The Appellants in this case, Durrell Diggs and Ryan Taylor Wilband, were subject to prolonged solitary confinement and denials of statutorily-mandated outdoors time during their incarceration. They brought habeas corpus applications to challenge this treatment, a practice commonly referred to as “rotation lockdowns”. The habeas corpus judge found in favour of Diggs and Wilband, affirming there was a deprivation of the applicants’ residual liberty by comparing their experiences to the conditions of the “general population inmate” group in the normal course of the correctional facility operations.

By contrast, the Nova Scotia Court of Appeal (NSCA) found that the court below had erred, stating it had no jurisdiction to hear the habeas corpus application when it concerned operational or policy-based decisions, because this would be dealing with “systemic issues”. The Attorney General of Nova Scotia, along with provincial interveners including the Attorney General of British Columbia, argue that “policy” or “operational” decisions cannot be subject to habeas corpus court review.

The BCCLA has intervened to argue that habeas corpus must be available to prisoners challenging deprivations of liberty arising from “operational” or “policy” decisions that impact all detainees. Deciding otherwise would be contrary to prisoners’ section 10(c) Charter rights to have their detention reviewed for lawfulness through a habeas corpus application.

This conclusion is supported both by purposeful Charter interpretation, and by using the inextricably linked right of section 7 as an interpretive lens. It is settled in s. 7 law that operational or policy-based decisions are choices made by state actors, thus subject to s. 7 Charter review. Interpreting habeas corpus in alignment with s. 7 and the court’s modern jurisprudence supports access to habeas corpus for operational and policy decisions. For example, that a condition of detention is lawful—and not arbitrary, discriminatory, or unreasonable—is inherent to the s. 7 constitutional right to liberty, except in accordance with the principles of fundamental justice.

In this case, the right to liberty is profoundly called into question by constant prison lockdowns. The increased frequency and duration of lockdowns are at root caused by the state failing to effectively manage its own prisons. As such, prisoners must have recourse to the courts. A government cannot shield its actions from Charter scrutiny simply by describing its failures as policy or operational decisions.

The expansion of habeas corpus over the centuries has helped ensure that the rule of law is upheld in all decisions regarding restricting a prisoner’s liberty. Habeas corpus is fast and accessible; it limits procedural hurdles and accounts for the reality prisoners currently face. By contrast, Charter challenges can take years and significant litigation resources.