Trang et al. v. Edmonton Remand Centre (Director) et al., 2010 ABQB 6

• Judge: Marceau, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 08, 2010
• Citations: 2010 ABQB 6;(2010), 475 A.R. 1 (QB)

Trang v. Edmonton Remand Centre (2010), 475 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JA.075

De Trang, Binh Quoc Trang, Cuong Quoc Trang, Thao Mai Dao, James Edward Mah, Man Kit Chan, Alex Hang Chan, Donald Cheung, Vi Quoc Tang, Tien Lai Lam, Long Nguyen, Jerry Nguyen, Thi Hoang Le, Joseph Vincent Kochan, Anh Le Tran, Josephine Soo Yun Voon, Hiep Quang Le, Rocky Allan Simmons, Phong Huy Tran, Adrian Tiburico Vergara, Vu Hang Trinh, Helen Hoang Nguyen, Boa Minh Tran and Willy T. Lau (applicants) v. The Director of the Edmonton Remand Centre (respondent) and Her Majesty The Queen in Right of Canada (third party)

(016033268U1; 2010 ABQB 6)

Indexed As: Trang et al. v. Edmonton Remand Centre (Director) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Marceau, J.

January 8, 2010.

Summary:

The accused spent between 134 and 1100 days in the Edmonton Remand Centre awaiting trial on drug trafficking conspiracy charges. They sought declarations under s. 24(1) of the Charter, alleging that the conditions they endured while on remand violated their rights under ss. 7, 8, 9, 12 and 15 of the Charter. The allegations included assault, denial of adequate medical and dental care, denial of access to physical recreation and educational and media resources, the provision of inadequate and unhealthy nutrition and the practice of double-bunking inmates for 18 to 23 hours per day in cells designed for one inmate. Less serious allegations concerned clothing, toothbrushes, cell amenities, dry skin and roommates they could not get along with. The accused also challenged the constitutionality of s. 47(1)(u) of the Correctional Institution Regulation (re disciplinary offences) as being overly broad contrary to s. 7 of the Charter.

The Alberta Court of Queen's Bench allowed the application in part. The court stated that "the applicants either did not have sufficient evidence to establish most of their complaints or that some of the complaints, even if established, did not rise to a level worthy of Charter scrutiny. These included complaints about: food quality and sufficiency, assaults by guards, poor indoor air quality and unhygienic facilities and equipment, inadequate medical treatment and health care, insufficient access to educational opportunities and other programs, denial of religious rights, unlawful strip searches and cell searches, and inadequate access to the outside world, including arbitrary restrictions on visits and phone calls". The court made the following declarations: (1) the changing of the security classifications of two of the accused (transferred to more restrictive units), without explanation to them, based on the evidence of the Edmonton Police Service from an informant, violated s. 7 of the Charter; (2) locking up two inmates for 18-21 hours per day in a cell designed for one inmate, with limited access to recreation and other activities, constituted cruel and unusual treatment or punishment (s. 12); (3) providing the accused with stained and inadequately cleaned underwear also violated s. 12; and (4) several guards violated the equality rights (s. 15) of five of the accused by using racist jokes, racial epithets while refusing an accused's special meal, imposing a special rule prohibiting speaking to other inmates only on Asians, by denying Asian inmates an opportunity to use the phones, and by using racial epithets while some of the accused were in one of the "holding tanks".

Civil Rights - Topic 646

Liberty - Limitations on - Prisoners and imprisonment - [See second Prisons - Topic 1027 and Prisons - Topic 1101 ].

Civil Rights - Topic 1215

Security of the person - Lawful or reasonable search - Prisoners - The accused gang members were being held in the Edmonton Remand Centre (ERC) awaiting trial on drug trafficking conspiracy charges - A written standard operating procedure (SOP) required that all of the accused be strip searched when they left the ERC for court - The Alberta Court of Queen's Bench held that the strip searches did not constitute an unreasonable search and seizure (Charter, s. 8) - The searches were authorized by law (common law and the SOP) - The court rejected the accused's submission that routine strip searches done without reasonable grounds violated s. 8 - Strip searching correctional inmates was distinguished with strip searching persons upon arrest - Strip searches in a correctional setting did not require completely individualized "reasonable suspicion" - The good order of the institution and the safety of staff and other inmates depended upon detecting weapons and contraband - Accordingly, the law authorizing these strip searches was reasonable - The accused's complaint about the lack of privacy in carrying out the searches was rejected, as there was a reduced expectation of privacy in the ERC setting - Further, random cell searches for weapons and contraband did not violate s. 8 as long as they were carried out reasonably - These searches were a practical necessity in a penal institution - See paragraphs 1063 to 1096.

Civil Rights - Topic 1216

Security of the person - Lawful or reasonable search - Strip searches - [See Civil Rights - Topic 1215 ].

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Void for vagueness doctrine - Section 47(1)(u) of the Correctional Institution Regulation empowered a disciplinary board to punish an inmate who "does anything prejudicial to the good order and discipline in an institution" - Remand inmates challenged the constitutionality of s. 47(1)(u) on the ground that it was overly vague, granting state officials "arbitrary, unfettered, vague and overbroad authority", contrary to ss. 7, 9 and 12 of the Charter - The remand centre argued that the issue was moot, as s. 47(u) had been repealed and replaced with something substantially different and, in any event, none of the inmates had been charged under s. 47(1)(u) - The Alberta Court of Queen's Bench held that the issue was not moot, as the inmates had been charged under another section with virtually identical wording - The court stated that "I agree ... that whether an action is 'prejudicial to the good order of the institution' is an objective factual matter and that inmates would have foreseeability in that regard. However, that does not answer the argument that such a charge remains too vague to defend against. In practice, if that was the only charge and the only particulars of the charge afforded to the inmate it would be unfair, but in fact a statement of the particulars is given to the accused inmate at the same time as his notice to attend a disciplinary hearing. In my view, therefore, as long as these are meaningful details, they are sufficient to provide accessibility. In the context, I find that the section is not vague." - See paragraphs 1131 to 1142.

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle - [See Civil Rights - Topic 3107 ].

Civil Rights - Topic 3821

Cruel and unusual treatment or punishment - What constitutes - General - Remand inmates alleged that conditions in the Edmonton Remand Centre, individually and collectively, violated s. 12 of the Charter - The Alberta Court of Queen's Bench stated that whether a punishment was cruel and unusual depended upon whether it was so excessive that it outraged standards of decency, which required determining whether the punishment was grossly disproportionate - The court stated that "all of the actions complained of by the inmates have been scrutinized from the point of view of whether the actions taken can be justified as reasonably related to a legitimate non-punitive governmental objective, namely the security of the staff, the security of the inmates and fulfilling the ultimate goal which is to keep those imprisoned whom the courts have determined should be imprisoned prior to trial." - The court cited one example (taking away the inmates' 20 inch colour televisions and replacing them with small black and white televisions), and stated that "in my view, whenever the only objective or the only way a decision can be characterized is as an attempt to punish an accused before he is found guilty, it cannot survive a challenge under s. 12. In my view, removing the televisions was a political tactic, unrelated to security or effective operation of the institution" - See paragraphs 984 to 996.

Civil Rights - Topic 3828

Cruel and unusual treatment or punishment - What constitutes - Prisoners - Restraints - Two inmates sent to the mental health unit at the Edmonton Remand Centre were forced to wear "baby dolls", which was a restraint jacket required to be worn by inmates who presented a suicide risk - The inmates alleged that wearing "baby dolls" constituted cruel and unusual treatment, as there were alternative clothing options available - The Alberta Court of Queen's Bench held that the inmates' s. 12 Charter rights were not violated - The court stated that "there was a rational purpose for the use of the baby dolls and that their use does not outrage standards of decency" - See paragraph 1037.

Civil Rights - Topic 3828.3

Cruel and unusual treatment or punishment - What constitutes - Prisoners - Double bunking - Inmates at the Edmonton Remand Centre (ERC) claimed that they were subjected to cruel and unusual treatment or punishment due to double bunking, small cell size, the lock-up rotations and the lack of exercise time - The Alberta Court of Queen's Bench held that double bunking, by itself, did not violate s. 12 - However, double bunking was a significant circumstance to be assessed with all other relevant circumstances, including the availability of exercise, cell amenities and floor space, time spent in the cells and the length of incarceration - The inmates spent 18-21 hours per day double bunked in a cell designed for one person - Only one inmate could move around or exercise at one time - There was no toilet privacy and room for only one to sit at the table - There was limited access to recreation - The cells had no televisions and poor lighting made it difficult for some inmates to read - Time in the cells (10-13 hours per day while awake) was boring and depressing - The court held that even these conditions might not outrage standards of decency if the [inmates] were at the ERC for a few days or even weeks. But many of them endured these conditions for months, and some for years. ... these conditions are ... 'appalling' ... they shock the conscience and are 'grossly disproportionate". - The court held that these conditions violated s. 12, as the conditions, experienced for lengthy periods of time "are intolerable and degrading to human dignity and worth" - See paragraphs 997 to 1021.

Civil Rights - Topic 3828.4

Cruel and unusual treatment or punishment - What constitutes - Prisoners - Segregation - Inmates at the Edmonton Remand Centre (ERC) claimed that the conditions of administrative and disciplinary segregation violated s. 12 of the Charter - In disciplinary segregation, inmates were locked in cells for 23 hours a day without their personal effects, canteen privilege or books - They had no access to the gym, television or other privileges - They were limited to visits from professionals and could phone or write only a limited list of persons - The cells were the same size as regular cells, with outside windows and windows in the door - Inmates had access to medical and psychological services - A nurse attended every day - A psychologist attended every week day - No inmate spent more that 14 days on disciplinary segregation - Administrative segregation was less restrictive - Those inmates could use the phone, had canteen privileges, full cell contents and could wear normal institutional clothing - All segregation was reviewed weekly - ERC conceded that excessive time in segregation could outrage the standards of decency and thus violate s. 12 - The Alberta Court of Queen's Bench held that the inmates' s. 12 Charter rights were not violated - The court stated that "the lack of social interaction or any other activity (such as novels or TV or other reading materials or cards) for up to 14 days does not, in my view, constitute cruel and unusual treatment. It does not rise to the point of a Charter violation. ... while this is hard time, it is not cruel time." - See paragraphs 1028 to 1036.

Civil Rights - Topic 3828.6

Cruel and unusual treatment or punishment - What constitutes - Prisoners - Visits - Inmates at the Edmonton Remand Centre claimed that the restrictive policies respecting open and closed visits constituted cruel and unusual treatment or punishment (Charter, s. 12) - The Alberta Court of Queen's Bench rejected the submission - The restrictions were legitimate means of effectively managing the facility to maintain security and manage staff - There were significant concerns respecting contraband, which justified close monitoring of prisoners and visitors - None of the limitations outraged standards of decency - The court stated that "the discretion to refuse open visits, and the conditions involved in open visits are reasonable precautions. They certainly do not rise to the level of a Charter breach under s. 12" - See paragraphs 1038 to 1041.

Civil Rights - Topic 3828.7

Cruel and unusual treatment or punishment - What constitutes - Prisoners - Clothing and footwear - Inmates at the Edmonton Remand Centre (ERC) were provided with inadequate footwear that led to foot and back problems - Some inmates were forced to wear stained underwear - The Alberta Court of Queen's Bench stated that "if an inmate has foot problems because of the inadequate shoes and the prison authorities do not address the problem by, for instance, allowing the inmate to wear his own shoes or orthopaedic shoes provided for the inmate, that would likely outrage the standards of decency and would be grossly disproportionate. ... If the decision is made that inmate cleaners will do the laundry, then it is the responsibility of ERC authorities to ensure that the job is done well, that the appropriate cleaning products are used and that the clothing is clean and wearable. Badly stained underwear is not acceptable, and if no mechanism exists for ensuring that inmates have their own underwear, then stained underwear should be discarded. In context, it is important to note that this is a transient population, and that most inmates are only incarcerated a short time. However, in the case of the male Applicants, who were long term inmates, they were required to use badly stained underwear, previously worn by many others. If they bought their own, it was often stolen and they were pressured to pay the inmate cleaners to keep theirs separate and return them to them. Again, like many of the other aspects of this case, something that is tolerable for a short time, becomes degrading and humiliating over time. In my view, this treatment is grossly disproportionate in that it does not accord with public standards of decency and propriety, and shocks the general conscience. It is degrading to human dignity and worth. I conclude that the s. 12 rights of these inmates were breached by these conditions." - See paragraphs 1042 to 1046.

Civil Rights - Topic 5506

Equality and protection of the law - General principles and definition - Law defined - The accused gang members, most of them of Asian descent, were held in the Edmonton Remand Centre (ERC) awaiting trial on drug trafficking conspiracy charges - The accused claimed that their equality rights (Charter, s. 15) were infringed by racist taunts, derogatory racial jokes and comments by the guards - Section 15 of the Charter provided that all persons were equal before and under the "law" and were entitled to the equal protection and benefit of the "law" - At issue was whether the "law" was involved here - The Alberta Court of Queen's Bench stated that "'the law' may be defined narrowly as statutes and regulations passed by Parliament or the Legislatures, may extend to all rules, commands and policies passed or followed by government entities, or at the farthest end of this spectrum, may extend to acts of discretion and actions of government actors and entities. The definition of 'law' has been interpreted to include policies, collective agreements, programs and activities of government which may have a discriminatory effect ... the actions by the CO's were actions by government taken under the authority of the law - the statutory and regulatory framework surrounding correctional institutions that grants them authority over the inmates, and thus fall within s. 15." - See paragraphs 1110 to 1114.

Civil Rights - Topic 5660.1

Equality and protection of the law - Particular cases - Prisoners - The accused gang members, most of them of Asian descent, were being held in the Edmonton Remand Centre (ERC) awaiting trial on drug trafficking conspiracy charges - The accused claimed that their equality rights (Charter, s. 15) were infringed by racist taunts, derogatory racial jokes and comments by the guards - The Alberta Court of Queen's Bench held the racial taunts, derogatory racial jokes and guard imposed rules applied only to Asians created a distinction based on race that created a disadvantage by perpetuating prejudice or stereotyping (i.e., discrimination) - The court stated that "prisoners are subject to the psychological and physical control of the state. All actions of the state's representatives are augmented by this fact of compulsion. Unlike ... employment or tenancy situations ... , a prisoner has no choice regarding their environment. Therefore, a lower threshold for discrimination by racial slurs should be used in these cases than the one required in employment cases. In my view, a pattern is not required to establish discrimination in this context. I find that these incidents all create a disadvantage by perpetuating prejudice or stereotyping." - See paragraphs 1115 to 1130.

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - General - Application - Nongovernmental or private interference - The accused gang members, most of them of Asian descent, were being held in the Edmonton Remand Centre (ERC) awaiting trial on drug trafficking conspiracy charges - The accused claimed that their equality rights (Charter, s. 15) were infringed by racist taunts, derogatory racial jokes and comments by the guards - The ERC conceded racist conduct, but argued that the guards acted outside their statutory authority (acting personally, not as a government actor) and there could be no Charter breach where the ERC disciplined and counselled the guards against such conduct - The Alberta Court of Queen's Bench held that the ERC could not immunize itself from Charter liability merely by instituting rules forbidding discriminatory conduct by the guards - The court held that "the nature of the CO's employment, that is their exercise of discretionary power over inmates, renders them government actors for the purposes of the Charter" - See paragraphs 1098 to 1109.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - Accused awaiting trial on drug charges spent time in the Edmonton Remand Centre (ERC) - They sought declaratory relief alleging that the conditions of their incarceration violated various sections of the Charter, including the principles of fundamental justice under s. 7 - The ERC argued that s. 7 applied only to the complaints regarding security classification and discipline - Cruel and unusual punishment under s. 12 of the Charter required proof of "gross disproportionality" - The Alberta Court of Queen's Bench stated that "there may be arbitrary rules or conditions that are not grossly disproportionate. In keeping with the Supreme Court's decision in Malmo-Levine, ss. 7 and 12 must be ready in a complementary manner. An arbitrary rule or condition that engages an inmate's life, liberty or security of the person will only be contrary to s. 7 if that arbitrary rule or condition is grossly disproportionate. Since the same test applies, it is not necessary to consider s. 7 where s. 12, the more specific provision, is engaged. In my opinion, s. 7 in this context applies only to decisions related to classifications, placements and the disciplinary process." - See paragraphs 954 to 965.

Civil Rights - Topic 8380.25

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of rights - The accused spent between 134 and 1100 days in the Edmonton Remand Centre (ERC) awaiting trial on drug trafficking conspiracy charges - They sought various declarations under s. 24(1) of the Charter, alleging that the conditions they endured while on remand violated their rights under ss. 7, 8, 9, 12 and 15 of the Charter - The proceeding concluded eight years after the time spent in remand - Some of the accused had been granted a stay of proceeding based on delay and the conditions endured on remand - Those accused who had been convicted had already been sentenced - The ERC questioned the practicality of granting declaratory relief at this time, given, inter alia, the availability of more appropriate remedies (judicial review, habeas corpus) - The Alberta Court of Queen's Bench listed the factors for and against granting declaratory relief, weighed those factors, and determined that declaratory relief was appropriate - See paragraphs 1143 to 1157.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - [See Civil Rights - Topic 3107 ].

Evidence - Topic 4022

Witnesses - General - Credibility - Considerations - Accused awaiting trial on serious drug trafficking charges spent time in the Edmonton Remand Centre (ERC) - They sought declaratory relief alleging that the conditions of their incarceration violated various sections of the Charter - Affidavits were filed by, inter alia, the accused, non-applicants who had served time in the ERC, and the correctional officers involved - The Alberta Court of Queen's Bench held that "I have treated the evidence of the affiants, be they applicants or not, with a great deal of skepticism" - In considering the truth of their allegations, the court considered internal consistencies in their evidence, any corroboration, and the consistency of complaints - Of particular concern was boilerplate affidavits, where many inmates complained of the same incidents that were clearly only applicable to some of them - The evidence of the correctional officers was considered in light of the established code of solidarity among correctional officers to protect their own (whether that meant not reporting violations, lying about violations or intimidating other officers to keep quiet) - See paragraphs 35 to 41.

Prisons - Topic 1027

Administration - Powers re prisoners - Classification - The Edmonton Remand Centre (ERC) had no committee or formal process to implement and review the classification and placement of remand prisoners - The Alberta Court of Queen's Bench held that s. 11 of the Corrections Act applied to the ERC - The court stated that "the definition of 'correctional institution' clearly and expressly includes inmates on remand ((i)) or in remand facilities ((ii)), and that s. 11 is mandatory. ... Remand facilities are required to establish a classification and selection committee to recommend appropriate accommodation assignments and security classifications, but given the nature of the facilities are not required to make assessments in regards to work training or treatment programs" - See paragraphs 966 to 969.

Prisons - Topic 1027

Administration - Powers re prisoners - Classification - The Edmonton Remand Centre had no formal procedure for classifying the security risk posed by remand inmates - A number of remand inmates claimed that the classification procedure applied to them violated their right to life, liberty and security of the person contrary to the principles of fundamental justice (Charter, s. 7) - Two inmates were reclassified and transferred to a higher security unit without explanation - The Alberta Court of Queen's Bench stated that "under the s. 7 analysis, inmates retain some residual liberty interests even after sentencing to a correctional facility ... Here both men were transferred from a unit with significantly more free time to one with a very restrictive lock up rotation. That engages liberty (and possibly security of the person) interests under s. 7. Secondly, they were given no opportunity to know what was alleged against them, to make any answer to the allegations, or even any notice that a decision was to be made" - The principles of fundamental justice and the duty to be fair required a fair and open procedure that was appropriate to the decision being made and its statutory, institutional and social context - The court stated that the inmates "were entitled to notice that their classification was to be changed, to know the basis of the proposed change, and to be able to respond to the allegations against them. Failure to do so breached the principles of natural justice, a component of the principles of fundamental justice" - See paragraphs 971 to 979.

Prisons - Topic 1101

Administration - Prisoners' rights - General - The accused, held in the Edmonton Remand Centre awaiting trial, claimed that the conditions endured in the Centre violated various Charter rights - The Alberta Court of Queen's Bench declined to apply a different standard to unconvicted remand prisoners than to prisoners serving a sentence - The court stated that "the argument that the inmates at a remand centre should be treated much better than those who have been convicted of serious crime and are serving prisoners is, in theory, attractive. In practise, however, it must be remembered that the Remand Centre houses many people who have been convicted of a crime and are awaiting the results of their appeal before being transferred to serving facilities. It has to also be noted that the average time in the ERC for an inmate is four to five days, and in that four to five day period to a large extent, the authorities are dealing with unknown persons, persons whose dangerousness has not been determined. It also has to be taken into account that while they may not have been convicted of the offenses with which they are charged, many of these people have very extensive criminal records which indicate that they should be classified in the most dangerous of categories. The emergence of gangs is a major concern in remand centres because they are the first place where persons newly charged are housed and for safety's sake, that of the staff and the inmates, one has to err on the side of security until gang affiliations are sorted out. Finally, one must not lose sight of the fact that those who are refused judicial interim release before trial fall into one of two categories. The first category are those about whom the Crown has satisfied the court that there is a serious risk they will not attend court, or they will be a further risk to the community, or their release would bring the administration of justice into disrepute. The second are those accused of either very grave offences, like possession of drugs for the purpose of trafficking, or of committing a crime while already on judicial interim release; in these situations Parliament has shifted the onus of disproving the grounds for judicial interim release to the accused. In my view, someone who is incarcerated because he is charged with a serious sexual assault, having been twice previously convicted of serious sexual assault, should be regarded as a dangerous person. Similarly, one who has been convicted in the past of participating in serious organized crime is a serious security concern and cannot avail himself of the argument that he should be treated specially because he has not yet been convicted of this particular crime." - See paragraphs 943 to 953.

Prisons - Topic 1109

Administration - Prisoners' rights - Searches - General - [See Civil Rights - Topic 1215 ].

Prisons - Topic 1544

Discipline - Inmates - Offences - Acts which prejudice institutional discipline or good order - [See Civil Rights - Topic 3107 ].

Cases Noticed:

Trang et al. v. Edmonton Remand Centre (Director) et al. (2005), 363 A.R. 167; 343 W.A.C. 167; 2005 ABCA 66, refd to. [para. 5].

Trang et al. v. Edmonton Remand Centre (Director) et al. (2007), 412 A.R. 215; 404 W.A.C. 215; 2007 ABCA 263, refd to. [para. 5].

R. v. Monkhouse (1988), 83 A.R. 62; 56 Alta. L.R.(2d) 97 (C.A.), refd to. [para. 44].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201, refd to. [para. 56].

Alberta v. Alberta Union of Provincial Employees, [1999] A.G.A.A. No. 74, refd to. [para. 57].

R. v. Munoz (K.M.) (2006), 411 A.R. 257; 2006 ABQB 901, refd to. [para. 60].

R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236; 2000 SCC 18, refd to. [para. 133].

MacCaud v. Beaver Creek Correctional Camp, [1969] 1 O.R. 373; 2 D.L.R.(3d) 545 (C.A.), refd to. [para. 139].

Martineau and Butters v. Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118; 14 N.R. 285; 74 D.L.R.(3d) 1, refd to. [para. 141].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [para. 157].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201; 2001 SCC 83, refd to. [para. 320].

Warriner v. Kingston Penitentiary Disciplinary Tribunal, [1991] 2 F.C. 88; 39 F.T.R. 285 (T.D.), refd to. [para. 322].

Jackson v. Joyceville Penitentiary Disciplinary Tribunal, [1990] 3 F.C. 55; 32 F.T.R. 96 (T.D.), refd to. [para. 322].

R. v. Chan (A.H.) et al. (2003), 342 A.R. 201; 2003 ABQB 759, refd to. [para. 520].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 938].

R. v. Jones (2006), 71 W.C.B.(2d) 20 (Ont. Sup. Ct.), refd to. [para. 940].

R. v. Permesar, [2003] O.J. No. 5420 (Sup. Ct.), refd to. [para. 940].

R. v. Prince, 2006 ONCJ 349, refd to. [para. 940].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 943].

Sauvé v. Canada (Chief Electoral Officer) et al., [2002] 3 S.C.R. 519; 294 N.R. 1; 2002 SCC 68, refd to. [para. 943].

R. v. De Elespp (A.) (2001), 321 A.R. 1; 2001 ABQB 905, refd to. [para. 944].

Maltby et al. v. Saskatchewan (Attorney General) et al. (1982), 20 Sask.R. 366; 2 C.C.C.(3d) 153 (Q.B.), appeal quashed (1984), 34 Sask.R. 177; 13 C.C.C.(3d) 308 (C.A.), refd to. [para. 946].

Criminal Trial Lawyers' Association et al. v. Alberta (Solicitor General) et al. (2004), 364 A.R. 109; 2004 ABQB 534, refd to. [para. 947].

McIntyre et al. v. Ontario (Minister of Correctional Services) et al. (2000), 134 O.A.C. 40; 186 D.L.R.(4th) 543 (Div. Ct.), refd to. [para. 947].

R. v. Hall (D.S.), [2002] 3 S.C.R. 309; 293 N.R. 239; 165 O.A.C. 319; 2002 SCC 64, refd to. [para. 948].

May et al. v. Ferndale Institution et al., [2005] 3 S.C.R. 809; 343 N.R. 69; 220 B.C.A.C. 1; 362 W.A.C. 1; 2005 SCC 82, refd to. [para. 954].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 956].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 957].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 957].

R. v. Goltz, [1991] 3 S.C.R. 485; 131 N.R. 1; 5 B.C.A.C. 161; 11 W.A.C. 161, refd to. [para. 960].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 967].

R. v. Luxton, [1990] 2 S.C.R. 711; 112 N.R. 193; 111 A.R. 161, refd to. [para. 960].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 961].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 975].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 976].

Munoz et al. v. Edmonton Remand Centre (Director) (2004), 369 A.R. 35; 2004 ABQB 769, refd to. [para. 976].

R. v. Dyck, [1965] 1 C.C.C. 171 (Man. C.A.), refd to. [para. 990].

R. v. Miller and Cockriell, [1977] 2 S.C.R. 680; 11 N.R. 386, refd to. [para. 990].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [para. 990].

Bell v. Wolfish (1979), 441 U.S. 520, refd to. [para. 992].

Soenen v. Edmonton Remand Centre (Director) et al. (1983), 48 A.R. 31 (Q.B.), refd to. [para. 993].

Rhodes v. Chapman (1981), 452 U.S. 337, refd to. [para. 996].

Hutto v. Finney (1978), 437 U.S. 678, refd to. [para. 996].

R. v. Digiuseppe, [2007] A.J. No. 844 (Q.B.), refd to. [para. 998].

R. v. Buggins (W.N.), 2002 ABQB 90, refd to. [para. 998].

R. v. Whittaker (V.G.) (2001), 301 A.R. 136; 2001 ABQB 873, refd to. [para. 998].

Trang et al. v. Edmonton Remand Centre (Director) et al. (2001), 298 A.R. 149; 2001 ABQB 659, refd to. [para. 1004].

Collin et al. v. Kaplan et al. (1982), 2 C.R.R. 352 (F.C.T.D.), refd to. [para. 1004].

Piche et al. v. Canada (Solicitor General) et al. (1984), 17 C.C.C.(3d) 1 (F.C.T.D.), affd. (1989), 98 N.R. 148; 47 C.C.C.(3d) 495 (F.C.A.), refd to. [para. 1004].

R. v. K.R.P., [1994] B.C.J. No. 2405 (Prov. Ct.), refd to. [para. 1104].

R. v. Sanchez (1996), 34 C.R.R.(2d) 368 (Ont. C.A.), refd to. [para. 1007].

Gwynne v. Canada (Minister of Justice) (1998), 103 B.C.A.C. 1; 169 W.A.C. 1 (C.A.), refd to. [para. 1009].

R. v. Chan (N.C.) (2005), 387 A.R. 123; 2005 ABQB 615, refd to. [para. 1030].

R. v. Olson (1987), 22 O.A.C. 287; 62 O.R.(2d) 321 (C.A.), affd. [1989] 1 S.C.R. 296; 96 N.R. 223; 33 O.A.C. 369, refd to. [para. 1035].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 1064].

Skurstenis v. Jones, [2000] CA 11QL - 289 (11th Cir.), refd to. [para. 1071].

Hurley v. Ward (1978), 584 F.2d 609 (2nd Cir.), refd to. [para. 1071].

Hodges v. Stanley (1983), 712 F.2d 34 (2nd Cir.), refd to. [para. 1071].

Act Up!/Portland v. Bagley, 1995 U.S. App. LEXUS 15810 (9th Cir.), refd to. [para. 1071].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241, refd to. [para. 1072].

Weatherall v. Canada (Attorney General), [1988] 1 F.C. 369; 11 F.T.R. 279 (T.D.), revd. [1989] 1 F.C. 18; 86 N.R. 168 (C.A.), refd to. [paras. 1072, 1073].

R. v. Brown (1998), 164 C.R.R.(2d) 1 (Ont. C.J.), refd to. [para. 1075].

Hanna v. Matsqui Institution Disciplinary Court (1990), 36 F.T.R. 134 (T.D.), refd to. [para. 1079].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 1103].

P.A.B. v. Children's Foundation et al., [1999] 2 S.C.R. 534; 241 N.R. 266; 124 B.C.A.C. 119; 203 W.A.C. 119, refd to. [para. 1106].

E.B. v. Order of the Oblates of Mary Immaculate (B.C.) et al., [2005] 3 S.C.R. 45; 340 N.R. 202; 217 B.C.A.C. 1; 358 W.A.C. 1; 2005 SCC 60, refd to. [para. 1106].

Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; 118 N.R. 340, refd to. [para. 1111].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 1111].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75, refd to. [para. 1117].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 1117].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 1117].

Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2009] 1 S.C.R. 222; 384 N.R. 203, refd to. [para. 1118].

Morrow et al. v. Zhang et al. (2009), 454 A.R. 221; 455 W.A.C. 221; 2009 ABCA 215, refd to. [para. 1120].

Hadzic v. Pizza Hut Canada, [1999] B.C.H.R.T.D. No. 44, refd to. [para. 1124].

Dhanjal v. Air Canada, [1996] C.H.R.D. No. 4, refd to. [para. 1125].

Pillai v. Lafarge Canada Inc., [2003] B.C.H.R.T.D. No. 26, refd to. [para. 1128].

Hashimi v. International Crowd Management Inc., [2007] B.C.H.R.T.D. No. 66, refd to. [para. 1128].

Dastghib v. Richmond Auto Body Ltd., [2007] B.C.H.R.T.D. No. 197, refd to. [para. 1128].

Peters v. United Cabs of Victoria Ltd., [1988] B.C.C.H.R.D. No. 9, refd to. [para. 1128].

King v. Bura, [2004] O.H.R.T.D. No. 9, refd to. [para. 1128].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, dist. [para. 1136].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 1139].

R. v. Lunn (H.V.) (1993), 19 C.R.R.(2d) 20 (C.M.A.C.), leave to appeal denied [1994] 1 S.C.R. vii; 172 N.R. 319, refd to. [para. 1140].

R. v. Jones, 2002 CMAC 11, refd to. [para. 1140].

Howard v. Stony Mountain Institution Inmate Disciplinary Court, [1984] 2 F.C. 642; 57 N.R. 280; 45 C.R.(3d) 242 (F.C.A.), refd to. [para. 1140].

Smith v. Fort Saskatchewan Correctional Centre (Director) (2002), 325 A.R. 90; 2002 ABQB 1044, refd to. [para. 1140].

RSJ Holdings Inc. v. London (City), [2007] 2 S.C.R. 588; 364 N.R. 362; 226 O.A.C. 375; 2007 SCC 29, refd to. [para. 1146].

Geary v. Edmonton Remand Centre (Director) et al. (2004), 350 A.R. 143 (Q.B.), refd to. [para. 1148].

R. v. Q.H.T., 2004 ABQB 526, refd to. [para. 1148].

Libo-on v. Fort Saskatchewan Correctional Centre (Director) et al. (2004), 362 A.R. 231; 32 Alta. L.R.(4th) 128; 2004 ABQB 416, refd to. [para. 1148].

Authors and Works Noticed:

Coyle, Andrew, A Human Rights Approach for Prison Management: Handbook for Prison Staff (2002), pp. 63 to 64 [para. 161].

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.), p. 55-11 [para. 1112].

Johnson, Sara, Custodial Remand in Canada, 1986/76 to 2000/01, in Statistics Canada Catalogue No. 85-002-XIE, Nov. 23, No. 7, p. 5 [para. 135].

Kellough, G., and Wortley, S., Remands for Plea: Bail Decisions and Plea Bargaining as Commensurate Decisions (2002), 42 Brit. J. Criminal 186, generally [para. 135].

Tarnopolsky, W.S., Just Deserts or Cruel and Unusual Treatment or Punishment? Where Do We Look for Guidance? (1978), 10 Ott. L. Rev. 1, pp. 32 to 33 [para. 988].

Trotter, Gary, The Law of Bail in Canada (2nd Ed. 1999), p. 37 [para. 133].

Counsel:

T.M. Engel and Nathan J. Whitling, for the applicants;

P.J. Faulds, Q.C., G.A. Harding, Q.C., and C.J. Pratt, for the respondent.

This application was heard on December 2-3, 12, and 15-16, 2008, before Marceau, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 8, 2010.