Almrei v. Canada (Attorney General), (2003-12-19) ONSC M-120-03

Source: http://www.canlii.org/on/cas/onsc/2003/2003onsc12049.html

DATE: 20031219

DOCKET: M 120-03

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N: )

)

)

HASSAN ALMREI ) Barbara Jackman

) For the Applicant

)

)

Applicant ) Angela Jeffrey

) For the Respondents

- and - )

)

)

ATTORNEY GENRAL OF CANADA,)

ATTORNEY GENERAL OF )

ONTARIO, and SUPERINTENDENT )

OF THE TORONTO WEST )

DETENTION CENTRE )

)

)

Respondents )

) Heard: October 20, 21, 22,

November 5, 6 and 7, 2003

GANS J.:

Introduction

[1] Hassan Almrei has been in the Toronto West Detention Centre ("Toronto West"), under a security certificate, since October 2001, in the wake of the terror and horror of 9/11. I am told that the Minister of Immigration and the Solicitor General of Canada caused the certificate to be issued for reasons that are not before this court. They seek to have Mr. Almrei deported or "removed" to Syria, which action he is resisting, again for reasons that are not relevant to the proceedings now before me but upon which I can only speculate in light of the information now being described in the popular press as a result of the Arar affair. The multiple hearings in respect of his removal and/or release are not proceeding with alacrity before the Federal Court Trial Division. It appears likely that they will not be completed for many months to come, notwithstanding the recent flurry of activity.

[2] Toronto West (sometimes referred to as the "Institution") is a provincial facility, managed by the Ministry of Community Safety and Correctional Services, in its present incarnation, pursuant to the Ministry of Correctional Services Act, R.S.O. 1990, Chapter M.22 (the "Act") and the regulations to the Act (the "Regulations"). Generally, the Institution is designed to house prisoners who are awaiting trial in the GTA, serving a short sentence or awaiting transfer to a penitentiary or reformatory after trial and sentencing. The inmate population is, in theory, transitory, as the facility is really not equipped to house individuals for months, let alone years, at a stretch, as the recent cases suggest.[1]

[3] Mr. Almrei has been confined for most of his time in Toronto West in the segregation unit (the "Unit"), or what has been referred to as administrative segregation, at the direction, initially, of the Solicitor General of Canada. He was placed, albeit briefly, in the "general range" of Toronto West a little over one year ago, as a result of an earlier application for habeas corpus. I am told he did not proceed with that application because the Institution officials acceded to his original request to be moved out of the Unit before the return date for the hearing. I am told his release to the general range was not successful as he was beaten there and had to be returned to the Unit for his own safety. The Institution officials did not consider, at that time, placing him in an alternative unit either on an interim or longer term basis, nor did he ask to be so placed.

Current Application

[4] Mr. Almrei deposed and testified to the fact that Toronto West is a cold facility, made all the colder because the floor of the facility is cement and air is constantly being pumped into each of the cells in the Unit. He brings the current application for an order that he be provided with the Institution's standard-issue footwear to be worn in his cell in the Unit, additional clothing, in particular a coat or sweater, to insure that he remains warm during the coming winter months, and a thermometer to permit him to monitor the temperature in his cell. He argues that the inadequate climatic conditions in which he is currently incarcerated constitute an infringement of his Charter rights either because the detention is unlawful per se, or creates a violation of his right to liberty or security of person as defined in section 7 and/or otherwise amounts to cruel and unusual treatment, pursuant to section 12.

[5] Although not relevant to my deliberations, at the date of the return of the application, namely October 20th, Mr. Almrei had been in day 23 of a well-publicized hunger strike. The hunger strike continued in earnest during a portion of the proceedings, although I am now advised that Mr. Almrei is eating at least while the issues in this matter remain outstanding. I am told as well that he has been furnished with "flip-flops," or thin-soled shower shoes, and extra long-sleeved jerseys, items that I will further describe later in these reasons.

[6] I digress to comment upon the manner in which the application proceeded before me. It was, to be generous, an amalgam of a standard application, supported in part by affidavit, and a hearing under the Charter, which called for the introduction, by both sides, of viva voce evidence. Indeed, Mr. Almrei not only filed his own and other affidavits in support of the application, but also testified on certain matters that arose subsequent to the filing of his original affidavit and called evidence of certain of the Correctional Officers who work in the Unit (the "Guards").

[7] Counsel for the Institution, while not objecting to the manner in which the Almrei evidence was introduced, for her part called several witnesses, including Frank Geswaldo, the security chief for the Unit, and Paul Greer, the Deputy Superintendent-Administration of Toronto West. I think it is appropriate at this stage to note, if not underscore, how impressed I was with the witnesses who work at the Institution, both those from management and the Guards. In particular, I was most impressed with the assistance ultimately received from Mr. Greer, who was fair and candid in the manner in which he gave his evidence notwithstanding the fact that he was undoubtedly thrust in a most ticklish of situations, made all the more difficult by the notoriety surrounding Mr. Almrei and this application, all of which seem to have peaked the interest of the fourth estate.

Background Facts

[8] Toronto West presently houses between 650 and 700 inmates, in excess of 85% of whom are placed in the general population or range. The balance of the inmate population, depending on the "demographics" at any moment in time, is spread out through four other specialized units: segregation, protective custody, special needs, and a new unit labeled the immigration unit.

[9] Protective custody holds those prisoners who may not be able to survive in the general population because of the crimes with which they are charged. Special needs, which itself is divided into further subsets, houses either individuals who are low functioning - developmentally challenged - or have mental disorders. The immigration unit, which was recently opened in the space previously occupied by female inmates, warehouses inmates awaiting deportation, hearings or orders, or who are the subject of extradition hearings or orders brought at the request of foreign governments. I was advised that most inmates in the immigration unit have been convicted of, or are accused of, crimes similar to those alleged against others in the general range. The segregation unit, in which Mr. Almrei is located, is generally reserved for those who pose behavioural problems, because they are violent, have been involved in altercations with staff or other inmates while in custody, or were found in possession of contraband.

[10] The conditions of incarceration for those located in the general range have formed the subject matter of judicial comment in recent years. I can almost take judicial notice of the fact that the best efforts of management notwithstanding, the conditions have changed little from those described before Justice Kenkel in Krachov, cited above.

[11] Inmates in segregation, as a matter of "policy" are only provided with standard issue short or length-sleeved jumpsuits, underwear, a t-shirt, and standard issue socks. They are not permitted shoes or other footwear in their cells although they are issued slip-on sneakers for walking to and from other areas of the Institution and can purchase flip-flops for use in the showers. This footwear, however, must be left outside the door to their cell upon re-entry.

[12] The cell in the Unit in which Mr. Almrei is located is 9' x 12', and is bare, save for a metal bed, sink and toilet. There is a window towards the top of the cell wall and each cell is equipped with a sliding hatch on the door, through which items can be passed by the Corrections Officers. There are 26 cells in the portion of the Unit in which Mr. Almrei is currently housed, most of which are located against an external wall of the Institution. As of the date of the hearing, only 20 of the cells were occupied, primarily by inmates who had been moved into the Unit because they posed a threat to the health and safety of others in the Institution, including other inmates and staff.

[13] The management and co-ordination of the HVAC system in the Institution is, to say the least, not an easy task, made all the harder because of the block and brick construction undertaken in the 70s when the use of insulation, or adequate insulation, was not at the top of anyone's priority list. The situation is made all the more difficult to control because of the 113 different heat exchange systems that had to be installed throughout the Institution to accommodate the needs of the inmates who are resident in disparate units or ranges. Furthermore, as best as I understood the evidence of John Carlson, one of the Institution's many maintenance engineers, these mixing boxes, as he referred to them, are not designed to handle the HVAC demands of the Corrections Officers, whose needs are apparently different from those of the inmates, which may compound the problem.

[14] There was little doubt on the evidence of the Guards, and indeed Mr. Carlson, that the area of Mr. Almrei's Unit is, in absolute and relative terms, cold in winter and has been for some time. While certain remedial steps were undertaken in the wake of a Coroner's Inquiry in 1996 - when an inmate was apparently found to have suffered from hypothermia as a result of his incarceration in the Unit - there was a recurring problem last year during the heart of the winter. Certain of the guard-witnesses before me acknowledged wearing sweaters and coats during their shifts, particularly at night. The ambient-cell temperature was never adequately remedied last winter, as I understand the evidence, although attempts were made to ameliorate the situation, alas to no avail.

[15] The problem is made all the worse in the Unit because the concrete floors, particularly those adjacent to the external walls, are cold and the inmates are not insulated from this situation by even a half an inch of rubber sole. Some of the inmates are forced to wear multiple pairs of socks in their cells. Furthermore and notwithstanding the efforts of Mr. Carlson and his co-workers, many of the inmates have taken to blocking the air vent into their cells to eliminate or reduce the constant flow of air, which they perceive to be only cold. These facts, taken together with the nature and form of bedding that is issued to the inmates when they first arrive in the Unit, and the further fact that they remain confined to their cells for most of the day in an almost sedentary state, are, as counsel for Mr. Almrei argues, a recipe for the disaster about which she complains on behalf of her client.

[16] I was told, however, that since the middle of this past October, a concerted effort has been underway to remedy the situation. In fact, the records of the ambient temperatures of the area in and around the Applicant's cell taken several times a day seem to be confirmatory of these efforts and the fact that the Institution's maintenance staff are able to maintain better control over the situation. Only time will tell whether this remedial activity will result in more acceptable climatic conditions during the forthcoming winter.

Ministry's Position

[17] Leaving aside for the moment its argument on whether the circumstances of this case engage the Charter, it is the Institution's position that those who are placed in the segregation unit, as a matter of policy, cannot be provided with any form of footwear for use in their cell because such would pose a security risk. I was told the shoes could be used as a weapon or could provide the prisoner with added traction if there was a need for the Guards to enter a cell to subdue the prisoner. Alternatively, if an exception were made for Mr. Almrei and he were permitted to wear shoes in his cell, this exception might create more problems for the Institution in that other prisoners in the Unit or elsewhere in the Institution would perceive it as constituting preferential treatment. This act, although seemingly innocuous, might cause the Institution untold disciplinary problems that could result in risk to other prisoners and guards alike.

[18] While my innate sense of cynicism might lead me to reject this in terrorem argument at first blush, particularly in the wake of Mr. Greer's candid acknowledgment described later in this decision, I am ever mindful of the cautionary note sounded by Mr. Justice Sirois of the Saskatchewan Court of Queen's Bench in Maltby v. Saskatchewan (Attorney General) [2] where he made the following observation:

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. Bell v. Procunier 417 U.S. at 827. The unguided substitution of judicial judgment for that of the expert prison administrators on matters such as this would to my mind be inappropriate.

Justice Sirois provided a further admonition later in his reasons for judgment, at para. 41, that bears repeating: 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 applied equally to remanded as well as sentenced inmates. A person in custody simply does not possess the full range of freedoms of an unincarceratedindividual. The maintaining of institutional security and preserving internal order and discipline as 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. Prison administrators therefore should be accorded wide ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. Rightsand freedoms in the Canadian Charter of Rights and Freedoms are guaranteed subject only however to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[19] I digress to observe that the superintendent's office does permit special needs prisoners - persons with physical disabilities - to wear shoes in their cells, if appropriate, for example a prisoner with a prosthetic leg. This concession, the Deputy Superintendent testified, was permitted because the prisoner in question did not pose a threat to the security of the institution. As will be discussed later in these reasons, that decision was made after an assessment of the individual circumstances and the needs of the prisoner in question, a process that was not, in my respectful opinion, undertaken in the instant case.

[20] As previously suggested, there is a concern that if the applicant were reassigned to the general range yet again he might be subjected to abuse and/or a further beating. In addition, it would appear that for the applicant to survive the general range, he would have to undergo some form of behavioural modification if only to toughen himself up for life on that range.

[21] In part, as a consequence of the concerns inherent in a move of this sort, on the eve of the launch of the subject application and during the second week of his hunger strike, the Superintendent's office made an offer to Mr. Almrei by which it hoped to achieve a compromise without putting its "policy" of no footwear in the cells at risk, save for the exception described above. At that time, the Deputy Superintendent offered extra blankets, socks, additional long sleeved shirts, the latter of which were left over from the days when the institution housed women and even the use of flip-flops in the cell.

[22] In the alternative, the Deputy Superintendent offered to permit the applicant to move into the Special Needs Unit, a unit that houses, as its name suggests, persons with special physical and mental needs. This unit is also home to persons charged with, or convicted, of sexual assault, including pedophiles, who are generally reviled by the other inmates. If the Applicant were to agree to a transfer to the special needs unit, he would, however, be permitted standard issue footwear in his cell. The Deputy Superintendent also assured me that he would insure that any extra clothing that Mr. Almrei required would be provided, if it were available within the Institution stores.

[23] Mr. Almrei initially rejected the offer of extra clothing, although he later reluctantly agreed to wear the extra clothing and flip-flops on a "without prejudice" basis, pending my decision. Furthermore, it was his position that placement in the Special Needs Unit was not a valid or appropriate solution to his request because while superficially he would seem to enjoy greater benefits if located in that unit, in reality, he would be worse off. The evidence of the Guards supported Mr. Almrei's position that the Special Needs Unit was an inappropriate place for him, because of the individuals it housed, particularly on a longer term basis, and the fact that it would subject him to further "prison-culture" ridicule, whether real or imagined.

[24] While initially I was of the view that the offer of relocation to the Special Needs Unit was an appropriate alternative to the relief requested in the instant application, and one which would achieve a reasonable compromise, I am now persuaded that relocation to that unit would not be suitable for the reasons stated in the evidence of some of the Guards and Mr. Almrei, himself. His concerns are in some respects predicated upon his rather unusual circumstances, which place him in a detainee category markedly different from most who are incarcerated in the Institution. Simply put, he is not there in a transitory capacity, as is witnessed by the events of the last two years, with no apparent end to his incarceration in sight.

[25] I hasten to observe that there is no suggestion that Mr. Almrei is a violent, dangerous, or troublesome prisoner, at least at Toronto West. He is, to use the hackneyed expression, a model prisoner. Put simply, he is not a security risk in the Unit and would not be perceived as such even if he were wearing institution-issued footwear in his cell. Interestingly enough, he, along with most of the other residents of the Unit has been issued slip-on sneakers, which he dons before walking out into the yard or down to the showers. Unlike some prisoners, Mr. Almrei does not pose a security risk such that he would either be deprived of these sneakers or the flip-flops he bought from the canteen and uses in the shower or would not be permitted to put them on his feet without guard assistance. Furthermore, and somewhat ironically, because of the faith and trust in him that the Guards have developed over these many months, he is permitted out of his cell more than is prescribed on a daily basis to assist in the cleaning of the Unit. During these outings, he is permitted not only to wear his sneakers but is also furnished with mops, brooms and cleaning solvent, none of which the Guards perceive as hazardous to themselves or anyone else.

Analysis

I. Section 10(c) of the Charter

[26] Section 10(c) of the Charter provides:

10. Everyone has the right on arrest or detention

...

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the

detention is not lawful.[3]

[27] Section 10(c) entrenches the common law remedy of habeas corpus in the Charter. The section, in my opinion, also provides its own remedy; if the applicant demonstrates that his detention is unlawful, he shall then be released. Furthermore, if there is a finding that the detention is "unlawful" the court is permitted to grant relief under section 10(c) itself or, arguably, fashion some form of remedy under section 24(1).

[28] The Supreme Court of Canada in R. v. Miller,[4] significantly broadened the reach of habeas corpus. Le Dain J. recognized that there could be a "prison within a prison" and that,

...a prisoner has the right not to be deprived unlawfully of the relative or residual liberty permitted to the general inmate population of an institution. Any significant deprivation of that liberty, such as that effected by confinement in a special handling unit meets the first of the traditional requirements for habeas corpus, that it must be directed against a deprivation of liberty.[5]

[29] Le Dain J. confirmed that release from the unlawful detention might be sought even if that release is not a full release but rather a release from a particularly restrictive form of detention. The unlawful part of the detention may be the extra-restrictive form of the detention rather than the detention itself. A further restriction on liberty, beyond that of the normal prison experience, can therefore be the target of a habeas corpus application.

[30] In this application, Mr. Almrei does not challenge the entirety of his detention, but rather the restrictive portion that he argues constitutes a contravention of the Regulations and Directives of the Ministry of Community Safety and Correctional Services. In my opinion, the applicant need only show that something - the detention or the condition of detention - is unlawful in order to be granted relief.

II. Unlawfulness of Mr. Almrei's Detention

[31] The relevant Regulation to the Ministry of Correctional Services Act provides that:

34(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.[6]

[32] With respect to the conditions of administrative segregation, protective custody and the special needs unit, the Ministry's directives, as found in its publication entitled Adult Institutions Policy and Procedures (the "Directives") provide that:

Unless there are reasonable and compelling reasons to the contrary, inmates housed in these accommodations will be accorded the same conditions of confinement, rights and privileges as those afforded inmates in general population.

These include, but are not limited to: ...

e) clothing and bedding. For safety or security reasons, protective clothing and bedding may be substituted...

Clothing and bedding must never be withheld from an inmate in special management accommodation except under the direction of a regulated health care professional for medical or psychiatric reasons or under the direction of the superintendent or designate for significant security reasons...[7]

[33] In my respectful opinion, the Regulation and the Directives, read individually or together, mandate the prison officials to examine each case individually and determine whether it is practicable for that particular individual to have the same conditions of confinement in administrative segregation as inmates in the general population. This assessment of the individual must be done but can be done in a manner the prison officials deem appropriate. It can and should be accomplished within the first twenty-four hours of an inmate's placement in administrative segregation. The review should be done in much the same fashion as a review conducted by the Superintendent when he or she is examining the justification for the placement of inmates in segregation, per se, for " a misconduct of a serious nature". [8]

[34] Furthermore, the Regulations mandate the Superintendent to review the circumstances of each inmate at least once every five days to determine whether continued segregation is warranted.[9] Surely, at this review and in the reviews in weeks subsequent, the Superintendent can determine whether it is then, or still, practicable, to provide an inmate with the same benefits and privileges that he would enjoy had he not been placed in segregation, regardless of the reason.

[35] From my reading of the Regulation, it would appear that the placement of an inmate in segregation is not a matter that is to be taken lightly. Furthermore, regardless of the reasons for the decision to place an inmate in segregation at first instance, that decision requires repeated re-evaluation. Surely the decision to deprive an inmate in segregation of the benefits accorded to inmates in the general population, for security reasons, is something that should be subjected to the same rigors as placement or continued placement in the Unit.

[36] In this case, an individual assessment of Mr. Almrei with respect to the practicability of allowing him the standard prison footwear was not done, notwithstanding the "re-evaluation" said to have been undertaken by the Superintendent's office in October. While concessions were offered, on the evidence of the management witnesses, it is apparent that the shoe issue was not going to be considered regardless of the individual circumstances of Mr. Almrei.

[37] Indeed, notwithstanding the in terrorem argument discussed above, Mr. Greer candidly acknowledged that while there might be some griping by the other prisoners in the Unit, the proposed concession in respect of the use of sneakers would not generate the concerns that Iain Leitherhead, the Regional Manager, pressed upon me. In point of fact, I am of the view Mr. Leitherhead overstated his case, particularly as it relates to the problems that might be experienced by the Corrections Officers working in the Unit, none of which concerns where echoed by the Guards themselves.

[38] Furthermore, it is clear on the evidence that Mr. Almrei currently enjoys certain "benefits" in terms of other cell accoutrements, for example bed linen, not given to others in segregation but provided routinely and universally to inmates on the general range. These benefits have not created any disciplinary problems about which I heard and apparently were justified because Mr. Almrei had "earned" them or had earned the trust of the Guards who gave him these items or "privileges".

[39] By not reviewing the matter anew and otherwise considering themselves bound by the "unwritten" policy of no sneakers in segregation cells, the Prison officials were, therefore, acting in a manner contrary to the Regulation and Directives. Mr. Almrei's detention without the footwear was, therefore, unlawful. Although not essential to my decision, I am also of the opinion that the apparent intransigence of management in adhering to this policy amounts to an unlawful fettering of discretion.[10] Furthermore, I am of the opinion that it is, in fact, practicable to give Mr. Almrei the standard issue footwear for use in his cell and that there are no reasonable or compelling reasons to deprive him of such.

Remedy

[40] Notwithstanding the aforesaid conclusion, the Crown has taken the position that habeas corpus should not lie to challenge the conditions of confinement for something as minor as the deprivation of prison-issue sneakers. Counsel battled over the interpretation of a key passage from Miller in which Le Dain J. explained:

I am of the opinion that the better view is that habeas corpus should lie to determine the validity of a particular form of confinement in a penitentiary...I do not say that habeas corpus should lie to challenge any and all conditions of confinement in a penitentiary or prison, including the loss of any privilege enjoyed by the general inmate population. But it should lie in my opinion to challenge the validity of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution.[11]

[41] The deprivation of adequate footwear is not an actual physical constraint but it is not the mere loss of a privilege either. It is a more restrictive deprivation of liberty than is the norm in the Toronto West and is, in fact, unlawful, as I have concluded above. It is without doubt that this deprivation is extremely significant to Mr. Almrei given his experiences over the past two years and the circumstances of his confinement.

[42] The Supreme Court of Canada has found American authorities to be particularly helpful in constructing a modern role for habeas corpus.[12] In Miller, Le Dain J. cited, with approval, the following passage from Coffin v. Reichard, a leading 6th Circuit case:

A prisoner is entitled to the writ of habeas corpus when, though lawfully in custody, he is deprived of some right to which he is lawfully entitled even in his confinement, the deprivation of which serves to make his imprisonmentmore burdensome than the law allows or curtails his liberty to a greater extent than the law permits."[13]

[43] As the evidence indicates, Almrei's detention is certainly more burdensome as a result of his being deprived the standard prison footwear for use in the cell.

[44] The Crown also submits that habeas corpus should not lie to remedy the denial of sneakers to Mr. Almrei because he has chosen to stay in segregation. He has rejected offers to move to the special needs, general population, and immigration units where he would be allowed to wear sneakers.

[45] On the evidence, segregation appears to be the most appropriate place for Mr. Almrei and so his desire to stay there should not be weighed against him. As indicated above, he does not fit the 'special needs' profile and does not want to have to adapt to the 'prison culture' as might be necessary to survive in the other two units offered.

[46] His special circumstances should be considered: he is not facing any charges and has not been convicted of any offence; he was originally placed in segregation without any opportunity to dispute this location and has now become accustomed to if not comfortable with it; and he has already spent two years at Toronto West in segregation - considerably longer than most if not all inmates. In my view, having regard to the uncertainty associated with the timing, location, and length of his incarceration, it is appropriate that he remain in segregation, if he so desires.

[47] In Gamble v. The Queen,[14] Wilson J. encouraged a purposive and expansive approach to the remedy of habeas corpus.[15] She noted with approval that, "[t]he superior courts in Canada have, I believe, with the advent of the Charter and in accordance with the sentiments expressed in the habeas corpus trilogy of Miller, Cardinal, and Morin, displayed both creativity and flexibility in adapting the traditional remedy of habeas corpus to its new role."[16] The use of s.10(c) to relieve Mr. Almrei of the extra-restrictive deprivation and to give him the prison-issue sneakers is consistent with this approach to habeas corpus.

[48] The Crown finally advances a "flood-gates" argument in a last attempt to forestall an order permitting Mr. Almrei to wear sneakers in his cell in the Unit. In response to this same type of argument in Toth v. Canada (Minister of Employment and Immigration),[17] Heald J. observed,

My response to this submission is that the precedential value of a stay being granted in one case is minimal since such a stay is granted only after careful consideration of all the circumstances of that case. It is not to be considered as a precedent for the granting of a stay in other cases and in different circumstances...[18]

[49] Putting the matter otherwise, my decision is premised on the facts unique to Mr. Almrei and does not or is not intended to obtain as a precedent for other inmates. The Superintendent is, as I have indicated, obliged to decide matters of "benefits and privileges", which I have found include the provision of clothing and bedding, on an individual basis. This decision is not intended to impact that individual assessment.

[50] An order will therefore go directing the Superintendent of the Institution to permit Mr. Almrei to wear standard issue sneakers in his cell in the Unit. Having regard to the conclusion reached in respect of this issue, I need not consider whether or not the refusal to permit Mr. Almrei to wear sneakers in his cell in the Unit constitutes a violation of either sections 7 or 12 of the Charter.

[51] I hasten to observe, however, that this decision speaks only to the issue of the footwear to which Mr. Almrei is entitled and is not intended to speak to his request for a sweater or coat, neither of which items of apparel forms part of the standard issue to inmates on the general range, save however for the use of winter coats when inmates are permitted into the yard.[19]

[52] I have learned since the argument was concluded in early November that Mr. Almrei has agreed to defer his request, in any event, for the provision of a sweater and jacket. I understand that this decision is to some extent based upon the improved climatic conditions now enjoyed in the Unit and the provision of the extra items of clothing under order of Mr. Greer. Accordingly, I make no observation as to whether the failure to provide non-standard institution-issued items, such as a sweater or coat, amounts to a violation of an inmate's other Charter rights.

[53] Furthermore, as memory serves, the request for the provision of a cell thermometer was abandoned toward the end of argument or was otherwise rendered academic because of the current and renewed activities of the maintenance crew of the Institution.

[54] An order will therefore go in the limited form described above. I will remain seized of the matter in the event that the conditions in the Unit change during the course of the winter and or there is a change in Mr. Almrei's status that might in some fashion impact this decision. Counsel may address me on the issue of costs, if necessary.

Released: December 19, 2003

DATE: 20030419

DOCKET: 03-B5523

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HASSAN ALMREI

Applicant

- and -

ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, and

SUPERINTENDENT OF THE TORONTO WEST DETENTION CENTRE

Respondents

REASONS FOR JUDGMENT

GANS J.

Released: December 19, 2003

[1]See for example R. v. Krachov, [2002] O.J. No. 2172 (Ont. Ct. J.).

[2] [1982] S.J. No. 871 at para. 20.

[3] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982 c.11, s.10(c).

[4] [1985] 2 S.C.R. 613.

[5] Ibid. at para. 32.

[6] Ministry of Correctional Services Act -- R.R.O. 1990, Reg. 778, s.34.

[7] Adult Institutions Policy and Procedures, pages 5-6, (exhibit 11).

[8] Ministry of Correctional Services Act -- R.R.O. 1990, Reg. 778, s. 34(2).

[9] Ministry of Correctional Services Act -- R.R.O. 1990, Reg. 778, s. 34(3).

[10] Yhap v. Canada (Minister of Employment and Immigration)(T.D.), [1990] 1 F.C. 722 at 734 et.seq.

[11] Miller at para. 36.

[12] See Miller at paras. 34-35 and Gamble v. The Queen (1988), 45 C.C.C. (3d) 204 at p. 240-241.

[13] 143 F.2d 443 (6th Cir. 1944) cited in Miller at para. 34.

[14] (1988), 45 C.C.C. (3d) 204 (S.C.C.).

[15] Ibid. at p. 241.

[16] Ibid. at p. 238.

[17] [1988] F.C.J. No. 587 (F.C.A.).

[18] Ibid.

[19] During the course of the hearing before me it was, incredibly, discovered that inmates in segregation were not provided with a winter coat when entering the yard in winter for some air. This obvious oversight has been remedied through the intervention of Mr. Greer and coats are now routinely furnished to these prisoners.

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