial Services Centre McEwan J. 61

166 Respecting the petitioner’s complaints about health care, the Deputy Warden responded as follows: (a) Health Care “rounds” are carried out daily for inmates in separate custody or segregation for the purpose of assessing the inmate’s conditions and general well-being. (b) Three or four correctional staff (one Assistant Deputy Warden, one or two Correctional Supervisors and one Correctional Officer) ac- company the health care professionals on rounds for purposes of security. (c) Inmates who do not want to speak about their health care issues on rounds can submit a request to see a health care professional in the Health Care Centre. Deputy Warden Phillips confirmed that the petitioner’s asthma inhaler was withheld from him “because these inmates tend to overuse the asthma medication”. There was no specific concern related to anything the petitioner had done. [Emphasis added] 167 Deputy Warden Phillips ended his third affidavit with the following observations: 33. The allegation that staff at SPSC are trying to “break” the Petitioner is unequivocally denied. There is no collusion with the RCMP to effect such an event. Corrections Branch is independent of all police forces and is not subject to their direction. The Corrections Branch operates under the mandate set out in the Correction Act, R.S.B.C. 1996, c. 46 and Correction Act Regu- lation. The Corrections Branch does receive confidential information and police intelligence in order to inform its decisions with respect to security. The decisions made by Corrections staff members with respect to the Petitioner are made solely for the purpose of safety and security. 34. From my years working as a correctional officer, I am aware that within prison systems there are codes that inmates respect. One such code is that inmates who prey upon children are not accepted by other inmates (not charged with similar offences) and are often the subject of beatings or attempts on their life. Another is that inmates do not take offence if alleged gang members kill one another, but they do take exception to alleged gang members allegedly killing innocent bystanders. 35. Where alleged offenders are given significant media attention, and subsequently are remanded into custody, it increases the profile of that inmate in the centre and this is likely to increase the risk of harm to the inmate because other inmates may have issues with that inmate or wish the notoriety for striking out against that inmate. 36. I have recently, within the last two weeks, received information from a confidential informant that the Petitioner remains at risk of serious injury or death and that a contract in the amount of $25,000 for any inmate to “take him out” is extant. [Emphasis added] 62 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

(d) Professor Haney’s Affidavit 168 After comparing the respondent’s amplified responses, the petitioner’s account of his treatment remains largely uncontradicted. In many respects his observations are confirmed. If there remains any doubt about the conditions the petitioner described, the Court also had the affidavit of Professor Haney, who detailed about 35 years of study on the psychological effects of living and working in institutional environments. He has toured prisons in the United States, Canada, Cuba, England, Hungary and Russia and has performed a study of prison conditions in Mexico. He has written extensively in the field of crime and punishment and has published numerous articles on prison life, including solitary confinement. 169 The respondent opposed Professor Haney’s evidence in the early days of the hearing principally on the grounds that there had been little opportunity to prepare a response. Whatever the merits of that position at the time, the respondent has since had every opportunity to prepare any such material it thought appropriate, and has chosen not to do so. I certainly accept that Professor Haney is quali- fied, by virtue of his experience, to offer opinion evidence on prison conditions, and to assist the Court in placing the treatment the petitioner has received in context. 170 Professor Haney attended SPSC on July 29, 2009. His specific observations of Mr. Bacon’s conditions in solitary confinement are as follows: 40. The conditions under which Mr. Bacon has been housed in the Segrega- tion Unit at Surrey Pretrial are very harsh and truly severe. Those conditions — including the deprivations and restrictions to which he was and currently is subjected — are equivalent in most respects to those imposed the most severe solitary or “supermax”-type facilities with which I am familiar in the United States. The Segregation Unit that I saw at Surrey Pretrial is not an appropriate place in which to confine pretrial prisoners for any considerable period of time. 41. Specifically, the so-called “Seg II” — where Mr. Bacon was originally confined and where, as I understand it, he could be returned if prison officials decide to move him back there — was truly horrendous. It was filthy and smelly the day I toured, and the air was dank in Mr. Bacon’s former cell as well as in the larger unit itself that contained several additional cells. As we toured this unit, several seemingly disturbed prisoners peered out at us from their cells, and made a number of bizarre, inappropriate comments as we passed through. The Assistant Deputy Warden who supervised our tour expressed some concern that Mr. Bacon’s counsel had been allowed in wearing open-toed shoes. She asked whether anyone had instructed Ms. Eldred to wear closed shoes because “the prisoners often throw foul substances at us under the doors of the cells.” As she put it, “open-toes shoes and human waste do not mix.” Cell 210 where Mr. Bacon had initially been kept when he entered Surrey Pretrial was smaller than his present cell, much dirtier, with graffiti on the wall. However, except for the fact that there is a camera Bacon v. Surrey Pretrial Services Centre McEwan J. 63

mounted on one corner of the ceiling of the cell, and the fact that it lacks a shower, cell 210 is otherwise very similar to the cell in which he is now being housed. 42. The cell in which Mr. Bacon now lives is a standard size prison cell — approximately 80 square feet in dimension. It contains a bunk, a locker for his property, a small desk and chair, and a combination toilet and sink unit. Although there is technically a “window” in the cell, it has been covered over with a white film and Mr. Bacon cannot see out of it (or, as a result, tell whether it is night or day). Mr. Bacon is required to eat all of his meals in his cell, within a few feet of the toilet. In addition, there is a shower in one corner of his cell, obviating the need to take him to another area of the unit for this purpose. Mr. Bacon has been given access to a television in his cell — a practice that is also relatively common in many supermax prisons in the United States — which provides a way to pass idle time but hardly substitutes for meaningful social contact or interaction. Mr. Bacon has no access to “programs” or organized activities in which to engage. He remains inside this cell for nearly every hour of every day. 43. In fact, Mr. Bacon’s contact with the outside world — with anyone other than his parents — has inexplicably been restricted to mail correspondence. Such a restriction is extraordinary in my experience. Even prisoners placed in long-term solitary or “supermax” type confinement in the United States as punishment for serious disciplinary infractions are typically permitted to have non-legal phone calls, non-legal visits, or both. 44. Mr. Bacon is limited to a single hour of out-of-cell time per day. This kind of severely restricted movement is practiced only by the harshest disciplinary segregation units with which I am familiar in the United States. In addition, this “hour out” comes at random times during the day and he is given no warning when it will occur. Mr. Bacon also indicated that he is the only inmate in the entire facility who is not allowed to have a phone card or to make phone calls to anyone other than his legal counsel. On a number of occasions, he has been prevented from making these phone calls until late in the evening, after his lawyers have left their offices. 45. In addition, Mr. Bacon stated that the “23-hour lockup” to which he is being officially subjected really amounts to 24 hours a day because he has nothing to do during this one hour of out-of-cell time. Of course, like other prisoners in harsh isolation units, Mr. Bacon is denied the opportunity to participate in programs or activities that involve groups of prisoners. In addition, however, I can attest from personal observation that the “yard” or outdoor exercise area to which he is given access for one hour each day is hardly that. Instead, it is a tiny space — I would estimate no more than about twice the size of Mr. Bacon’s cell — made of concrete, enclosed on all sides by the walls of the remand, with a metal grate overhead, and it lacks any exercise equipment of any kind. The day I toured it was dirty, had a foul smell in the air, and there were blotches of a dark, sticky substance on the concrete floor that stuck to the soles of my shoes. It was not adequate for meaningful outdoor “exercise” of any kind. 64 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

46. Many of the other inmates in Mr. Bacon’s unit and in Seg II are double- bunked. In addition, they can come out of their cells together and even go to the outdoor “yard” with their cellmate. On the Medical Isolation side, “com- patible” inmates will be given time out of their cells together, even if they are not double-bunked, thus increasing their social contact and potentially their time out of their cells. The Assistant Deputy Warden who gave us the tour advised us that Mr. Bacon is never allowed to be with another inmate during his time out. Mr. Bacon is forbidden to have any direct contact with other prisoners. Thus, when Mr. Bacon is brought to the outside “yard” area, the guards in the unit lock all of the other prisoners in their cells where they must remain until his hour-out is finished. I am informed that he is the only inmate in the unit for whom this is the case. Not only does this add to Mr. Bacon’s social isolation, but it is stigmatizing as well. And, if practiced over the long run, this procedure may become the source of some tension and conflict between Mr. Bacon and the other inmates. 47. Mr. Bacon reported that there have often been a number of mentally ill inmates housed on either side of the Segregation Unit where he has been kept, including his present unit. In fact, he reported on the day that I interviewed him that several mentally ill prisoners had just been moved from his unit, including one who spent each night shouting about conspiracies to re- move all of his bodily organs. The situation in Cell 210 was even worse. Mr. Bacon reported that mentally ill prisoners in that unit banged on the walls, threw feces and food trays, and pulled the sprinklers off the walls of their cells. 48. Mr. Bacon’s counsel has informed me that her client is supposed to be housed in this unit awaiting trial, a period that, given the complexities of the case and the volume of discovery that must be analyzed, will take several years — perhaps as long as five years. Yet Mr. Bacon appears to be housed in a unit that is intended — and in my opinion is only appropriate for — short term disciplinary detention a few days or so — or as a transitional unit where medical and mentally ill prisoners are briefly kept until they can be moved to a more appropriate unit. According to Mr. Bacon, the only prisoners who are kept in these units longer than a week or so are protective custody inmates who remain there at their own request. 49. In any event, neither the “Medical Isolation” unit in which Mr. Bacon is currently housed nor the “Seg II” in which he was previously kept appear to me to be set up to adequately accommodate prisoners housed in long-term solitary confinement. The kind of structural and procedural modifications that must be made for a unit where prisoners are kept isolated from others on a long-term basis have not been built into this facility. There is no adequate outdoor exercise space provided, or any alternative indoor exercise when weather prohibits prisoners from going outdoors. There is no adequate space for confidential interviews to occur. (The day I interviewed Mr. Bacon, we sat in a makeshift space provided inside what appeared to be a staff member’s office.) There is nowhere for inmates to have confidential telephone calls with their attorneys. In addition to the ad hoc or makeshift nature of some aspects of the physical environment in these units, there is a similar Bacon v. Surrey Pretrial Services Centre McEwan J. 65

quality to the institutional routines that are followed there. Thus, Mr. Bacon reported that he is never sure when he will get his hour out, be permitted to return telephone calls from legal counsel, receive his mail, and so on. Be- cause prisoners in segregation are so highly dependent on staff for even these most mundane aspects of their day-to-day existence, this kind of unpredict- ability is especially problematic. Moreover, the facility does not appear to provide for the careful medical and psychological monitoring of prisoners whose physical and mental health needs must be addressed differently and scrutinized more proactively because of the special risks posed by their solitary confinement status. The staff does not appear to have been given spe- cialized training concerning the potential negative psychological effects of long-term isolation, and there is no procedure in place whereby the mental health status of each prisoner is checked routinely, frequently, and carefully. 171 Prof. Haney’s specific observations obviously verify what the petitioner has deposed in his affidavit.

VIII Disclosure Pursuant to Order (a) Certiorari 172 Deputy Warden Phillips’s repeated references to the absence of any notation of complains in the “Client Log” led to discussions respecting the records held at SPSC. The inference that the Deputy Warden was clearly inviting was that if something was not in the record, it had not been said. However, that could only be inferred if it were established that there was a positive duty on prison staff to keep accurate records, and that those persons had fulfilled their obligations. 173 The respondent strongly resisted requests to provide relevant material, as the correspondence with the petitioner’s counsel demonstrates. Deputy Warden Phillips’ selective use of undisclosed documents in his affidavit and the indirection illustrated by his response to counsel’s query about whether videos were shared with the police (“ask the police”) when the answer was simply “no” reflect a habit of secretiveness, justified on the basis of “security”, that generally characterizes the respondent’s reactions to requests for information. It need hardly be added that it is highly unusual to expect the Court to accept newspaper reports, police press releases, and internet commentary as a substitute for better sources of evidence. 174 This review, including the evidence of Susan Bacon and Professor Haney and of the refinements offered through the second of the petitioner’s affidavits and the second and third affidavits of the respondent’s designate Deputy Warden Phillips, illustrates the nature of the original record. There is almost no need to reconcile the affidavits because there is very little material contradiction. The respondent’s position generally is not that what the petitioner says is untrue but that his treatment is justified. Where the petitioner’s credibility is challenged, it tends to be on the basis of an invitation to infer from the alleged absence of evidence that something did not occur. 66 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

175 The petitioner’s application for certiorari was very strongly opposed by the respondent. The Court was advised that there would be dire consequences to SPSC if disclosure — which, it was said, would amount to over 5000 documents - were ordered. Notwithstanding those submissions, I ordered that all the records pertaining to the petitioner be produced. Two boxes of material were subsequently delivered to counsel for the petitioner. From those, a rather manageable booklet of relevant or illustrative material was produced.

(b) Examples of Disclosure of Emails and Correspondence 176 The documents delivered pursuant to the order of certiorari take matters right back to the petitioner’s reception at the SPSC. While the petitioner remained in police custody, officials at the SPSC, unable to actually receive the petitioner, were preparing for his arrival. 177 On April 5, 2009, a prison official, Officer Stratton sent a communication to staff that included the following: I have been considering the options for the intake of the Gang groups we have and will be having in the near future. At present we have 3 high profile UN gang members but we also have some low level hangers on. [Blocked out] are housed in separate units on ESP and have their time outs separately from other inmates. The police have asked that we keep them separate from each other and not in contact with others. This is causing a minor staffing issue during those times but we are working with it. On Monday we expect to get three inmates from the rival Red Scorpions gang. [Blanked out] and James Bacon will be coming in separately. James is in lock up and is expected first. Later we will get the others. But they should all be here by 22:00. The police have asked that they all remain separate from each other and other inmates. It seems the courts are also asking for a no contact. If this happens we will need 6 different units that can house them. We don’t have them. [Emphasis added] He set out some options for accommodation the anticipated arrivals: I have been considering the options and talking with CS’s about possibilities and probabilities. Short term - Leave the UN group as they are. Separate the Red Scorpions for a couple of weeks by placing one in Seg, one in Med Isol and one in E1 but all on separate confinement. Long term - We need to prepare for a no bail time line that will be at least 6 months. The sheriffs do not want to move any of them without a big escort and plenty of notice but I think we will need to move some because the police expect to give us more of each gang within a couple of weeks. Bacon v. Surrey Pretrial Services Centre McEwan J. 67

178 In a consideration of “mid-term options”, he alluded to the petitioner’s previous incarceration on remand: The Bacons stayed here before and they were kept in Seg med for few weeks but they were not happy and complained almost daily about being confined without privileges. This will probably go to the lawyer and the courts very early on if we do it again. If they got their charges moved to Coquitlam for hardship reasons they could stay at NFPC. Sheriff holding cells are usually taken up by sheriff inmates pending court and they may have a very serious problem with us borrowing their cells. The inmates would also be very upset with spending long periods of time in cells in the basement which will lead to disturbance or court orders. I do not think that having the heads of the 2 rival shooting gangs in the area on the same floor would be safe. Our level of security does not supply enough weapons and staff to resolve the likely gang violence that would erupt when they found out where the others were and that would not take long considering our current system. If we house all of any gang in the same unit we can be assured that they will discover it and yell to each other constantly and create a disturbance regularly. [Emphasis added] 179 He described the “problems in total” in terms that suggest that discipline might become arbitrary because of the disruptions caused by the presence of the petitioner and others in the institution: Problems in total These are 2 very high profile in the community and very violent gangs. They have been trying to kill each other off for more than a year and over 80 killing are associated with their brand of violence. Having all of them in this building at once is going to be a major security concern. We are going to have problems moving any of them in the building. The sheriffs insist that they come down one at a time and that we give them notice when they are coming so that they can go to court. All of their courts are in Surrey. The sheriffs want this to continue so that they have the tunnels and the police to use in cases of expected violence. Keeping the security issues, on these 6 and the others to follow, will take up a lot of supervisors and records and prowls time which will mean they are not able to tend to their normal duties. This will reflect back on our overall security and safety responses. I expect more infractions will either be left or will be handled harshly because the lack of options and time that this influx will cause. 180 On April 6, 2009, Deputy Warden Phillips sent the following message to the managers in SPSC: I/M Bacon has now been charged with murder, admitted and placed in seg. 68 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

The RCMP have requested that I/M Bacon’s ICCS access be limited to legal/privileged calls only for the time being. They are very concerned about the protection of witnesses as the disclosure of their case unfolds over the next few days. They know that I/M Bacon’s “reach” can be quite far while he is in here, so they are trying [to] put some controls in place. I will be circulating updated gang information as it becomes available. [Emphasis added] 181 On April 8, 2009, Deputy Warden Phillips sent around the following message to SPSC staff: I have just met with members of IHIT (Integrated Homicide Investigation Team) and the DW Ops from NFPC and FRCC. I have received additional information that will assist in the ongoing management of these inmates. This information is confidential and is not to be shared outside of the leader- ship team. Jamie BACON — He is one of the “Directors” of the Bacon Brothers/Red Scorpion gang. This gang, particularly the Bacon Brothers side has been trying to take over the drug lines. Other gangs/groups are retaliating and are prepared to use firearms, explosives or anything else they can get their hands on to eliminate members of the Bacon Brothers. The Bacon Brothers side of the gang has isolated themselves and there are numerous contracts on BA- CON’s life. BACON will make every attempt to intimidate or coerce witnesses. For this reason he is not to have access to any calls except privileged/legal ones. He is not believed to be a suicide risk. He is at significant risk himself and is not to have any contact with any other inmate. Is addicted to Oxycontin, which is a pain medication. [Emphasis added] 182 From the following email exchange it appears that the first interception of mail took place on April 8, 2009: From: Webster, Elaine Sent: Wed Apr 08, 2009 20:40:28 2009 To: Phillips, Steve Subject: Letter from Bacon to [redacted] I put a letter from Bacon to [redacted] on your Ops folder. It seems a little weird to me. But I thought you might want to have a look. From: Phillips, Steve Sent: Wednesday April 8, 2009 8:48 PM To: Webster, Elaine Subject: Re: Letter from Bacon to [redacted] Thanks. Please forward anything to me that is to or from these two that appears unusual. From: Webster, Elaine Sent: Wednesday April 8, 2009 8:53 PM Bacon v. Surrey Pretrial Services Centre McEwan J. 69

To: Price, Carol; Ross, Janet; Crum, Darren Subject: FW: Letter from Bacon to [redacted] FYI [Emphasis added] 183 From the following email exchange it is clear that the restrictions on the petitioner’s “privileges” are being actively discussed with the police and that mail is being forwarded to the RCMP. >>> Phillips, Steve 2009-04-09 08:29 >>> Hi Joe [Sobotin, an RCMP contact] — It was a [sic] nice to meet you yesterday. Yesterday we discussed phone and possible visit restrictions, though new [sic] didn’t discuss any mail restrictions. The restrictions that are in place on the phones are to protect the community as there is reason to believe that they will attempt to coerce or intimidate witnesses. The same rationale would apply for mail, so I have instructed my Assistant Deputy Wardens to monitor all incoming and outgoing mail for these two. Any mail that may have threatening or questionable contents, or where there is coded or undecipherable information, will be copied and may or may not be mailed. Two letters that fall within this criteria were copied yesterday. I have attached them for your reference. Are you interested in me forwarding you this type of information? Steve From: Joe Sobotin To: Phillips, Steve Sent: Thu Apr 09 16:18:14 2009 Subject: Re: SPSC — Bacon [redacted] mail? Thanks Steve. Appreciate the follow up and copies of mail. >>>Phillips, Steve 2009-04-09 16:20>>> Joe — Do you want future copies of pertinent info? From: Joe Sobotin To: Phillips, Steve Sent: Thu Apr 09 Thu 16:23:37 2009 Subject: Re: SPSC — Bacon [redacted] mail Yes Thanks 184 On April 14, 2009, there is this exchange: From: Phillips, Steve Sent: April 14, 2009 10:26 AM To: Joe Sobotin; Macesic, Nedeljko Cc: Watson, Ardith Subject: FW: 70 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

Here is a letter from James Bacon to [redacted] who is in custody at FRCC. He is trying to “reach out” to other BB/RS members and associates. Nedj - Do you want the letter to go through? From: Macesic, Nedeljko Sent: April 14, 2009 11:19 AM To: Joe Sobotin Subject: FW: Hello Joe the letter to [redacted] from Jamie is still in SPSC’s possession. In reading it, the information in the letter from my perspective has nothing in it which [redacted] would not have learned through the media outlets. Do you wish it withheld or sent through? From: Macesic Nedeljko Sent: April 14, 2009 11:21 AM To: Phillips, Steve Subject: FW: Steve, I have sent the letter to Joe Sobotin for his look through and comment. I do not think there is anything in the letter which this [redacted] would not already be aware. If the police say send it then we do. Once Joe responds I will let you know From: Phillips, Steve Sent: April 14, 2009 11:43 AM To: Macesic, Nedeljko Subject: RE: FYI — I already sent it to Joe From: Macesic, Nedeljko Sent: April 14, 2009 11:47 AM To: Phillips, Steve Subject: RE: Thanks I told him this probably was the case but I sent him the letter just in case. I think [he][the RCMP] will tell me to forward the letter as it really does not speak to any threats towards anyone and the info in it is most likely common knowledge amongst Bacon gang members/associates [Emphasis added] 185 On April 15, 2009, Deputy Warden Phillips issued the following: Effective immediately, all visits, except privileged legal visits, are restricted for I/M Bacon [redacted]. This is under the authority of CAR 2 (2) 9 (a) the person in charge believes on reasonable grounds that non-privileged legal visits may endanger the inmate or another person. There is no requirement to inform the inmates of this, however the person who wants to book a visit is to be informed “We have reason to believe that a visit with you may endanger this inmate or another person”. Under the au- Bacon v. Surrey Pretrial Services Centre McEwan J. 71

thority of the Correction Act Regulation 2 (2) 9 (a) I cannot permit you to visit or book a visit. 186 This notice was disseminated throughout SPSC by the following email: From: Ross, Janet Sent: Wednesday, April 15, 2009 7:50 PM To: PSSG SPSC ASupervisors; PSSG SPSC Supervi- sors Cc: Wheatley, Dana; Sandhu, Gurpreet; Hedji, Adri- ana; Rai, Sam; Baker, Karen; Machnyk, Miro; Da- vis, Leah Subject: Visits Restriction I/m Bacon and [redacted] have been restricted to privileged visits only, effective immediately. This restriction has been imposed under ss. 2(2)(a) of CAR. If asked, they can be told that “visits are being withheld because the correctional centre has reasonable grounds to believe that visits may endanger the inmate or another person”. It is not necessary to give any further explanation. The inmates may of course inquire further by special request or complaint form, if this explanation is unsatisfactory. [Emphasis in original] 187 On April 20, 2009, the respondent sent the following message to Deputy Warden Phillips: Could you please provide me with the information we used to form our reasonable grounds. We (you or I) will likely end up in court on this issue and we need to be prepared. Debbie [Emphasis added] The critical piece is that the person in charge should, if questioned in court at a later date, be able to articulate the grounds for terminating personal visits and be able to demonstrate that they were reasonable. Therefore, notes of conversations with police officers indicating that police believe that the particular inmate’s communication with others during visits may endanger another person should be well documented and retained. [Emphasis in original] 188 On April 21, 2009, Deputy Warden Phillips sent the following, seeking a rationale from the police for the restrictions that had been imposed pursuant to their request: John/Joe — Last week during our call you had stated that you would provide us with formal information (letter) advising us of the risk to public safety should Bacon, [redacted] have access to visits/phones in terms of attempting to coerce, intimidate or coordinate a strike on the witnesses testifying against them. We have restricted their calls since April 6th and have restricted their visits since April 15th. We are expecting to be challenged on this and since 72 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

the pressure is increasing we need to document/demonstrate how we formed “reasonable grounds”. [Emphasis added] 189 On April 22, 2009, Deputy Warden Phillips reported to the respondent in the following terms: A meeting was arranged at SPSC on April 8th between DW Ops from SPSC, NFPC and FRCC, IHIT (Integrated Homicide Investigation Team) members John Robbins and Joe Sobotin and ITAC (Integrated Threat Assessment Unit) member Duane Kempton. The meeting was to discuss management strategies for gang members who were either recently admitted to custody, or were already in custody and newly charged. The following persons/gangs were discussed: BACON BROTHERS/RED SCORPIONS GANG James Bacon — Ad- mitted to SPSC April 6th — Charged with murder × 1, Conspiracy to commit murder × 7 and various firearms offences. [Redacted] UN GANG [Redacted] The Bacon Brothers/Red Scorpions (BB/RS) are UN are rival gangs and the charges relate to the murders or attempted murders of the opposing gang members. [Redacted] The charges against the BB/RS gang members are related to the “Surrey Six” killings in 2007, Four UN gang members were killed and two innocent persons were killed. With the killing of the innocent persons, the BB/RS have proven that they will go to any length to silence anyone who witnesses or has knowledge of their criminal activities. The RCMP have reason to believe that the BB/RS gang members who are in custody will make every attempt to “reach out” to BB/RS gang members who are not in custody to coerce, intimidate or coordinate a strike against persons who may be providing testimony. The attempts to “reach out” are believed to be through phone calls via the Inmate Call Control System (ICCS) or through visits at the correctional centre. Restrictions through the ICCS were imposed when the BB/RS gang members came into custody. The RCMP inquired about visit restrictions, as there was a risk to persons in the community. Restrictions were not imposed until this was investigated further. On April 15th, the RCMP requested visit restrictions as they had reason to believe that information that may be relayed through visits that would endanger person in the community. [Redacted] At 1630 hrs on April 15th it was determined that visit restrictions were appropriate under the Correction Act Regulation section 2.2(a) as reasonable grounds exist to believe that allowing J. Bacon and [redacted] access to community/public contacts may endanger other persons. The RCMP will be providing us written reasons (this week) for their request to restrict visits to verify the risk that exists. [Emphasis added] Bacon v. Surrey Pretrial Services Centre McEwan J. 73

190 In the petitioner’s first affidavit he deposed that he had made a complaint to the Investigation and Standards Office (the “ISO”), an office something like an Ombudsperson for prisoners. His account included the following: 129. On April 18, 2009, I wrote to the Investigation and Standards Office requesting that they review the conditions of my confinement. On April 21, 2009, I received a letter from Sydney Swift, Director, Investigation and Stan- dards Office telling me that they were reviewing my submissions. I attach as Exhibit “H” at 151 to this my Affidavit a true copy of the letter of Sydney Swift dated April 21, 2009. ... 131. On April 24, 2009, I spoke with an individual at the Investigation and Standards Office who told me that they were investigating my claim but that I should not get my hopes up because nothing was going to change. He said that he had heard of me and he did not think that his office would get involved in my case. ... 134. Around April 30, 2009, I received a response to my submissions to the Investigations and Standards Office. Geoff Wooding, Inspector, indicated that he had conducted a review of my file. This review appeared to focus on the written notifications and responses that I had received up to April 21, 2009. On this basis, he advised me that he was “satisfied that the SPSC has acted within the scope of its authority”. He also said that “centre management” “confirmed that the person in charge had sufficient reasonable grounds for the restrictions and limitations which were imposed”, though he did not set out what those grounds were. He said that he considered my complaints to be “unsubstantiated” and that he was closing my file. I attach as Exhibit “H” at 157-159 to this my Affidavit a true copy of the letter of Geoff Wooding dated April 30, 2009. 191 The following email suggests a degree of collaboration with the police and SPSC that appears at odds with the responsibilities of the ISO: From: Macesic, Nedeljko To: Phillips, Steve Sent: Thu Apr 23 14:27:30 2009 Subject: RE: Conference call RS/UN inmates Have we heard back from Superintendent Robin with regard to the letter and when can we expect it. As I have already held conversations with ISO Mr. Wooding outlining the reason for the restriction of privileges. ISO would like to have strength and substitutability to the responses they send out to [redacted] Bacon, [redacted] etc 74 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

192 On April 29, 2009, the following email exchange suggests collaboration not only on any investigation, but also to prevent “FOI [Freedom of Information] concerns”: From: Phillips, Steve Sent: April 29, 2009 6:29 AM To: PSSG SPSC Managers Subject: Confidential document — Security Concerns FYI — I requested written reasons from the RCMP to further justify the visit and telephone restrictions on I/M’s Bacon and [redacted]. ... From: Phillips, Steve Sent: April 29, 2009 7:04 AM To: Wooding, Geoff Subject: FW: Confidential document — Security Concerns FYI From: Wooding, Geoff Sent: April 29, 2009 8:02 AM To: Phillips, Steve Subject: RE: Confidential document — Security Concerns That will certainly assist my ISO response to inmate complaints. Just so you know, it will not be quoted, and I expect it will be destroyed prior to closing the complaint file to eliminate FOI concerns. From: Phillips, Steve Sent: April 29, 2009 8:26 AM To: Wooding, Geoff Subject: RE: Confidential document — Security Concerns Good, thanks 193 Mr. Wooding of the ISO then wrote the petitioner to tell him that his complaints were “unsubstantiated.” 194 On April 30, 2009, Deputy Warden Phillips reported to the respondent as follows: I was involved in a conference call yesterday with RCMP and Corrections Branch managers regarding the current gang matters. The RCMP have requested that we continue to maintain the visit and telephone restrictions that are in place as they believe that they will attempt to contact witnesses, to intimidate and potentially harm them. This matter is still under investigation and some witnesses and family members still need to be located, threat assessments are being conducted and measures to protect them put in place are being implemented. [Redacted] is a co-accused at FRCC is under the same restrictions. Bacon v. Surrey Pretrial Services Centre McEwan J. 75

This situation will continue to be monitored and will be reviewed on a weekly basis to ascertain if there are any changes in the assessed level of risk. [Emphasis added] 195 The SPSC’s approach to the required statutory review of the petitioner’s separate confinement status is indicated in the following email from June 16, 2009: From: Webster, Elaine Sent: Tue Jun 16 08:39:18 2009 To: Phillips, Steve Subject: Section 18 reviews Inmates [redacted] Bacon [redacted] all are up for review of their section 18 status. Has anything in their placement changed that you know of? From: Phillips, Steve Sent: June 16, 2009 8:47 AM To: Webster, Elaine Subject: Re: Section 18 reviews There is no new info on Bacon [redacted] to indicate that there would not be a risk to their safety or the safety of others if they were placed in regular population. [Emphasis added] 196 On the same day, Deputy Warden Phillips reported to the respondent: I just wanted to inform you that Ms. Eldred, counsel for I/M Bacon, has written stating that she is disappointed with the conditions of her [client’s] confinement and states that it now appears as though the matter will now have to be resolved by the courts. Her letter is attached. Ms. Eldred does not appear to have much understanding of the limitations in the conditions to an inmate who is housed in an area under separate confinement in a correctional setting. 197 Although the newspaper reports presented to the Court suggest that there are rival gang members that pose about the same hazards as the petitioner does, it is clear that he has been held in more stringent conditions than his alleged rivals: From: Dix, Steve Sent: Thursday, August 06, 2009 10:35 AM To: Davis, Gordon; Cook, Michael; Watts, Kate; Smith, Elliott Cc: Merchant, Brent Subject: UN Gang Members Shelene Rail, Crown Counsel in the Bacon [redacted] is asking if the UN gang members who are in custody (two names provided are redacted in separate confinement as well as Bacon et al. 76 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

If you have any UN gang members in your centre, please advise me as to their confinement status. From: Smith, Elliott Sent: August 6, 2009 11:33 AM To: Dix, Steve; Davis, Gordon; Cook, Michael; Watts, Kate Cc: Merchant, Brent Subject: RE: UN Gang Members Steve, NFPC has 7 known UN gang members (including [redacted] and they are not in separate confinement. From: Davis, Gordon Sent: August 6, 2009 12:45 PM To: Smith, Elliott; Dix, Steve; Cook, Michael; Watts, Kate Cc: Merchant, Brent; Phillips, Steve; Hawboldt, Deb- bie Subject: RE: UN Gang Members SPSC has 3 known UN Gang members [redacted]. When they first arrived at SPSC they were managed under strict security protocols to ensure their personal safety and the safety of others. Based on their performance and our observations the security protocols have changed over time. At this point they are not in separate confinement. 198 The rough parity between the petitioner and the other alleged gang members appears to be assumed in the following email, from Deputy Warden Phillips to other officers: From: Chapple, Allen Sent: Tues Oct 06 11:34:18 2009 To: Phillips, Steve Cc: Stratton, Fred; Webster, Elaine Subject: UN Leaders Program Attendance I noted in the shift exchange this morning that I/m’s [redacted] and [redacted] all attended AA in the Multi-Purpose Room. Although all were checked for individual contact concerns, and were flagged not to associate with Bacon Bros/Red Scorpions associates on the AA Program list, I still have reservations. Are we still being requested to keep [redacted] separate from [redacted]. Should we be sending these inmates to a program with others from units where we house members of a competing gang [sic] at all? ... From: Phillips, Steve Sent: Tuesday, October 6, 2009 12:26 PM To: Chapple, Allen Bacon v. Surrey Pretrial Services Centre McEwan J. 77

Cc: Stratton, Fred; Webster, Elaine Subject: Re: UN Leaders Program Attendance Gang violence has been occurring in the community and we need to exercise due diligence in preventing similar violence at SPSC wherever possible. The UN inmates are charged with conspiring to murder rival gang members and will likely continue to conspire while they are in custody. Anything we can do to maintain a separation between [redacted] and [redacted] should be considered. If the AA facilitators are unable to facilitate multiple sessions on one day to allow groups to attend separately, then these groups will have to attend alter- nate sessions. We also need to keep UN members and RS members separate at any program session. The rival gang member subject to the conspiracy to murder is apparently the petitioner. 199 This internal correspondence demonstrates a remarkable degree of integration with the police, even to the extent that the respondent does what the police want first and waits for justification later. It shows that the result has been particularly harsh treatment for the petitioner, even compared to others of similar status.

IX The Mission Statement, the Statutes, and the Manual (a) The Mission Statement 200 In order to evaluate the appropriateness of the respondent’s treatment of the petitioner, it is necessary to address the mandate imposed by the Warrant of Committal in light of the statutory and interpretive instruments governing Cor- rections in B.C. These set the framework within which the SPSC is expected to manage inmates. The Correction Act and Correction Act Regulation are the legislative instruments governing the Respondent. Two other interpretive instruments are relevant if for no other reason than that the respondent has referred to them and asserted their currency. These are the Mission Statement of the Adult Custody Division of the Corrections Branch, and the Adult Custody Policy Manual. 201 On November 4, 2009, Brent Merchant, the provincial director of the Adult Custody Division, Correction’s Branch, of the Ministry of Public Safety and So- licitor General, filed an affidavit explaining certain redactions in the records subject to the order for production. In the lead up to that explanation, he gave a brief description of his responsibilities: 2. ... In my current capacity I am responsible for nine (9) Correctional Cen- tres, 300 managers and support staff, over 1200 peace officers, the security, care and control of an average daily count of 2800 offenders, an annual dele- gated budget exceeding $180 million and a capital budget exceeding $217 78 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

million. I have extensive knowledge of correctional practice and how the release of security information can jeopardize the safety of inmates, staff and contractors in correctional centres and members of the public at large. 202 It is difficult to overlook the fact that while other sources suggest more than half of the persons incarcerated within the provincial system are on remand, that is, held pending trial and presumed to be innocent, Mr. Merchant referred to them indiscriminately as “offenders”. 203 Mr. Merchant went on to recite the Mission Statement and to outline the core beliefs of the Adult Custody Division: 3. As corrections professionals we provide the safe and secure custody of inmates and deliver programs that promote public safety and reduce criminal behaviour. This mission statement is supported by the following core beliefs: a. Public safety is our business. b. Effective communication is our foundation. c. Due process ensures fairness. d. People are treated with dignity and respect. e. Integrated offender management enhances security and contributes to a safer community. 4. This statement extends to the disclosure of information that could present a risk to the safety and security of any correctional staff member, inmates, or members of the community. [Emphasis added] 204 Mr. Merchant then explained why certain of the documents produced in accordance with the Court order had material blocked out, on the basis that the security of particular inmates or members of Corrections staff or members of the public might be at risk. It is not, however, necessary for the purposes of this summary proceeding, to dwell on the redactions or the rationale for any particular example. What is disclosed is sufficient to cast the affidavit material originally placed before the court in significantly greater focus. 205 Mr. Merchant did not specifically explain how the Mission Statement and the core beliefs of the division guide the conduct of the administration at the SPSC. Presumably the core beliefs are meant to inform both the mandate imposed by the Parliament and ordered by the judiciary under the Criminal Code, and the specific statutory responsibilities set out in the Correction Act and the Correction Act Regulation. One assumes that these core beliefs are also meant to inform the operating procedures set out in the Adult Custody Policy Manual, which direct the manner in which the respondent’s statutory responsibility ought to be exercised. Bacon v. Surrey Pretrial Services Centre McEwan J. 79

(b) The Correction Act 206 The Correction Act defines a correctional centre as follows: “correctional centre” means a lawful place of confinement in British Co- lumbia, including, without limitation, a jail, prison, lockup, place of imprisonment, camp or correctional institution, and any land connected with it, but does not include, except for the purposes of section 32 respecting shared facilities, any of the following: (a) prisons or lockups operated by police forces or police departments; (b) prisons or lockups operated by designated policing units, as defined in section 1 of the Police Act, or by designated law enforcement units, as defined in section 1 of the Police Act. 207 The reception of a prisoner is governed by s. 9: 9 (1) The person in charge of a correctional centre is not required to accept a person into custody under a warrant of committal unless a certificate of a medical practitioner certifies for that person all of the following: (a) the state of health of the person; (b) that the person is fit for transfer; (c) that the person is free from any infectious or contagious disease. (2) A person sentenced to imprisonment in, or ordered by competent authority to be conveyed to, a correctional centre from any other jail, prison or lockup may remain and be kept in lawful custody in the jail, prison or lockup from which he or she was sentenced or ordered to be conveyed, until the certificate of health required by this section has been provided. 208 The Correction Act sets out the circumstances in which inmate communications may be restricted: Inmate communication 19 (1) An authorized person may restrict, intercept, monitor or record inmate communication in accordance with this section and the regulations. (2) An authorized person may without individualized suspicion intercept or record inmate communication. (3) An authorized person may restrict, intercept or monitor inmate communication if one or more of the following apply: (a) the authorized person has reasonable grounds to believe that the inmate is (i) involved in illegal activities, (ii) harassing or causing harm to others, or 80 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

(iii) participating in an activity that may jeopardize the safety, security or operation of the correctional centre; (b) a court order restricts or prohibits communication or contact between the inmate and the other person; (c) the other person has indicated to the authorized person that he or she does not wish to communicate with the inmate. (4) If inmate communication has been restricted, an authorized person must as soon as practicable inform the inmate in writing and give the reasons under subsection (3) for the restriction. Disclosure 19.1 (1)An authorized person may, (a)) in prescribed circumstances or in relation to prescribed clas- ses of inmate communication, disclose in the prescribed manner that a communication is inmate communication, and (b) in prescribed circumstances or in relation to prescribed clas- ses of communication specified under section 33 (2) (u) as privileged, disclose in the prescribed manner that a privileged communication originates from the correctional centre. (2) For the purposes of subsection (1) (b), an authorized person may without individualized suspicion intercept a privileged communication. 209 The Correction Act includes the power to make regulations. 33 (1) The Lieutenant Governor in Council may make Regulations referred to in section 41 of the Interpretation Act. (2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows: ... (d) respecting the separate confinement or segregation of inmates; ... (h) governing visits to inmates in correctional centres and the conduct of visitors while in a correctional centre; ... (s) respecting the restriction, interception, monitoring or recording of inmate communication; (t) providing for the handling, retention and disposal of inmate communication that is intercepted or recorded; (u) specifying communications between an inmate and another person that are privileged; Bacon v. Surrey Pretrial Services Centre McEwan J. 81

(v) respecting procedures that an authorized person must follow, and specifying criteria that an authorized person must apply, to examine an inmate communication and determine whether it is a privileged communication; ... (3) The minister must post, in legible characters and in conspicuous parts of a correctional centre, copies of regulations made under subsection (2) that relate to the treatment, conduct and discipline of inmates.

(c) The Correction Act Regulation 210 The Correction Act Regulation includes a number of provisions relevant to these proceedings. Under the heading, “Inmate privileges”, s. 2 sets out the basic standard of treatment an inmate must receive. There is no distinction between the standards for prisoners on remand and prisoners serving time. The adequacy of these norms as such, is not before the court. However, it is surely concep- tually incorrect to describe the established norms for a remand prisoner as “privileges” rather than something like a “residual liberty”. Regular meals, for example, ought not to be described as a “privilege”. Section 2 reads: 2 (1) Subject to subsection (2), the person in charge must ensure that an inmate is given (a) regular meals of the type ordinarily served to inmates, (b) a daily exercise period of at least one hour, in the open air if weather and security considerations allow, (c) clothing, a mattress and bedding, (d) access to reading materials, (e) reasonable access to mail and to the telephone, (f) postage for (i) all privileged communication made by mail, and (ii) up to 7 letters a week for other communication made by an inmate by mail, (g) access to personal visits, (h) access to health care, (i) access to personal washing or shower facilities at least once a day, and (j) access to toilet articles that are necessary for the inmate’s health and cleanliness. (2) Subsection (1) does not apply if (a) the person in charge believes on reasonable grounds that one or more of the privileges referred to in subsection (1) cannot 82 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

be given to the inmate because it may endanger the inmate or another person, or (b) the inmate is confined separately from other inmates under section 17, 18 or 19 or confined in a cell in the segregation unit under section 24 or 27 (1) (d) and one or more of the privileges cannot reasonably be given to the inmate, having regard to the limitations of the area in which the inmate is confined and the necessity for the safe and effective operation of that area. [Emphasis added] 211 The Regulation stipulates that remand prisoners should be housed separately from those who are convicted. Inmates who are not sentenced 3 The person in charge must ensure that an inmate who is not sentenced to imprisonment as a result of a conviction for an offence under the Criminal Code or another federal enactment or an offence under a provincial enactment, or who is detained under the Immigration Act (Canada) or the Immi- gration and Refugee Protection Act (Canada), (a) is, where circumstances allow, housed separately from inmates who are sentenced to imprisonment as a result of a conviction for an offence under the Criminal Code or another federal enactment or an offence under a provincial enactment, and (b) gives his or her consent before being assigned to a work program. [Emphasis added] 212 Communications with lawyers are recognized to be privileged. In other circumstances, inmate communications are governed by s. 14: Inmate communication 14 (1) In the Act and this section, “monitor” means (a) to listen to an inmate communication that is made by electronic means or to an inmate communication that was made by electronic means and recorded, or (b) to read inmate communication delivered to the correctional centre or sent from within the correctional centre. (2) Inmate communication by telephone or other electronic means may be recorded. (3) Inmate communication may be monitored or recorded by an authorized person if the authorized person has reasonable grounds to believe that (a) the inmate is (i) involved in illegal activities, (ii) harassing or causing harm to others, or Bacon v. Surrey Pretrial Services Centre McEwan J. 83

(iii) participating in an activity that may jeopardize the management, operation or security of the correctional centre, or (b) the monitoring is necessary to maintain or repair the recording system and the monitoring is performed only for the length of time and to the extent that is necessary to effect the maintenance or repair. (4) Inmate communication by mail may be intercepted and examined by an authorized person to determine if the mail contains contraband. 213 Telephone calls and letters may be identified by a recording or a stamp as emanating from a correctional institution. Recordings made under s. 14(2) may be retained in accordance with s. 15: 15 (1) A recording of an inmate communication made under section 14 (2) or (3) may be retained for a period not longer than 30 days, unless there are reasonable grounds to believe that the inmate is (a) involved in illegal activities, (b) harassing or causing harm to others, or (c) participating in an activity that may jeopardize the management, operation or security of the correctional centre. (2) A recording of an inmate communication under section 14 (2) or (3) must not, without lawful authority, be released or disclosed by a person employed in or about a correctional centre. [Emphasis added] 214 Separate confinement is governed by ss. 17 and 18: Separate confinement — short term 17 (1) The person in charge may order that an inmate be confined separately from other inmates if (a) the person in charge believes on reasonable grounds that the inmate (i) is endangering himself or herself or is likely to endanger himself or herself, (ii) is endangering another person or is likely to endanger another person, (iii) is jeopardizing the management, operation or security of the correctional centre or is likely to jeopardize the management, operation or security of the correctional centre, (iv) would be at risk of serious harm or is likely to be at risk of serious harm if not confined separately. ... (2) Subject to subsection (3) and section 18 (1), the person in charge must release an inmate who is confined separately under subsection 84 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

(1) from separate confinement within 72 hours of the commencement of the confinement. ... (4) The person in charge must, within 24 hours of making an order under subsection (1) to confine an inmate separately from other inmates, give the inmate the reason for the confinement under subsection (1) in writing. Separate confinement — longer term 18 (1) If an inmate is ordered to be confined separately under section 17 (1) (a), the person in charge may decide to extend the order for one or more periods of not longer than 15 days each, provided that the person in charge (a) reviews the circumstances of the separate confinement before (i) the inmate must be released under section 17 (2) or (3), or (ii) the expiry of an extension made under this subsection, (b) determines that the circumstances that justified the order under section 17 (1) (a) still exist, and (c) determines that the separate confinement should continue. (2) An extension under subsection (1) begins on the day after the person in charge makes the decision to extend. (3) The person in charge must, within 24 hours of making a decision to extend an order to confine an inmate separately from other inmates, (a) give the inmate, in writing, (i) the reason for the confinement under subsection (1), (ii) the period of time during which the inmate will be in separate confinement, and (iii) the reason for the length of time of separate confinement, and (b) give the inmate a reasonable opportunity to make submissions about why the separate confinement should not continue or why the separate confinement should be for a shorter period of time. (4)) After considering the submissions made by the inmate under subsection (3) (b), the person in charge may, within a reasonable period of time, (a) confirm his or her decision, (b) vary his or her decision, or (c) rescind his or her decision. Bacon v. Surrey Pretrial Services Centre McEwan J. 85

(5) If the person in charge confirms, varies or rescinds his or her decision under subsection (4), the person in charge must notify the inmate and give written reasons to the inmate. 215 Section 27 provides that the harshest disciplinary measure in a correctional centre is 30 days confinement in a cell in the segregation unit. Where consecu- tive sentences are imposed, the absolute maximum is 45 days. 216 Visitors are governed by s. 30: 30 (1) A visitor must not enter a correctional centre unless authorized by the person in charge. (2) If, in the opinion of the person in charge, acting reasonably, it is necessary for the management, operation or security of the correctional centre, the person in charge may do one or more of the following: (a) order the removal of a visitor from the correctional centre or from a part of the correctional centre; (b) prohibit or restrict a person from visiting with an inmate; (c) order that a visit with an inmate be supervised; (d) place restrictions on or make allowances for the nature, timing, frequency, length or location of a visit with an inmate.

(d) The Adult Custody Policy Manual 217 The Adult Custody Policy Manual significantly amplifies and interprets the respondent’s responsibilities under the Correction Act and the Correction Act Regulation. 218 It first came to light in one of the emails disclosed pursuant to the order of certiorari. It was dated September 25, 2009, the day after Deputy Warden Phil- lips first met with the petitioner. The email reads as follows: SPSC’s new SOP 1.05 (Separate Confinement Reviews) requires that, in consultation with the on-site psychologist, I review an inmate’s separate confinement if the confinement continues for a period of 60 days and every 30 days thereafter, and then report this to the warden. I have reviewed the reasons for I/M Bacon’s confinement as he has been confined since April 6, 2009. I have determined that there continues to be a significant concern for his safety and safety of others and do not feel that the threat has decreased, therefore separate confinement is still warranted. Dr. Lawson has not talked with I/M Bacon for sometime, though he has stated that separate confinement can impact persons differently. Dr. Lawson understands the reasons for separate confinement and also acknowledges that the television, yard and gym privileges are helpful in reducing the effects of isolation. I met with I/M Bacon and he was not too interested in talking with me. He stated that the courts would be dealing with this issue. 86 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

If I/M Bacon remains confined in 30 days I will conduct another review. [Emphasis added.] 219 The Deputy Wardens’ reference to S.O.P. 1.05 caused the petitioner’s counsel to ask for its source. She was provided with a copy of “Surrey Pretrial Ser- vices Centre, Standard Operating Procedures, Chapter 1: Security and Control Separate Confinement 1.22”. This appears in a document apparently issued Au- gust 24, 2009 by D. Odwald, Warden. This document read, in part, as follows: Separate Confinement 1.22 Refer to: Adult Custody Policy Section 1.21, 1.22 Refer to: Corrections Act Regulation Section 17, 18, 19 Refer to: SPSC SOP Segregation, Segregated Inmates Housed on Regular Living Units. 1.01 Definition Separate confinement is a short term (section 17), longer term (section 18) or voluntary (section 19) temporary measure for removing particular inmates form the normal program for administrative or personal safety reasons. 1.02 Authority A warden reviews all inmates considered for placement on separate custody status and renders a decision. A correctional supervisor is designated to make decisions on initial placement under section 17 for up to 7 hours. Only a warden is designated to make decisions on separate confinement for over 7 hours. A voluntary separate confinement placement is made by mutual agreement between the inmate and a warden. 1.03 Circumstances for separate confinement A warden can place an inmate apart from other inmates, when the inmate: • Is endangering him/herself or is likely to endanger him/herself; • Is endangering or is likely to endanger another person; • Is or is likely to jeopardize the management, operation or security of the correctional centre; • Must be confined separately for medical reasons; • Suffers from mental illness; • Is at greater than usual risk of harm from other inmates (e.g. nature of offence, mental or emotional incapacity, known informer); • Is to be subject to an examination of mental condition for the purposes of the Mental Health Act; or • May have contraband hidden in his or her body. A separate confinement placement is not for disciplinary purposes. Bacon v. Surrey Pretrial Services Centre McEwan J. 87

1.04 Initial Placement Procedure The following procedure is followed when an inmate is being considered for placement on separate confinement: • The inmate is given written notice within 24 hours of the decision to place him/her in separate confinement. This notice includes the specific reason(s) for the placement in separate confinement. • The person authorizing the separate confinement placement ensures a copy of the decision is attached to the inmate’s client log and that the staff in charge of the area where the inmate is placed is notified verbally regarding the placement. 1.05 Review It is the responsibility of unit staff to maintain the client log for each inmate designated as separate confinement. The assistant deputy warden of regulations meets daily with an inmate placed on separate confinement and documents any comments or concerns. If requested by the inmate the [rationale] for maintaining or removing the inmate’s separate confinement status is provided. The assistant deputy warden of regulations formally reviews the inmate’s status relative to long term separate confinement once every 15 calendar days. The inmate is to be interviewed as part of the review process. After considering the evidence and the submissions made by the inmate, the assistant deputy warden renders a placement decision. The assistant deputy warden provides written reasons to the inmate for confirming, varying or re- scinding the placement decision. Should the inmate require a continuation of the placement, the inmate is provided with the specific reasons for the continuation of the placement and any changes or concerns during the review period. If an inmate has been on long term confinement for a period of 60 days, the deputy warden of operations formally reviews the continuing placement decision. The review includes consultation with the on-site psychologist and is reported to the warden. For every additional 30 days the inmate remains on long term separate confinement, the deputy warden of operations reviews and reports on the continued placement decision. [Emphasis added] 220 Counsel for the petitioner requested a copy of the entire Adult Custody Pol- icy Manual from counsel for the respondent. She had been advised by Correc- tions Branch that it was not publicly available and that she would have to seek disclosure of under the Freedom of Information and Protection of Privacy Act. 221 Counsel for the petitioner was subsequently able to locate a copy by other means. It is not clear that the copy she received is fully up to date. 222 The Manual sets out a highly articulated series of policies for carrying through the purposes and objectives of the Correction Act and the Correction Act Regulation. 88 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

223 The respondent has not explained the incidental revelation of this document several weeks into the proceedings. Nor has she produced a current copy. This is of some concern because, from the earliest days of the case, the Court had been requesting information on what administrative standards were applied in SPSC. The references that follow are to the copy in the possession of the petitioner’s solicitor, as the best evidence available. The Manual addresses a number of the sections in the Act and the Regulation pertinent to these proceedings. 224 Visiting is addressed in s. 1.11: 1.11.1. Authority Authority for establishing visiting procedures is provided in section 33(2)(h) of the Corrections Act, and sections 30 and 31 of the Corrections Act Regulation. 1.11.2. Purpose Visits provide an opportunity for inmates to maintain contact with family, friends and professionals. 1.11.3. Types of visitors — official 1. Official visits are authorized in section 31 of the Correction Act Regulations. 2. Official visitors include lawyers, members of Parliament or Legisla- tive Assembly, Ombudsman’s staff, on-duty police officers, proba- tion and parole officers. ... 1.11.5 Types of visitors — family and friends 1. Personal visits are regulated by section 30 of the Correction Act Regulations. 2. Visitors who are family and friends usually visit one inmate at a time, during visiting hours set by the correctional centre. 3. An inmate is entitled to a minimum of two hours of such visits per week. [Emphasis added] 1.11.6. Visit settings 1. The setting for visits is determined mostly by the correctional centre’s physical plant, availability of staff supervision, the inmate and visitor. ... 1.11.7. Freedom of association 1. Freedom of association, subject only to reasonable limits prescribed by law in a free and democratic society, is guaranteed in section 2(d) of the Canadian Charter of Rights and Freedoms contained in the Constitution Act. Bacon v. Surrey Pretrial Services Centre McEwan J. 89

2. Inmates, by virtue of their custodial placement, are restricted in their freedom to associate with others. 3. A visitor must not enter a correctional centre unless authorized by the warden. 1.11.8. Visit restrictions 1. Restrictions on visiting are not imposed arbitrarily or without cause. [Emphasis added] 2. The types of restrictions that may be imposed by the warden of a correctional center are identified in section 30(2) of the Correction Act Regulations. 1.11.9. Reasons for restricting visits Visits may be denied, terminated, restricted or revoked when: 1. In the reasonable opinion of the warden there are grounds to believe that: ... • The visit would impede the court’s order of custody with regard to one or more inmates (e.g. no-contact order with co-accused or visitors); and • Methods available to control the time, setting and supervision of the visit would not reduce the risk posed by the visit. ... 5. The inmate does not wish to see the visitor. [Emphasis added] ... 8. Correctional centre staff may terminate a visit if they believe that the behaviour of a visitor or an inmate jeopardizes the management, operation or security of the correctional centre. Staff may order the visitor to be removed from the premises. This order or a visit termination must be reported immediately to the warden. 225 There is a specific protocol for the termination or suspension of visits: 1.11.20. Written notification After deciding to terminate a visit, or suspend, restrict or deny a person’s visiting privileges, the warden, deputy warden of operations, or deputy warden of programs: • Communicates in writing the decision and justification to the visitor and inmate, with a copy to the warden; and • Informs the visitor and inmate of the procedure (outlined in section 1.10.21) for appealing a decision to suspend a person’s visiting privileges. 90 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

[Emphasis added] 226 The protocol for classifying prisoners is found in s. 4.7: 4.7 Internal Placement (revised: Mar-09) 4.7.1 Inmate populations 1. Classification officers classify inmates according to classification procedures outlined in sections 4.2 to 4.6. 2. Inmates may be classified to one of the following groups: • General population; • Protective custody; • Mentally disordered offender; • Enhanced supervision program (ESP); and • Segregation as directed in section 17, 18, 19, and 24 of the Correction Act Regulations. 3. As permitted by section 19 of the Correction Act Regulations, it might be necessary to use separate confinement for protective custody inmates who experience peer issues within their own population group. These inmates may be placed with other similarly classified inmates to avoid a segregation placement. [Emphasis added] 227 Correspondence is governed by s. 7.4.7: 7.4.7 Inmate correspondence 1. The handling and processing of inmate correspondence is authorized in section 19 of the Correction Act, and in section 13 (privileged communication) and section 14 (inmate communication) of the Cor- rection Act Regulations. 2. Correctional centres develop procedures for intercepting, examining, recording, monitoring and restricting inmate correspondence in accordance with the designation matrix. 3. Inmate mail is not read unless the deputy warden approves reasonable grounds for reading the mail. [Emphasis added] 4. Grounds for monitoring or restricting of mail must be documented. 228 Dissemination of records and monitoring of telephone calls are governed by ss. 7.8.14 and 7.8.15: 7.8.14. Dissemination of ICCS Records 1. When an authorized access of an ICCS record discloses evidence of a criminal offence, staff may relate the content of the accessed records to the police. 2 When police seek to seize or access a record, staff onIy release or allow access to the record upon receipt of satisfactory legal authorization (search warrant or court order). Bacon v. Surrey Pretrial Services Centre McEwan J. 91

[Emphasis added] 7.8.15. Monitoring calls 1. The warden or authorized officer exercises diligence in only listening to calls when there are reasonable grounds to believe that the inmate’s conversations with third parties may disclose illegal activities, harassment or harm to others, or a threat to the management, operation, or security of the institution, including a threat to public safety. Refer to section 14(3) of the Correction Act Regulations. [Emphasis added] 2. Individualized grounds do not have to meet the standard of “reasonable and probable grounds.” However, they must be consistent with some level of reasonable belief. 3. The reasonable belief must be associated with an inmate or even a group of clearly associated inmates. 4. Each centre has procedures to: • Designate individuals who are entitled to monitor active calls and/or retrieve archived calls; and • Record details and rationale for monitoring calls from or to an individual or location. [Emphasis added] 229 Video surveillance is addressed in s. 9.12.3: 9.12.3. Surveillance cameras 1. Inmates declared as being at risk and placed in segregation/observation cells are subject to video monitoring. 2. Video recordings of inmates under observation are subject to the Freedom of Information and Protection of Privacy Act. There is no need to maintain such recordings unless the contents are used in respect to a decision regarding the inmate or as part of an investigation. 3. Inmates are advised by the posting of a sign, that they may be subject to video monitoring. 4. Recordings not used to reach a decision regarding the inmate within 48 hours or not comprising part of an investigation are not retained. 230 The right to vote is affirmed in s. 10.5: 10.5. Inmate Voting 10.5.1. Authority 1. Under section 3 of the Canadian Charter of Rights and Freedoms contained in the Constitution Act, every Canadian citizen has the right to vote in federal and provincial elections, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 92 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

2. Every person who is imprisoned in a correctional institution serving a sentence of two years or more is not entitled to vote in an election, in accordance with part I section 4 (c) of the Canada Elections Act. 3. Voting by incarcerated electors is addressed in the Canada Elections Act, part II, Special Voting Rules in Division 5, sections 244-262. 4. An individual who is imprisoned in a penal institution serving a sentence of two years or more is disqualified from voting at provincial elections, according to part 4, division I, section 30 (b) of the B.C. Election Act. 10.5.2. Eligibility to vote Apart from restrictions set out in the Canada Elections Act, and the Election Act, British Columbia, the following inmates have the right to vote, provided they are Canadian citizens, of the required age, and meet other criteria in legislation: 1. Federal elections — remanded inmates, and inmates serving sentences of less than two years; 2. Provincial elections — remanded inmates and inmates serving sentences of less than two years: and 3. Municipal elections — remanded inmates and inmates serving sentences for non-indictable offences. 231 Record keeping requirements are outlined in s. 10.6: 1.06 Documentation The following logs are maintained daily by the staff: • The Unit Log; • The Inmate Roster; • The Inmate’s Face Sheet; • The inmate’s client log — daily entries are made, documenting the inmate’s behaviour, exercise periods and demeanour. It is the responsibility of the staff assigned to a unit with a designated segregation cell to keep a running log in the unit log book for the inmate(s) confined to their cell. The unit log book is maintained daily with the following information: • Name and cs number of every inmate admitted to or released from the cell for segregation or separate confinement purposes; • Inmate ablution times; • Medical and supervisory rounds; • If applicable the length of disciplinary disposition, including the start and expiry dates (disposition calculation — first day of confinement is the start date unless specified otherwise); • The time and summary of details of any unusual events or occurrences. Bacon v. Surrey Pretrial Services Centre McEwan J. 93

** Note — All entries in the log books are subject to subpoena and reviews by outside agencies, therefore staff are to ensure legibility, clarity and accuracy on all entries. All noteworthy information, such as “PC/MDO or GP status”, “not to mix with certain inmates” is noted on the living unit roster.

X Further Evidence 232 The disclosure ordered in late October provoked another round of supplemental affidavits.

(a) Client Log 233 In a third affidavit filed November 12, 2009, the petitioner replied to the third affidavit of Deputy Warden Phillips. He pointed to a series of emails which show that the client log had not been kept faithfully. There is evidence of an attempt to catch up on entries that had not been made between April 4 and June 1, 2009. It is apparent that, despite the daily record keeping requirement set out in the Manual, no reliable inference can be drawn from the client logs about whether any particular event took place because they are not accurately or con- sistently kept.

(b) Video 234 The petitioner isolated and exhibited to his third affidavit a series of emails respecting the petitioner’s counsel’s request for privacy from video surveillance and advice as to whether the video had been shared with the RCMP. It must be recalled that there was no rationale for videotaping the petitioner beyond the fact that he had been placed in a cell with a camera, and that the answer to the second question was simply “no”. The emails read as follows: From: Phillips, Steve Sent: Wednesday, May 13, 2009 9:12 AM To: Gunnarson, Jess; Hoskins, Chad Subject: I/M Bacon’s lawyer inquiry Hi — Debbie Hawboldt has suggested I run something by you. In the attached letter, Kimberly Eldred, I/M Bacon’s lawyer, has requested information regarding the camera in his cell. Would there be any concern from an FOI perspective if I provide her a response? We expect anything to do with I/M Bacon will likely end up in court. The response would be: Retention period is 30 days. No, the RCMP have not requested access to any of the recordings. 94 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

... From: Gunnarson, Jess Sent: May 13, 2009 11:36 AM To: Phillips, Steve; Hoskins, Chad Subject: RE: I/M Bacon’s lawyer inquiry Thanks for the info and letter. I do not see any concern with advising the lawyer that the recordings are maintained for 30 days as this is neither Mr. Bacon’s personal information nor does it (in my view) jeopardize security. As far as advising whether the RCMP have been provided with DVR, I would recommend that counsel be re-directed to contact the RCMP directly as our disclosure of such information could affect police investigations in both the current and future circumstances. ... From: Phillips, Steve Sent: Thursday, May 14, 2009 6:38 AM To: Dix, Steve Cc: Hawboldt, Debbie; Steele, Karyne Subject: Bacon/Lawyer letter Due to the potential of this issue being raised in court, I would appreciate an opinion on my response. The letters are attached. I/M Bacon is in a camera’d cell and occasionally he has been covering the camera. He has been told not to cover it. He feels that it is OK to cover it when he goes to the washroom and then uncover it when he is done. His lawyer is claiming dignity and harassment issues. My response is simple in that “Cameras are present to ensure that safety and security is maintained and are not to be tampered with in any manner by any inmate for any reason”. From: Phillips, Steve Sent: Thursday, May 14, 2009 12:41 PM To: Gunnarson, Jess Cc: Hoskins, Chad Subject: RE: I/M Bacon’s lawyer inquiry Hi Jess — I have attached my response letter to Ms. Eldred and her reply to that. She didn’t like my response. Do you have a suggested response to her reply? From: Hoskins, Chad Sent: May 19, 2009 9:29 AM To: Phillips, Steve Cc: Gunnarson, Jess; Dadachanji, Jasmine Subject: RE: I/M Bacon’s lawyer inquiry Bacon v. Surrey Pretrial Services Centre McEwan J. 95

We’ve taken a look at Ms. Eldred’s last letter to you and feel that your response should include the following points: • We are unable to comment on whether video recordings have been disclosed to police as it may compromise any ongoing police investigations. • We can confirm that all police requests for video recordings must be authorized by senior management at the centre. Given the high profile nature of this individual, it may be worthwhile to do a quick review of the letter before it goes out to Ms. Eldred — I have copied Jasmine Dadachanji who would be available to give the letter a read before it goes out. [Emphasis added] ... From: Phillips, Steve Sent: May 19, 2009 10:05 AM To: Hoskins, Chad, Dadachanji, Jasmine Cc: Gunnarson, Jess Subject: RE: I/M Bacon’s lawyer inquiry Thanks Chad. I’ve taken your suggest text and inserted it in the attached letter. I concur with your text, though from my experience Ms. Eldred is quite inexperienced and will invoke paranoia in her. She will believe that the RCMP are actively investigating via camera, which is not the case. I can see her trying to run with this, mainly due to her inexperience, in a negative fashion. ... From: Phillips, Steve To: Hoskins, Chad; Dadachanji, Jasmine Cc: Gunnarson, Jess Sent: Wed May 20 08:25:02 2009 Subject: RE: I/M Bacon’s lawyer inquiry Hi Jasmine — I was hoping to respond to this today, so I was wondering if you have had a chance to look at it yet? From: Dadachanji, Jasmine Sent: May 20, 2009 9:21 AM To: Phillips, Steve Subject: Re: I/M Bacon’s lawyer inquiry These responses are all being reviewed by counsel, so I made some changes and have forwarded the letter to LSB for their review yesterday. I expect to 96 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

hear back from them by tomorrow and will certainly let you know as soon as I do. From: Steele, Karyne Sent: Thursday, May 14, 2009 7:02 AM To: Phillips, Steve Subject: RE: Bacon/Lawyer letter Wording to me is sufficient. It is a security feature and should not be tampered with at anytime by anyone. Is there another cell that we can put him in or is he stuck due to all the CCs? This is indirection amok, to no apparent purpose.

(c) Mail 235 The petitioner exhibited an email from Deputy Warden Phillips to Gordon Davis wherein he says “I am monitoring all calls and mail and passing any pertinent details to the RCMP.” This summarizes how the mail and the telephone were managed by Deputy Warden Phillips. It may be distilled to the comment in the April 14, 2009 email from Officer Macesic to Deputy Warden Phillips: “If the police say send it then we do.” 236 It is evident from the other email traffic that the Deputy Warden appears eager to volunteer anything he considers “interesting” or “odd” (April 21, 2009, Phillips to RCMP Office Sobotin). He withholds pictures sent to the petitioner so that the RCMP can view them (April 30, 2009). Although the mail continues to be read the rationale for doing so was, as Deputy Warden Phillips noted in September, 2009, dubious. He noted that there hadn’t been any issues “for a long time”.

(d) Police Involvement In Visiting Rights 237 The petitioner’s third affidavit also canvasses the events surrounding the ex- pansion of his visiting rights from none at all to “parents only”. It is clear, despite Deputy Warden Phillips’ assertion in his second affidavit that the decision was made by Corrections staff, that he behaved as if his role was to implement police directions. There is no other way to construe the emails surrounding those changes. It is obvious, for example, that the meeting Susan Bacon outlined in her affidavit took place substantially as she said it did, and that, on this point, Deputy Warden Phillips’ first and second denials that the police were making the decisions regarding visits, were incongruent with the facts: ”Phillips, Steve SG:EX” 2009-05-21 12:25 John — I forgot to ask about [redacted] at FRCC. Are parental visits an option for him? Bacon v. Surrey Pretrial Services Centre McEwan J. 97

[Emphasis added] From: John Robin [RCMP] To: Watson, Ardith; Macesic, Nedeljko; Phillips, Steve; Dave Attew; David Teboul; Derek Bras- sington; Don Adam; Doug Henderson; Joe Sobo- tin, Paul Dadwal Sent: Thu May 21 22:26:07 2009 Subject: Re: Johnson — FRCC Steve, at this time we have only met with Susan and David BACON and have discussed with them that we would recommend to Corrections that they be allowed visits only, not calls. We have not agreed to support BACON’s girlfriend visit as we believe she is in contact with BACON’s associates. The BACONS believe the visits will be monitored and we will indicate that they might be. We will meet with the other parents/family asap and provide you with our assessment of any security risks associated to family visits being allowed for [redacted] and [redacted] We will assist the BACONS in arranging visits if that is appropriate. From: Phillips, Steve Sent: Friday, May 22, 2009 7:20 AM To: PSSG SPSC Managers Subject: Fw: Johnson — FRCC Attachments: John Robin.vcf Visit restrictions for I/M Bacon have now been amended so parental visits only are now permitted.

(e) Telephone Logs 238 Among the documents produced by the respondent were five telephone logs, which showed the calls made to the petitioner’s girlfriend, his brothers, and to counsel. An email dated June 22, 2009 shows that all five were forwarded to the RCMP. On the copy produced to counsel, the log reflecting solicitor-client calls is blacked out. It is difficult to understand how this particular redaction fits within the categories identified by Mr. Merchant in his affidavit.

(f) Health Care 239 The petitioner responded to Deputy Warden Phillips assertion that there is access to health care (para. 55) by pointing out that despite his earlier affidavits, it was late October before the blood work ordered in July had been done and November 4 before he was taken to the health unit: On or about November 4, 2009, a nurse came to my cell door. She told me to come with her and she escorted me to the health unit. This was the first time that I had ever been taken here. We were not accompanied by a guard. We met alone in an examination room. She explained the results of my blood 98 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

work and urinalysis. She told me that I should be able to have private medical consultations whenever I need them. She told me that I can be brought to the unit or the health care professional can meet with me in the discipline hearing room in the Segregation Unit. I told her that I was concerned about the medication that I was on. I told her that I wanted to see Dr. Eaves. This is also at odds with the assertions in Deputy Warden Phillips’s first affidavit that inmates are not permitted to be “alone” with healthcare workers.

(g) Correction Officer’s Observations of the Petitioner’s Condition 240 The petitioner points out that although the respondent has not addressed (in affidavits or otherwise) his concerns about the effects of his treatment in segregation, the records that have been produced show that various corrections officers have expressed concerns. Officer Baker wrote the following to Officer Gola, on August 16, 2009: Over the last several weeks, inmate Bacon has shown a change in his demeanour. This inmate used to write many letters, look forward to phone calls and visits. Over the months it is apparent that the realization of his situation is beginning to sink in. Approx. 2 weeks ago, while doing rounds on graveyards, I saw Bacon in his cell talking and laughing to himself. This went on for approx. 1 hour. I have asked Bacon what is going on with him and he has stated that he just “doesn’t care anymore”. He states that he has lost interest in talking with people, letters or anything else. At this point he is merely “existing”. The only thing he has mentioned that might interest him is going to the gym. I would encourage someone to look into this as the Bacon’s behaviour is becoming worrisome. 241 Officer Gola confirms his own observations in an email to Deputy Warden Phillips: I myself have witnessed this inmate behavioural changes, he is starting to have the “I don’t care anymore” attitude. This inmate has been sitting in seg now for close to five months now, with little or no changes. We all know the toll that separate confinement can have on an individual, however my concerns lie more with the safety issues around the inmate and staff involved. I’m throwing this out for discussion. I realize he can’t go out to yard for security issues around communication with others, but how about giving this inmate occasional access to the weight pit during lunch or dinner lock ups. We can secure the individual in the pit and monitor him quite easily. I truly think the benefits to this will be beneficial to all involved in the management of this inmate. 242 On August 20, 2009 SPSC’s response was that he be given access to weight lifting equipment for 30 minutes twice per week: As a result of a recommendation by some segregation staff and supervisors and in an attempt to minimize the effects of long term isolation on I/M Ba- Bacon v. Surrey Pretrial Services Centre McEwan J. 99

con, we will be piloting a process whereas he will be given an opportunity to access the weights in the South Yard for 30 minutes twice per week. 243 The petitioner’s complaints about his treatment are also reflected in an email on September 18, 2009 from Officer Price to Deputy Warden Phillips: As per our discussion yesterday pertaining to I/M Bacon. I have spoken to Machnyk, Kooner, Heidji and Craig today — Baker was not in. Machnyk — Whenever possible he would try to give him extra time out although he has not always recorded it in Bacon’s clog. [Client Log] • Bacon has never formally requested extra time while he was on duty. - He comments - Bacon is one of these guys that never ask for anything. - Does not know of any formal request for a transfer to another facility. Kooner - Never asked for extra time. • Never offered him any extra time out. - Of late, does not like to come out during his unlock times, if he does, it is usually short and then will self lock. - Does not know of any formal requests for a transfer to another facility. Hedji - Rarely gets extra time out - not always clogged - maybe 1/2 hour max. • Claims he has nothing to do when he is out. - When he first arrived, asked about a transfer to a unit - told the process and explained to ask on morning rounds. - Does not know of a request to transfer to another facility. - Lately, he self locks early. - Rarely does he go into seg yard. Craig - Lately, doesn’t want to come out. • Have asked if he wants extra time - sometimes it is clogged. - Has asked on the occasion to transfer to a living unit - told the process - to speak to an ADW on morning rounds. - Basic complaints are his restrictions on phone cells, visits and mail and feels he should be treated as GP - explained process with respect to speaking to an ADW. I have reviewed I/M Bacon’s clog and note there is no formal complaint(s) received from Mr. Bacon regarding a transfer to another institution. I also note comments from Baker in Bacon clog that she has explained to him the process of completing the inmate complaint form with respect to addressing his concerns. There are also notations from staff Sandhu, Gurpreet regarding Bacon’s timeout - he does not spend the full hour out of his cell - stays in cell most of his allotted time out - claims there is nothing for him to do.

(h) The Petitioner’s Singular Treatment 244 The petitioner points out that the records show he is being treated differently from other inmates, some of whom have been described by the RCMP in the 100 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

press releases tendered as evidence, as among the “top threats to public safety”. Of one such inmate Chief of Police Chu said: We caught the bad guy. This not your average run of the mill bad guy, he is one of the top threats to public safety in the lower mainland. As a result of a multiagency operation involving the VPD, the RCMP and the integrated units, we have arrested the Leader of the UN gang and charged him with two counts of attempted murder. His name is Barzan Tilli Choli. Mr. Tilli Choli has never been held on the strict conditions imposed on the petitioner despite such “media” descriptions. 245 On March 16, 2009, in an email that tends to corroborate the petitioner’s belief that the police have been influencing decisions within SPSC, Officer Gola wrote to Deputy Warden Phillips to say that “the members of the UN Gang that were being held in the Segregation Unit were complaining about their treatment, claiming that Corrections was being influenced by the media and controlled by the police.” Minutes later, Deputy Warden Phillips emails Sergeant Sodi Dhillon of IHIT asking for information about the risks associated with these prisoners because “it may be challenging to keep them housed separately from other inmates much longer without more substance” [Emphasis Added] Sgt. Dhillon replied that these prisoners were members of the UN Gang and would be in danger from any prisoners loyal to the Red Scorpions, the Bacons and any other rival gang members. He said that there could be retaliation against them because they were part of a conspiracy that led to a gang member being shot. If they were released into the general population, Sgt. Dhillon cautioned, they would “reach out” to intimidate or harm victims and witnesses — particularly former associates who are cooperating with the police. Finally, given the fact that they “carry a lot of respect in the gang world” release into the general population could disrupt the natural “pecking order” in the unit. 246 As with the petitioner’s segregation it appears that these inmates’ separation was initially imposed without a specific rationale and that Corrections waited for police to provide backfilling information to justify what they had done. 247 The early emails in the day or two before the petitioner was placed in the SPSC and in the weeks following, suggest in various ways that the petitioner is one of a group (including four others) who were rated “High Risk”. It is clear, however, that over time they have not been treated in the same way that the petitioner has been treated: From: Dix, Steve Sent: Thursday, August 06, 2009 10:35 AM Bacon v. Surrey Pretrial Services Centre McEwan J. 101

To: Davis, Gordon; Cook, Michael; Watts, Kate; Smith, Elliott Cc: Merchant, Brent Subject: UN Gang Members Shelene Rail, Crown Counsel in the Bacon [redacted] is asking if the UN gang members who are in custody (two names provided are redacted in separate confinement as well as Bacon et al. If you have any UN gang members in your centre, please advise me as to their confinement status. From: Smith, Elliott Sent: August 6, 2009 11:33 AM To: Dix, Steve; Davis, Gordon; Cook, Michael; Watts, Kate Cc: Merchant, Brent Subject: RE: UN Gang Members Steve, NFPC has 7 known UN gang members (including redacted) and they are not in separate confinement. From: Davis, Gordon Sent: August 6, 2009 12:45 PM To: Smith, Elliott; Dix, Steve; Cook, Michael; Watts, Kate Cc: Merchant, Brent; Phillips, Steve; Hawboldt, Deb- bie Subject: RE: UN Gang Members SPSC has 3 known UN Gang members [redacted]. When they first arrived at SPSC they were managed under strict security protocols to ensure their personal safety and the safety of others. Based on their performance and our observations the security protocols have changed over time. At this point they are not in separate confinement. 248 With other inmates it appears that the conditions of their confinement over time have relaxed, an indication that corrections has conducted some evaluation of actual risk. That has not been the case with the petitioner. Deputy Warden Phillips told the petitioner at the outset of his one “review” on September 25, 2009 that nothing was going to change regarding the conditions of his confinement. No further “reviews” have been conducted.

(i) Recent Developments 249 In his third affidavit the petitioner also addressed his move to a different cell in a different unit: 85. On November 9, 2009, after I came back from court, a female Correc- tions Supervisor came into my cell and told me that I was being moved to Echo 2. She told me that it would be better there and that I would be able to 102 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

keep everything I had. After consulting with counsel, I packed up the contents of my cell to move to the new unit. When the door to Echo 2 opened, a video camera was shoved in my face and Corrections Supervisor Smith started reading the Unit Briefing to me in a very authoritative tone. While he was reading, other guards were going through my effects. While I had been in Medical Isolation, I had been able to retain bedding that I liked and obtain some extra sheets and blankets. They took all of my old bedding and gave me new bedding — 2 sheets, 2 blankets, a pillow, and a pillowcase. The guards also took some of the clothing that I had been given in my size. I felt like I had been tricked and ambushed. 86. What upset me most were the rules that they read to me. They told me that this was a zero tolerance unit. The rules would be enforced and any infractions would be prosecuted. They told me that this was a no-speaking range. They said that I am prohibited from communicating directly or indi- rectly with any other prisoners on the unit and would be charged if I did. I can only use the cell call button in the case of a “severe medical emergency”. There are no-go zones painted on the floor around the door to each cell. They told me that I would be charged if I went into one of these zones. I attach as Exhibit “K” at 144 to this my Affidavit a copy of the Unit Briefing — Living Unit. 87. There are twelve cells divided on two tiers. My cell is freshly painted and cleaner than the one I left in Medical Isolation. The glass in the window is not frosted so I can see outside. It has a porcelain toilet. It is double-bunked. There is a sign on the back of the door that tells me the rules of the cell. The window in the door of the cell is blocked off so that I cannot see out into the unit. The cell is smaller than the cell I left in Medical Isolation. The worse thing about this cell is that it does not have a shower. Over the past few months, the time that I shower is the only thing in my life that I can control and the only time that I feel like I am not in jail. The television is on top of the storage unit approximately 6 feet off the ground. It is positioned so that I cannot see the TV from the bed and the TV cannot be moved. There is no camera in the cell, but there is a microphone unit right outside my door. The unit is very cold. I have trouble sleeping at night without my extra bedding. 88. I have been told that I will be alone on my time out and that I must not talk to anyone. Once each prisoner has had an hour out, we are supposed to get extra time. For each of the two days that I have been there, however, I have only had one hour out. The common room is larger than Medical Isola- tion and has three round tables in it. I can bring out the chair from my cell if I want to sit at one. The best part is that the unit has a refrigerator/freezer, microwave, coffeemaker, sink and toaster. There is an L-shaped yard that is larger and cleaner than the one in the Segregation Unit. It is more open to the sky but it is still empty concrete and not large enough to run around. There is a shower room and a laundry. The telephones are immediately adjacent to the guard’s desk. Because it is so quiet on the unit, the guards can hear my telephone calls to counsel. Bacon v. Surrey Pretrial Services Centre McEwan J. 103

89. On November 10, 2009, when I was at court, the guards searched my cell. They took my pen, saying that pens are not allowed on a segregation unit. I had to show them my special request form to get my pen back. 90. On balance, my new cell is worse than the cell that I had in Medical Isolation, but the amenities when I am allowed my hour out are better. I am particularly concerned, however, about the lack of privacy for telephone calls to counsel and the heightened degree of isolation. 91. I feel completely cut off in my cell. The Segregation Unit always seemed to be noisy. This unit is dead silent. There are 2-5 guards on the unit but I never hear them talking to one another. When I have my hour out, they do not talk to me. It is very awkward. I believe that there are four other prisoners on this unit, because I have seen file folders and dinner carts, but I have not seen or heard the prisoners. The Segregation Unit seems relaxed by com- parison. The rules are much more “in your face” here. It is higher security. It is much more isolated. 250 None of the petitioner’s descriptions of conditions in Echo 2 is contradicted. 251 The documentary information available after the disclosure order is helpful in two respects. First the records serve to reconcile certain evidentiary differences between the petitioner and the respondent. Second, the policy manual serves as a useful “standard” against which the several administrative deficien- cies alleged by the petitioner can be measured. 252 Although by no means exhaustive of the material or its nuances, the review far set out so far is, in my view, sufficient to illustrate the foundation for certain conclusions of fact. It reflects the state of the record when submissions had apparently closed and the matter was left to the court to deliberate.

(j) Recording of Privileged Telephone Calls 253 There was one further, unexpected, matter of disclosure. On December 4, 2009, the Court received a letter from counsel for the respondent and the Attor- ney General: During argument in this case, your Lordship and I engaged in an exchange relating to the rights of an inmate incarcerated at Surrey Pre-Trial Services Centre. We may have been referring either to a hypothetical inmate or to the applicant. I do not have a transcript of the exchange. In any event, in responding to a proposition asserted by your Lordship, I agreed that an inmate’s privileged communications would not be monitored. Obviously, both the proposition and the answer accord with the Corrections Act and Correc- tions Act Regulation. After the conclusion of the hearing, prompted by a different process, the respondent learned that communications between the applicant and Ms Eldred were mistakenly recorded as part of the system for recording non-privileged inmate communications generally. Furthermore, it appears that staff listened to small portions of those recorded communications. 104 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

I have not listened to the recordings in question and did not know they existed when this hearing was in progress before you. The recorded communications have been sealed and are being conveyed to the applicant through counsel. Given the exchange to which I have referred above, your Lordship was likely left with the impression (only recognized as inaccurate after the fact) that the applicant’s privileged communications were not recorded or monitored. Accordingly, this letter is being employed as the most expeditious way in which to bring this information to your Lordship’s attention before you render judgment. You may or may not consider it relevant to the issues before you in these particular proceedings. In the circumstances, the respondent will reappear before you as you may direct. 254 This notice prompted a series of further appearances. On January 20, 2010 Deputy Warden Phillips — by this time independently represented and reassigned within the Corrections Branch to a “temporary special project” — filed another affidavit which included the following: 17. On perhaps four or five occasions, probably in the period April to May or June, when I clicked onto a particular telephone recording I heard James Ba- con speaking. I did not recognize the telephone recording as a call to a lawyer prior to clicking onto the recording, as there is no name associated on the computer screen, as discussed above. I was not interested in any calls in which Mr. Bacon was the caller, since my concern was to search for calls in which other inmates were calling Mr. Bacon’s known associates. Therefore, as soon as I heard Mr. Bacon’s voice, I immediately stopped listening. I did not have to wait to hear who Mr. Bacon was asking for, or an indication that the person on the other end was a lawyer. I simply stopped the recording, and went on to the next call. 18. On each of these instances, I heard no more than a few seconds of conversation. Anything heard by me during these occasions was by inadver- tence, and included words such as “This is James Bacon”. I did not know who the called party was, and whether it was an office, mobile, or personal number, although on one occasion I heard “This is James Bacon, may I speak to Kim Eldred?” I did not forward or otherwise pass on a copy of any recording to anyone else, including the RCMP, Crown counsel, or any government lawyer or other official. Indeed, until this matter recently arose in Mr. Bacon’s Petition proceedings, I did not communicate or mention these few words to anyone. 19. In retrospect, if I had reflected further on what I had heard, I would have realised that Mr. Bacon’s lawyers’ numbers had not been inputted into the ICCS correctly. I regret that I did not do so. In listening to many thousands of calls, I occasionally hear calls to lawyers as described above, because neither the inmate nor his lawyer has requested that calls to the number not be recorded. This happens particularly when a lawyer obtains a new mobile phone, and no steps have been taken to have the number placed in the system as a “Free cut through and privileged” number. Even where steps are taken it Bacon v. Surrey Pretrial Services Centre McEwan J. 105

may take a day or two for staff to deal with the request, verify the number, and make the necessary changes. 20. In such cases, I do not normally take steps to investigate whether the number should be added to the list of privileged numbers. I would expect that such steps either already had been taken or would be taken shortly, because I would expect the caller and/or the recipient to know that the call was being recorded. Until I was required to investigate the operation of the DRS for other proceedings in November of 2009, I was not sure of the actual messages that were delivered to callers and/or recipients, or in what cases the messages would be delivered, as I had never had cause to research the mes- saging aspect of the ICCS. As a result of that investigation, I became aware on or about 5” November 2009 that calls marked “free cut through” but not privileged would deliver a message to the caller that the call was being recorded, but not to the recipient. 21. In Mr. Bacon’s case I was aware that none of his calls should have been recorded, because he was only permitted to make privileged calls. The fact I heard calls on several occasions, and that at least one of them was clearly to a law office, all should have triggered a concern that the ICCS had not been properly set up for the relevant numbers. Because my mind was on the task at hand, and I was moving quickly through a large number of calls, it did not occur to me that there was a problem that I should take steps to correct. As I have said, it was not my practice to investigate whether numbers should be added to the privileged list, as other persons in the Surrey Pre-Trial Services Centre generally performed that task. 22. The fact that a significant number of privileged calls were recorded until November of 2009 is regrettable, and has exposed weaknesses in the system. My failure to put right the mistake was not the result of any conscious decision by me that the calls should be recorded. Rather it was simple inadver- tence, for which I apologise. I repeat that I have not heard anything other than the first few seconds of four or five calls, which consisted of Mr. Bacon introducing himself and on one occasion asking for Ms. Eldred. I also repeat that I did not communicate any information or copy of the recording to any other person. 255 The extent to which privileged calls were logged, and where the recordings were distributed in the electronic system is subject to further investigation through an independent supervising solicitor appointed by this Court. I will not comment on this aspect of the case further. It will be the subject of adjudication in due course. The only purpose for which I mention it at this juncture is to establish that even privileged calls to lawyers were not respected in the respondent’s treatment of the petitioner. Given the discussion in Court and the respondent’s earlier affidavits about telephone and the telephone system, it is clear that there is a serious problem with the level of candour and openness the Court is entitled to expect of public servants. 106 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

XI Summary (a) The Petition 256 The respondent’s treatment of the petitioner demonstrates a fundamental misapprehension of Corrections’ mandate under the Warrant of Committal. Just as the police, acting as jailers following the issue of the Warrant, failed to behave as jailers, the respondent and those reporting to her failed to behave as jailers, in acting instead as agents for the police. Although this summary proceeding is concerned only with the respondent’s treatment of the petitioner, there are disturbing indications of systemic arrangements that promote or abet the merger of the roles of police and of corrections. This is reflected in the clo- sure of the SPSC centre to admissions on weekends, and in the job descriptions tendered by the respondent. 257 The petitioner’s initial placement in segregation was a choice guided by the police estimation of his culpability relative to others admitted at the same time. He was not assessed as a high risk offender, as Deputy Warden Phillips flatly and incorrectly asserted. Applying the ordinary criteria, the petitioner was, in fact, specifically assessed not to pose a high risk. The decision to place the petitioner in separate confinement was police-driven: “The police have asked that they all remain separate from each other and other inmates.” (per Officer Strat- ton on April 5, 2009, see para. 177 herein). The next line in that particular communication, “It seems the courts have also asked for a no contact”, appears to be an afterthought. In fact, “the courts” (the judicial justice of the peace) had only directed that there be no contact between the petitioners and two co-accused. 258 Although the placement of one inmate in segregation was considered a short-term option by Officer Stratton (see para. 177 herein) there appears to have been little question that the petitioner would be that person. Despite the respondent’s elaborations of the differences between “separate confinement” and “segregation”, her officers routinely refer to the petitioner’s placement as “seg” and “segregation”. Although “segregation” (in the context of SPSC) often describes a place, the materials repeatedly demonstrate that treatment follows location, such that the petitioner has been routinely deprived of “privileges” because rules in segregation do not permit them. 259 There has been no systematic attempt to mitigate the petitioner’s circumstances on the basis that, despite being housed in segregation, he was entitled to the standard of treatment of an ordinary remand prisoner. Rather he was treated as a prisoner who was being perpetually punished: the only practical effect of the distinction between “separate confinement” and “segregation” was that by applying the semantic fiction of “separate confinement” for “protective” purposes the deprivations could go on indefinitely. 260 As bad as this was, the petitioner’s initial placement in “seg” was immediately exacerbated by the imposition of further isolating deprivations. Bacon v. Surrey Pretrial Services Centre McEwan J. 107

261 On April 6 and again on April 8, 2009 Deputy Warden Phillips unquestioningly implemented a police request to limit the petitioner’s contact with the outside world exclusively to contact with his solicitors, saying, “[t]he RCMP has requested that l/M Bacon’s access be limited to legal/privileged calls only for the time being” (see paras. 180-181 herein). It is very clear that the priority was to protect the police case, and that the respondent simply accepted the police estimate of what the petitioner “might” do, as the test for how he would be treated. The administration acted unquestioningly and with no specific grounds other than “the police say so”. This was evident in their repeated after-the-fact requests for some rationale to support what they had done. Such relaxation of restrictions on the petitioner’s visits with his parents as there were, were entirely driven by the police. 262 This wholesale suspension of contact with others was at odds with the right of an inmate to personal “visits” and to “reasonable access to the telephone”. It specifically runs afoul of Manual s. 1.11.8: “Restrictions on visiting are not imposed arbitrarily or without cause” (see para. 224 herein). So was the presentation of the petitioner to the police or the pretext that his lawyer had come to visit. The inmate is entitled to his preferences respecting visitors (s. 1.11.9.) (see para. 224 herein). 263 The respondent’s handling of the petitioner’s mail betrays an eagerness to help the police which is quite at odds with her responsibility, as set out in the Manual at s. 7.4.7 (see para. 227 herein). 264 The respondent appears to have overlooked the fact that her power to monitor visits, telephone calls, and mail in order to detect matters coming within the range of activities listed in s. 14 of the Regulation give her the means to facilitate positive social contact while protecting the institution and outsiders from abuses. She was perfectly entitled to respond to illegal behaviour by reporting it to the police. Otherwise, as s. 7.8.14 of the Manual makes clear (see para. 228 herein), the police have no greater right to information about an inmate than they have against a person on the street. The release of records requires legal authorization. The respondent misused her power to conduct mail surveillance to protect the institution from the behaviours enumerated in s. 14, to assist the police, sharing the information without legal authorization. She continues to do so, despite the fact that, even by her standards, there has been nothing of note in the mail for months. This shows none of the restraint called for in s. 7.4.7 and s. 7.8.15 of the Manual (see paras. 227 and 228 herein). 265 The petitioner’s ability to address these incursions has been negated by the respondent’s approach to the periodic reviews mandated by the legislation. Be- cause the respondent has inappropriately substituted a test of what the petitioner might do for the tests set out in the Regulation, and substituted police-driven media reports for evidence, the petitioner has been left in a position where he was unable to demonstrate adherence to any achievable standard in order to 108 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

work his way out of the restrictions imposed upon him. Due process for the petitioner at the hands of the respondent has been characterized by perfunctory adherence to form, and a near-total disregard of substance. 266 In summary, with respect to the allegations set out in the petition, the evidence supports the following findings: 1. The respondent has handled the Petitioner’s mail in a manner that is not prescribed by the Correction Act, S.B.C. 2004, c. 46 and the Correction Act Regulation, B.C. Reg. 58/2005; 2. The respondent has exercised the powers vested in her for the improper purpose of seeking to assist the police in a criminal investigation; 3. The respondent has failed to exercise her discretion under the Correction Act Regulation by allowing the police to unduly influence her placement of the petitioner in separate confinement, and in her imposition of further deprivations; 4. The respondent has repeatedly failed to properly consider her legal duties under the Correction Act and Regulation in relation to outside contacts in person and by telephone and in relation to the mail. 267 As we have seen the respondent has also improperly interrupted and recorded the petitioner’s privileged communications, a fact that was not pleaded at the outset because it was not known.

(b) The Habeas Corpus Application 268 The habeas corpus application and the petition for declarations respecting the manner in which visits, telephone access and mail have been handled are interrelated. Part of the petitioner’s claim is that the deprivation of liberty he has suffered has not only been unlawful, but that it amounts to cruel and unusual treatment in violation of s. 12 of the Charter of Rights and Freedoms, or to a deprivation of liberty and security of the person in a manner inconsistent with the principles of fundamental justice, in violation of s. 7 of the Charter. 269 Among the justifications offered by the respondent for confining the petitioner in a cell meant for punishment — for a period longer than the maximum term imposed as punishment, in circumstances that included virtually the same deprivations (down to pens and nail clippers, and asthma inhalers) as those imposed on inmates who are being punished — is that resources are straitened. That can hardly be an excuse, however, for treating one presumptively innocent inmate worse than another. It is, in fact, a compelling reason why measures to compensate for the specific hardships related to the resource limitations of the physical plant ought to have been implemented. 270 Instead, because the respondent has apparently come to think of herself as an extension of the police, and of remand prisoners as placed in her custody not for Bacon v. Surrey Pretrial Services Centre McEwan J. 109

safe-keeping but for surveillance at the behest of the police, virtually everything has been done that could be done to further isolate the petitioner.

XII Norms for the Treatment of Prisoners 271 Before moving on to consider the legal implications of the combined effects of solitary confinement and the respondent’s unlawful additional deprivations in relation to visits, telephone access, and mail, it may be useful to briefly review some of the material tendered by the petitioner respecting international norms for the treatment of prisoners, the Canadian experience as reflected in the Report of the Commission of Inquiry into Certain Events at the Prison for Women in Kingston, and briefly, an American Report on safety and abuse in American prisons.

(a) International Norms 272 There are numerous published articulations of a general principle that prisoners should be treated with respect, and in a manner that acknowledges the inherent dignity of the human person. It is antithetical to international norms to say that imprisonment implies an absence of rights mitigated only by the discre- tionary allocation of privileges. The concept that prisoners retain their human rights and fundamental freedoms subject to lawful incarceration is found in the United Nations’ Basic Principles for the Treatment of Prisoners, 14 December 1990, GA 45/11, which states that “all prisoners shall be treated with the respect due to their inherent dignity and value as human beings.” The limitations imposed by confinement do not negate this principle: “[a]ll prisoners shall be treated with the respect due to their inherent dignity and value as human beings.” ... 5. Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Po- litical Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants. United Nations, Basic Principles for the Treatment of Prisoners, 14 December 1990 at Principle 5, http://www2.ohchr.org/english/law/basicprinciples.htm [hereinafter the “UN Principles for the Treatment of Prisoners”]. 273 In line with the principle that prisoners retain their human rights, torture, and cruel, inhuman, or degrading treatment are prohibited. Article 7 of the United Nations’ International Covenant on Civil and Political Rights 23 March 1976, GA 2200 (the “ICCPR”) provides that no one “shall be subjected to torture or 110 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

cruel inhuman or degrading treatment or punishment”. Article 4(2) provides that there can be no abrogation of this right even in times of “public emergency which threatens the life of the nation”. 274 The prohibition against torture applies not only to the infliction of physical pain but also to mental suffering. It has been specifically considered in Canada in Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 (S.C.C.). There, the Court set out the use to which international norms may be put in Canadian Courts: 60 International treaty norms are not, strictly speaking, binding in Canada unless they have been incorporated into Canadian law by enactment. How- ever, in seeking the meaning of the Canadian Constitution, the courts may be informed by international law. Our concern is not with Canada’s international obligations qua obligations; rather, our concern is with the principles of fundamental justice. We look to international law as evidence of these principles and not as controlling in itself. 275 The Court considered the ICCPR in Suresh, where the fact situation involved the potential for deportation to torture. The Court commented on the impact international law has on the interpretation of domestic Constitutional rights: 76 The Canadian rejection of torture is reflected in the international conventions to which Canada is a party. The Canadian and international perspec- tives in turn inform our constitutional norms. The rejection of state action leading to torture generally, and deportation to torture specifically, is virtually categoric. Indeed, both domestic and international jurisprudence suggest that torture is so abhorrent that it will almost always be disproportionate to interests on the other side of the balance, even security interests. This suggests that, barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter. To paraphrase Lord Hoffmann in Rehman, supra, at para. 54, states must find some other way of ensuring national security. 276 The United Nations’ Conventions against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, GA 39/46, to which Canada is a signatory, defines torture in a manner that applies to mental as well as physical suffering: Article 1 For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coerc- ing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. Bacon v. Surrey Pretrial Services Centre McEwan J. 111

It also provides that the party states are equally obliged to prevent acts of cruel inhuman or degrading treatment, short of those that amount to torture: Article 16 1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment. 277 The international community has commented specifically on the issue of solitary confinement. There are several definitions of “solitary confinement” but the consensus is that it is the act of physically isolating prisoners by confining them alone in their cells for 22 or more hours per day. The Istanbul statement on the use and effects of solitary confinement, adopted December 9, 2007 at the International Psychological Trauma Symposium, offers the following definitions: Solitary confinement is the physical isolation of individuals who are confined to their cells for twenty-two to twenty-four hours a day. In many juris- dictions prisoners are allowed out of their cells for one hour of solitary exercise. Meaningful contact with other people is typically reduced to a minimum. The reduction in stimuli is not only quantitative but also qualitative. The available stimuli and the occasional social contacts are seldom freely chosen, are generally monotonous, and are often not empathetic. 278 The international community recognizes that the effects of solitary confinement may extend not only to matters of an inmate’s health and well-being, but, with respect to pre-trial incarceration, to prejudice to due process itself. In “Soli- tary Confinement: An introduction to The Istanbul Statement on the Use and Effects of Solitary Confinement” (2008) 18 Journal of Rehabilitation of Torture Victims and Prevention of Torture 56, P.S. Smith notes at 61-62: Recent thorough attempts to gather and review the available studies have however reached conclusions which in terms of health effects disfavour the use of solitary confinement. Especially by extensively covering material from not only North America but also Europe and other regions it has now become clear that both qualitative and quantitative studies in fact do exist, which a) can satisfy not only qualitative/hermeneutic but also positivistic scientific standards, and b) clearly document how solitary confinement practices in prison have detrimental health effects. In that sense the debate can now be considered settled in so far as the basic issue is concerned and it can be concluded that “solitary confinement — regardless of specific conditions and regardless of time and place — causes serious health problems for a significant number of inmates. The central harmful feature is that it reduces 112 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

meaningful social contact to an absolute minimum: a level of social and psychological stimulus that many individuals will experience as insufficient to remain reasonably healthy and relatively well functioning. [footnotes omitted] ..... When used during pre-trial, solitary confinement can sometimes pressure prisoners into confessing or giving evidence regardless of the motives behind imposing the isolation. This is, technically speaking, illegal in the case of Denmark, where the above described use of solitary confinement is subject to judicial supervision and can only be imposed to avoid collusion. But solitary confinement can also be used purposely as a part of coercive interrogation. This can be during pre-trial detention, as was sometimes the case in the former Soviet Union and in South Africa during Apartheid. Such practices are also used together with other forms of detention, for example, in connection with war scenarios and various kind of covert intelligence work. It is well known how the United States, during recent years, have used solitary confinement, along with several other techniques, as a coercive measure in order to gain intelligence from detainees at Guantanamo and in facilities in Iraq and Afghanistan. [footnotes omitted]. 279 The Interim Report of Manfred Nowak the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to the 63rd session of the United Nations on July 28, 2008 contains the following preface: In section IV, the Special Rapporteur examines the use of solitary confinement. The practice has a clearly documented negative impact on mental health, and therefore should be used only in exceptional circumstances or when absolutely necessary for criminal investigation purposes. In all cases, solitary confinement should be used for the shortest period of time. The Spe- cial Rapporteur draws attention to the Istanbul Statement on the Use and Effects of Solitary Confinement, annexed to the report, as a useful tool to promote the respect and protection of the rights of detainees. It includes the following description of the effects of solitary confinement touching particularly on its use in remand: The effects of solitary confinement It has been convincingly documented on numerous occasions that solitary confinement may cause serious psychological and sometimes physiological ill effects. Research suggests that between one third and as many as 90 per cent of prisoners experience adverse symptoms in solitary confinement. A long list of symptoms ranging from insomnia and confusion to hallucinations and psychosis have been documented. Negative health effects can occur after only a few days in solitary confinement, and the health risks rise with each additional day spent in such conditions. Individuals may react to solitary confinement differently. Still, a significant number of individuals will experience serious health problems regardless of Bacon v. Surrey Pretrial Services Centre McEwan J. 113

the specific conditions, regardless of time and place, and regardless of pre- existing personal factors. The central harmful feature of solitary confinement is that it reduces meaningful social contact to a level of social and psychological stimulus that many will experience as insufficient to sustain health and well-being. The use of solitary confinement in remand prisons carries with it another harmful dimension since the detrimental effects will often create a de facto situation of psychological pressure which can influence the pre-trial detainees to plead guilty. When the element of psychological pressure is used on purpose as part of isolation regimes such practices become coercive and can amount to torture. Finally, solitary confinement places individuals very far out of sight of justice. This can cause problems even in societies traditionally based on the rule of law. The history of solitary confinement is rich in examples of abusive practices evolving in such settings. Safeguarding prisoner rights therefore becomes especially challenging and extraordinarily important where solitary confinement regimes exist. The special Rapporteur also outlines the following policy implications that flow from a recognition of the effects of solitary confinement: Policy implications Solitary confinement harms prisoners who were not previously mentally ill and tends to worsen the mental health of those who are. The use of solitary confinement in prisons should therefore be kept to a minimum. In all prison systems there is some use of solitary confinement — in special units or prisons for those seen as threats to security and prison order. But regardless of the specific circumstances, and whether solitary confinement is used in connection with disciplinary or administrative segregation or to prevent collusion in remand prisons, effort is required to raise the level of meaningful social contacts for prisoners. This can be done in a number of ways, such as raising the level of prison staff-prisoner contact, allowing access to social activities with other prisoners, allowing more visits, and allowing and arranging in-depth talks with psychologists, psychiatrists, religious prison personnel and volunteers from the local community. Especially important are the possibilities for both maintaining and developing relations with the outside world, including spouses, partners, children, other family and friends. It is also very important to provide prisoners in solitary confinement with meaningful in-cell and out-of-cell activities. ... Furthermore, when isolation regimes are intentionally used to apply psychological pressure on prisoners, such practices become coercive and should be absolutely prohibited. As a general principle solitary confinement should only be used in very exceptional cases, for as short a time as possible and only as a last resort. 280 In his final report submitted on October 23, 2008 the Special Rapporteur makes the following statement condemning the use of solitary confinement: The weight of accumulated medical and psychological evidence, to date, points to the serious and adverse health effects of the use of solitary confine- 114 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

ment: from insomnia and confusion to hallucinations and mental illness. The key adverse factor of solitary confinement is that socially and psychologically meaningful contact is reduced to the absolute minimum, to a point that is insufficient for most detainees to remain mentally well functioning. Given the uncertainty as to the length of isolation, pre-trial detainees may be affected even more negatively than other detainees by the long-term isolation. 281 There are numerous additional elaborations on these findings and recommendations. On April 24, 2009 the Special Rapporteur recommended judicial supervision of solitary confinement: The bottom line in terms of human rights is clear: States have a positive obligation to respect all human rights of any person deprived of his/her liberty, except for those which are restricted by a court decision. Also, the courts have to apply a proportionality test to all restrictions they impose. Moreover, since humiliating and degrading treatment and punishment are strictly forbidden under international law, any State must ensure that the conditions of detention facilities in their entirety do respect the dignity of the person — this is also with a view to the fact that rehabilitation and re-integration should be the ultimate aim of any penitentiary system. 282 The following observations from “Commentary to Recommendation Rec (2006) 2 of the Committee of Ministers of Member States on the European Prison Rules”, are pertinent to the obligation of the SPSC under the Warrant of Committal to keep a remand prisoner “safe”: When a state deprives people of their liberty it takes on a responsibility to look after their health in terms both of the conditions under which it detains them and of the individual treatment that may be necessary. Prison administrations have a responsibility not simply to ensure effective access for prisoners to medical care but also to establish conditions that promote the well being of both prisoners and prison staff. Prisoners should not leave prison in a worse condition than when they entered. This applies to all aspects of prison life, but especially to healthcare. With regard to the sort of rationale adopted by the respondent to justify the restrictions it has imposed on the petitioner’s communication with others, the Commentary includes the following observation: It may also be necessary to limit communication in order to meet the needs of continuing criminal investigations, to prevent the commission of further crime and protect victims of crime. Restrictions on these grounds should be imposed with particular caution, as they require decisions about matters often outside the knowledge of the normal operations of the prison authorities. It may be good policy to require court orders before making restrictions on these grounds. Monitoring too should be proportionate to the threat posed by a particular form of communication and should not be used as an indirect way of restricting communication. Bacon v. Surrey Pretrial Services Centre McEwan J. 115

(b) Canadian Norms 283 In the Commission of Inquiry into Certain Events at the Prison for Women in Kingston (Ottawa: Canada Communication Group, 1996), the Honourable Lou- ise Arbour, Commissioner, reported to the Solicitor General of Canada “on the state and management of that part of the business of the Correctional Service of Canada that pertains to the incidents that occurred at the Prison for Women in Kingston, Ontario, beginning on April 22, 1994.” The inquiry identified serious shortcomings in the Correctional Service of Canada which manages Canada’s federal penitentiaries. Several of Commissioner Arbour’s observations are relevant to the case at bar. In the Preface, she describes the setting of Corrections as follows: Corrections is the least visible branch of the criminal justice system. Occa- sions such as this, where its functioning is brought under intense public scrutiny, are few and far between. This may explain the discomfort of Correc- tions officials in handling this level of public attention. The lack of public scrutiny is in stark contrast to accountability processes in the law enforcement and judicial branches of the criminal justice system. Through hundreds of criminal trials and appeals, systemic shortcomings and individual per- formances of police officers, prosecutors and judges are examined publicly in a robust adversarial fashion. Anyone familiar with criminal law enforcement, and with the prosecutorial and trial processes, would identify the presumption of innocence as the principle that animates the many rights granted by law to a person charged with a criminal offence. The risk of convicting an innocent person is not one which we would assume lightly. A fair criminal process produces reliable convictions and, as a result, the management of a custodial sentence does not have to be plagued with uncer- tainties about the legitimacy of the enterprise. However, even though the presumption of innocence is displaced by the conviction, in the imposition of punishment, all authority must still come from the law. Parliament authorizes the imposition of certain sentences; the courts impose them and corrections officials implement the court orders. A guilty verdict followed by a custodial sentence is not a grant of authority for the State to disregard the very values that the law, particularly criminal law, seeks to uphold and to vindicate, such as honesty, respect for the physical safety of others, respect for privacy and for human dignity. The administration of criminal justice does not end with the verdict and the imposition of a sentence. Corrections officials are held to the same standard of integrity and decency as their partners in the administration of criminal law. 284 Commissioner Arbour commented at p. 142 on the impact of prolonged segregation: It is not surprising that the prolonged deprivation and isolation associated with the segregation of these inmates was seriously harmful to them. In Oc- 116 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

tober of 1994, the prison’s psychologists advised the prison staff of the psychological ill effects being suffered by the women. Their report read: Many of the symptoms currently observed are typical effects of long-term isolation and sensory deprivation. One thing which seems to have increased the deprivation in this current situation is the new grillwork which has been put up on the cells. The following symptoms have been observed: • perceptual distortions • auditory and visual hallucinations • flashbacks • increased sensitivity and startle response • concentration difficulties and subsequent effect on school work • emotional distress due to the extreme boredom and monotony • anxiety, particularly associated with leaving the cell or seg area • generalized emotional liability at times • fear that they are “going crazy” or “losing their minds” because of limited interaction with others which results in lack of external frames of reference • low mood and generalized sense of hopelessness Part of this last symptom stems from a lack of clear goals for them. They do not know what they have to do to earn privileges or gain release from segregation. At the present time there is no incentive for positive behaviour. Their behaviour has been satisfactory since their return from RTC but has not earned them additional privileges, nor have they been informed that their satisfactory behaviour will result in any change of status. If the current situation continues it will ultimately lead to some kind of crisis, including violence, suicide and self-injury. They will become desperate enough to use any means to assert some form of control of their lives. The constant demands to segregation staff is related to needs for external stimulation and some sense of control of their lives. The segregation of these inmates continued for between two and a half to three months after these observations were made. 285 The six inmates involved in the incident giving rise to the Commission had been placed on “administrative detention” (in British Columbia, “separate confinement”). Commissioner Arbour made the following observations of their treatment, at 144: The prolonged segregation of the inmates and the conditions and management of their segregation was again, not in accordance with law and policy, Bacon v. Surrey Pretrial Services Centre McEwan J. 117

and was, in my opinion, a profound failure of the custodial mandate of the Correctional Service. The segregation was administrative in name only. In fact it was punitive, and it was a form of punishment that courts would be loathe to impose, so destructive are its consequences. I will return to the broader issues raised by segregation later in this report. In comparing the conditions of detention under which these inmates were segregated in 1994 with the conditions that prevail in the protective custody side of segregation, the harsh and punitive aspect of their confinement is bla- tant. It seems that efforts are made to ease the plight of inmates who have to be segregated from the general population for their own safety. Their cells are decorated with personal objects, and their small unit contains visible signs of crafts, games and playing cards, etc. It would seem that when a legal mandate is clearly understood by prison authorities, and when they agree with the intent and purpose of the law, they have no difficulty in complying, not only with the letter, but with the spirit of the law. The evidence in this case demonstrates that there was at the Prison for Women little grasp of the legal framework governing the notion of administrative segregation, and, in this case, little willingness to manage it in a non-punitive fashion. The most objectionable feature of this lengthy detention in segregation was its indefiniteness. The absence of any release plan in the early stages made it impossible for the segregated inmates to determine when, and through what effort on their part, they could bring an end to that ordeal. This indefinite hardship would have the most demoralizing effect and, if for that reason alone, there may well have to be a cap placed on all forms of administrative segregation. I will return to this later. If the segregation review process was designed to prevent endless, indetermi- nate segregation, by imposing a periodic burden on the prison authorities to justify further detention, it proved to be a total failure in this case. Essen- tially, the segregation review process reversed the burden and assumed, in virtually every instance, that release had to be justified. In many instances, the reasons advanced for maintaining the segregation status would have been entirely unacceptable to trigger segregation in the first place. 286 Commissioner Arbour addressed the rule of law and its application to Cor- rections, at 179: It is apparent that the legal order must serve as both the justification and the code of conduct for correctional authorities since the confinement of persons against their will has no other foundation; it is not justifiable on self-evident moral grounds; it is not required on medical, humanitarian, charitable or any other basis. The coercive actions of the State must find their justification in a legal grant of authority and persons who enforce criminal sanctions on behalf of the State must act with scrupulous concern not to exceed their authority. 118 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

287 Her review of the Corrections system led her to make the following observations on the importance of the rule of law in protecting prisoners’ right, at 182- 183: Ultimately, I believe that there is little hope that the Rule of Law will im- plant itself within the correctional culture without assistance and control from Parliament and the courts. ... One must resist the temptation to trivialize the infringement of prisoners’ rights as either an insignificant infringement of rights, or as an infringement of the rights of people who do not deserve any better. When a right has been granted by law, it is no less important that such right be respected because the person entitled to it is a prisoner. Indeed, it is always more important that the vigorous enforcement of rights be ef- fected in the cases where the right is the most meaningful. For example, the right not to be subjected to non-consensual body cavity searches is not particularly valuable to those who are unlikely ever to be subjected to such an intrusive procedure. It is only valuable, and therefore should be enforced with the greatest vigour, in cases where such searches are likely to be under- taken. In the same way, the right for a woman not to be subjected to a strip search by a man is of little significance to someone who has never been and is realistically unlikely to ever be strip searched by anyone. Respect for the individual rights of prisoners will remain illusory unless a mechanism is developed to bring home to the Correctional Service the serious consequences of interfering with the integrity of a sentence by misman- aging it. The administration of a sentence is part of the administration of justice. If the Rule of Law is to be brought within the correctional system with full force, the administration of justice must reclaim control of the legality of a sentence, beyond the limited traditional scope of habeas corpus remedies. 288 Commissioner Arbour discussed the Courts’ expectations when they impose a sentence at 183: Judges who impose sentences expect that their sentence will be administered in accordance with the law. If that is departed from, the integrity of the sentence is at stake, and may need to be restored. A sentence of imprisonment is comprised not only of a fixed term, expressed by the judge, but also of all the stipulations contained in the Corrections and Conditional Release Act, or in the Criminal Code, or in any other statute or regulation governing imprisonment. It would be unthinkable that the Correctional Service could illegally modify the duration of a sentence with impunity. This is the essence of habeas corpus. It is difficult to comprehend why there should be more tolerance for the disregard of other terms and conditions of a sentence which are as essential to its integrity as is its duration. Bacon v. Surrey Pretrial Services Centre McEwan J. 119

These comments are also applicable to the Courts’ expectation of the court that pre-trial incarceration will be administered in accordance with the mandate to keep the prisoner “safe” until dealt with by operation of law. 289 Commissioner Arbour reviewed the effects of segregation with reference to the federal statute which parallel the terms of the Correction Act applicable to the petitioner at 185-187: The Corrections and Conditional Release Act provides for two forms of in- voluntary segregation. The first is entitled administrative segregation. Its purpose is to keep an inmate from associating with the general inmate population. It can be used whenever the institutional head has reasonable grounds to believe that the continued presence of the inmate in the general population jeopardizes the security of the penitentiary or the safety of any person, including the inmate’s own safety, or would interfere with a serious investigation. Further, the institutional head must be satisfied that there is no alternative but to segregate the inmate, and must ensure that the inmate is returned to the general population as soon as possible. Segregation may also be used for disciplinary purposes, after an inmate has been found guilty of a serious disciplinary offence. Segregation is the most severe form of punishment that can be administered as a disciplinary sanc- tion. Even at that, it is limited to a maximum of 30 days, which can be increased to a maximum of 45 days for multiple convictions. In addition to being segregated as punishment for institutional offences, and when there are administrative concerns about security and safety, prisoners are withdrawn from the general population, sometimes at their own request, for a short period of “time out”, or for longer term protective custody. They are also segregated, voluntarily or not, in times of crisis, when at risk of self- injury or suicide. In reality, both protective custody and administrative segregation often lead to inmates being in isolation for months, if not years. Michael Jackson has described solitary confinement as “the most individually destructive, psychologically crippling and socially alienating experience that could conceivably exist within the borders of the country”. During the Commission’s Phase II consultations, many participants spoke of the pain, anxiety and desperation which is experienced by inmates placed in segregation. Some of my earlier findings are consistent with these experiences and opinions. Whether there are any significant effects which result specifically from confinement in administrative segregation has been debated extensively in the scientific and criminological communities and has significant implications for the management of correctional institutions as they currently operate. There is a small body of research, much of which has been generated in Can- ada, which asserts that “long-term imprisonment and specific conditions of confinement such as solitary, under limiting and humane conditions, fail to show any sort of profound detrimental effects”. This research is of little util- ity in evaluating the effects of solitary confinement as it is currently administered in penitentiaries, particularly on women. Virtually all of the studies 120 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

which claim to have found no negative effects of segregation have been carried out on male volunteers, often undergraduate college students. Studies carried out in the prison context employed volunteer male inmates. These volunteers knew the specific length of time that they would be held in segregation (usually for between four and seven days) and the specific conditions under which they would be held. Inmates with histories of psychiatric, behavioural, or medical problems were screened out of the research. In addition, volunteers were told that they would be released if they changed their minds, or began to suffer serious negative effects. None of the studies used women. In contrast, there is a body of clinical literature which supports the view that the effects of long-term segregation on prisoners are deleterious to their mental health. Grassian concluded from his research on inmates that “rigidly imposed solitary confinement may have substantial psychopathological effects and ... these effects may form a clinically distinguishable syndrome.” In that study, he found the inmates suffering from, among other things, perceptual distortions such as hallucinations, affective disturbances such as massive anxiety, difficulties thinking, disturbances in thought content, problems with impulse control and rapid subsidence of symptoms on termination of isolation. Similarly, Benjamin and Lux found evidence from the experience of prisoners and prison psychologists, of damage in the form of cognitive im- pairment (e.g. concentration, memory, hallucinations) and emotional impair- ment (feelings of hopelessness, depression, rage and self-destructiveness) as a result of detention in solitary confinement. All this is consistent with my previous findings, as well as with many of the views that were expressed during Phase II of the proceedings. A number of studies have noted the additional impact of the treatment of inmates while in segregation. These include negative interactions with staff, the frequent violation of the rules and regulations governing detention in segregation, and the uncertainty of release for inmates held in administrative segregation. The findings that I made earlier support the conclusion that prolonged segregation is a devastating experience, particularly when its duration is unknown at the outset and when the inmate feels that she has little control over it.

(c) American Norms 290 American authorities have come to similar conclusions. In J. Gibbons and N. Katzenbach “Confronting Confinement: A Report of the Commission on Safety and Abuse in America’s Prisons”, (New York: Vera Institute of Justice, 2006), the Commission observed at I. 3: Separating dangerous or vulnerable individuals from the general prison population is part of running a safe correctional facility. In some systems around the country, however, the drive for safety, coupled with public demand for tough punishment, has had perverse effects: Prisoners who should be housed at safe distances from particular individuals or groups of prisoners end up Bacon v. Surrey Pretrial Services Centre McEwan J. 121

locked in their cells 23 hours a day, every day, with little opportunity to be productive and prepare for release. People who pose no real threat to anyone and also those who are mentally ill are languishing for months or years in high-security units and “supermax” prisons. In some places, the environment is so severe that people end up completely isolated, confined in constantly bright or constantly dim spaces without any meaningful human contact — torturous conditions that are proven to cause mental deterioration. Prisoners often are released directly from solitary confinement and other high-security units directly to the streets, despite the clear dangers of doing so.

(d) Application to the Petitioner 291 The petitioner’s incarceration on remand has the following features: (a) he has been assessed as physically at risk from others and a risk to others and is accordingly treated as an inmate who must be kept away from at least a segment of the prison population; (b) he has been deemed to be so dangerous that he cannot be permitted ordinary contact with family and friends, or other inmates; (c) he has been held on a basis that renders recourse to due process within the institution meaningless, even if it were available; (d) he is subjected to numerous inconsistent and unpredictable deprivations that at times reflect the thoughtless application of rules, and at times appear to reflect nothing more than petty exercises of power; and (e) he has found medical treatment nearly impossible to access on any reliable basis. 292 The petitioner is kept in physical circumstances that have been condemned internationally. He is locked down 23 hours per day and kept in the conditions Professor Haney described as “horrendous”. These conditions would be deplorable in any civilized society, and are certainly unworthy of ours. They reflect a distressing level of neglect. On top of this, the petitioner is only allowed out at random times. He is denied almost all human contact. His treatment by the administration and the guards is highly arbitrary and further accentuates his powerlessness. 293 The respondent’s answer to these circumstances is, in part, that things have improved during the course of proceedings. In an affidavit sworn November 13, 2009, she describes what she calls Living Unit Echo 2, a unit originally considered for the petitioner and others in April 2009, but which was rejected because it would have required relocating other inmates. While Echo 2 is not a segregation unit (apparently in the sense that it is not located in a segregation area), the restrictions imposed on the petitioner in this unit (no contact with anyone in the prison population and continued restrictions on visits and telephone communication), perpetuate the isolation of segregation. The petitioner’s description of con- 122 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

ditions on Echo 2, as scarcely better, and in some ways worse, than segregation, is not contradicted. 294 The respondent says that the creation of this unit was complicated by the fact that the SPSC is 190% over capacity. Obviously this did not occur overnight, and reflects a long term lack of commitment to the proper accommodation of remand inmates. 295 The respondent placed great emphasis on her duty to keep the petitioner “safe” as if that were primarily a duty to deliver a live body to the courts when required to do so. Her submission included the following observations: 13. The dominant theme of [petitioner’s counsel’s] submissions has been concern for Mr. Bacon’s psychological well-being during his pre-trial detention. With reference to various international materials and opinion evidence on the effects of “solitary confinement” [footnotes omitted], she has invited the court to establish constitutional standards of prison administration that are geared to maintaining inmates’ psychological health. In the Respondent’s submission, however, the equally compelling consideration that must be bal- anced in the analysis is Mr. Bacon’s physical safety. The separate confinement in issue in these proceedings is for fundamentally protective - not in any sense punitive — purposes. While the various international pronounce- ments cited by [petitioner’s counsel] are instructive as to the policy arguments for minimizing, generally, the use of “solitary confinement” in penitentiaries and correctional facilities, they are of limited assistance with respect to the exceptional situation of a person detained pending trial whose need for social interaction within the institution is in direct opposition to his physical security of the person, and who is prepared to risk his life to assert his wishes. 296 This sets up a manifestly false dichotomy. Inhumane treatment cannot be justified on the basis of a choice between physical safety and psychological integrity. The submission strongly implies that for a certain class of inmate deemed unsuitable for release into the general population, the only alternative is to keep them alive in circumstances that threaten their psychological health and safety. This is so far from the imaginable range of ameliorative options (small secure courtyards attached to separated cells, video links as a substitute for direct visits, etc.) that it can only be read as a rationalization of resource limitations that are assumed but unspoken. 297 The submission goes on to deflect this fundamental issue by suggesting that the petitioner’s complaint is essentially procedural: 14. On the Respondent’s understanding of this case, the real issues are with respect to procedure, rather than the establishment of categorical standards to curtail the use of administrative segregation in correctional facilities — that is, whether the Respondent has provided Mr. Bacon with adequate disclosure and reasons for her decisions, and a reasonable opportunity to make submissions. In this regard, again, the situation before the court is an unusual one, involving a factual matrix that is at once notorious in its superficial outline, Bacon v. Surrey Pretrial Services Centre McEwan J. 123

and at the same time, by its nature, highly restrictive of the authorities’ ability to disclose underlying intelligence. 298 As we have seen lack of due process is certainly an aspect of the petitioner’s case. The submission encapsulates the notion that the petitioner could not be given reasons for the way he was being treated because the respondent could not reveal what she knew. This submission was made before the order for disclosure. It certainly bears a different cast now that some of the information the respondent would not share has been brought to light. 299 When the judiciary delivers a person to the jailer with a direction to keep him “safe”, the mandate obviously includes protecting health in mind and body. It means that his or her residual rights will be respected. While the content of such rights is not precisely defined, it certainly includes the “privileges” set out in s. 2 of the Correction Act Regulation. It also includes the right to a fair trial and to treatment that ensures that a fair trial is possible. This means that an inmate is not held so that the police can improve their case, or so that Correc- tions can, without the nuisance of judicial authorization, assist them. An inmate is a person with positive rights to counsel, to approach witnesses, and to prepare his case unimpeded by rules or practices having the effect of frustrating such access. It is truly shocking that a facility called a PreTrial Services Centre has no accommodation for reasonable communication with lawyers (i.e. privacy, desks, telephones, paper) during ordinary business hours. It is scandalous that the staff, willingly and unlawfully abet the police in their investigative objectives. It is difficult to imagine a less even-handed system than which the respondent currently administers.

XIII Application of the Charter (a) Section 12 300 The question of whether this treatment is cruel and unusual contrary to s. 12 of the Charter may be approached from the fundamental proposition of respect for the inherent dignity of the human person articulated in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 (S.C.C.) at paras. 76-78: 76 The Charter and the rights it guarantees are inextricably bound to con- cepts of human dignity. Indeed, notions of human dignity underlie almost every right guaranteed by the Charter (Morgentaler, supra, at pp. 164-66, per Wilson J.). As professed by Dickson C.J. in his discussion of s. 1 of the Charter in R. v. Oakes, [1986] 1 S.C.R. 103, at p. 136: The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which en- 124 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

hance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified. 77 In Rodriguez, supra, Sopinka J. states that it is unquestioned that respect for human dignity is an underlying principle upon which our society is based (at p. 592). In O’Connor, supra, at para. 63, L’Heureux-Dub´e J. states that, “[t]his Court has repeatedly recognized that human dignity is at the heart of the Charter”. More recently, this Court has stated in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at para. 51, that the purpose of s. 15(1) of the Charter, “is to prevent the violation of essential human dignity and freedom”. Respect for the inherent dignity of persons is clearly an essential value in our free and democratic society which must guide the courts in interpreting the Charter. This does not mean, however, that dignity is elevated to a free-standing constitutional right protected by s. 7 of the Charter. Dignity has never been recognized by this Court as an independent right but has rather been viewed as finding expression in rights, such as equality, privacy or protection from state compulsion. In cases such as Morgentaler, Rodriguez and B. (R.), dignity was linked to personal autonomy over one’s body or interference with fundamental personal choices. In- deed, dignity is often involved where the ability to make fundamental choices is at stake. [Italic emphasis in original, underline emphasis added.] 301 Charter jurisprudence respecting s. 12 has largely developed in minimum sentence cases, and in cases dealing with “punishment” rather than “treatment”. The “cruel and unusual” threshold is described as treatment grossly disproportionate to what would have been appropriate, or so excessive as to outrage standards of decency: see R. v. Smith, (Edward Dewey) [1987] 1 S.C.R. 1045 (S.C.C.) at para. 54, (1987), 40 D.L.R. (4th) 435 (S.C.C.); R. v. Goltz, [1991] 3 S.C.R. 485 (S.C.C.), at 499; (1991), 61 B.C.L.R. (2d) 145 (S.C.C.); and R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 (S.C.C.) at para. 14. Such expressions, no doubt meant to deter casual resort to s. 12, are tempered by other judicial expressions as to the limitations of such language. It is clear that these thresholds are not to be equated with standards derived from opinion polls or with standards that reflect the odium attached to particular individuals. In United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283 (S.C.C.) at para. 67 (quoting S. v. Makwanyane, 1995 (3) SA 391 (South Africa Constitutional Ct.), at para. 88), the Supreme Court made the following observations: 67 While we affirm that the “balancing process” set out in Kindler and Ng is the correct approach, the phrase “shocks the conscience” and equivalent expressions are not to be taken out of context or equated to opinion polls. The words were intended to underline the very exceptional nature of circumstances that would constitutionally limit the Minister’s decision in extradi- Bacon v. Surrey Pretrial Services Centre McEwan J. 125

tion cases. The words were not intended to signal an abdication by judges of their constitutional responsibilities in matters involving fundamental principles of justice. In this respect, Canadian courts share the duty described by President Arthur Chaskalson of the Constitutional Court of South Africa in declaring unconstitutional the death penalty in that country: Public opinion may have some relevance to the enquiry, but, in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive, there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised.... The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us that all of us can be secure that our own rights will be protected. S. v. Makwanyane, 1995 (3) SA 391, at para. 88) [Emphasis added] 302 In R. v. Olson (1987), 62 O.R. (2d) 321 (Ont. C.A.), at 336; (1987), 38 C.C.C. (3d) 534 (Ont. C.A.), the Supreme Court held that in the case of a notorious sentenced serial killer, “segregation to a prison within a prison is not, per se cruel and unusual treatment.” In Burns, however, at paras. 122-123 the Court observed that psychological trauma is a relevant harm to be considered in a s.12 analysis. 303 In this case the risk of psychological harm is manifest. On their own the physical conditions under which the petitioner has been held compare, in Prof. Haney’s view, to some of the worst conditions in the United States and elsewhere. Such conditions have been condemned by the international community. The petitioner’s report of his deteriorating psychological condition, verified by staff, reflects what one might expect under those circumstances, and under the additional deprivations that have been imposed. 304 The most thorough judicial consideration in Canada of solitary confinement as cruel and unusual treatment can be found in R. v. McCann (1975), 29 C.C.C. (2d) 337, 68 D.L.R. (3d) 661 (Fed. T.D.). There, eight prisoners were confined in physical circumstances similar to, but less onerous than, those imposed on the petitioner. The cells were approximately the size of the cells in Segregation 2. Unlike Mr. Bacon, the McCann plaintiffs were given pillows. They were required to sleep in a position that resulted in their heads being one foot away from their toilets. They had radios in their cells, though they only received two 126 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

stations. The lights in the cells were on 24 hours a day, dimmed somewhat at night. While the window in the petitioner’s cell is covered with a frosted film, the cells in the McCann only had windows in the solid steel doors. There was no fresh air and the artificial ventilation was poor. Cells were either too hot or too cold. They were not given outdoor exercise, but could spend 40 minutes per day walking up and down a corridor that was approximately 75 feet long. They were allowed out of their cells three times per day to pick up their meal trays. There were no restrictions on visits. 305 Under those conditions, the plaintiffs noted effects similar to those documented in the international materials and in Commissioner Arbour’s report. They described the hate, frustration and resentment that they felt, the paranoia and hallucinations, the difficulties in concentrating and controlling their emo- tions, the suicide attempts and self-harming behaviour. They talked about the difficulties reintegrating into the general population. One said that the most difficult thing about solitary confinement was “the fact that you did not know why you were there or for how long”. Another testified, “if they would beat you, I could handle that but how do you cope with insanity? [H]ow the hell do you cope with loneliness.” Another said “they were killing us mentally, not physically” (McCann at 677-679). 306 Expert evidence in the McCann case described the effects of solitary confinement in terms similar to Professor Haney’s observations. The opinions emphasized the lack of justification for such treatment. 307 The Court, per Heald J. at 692, found that the conditions in the segregation unit constituted cruel and unusual treatment or punishment, in that the treatment served “no positive penal purpose”. (I pause to note that the petitioner’s remand incarceration has no “penal purpose”, a proposition with which the respondent agrees). Heald J. went on to say that the treatment was “cruel and unusual” because it was not in accord with public standards of decency and propriety, and because the existence of adequate alternatives made it unnecessary. 308 The court in McCann was alive to the exigencies of prison administration, particularly as it pertained to the plaintiffs’ complaints about due process. Mc- Cann was decided in a context where the question of the relationship of the Canadian Bill of Rights to statutes of equal legislative status was in issue. Since the Charter the analysis is different. Laws may not be interpreted or applied in a manner that violates the Charter. This principle was articulated in May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809 (S.C.C.) at para. 77 as: [77]...Administrative decisions that violate the Charter are null and void for lack of jurisdiction. ... Section 7 of the Charter provides that an individual’s liberty cannot be impugned upon except in accordance with the principles of fundamental justice. Administrative decision must also be made in accordance with the common law duty of procedural fairness and requisite statutory duties. Bacon v. Surrey Pretrial Services Centre McEwan J. 127

That said, courts must recognize the difficult task that prison administrations face in the execution of their duties. Heald J. described that task in McCann as follows at 698: 107 When it is considered that the inmate population of the B.C. Penitentiary was 530 in January 1974, and is still approximately 400, and that most of the other Federal penal institutions have populations of several hundred each, that almost inevitably such an institution will be housing dangerous and unpredictable inmates, with a long history of crimes of violence, that many of the inmates have a record of escapes, hostage taking, and a tendency to create disturbances and riots within the institution, it becomes clear that the institutional head must have the power to act decisively and expeditiously to quell disturbances and to isolate the offenders, for the protection of other inmates, the staff of the institution, the property of the institution and the public at large. 309 The petitioner’s circumstances at the time he was remanded into custody were such that temporary segregation was within the range of options the prison administration was entitled to exercise. Thereafter the rationale for continued segregation appears to be that resource constraints and the police assessment of the dangers posed by the petitioner to witnesses and the case they were assem- bling against him justify the way he has been treated. The respondent either ignored or misunderstood her statutory mandate and allowed herself to view her responsibilities in terms that identified, quite inappropriately, with the police. These errors have had the effect of rendering the petitioner’s incarceration worse than it would have been if he were actually being punished. His treatment has also been significantly worse than if it were limited only to solitary confinement, as bad as that is on its own. 310 The case law provides many examples of the courts’ reluctance to purport to direct the internal operations of prisons, or to second-guess resource allocation. In various contexts, courts have found that harsh conditions do not necessarily amount to cruel and unusual treatment or punishment. Some cases do not ac- knowledge distinctions between pre- and post-trial incarceration. Some even recognize that pre-trial incarceration may be more onerous than post-sentence imprisonment (see Maltby v. Saskatchewan (Attorney General) (1982), 20 Sask. R. 366, 143 D.L.R. (3d) 649 (Sask. Q.B.)), and some make no distinctions between cruel and unusual “treatment” or “punishment” (see Munoz v. Alberta (Director, Edmonton Remand Centre), 2004 ABQB 769, 369 A.R. 35 (Alta. Q.B.)). 311 The Attorney General rested its contention that the courts have found conditions comparable to the petitioner’s circumstances not to be cruel and unusual treatment on R. v. Munoz and R. v. Chan, 2005 ABQB 615, 387 A.R. 123 (Alta. Q.B.). Chan was a case involving a conviction for trafficking. At Mr. Chan’s sentencing, the fact that he had been in remand for some 26 months was an issue. Mr. Chan made 38 specific complaints about his pre-trial incarceration. 128 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

They included a number of the kinds of things the petitioner has raised in this proceeding. The Court found that Chan’s treatment went “beyond hard time” but that this did not necessarily imply a Charter breach. There, the treatment included difficulty in using the telephone system to contact family and friends, lack of access to the weight pit and gymnasium, some instances of excessive force during strip searches, and certain other humiliations. This treatment was found not to breach s. 12 based on the following analysis at 200-205: [200] Section 12 of the Charter reads: • 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [201] Chan’s submissions on this point are that either individually or cumu- latively his treatment while in remand, including frequent transport while re- strained, wearing a baby-doll, disciplinary segregation, strip searches and unauthorized applications of physical force, amounted to cruel and unusual treatment or punishment. [202] R. v. Smith, [1987] 1 S.C.R. 1045 at 1072, referring to a decision of Laskin C.J. in R. v. Miller, [1977] 2 S.C.R. 680, sets out the test for determining if punishment is cruel and unusual, namely, “whether the punishment prescribed is so excessive as to outrage standards of decency”. While the state may impose punishment, “the effect of that punishment must not be grossly disproportionate to what would have been appropriate”: Smith at 1072. [203] Hogg states at 50-11 that s. 12 can apply not only to penalties prescribed by the Criminal Code or other statutes creating offences but also to oppressive conditions in prisons such as overcrowding. [204] Chan cites Trang v. Alberta (Director of the Edmonton Remand Cen- tre) (2001), 298 A.R. 149 at para. 20, 2001 ABQB 659, where Marceau J., in determining that there were serious issues to be tried, endorsed the argument that cumulative conditions could lead to a s. 12 violation. In Munoz v. Alberta (Edmonton Remand Centre), 2004 ABQB 769 at para. 78, Nation J. concluded that the treatment at Edmonton Remand Centre of the five appli- cants did not amount to a s. 12 violation. In Munoz, complaints included being shackled in the exercise yard, being double-bunked in administrative segregation and the loss of gymnasium privileges. [205] There is no question that time in remand is hard, particularly when most inmates are struggling to cope with harsh conditions while dealing with the stress of their legal defence. However, it must be recognized that drugs and weapons are a serious problem in remand and these problems impact conditions. A number of Chan’s complaints do have merit, particularly the refusal of the CRC to provide a religious diet. This was addressed under s. 2(a). In aggregate, the complaints that had merit went beyond hard time and are a reason for enhanced credit. In my view, while his time has been beyond typical hard time in some respects, his treatment in remand, viewed globally, does not amount to treatment that would “outrage standards of decency”. Bacon v. Surrey Pretrial Services Centre McEwan J. 129

It should be noted that in Chan the court addressed the treatment at issue during sentencing, when the remedy of enhanced credit for the harsh conditions Mr. Chan had endured was available, and was applied. 312 In urging the Court that, despite the extensive international consensus that prolonged solitary confinement of the kind endured by the petitioner was not “cruel and unusual” per se, the respondent made the following submissions: 47. The further, related conceptual difficulty is this: Administrative segregation in the most cramped and barren surroundings can hardly be characterized as “cruel and unusual treatment” if it lasts only a few hours or days. Nor, conversely, can administrative segregation for a lengthy period of months or years qualify as “cruel and unusual” provided the lack of interaction with other inmates is compensated by sufficiently spacious and comfort- able quarters, and, one might imagine, a program of human interaction with correctional officers specially trained to keep such inmates company and to engage them, individually, in pleasant and meaningful activities. Whether administrative segregation will cause, “grave psychological harm”, so as to amount to “cruel and unusual treatment”, depends necessarily on duration, and on other compensating efforts made by the correctional authorities. 48. It is for these reasons logically untenable to suggest that administrative segregation is in itself, qualitatively, “cruel and unusual” — regardless the various factors affecting its impact (comparative and absolute) on a particular inmate. While scientific understanding of the psychological effects of “solitary confinement” may well have solidified since 1987, this does not detract from the soundness of the principle established in Olson that “[s]egregation to a prison within a prison is not, per se, cruel and unusual treatment”. [Emphasis added] 313 While there is a growing sense internationally, as well as in Canada, that locking a person down for 23 hours per day is an inappropriate way to treat any human being, the courts remain tethered to the standard of “gross disproportion- ality” articulated in R. v. Smith, (Edward Dewey) [1987] 1 S.C.R. 1045 (S.C.C.), and referred to in R. v. Chan and elsewhere. 314 This reluctance to condemn solitary confinement outright is not entirely characteristic of the approach taken by the courts to inmates’ rights in other contexts. One may compare Sauv´e v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519 (S.C.C.), where, unmediated by the sort of operational and resource considerations that go into the analysis of a particular standard of treatment, the Court, at para. 47, was not hesitant to comment on the general rights of incarcerated persons: [47] The social compact requires the citizen to obey the laws created by the democratic process. But it does not follow that failure to do so nullifies the citizen’s continued membership in the self-governing polity. Indeed, the remedy of imprisonment for a term rather than permanent exile implies our acceptance of continued membership in the social order. Certain rights are 130 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

justifiably limited for penal reasons, including aspects of the rights to liberty, security of the person, mobility, and security against search and seizure. But whether a right is justifiably limited cannot be determined by observing that an offender has, by his or her actions, withdrawn from the social compact. Indeed, the right of the state to punish and the obligation of the criminal to accept punishment are tied to society’s acceptance of the criminal as a person with rights and responsibilities. Other Charter provisions make this clear. Thus s. 11 protects convicted offenders from unfair trials, and s. 12 from “cruel and unusual treatment or punishment”...... [52] When the facade of rhetoric is stripped away, little is left of the government’s claim about punishment other than that criminals are people who have broken society’s norms and may therefore be denounced and punished as the government sees fit, even to the point of removing fundamental constitutional rights. Yet, the right to punish and to denounce, however important, is constitutionally constrained. It cannot be used to write entire rights out of the Constitution, it cannot be arbitrary, and it must serve the constitutionally recognized goals of sentencing. On all counts, the case that s. 51(e) furthers lawful punishment objectives fails...... [58] Denial of the right to vote to penitentiary inmates undermines the legitimacy of government, the effectiveness of government, and the rule of law. It curtails the personal rights of the citizen to political expression and participation in the political life of his or her country. It countermands the message that everyone is equally worthy and entitled to respect under the law — that everybody counts: see August, supra. It is more likely to erode respect for the rule of law than to enhance it, and more likely to undermine sentencing goals of deterrence and rehabilitation than to further them. 315 If one substitutes “arbitrary treatment” or “treatment beyond hard time” or “cruel and unusual treatment” into the first and last line of paragraph 58 above the result is a completely unobjectionable statement of constitutional and carceral theory. The undoubtedly correct proposition that incarcerated persons retain their rights other than those taken away for reasons that are clearly justified, has atrophied into the operational use of “privileges” to describe such rights (see s. 2 of the Correction Act Regulation). This shift reflects and abets a mentality, obvious throughout the respondent’s treatment of the petitioner, that all is denied that is not granted in the discretion of the prison administration. This is a fundamental affront to the concept of human dignity. On the level of “pens” and “inhalers” or the placement of television sets, it is not a question of catering to trivial complaints, but of recognizing the psychologically corrosive effect that having no autonomy over even the smallest things can have on a person. 316 The unlawful imposition of such deprivations cannot, in a legal sense, be characterized as anything less than “unusual” treatment. The respondent’s ac- Bacon v. Surrey Pretrial Services Centre McEwan J. 131

knowledgment (see para. 312 herein) that long periods of solitary confinement without mitigating or compensating efforts by correctional authorities may qualify as “cruel and unusual” treatment is instructive in light of her actual treatment of the petitioner. As we have seen, he has not only suffered long periods of unmitigated segregation but has been subjected to unlawful additional deprivations known to cause psychological harm. These have been, and have been observed to be causing psychological distress. That is cruelty by any measure. 317 The rationale for any reticence on the part of the courts to declare treatment that is “beyond hard time” to be cruel and unusual falls away in the petitioner’s case. The petitioner’s incarceration started with an essentially arbitrary consign- ment to separate confinement. The conditions of his confinement were radically exacerbated almost at once when he was cut off from any outside contact. The importance of such contact to the mental health and well-being of any person is hardly controversial. Indeed, even the respondent’s submission accepts that whether or not solitary confinement, in itself, is cruel and unusual punishment depends on what “compensating efforts are made by the correctional authorities”. 318 The respondent has characterized certain small enhancements as ameliorative, applying the standards of segregation. This is clearly an inappropriate standard, as the respondent acknowledges elsewhere, when she insists that the petitioner is not being punished but protected. The respondent’s submission pays scant heed to the requirements of the petitioner’s psychological health. Rather, as we have seen, her position seems to be that keeping him “safe” requires an either/or choice between physical safety and psychological integrity. If that is true because resources are lacking, it simply means that the government has to do better. Discretion over expenditures stops where treatment falls below a constitutional minimum. 319 In any case, whether driven by obedience to police directives, or by resource limitations, or both, the unlawful blanket deprivations added to the petitioner’s solitary confinement in this case constitute cruel and unusual treatment in breach of s. 12 of the Charter.

(b) Section 7 320 The petitioner also asserts that his s. 7 Charter rights are being infringed. The section reads: Everyone 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. 321 An analysis under s. 7 requires, first, proof of a deprivation of life, liberty, or security of the person, and second, proof that the deprivation was contrary to the principles of fundamental justice. The manner in which the respondent interprets her statutory mandate is unlawful. She has treated the petitioner in a manner that 132 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

effectively reverses her obligation to mitigate his “administrative” placement in separate confinement by making it significantly more onerous and psychologically harmful. The petitioner submits that where s. 12 does not operate to prohibit a sort of treatment absolutely, s. 7 can provide the “protection” and “guar- antee” against cruel and unusual treatment that s. 12 promises. 322 With respect to his incarceration, per se, the petitioner’s liberty has been taken from him in accordance with the principles of fundamental justice. He is incarcerated awaiting trial on a serious charge which requires him to show cause why he should be released (and he has not attempted to do so). He complains of the added restrictions to his liberty imposed on him by the prison administration (see May). Apart from solitary confinement these include the additional threats to the security of his person in the form of the psychological stress caused by the additional isolating deprivations the respondent has imposed for an improper purpose. In implementing restrictions based on police suspicions, the respondent negated any meaningful resort to due process by effectively substituting new and much more onerous tests than those she was required to apply under the Correction Act Regulation. There, the mandate focuses on harm to the institution or others on the basis of actual behaviour in, or emanating from, the institution. The restrictions the respondent imposed made it impossible for the petitioner to demonstrate adherence to the appropriate standard, which meant he had no means to improve his situation. When the basis for deprivation is “the police believe you might try something”, and paper reviews are conducted on the man- tra that “they still think so”, there can be no semblance of fundamental justice. 323 In Charkaoui, Re, 2007 SCC 9, [2007] 1 S.C.R. 350 (S.C.C.) at para. 28, the Court, quoting United States v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77 (S.C.C.) at para. 19, said: [28] The overarching principle of fundamental justice that applies here is this: .... “It is an ancient and venerable principle that no person shall lose his or her liberty without due process according to the law, which must involve a meaningful judicial process.” 324 The petitioner has been deprived of virtually all of his residual liberties in this case including reasonable access to counsel and to a reliable expectation of confidentiality on the occasions when access takes place. I think it sufficient to say that for the reasons amplified above, the petitioner has demonstrably been deprived of his liberty and the security of his person in a manner that does not accord with the principles of fundamental justice, and that the respondent is in breach of s. 7 as well.

(c) Section 11(d) 325 There is little doubt that the respondent’s disregard for the petitioner’s need for confidential contact with counsel, and the need to provide a reasonable level of assistance to that end (including a place to sit, a place to write, and the means Bacon v. Surrey Pretrial Services Centre McEwan J. 133

to do so, including pens and paper), is the sort of deprivation that could ultimately compromise his ability to receive a fair trial under ss. 7 and 11(d). The right to a fair and public hearing by an independent and impartial tribunal includes the right and ability to prepare for such a hearing. The integrity of the judicial process is seriously undermined by a system that allows the time spent in pre-trial detention to be a lawless interval during which the remanded inmate’s psychological integrity is threatened and obstacles to trial preparation are systemic. It may be of little avail to hold a scrupulous trial at the end of such a process. 326 The respondent submits that the petitioner’s invocation of ss. 7 and 11(d) are duplicative. 327 I accept the respondent’s contention that the petitioner’s case under s. 11(d) is prospective. She referred to R. v. Cai, 2002 ABCA 299 (Alta. C.A.), at paras. 6-7, (2002), 170 C.C.C. (3d) 1 (Alta. C.A.) as outlining the correct approach: [6] At the time of the Queen’s Bench hearing, no Charter breach had yet occurred. The respondents applied because they anticipated a breach of their right to a fair trial. But binding authority lets one seek relief based on a prospective Charter breach only if one can prove that “there is a sufficiently serious risk that the alleged violation will in fact occur”: Phillips v. Westray Mine Inquiry, [1995] 2 S.C.R. 97 at 158. The test has been said to require a “high degree of probability”, or “a real and substantial risk”: Operation Dismantle v. R., [1985] 1 S.C.R. 441 at 458, and Canadian Broadcasting Corp. v. Keegstra (1986), 77 A.R. 249, 35 D.L.R. (4th) 76 at 78 (C.A.). The essence of the test is that the court must be satisfied that there “is a very real likelihood that in the absence of that relief an individual’s Charter rights will be prejudiced”, as Cory J. concluded in Phillips, supra at 159. The inquiry must be contextual, considering all surrounding circumstances, the nature of the right threatened, and the extent to which the harm is susceptible of proof: Phillips, supra at 159. [7] Deciding prospectively whether there will be a Charter breach is really an exercise in conjecture. Therefore, it is hard for the applicant to show the high degree of probability required: Cory J. in Phillips, supra at 159. One should always keep in mind that the applicant can apply later to the trial judge for timely relief if prejudice occurs, or becomes easier to prove: Phil- lips, supra at 160. 328 The respondent then submits that the threshold for a prospective Charter breach is stringent: 161. The case law in this area indicates a stringent threshold of incapacity. If severe brain injury, with ensuing retrograde amnesia, have been found insufficient to render an accused incapable of making full answer and defence, presumably it would be in only the most extreme circumstances that inor- ganic psychological harm could have that effect. The test of “a serious and profound effect on a person’s psychological integrity” — in order to estab- 134 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

lish that “security of the person” is engaged, under the first part of s. 7 of the — is a different and looser standard. R. v. Morrissey, 2007 ONCA 770 ¶ 71-75 — “While it is likely that the appellant’s brain injury and ensuing retrograde amnesia had some impact on the manner in which he was able to conduct his defence, they have not so interfered with his ability to defend himself that it can be said that he was denied his constitutional right to make full answer and defence. As the trial judge noted... “s. 7 of the Charter entitles the appellant to a fair hearing; it does not entitle him/her to the most favourable procedures that could possibly be imagined”.” Such tests are applied to ensure that cases proceed, if at all possible, on their merits. They do not constitute authority for the proposition that it is therefore permissible to treat inmates up to the absolute limits of their tolerance before the courts will intervene. This completely ignores the fundamental concept that remand inmates are not persons without rights, but persons whose rights have been limited. A remand inmate’s residual rights will always be violated by the unlawful infliction of psychological stress and by interference with the right to counsel. 329 Because the petitioner’s pre-trial incarceration is expected to go on for a period of time that may be measured in years, the question of whether there is a real and substantial risk of a breach of s. 11(d) may be addressed by the ameliorative steps I will direct, leaving the question of whether and to what extent the petitioner’s treatment to date has affected his right to a fair trial either for a further application, or to be addressed at trial. 330 Again, however, the respondent’s submission is problematic: 168 This is a “mega-prosecution” involving massive disclosure and legal issues of considerable seriousness and complexity. These are not circumstances in which Mr. Bacon’s ability to initiate direct contact with defence witnesses is likely to play a significant role in trial preparation. If, as the prosecution progresses, there appear to be practical constraints impeding Mr. Bacon’s ability to make full answer and defence, these may [be] addressed through adjustments to his telephone access and access to personal visits, as necessary. Before trial counsel is retained and the disclosure process is substantially underway, however, it is premature to speculate as to what these necessary adjustments may be. 331 This illustrates, once more, the pervasive theme that the respondent believes she is in a position to control and call for justification of anything touching upon the petitioner’s condition or rights, even to call upon him to justify why he needs counsel and what access he requires. It should be the other way around: he should have what he needs, subject to the respondent’s authority to curtail unreasonable demands affecting the management and security of the institution. The respondent has not been shown to pose a management or security threat that Bacon v. Surrey Pretrial Services Centre McEwan J. 135

would in any manner justify the practical interference with the petitioner’s access to counsel that has been imposed to date.

XIV The Relief Sought: Directions 332 The Order sought in relation to the habeas corpus application is that the Court direct the Corrections Branch to move the petitioner to another facility, and that he be placed in the general inmate population. 333 Despite the respondent’s several breaches of the petitioner’s right to be treated humanely and respectfully, responsibility for the actual management of the petitioner’s incarceration — assuming the application of appropriate standards — must remain with her. The Court cannot take responsibility for the assessment of the risks actually posed by and to the petitioner, or for the specific allocation of resources available to the administration of the institution, assuming they meet an adequate standard. 334 It is absolutely clear, however, that in her treatment of the petitioner, the respondent and the Corrections Branch have seriously lost sight of their responsibility to the judicial branch of government. Courts, even as represented at the attenuated level of “telephone” JJP’s, place prisoners in the safekeeping of the jailer in the faith that the responsible Minister will provide facilities that will physically meet a constitutional standard, and that he or she will provide staff trained to respect the fundamental rights of those whose safekeeping is entrusted to them. The judiciary places remand prisoners in the custody of the jailer on the premise that while the inmate is deprived of his liberty, he retains his residual rights which include, apart from those statutorily defined, the right not to be questioned by the police, or to be treated as if the requirements of warrants and judicial authorizations have been suspended. 335 The judiciary further expects that remand inmates - or those awaiting trial in other circumstances — will be afforded reasonable access to counsel during business hours, including a private place to talk on the phone or in person, a place to sit, a place to write, and writing materials if they require them. The fairness of the trial process dictates at least this level of access to counsel. Courts do not consign inmates to jailers in the expectation that they will impede access to counsel. 336 While the question of whether the petitioner must remain separated or may be released into the general population must remain with the respondent, he must not be kept in separate confinement without being offered “privileges” equivalent to those of a general population inmate. Careful consideration must be given to whether or not it is possible to create settings that include contact with other inmates who do not pose the concerns that justify separation from other parts of the prison population. The petitioner must have the same amount of time out as a general population inmate. He must not be subject to unreasonable and petty deprivations that reflect the notion that where one is placed dic- 136 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

tates how one is treated. He is entitled to know what he may expect in respect of things like time at the gym (and when it will occur). He is entitled to be treated equivalently to a general population inmate in all material respects. He is entitled to an explanation if it is impossible to offer these conditions, and an opportunity to address such decisions as they are made. It should go without saying that resource issues can never justify a sub-constitutional level of treatment. If that is all that is available, then that must change. The courts cannot place inmates in a facility where they know their rights will be abused. 337 The petitioner’s visiting and telephone privileges must be restored immediately. The authority under the Correction Act and Regulation to monitor the petitioner’s calls and visits gives the respondent the means, if necessary, to ascertain whether the petitioner abuses any of the visiting or telephone rights he exercises, and to react accordingly. It does not give her the right to arbitrarily, and/or for improper purposes, cut-off contact that is essential to the mental health and well-being of an inmate. 338 I make no comment on the constitutionality of the Correction Act and the Correction Act Regulation inasmuch as the evidence disclosed in this proceeding was that they were seriously misinterpreted, misapplied or ignored. The respondent would have to make a much stronger attempt to adhere to the laws that bind her before any question of the constitutionality of their provisions could be meaningfully addressed. 339 Although it is remarkable that it seems necessary to say so, I direct that the respondent start by limiting her treatment of the petitioner strictly to the authority vested in her under the Correction Act and the Correction Act Regulation. I expect the petitioner, in his day to day dealings with the prison administration, to be dealt with in accordance with the Adult Custody Policy Manual, unless something better is implemented. I do not suggest it is a perfect or necessarily an adequate template for due process, but it is a starting point. As matters stand, it is not possible to meaningfully critique standards of practice and procedure honoured so much more in the breach than in the observance. 340 I expect these directions to be carried out forthwith. In the circumstances the petitioner will retain the right, within this proceeding, to apply to court for further rulings or directions as required. He will be expected to avail himself of his administrative remedies within the institution before he brings matters back to this Court. This assumes, of course, that the due process set out in the Adult Custody Policy Manual will be implemented immediately. This Court remains seized of this matter and of the further investigations ongoing with respect to the respondent’s breach of the petitioner’s right to privileged calls with counsel.

XV The Role of the Attorney General 341 I think, finally, that something must be said about the manner in which this matter proceeded. It is clear that the case developed in ways unforeseen at the Bacon v. Surrey Pretrial Services Centre McEwan J. 137

beginning of the hearing. It is evident from the nature of the early arguments and the evidence that came to be disclosed, that the Court and, I infer, counsel for the Attorney General, had been given information that turned out to be mislead- ing. There was certainly a point in the proceeding when it became clear that some of the respondent’s conduct was indefensible. The Attorney General has not conceded this in any formal sense, and late in the day was still describing his position relative to the petitioner as “adversarial”. 342 This is a troubling development. While the courts are, among other things, arbiters of the rights and freedoms of the individual as against the state, they are not the sole protectors of those rights and freedoms. The Attorney General has, as a primary responsibility, the protection of the public interest. This includes the interests of the disadvantaged, even, if necessary, against other Ministers of the Government. In “The Attorney General and the Administration of Criminal Justice” (2009) 34 Queens L.J. 813-862, the Honourable Mr. Justice Marc Ro- senberg, of the Ontario Court of Appeal, made a number of observations about the responsibility of Attorneys General toward the vulnerable, including prisoners: 92 In their role as guardians of the public interest, it may sometimes fall upon the Attorneys General to champion causes that do not enjoy widespread popular support. Sometimes the Attorney General is called upon to protect the interests of the disadvantaged and the vulnerable because they are unable to fully realize their own rights, including their constitutional rights. Few groups are as powerless, vulnerable and disadvantaged as prison inmates. But consider the status of inmates who are simply awaiting trial: there is no other group of inmates for whom there is such a dissonance between their actual conditions within prison and their constitutional rights. 93 The Ombudsman and the courts have repeatedly drawn attention to the state of our holding jails. Prisoners awaiting trial — people who enjoy the presumption of innocence and the right to fundamental justice — are often housed in overcrowded, medieval conditions with little access to exercise or programming. They are treated not as if they are presumed innocent, but as if they have already been convicted. They are subjected to treatment that some would argue is inhumane and degrading. This is inconsistent with their Char- ter rights and with Canada’s obligations as a signatory to international agreements such as the International Covenant on Civil and Political Rights. Arti- cle 10 of that Treaty speaks directly to the state’s duty with respect to prisoners awaiting trial. It provides that accused “shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.” Again, the official Commentary to Article 10 is instructive. The signatories to the Treaty are reminded that, “[t]reating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule. Consequently, the application of this rule, as a minimum, cannot be dependent on the material resources available in the State party.” ... 138 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

95 So how does this relate to the role of the Attorney General? When he was Attorney General, Ian Scott spoke of the special obligation arising from the fact that “the Attorney General is by statute and tradition the guardian of the public interest in constitutional and legal matters.” He saw the Attorney Gen- eral as “defender of the Constitution,” who not only must enforce the law, but also uphold the constitution. 96 The conditions in which accused persons are held, coupled with increasing concerns over trial delays, threaten the constitutional rights of this vulnerable group. These threats to the rights of accused to make full answer and defence, and to be treated with humanity and fairness, jeopardize the system of administration of criminal justice in Ontario. As the senior law officer of the Crown, the Attorney General has an overarching responsibility to ensure the fairness of the administration of criminal justice. Thirty years ago, prior to the Marshall Inquiry, the lack of disclosure to the defence threatened the fairness of criminal trials in this province. The Attorneys General of the day implemented a system of mandatory disclosure guidelines, first in response to Marshall and then in response to the law as laid down in Stinchcombe. I am concerned that a threat of equal gravity to that posed by the pre- Stinchcombe method of disclosure now faces the administration of justice in Ontario. It may be that the way the system deals with bail, trial delays (especially for persons detained in custody), and the conditions under which the accused are held threaten the fairness and integrity of our system. ... 99 I would conclude this part of my paper with this note. The pre-trial custody of accused persons is a difficult and complex issue that should concern everyone involved with the administration of justice. It is not just the Attor- ney General who ought to pay attention to this issue. Thus, in her 1995 report on Certain Events at the Prison for Women, Justice Arbour called attention to the importance of judges to be more conscious of the need to “maintain some ownership of the integrity of their sentence after it is imposed.” [footnotes omitted] [Emphasis in original] These observations apply equally to the situation that has unfolded before this Court. 343 The issue of a Warrant of Committal is intended to place a person in the petitioner’s position under the protection of judicial authority until he or she can be dealt with at law. The even-handedness required throughout judicial proceedings is required alike of those who hold such inmates pending trial. This responsibility has been officially undermined by whoever in the responsible Ministry has facilitated post-Warrant remand to the police for the purpose of unlawfully extending their investigative opportunities. The exigencies permitting such remands have been artificially created, and the substitution taken as an occasion for abuse of the police power of detention. The wholesale integration of the police thereafter into the respondent’s decision-making about the specific treat- Bacon v. Surrey Pretrial Services Centre McEwan J. 139

ment of the petitioner, for the purpose of protecting and enhancing the police case against him, is a serious violation of the respondent’s proper mandate. The respondent’s lack of transparency on “security” grounds, the obstruction of counsel’s inquiries, and her, or her agents’, lack of candour with the Court suggest a sense of exception from, rather than integration into, a continuum of respect for due process, and for the humanity of the individual, that should start at arrest and characterize the treatment of all persons whose liberty is restricted by law, regardless of the nature of the crime alleged or ultimately proved against them. 344 The deplorable physical conditions described by Prof. Haney, the unlawful deprivations, and the institutional lack of concern for the physical and psychological harm occasioned by those deprivations, suggest an institution operated in a manner at serious odds with its purposes. Mr. Merchant’s reference to the “core beliefs” in the Mission Statement, in the circumstances, seems dissociative. 345 The Attorney General is obliged to ensure that the government, including other Ministries, conforms to the laws the Legislature passes, and that the Con- stitutional rights of those entrusted to it, even those the public deems odious, are protected. Until it is clear that the Attorney General is taking the necessary steps to ensure that the petitioner’s treatment at the hands of the responsible Ministry accords with proper legal and procedural norms, this Court will be obliged to supervise the conditions of his incarceration.

XVI Summary of Relief 346 The petitioner is entitled to a declaration that the respondent has failed to handle his mail as prescribed by the Correction Act, S.B.C. 2004, c. 46 and the Regulation, B.C. Reg. 58/2005, and in particular: (i) in monitoring the petitioner’s mail without reasonable documented grounds, and (ii) in passing on mail to the police without legal authorization. 347 The respondent is directed to handle the petitioner’s mail in a manner prescribed by the Correction Act and the Correction Act Regulation, and in particular, is directed to conform to the standard set out in the Adult Custody Policy Manual, unless another standard is shown to be justifiable and necessary. 348 The respondent’s decision to impose blanket restrictions on the petitioner’s visits is quashed as a wholly improper exercise of discretion for an improper purpose imposed without reasonable grounds. 349 The respondent is directed to restore the petitioner’s visits subject to the standards set out in the Adult Custody Policy Manual, unless another standard is shown to be justifiable and necessary. 140 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

350 The respondent’s decision to impose blanket restrictions on the petitioner’s telephone access is quashed as a wholly improper exercise of discretion for an improper purpose imposed without reasonable grounds. To be absolutely clear, the bare assertion of “reasonable grounds” does not satisfy the requirement for reasonable grounds or a reasonable belief, but is a conclusion as to the effect of the grounds or belief that must be asserted. “Grounds” must be articulated and susceptible of meaningful assessment as to reasonableness. The records pertaining to the petitioner’s treatment are replete with mantras of self-assessed “reasonableness” that have clearly come to substitute for proper, thoughtful justification. Indeed, it is clear that “reasonable grounds” were routinely asserted, when the respondent had no idea what those grounds were but hoped the police would be able to provide her with some. 351 The petitioner is entitled to an order in the nature of habeas corpus directing that if he is not found, on proper grounds, to be a candidate for release within the general prison population, but must continue to be separated from at least a segment of that population, the respondent must either: (a) find the means to place the petitioner in a setting that will include other inmates who are not at risk from, or a risk to, him; or (b) otherwise mitigate the petitioner’s conditions of confinement to achieve a level of treatment comparable to that of an inmate in the general population, including times out, recreational opportunities and comparable privileges. He must not be treated as if he is being perpetually punished or disciplined. If it is a question of resource limitations, resources must be found. (c) in any case, periodically justify the petitioner’s treatment in adherence to the Correction Act Regulation and the due process protocols set out in the Adult Custody Policy Manual, unless and until another standard is shown to be justifiable and necessary. 352 The evidence establishes that the respondent has exercised the powers vested in her: (a) for the improper purpose of assisting the police in its criminal investigation; (b) in a manner that has improperly fettered her discretion by allowing the police to unduly influence the petitioner’s placement in separate confinement; and (c) in such a way that she has repeatedly breached her duty of procedural fairness and natural justice by failing to hold hearings and preventing the petitioner from making submissions to challenge the information which she relied upon in treating him as she did; in frequently acting on no information or on information she had not assessed because it had not been supplied; and in failing to provide reasons for her decisions beyond Bacon v. Surrey Pretrial Services Centre McEwan J. 141

the inadequate conclusory self-assessment that whatever she did, her grounds were “reasonable.” 353 The respondent is in breach of s. 12 of the Charter in arbitrarily placing the petitioner in solitary confinement, in failing to appropriately mitigate his circumstances in solitary confinement, and in unlawfully denying him the other rights to which he was entitled, significantly threatening his psychological integrity and well-being. These impositions collectively amount to cruel and unusual treatment. 354 The respondent is in breach of s. 7 of the Charter by creating circumstances and maintaining the petitioner in circumstances that manifestly threaten the security of his person (which includes both a physical and a psychological dimension) by the unlawful deprivation of his rights for an unlawful purpose. 355 The statutory, regulatory and policy framework meant to govern the respondent in her dealings with the petitioner have been ignored or misapplied in a manner that renders their constitutionality an abstract question. I therefore de- cline, at this time, to address the issues related to the substantive constitutionality of the Correction Act and the Correction Act Regulation, as such. It appears that the procedures outlined in the Adult Custody Policy Manual are meant to give form and substance to the framework of directives contained in the legislative instruments. There would have to be a good faith attempt to abide by its terms before its adequacy as a template for due process could be meaningfully assessed. 356 This appears to be an appropriate case for special costs. If the Attorney- General wishes to make submissions, given the view counsel have taken about the Rules and their relationship to the court’s summary jurisdiction they may do so. Failing notice to that effect within ten days of these reasons the order shall be that the petitioner is entitled to special costs. 357 This Court remains seized of all matters arising. Petition granted. 142 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

[Indexed as: N.L.A.P.P.E. v. Newfoundland & Labrador Health Boards Assn.] Newfoundland and Labrador Association of Public and Private Employees (Applicant) and Her Majesty the Queen in Right of Newfoundland, as Represented by the Newfoundland and Labrador Health Boards Association (Respondent) Newfoundland and Labrador Supreme Court (Trial Division) David B. Orsborn C.J.T.D. Judgment: June 6, 2010 Docket: 200901T5110, 2010 NLTD(G) 107 Sheila Greene, Q.C., Christina R. Kennedy for Applicant Stephen F. Penney for Respondent Labour and employment law –––– Labour law — Labour arbitrations — Limits to arbitrability — Estoppel –––– Employer dismissed part-time employee who refused full-time position offered to him as part of restructuring of employer’s operations — Em- ployee grieved, and employer raised preliminary objection asserting that because of union’s involvement in and consent to restructuring process, union was estopped from proceeding with grievance — Arbitrator upheld preliminary objection — Union brought application for judicial review to set aside decision on ground that arbitrator failed to consider relevant articles of collective agreement and unreasonably applied general law of estoppel — Application dismissed — Arbitrator said that it would not be fair to employer to allow union, which participated in reorganization planning without objection, to grieve any aspect of that reorganization by claiming protection of collective agreement whose provisions it knew all along — Although arbitrator did not specifically address certain issues relevant to application of estoppel, he was alive to general issue and correctly set out legal requirements of estoppel which is founded on fairness — Arbitrator’s decision was reasonable since he gave comprehensive but broad and transparent reasons why he felt that it was fair that union should be estopped from proceeding with grievance. Labour and employment law –––– Labour law — Labour arbitrations — Judicial review — Standard of review — Reasonableness –––– Employer dismissed part-time employee who refused full-time position offered to him as part of restructuring of employer’s operations — Employee grieved, and employer raised preliminary objection asserting that because of union’s involvement in and consent to restructuring process, union was estopped from proceeding with grievance — Arbitrator upheld preliminary objection — Union brought application for judicial review to set aside decision on ground that arbitrator failed to consider relevant articles of collective agreement and unreasonably applied general law of estoppel — Application dismissed — Arbitrator said that it would not be fair to employer to allow union, which participated in reorganization planning without objection, to grieve any aspect of that reorganization by claiming protection of collective agreement whose provisions it knew all along — Although arbitrator did not specifically address certain issues relevant to application of estoppel, he was alive to gen- N.L.A.P.P.E. v. Newf. & Lab. Health Boards Assn. Orsborn C.J.T.D. 143

eral issue and correctly set out legal requirements of estoppel which is founded on fairness — Arbitrator’s decision was reasonable since he gave comprehensive but broad and transparent reasons why he felt that it was fair that union should be estopped from proceeding with grievance. Cases considered by David B. Orsborn C.J.T.D.: Burke v. N.L.A.P.P.E. (2010), (sub nom. Burke v. Newfoundland and Labrador Association of Public and Private Employees) 294 Nfld. & P.E.I.R. 230, (sub nom. Burke v. Newfoundland and Labrador Association of Public and Private Employees) 908 A.P.R. 230, 2010 C.L.L.C. 220-018, 2010 NLCA 12, 2010 CarswellNfld 48 (N.L. C.A.) — considered N.L.N.U. v. Newfoundland & Labrador (Treasury Board) (2010), (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 294 Nfld. & P.E.I.R. 161, (sub nom. Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)) 908 A.P.R. 161, (sub nom. Newfoundland & Labrador v. NLNU) 2010 C.L.L.C. 220-017, 2010 NLCA 13, 2010 CarswellNfld 49, 190 L.A.C. (4th) 385 (N.L. C.A.) — followed Newfoundland & Labrador (Treasury Board) v. N.L.A.P.P.E. (2010), 2010 CarswellNfld 161, 2010 NLCA 37 (N.L. C.A.) — followed U.F.C.W., Local 1252 v. Lewisporte Wholesalers Ltd. (1989), 79 Nfld. & P.E.I.R. 237, 246 A.P.R. 237, 1989 CarswellNfld 267 (Nfld. T.D.) — referred to

APPLICATION by union for judicial review of arbitrator’s decision that union was estopped from proceeding with grievance.

David B. Orsborn C.J.T.D.: Introduction 1 Eastern Residential Support Board (the “employer”) dismissed a part-time employee who refused a full-time position offered to him as part of a restructuring of the employer’s operations. The employee grieved. The employer raised a preliminary objection, asserting that because of the union’s involvement in and consent to the restructuring process, the union was estopped from proceeding with the grievance. 2 The arbitrator upheld the preliminary objection. The union has applied to set aside that decision, asserting that the arbitrator failed to consider relevant articles of the collective agreement and unreasonably or incorrectly applied the general law of estoppel.

Issue 3 Applying the appropriate standard of judicial review, should the arbitrator’s decision be set aside? 144 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

Facts 4 The following facts are set out in the arbitrator’s decision, with my additions in square brackets: The Facts The employer is a support agency which provides support for disabled persons. This support is provided through approximately 14 cooperative apartment units which were formerly known as group homes. It employs approximately 135 employees and has approximately 37 residents in the St. John’s area at any given time. In 2004 there was a review of operations. A reorganization was planned which was intended to be a transitional program. Those individuals (referred to as residents) who had significant delays and challenges were to receive in- depth programming and support. Others, with less complicated problems were to be moved to less restricted environments outside of the Eastern Re- gional Support Board. As a result of this change the number of scheduled hours would be reduced. The entire process took approximately 10 months to complete. Implementation was delayed somewhat because of the late arrival of some of the new referrals. The entire process including the restructuring of schedules was done with the involvement of union representatives. Communication with the general employee group was done by memo from the employer to each of the 14 units. These memos were not necessarily delivered personally to each employee but were made available to them. One such memo (06-02/2005) was dated February 4, 2005 and reads as follows: All employees are hereby notified that management is currently reviewing the schedules at all units to determine whether existing scheduled hours may be allocated in a more efficient manner. We are in the process of developing schedules that will dis- tribute a greater number of scheduled hours to the more senior employees. The end result will be less permanent part-time positions but not necessarily a reduction in hours. During the process we will attempt to increase the number of permanent full time positions by utilizing part-time hours from two or more units. These actions will not only provide increased consistency to our residents, but are more in line with Collective Agreement requirements and expectations. The employer realizes the disruption to employees’ personal lives caused by schedule changes. We are very appreciative of the cooperation and participation of staff during past changes, and will make every reasonable effort to avoid altering existing permanent fulltime schedules. We anticipate this process will be completed by March 31, 2005. N.L.A.P.P.E. v. Newf. & Lab. Health Boards Assn. Orsborn C.J.T.D. 145

In February 2005 the scheduled hours were not done on the basis of seniority. There was no requirement for an employee to accept the hours available based on their seniority. The grievor and others were at the bottom of the scheduled hours. A second memo (No. 09-03/2005) was sent to employees on March 16, 2005. It reads as follows: Memo No. 06-02/2005 notified all staff that the employer was in the process of reviewing all permanent part time hours and intended to realign these hours in an effort to maximize the scheduled hours of senior part time employees. We had intended that this process be complete by March 31, 2005. However, all schedules are subject to change as a result of program review initiatives and future referrals. As a result, we will not be implementing revised schedules until such a time as there is more stability in the scheduled hours. All staff will be notified well in advance of any impending changes. The union at this time was involved in the process by way of the labor management committee meetings. When there were issues to be discussed the committee met on a monthly basis but otherwise less frequently. The thrust of the management plan was to combine the current part-time positions into full-time positions. The minutes of these labour management meetings indicated that the union was fully apprised of the plans and was in agreement with them. No grievances were filed as a result of the memos which were sent around. The labour management committee met on September 7, 2005. At that meeting the schedule revision was discussed. It was pointed out that because of the changes there would be a reduction of approximately 18,000 hours on an annual basis. It was noted as well that schedules were drafted to reflect these reductions as well as the realignment of the remaining part-time schedules. The full-time complement went from 70 employees to 83 employees. There were, however, significant reductions in the number of part-time employees. The minutes of that labour management meeting point out that 32 part-time employees were to receive notification that, effective November 8, 2005, their scheduled work hours would no longer be available and they would be contacted prior to this and presented with schedule options. Employees were to be offered schedules based on seniority with the most senior individuals being offered the greatest number of scheduled hours. It was stated in the memo [this should read “minutes”] that employees must accept these hours offered unless they can show just cause why they could not accept them. The employer stated its opinion that the only obvious reasons for just cause would be other employment of longer duration, or a medical condition that prevented them from accepting. It was also noted that employees who did not accept would lose their seniority and would effectively have severed their employment with the employer. There was a consensus among members of the committee, including the union members, that the new schedules were more in line with the collective agreement criteria with respect to se- 146 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

niority and scheduling. The minutes of the meeting were signed by both the employer and the union representatives. The memo to all employees (No. 23-2005) dated September 26, 2005 was forwarded by e-mail to the union representative on that date prior to it being circulated to the union membership with a request that it be looked over and comments provided. The response was “looks fine to me”. Shortly after, the memorandum was circulated to all employees. [There is no reference in the memo to the consequences of refusal, nor to the “just cause” position of the employer set out in the Labour Management meeting minutes of September 7, 2005.] A part of the message of that memo was that 33 part-time employees would have their scheduled hours unavailable effective November 8, 2005. A letter was sent to the grievor by the employer on September 26, 2005 formally advising him of the change in the operational requirements of the employer and realignment of schedules for all current part-time employees. The grievor was advised that he would be contacted with a presentation of the schedule options that were available for him. There was no response from the grievor. The options which were available to the part-time employees were: 1. to accept pay in lieu of notice based upon a layoff or, 2. go to the casual list and keep recall rights for two years. If no permanent or part- time positions came up in that time they would stay on the call-in list. On October 14, 2005 the labour management committee again met and it was noted by the union representative that she could find no violation of the collective agreement with respect to the proposed procedure but that she would consult further with her coworkers and, if it was shown that there was a violation of the agreement or an employee’s rights, she would follow through with that issue. No issues were raised. On October 24, 2005 another memorandum was sent to employees advising that the implementation of the schedule was being delayed because of the introduction of a new resident. As well, part-time employees and temporary positions were extended to November 22, 2005. On December 9, 2005 the labour management committee again met and no changes were suggested to the minutes of the October 14, 2005 meeting. The only grievance filed with respect to the changes was the current one filed by the grievor on November 24, 2005. The grievor started working as a temporary part time employee with the predecessor of this employer. He subsequently became a full time permanent employee for approximately 10 years and then applied for a full-time teach- ing position. After becoming a teacher he remained as a permanent part time employee with the employer, working approximately 20 hours biweekly on a permanent schedule. He picked up temporary hours when he was available over holiday periods such as Christmas, Easter and time off. He described this employer as being very cooperative when it came to getting leaves of absence. In 2004/2005 the grievor was a permanent teacher and he worked 20 hours biweekly as a permanent part-time employee with this employer. He worked N.L.A.P.P.E. v. Newf. & Lab. Health Boards Assn. Orsborn C.J.T.D. 147

mostly 12 hour shifts. He occasionally received calls during the week and decided upon his availability depending upon his schedule. If he wanted additional shifts he made sure that his employer knew that he was available. The permanent part-time position allowed him great flexibility. The grievor stated that he had worked this pattern for years and it had been accepted by both the employer and the staff as well. He filed the grievance because, after having conversations with the office, the shop steward and the employer, they could not reach a reasonable accommodation with respect to his situation. With respect to the memos that he had received, only the October one caused him any grief. The other memos he felt were benign. He was never sure anything would happen or what it would be if it did. He received a call from Shirley Walsh representing the employer who advised him that he had a right to a full-time position because of his seniority. Someone junior to him took the part-time position. He would have applied for any part-time positions if they had been posted but he could not apply for a full-time position as he was working full time as a teacher. On October 27, 2005 the grievor had a meeting with several representatives of the employer where he explained that he was a permanent full time teacher and that he did not understand why he could not be offered another part-time position. He argued about his seniority and that he thought he was building secure employment. He was asked why he would not work somewhere else. The grievor said that he wanted to work here as he had a lot invested in it and he liked the work. The grievor felt that none of his arguments was working. On October 27, 2005 the grievor wrote to the employer in the following terms: Further to our conversation today, October 27, 2005, I feel that you are aware of the fact that I am a full-time teacher and enjoy part-time employment with your organization on the weekends, summers and other holidays with the option to pick up temporary hours as they might be available to me in the homes that I am oriented to work in and based on my availability. I have to take exception to the process that you are following and feel that you are placing me in the unfortunate position of not being able to accept your offer of full time employment. It is my position that I should have access to all jobs including the part-time positions of which I would accept any of the 8 hour, 16 hour or 24-hour positions. This would better equate the position that I currently occupy at Guzzwell Dr. Upon more careful consideration of the positions that you have posted, two of the 24 hour jobs seem to contain the hours that I am currently employed to work. Please reconsider. 148 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

On November 23, 2005 the grievor received a letter which reads in part as follows: This letter will confirm our November 17, 2005 meeting at which we reviewed the possibility of your continued employment with the Eastern Residential Support Board Inc. At that meeting you were informed that it was our opinion that you did not present us with just cause for your October 26, 2005 refusal of full-time employment as offered by Ms. Shirley Walsh. In turn, we informed you that by virtue of your October 27, 2005 correspondence you effectively terminated your employment relationship with Eastern Residential Support Board Inc. You are hereby notified that our position on this issue has not changed and that we consider your employment terminated effective November 22, 2005. Ms. Margaret White is available to provide information with respect to pension and other outstanding monetary and benefit issues. We thank you for your service with Eastern Residential and its predecessor boards and wish you continued success in your future endeavours. That was the last contact the grievor had with the employer other than to ask for a record of his seniority at which time he was referred to the union to provide it. The grievor had a bad feeling that he could lose his job during the revision process but felt that he was being paranoid. He spoke to his union representatives who told him that there was nothing they could do until management made a decision which affected him. As soon as he received the letter, he immediately filed a grievance.

The Award 5 In his decision, the arbitrator set out the provisions of the collective agreement dealing with the labour management committee and the jurisdiction of an arbitrator: 9.01 It is agreed that representatives of both the Employer and the Asso- ciation will meet as the need arises, but in any event no greater than once per month unless mutually agreed otherwise, to discuss the following general matters: (a) promoting safety and sanitary practices; (b) reviewing suggestions from employees, questions of working conditions and service; (c) other problems and matters of mutual interest which affect the relationship which are not properly the subject matter of a grievance or negotiations. N.L.A.P.P.E. v. Newf. & Lab. Health Boards Assn. Orsborn C.J.T.D. 149

9.02 These meetings shall not supersede the activities of any other Com- mittee of the Association or of the Employer and shall not bind either the Association or its members or the Employer to any decisions or conclusions reached during discussions. [my underlining] 8.04 Decision of the Board The decision of the majority shall be the decision of the Board. Where there is no majority decision, the decision of the Chairperson shall be the decision of the Board. The decision of the Board of Arbitration shall be final, binding and enforceable on all parties, and may not be changed. The Board of Arbi- tration shall not have the power to change this Agreement or to alter, modify or amend any of its provisions. However, the Board shall have the power to dispose of a grievance by any arrangement which it deems just and equitable. 6 He then summarized the positions of the parties. 7 The employer’s position: The basic thrust of the argument of the employer is that it proceeded with its plans for the reorganization of the group home with the full knowledge, consent and participation of the union. This reorganization cost the employer in terms of staff time for the planning and the implementation of a work plan whereby more bargaining unit employees were employed on a full-time basis. If the grievance of this grievor is permitted, the employer will, as well, suffer financially from the settlement of his claim for payment of all shifts which the grievor has missed since the implementation of the plan. 8 The union’s position: The union, on the other hand, argues that the union made no representations to the employer that it could rely upon. If any representations were made it would of necessity have been the results of the labour-management liaison committee. Article 9.02 specifically states that these meetings shall not bind either the Association or its members or the employer to any decisions or conclusions reached during their discussions. Therefore, it is argued, the employer is not justified in relying upon those minutes and the arbitrator has no authority, pursuant to the provisions of article 8.04 “to change this Agree- ment or to alter, modify or amend any of its provisions”. 9 The arbitrator continued: Given the wording of article 9.02 combined with the wording of article 8.04, unless the doctrine of estoppel is applied it would seem that the undersigned is powerless to grant relief to the employer. Can the doctrine of estoppel be applied to the fact situation in this case? 10 The arbitrator then set out his understanding – based on a recognized labour law text – of the general law of estoppel; essentially, that it is a rule of evidence that prevents the unfair raising of grounds that would otherwise support a claim. The award quotes directly from the text: Much has been written about the doctrine of estoppel as it applies in the labour relations context. In Canadian Labour Arbitration, Brown and Beatty 150 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

(Canada Law Book) at section 2:2200 of the loose leaf edition the following appears: The statutory basis of an arbitrator’s jurisdiction is generally limited to determining disputes ‘arising from the interpretation, application, administration or alleged violation of the agreement’. As well, collective agreements often define the arbitrator’s jurisdiction in similar terms, and they expressly state that the arbitrator shall have no power to add to, vary or amend the collective agreement or to make a decision that is inconsistent with its terms. Because it has been suggested that the effect of the doctrine of estoppel is to prevent one party from relying upon the strict terms of the collective agreement, at one time doubt was expressed as to its application. However, and although the matter has not as yet been conclusively determined by the Supreme Court of Canada, courts and arbitrators are now generally of the view that arbitrators do have jurisdiction to apply the doctrine. While some arbitrators’ justification for invocation of the doctrine of estoppel is that it simply gives effect to the parties own amendment of the collective agreement, the more generally accepted position is that no less than any other contractual document, collective agreements are subject to the equities when they are applied. As well, it has been suggested that the doctrine of estoppel should be considered as a rule of evidence, preventing the unfair assertion of what would otherwise be material grounds for a claim. [citations omitted] It would seem from this authority that the general consensus is that arbitrators can indeed apply the doctrine of estoppel even in the face of articles such as 8.04 and 9.02. What is required in order to establish an estoppel? This question is answered by Messrs. Brown and Beatty at section 2:2211 on page 2-74 of the loose leaf edition where, quoting from Canadian General Electric Co. (1971), 22 L.A.C. 149 (Johnston), at pp. 150-151 the learned authors state: It is apparent that there are two aspects of the doctrine as thus stated. There must be a course of conduct in which both parties act or both consent and in which the party who later seeks to set up the estoppel is led to suppose that the strict rights will not be enforced. It follows that the party against whom the estoppel is set up will not be allowed to enforce his strict rights if it would be inequitable to do so. The main situation where it would be inequitable for strict rights to be upheld would be where the party now setting up the estoppel has relied to his detriment. 11 An arbitrator’s definition of a law of general application such as estoppel must be correct, but the arbitrator’s application of correctly stated law to the facts is entitled to deference and review on a standard of reasonableness: – see U.F.C.W., Local 1252 v. Lewisporte Wholesalers Ltd. (1989), 79 Nfld. & P.E.I.R. 237 (Nfld. T.D.)) at paras. 42–43. (See however Newfoundland & N.L.A.P.P.E. v. Newf. & Lab. Health Boards Assn. Orsborn C.J.T.D. 151

Labrador (Treasury Board) v. N.L.A.P.P.E., 2010 NLCA 37 (N.L. C.A.) which was released on May 31, 2010 following the argument in this case and is referred to herein as “NLAPPE (May 31)”. 12 The union took no issue with the arbitrator’s statement of the law. 13 The arbitrator noted that, in general, the union was in agreement with the employer’s plan of reorganization and its implementation through the introduction of new shift schedules. But as regards the grievor himself, the arbitrator stated: Unfortunately, it did not occur to anyone involved in the process that the grievor might be disenfranchised by the process. The grievor himself however, did have some misgivings about what was going on but did not express these misgivings to anybody until the final plan was put into action. Indeed, it may well have been impossible for him to have foreseen the impact upon him until he was finally confronted by management with the options which were available to him. [my underlining] 14 The arbitrator continued: The question for resolution is whether or not it is fair for the union to now disavow its agreement and acquiescence to the detriment of the employer. The employer seems to have done all that could be expected of it in this reorganization plan. It kept the union apprised of all that was going on, including delays and other issues of timing which it was experiencing. The union was responding that it saw nothing wrong with the plan. Indeed, the union waived the provisions with respect to posting job vacancies in order to facilitate the employer’s restructuring without having a complicated bumping situation. The minutes of the meetings reflected the impending changes and their scheduled commencement times. No objection was registered at the meetings or at the subsequent meetings when the minutes were approved. The union put up a valiant argument that approval of the minutes is not necessarily approval of what happened at the meeting. How- ever, the approvals were noted in the minutes and no objections were registered either at the meeting or subsequent approval. It “looks fine to me” as a response to a request for review is not an indicator of disagreement. [my underlining] There is no doubt that the employer has expended considerable sums of money and time in the execution of the plan of which both parties were aware. If the union was permitted to deny the agreement, the employer would incur considerable damages in compensating the grievor since 2005 for shifts that he lost in the interim. There is no evidence as to why the grievance was not pursued at an earlier stage and it is not for me to speculate on that issue. Would it be fair to allow the union to now claim the protection of the agreement when it knew its provisions all along and nevertheless adopted the plan or, at the very least, acquiesced in it? It would seem not. There were many opportunities along the way for the union to have expressed concern or doubt 152 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

or disapproval of the changes. No concerns, doubts or disapprovals were raised. The union was aware of these provisions in the collective agreement as was the employer – they negotiated it. The union cannot negotiate or acquiesce in such a large scale change in the operating system of the employer as is the case here, agree to it and then, upon implementation when it discovers a flaw that it had not previously considered, back out of the arrangement and attempt to hide behind the protection of the clause. If such a situation were to be sanctioned by arbitration, no employer would ever again negotiate improvements or any changes in working conditions with the union for fear of the union backing out at the last minute. In my view this would hamper constructive improvements in the work place in between times of formal negotiations of collective agreements. 15 He concluded: As a result I find that the employer is entitled to rely on the doctrine of estoppel and that it is applicable to this fact situation. The union is estopped from denying the terms of the agreement involving the re-arrangement of the shift system. 16 However, despite his conclusion, the arbitrator was concerned about the effect of the reorganization on the grievor: ... I have some reservations about the fairness of what has happened to this grievor. He has apparently fallen through a crack somewhere in the process. For example, it is difficult to understand how he could have gone from a permanent part time position to no position at all. Surely there must have been some part time openings for an employee who has been with the organization for such a long period of time. He seems, on the surface of the scanty evidence I have before me, to have been a valued employee. Unfortunately for him in this case, he is not a party to the collective agreement and the union is the party which holds his bargaining rights. It is the union and the employer who are the parties to this collective agreement and these proceedings and it is their relationship which must be examined by me. One would hope, however, that those parties could reach some accommodation for this individual whereby he could be accorded some consideration for future shifts. 17 But no accommodation was reached and the grievor lost his job.

Analysis 18 The issue on judicial review is whether the arbitrator’s application of the law of estoppel is reasonable. That is, having correctly defined the law, was the arbitrator reasonable in his application of the facts to that law? (In light of Newfoundland & Labrador (Treasury Board) v. N.L.A.P.P.E. (May 31), this standard of review may need to be reconsidered.) N.L.A.P.P.E. v. Newf. & Lab. Health Boards Assn. Orsborn C.J.T.D. 153

19 In Burke v. N.L.A.P.P.E., 2010 NLCA 12 (N.L. C.A.), Green, C.J.N.L. referred to reasonableness in the context of judicial review. He said, speaking for the Court, at paras. 52–53: In Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, Bastarache and LeBel JJ., writing for the majority, described the application of the reasonableness standard this way: [47] ... A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. The question in this case is whether, in concluding that the Board’s decision was reasonable, the applications judge correctly applied the reasonableness standard. The analysis is described in Dunsmuir as having a two-pronged approach; first, to analyze the Board’s reasons for decision to determine whether they satisfy the requirements of justification, transparency and intelligibility and then to address whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of facts and law. 20 With respect to the second prong – reviewing the reasonableness of the result itself – Green, C.J.N.L. said this at paras. 78–79: In my view, it is unclear in the existing case law, as to how, to what degree and in what circumstances a “reasonableness of result” analysis should be employed in a judicial review case applying the Dunsmuir reasonableness standard. I conclude, nevertheless, that, whatever its scope, it is not appropriate to employ such an analysis in every case. In Dunsmuir, the majority observed at para. 48 that “deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law”. Intuitively, the notion of the court supplying reasons to support a tribunal decision that is unsupportable by the reasons expressed seems to work against the notion of deferring to the tribunal as the statutorily-designated decision-maker. The idea of upholding a decision on the basis that the result is reasonable, regardless of the reasoning leading to that result is concerning, at least in some circumstances, because one could have a situation where the tribunal, if it had considered the matter without reference to its flawed reasoning might come to a different result. If a court were nevertheless to uphold the decision on a reasonableness of result analysis, the result of the case would be the substitution of a decision by the court that the tribunal would not necessarily have come to. This might not be a concern in a situation where it was clear that even without the usage of the flawed reasoning the result would necessarily be the same as the tribunal’s original decision, but of course that will not always be the case. 154 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

21 In Burke, the Court of Appeal said this about a tribunal’s responsibility to respond to the issues presented at paras. 66– 67: The duty of any tribunal is to respond to, and decide on, the essential arguments presented to it. In Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761, LeBel J. for the Court stated, in relation to whether a decision could be said to be reasonable within a Dunsmuir analysis: [41] ... The Minister’s conclusion will not be rational or defensible if he has failed to carry out the proper analysis ... A decision that is unresponsive to the case presented cannot be said to meet the standard of “justification, transparency and intelligibility” within the Dunsmuir test of reasonableness. The essential submissions made should not be ignored. If they are regarded by the tribunal as frivolous or irrelevant to the issues in dispute, the tribunal should say so. If they are not, but rather, are simply unpersuasive, the tribunal should be expected to give at least a rational reason for why they are not persuasive. Such a requirement is inherent in the Dunsmuir focus on “the process of articulating reasons” to see if the result is supported by a chain of reasoning that is reasonable. [my underlining] 22 And further at para. 70: While it is not necessary to ground this judgment in an adequacy of reasons analysis, it can nevertheless be said that if reasons must show that the tribunal grappled with the substance of the matter, it must follow that, for the purpose of a Dunsmuir analysis, the tribunal’s reasoning process must also actually grapple with the substance of the matter. Where it appears, from an analysis of the reasons given in the context of the record and submissions made, that it did not address the essential submissions, it cannot be said that the decision meets the Dunsmuir standard of “justification, transparency and intelligibility”. [emphasis in original] 23 In the result, the court concluded that the decision of the Labour Relations Board was unreasonable because, in relation to certain specific allegations made by Burke and raised by him before the Board, the Board’s decision contained conclusory statements only and gave no indication that the Board had in fact addressed Burke’s allegations. That is, as said at para. 75 of Burke, the decision was unreasonable because it did not “provide some basis for understanding why these submissions were rejected”. 24 Because of the finding of unreasonableness in the decision-making process, the court declined to consider the reasonableness of the result, preferring to re- mit the matter to the tribunal in question. 25 In the present case the arbitrator concluded, contrary to the submission of the union, that the employer could raise the estoppel argument “in the face of” article 9.02 – the provision that the labour management meetings “shall not bind” N.L.A.P.P.E. v. Newf. & Lab. Health Boards Assn. Orsborn C.J.T.D. 155

the union and the employer “to any decision or conclusion reached during discussions”. The arbitrator gave no reasons to support his conclusion. 26 In applying the doctrine of estoppel to the facts before him, the arbitrator framed the overall question in terms of fairness. I repeat the essence of his reasoning in finding unfairness: There were many opportunities along the way for the union to have expressed concern or doubt or disapproval of the changes. No concerns, doubts or disapprovals were raised. The union was aware of these provisions in the collective agreement as was the employer – they negotiated it. The union cannot negotiate or acquiesce in such a large scale change in the operating system of the employer as is the case here, agree to it and then, upon implementation when it discovers a flaw that it had not previously considered, back out of the arrangement and attempt to hide behind the protection of the clause. 27 The arbitrator does not identify the specific provisions that the union was “aware of” during the discussions, nor the clause the union sought to “hide behind”. This is not responsive to the requirements of estoppel. Estoppel is not concerned with mere awareness. There should be some acknowledgment, express or clearly implied, of the specific right or rights that will not be enforced. 28 In Newfoundland & Labrador (Treasury Board) v. N.L.A.P.P.E. (May 31) Harrington, J.A. said this of estoppel at para. 54: ... the doctrine of estoppel has a rather fluid application in labour arbitration as compared to the consideration of past practice. The doctrine of estoppel arises in a number of different ways such as by conduct, convention or representation (see discussion of estoppel by convention and representation in Ryan v. Moore, [2005] 2 S.C.R. 53). However, care must be taken in the field of labour relations to ensure that undisciplined applications of this doctrine do not undermine the integrity of the collective bargaining process and in particular the language of a collective agreements negotiated in good faith by the parties at a bargaining table. In Ryan, the Supreme Court at para. 50 affirmed the admonition that: ... it has long been accepted that estoppels are to be received with caution and applied with care (citation omitted). 29 As noted by the arbitrator, in the context of collective agreement arbitration the doctrine of estoppel operates to prevent one party from relying on the “strict terms of the collective agreement”. One party is “led to suppose that the strict rights will not be enforced”. Implicit in the doctrine, founded as it is on fairness, is the need for a common understanding on the delineation and extent of the rights being put to one side. 30 In the award, the arbitrator found as a fact that the union had waived the provision in the agreement with respect to the posting of job vacancies; indeed the union conceded that it had waived this provision. However, no other waived provision was identified in the award: neither the employer nor the arbitrator 156 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

identified other rights in the collective agreement that the union agreed not to enforce. To say that, in the course of the discussions, the union was aware of the provisions of the collective agreement is not enough, particularly in light of: (a) the union’s indication that it would pursue violations of the collective agreement (presumably other than the job posting requirement); and (b) the employer’s position that it – not the union – would consider only a limited number of circumstances as just cause for refusal. 31 The arbitrator found that the grievor had “fallen through a crack somewhere in the process”. Nowhere is there any finding that the employer and the union discussed the situation of a senior part-time employee who could not take a full time position because of full-time employment elsewhere. 32 It is significant that there was no finding or reference to the union agreeing that if a part-time employee could not accept a full time job, he or she would be automatically terminated without recourse to the grievance procedure and without being offered, based on seniority, another part-time job with the same or more hours. The minutes of the labour management meeting of September 7, 2005 referred to above, addressed the issue of an employee’s refusal or inability to accept the offered hours: Employees will be offered schedules based on seniority, and will be offered the greatest number of scheduled hours available based on this seniority. Em- ployees must accept these hours offered unless they can show just cause why they cannot. It is the employer’s position that the only obvious reasons for just cause would be other employment of longer duration, or a medical condition that prevented them from accepting. Employees that do not accept will lose seniority and effectively have severed their employment with E.R.S.B. 33 I note the reference to “employer’s position”, to “just cause” – (to be determined by whom?), and to “other employment of longer duration”. The grievor was in this precise situation. He was a full-time teacher who worked part-time (20 hours biweekly) as a support worker. As found by the arbitrator, he could not accept a full time position in the reorganization because he was already working full time as a teacher. There is no consideration by the arbitrator of the employer’s attempting to reserve to itself – outside the collective agreement and the grievance procedure - the determination of just cause for an employee’s refusal of a new position. Similarly, there is no finding by the arbitrator that the union agreed with this position to the point of concluding that any differences between an employee and the employer would be resolved by the employer rather than through the grievance procedure. One would expect that any agreement in advance not to grieve a termination would be both fully informed and clear. 34 In light of: (i) the “just cause” exception; (ii) the reference to only waiving the job posting requirement; (iii) the acknowledgement that no one thought that the grievor might be disenfranchised; and (iv) the lack of reference to a specific ‘termination-related’ collective agreement right being waived by the union or N.L.A.P.P.E. v. Newf. & Lab. Health Boards Assn. Orsborn C.J.T.D. 157

the grievor, the question must be asked whether or not the facts reasonably support the conclusion that the grievor’s ‘strict right’ to no termination without just cause was in fact waived by the union. The arbitrator does not directly address the fundamental question: ‘do the facts support the conclusion that the union was estopped from resorting to the grievance procedure and requiring the employer to prove that, in the circumstances, this employee’s inability to accept a full-time position amounted to just cause for his termination?’ 35 In my view, the reasoning process of the arbitrator does not “actually grapple with” this issue, the central issue of the grievance. 36 Thus, when measured against the reasoning in Burke, the reasoning process in this award is deficient in a number of aspects relating to the application of estoppel to the circumstances and to the collective agreement in question. A cogent argument can be mounted that the award – specifically its reasoning process– is unreasonable – or incorrect - in light of its failure to actually grapple with specific and significant relevant considerations. To adopt the phrase from Newfoundland & Labrador (Treasury Board) v. N.L.A.P.P.E. (May 31), the decision could be considered an “undisciplined application” of the doctrine of estoppel. 37 In N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2010 NLCA 13 (N.L. C.A.), (“N.L.N.U.”) a decision on judicial review released the day after Burke, a majority of the Court of Appeal concluded that the reasonableness requirement of “justification, transparency and intelligibility in the decision-making process” could be satisfied by a process that, although “skeletal” and “mini- mal”, showed simply that the arbitrator knew what the issue was and achieved a result that was within a range of acceptable outcomes. 38 In N.L.N.U., the arbitrator’s decision set out the factual background, reproduced certain provisions of the collective agreement, indicated that the arbitrator had considered the submissions and the collective agreement, and then stated the arbitrator’s conclusion on the interpretation of the provision in question. 39 The majority in that case concluded that while the arbitrator’s “pattern of thought” was not clear “from the skeletal discussion in his decision” and while “the preferred approach would have been to provide a more comprehensive explanation for the decision by analyzing the language...”, the decision read “as a whole and in context” was “sufficient to explain, at least minimally”, why the arbitrator had reached the conclusion he did. 40 The dissenting judge in N.L.N.U. found that the decision of the arbitrator was conclusory only and was not supported by any intelligible chain of reasoning. 41 In this case, as is evident from the extracts of the award reproduced above, the arbitrator took a ‘broad brush’ approach, essentially concluding that it would not be fair to the employer to allow the union – having participated fully in the 158 ADMINISTRATIVE LAW REPORTS 11 Admin. L.R. (5th)

reorganization planning without objection – to now grieve any aspect of that reorganization. To repeat what the arbitrator said: Would it be fair to allow the union to now claim the protection of the agreement when it knew its provisions all along and nevertheless adopted the plan or, at the very least, acquiesced in it? It would seem not. 42 The arbitrator was clearly alive to the issue before him and his reasons are transparent and intelligible. The justification in the decision-making process is expressed through the concept of fairness and the decision sets out the arbitrator’s considered view on what would or would not be fair to the employer. As noted earlier, the doctrine of estoppel is founded on fairness. 43 The award in this case provides reasoning and a “why” explanation that is significantly more expansive than that in the N.L.N.U. case. Here, although the arbitrator did not, as outlined above, specifically address certain issues relevant to the application of estoppel, he was clearly alive to the general issue, correctly set out the legal requirements of the doctrine of estoppel, and gave comprehensive but broad reasons why he felt that it was ‘fair’ that the union should be estopped from proceeding with the grievance. Looking at the circumstances from the position of the employer and the union – as distinct from that of the grievor himself – the outcome of the decision, in and of itself, is not unacceptable. In my view, measured against the award under review in N.L.N.U., the award in this case is reasonable, and, if necessary, may be considered correct.

Conclusion 44 In oral argument, and in response to my query, counsel expressed the view that the decisions – the outcomes – in Burke and in N.L.N.U. could not be recon- ciled. The N.L.N.U. decision is, albeit only slightly, more recent than the decision in Burke. Consistency with the reasoning and outcome in N.L.N.U. points to the award in this case being reasonable and, again when considered in light of N.L.N.U., to being correct. Accordingly, that is my conclusion. 45 The application to set aside the award is dismissed. The employer/respondent is entitled to its costs on a party and party basis. Application dismissed.