The Applicant, a Maliseet woman, has been partially successful. The Respondent prison authorities shall pay costs in the amount of $500.00 to the incarcerated Applicant. She will receive a declaration that the deprivation of her residual liberties that she experienced for a further 10 days in maximum security after it was determined she could return to medium security, was unlawful.
The Applicant, Ms. Paul, brings this application for habeas corpus. She is serving a sentence for offences that include robbery, four counts of failure to comply with a Probation Order, and other counts. Ms. Paul is a 35-year-old first-time federal offender and is presently incarcerated at Nova Institute for Women [“Nova”]. She is Maliseet, and from St. Mary’s First Nation in New Brunswick [“SMFN”]. Her undisputed contentions are that she lives with long-standing addictions, and has reported diagnoses of bipolar disorder, attention deficit disorder, depression and anxiety. She also reports a history of sexual trauma and family fragmentation.
Nova is a women’s multilevel facility. In 2019, Ms. Paul was released and granted day parole from Nova which was subsequently suspended due to a urinalysis test performed in her community, which had returned positive for opiates. Prior to Ms. Paul’s return, Nova had received information from Ms. Paul’s community parole officer to the effect that it was believed that she would attempt to introduce drugs into the institution. Ms. Paul was subjected to testing by a drug sniffer dog, as well as an ion scanner upon arrival at Nova. This testing was positive for drugs, and as a result, the facility placed her in the Structured Intervention Unit [“SIU”], where she remained for six days. Ms. Paul no longer challenges her initial 6-day placement in the SIU. What she does challenge is the subsequent decision to detain her in the Secure Unit [“SU”], or maximum security, when the records at the institution always had her either classified or as a “recommended” medium security risk. Despite this, she remained in SU until the Warden’s Board accepted the recommendation and then was she moved into general population.
The Court concludes that Ms. Paul’s matter, although moot, merits a decision in the circumstances of this case (Borowski v Canada (AG),  1 SCR 342). Ms. Paul sustained a deprivation of liberty for the period of time during which she was in SU as opposed to a medium security setting. She was deprived of some of the liberties to which the general population inmates were entitled. Her security classification never changed from “medium”. This means that her treatment is subject to review by this Court on the basis of lawfulness and reasonableness.
Once a deprivation of liberty has been established by the Applicant, along with a legitimate ground upon which to question its legality, she bears no further burden. The onus shifts to the Respondent prison authorities to demonstrate on the balance of probabilities that it acted both lawfully and reasonably on both substantive and procedural grounds. It was reasonable on the part of the decision-makers at Nova to the placement of Ms. Paul in the SIU at first instance due to the above concerns. The Court concluded this placement was in conformity with the Corrections and Conditional Release Act, and therefore substantively reasonable.
However, there is no reference explaining why it took the institution ten days longer to convene the Wardens Board hearing. This length of time requires explanation and justification, which is part of the onus which the Respondent must discharge. This is particularly troubling given the fact that the impact of the SU placement on Ms. Paul was always known by the Respondents to have critical consequences to her well-being and must not be understated. The Respondent’s onus is not discharged merely by explaining and justifying the reason(s) as to why Ms. Paul was initially allowed less liberty than her medium security counterparts. It must also explain the length of time during which she was so deprived (Dumas v Leclerc Institute,  2 SCR 459).
In these circumstances, an explanation of why it took a further 10 days to confirm that Ms. Paul would be released into the medium security, general population, commensurate with her recommended and subsequently endorsed security rating is required and was not provided. The Applicant will have a declaration of such and the Respondents, as well, shall pay costs in the amount of $500.00, including disbursements.