Downey and Gray v. Attorney General (Nova Scotia) may represent a new chapter in prisoners’ rights in Nova Scotia
The East Coast Prison Justice Society (“ECPJS”) and Women’s Wellness Within (“WWW”) and the Elizabeth Fry Society of Mainland NS welcome the recent decision from the Nova Scotia Supreme Court regarding the habeas corpus application of Ra’Heem Downey and Andre Gray.
Mr. Downey and Mr. Gray each served over 200 days in solitary confinement at the Central Nova Scotia Correctional Facility (“CNSCF”). Both men represented themselves and were successful. This decision of the Court is significant.
Justice Coady ordered that if the facility has not yet “found a solution” to finding an appropriate, liberty-respecting, placement within 14 days after the rendering of the decision, “Mr. Downey and Mr. Gray are to be brought before this Court for a Criminal Code review of their detention.” This proclamation has two effects: 1) it holds the Court out as an oversight mechanism to ensure implementation of habeas corpus orders; 2) it acknowledges the relationship between the way the state treats an accused, the continued prosecution and conviction of the accused, as well as the accused’s sentence.
Additionally, Justice Coady acknowledged that, “prior to Justice Van den Eynden’s decision in Pratt v. Nova Scotia (Attorney General), 2020 NSCA 39, … there was a real danger that the rights demanded by habeas corpus could be watered down.” The acknowledgement protects against that danger, and, using Justice Coady’s words, ensures habeas corpus applications get “the respect and attention they deserve,” as a constitutional writ protected under section 10(c) of the Charter.
Further, in deciding that the ongoing detention of Mr. Downey and Mr. Gray in segregation was unreasonable, Justice Coady took seriously the principle that the remedy it provides is issued“as of right,” meaning that it is non-discretionary. Despite the facility’s claims that their hands were tied and that there was nothing they could do, he was clear that “the institution must find a solution.”
While heartened by Justice Coady’s unequivocal stance and affirmation of prisoners’ rights, we remain disturbed at the repeated violations of rights at CNSCF, where frequently, full ranges of prisoners are on lockdown. This is an issue of the prison administrators, but must also be borne by the Courts.
How many revelations of injustice within carceral facilities must there be - whether in the form of successful habeas corpus applications, Auditor General reports, or reports of the Office of the Correctional Investigator, before we do more than passively recognize these conditions are systemic? Now is the time to reinvest public funds in community-based initiatives preventative of criminalization. This would include, as a start, funding legal aid for prison law, increased funding for housing such as half-way houses and bail beds, as well as willingness to engage in more non custodial sentencing.