Case Summaries

The November 12, 2021 decision of Adams v. Nova Institution, 2021 NSSC 313 centered around Lisa Adams, a 34-year-old woman who after arriving at the Nova Institution for Women was placed in a dry cell because staff suspected she was hiding crystal meth in her vagina, pursuant to section 51(b) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, as amended (the “CCRA”).

A dry cell, as per Justice Keith’s decision is “the place within a prison where a unique form of solitary confinement occurs.  Inmates reasonably suspected of carrying contraband in a “body cavity” are separated, strip searched and placed alone in a cell on the expectation that the contraband will be “expelled”. It is called a “dry cell” because there are no plumbing fixtures, and the water is turned off.” The inmate is held in the dry cell until such time as the contraband is expelled or it is clear that no such contraband is being carried.

The Respondents Corrections Services Canada, the Attorney General of Canada and the Warden of the Nova Institution, referred to collectively as the Federal Crown by Justice Keith, conceded that the detention was unlawful. However, the parties disagreed fundamentally as to why this detention was unlawful.

The issue of what defines a body cavity was key to this matter. It was argued that Lisa Adams should never have been placed in a dry cell, as it is not possible to expel something such as contraband from a vagina the way it is from a rectum, through a bowel movement. As such, her dry cell detention was unlawful because the enabling provisions in the CCRA (sections 51 and 52) violate sections 7, 8, 12, and 15 of the Canadian Charter of Rights and Freedoms and are unconstitutional.  It was further argued that s. 51 and 52 of the CCRA violated the Charter because it could lead to prolonged periods of dry-cell segregation for women suspected of concealing contraband in their vaginas. She asked that this enabling provisions be declared void and of no effect.

In response, the respondents argued that the problem in Ms. Adams’ case was “maladministration” and not a constitutional failure within the CCRA and that the dry cell provisions of the CCRA could not be condemned as unconstitutional because “section 51 does not contemplate the placement in a dry cell of a female that is suspected of concealing contraband in her vagina.” The respondents further argued that if the dry cell provisions were deemed unconstitutional, then a tailored remedy should be made so that s. 51 does not apply to inmates suspected of carrying contraband in the vagina.

However, Justice Keith found that this “oversimplifies the problem and fails to recognize the fact that the search and seizure provisions of the CCRA were drafted in an integrated and internally cohesive manner.” He also found that the CCRA’s definition of body cavity does not take into account that contraband being hidden in a vagina would not necessarily be expelled through the dry cell process the way it would by way of the rectum.

It was ultimately determined that the dry cell provision should be re-examined. Section 51(b) of the CCRA as informed by the definition of “body cavity” in section 46 was found to be unconstitutional but this declaration was suspended for six months, allowing Parliament time to develop a legislative response to this issue.

McKinnon Estate v. Cadegan, 2021 NSCA 79

On November 23, 2021, a decision was released by the Nova Scotia Court of Appeal overturning the trial verdict in McKinnon Estate v. Cadegan. The trial was heard before a jury and presided over by the Honourable Justice Patrick Murray of the Nova Scotia Supreme Court in October and November 2020.  

Mr. Leroy McKinnon had passed away from a heart attack. His estate and beneficiaries sued Dr. Perry Cadegan for negligence in the treatment of severe diarrhea which allegedly contributed to his death.

At trial, while the jury found that Dr. Cadegan had breached his standard of care in providing treatment to Mr. McKinnon by failing to inform Mr. McKinnon of a diagnosis, and by failing to follow up with a specialist to obtain an alternate treatment plan, the jury ultimately found that these breaches did not cause the death of Mr. McKinnon and causation had not been proven.

The estate and beneficiaries appealed alleging errors by the trial judge in admitting handwritten notes of Mr. McKinnon and in not adequately instructing the jury with respect to those notes.

The appeal of the trial decision was heard on October 14, 2021, by a panel of three judges in the Court of Appeal. The Court found that the trial judge’s instructions to the jury concerning the personal notes made by Mr. McKinnon were deficient, as the judge’s instructions to the jury were potentially misleading regarding the use of the notes.

In making this finding, the Court confirmed that the notes of Mr. McKinnon should have been treated as an admission by a party, which makes them presumptively admissible. The Court found that this was not one of the rare cases where exclusion could be justified. Alternatively, the trial judge’s admission of the notes under the principled exception in Khelawon was proper.

The Court also found that the trial judge’s jury instructions concerning the notes were deficient because they suggested he had determined them to be reliable. He failed to tell the jury that ultimate reliability of the notes was for them to determine. This error made the instructions potentially misleading. Given the significance placed on the notes by the defence, particularly on the issue of causation, there was a risk the verdict was impacted. The previous verdict of the jury was set aside, and a new trial has been ordered.

Disability Rights Coalition v. Nova Scotia (Attorney General), 2021 NSCA 70

In 2014, Beth MacLean, Sheila Livingstone and Joseph Delaney filed complaints with the Nova Scotia Human Rights Commission.  They alleged the Province of Nova Scotia had discriminated against them in the provision of a service, contrary to the Human Rights Act.  They alleged the discrimination arose due to their mental disabilities and financial status.

At the same time, the Disability Rights Coalition, an alliance of disability advocacy groups and individuals, filed a complaint alleging that the discrimination experienced by the individual complainants and others was a product of systemic discrimination.

The Province denied it had treated the complainants in a discriminatory fashion and further denied the existence of systemic discrimination in its provision of services to disabled persons.

A Board of Inquiry found for the complainants but dismissed the allegation of systemic discrimination. It was determined that the three individual complainants had each established prima facie discrimination under the Human Rights Act but that finding was limited to the time periods when they had been housed in a locked psychiatric unit of the Nova Scotia Hospital.  

The Court of Appeal found that the Province of Nova Scotia did discriminate against the three individual complainants, by keeping them in segregated institutional settings for many years without any medical or legal justification. The Court also found that the Province systemically discriminated against persons with disabilities by keeping persons on years-long wait lists for necessary supports, by institutionalizing some persons with disabilities unnecessarily, or by requiring people with disabilities to move communities in order to receive support.

The case is also significant and noteworthy with respect to the quantum of general damages awarded to the individual complainants. Beth MacLean was awarded $300,000.00 in general damages for the suffering she endured, which now stands as the largest human rights general damages award in Canadian history. Tragically, Ms. MacLean died less than two weeks before the Court’s decision was released and the Court invited submissions from the Parties regarding how her death would impact the Court’s award. Joseph Delaney was awarded $200,000.00 in general damages for being unnecessarily institutionalized. Sheila Livingstone died in 2016, before the Complaint went to a Board of Inquiry Hearing. Her estate was not awarded any damages by the Court.

The systemic complaint has been remitted to a Board of Inquiry of the Nova Scotia Human Rights Commission, where the Province will have the opportunity to justify the manner in which it provides support for persons with disabilities.