- March 28, 2020
- Clayton Rice, Q.C.
That is how Wayne Wilcox began the description of his solitary confinement in the Edmonton Remand Centre, the largest prison in Canada. “I am housed alone,” he said in a court filing. One hour a day free time from a seven by eight foot cell. No gym. No yard. A window with a grate on it. And a radio. Here’s the story.
On January 18, 2019, Wilcox filed an application for a writ of habeas corpus in the Court of Queen’s Bench of Alberta. He had been in pretrial detention for thirteen months. Ten days later he filed an affidavit. “Being in these conditions for this period of time has caused my mental health to deteriorate,” he said in the affidavit. “I feel isolated, anxious, and depressed. I am becoming paranoid.” When he was admitted to the remand centre on December 14, 2017, he was immediately assigned to administrative segregation, a euphemism for solitary confinement. He was told it was for his own safety. His attempts to obtain a transfer to a “regular unit” went nowhere. He said he was denied the right to be present for administrative reviews of his status. He claimed procedural unfairness.
2. The Chambers Decision
On March 22, 2019, Justice Denny Thomas struck the application in its entirety without a hearing in a ruling indexed as Wilcox v Alberta, 2019 ABQB 201. Justice Thomas concluded, at para 80, that it was “an abusive, vexatious proceeding” and topped it off with an award of costs against Wilcox. Justice Thomas held that the application was defective for four reasons. First, it did not identify a deprivation of liberty that was subject to review by habeas corpus. Second, it sought “impossible relief” as the only remedy available by way of habeas corpus is release to a pre-illegal detention resulting in an impermissible collateral attack on the decision to deny bail. Third, the application did not offer an adequate basis for reply as it included an open ended remedy request phrased as “further and other grounds”. Fourth, the pleading inappropriately piggy-backed judicial review and an application under the Charter of Rights.
Wilcox’s application was processed by the court pursuant to Civil Practice Note No 7 issued under the Alberta Rules of Court, Alta Reg 124/2010. This is a document based review to determine whether the pleadings raise a vexatious application and should be struck under Rule 3.68. In a preliminary ruling indexed as Wilcox v Alberta, 2019 ABQB 60 Justice John Henderson noted the four “apparent defects” subsequently relied upon by Justice Thomas. Justice Henderson had also noted that an affidavit was not filed concurrently with the application but that was cured by the filing on January 28, 2019. The habeas corpus application was therefore never heard on the merits. Wilcox appealed.
On March 12, 2020, the Alberta Court of Appeal reversed on all four grounds in an opinion reported as Wilcox v Alberta, 2020 ABCA 104. Writing for a unanimous panel, Justice Sheila Greckol held, at para 41, that although Wilcox could not challenge his initial placement in the remand centre by habeas corpus, “that [did] not preclude him from challenging the decision, however immediate, to place him in solitary confinement within ERC.” Being placed in solitary confinement is a deprivation of residual liberty interests. Justice Greckol concluded, at paras 46-9, that it is immaterial whether a prisoner was initially placed in general population. “It would be perverse indeed,” she said, “if an inmate could use habeas corpus to challenge a confinement which became illegal only with the passage of time but not one which was illegal from the outset.”
Wilcox was vindicated by Justice Greckol on the other grounds, at paras 53-8 and 63-9. Bail is not “impossible relief” and, in any event, it is well established in the case law that habeas corpus is available “to free inmates from restrictive forms of custody within an institution, without releasing the inmate”. The use of the basket clause “[s]uch further and other relief” was not improper drafting “so that arguments may be augmented once the applicant obtains the record.” And there was “no room for confusion” in the pleading titled “Originating Application for a writ of Habeas Corpus Ad Subjiciendum“. A fair reading revealed that the essence of the application was a claim for habeas corpus based on solitary confinement without “any or adequate reason” and “without fair process for review.”
4. Solitary Confinement
What is particularly disturbing about the Wilcox saga is the indifference shown by Justice Thomas to the severe and irreversible consequences of prolonged solitary confinement. There was a prima facie case of isolation. Wilcox said in his affidavit that he had “minimal face-to-face contact or interaction with other people” and his cell was “video monitored all of the time.” Justice Greckol recognized in the appellate ruling, at para 48, that solitary confinement “has a lasting psychological impact on prisoners”.
In Canadian Civil Liberties Association v Canada, 2019 ONCA 243 Justice Mary Lou Benotto held, at para 5, that “prolonged administrative segregation causes foreseeable and expected harm which may be permanent and which cannot be detected through monitoring until it has already occurred.” Solitary confinement for longer than fifteen days is cruel and unusual treatment in violation of s 12 of the Charter. And in British Columbia Civil Liberties Association v Canada, 2019 BCCA 228 Justice Gregory Fitch held, at para 167, that its “prolonged and indefinite use” was grossly disproportionate in violation of s 7 of the Charter. But the analysis does not end there. Solitary confinement is also contrary to international law.
In the Factum of the Appellant, at para 16, Nate Whitling, Q.C., counsel for Wilcox on appeal, argued that solitary confinement “for 22 hours or more a day without meaningful human contact” violated the Nelson Mandela Rules. Justice Greckol agreed, at para 21. (See: The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), Rule 44. General Assembly Resolution 70/175, annex, 17 December 2015)
5. Attack on Counsel
In the chambers ruling, Justice Thomas issued a threat to Wilcox’s lawyer, Amanda Hart-Dowhun. The threat was put this way, at paras 77-8: “The Respondent’s concern about Ms Hart-Dowhun’s ignoring court instructions given in Prystay v Alberta is very relevant. […] I have personally considered whether to investigate if Ms Hart-Dowhun should be personally liable for costs in relation to the Wilcox Originating Application. I agree with the Respondent’s concern that Ms Hart-Dowhun is not responding to this Court’s instructions.”
The threat contained two things. First, according to Justice Thomas, it emanated from “[t]he Respondent’s concern” presumably raised by the government’s lawyers, Hillary Flaherty and S.P. McDonough. Second, Justice Thomas “personally considered” whether to conduct some kind of vague investigation. There is, of course, nothing singular about a judge or a government lawyer attacking a defence lawyer. It’s all rather trite. The late Alberta premier, Ralph Klein, would have called it a drive-by smear. Although no order was ultimately made, it is nonetheless deeply concerning when a Queen’s Bench judge acts like a bully. After all, it is Justice Thomas who is the public servant here.
Justice Greckol responded to the concern with appropriate judicial restraint where she stated that the panel felt “compelled to comment briefly” on the issue of personal costs. Much to the point, Justice Greckol stated, at para 76, that “[t]he threat of personal costs against counsel was unwarranted.” In making the threat of personal costs, Justice Thomas relied on his own ruling in 1985 Sawridge Trust v Alberta, 2017 ABQB 530 that “there is no right to engage in abusive litigation”. But he was subsequently overruled by the Alberta Court of Appeal in Stoney v 1985 Sawridge Trust, 2019 ABCA 243, at paras 37, 41-44 and 97.
The Alberta Prison Justice Society was granted intervenor status on the appeal. It argued that concern about an award of personal costs “could have a chilling effect on counsel taking on prisoners’ rights cases.” Again, Justice Greckol agreed, at para 76, relying on the opinion of the Supreme Court of Canada in Groia v Law Society of Upper Canada, 2018 SCC 27 where Justice Michael Moldaver said, at para 73, that lawyers must act fearlessly and raise every argument to advance a client’s cause.
On April 17, 2019, the decision to place Wilcox in solitary confinement was rescinded when he was moved to general population. The government’s primary argument, then, was that the appeal was moot. On December 11, 2019, while the appellate ruling was on reserve, Wilcox was sentenced to “time served” and released from custody. Despite its mootness, the panel concluded that the appeal should be decided. Justice Greckol held, at para 27, that “[t]he gathering evidence and judicial consideration of placement in solitary confinement confirm that the issues raised […] are of sufficient importance that they ought to be decided.” (See: Mission Institution v Khela, 2014 SCC 24 per LeBel J, at para 14)
And what of Ms Hart-Dowhun? Well, she conducted herself in the highest traditions of the bar. Although the fight for prisoners’ rights can be thankless, the walk to get there is never one you take alone.