Court File: 30929 IN THE SUPREME COURT OF CANADA

(FEDERAL COURT OF APPEAL) B E T W E E N :

HASSAN ALMREI Appellant

and

THE MINISTER OF CITIZENSHIP & IMMIGRATION and THE SOLICITOR GENERAL OF CANADA

Respondents and

ATTORNEY GENERAL OF ONTARIO, UNIVERSITY OF TORONTO FACULTY OF LAW - INTERNATIONAL HUMAN RIGHTS CLINIC, HUMAN RIGHTS WATCH, CRIMINAL LAWYERS' ASSOCIATION (ONTARIO), CANADIAN

COUNCIL OF AMERICAN-ISLAMIC RELATIONS, CANADIAN MUSLIM CIVIL LIBERTIES ASSOCIATION, CANADIAN BAR ASSOCIATION, CANADIAN CIVIL LIBERTIES ASSOCIATION, CANADIAN COUNCIL FOR REFUGEES, AFRICAN

CANADIAN LEGAL CLINIC, INTERNATIONAL CIVIL LIBERTIES MONITORING GROUP, NATIONAL ANTI-RACISM COUNCIL OF CANADA, AMNESTY

INTERNATIONAL CANADA, FEDERATION OF LAW SOCIETIES OF CANADA and BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION

Interveners

FACTUM OF THE INTERVENER ATTORNEY GENERAL OF ONTARIO

Attorney General of Ontario Constitutional Law Branch 720 Bay Street, 4th Floor Toronto, ON M5G 2K1

Shaun Nakatsuru Michael T. Doi

tel: (41 6)326-3360 fax: (416) 326-401 5

Counsel for the Intervener, Attorney General of Ontario

Burke-Robertson Barristers & Solicitors 70 Gloucester Street Ottawa, ON K2P 0A2

Robert E.Houston, Q.C.

tel: (61 3) 236-9665 fax: (61 3) 235-4430

Ottawa Agents for the Intervener, Attorney General of Ontario

Counsel for the Appellant Barbara Jackrnan Jackman & Associates Barristers & Solicitors 596 St. Clair Avenue West, Unit 3 Toronto, Ontario M6C lA6 tel: (416) 653-9964 fax: (416) 653-1036

John Norris Ruby, Edwardh Barristers 1 I Prince Arthur Avenue Toronto, Ontario M5R 182 tel: (416) 964-9664 fax: (416) 964-8305

Counsel for the Respondents John H. Sims, Q.C. Deputy Attorney General of Canada Ontario Regional Office 130 King Street West Suite 3400 Toronto, Ontario M5X 1K6 per: Urszula Kaczmarczyk tel: (416) 973-3688 fax: (416) 954-8982

Ottawa Agents for the Appellant Marie-France Major Lang, Michener LLP Barristers & Solicitors Suite 300 - 50 O'Connor Street Ottawa, Ontario IS1 P 6L2 tel: (613) 232-71 71 fax: (613) 231-31 91

Ottawa Agent for the Respondents Christopher Rupar Department of Justice 234 Wellington Street East Tower Room 1216 Ottawa, Ontario KIA OH8

tel: (613) 957-4842 fax: (61 3) 957-954-1 920

Counsel for the Interveners, University of Toronto, Faculty of Law - International Human Rights Clinic and Human Rights Watch Robert Centa Paliare Roland Rosenberg Rothstein LLP Barristers & Solicitors 250 University Ave., Suite 50 1 Toronto, Ontario M5H 3E5 tel: (416) 646-43 14 fax: (416) 646-4301

Counsel for the Intervener, Criminal Lawyers' Association (Ontario) Michael Code Sack Goldblatt Mitchell Barristers & Solicitors 20 Dundas Street West, Suite 1 130 Toronto, Ontario M5G 2G8 tel: (416) 979-6445 fax: (416) 591-7333

Counsel for the Interveners, Canadian Council on American Islamic Relations and Canadian Muslim Civil Liberties Association David Baker and Faisal Bhabha Bakerlaw Barristers & Solicitors 672 Dupont Street, Suite 400 Toronto, Ontario M6G 126 tel: (416) 533-0040 ext. 226 fax: (416) 533-0050

Counsel for the Intervener, Canadian Bar Association Lome Waldman Waldman & Associates Barristers & Solicitors 28 1 Eglinton Avenue East Toronto, Ontario M4P 1L3 tel: (416) 646-4324 fax: (416) 646-4323

Counsel for the Intervener, Canadian Civil Liberties Association Edward L. Greenspan, Q.C. Greenspan, White Barristers 144 King St. East Toronto, Ontario M5C 1G8 tel: (416) 366-3961 fax: (416) 366-7994

Counsel for the Interveners, Canadian Council for Refugees, African Canadian Legal Clinic, International Civil Liberties Monitoring Group and National Anti- Racism Council of Canada Mary Eberts Law Office of Mary Eberts P.O. Box. 19047, Station Walrner Toronto, Ontario M5S 1x1 tel: (4 16) 966-0404 fax: (41 6) 966-2999

Counsel for the Intervener, Amnesty International Canada Michael Bossin Community Legal Services (Ottawa-Carleton) 1 Nicholas Street, Suite 422 Ottawa, Ontario KIN 7B7 tel: (61 3) 241-7008 fax: (61 3) 241-8680

Counsel for the Intervener, Federation of Law Societies of Canada Neil Finkelstein, Catherine Beagan Flood, Wade Wright and Leena Grover Blake, Cassels & Graydon LLP Barristers & Solicitors Box 25, Commerce Court West Toronto, Ontario M5L lA9 tel: (41 6) 863-2266 fax: (416) 863-2653

Counsel for the Intervener, British Columbia Civil Liberties Association Greg Delbigio Westlake Delbigio 1700-355 Burrard Street Vancouver, B.C. V6C 2G8 tel: (604) 687-983 1 fax: (604) 687-7089

Jason Gratl Barrister & Solicitor 1300-355 Burrard Street Vancouver, B.C. V6C 2G8 tel: (604) 694-191 9 fax: (604) 608- 19 19

TABLE OF CONTENTS

PART I . INTERVENER'S STATEMENT AS TO THE FACTS ....................................... 3

............................................................................................................... A . Overview 3

........................................................................................ B . Conditions of Detention 4

C . Provincial Legislation & Regulation Governing Detention at Provincial ....................................................................................................... Detention Centres 6

............................. D . Findings of the Courts Below on the Conditions of Detention 7

......................................................................................... PART I1 . ISSUES ON APPEAL 8

PART 111 . BRIEF OF ARGUMENT ................................................................................... 8

A . Consideration of the Conditions of Detention Should be Confined to the .......................................................................................... Factual Record on Appeal 8

B . Appellant's Arguments Under s . 12 of the Charter are Duplicative of. and Best Assessed Under. s . 7 Charter Arguments .................................................................. 10

.................................................................... C . The Test Under s . 12 of the Charter 1

D . Context of the Constitutional Challenge: Judicial Recognition of the Nature of ................................................................................................ Correctional Facilities 12

......................................................... E . Application of s . 12 to the Appellant's Case 16

............................................................................................................. F . Conclusion 18

...................................................................................... PART IV - COST SUBMISSIONS 19

............................................................................................... PART V . ORDER SOUGHT 19

.............................................................................. PART VI . TABLE OF AUTHORITIES 20

PART VII . LEGISLATION ................................................................................................. 22

PART I - INTERVENER'S STATEMENT AS TO THE FACTS

A. OVERVIEW

1. The Attorney General of Ontario intervenes' solely on the issue of whether the

conditions of the Appellant's detention at Toronto West Detention Centre2 infringed his

rights under the Charter.

2. It is respectfully submitted that the Appellant's conditions of detention did not

constitute cruel and unusual treatment contrary to s. 12 of the ~ h a r t e r . ~ Notably, the

Appellant was placed in segregated confinement for his own protection (initially at the

direction of detention center officials, and later at his own request) while he pursued legal

recourse to avoid being deported as an alleged terrorist. His conditions of detention were

not "abhorrent", "intolerable" or such as to "outrage" standards of decency, even when

taking into account the length of time that he had spent in detention4 when his application

for release under the Immigration and Refugee Protection Act ("IRPA") was heard by

Blanchard J. in the Federal Court.

3. Ontario takes no position as to the constitutionality of the statutory provisions

under the IRPA that are being challenged by the Appellant.

I On February 8,2006, the Attorney General of Ontario filed a Notice of Intervention on the constitutional questions stated by The Chief Justice of Canada on January 10, 2006. Out of an abundance of caution (to ensure that it would not be limited in addressing whether the Appellant's conditions of detention violated his Charter rights, as this particular issue does not fall directly within the stated constitutional questions), Ontario moved on April 10,2006 for leave to intervene on the issue of whether the Appellant's conditions of detention infringed the Charter. On May 4, 2006, LeBel J. granted Ontario's motion.

2 Toronto West Detention Centre is a provincial detention facility operated by Ministry of Community Safety and Correctional Services of the Government of Ontario, pursuant to the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, as amended. It provided secure custody for immigration detainees, such as the Appellant, whom Canada deemed to require secure custody.

3 The Appellant only raises the issue of the conditions of detention under s. 12 of the Charter, and does not contend that the conditions of detention violate s. 7 of the Charter. Regardless, the tests for a violation of sections 12 or 7 of the Charter are the same; gross disproportionality. See R. v. Malmo-Levine, [2003] 3 S.C.R. 571, Respondents' Authorities Tab 26.

4 The Appellant was taken into custody in October 2001; Applicant's Record Vol. I11 p. 82. He testified about the conditions of his detention at Toronto West Detention Centre before Blanchard J. of the Federal Court during the hearing of his application for release from detention under subsection 84(2) of the IRPA. At the hearing on June 24,2003, Mr. Frank Geswaldo, the security manager of the Toronto West Detention Centre, testified about the Appellant's conditions of detention. When Blanchard J. released his decision on March 19,2004, the Appellant had been in custody for approximately 29 months.

B. CONDITIONS OF DETENTION

4. In October 2001, federal authorities arrested the Appellant on a national security

certificate for his suspected involvement with terrorist groups. Federal authorities placed

the Appellant and other higher risk immigration detainees in provincial detention facilities

pursuant to an ad hoe arrangement between the Governments of Canada and Ontario.

Examination-in-Chief of Peter Dietrich, Regional Program Adviser, Citizenship & Immigration Canada, Appellant's Record Vol. IV pp. 580-581, lines 18-2

5. The Appellant was taken to Toronto West Detention Centre, a maximum-security

detention centre, in which the large majority of inmates were persons awaiting trial on

criminal charges. The centre also housed higher risk immigration detainees. Inmates at

the facility could be housed in a general population range, or in segregated custody.

General population had approximately thirty (30) inmates per corridor, with ten (1 0) cells

per range and three (3) inmates per cell.

Examination-in-Chief of Frank Geswaldo, Security Manager, Toronto West Detention Centre, Appellant's Record Vol. IV p. 554, lines 12-15

6. Following his arrival at Toronto West Detention Centre, the Appellant was placed

in segregated custody after an assessment was made by the Superintendent of Toronto

West Detention Centre, in consultation with his senior staff, that this forrn of detention

was appropriate for security reasons. Individuals arrested on a national security

certificate with suspected involvement in terrorist groups posed uncertain risks to the

safety of the facility. In addition, after the 911 1 terrorism attacks, as an alleged terrorist,

the Appellant was viewed as a high profile detainee, having been profiled in the media,

who was at risk of being harmed by other inmates if housed in the general population.

Cross-Examination of Frank Geswaldo, Security Manager, Toronto West Detention Centre, Appellant's Record Vol. IV pp. 572-573 lines 3-6 and p. 19-6

7. While in segregation, the Appellant was housed in his own cell (approximately 9'

x 12') that had a bed, toilet, sink and window. Lights in the cell were dimmed at night, as

they were throughout the entire facility. The Appellant left his cell to shower and to

spend recreational time in the outdoor exercise yard. From time to time, however,

staffing issues or other emergency lockdown situations5 (that affected the entire detention

centre) limited his ability to follow the shower and exercise routine.

Examination-in-Chief of Frank Geswaldo, Security Manager, Toronto West Detention Centre, Appellant's Record Vol. IV p. 555-557

8. The Appellant's religious beliefs were accommodated. He received a Koran and

had access to a Muslim cleric. He purchased his own newspaper subscription, obtained

other reading material, received visitors, and made telephone calls on approved request.

Examination-in-Chief of Frank Geswaldo, Security Manager, Toronto West Detention Centre, Appellant's Record Vol. IV p. 560, lines 3-1 1; p. 565, lines 17-22

Cross-Examination of Hassan Almrei, Appellant's Record Vol. 111, pp. 399-400

9. In November 2002, the Appellant brought a habeas corpus application seeking to

transfer fiom segregated detention to the general population. The Toronto West

Detention Centre officials made an assessment of the Appellant's situation and agreed to

house him in the general population. The habeas corpus application was abandoned.

However, after spending a few days in the general population, the Appellant was

involved in an altercation with other inmates. Accordingly, the Appellant voluntarily

asked for a transfer back to segregation, as he felt safer there. The Toronto West

Detention Centre agreed to his request. He chose to remain housed in segregation up

until the hearing before Blanchard J. rather than it being the case that the Toronto West

Detention Centre placed him there.

Examination-in-Chief Transcript of Frank Geswaldo, Security Manager, Toronto West Detention Centre, Appellant's Record Vol. IV pp. 566-567

10. While in detention, the Appellant was taken care of, provided all the necessities,

given medical attention when required, and not at all mistreated. The Appellant had no

discipline problems or issues with facility staff. He enjoyed a good rapport with staff,

and worked as a cleaner in the segregated detention area which enabled him to leave his

5 In his evidence, Frank Geswaldo, Security Manager at Toronto West Detention Centre, explained that security lockdowns occurred on average twice a month, which was similar in frequency to other correctional facilities in Ontario. Examination-in-Chief of Frank Geswaldo, Security Manager, Toronto West Detention Centre, taken June 24,2003, Appellant's Record Vol. IV p. 558.

cell for longer periods. Mr. Geswaldo visited the Appellant approximately ten (10) days

each month, and observed that the Appellant was holding up okay.

Cross-Examination of Hassan Almrei, Appellant's Record Vol. 111 p. 400, lines 1 1-1 3

Examination-in-Chief of Frank Geswaldo, Security Manager, Toronto West Detention Centre, Appellant's Record IV p. 564 lines 20-25; p. 565, lines 12-16

C. PROVINCIAL LEGISLATION GOVEFWING DETENTION AT PROVINCIAL DETENTION CENTRES

11. The Ministry of Correctional Services Act ("MCSA") and its companion General

Regulation 7786 together provide a set of guidelines and procedures for provincial

detention facilities, and inter alia mandate:

a. proper care and supervision of inmates (MCSA s. 5; Reg. 778 s. 2);

b. proper health care for inmates by qualified institution staff (Reg. 778 s. 4) and, where necessary, from qualified personnel outside the institution (MCSA s. 24);

c. proper clothing and hygiene (Reg. 778 s. 9);

d. visiting privileges (Reg. 778 s. 13);

e. correspondence privileges (Reg. 778 s. 16); and

f. canteen privileges (Reg. 778 s. 19).

12. Section 34 (Segregation) of Regulation 778, supra, also sets guidelines and

procedures as to when a detainee may be placed in segregation:

34. (1) The Superintendent may place an inmate in segregation if,

(a) in the opinion of the Superintendent, the inmate is in need of protection;

(b) in the opinion of the Superintendent, the inmate must be segregated to protect the security of the institution or the safety of other inmates;

(c) the inmate is alleged to have committed a misconduct of a serious nature; or

(d) the inmate requests to be placed in segregation.

6 Ministry of Correctional Services Act, R.S.O. 1990, C. M.22, and General Regulations, R.R.O. 1990, as amended by O.Reg. 295105.

(2) When an inmate is placed in segregation under clause (1) (c), the Superintendent shall conduct a preliminary review of the inmate's case within twenty-four hours after the inmate has been placed in segregation and where the Superintendent is of the opinion that the continued segregation of the inmate is not warranted, the Superintendent shall release the inmate from segregation.

(3) The Superintendent shall review the circumstances of each inmate who is placed in segregation at least once in every five-day period to determine whether the continued segregation of the inmate is warranted.

(4) An inmate who is placed in segregation under this section retains, as far as practicable, the same benefits and privileges as if the inmate were not placed in segregation.

(5) Where an inmate is placed in segregation for a continuous period of thirty days, the Superintendent shall report to the Minister the reasons for the continued segregation of the inmate.

D. FINDINGS OF THE COURTS BELOW ON THE CONDITIONS OF DETENTION

13. The Federal Court of Canada and the Federal Court of Appeal both found the

Appellant's conditions of detention to be constitutional. At first instance, Blanchard J.

ruled that as the Appellant had been placed in segregation at his own request and for his

own safety, it was not open to him to complain about his conditions of detention.

Furthermore, Blanchard J. concluded:

I have considered the specific conditions and duration of Mr. Almrei's solitary detention. In the circumstances, I find that he is being detained under reasonable conditions. [. . .] In consequence, his rights under sections 7 and 12 of the Charter are not violated.

Almrei v. Canada (Minister of Citizenship and Immigration), 2004 FC 420 at paras. 139-141,93, and 137-138, Appellant's Record Vol. 1, pp. 72,53, and 71-72

The Federal Court of Appeal upheld this reasoning and determination.

Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FCA 54 at paras. 1 1 1-13, Appellant's Record Vol. 1, pp. 132-1 33

Jaballah v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 420 (F.C.) at para. 56, Ontario's Authorities Tab 1

PART I1 - ISSUES ON APPEAL

14. The constitutional questions, as stated by this Honourable Court, are:

1. Do ss. 82(2) and 84(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, infringe s. 7 of the Canadian Charter of Rights and Freedoms?

2. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

3. Do ss. 82(2) and 84(2) of the hmigration and Refugee Protection Act, S.C. 2001, c. 27, infringe s. 12 of the Canadian Charter of Rights and Freedoms?

4. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

15. The Attorney General of Ontario intervened on the stated constitutional questions,

and was granted leave to intervene on the issue of whether the Appellant's conditions of

detention at the Toronto West Detention Center violated s. 12 of the Charter.

16. The Attorney General of Ontario takes no position as to the constitutionality of

the impugned IRPA provisions.

PART 111 - BRIEF OF ARGUMENT

A. CONSIDERATION OF THE CONDITIONS OF DETENTION SHOULD BE CONFINED TO THE FACTUAL RECORD ON APPEAL

17. Absent fresh evidence being permitted, an appeal is confined to a consideration of

the record on the appeal. In the case at bar, the evidentiary record as to the conditions of

detention is found in the testimony heard by Blanchard J. during the hearing at first

instance.

18. In his factum, the Appellant makes a number of references to certain events that

occurred after Blanchard J. released his decision. For example, the Appellant asserts that

he remained in segregation until 2006 when he was placed in the general population.

Aside from failing to fully explain the circumstances, this assertion by the Appellant

offers an unbalanced and potentially misleading perspective of what occurred, and why.

Accordingly, it is respectfully submitted that consideration as to whether the Appellant's

conditions of detention infringed s. 12 of the Charter must be confined to the evidentiary

record that was before Blanchard J. at first instance. To otherwise entertain submissions

based on assertions that are not supported by evidence in the record would be unfair and

prejudicial to the parties and intervenors, and would not serve the interest of j ~ s t i c e . ~

Factum of the Appellant at paras. 1, 13, 18, 85 and 86

19. The Attorney General of Ontario recognizes that a number of other proceedings

involving the Appellant were brought before the courts, both before and after Blanchard

J. released his decision. In some of these other cases, the conditions of detention were

considered. Although these cases were decided on evidentiary records that were different

and distinguishable from the record before this Court, it is noteworthy that the courts

hearing these other cases all declined to find that the Appellant's conditions of detention

gave rise to a Charter infringement.

Almrei v. Canada (A.G.), [2003] O.J. No. 5198 (S.C.J.) (per Gans J.) Appellant's Authorities Vol. I Tab 1, application for habeas corpus granted in part

Almrei v. Canada (A. G.), [2005] O.J. No. 5067 (S.C.J.) (per Jarvis J.) Appellant's Authorities Vol. I Tab 2, motion staying habeas corpus application granted

Almrei v. Canada, [2005] F.C.J. No. 1994 (F.C.) (per Layden-Stevenson J.) Appellant's Authorities Vol. I Tab 3, IRPA application for release from detention, denied

7 Notably, the Attorney General of Ontario did not participate in the proceedings below before the Federal Court or the Federal Court of Appeal, as notice of the proceedings was not provided to the Attorney General and no notice of constitutional question was delivered in respect of the Charter challenge being brought by the Appellant (either before the Federal Court or the Federal Court of Appeal) regarding his conditions of detention.

B. APPELLANT'S ARGUMENTS UNDER S. 12 OF THE CHARTER ARE DUPLICATIVE OF, AND BEST ASSESSED UNDER, S. 7 CHARTER ARGUMENTS

20. In argument before the Federal Court and the Federal Court of Appeal, the

Appellant asserted that the conditions of his detention directly violated s. 12 of the

Charter. However, before this Honourable Court, the Appellant appears to have shifted

his argument by submitting that his detention violated s. 12, not because of the

conditions, per se, but because the statutory scheme under the IRPA establishes a

"mandatory, indeterminate detention" with the "ever present threat of removal to torture

and other intolerable treatment", and an inadequate statutory review for release. With

respect, this merely replicates the Appellant's submissions made under s. 7 of the Charter

regarding ss. 82(2) and 84(2) of the IRPA. His argument neither directly attacks nor

depends upon the conditions of his detention at the Toronto West Detention Centre or

their effects upon him. Any constitutional frailties with the lack of timeliness or the

fairness of the detention review provisions of the IRPA are problems with the legislation

and best dealt with under his s. 7 Charter arguments. These arguments do not expressly

impugn the conditions of his detention. Consequently, it is submitted that this Honourable

Court need not address the conditions of the Appellant's detention and his arguments

regarding s. 12 of the Charter.

Factum of the Appellant at para. 90

21. In R. v. Smith, infra, Justice Lamer (as he was then) made it clear that s. 12 of the

Charter was concerned with the effect of a treatment or punishment on the individual, not

the fairness or constitutionality of the process that led to it:

As indicated above, s. 12 [of the Charter] is concerned with the effect of the punishment, and, as such, the process by which the punishment is imposed is not, in my respectful view, of any great relevance to a determination under s. 12. For example, s. 12 would not be infringed if a judge, after having refused to hear any submissions on sentencing, indicated that he would not take into consideration any relevant factors, but then went on to impose arbitrarily a preconceived but appropriate sentence. In my view, because this result would be appropriate, the sentence cannot be characterized as grossly disproportionate and violative of s. 12. (emphasis added)

A. v. Smith, [I9871 1 S.C.R. 1045 at para. 59, Appellant's Authorities Vol. I11 Tab 54

22. Subsequently, in R. v. Lyons, infra, Justice LaForest speaking for the majority of

the Court agreed with this approach in assessing whether the dangerous offender

provisions of the Criminal Code offended ss. 12 and 7 of the Charter. After finding the

provisions did not impose cruel and unusual punishment, the Court expressly followed

Justice Lamer's comments in Smith and postponed the consideration of alleged

procedural deficiencies in the legislative provisions to be scrutinized under s. 7 rather

than s. 12.

R. v. Lyons, [I9871 2 S.C.R. 309 at para. 58, Ontario's Authorities Tab 2

C. THE TEST UNDER S. 12 OF THE CHARTER

23. Alternatively, it is submitted that the Appellant's conditions of detention did not

violate s. 12 of the Charter. The onus on the Appellant to prove a violation of s. 12 is a

rigorous one. Section 12 will only be infi-inged where the conditions of detention are

found to have been so unfit as to be grossly disproportionate. It is not enough for the

conditions to have been merely disproportionate or excessive. The essential question is

whether the prescribed treatment was so excessive as to outrage our society's standards

of decency. In light of the circumstances of this case, it is respectfully submitted that the

Appellant's conditions of detention did not contravene societal decency standards.

R. v. Smith, [I9871 1 S.C.R. 1045 at paras. 53-54, Appellant's Authorities Vol. I11 Tab 54

R. v. Morrissey, [2000] 2 S.C.R. 90 at para. 26, Appellant's Authorities Vol. I11 Tab 50

R. v. Wiles, [2005] S.C.J. No. 53 at para. 4, Appellant's Authorities Vol. I11 Tab 57

24. The Attorney General of Ontario agrees with the Respondents that the Appellant's

characterization of his detention as "indeterminate" is inaccurate, both in terms of the

statutory scheme as well as on the specific facts of his case. Regardless, this Honourable

Court has found that "indeterminate" sentences or detentions per se are not a violation of

s. 12 of the Charter.

R. v. Lyons, supra, at paras. 46-57

Steele v. Mountain Institution, [I9901 2 S.C.R. 1385 at paras. 61-67, Appellant's Authorities Vol. I11 Tab 66

D. CONTEXT OF THE CONSTITUTIONAL CHALLENGE: JUDICIAL RECOGNITION OF THE NATURE OF CORRECTIONAL FACILITIES

25. It is generally recognized that the courts ought to be extremely careful not to

unnecessarily interfere with the administration of correctional or detention facilities, such

as the Toronto West Detention Centre. Unless there has been a manifest violation of a

constitutionally guaranteed right, the prevailing principle is that it is not generally open to

the courts to question or second-guess the judgment of an institutional head as to what

may, or may not, be necessary to maintain security and order within correctional and

detention facilities. The difficult environment of such institutions is reflected in passages

of lower court decisions like Crews v. Canada, infra where Justice Crotsky commented:

In such institutions it can, at times, take very little to create urgent and severe situations which, if not immediately and effectively responded to, can lead to serious consequences for not only one or more of its inmates, but as well its staff members. Such incidents can, at times, seriously affect the security of the institution's inmates, staff, and, as well, its physical structure. It would be an ill-informed court that was not aware of the necessity for the immediate response by prison authorities to breaches of prison order. It would be a rash court that would deny those responsible for the day-to-day administration, safety and security of a prison institution the means to react effectively and immediately to a situation adversely affecting one or more of them.

and in Maltby v. Saskatchewan, infra, where Justice Sirois stated:

Prison officials and administrators should be accorded wide ranging deference in the adoption and execution of policies and practices that in their judgments are needed to preserve internal order and discipline and to maintain institutional security. Such considerations are peculiarly within the province and professional expertise of corrections officials, and in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters. The unguided substitution of judicial judgment for that of the expert prison administrators on matters such as this would to my mind be inappropriate.

[ .- .I Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. The fact of confinement as well as the legitimate goals and policies of the penal institution limits incidentally perhaps but necessarily some constitutional rights. There must be a mutual accommodation between institutional needs and

objectives and the provisions of the Constitution that are of general application. This principle applies equally to remanded as well as sentenced inmates. A person in custody simply does not possess the full range of freedoms of an unincarcerated individual. The maintaining of institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both remanded and sentenced inmates. The problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions.

Crews v. Canada, [I 9941 S.J. No. 396 (Q.B.) at para. 38, Ontario's Authorities Tab 3

h l t b y v. Saskatchewan (A.G.), El9821 S.J. No. 871 (Q.B.) at paras. 20 and 41, appeal denied (1984), 10 D.L.R. (4th) 745 (Sask. C.A.) Ontario's Authorities Tab 4

Almrei v. Canada (A. G.), [2003] O.J. No. 5 198 (S.C.J.) at para. 1 8 (per Gans J.) Appellant's Authorities Tab 1

26. This Honourable Court has also recognized that the detention context is crucial

when considering the nature and extent of an inmate's Charter interests, holding that

these interests are necessarily informed by his or her institutional setting. For instance, in

Weatherall v. Canada (Attorney Generag, infra, Justice La Forest concluded on behalf of

the Court that frisk searches of male inmates by female guards did not violate the Charter

given the nature of the custodial context:

Imprisonment necessarily entails surveillance, searching and scrutiny. A prison cell is expected to be exposed and to require observation. The frisk search, the count and the wind are all practices necessary in a penitentiary for the security of the institution, the public and indeed the prisoners themselves. A substantially reduced level of privacy is present in this setting and a prisoner thus cannot hold a reasonable expectation of privacy with respect to these practices. This conclusion is unaffected by the fact that the practices at times may be conducted by female guards. There being no reasonable expectation of privacy, s. 8 of the Charter is not called into play, nor is s. 7 implicated.

Weatherall v. Canada (Attorney General), [I9931 2 S.C.R. 872 at 877 Ontario's Authorities Tab 5

Solosky v. R., [I9801 1 S.C.R. 821, Ontario's Authorities Tab 6

27. The weight of authority reveals that courts have indeed been very reluctant to

intervene in the administration of correctional and detention facilities when conditions of

detention are challenged under the Charter. Although the conditions may have caused

individuals hardship, they did not meet the stringent threshold required for a violation of

s. 7 or 12 of the Charter.

R. v. Olson (1987), 62 O.R. (2d) 321 (C.A.) at 333-336, affd. [I9891 1 S.C.R. 296, Respondents' Authorities Tab 29 - long-term administrative segregation of prisoner at risk fro111 other inmates not cruel and unusual

Collin v. Kaplan , [I9831 1 F.C. 496 (T.D.), Ontario's Authorities Tab 7 - double- celling not found to be cruel and unusual

Vaughn v. Ontario, [2003] O.J. No. 5304 (S.C.J.) at paras. 21-23, Ontario's Authorities Tab 8 - smoking ban in mental health facility not cruel and unusual or violation of s. 7

Lord v. Canada, [2001] F.C.J. No. 640 (T.D.) at paras. 54-58, Ontario's Authorities Tab 9 - restriction on visits not violation of Charter, including section 12

R. v. Jordan, [2002] O.J. No. 5250 (S.C.J.) at para. 15, appeal dismissed [2004] O.J. No. 3514 (C.A.), Ontario's Authorities Tab 10 - general conditions at Toronto East Detention Centre not cruel and unusual

Soenen v. Edmonton Remand Centre, [I9831 A.J. No. 709 (Q.B.) paras. 27 and 29-41, Ontario's Authorities Tab 11 - prison policies and conditions not cruel or unusual

Alcorn v. Canada (Commissioner of Corrections) (1999), 163 F.T.R. 1 (F.C.T.D.) at paras. 5 1-98, affd. [2002] F.C.J. No. 620 (F.C.A.) at para. 12, Ontario's Authorities Tab 12 - a new, costlier phone system not a violation of the Charter

Fieldhouse v. Canada (1994), 98 C.C.C. (3d) 207 (B.C.C.A.), Ontario's Authorities Tab 13 - random urinalysis not a violation of ss. 7 and 8 of the Charter

Everingham v. Ontario (1993), 100 D.L.R. (4th) 199 (Gen Div.), Ontario's Authorities Tab 14 - the opening of mail by correctional officials not a violation of ss. 2(b), 7 ,8 or 10(b) of the Charter

Olson v. Canada, [I9931 39 F.T.R. 77 (T.D.), Ontario's Authorities Tab 15 - a restriction on phone calls not a violation of ss. 2(b), 2(d) or 10 of the Charter

Pich6 v. Canada (1989), 47 C.C.C. (3d) 495 (F.C.A.), Ontario's Authorities Tab 16 - double bunking policy not a violation of s. 7 of the Charter

Pilon v. Commissioner of Corrections, [I9841 2 F.C. 932 (T.D.), Ontario's Authorities Tab 17 - transfer to maximum security institution for security reasons not a violation of s. 7 of the Charter

28. More specifically with respect to inmates in segregation, courts have also

dismissed applications brought under s. 12 of the Charter by inmates held in involuntary

segregation who wanted to be transferred into the general population. The courts were

reluctant to second-guess such administrative decisions by institutional officials.

McArthur v. Regina Regional Centre (1 WO), 56 C.C.C. (3d) 1 51 (Q.B.) at pp. 154- 1 55, Ontario's Authorities Tab 1 8

R. v. Olson (1987), 62 O.R. (2d) 321 (Ont. C.A.) at 336, affd. [I9891 1 S.C.R. 296, Respondents' Authorities Tab 29

29. Finally, in Re Jaballah, infra, and R. v. Sanchez, infra, it is noteworthy that

constitutional challenges to the conditions of detention at the Toronto West Detention

Centre (i.e., the same institution at which the Appellant was detained) were dismissed. In

the case of Re Jaballah, Justice MacKay held that the conditions of detention at the

Toronto West Detention Centre, though difficult for an immigration detainee held for a

lengthy period under a national security certificate, did not violate ss. 7 or 12 of the

Charter. In R. v. Sanchez, infra, an inmate awaiting trial complained that despite not

having been found guilty of any crime, she was enduring the same conditions as those

serving sentences except with fewer benefits (for e.g., she had no access to rehabilitative

programs). The Ontario Court of Appeal rejected her argument that this amounted to a

violation of her s. 7 and 12 Charter rights:

As matters stand, the appellant is not being "punished," but is simply suffering from what appear to be the inevitable inconveniences of the operation and administration of a large detention centre. Her situation is not comfortable and it is considerably aggravated by the length of her stay but there was no evidence or submission made to us that the delay in this case was caused by an infringement of the appellant's constitutional rights.

R. v. Sanchez, [I9961 O.J. No. 7 (C.A.) at para. 27, Ontario's Authorities Tab 19

Re Jaballah, [2006] F.C. 1 15 at para. 73, Respondents' Authorities Tab 14

R. v. Chan, [2005] A.J. No. 11 18 (Q.B.) at para. 205, Ontario's Authorities Tab 20

E. APPLICATION OF S. 12 TO THE APPELLANT'S CASE

30. It is submitted that the Appellant's conditions of detention do not outrage the

standards of decency, for the following reasons.

a. Federal authorities placed the Appellant, an alleged terrorist, at the

Toronto West Detention Centre based upon their security assessment.

b. As a maximum-security remand facility, the conditions at Toronto West

Detention Centre were necessarily rigorous and stringent in keeping with

the nature of its role and facilities.

c. The Appellant received equal treatment as any other inmate at the Toronto

West Detention Centre.

d. There is an appropriate provincial legislative framework (under which the

Appellant was detained) that provides for the regulation of the conditions

of detention for inmates in provincial detention centres.

e. From October 2001 until November 2002, the Appellant was in

segregation for his own protection, and thereafter was in segregation at his

own request. The Toronto West Detention Centre lawfblly housed him in

segregated detention rather than in a general population range for his

protection.

f. Contrary to the Appellant's submission8, segregation is not only for fixed

or generally short periods of time reserved for prison discipline.

Segregation can, as in this case, be for the safety of the inmate. A refusal

by detention officials to place him in segregation made at his own request

despite the risk he faced from other inmates on the range might well have

Found at para. 9 1 of the Appellant's factum.

lead to the Appellant claiming that his safety was being endangered.

Reasonable actions taken to safeguard the Appellant's security of the

person at his own request cannot, by definition, simultaneously outrage

standards of decency. The decision by detention officials to place him in

segregation as opposed to the general population for safety or security

reasons is the type of decision that should be afforded deference by this

Honourable Court. This deference is aptly illustrated by the case of

Cunningham v. Canada, infra, where an inmate challenged a legislative

change in the criteria for parole release as an infringement of his section 7

Charter rights. Justice McLachlin (as she then was) stated:

It follows that qualification of a prisoner's expectation of liberty does not necessarily bring the matter within the purview of s. 7 of the Charter. The qualification must be significant enough to warrant constitutional protection. To require that all changes to the manner in which a sentence is served be in accordance with the principles of fundamental justice would trivialize the protections under the Charter.

A change in the form in which a sentence is sewed, whether it be favourable or unfavourable to the prisoner, is not, in itself, contrary to any principle of fundamental justice. Indeed, our system of justice has always permitted correctional authorities to make appropriate changes in how a sentence is sewed, whether the changes relate to place, conditions, training facilities, or treatment. Many changes in the conditions under which sentences are served occur on an administrative basis in response to the prisoner's immediate needs or behaviour. Other changes are more general. (emphasis added)

Cunningham v. Canada, El9931 2 S.C.R. 143 at pages 15 1-1 52, Ontario's Authorities Tab 2 1

g. The evidence establishes that although the conditions for the Appellant

were difficult, he was not being mistreated and he was coping. There is no

evidence that he suffered any unique or significant physical or

psychological harm.

h. While the Appellant's detention in segregation had been of some duration

when Blanchard J. heard this case at first instance, it must be considered in

light of the foregoing factors and placed in the context o f the multiplicity

of proceedings launched by the Appellant. The period of time in custody

alone does not make the detention cruel and unusual treatment or

punishment.

1. Finally, there is a statutory mechanism which has provided a review of his

detention. The Attorney General of Ontario takes no position with respect

to the constitutionality of the detention review provisions. However, as

previously submitted, any potential or arguable constitutional infirmity of

those provisions does not make his detention cruel and unusual treatment.

Almrei v. Canada (Minister of Citizenship and Immigration), 2004 FC 420 at paras. 93 and 138-39, Appellant's Record Vol. I pp. 53 and 71-72

Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FCA 54 at paras. 11 0-1 13, Appellant's Record Vol. I, pp. 13 1-1 33

F. CONCLUSION

3 1. It is submitted that the Appellant's detention does not constitute cruel and unusual

treatment or punishment contrary to s. 12 of the Charter.

PART IV - COSTS SUBMISSIONS

32. The Attorney General of Ontario does not seek any costs and requests that no

costs be awarded against it. The intervention by the Attorney General of Ontario in the

matter did not contribute to any additional costs being incurred by the parties.

PART V - ORDER SOUGHT

33. It is respectfully requested that the Appellant's appeal with respect to section 12

of the Charter as pertains to his detention at the Toronto West Detention Centre be

dismissed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

May 23,2006

Attorney General of Ontario Constitutional Law Branch

\

Attorney General of Ontario Constitutional Law Branch

PART VI TABLE OF AUTHORITIES

Cases

Alcorn v. Canada (Commissioner of Corrections) (1 999), 163 F.T.R. 1 (F.C.T.D.), affd [2002] F.C.J. No. 620 (F.C.A.)

Almrei v. Canada (A. G.), [2003] O.J. No. 5 198 (S.C.J.)

Almrei v. Canada (A. G.), [2005] O.J. No. 5067 (S.C.J.)

Almrei v. Canada (M. C.I.), 2004 F.C. 420 (T.D.)

Almrei v. Canada (M. C.I.), 2005 F.C.A. 54

Almrei v. Canada (M. C.I.), [2005] F.C. J. No. 1994 (T.D.)

Collin v. Kaplan , [I9831 1 F.C. 496 (T.D.)

Crews v. Canada, [I9941 S.J. No. 396 (Q.B.)

Cunningham v. Canada, [I9931 2 S.C.R. 143

Everingham v. Ontario (1 993), 100 D.L.R. (4th) 199 (Gen Div.)

/ Fieldhouse v. Canada (1994), 98 C.C.C. ( 3 4 207 (B.C.C.A.)

Jaballah v. Canada (M. C.I.), [2004] F.C.J. No. 420 (F.C.)

Lord v. Canada, [2001] F.C.J. No. 640 (T.D.)

Maltby v. Saskatchewan (A.G.), El9821 S.J. No. 871 (Q.B.), appeal denied (1984), 10 D.L.R. (4th) 745 (Sask. C.A.)

Paragraph Reference in

Factum

2 7

McArthur v. Regina Regional Centre (1 WO), 56 C.C.C. (3d) 1 5 1 (Q.B.) L 3lson v. Canada, [I9931 39 F.T.R. 77 (T.D.)

%ht? v. Canada (1989), 47 C.C.C. (3d) 495 (F.C.A.) I 27

!e Jaballah, [2006] F.C. 115

Pilon v. Commissioner of Corrections, [I9841 2 F.C. 932 (T.D.)

:. v. Chan, [2005] A.J. No. 1118 (Q.B.)

27

1. v. Jordan, [2002] O.J. No. 5250 (S.C.J.), appeal dismissed [2004] 1.J. No. 3514 (C.A.)

i. v. Lyons, [I9871 2 S.C.R. 309 at para.58 1 22,24

P. v. Malmo-Levine, [2003] 3 S.C.R. 571

?. v. Morrissey, [2000] 2 S.C.R. 90

R. v. Olson (1987), 62 O.R. (2d) 321 (C.A.), affd. [I9891 1 S.C.R. 296

R. v. Sanchez, [I9961 O.J. No. 7 (C.A.)

R. v. Smith, [I9871 1 S.C.R. 1045

R. v. Wiles, [2005] S.C.J. No. 53

Soenen v. Edmonton Remand Centre, [I9831 A.J. No. 709 (Q.B.)

Solosky v. R., [I9801 1 S.C.R. 821

Steele v. Mountain Institution, [I9901 2 S.C.R. 1385

Vaughn v. Ontario, [2003] O.J. No. 5304 (S.C.J.)

Weatherall v. Canada (Attorney General), [I9931 2 S.C.R. 872

PART VII LEGISLATION

( Legislation

Ministry of Correctional Services Act, R.S.O. 1990, Ch. M.22, ss. 2,24

Ministry of Correctional Services Act, R.R.O. 1990, REGULATION 778, Amended to 0 . Reg. 295105, ss. 2,4,9, 13, 16, 19, 34

Paragraph Reference in Factum

Ministry of Correctional Services Act, R.S.O. 1990, c.M.22

Functions of Ministry

5. It is the function of the Ministry to - supervise the detention and release of inmates, Pa cr th tr: th SC

l i ~

I 01

rolees, probationers and young persons and to eate for them a social environment in which ey may achieve changes in attitude by providing lining, treatment and services designed to afford em opportunities for successful personal and cia1 adjustment in the community, and, without niting the generality of the foregoing, the 3jects of the Ministry are to,

(a) provide for the custody of persons awaiting trial or convicted of offences;

(b) establish, maintain and operate correctional institutions;

(c) provide for the open custody, secure custody and temporary detention of young persons awaiting trial, found guilty or convicted of offences;

(d) establish, maintain and operate places of open custody, secure custody and temporary detention;

(e) provide programs and facilities designed to assist in the rehabilitation of inmates and young persons;

(f) establish and operate a system of parole;

(g) provide probation services;

(h) provide supervision of non- custodial dispositions, where appropriate; and

(i) provide programs for the

'onctions du ministkre

5. Le ministkre a pour fonction de - uperviser la dktention et la liberation des ktenus, des personnes en libertk conditionnelle, es probationnaires et des adolescents et de crker lour eux un milieu social propice produire chez ux un changement d'attitude e n leur fournissant me formation, des traitements et des services .ont;us pour favoriser leur adaptation personnelle :t sociale dans la cornmunautk. Ainsi, le nlnistkre a notament pour objet :

a) d'assurer la garde des personnes en attente de procks ou condamnkes a une peine;

b) de mettre sur pied et de faire fonctionner des ktablissements correctionnels;

c) d'assurer la garde en milieu ouvert ou fermk et la dktention provisoire des adolescents qui sont en attente de pro&, qui ont kt6 dkclares coupables d'une infraction ou condamnks a une peine;

d) de mettre sur pied et de faire fonctionner des lieux de garde en milieu ouvert ou fermk et des lieux de dktention provisoire;

e) d'offrir des programmes et des installations de rkadaptation des dktenus et des adolescents;

f ) de mettre sur pied et de faire fonctionner un systkme de libkration conditionnelle;

g) d'offrir des services de probation;

h) d'assurer la surveillance de l'application des dkcisions qui ne portent pas sur la garde, le cas kchkant;

i) d'offrir des programmes de prevention du crime. L.R.O. 1990, chap. M.22, art. 5.

iIedical treatment

24. (1) Where an inmate requires nedical treatment that cannot be supplied at the :orrectional institution, the superintendent shall mange for the inmate to be conveyed to a lospital or other health facility. 2002, c. 18, khed. N, s. 28.

[ Hospitalization and mental examinations

Psychiatric treatment QJ Where an inmate requires

lospitalization in a psychiatric facility under the 'Mental Health Act, the superintendent shall mange for the inmate to be conveyed to a 3sychiatric facility. 2002, c. 18, Sched. N, s. 28.

I

Mental examination a The superintendent may direct that

an examination be made of an inmate by a psychiatrist or psychologist for the purpose of assessing the emotional and mental condition of the inmate. 2002, c. 18, Sched. N, s. 28.

Hospitalisation et examens mentaux rraitement mCdical

24. ( 1) Si un dktenu doit recevoir un .raitement mkdical qui ne peut etre fourni dans l'ktablissernent correctionnel, le chef d'etablissement prend les mesures nkcessaires pour le transfkrer a un hepita1 o u a un autre ktablissement de santk. 2002, chap. 18, annexe N, art. 28.

Traitement psychiatrique (TJ Si un dktenu doit etre hospitalisk

dans un ktablissement psychiatrique au sens de la Loi sur la santk mentale, le chef d'ktablissement prend les mesures nkcessaires pour le transfkrer a un tel ktablissement. 2002, chap. 18, annexe N, art. 28.

Examen mental & Le chef d'ktablissement peut

ordonner qu'un psychiatre ou u n psychologue examine un dktenu afin d'en Cvaluer l'ktat affectif et mental. 2002, chap. 18, annexe N, art. 28.

Ministry of Correctional Services Regulations, R.R.O. 1990, Reg. 778

PART I CORRECTIONAL INSTITUTIONS

DUTIES OF SUPERINTENDENT, HEALTH CARE PROFESSIONALS, EMPLOYEES

2. (1) The Superintendent of a correctional institution is responsible for the management of the institution and for the care, health, discipline, safety and custody of the inmates under the Superintendent's authority, and, without limiting the generality of the foregoing, the Superintendent shall,

(a) supervise the admission and release of each inmate from the institution;

(b) supervise the recording, guarding and disposition of inmate property;

(c) conduct reviews in discipline cases;

(d) supervise the admission and conduct of persons visiting the institution; and

(e) supervise the searches conducted on inmates and employees. R.R.O. 1990, Reg. 778, s. 2 (1).

QJ The Superintendent shall,

(a) administer the institution in accordance with the Act, the regulations and any instructions issued from time to time by the Minister to the Superintendent;

(b) issue to the employees of the institution such directions as may be necessary to fulfil the responsibilities of a Superintendent

(c) establish administrative procedures to be followed on the admission, discharge, escape, illness or death of an inmate and or the assignment of employees' and

PARTIE I ETABLISSEMENTS CORRECTIONNELS

FONCTIONS DES CHEFS D'ETABLISSEMENT, DES PROFESSIONNELS DE LA SANTE E T DES EMPLOYES

2. (1) Le chef d7Ctablissement d'un ,tablissement correctionnel est charge de 'administration de l'etablissement, et des soins et des ervices de santC fournis aux dktenus places sous son utoritk, de leur discipline, de leur sCcuritC et de leur prde. Le chef d'&ablissement, no tament :

a) supervise l'admission de chaque dktenu a 1'6tablissement ainsi que sa liberation de l'ktablissement;

b) supervise le relev6 et la garde des biens du dktenu ainsi que les mesures prises a leur Cgard;

c) prockde A un examen dam les cas de discipline;

d) supervise l'admission et la conduite des visiteurs;

e) supervise les fouilles auxquelles les dktenus et les employes sont soumis. Kegl. de I'Ont. 510/91, art. 1.

121: Le chef d'etablissement

a) administre l'etablissement conformkment a la Loi, aux rkglements et aux instructions que le ministre lui donne A l'occasion;

b) donne aux employes de 1'6tablissement les directives qui peuvenf etre nkcessaires pour que le chef d'etablissement soit en mesure de s7acquitter de ses responsabilitks;

c) Clabore des rkgles administratives qui doivent &re suivies au moment de l'admission, de la liberation, de l'evasion, de la maladie ou du decks d'un dktenu et au moment de l'affectation de

(b) a writ of habeas corpus or an order in the nature of mandamus;

(c) parole; or

(d) a transfer under the Transfer of Qffenders Act (Canada). R.R.O. 1990, Reg. 778, s. 2 (3).

I

4. ( 1 ) There shall be one or more health :are professionals in each institution to be esponsible for the provision of health care ;ervices within the institution and to control and lirect the medical and surgical treatment of all mates. R.R.O. 1990, Reg. 778, s. 4 (1).

inmates' duties; and

(d) ensure that inmates are informed of their duties and privileges while in the care and custody of the Superintendent. R.R.O. 1990, Reg. 778, s. 2 (2).

The Superintendent shall forward mediately to the proper authority an lpplication of an inmate for,

(a) appeal;

The health care professional shall :nsure that every inmate receives a medical sxamination as soon as possible after admission :o the institution. R.R.O. 1990, Reg. 778, s. 4 (2)-

& The health care professional shall imediatdy report to the Superintendent whenever the health care professional determines that an inmate is seriously ill. R.R.O. 1990,Reg.778,s.4(3).

(3 When an inmate is injured, a health care professional shall,

(a) examine the inmate's injuries;

(b) ensure such treatment as seems advisable; and

(c) make a written report to the Superintendent concerning the nature of the iniurv and the

tgches aux employks et aux dktenus;

d) veille a ce que les dktenus soient informks de leurs obligations et privileges lorsqu'ils sont confiks a ses soins et sa garde. Rkgl. de l'Ont. 510191, art. 1.

(,5) Le chef d'ktablissement communique nmkdiatement aux autoritks competentes la emande que prksente un detenu pour obtenir, selon : cas :

a) un appel;

b) un bref d7habeas corpus ou une ordonnance dans le genre d'un mundarnus;

c) sa libkration conditionnelle;

d) son transferernent en vertu de la Loi sur le transferernent des dt2inquants (Canada). Regl. de 170nt. 5lOI91, art. 1.

4. ( I ) I1 y a, dans chaque Ctablissement, un ou hsieurs professionnels de la santk chargks d'y ournir des services de santk, et de surveiller et i'ordonner les traitements mkdicaux et chirurgicaux le tous les dktenus. Regl. de l'Ont. 510191, art. 1.

Le professionnel de la santk veille a ce p e chaque dktenu subisse un examen medical le plus 6t possible apres son admission a l'ktablissement. Lkgl. de 170nt. 5lOI91, art. 1.

(,5) Le professionnel de la sante signale ~mkdiatement au chef d'ktablissement tout cas d'un iktenu qui, a son avis, est gravement malade. Regl. Se l'Ont. 510191, art. 1.

Q$J Si un dktenu subit des blessures, le professionnel de la santk :

a) examine les blessures;

b) prescrit le traiternent qu7il estirne opportun;

c) fournit au chef d'ktablissement un rapport kcrit sur la nature des blessures et le traitement fourni. Regl. de 170nt. 510191, art. 1.

1_5J Lorsqu'un dktenu prktend qu'il est incapable de travailler pour cause de maladie ou 37: --.- l : , l :&A 1- ---- 1 A - 1 - -,.-*A 1 9 --.-- :+.-

treatment provided. R.R.O. 1990, Reg. 778, s. 4 (4).

@ When an inmate claims to be unable to work by reason of illness or disability, a health care professional shall examine the inmate and if, in his or her opinion, the inmate is unfit to work or the work should be changed, the health care professional shall immediately report the fact in writing to the Superintendent whereupon the inmate shall be relieved of work duties or have his or her work changed or be admitted to hospital or elsewhere for medical treatment as directed. R.R.O. 1990, Reg. 778, s. 4 (5).

9. When a person is admitted into custody at an - institution, the person becomes an inmate of the institution and the Superintendent shall ensure that each inmate is searched, bathed and clothed in the proper manner. R.R.O. 1990, Reg. 778, s. 9.

j'invaliditk, le professionnel de la santk l'examine. 3'il est d'avis que le dktenu n'est pas en ktat de xavailler ou que son travail devrait &re changk, le professionnel de la santk communique sans dklai ce fait par 6crit au chef d'ktablissement. A partir de ce moment, le dktenu est dispensk du travail, son travail est changk ou il est admis a 17h6pital ou de 170nt. ailleurs afin d'y recevoir le traitement mkdical prescrit. Rkgl. 5 10191, art. 1.

9. Lorsqu'une personne est admise, a des fins de - garde, A un etablissement, elle devient un dktenu de 176tablissement et le chef d'ktablissement veille a ce qu'elle soit fouillke, baignke et habillke de la faqon approprike. Rkgl. de 170nt. 5 1019 1, art. 1.

13. No person, including a visitor - and any person accompanying a visitor, shall be present on the premises of an institution without the approval of the Superintendent and the Superintendent may impose such conditions and limitations upon the person while on the premises of the institution as the Superintendent considers necessary to ensure the safety of employees and inmates and the security of the institution. R.R.O. 1990, Reg. 778, s. 13.

16. An inmate shall be permitted to - send one letter upon admission to an institution and at least two letters each week thereafter and, where the inmate has not been awarded a weekly incentive allowance, the inmate shall be given sufficient stationery and postage in order to send the letters. R.R.O. 1990, Reg. 778, s. 16.

19. ( 1 ) Subject to subsection (3), an inmate or a young person may purchase items from the institutional canteen using money held in trust for him or her by the Superintendent. 0 . Reg. 364197, s. 2.

Subject to subsection (3)' an inmate or a young person may also purchase items from the institutional canteen using the credits accumulated before October 1, 1997 and remaining in his or her canteen allowance account. 0 . Reg. 364197, s. 2.

L3'J No inmate or young person shall purchase more than $40 worth of items from the institutional canteen in one week without the Superintendent's permission. 0 . Reg. 364197,

13. Persome, y compris un visiteur et - piconque accompagne un visiteur, ne doit se trouver ,ur les lieux d'un Ctablissement sans l'approbation du :hef d'ktablissement. Celui-ci peut imposer a la msonne, pendant qu'elle se trouve sur les lieux de 'Ctablissement, les conditions et les restrictions qu'il :stime necessaires pour assurer la sCcuritC des :mployks et des dktenus, et la sttrete de 'Ctablissement. R6gl. de l'Ont. 5lOl9l, art. 1.

PRIVILEGES DE CORRESPONDANCE

16. Le dktenu a le droit d'envoyer une - ettre dks son admission a l'ktablissement et au moins leux lettres par semaine par la suite. S'il n'a pas - e p de prime hebdomadaire d'encouragement, il q o i t suffisamment de papier et de timbres pour :nvoyer ses lettres. Rkgl. de 170nt. 5 10191, art. 1.

PRIVILEGES DE CANTINE

19. ( 1 ) Sous rkserve du paragraphe (3), le Menu ou l'adolescent peut acheter des articles a la zantine de I7Ctablissement avec l'argent dktenu en fiducie en son nom par le chef d'etablissement. R6gl. de l'Ont. 374197, art. 2.

121 Sous rCserve du paragraphe (3), le dCtenu ou l'adolescent peut Cgalement acheter des articles a la cantine de l'ktablissement en utilisant le solde des crkdits qu'il a accumul6s avant le 1"' octobre 1997 dans son compte d'allocation de cantine. R6gl. de l'Ont. 374197, art. 2.

a Aucun detenu ni adolescent ne doit acheter pour plus de 40 $ d'articles par semaine a la cantine de l'etablissement sans la permission du chef d'ktablissement. R6gl. de l'Ont. 364197, art. 2.

34. ( 1 1 The Superintendent may tlace an inmate in segregation if,

(a) in the opinion of the Superintendent, the inmate is in need of protection;

(b) in the opinion of the Superintendent, the inmate must be segregated to protect the security of I the institution or the safety of other I

34. _11 Le chef d'ktablis sement peut isoler un dktenu dans les cas suivants :

a) le chef d'ktablissement est d'avis que le dktenu a besoin d e protection;

b) le chef d'ktablissement est d'avis que le dktenu doit etre isolk pour assurer la siiretk de l'ktablissernent ou la skcuritk des autres dktenus;

I

inmates;

(c) the inmate is alleged to have committed a misconduct of a serious nature; or

(d) the inmate requests to be placed in segregation. R.R.O. 1990, Reg. 778, s. 34 (1).

a When an inmate is placed in egregation under clause (1) (c), the iuperintendent shall conduct a preliminary eview of the inmate's case within twenty-four hours after the inmate has been placed in egregation and where the Superintendent is of he opinion that the continued segregation of the m a t e is not warranted, the Superintendent ;hall release the inmate from segregation. i.R.0. 1990, Reg. 778, s. 34 (2).

QJ The Superintendent shall review he circumstances of each inmate who is placed n segregation at least once in every five-day 3eriod to determine whether the continued segregation of the inmate is warranted. R.R.O. 1990, Reg. 778, s. 34 (3).

(41 An inmate who is placed in segregation under this section retains, as far as practicable, the same benefits and privileges as if the inmate were not placed in segregation. R.R.O. 1990, Reg. 778, s. 34 (4).

Where an inmate is placed in segregation for a continuous period of thirty days, the Superintendent shall report to the Minister the reasons for the continued segregation of the inmate. R.R.O. 1990, Reg. 778, s. 34 (5).

c) il est allkguC que le detenu a commis un acte grave d e mauvaise conduite;

d) le dktenu demande a Ctre isolk. Rkgl. de I'Ont. 5lOI9l. art. 1.

a Lorsque le dktenu est isolk dam le :adre de l'alinka (1) c), le chef d'ktablissement fait m examen prkliminaire de son cas dans les vingt- patre heures qui suivent son isolernent. Si le chef l'ktablissement est d'avis qu'il n'est plus necessaire p e le dktenu continue d'Ctre isole, il le libkre de i'isolement. Rkgl. de 170nt. 510191, art. 1.

QJ Le chef d'ktablissement examine la situation de chaque dktenu isole, au moins tous les cinq jours en vue de dkterminer s'il est necessaire que le dktenu continue d'etre isolk. Regl. de 1'Ont. 510191, art. 1.

@ Le detenu isole aux termes du present article conserve, dans la mesure du possible, les memes avantages et privilkges dont il bknkficierait s'il n'ktait pas isole. Rkgl. de I'Ont. 5 1 0191, art. 1.

a Si le dktenu est is016 pendant une pkriode continue de trente jours, le chef d'ktablissement communique au ministre les raisons qui motivent cette pkriode continue d'isolement. Regl. de I'Ont. 5lOI91, art. 1.

Court File No. 30929

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL)

BETWEEN:

HASSAN ALMREI Appellant

-and-

THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY

PREPAREDNESS Respondents

-and-

ATTORNEY GENERAL OF ONTARIO, UNIVERSITY OF TORONTO FACULTY OF LAW - INTERNATIONAL HUMAN

RIGHTS CLINIC, HUMAN RIGHTS WATCH, CRIMINAL LAWYERS' ASSOCIATION (ONTARIO), CANADIAN COUNCIL OF AMERICAN-ISLAMIC RELATIONS, CANADIAN MUSLIM

CIVIL LIBERTIES ASSOCIATION, CANADIAN BAR ASSOCIATION, CANADIAN CIVIL LIBERTIES ASSOCIATION, CANADIAN COUNCIL FOR REFUGEES, AFRICAN CANADIAN

LEGAL CLINIC, INTERNATIONAL CIVIL LIBERTIES MONITORtNG GROUP, NATIONAL ANTI-RACISM COUNCIL

OF CANADA, AMNESTY INTERNATIONAL CANADA, FEDERATION OF LAW SOCIETIES OF CANADA and BRITISH

COLUMBIA CIVIL LIBERTIES ASSOCIATION Interveners

FACTUM OF THE INTERVENER ATTORNEY GENERAL OF ONTARIO

Attorney General of Ontario Constitutional Law Branch

720 Bay Street, 4th Floor Toronto, ON M5G 2K1

Shaun Nakatsuru Michael T. Doi

tel: (416) 326-3360 fax: (416) 326-401 5

Counsel for the Intervener, Attorney General of Ontario