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Tuesday, June 09, 2020 @ 9:19 AM  

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Appeal by Pratt from summary dismissal of his habeas corpus application for his release from solitary confinement on the basis that it was unlawful. The judge convened a teleconference and rendered an oral decision declining his jurisdiction to hear the application and concluding that the application was moot. Pratt was and remained in close confinement at the time of the teleconference. After rendering his oral decision, the judge requested additional information and submissions from the respondents’ counsel since he intended to release a written decision. The appellant was not copied at any time on the communications between the judge’s office and counsel and was not invited to respond to the additional materials requested by the judge. In his written decision, the judge dealt with substantive aspects of the application and materially expanded his reasons for concluding the appellant’s application was moot by relying on the information not disclosed to the appellant. The additional documentation left material unanswered questions respecting the reasons for the appellant’s continued detention in close confinement and raised questions about whether he was afforded due process throughout the disciplinary process undertaken by the respondent correctional facility. The judge determined that if the deprivation of liberty arose in a provincially operated prison, there was a presumption of fairness in favour of the provincial correctional officials.

HELD: Appeal allowed. The appellant was not provided procedural fairness. There was nothing procedurally fair in the events that unfolded after the teleconference leading up to and including the written decision. The appellant raised legitimate procedural fairness concerns sufficient to question the lawfulness of his detention. There was a clear deprivation of liberty. The appellant’s application was neither moot on the day he filed it nor when the judge declined jurisdiction to hear it. His complaints of procedural fairness were raised to meet his threshold burden of establishing a legitimate doubt as to the reasonableness of his continued detention. At the time of the teleconference, the appellant was not provided with any material pertaining to his detention in close confinement beyond his known release date. The oral submissions from counsel left unexplained gaps as to why the appellant was still being detained in close confinement. There remained a live controversy. Legitimate fairness issues were raised that warranted a hearing. The judge went on to establish new legal principles for the adjudication of habeas applications in the context of provincially operated prisons, a matter he was not asked, nor required, to adjudicate. The judge provided no indication to the parties that he intended to do so. It was improper for the judge to decline jurisdiction to hear the application. The judge proceeded to gather additional information, which was procedurally unfair, and then dealt with substantive issues on their merits, notwithstanding he declined to do so in his oral decision.

Pratt v. Nova Scotia (Attorney General), [2020] N.S.J. No. 174, Nova Scotia Court of Appeal, M.J. Wood C.J.N.S., J.W.S. Saunders and E. Van den Eynden JJ.A., May 5, 2020. Digest No. TLD-June82020003