Procedural Fairness & ExParte Contact

From Judge Wayne Gorman

In Pratt v. Nova Scotia (Attorney General), 2020 NSCA 39, May 5, 2020, the applicant filed a habeas corpus application seeking to be released from solitary confinement.

The application judge convened a teleconference with the applicant, who was self-represented and counsel for the Attorney-General. The application judge rendered an oral decision dismissing the application, holding that the application was moot.

After rendering the oral decision, the application judge requested additional information from counsel for the Attorney-General. Communication took place between counsel and the judge’s office. The applicant was not informed.

The application judge subsequently filed a written decision addressing the application on its merits.  He relied, in part, on materials not disclosed to the applicant.

An appeal was taken to the Nova Scotia Court of Appeal.

The Court of Appeal allowed the appeal, holding that the manner in which the application “was dispensed with by the lower court was not procedurally fair” (at paragraph 9).  The Court of Appeal concluded as follows (at paragraphs 70 and 71):

Turning to the way the judge gathered and used information after rendering his decision on November 6, 2018, Mr. Pratt’s complaints come as no surprise. Mr. Pratt says the judge’s request for documentation and submissions post decision and his use of those materials to bolster prior reasons—without providing notice or the opportunity for Mr. Pratt to respond—is an obvious violation of due process/natural justice and was prejudicial to Mr. Pratt. Those complaints are warranted.

The written decision bears little resemblance to the judge’s oral decision. The judge proceeded to decide substantive factual and legal issues without any evidence or submissions from Mr. Pratt. For example, the judge concludes Mr. Pratt’s detention after October 29, 2018 was for non-disciplinary reasons. This is a sharp change from the circumstances known during the teleconference on November 6 and appears to be based on records produced without notice to Mr. Pratt by the respondent correctional facility after the application was dismissed. As acknowledged by the respondents, the judge also went on to find the respondents had discharged their burden of proving that the deprivation was lawful. But this issue was not placed before the judge because the application was summarily dismissed without a hearing on the merits. The parties never got to this stage.

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