Court of Appeal for Ontario

Date: December 13, 2019

Docket: C66491

Judges: Hourigan, Brown and Paciocco JJ.A.

Between

Donald Earhart Applicant (Appellant)

and

The Attorney General of Canada Respondent (Respondent)

Counsel:

• Ian B. Kasper, for the appellant
• Derek Edwards, for the respondent

Heard: September 20, 2019

Appeal for the order of Justice Kenneth G. Hood of the Superior Court of Justice dated November 29, 2018, with reasons reported at 2018 ONSC 7160.

Brown J.A.:

I. OVERVIEW

[1] In late May 2018, the appellant, Donald Earhart, was serving a life sentence for first degree murder at the Bath Institution (the "Institution"), a medium security prison. Two fellow inmates complained that Earhart assaulted them on May 25 and 26, 2018.

[2] As a result, on May 28, 2018 Earhart was transferred on an emergency basis to Millhaven Institution, a maximum security institution, pursuant to s. 29 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the "CCRA") and s. 13 of the CCRA Regulations, SOR/92-620. Earhart was also given notice that a recommendation had been made to raise his security classification from medium to maximum security.

[3] Earhart was then given the opportunity to make representations regarding his involuntary transfer, as required by the CCRA legislative regime: CCRA Regulations, s. 13.

[4] On July 10, 2018 the Warden of the Institution rendered two decisions: one increased Earhart's security classification from medium to maximum security; the other approved his emergency involuntary transfer to Millhaven Institution.

[5] On September 11, 2018, Earhart commenced an application for habeas corpus, with certiorari in aid, seeking an order that he be returned to a medium security prison. The application judge dismissed Earhart's application.

[6] Earhart appeals. He argues that the application judge committed two reversible errors: (i) in respect of Earhart's claims that the Institution acted unfairly by breaching the CCRA's information disclosure requirements, the application judge applied the wrong legal test and failed to rule on some of the Institution's privilege claims; and (ii) the application judge erred in concluding that the Warden's reclassification decision was reasonable.

[7] For the reasons set out below, I would dismiss the appeal.

II. THE EVENTS AT THE BATH INSTITUTION

[8] The application judge's reasons provide a succinct and accurate summary of events. I shall draw on them, inserting at points an explanation of elements of the CCRA statutory regime that guided the process leading up to the Warden's decisions.

[9] As described by the application judge at para. 12, in late May 2018 the staff of the Institution were advised that Earhart had assaulted two other inmates:

On May 27, 2018 an inmate at Bath Institution [hereafter "Inmate 1"] contacted security staff advising that he had been assaulted by Mr. Earhart on May 25, 2018. Mr. Earhart was placed in voluntary lockup while [the Correctional Service of Canada ("CSC")] investigated. During the course of CSC's initial investigation into the first assault a second inmate [hereafter "Inmate 2"] said that he had been assaulted by Mr. Earhart on May 26, 2018.

[10] An investigation into the allegations was launched. The initial stages involved the following events, described at paras. 13-16:

CSC determined during the course of this initial investigation that there were reasonable grounds to conclude Mr. Earhart had committed these two assaults, his security classification should be increased to maximum and that as a result he be transferred to Millhaven Institution, the only viable maximum security institution in Ontario.

On May 29, 2018 Security Intelligence Officer Stratford conducted an investigation and prepared a summary of this investigation or gist to CSC which gist was included in the Assessment for Decision dated May 29, 2018 whereby Mr. Earhart's security classification was increased to maximum. As part of the process, Mr. Earhart was interviewed by his parole officer. He denied committing any assaults.

Also, as disclosed in the Assessment for Decision, not only were the two alleged assaults considered, Mr. Earhart's criminal history, institutional adjustment and history at various institutions including his interaction with staff and other inmates, and his involvement in various programs were also considered. The Assessment for Decision is detailed and consists of 25 pages of text, along with a four page addendum.

The Assessment for Decision was provided to Mr. Earhart on May 30, 2018 along with a Notice of Involuntary transfer [dated May 30, 2018] which in effect provided a synopsis of the Assessment for Decision and the steps taken by CSC in concluding that Mr. Earhart's security classification should be increased.

[11] The Assessment for Decision included a summary of the allegations of assault made by the two inmates, Earhart's Aboriginal social history, a risk assessment analysis, and a lengthy inmate security level review that canvassed his behaviour and program activities while detained at various federal penitentiaries across the country. The Assessment for Decision recommended increasing Earhart's Institutional Adjustment score from moderate to high, indicating that he requires a high degree of supervision and control within the penitentiary. The Assessment left unchanged his scores for Escape Risk (moderate) and Public Safety (high). The Assessment stated:

EARHART requires a high degree of supervision and control within an institutional setting and has demonstrated difficulties in the area of institutional adjustment. Due to his problematic and violent behaviour which is suggestive that he is currently engaged in his offence cycle, the open egress, responsibility based environment at Bath Institution does not offer the highly structured environment that EARHART requires. Maximum security inmates are expected to interact effectively and responsibly while subject to constant and direct supervision and demonstrate a minimum interest in participating in their Correctional Plan. An emergency involuntary transfer to Millhaven Institution for the purpose of ensuring the institutional security is being recommended at this juncture and Millhaven Institution is the only viable maximum security institution in Ontario.

[12] The Notice of Involuntary Transfer summarized the circumstances of the assaults alleged by the two other inmates and the recommendation of the Institution's Case Management Team to increase Earhart's security classification to maximum.

[13] Section 13(2) of the CCRA Regulations establishes a process by which an inmate transferred on an emergency basis to a higher-security prison can make after-the-fact representations about his transfer. It provides:

13(2) Where the Commissioner or a staff member designated in accordance with paragraph 5(1)(b) determines that it is necessary to immediately transfer an inmate for the reasons set out in subsection (1), the institutional head of the penitentiary to which the inmate is transferred or a staff member designated by that institutional head shall

(a) meet with the inmate not more than two working days after the transfer to explain the reasons for the transfer and give the inmate an opportunity to make representations with respect to the transfer in person or, if the inmate prefers, in writing;

(b) forward the inmate's representations to the Commissioner or to a staff member designated in accordance with paragraph 5(1)(b); and

(c) give the inmate, within five working days after the final decision, written notice of the final decision respecting the transfer and the reasons for the decision.

[14] For any process in which an inmate is entitled to make representations, such as a transfer to a higher-security prison, CCRA s. 27 creates information disclosure requirements. Whether the Institution complied with those requirements lies at the heart of Earhart's claim of procedural unfairness. Sections 27(1) and (2) state:

27(1) Where an offender is entitled by this Part or the regulations to make representations in relation to a decision to be taken by the Service about the offender, the person or body that is to take the decision shall, subject to subsection (3), give the offender, a reasonable period before the decision is to be taken, all the information to be considered in the taking of the decision or a summary of that information.

(2) Where an offender is entitled by this Part or the regulations to be given reasons for a decision taken by the Service about the offender, the person or body that takes the decision shall, subject to subsection (3), give the offender, forthwith after the decision is taken, all the information that was considered in the taking of the decision or a summary of that information.

[15] Earhart provided a 21-page handwritten rebuttal on June 4, 2018, and on June 10, 2018, his counsel provided a five-page opinion letter to Legal Aid Ontario concluding that the increase to Earhart's security classification was unlawful. Earhart included this letter as part of his ongoing rebuttal.

[16] In his rebuttal, Earhart: (i) denied hitting Inmate 1; (ii) admitted striking Inmate 2 but stated it was done in self-defence; (iii) stated that CCTV video footage would corroborate his story; and (iv) identified a number of other inmates whom Institution staff should interview as they would support Earhart's version of events. Earhart also complained that the Assessment for Decision did not include reliability indicators, or codes, for the information obtained during the investigation.

[17] On June 20, 2018, a Security Intelligence Officer at the Institution, Charles Stratford, prepared Memo #21, which was 13 pages in length. Memo #21 repeated the information obtained from Inmates 1 and 2 (whom it named), set out the information obtained from the interviews conducted with inmates identified by Earhart in his rebuttal, together with the writer's assessment as to whether the information from the other inmates supported Earhart's version of events, and provided a summary of Stratford's review of CCTV footage. Memo #21 also assigned to the information obtained from all inmates one of the four reliability codes set out in Commissioner's Directive 568-2, "Recording and Sharing of Security Information and Intelligence": Unknown Reliability; Doubtful Reliability; Believed Reliable; and Completely Reliable. I will return to this Directive later in these reasons. Memo #21 was given to Earhart.

[18] In Memo #21, SIO Stratford stated that: "[T]he offenders that EARHART requested statements from, provided no supporting evidence to his claim of innocence. Additionally, the statements offender EARHART made within his written rebuttal, contradict his original statement of events."

[19] The final steps in the process leading up to the Warden's final decision were described as follows by the application judge, at paras. 18 and 19:

On June 28, 2018 Mr. Earhart provided a second rebuttal. This one was again handwritten and consisted of 12 pages. In it Mr. Earhart, among other things, complained of the CSC investigation and the information provided to him. He suggested others to be interviewed, commented on the lack of appropriate exculpatory CCTV footage and critiqued the stories given by others. On June 28, 2018 the warden had a meeting with Mr. Earhart where he provided a verbal rebuttal to his increased security classification and transfer.

On July 5, 2018 SIO Stratford prepared Memo #22, which was 2½ pages in length and responded to some of the matters raised in Mr. Earhart's second rebuttal.

[20] Memo #22 contained a description and explanation of the reliability codes set out in the Commissioner's Directive 568-2.

III. THE WARDEN'S DECISIONS

[21] On July 9, 2018 the Warden issued two decisions. In her Offender Security Level (or security reclassification) decision, the Warden was satisfied that the evidence demonstrated Earhart had physically assaulted the two inmates. Although the security assessment test suggested a medium security classification, the Warden approved maximum security "given case specifics with ratings of High Institutional Adjustment, Moderate Escape Risk and High Risk to Public Safety." She concluded:

[T]here are no reasonable alternatives to transfer to maximum security at this juncture. EARHART has physically assaulted two offenders in a responsibility-based, small-group living environment where the behavioural expectations [are] the capacity to manage responsibility for their own behaviour with minimal staff.

[22] The Warden's decision regarding Earhart's involuntary transfer to Millhaven Institution considered the same information set out in her security reclassification decision, albeit in more detail. The Warden was satisfied the evidence demonstrated that Earhart had physically assaulted the two inmates. She continued:

This conduct does not meet the behavioural norms expected of inmates at medium security. His reassessed security requirements indicate that he requires an institutional environment which is highly structured in which individual or group interaction is subject to constant and direct supervision.

Therefore, I am approving the emergency involuntary transfer to Millhaven Institution. Emergency Involuntary Transfer is Approved.

[23] I will consider the decisions in more detail during the analysis of Earhart's specific grounds of appeal.

IV. THE CCRA REGIME FOR WITHHOLDING INFORMATION FROM AN INMATE

[24] One final piece of background information is required to provide the context for some of Earhart's grounds of appeal.

[25] The decisions of the Warden, as well as Memos #21 and 22, state that some information was withheld from Earhart pursuant to CCRA s. 27(3), which forms part of the statutory regime dealing with the information to be provided to offenders. That sub-section states:

27(3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosure of information under subsection (1) or (2) would jeopardize

(a) the safety of any person,

(b) the security of a penitentiary, or

(c) the conduct of any lawful investigation,

the Commissioner may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified in paragraph (a), (b) or (c).

[26] In Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, the Supreme Court observed that if a prison chooses to withhold from an inmate information upon which it relies in making a decision, the onus is on the decision-maker to invoke CCRA s. 27(3) and justify its invocation: at para. 86. If it fails to do so, and the decision-maker relies on withheld information without justifying its non-disclosure under s. 27(3), the decision likely will be procedurally unfair and unlawful: at paras. 89, 92.

V. ISSUES ON APPEAL

[27] Earhart submits that the Warden's decisions were based on key information kept secret from him. Although the Institution made sweeping, non-specific privilege claims on virtually every piece of evidence, it never offered case-specific reasons for withholding the information. As a result, it was impossible for Earhart to challenge the claims made against him or discern how the Warden came to accept that the assaults occurred, rendering her decisions unfair and unreasonable.

[28] More specifically, Earhart contends that the application judge erred by:

(i) applying an incorrect legal test for determining whether a breach of the statutory disclosure obligation under CCRA s. 27 had occurred;

(ii) failing to analyze or rule on whether the Institution had proven that its claims of privilege under s. 27(3) of the CCRA were justified; and

(iii) concluding that the reclassification decision was reasonable as he misapprehended the evidence on the Warden's reasons for decision.

[29] As the first two grounds of appeal concern the adequacy of the Institution's disclosure under CCRA s. 27, I will deal with them together.

VI. STANDARD OF REVIEW

[30] The question for this court to decide is whether the application judge identified the appropriate standard of review and applied it properly. This court, in effect, steps into the shoes of the lower court to focus on the administrative decision: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-47.

[31] In the context of an application for habeas corpus, once the inmate has demonstrated that there was a deprivation of liberty and casts doubt on the reasonableness of the deprivation, the onus shifts to the respondent authorities to prove that the transfer was reasonable given all the circumstances: Khela, at para. 77. The standard for determining whether the decision-maker complied with the duty of procedural fairness is correctness: Khela, at para. 79.

VII. FIRST ISSUE: DID THE INSTITUTION COMPLY WITH THE DISCLOSURE REQUIREMENTS OF CCRA s. 27?

A. The Governing Principles

[32] An unlawful deprivation of liberty for purposes of habeas corpus may result if there has been a breach of procedural fairness leading to the decision to transfer the inmate to a higher security prison or if the decision is not reasonable: Khela, at paras. 52 and 65. To ensure that such a transfer decision is procedurally fair, the correctional authorities must meet the statutory disclosure requirements: at para. 98.

[33] CCRA s. 27(1) provides that where an inmate is entitled by regulations to make representations, as Earhart was entitled to do in this case, the decision-maker must give him "all the information" to be considered in taking a final decision regarding the transfer, subject only to s. 27(3): Khela, at para. 81. Section 27 "guides the decision maker and elaborates on the resulting procedural rights": at para. 82. Khela highlights three distinctive characteristics of the CCRA s. 27 disclosure regime:

(i) CCRA s. 27 disclosure is not tantamount to the disclosure required by R. v. Stinchcombe, [1991] 3 S.C.R. 326. The section does not require correctional authorities to produce evidence in their possession that was not taken into account in the transfer decision, only the evidence that was considered: at para. 83; see also May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 91;

(ii) The requirement that the inmate be provided with "all the information" can be satisfied by providing him with "a summary of that information", as provided by CCRA s. 27(1): at paras. 81 and 83; and

(iii) If the warden withholds information from the inmate on the basis of s. 27(3), the onus is on the decision-maker to invoke the provision and prove that there were reasonable grounds to believe that disclosure of the information would jeopardize the security of the prison, the safety of any person, or the conduct of an investigation. Where s. 27(3) is invoked, the warden is in the best position to determine whether such a risk could in fact materialize and, as a result, is entitled to a margin of deference on this point: Khela, at paras. 86 and 89.

[34] If correctional authorities fail to comply with the s. 27 regime, a reviewing court may find that the transfer decision was procedurally unfair, and the deprivation of the inmate's liberty will not be lawful: at para. 85. This is a "legitimate ground" upon which an inmate may apply for habeas corpus: Khela, at para. 85. Nevertheless, not all breaches of the CCRA or its regulations will be unfair: at para. 90. It will be up to the reviewing judge to determine whether a given breach has resulted in procedural unfairness: at para. 90. For instance, if s. 27(3) has been invoked erroneously or if there was a strictly technical breach of the statute, the reviewing judge must determine whether that error or that technicality rendered the decision procedurally unfair: at para. 90.

[35] Earhart's submissions concerning procedural unfairness must be assessed in the light of these principles.

B. Application of the Governing Principles

Earhart's First Argument: The Application Judge Applied the Wrong Legal Test

[36] Earhart first argues that the application judge used the wrong legal test to assess his complaint about the inadequacy of the Institution's disclosure of information to him. Instead of considering whether the Institution breached CCRA s. 27's disclosure requirements, the application judge only considered whether Earhart had received sufficient information "to respond to the case the prison chose to tell him about". According to Earhart, that was an error of law.

[37] I am not persuaded by this submission. It is true that at para. 7 of his reasons, the application judge wrote: "If the decision-maker fails to provide information sufficient to allow an offender to know the case they have to meet to challenge a deprivation of liberty, the decision will be void for lack of jurisdiction". In support of that proposition, the application judge cited May, in which the Supreme Court stated, at para. 92:

In the administrative context, the duty of procedural fairness generally requires that the decision-maker discloses the information he or she relied upon. The requirement is that the individual must know the case he or she has to meet. If the decision-maker fails to provide sufficient information, his or her decision is void for lack of jurisdiction.

[38] While the application judge's reason did not incorporate the first sentence of para. 92 in May, that omission does not lead to the conclusion that the application judge employed the wrong legal test in his review exercise. When his reasons are read as a whole, it is clear they were written to address Earhart's key argument – namely, that the process was procedurally unfair because the Institution withheld information considered by the Warden in her decisions without meeting the test in CCRA s. 27(3) for justifying the withholding of such information. Accordingly, I am not persuaded that the application judge's analysis rested on incorrect legal principles.

[39] Moreover, by acknowledging that Earhart had received adequate information to respond to the case against him, the application judge was not importing an erroneous principle into his decision. One goal of procedural fairness is to ensure that that an individual knows the case he must meet: May, at para. 92; Khela, at para. 94.

Earhart's Second Argument: The Disclosure of Reliability Assessments

[40] The Assessment for Decision contained information obtained from Inmates 1 and 2. Memo #21 also included such information, together with information from the inmates whom Earhart asked the Institution to interview. The Assessment did not assign any reliability codes to the information; Memo #21 did.

[41] Earhart contends that the Institution failed to provide him with sufficient information to challenge the reliability assessments made by the Institution with respect to the information relied upon by the Warden, thereby breaching the informational disclosure requirements of CCRA s. 27.

[42] The CCRA s. 27 disclosure regime includes an information reliability assessment scheme. Commissioner's Directive 568-2 creates standards and codes for the evaluation of information in a security intelligence report, such as Memo #21 authored by SIO Stratford. The Directive provides that the evaluation of information for intelligence purposes consists of a process whereby "the reliability of information is examined on the basis of the credibility of the source and the validity of the information": at Annex B, para. 1. As well, "[i]n addition to assessing the reliability of the information, an assessment of the reliability of each source will be made utilizing the codes outlined below", namely: Unknown Reliability; Doubtful Reliability; Believed Reliable; and Completely Reliable: at Annex B, para. 4.

[43] Directive 568-2 explains the standard, or basis, underlying the assignment of a particular code to specific information, at Annex B, para. 5:

The reliability standards and the codes to be used on the Security Intelligence Reports are as follows:

a. Unknown Reliability (Court) U/R or U/R/C

The Security Intelligence Officer, at the time of recording the information, is unable to assess the reliability of the information received.

b. Doubtful Reliability (Court) D/R or D/R/C

Refers to information which is believed unlikely at the time, although the element of possibility is not excluded.

c. Believed Reliable (Court) B/R or B/R/C

Refers to information that gives every indication that it is accurate, but has not been confirmed. The information somewhat agrees with the general body of intelligence, is reasonable and consistent with other information on the same subject.

d. Completely Reliable (Court) C/R or C/R/C

Refers to information that is substantiated or confirmed by one or more independent sources. The information is logical and consistent with other corroborated information on the same subject.

[44] As noted, Memo #21 assigned reliability codes to the information disclosed, and Memo #22 reproduced the explanation of the reliability codes set out in Commissioner's Directive 568-2. Both were given to Earhart. As a result, with the exception of information withheld pursuant to CCRA s. 27(3), Earhart was provided with the information obtained from inmates during the investigation, or summaries thereof, together with the reliability code assigned to the information.

[45] Nevertheless, Earhart contends that that level of disclosure did not meet the requirements of the CCRA s. 27 regime because he was entitled to know on what basis a reliability code was assigned to specific information.

[46] In fact, Earhart was provided with such information. Commissioner's Directive 568-2 explains the basis, or "standard", upon which a particular reliability code is assigned to specific information. Memo #22 provided Earhart with complete information about those standards. Disclosure of the reliability code assigned to specific information, as was done in Memo #21, enables an inmate to challenge the reasonableness of a decision based, in part, on the reliability codes assigned to the various pieces of information the decision-maker relied upon. Earhart was aware of the reliability codes assigned to the information obtained from the inmates and, in his rebuttals, he disputed the reliability of much of their information.

[47] Earhart advances a second argument, which is a specific instance of the first: the Institution failed to provide him with the evidence and reasons supporting the "Believed Reliable" reliability code assigned to some of Inmate 1's information. Since the Warden's decision to believe Inmate 1's version of events over Earhart's played a central role in her ultimate decisions, Earhart submits that procedural fairness required disclosure to him of the basis for the reliability assessment assigned to Inmate 1's information. In addition, Earhart argues that the Institution failed to justify under CCRA s. 27(3) the withholding of information about how the reliability code for Inmate 1's statement was determined.

[48] I am not persuaded by these submissions. My first reason repeats the one just given: Commissioner's Directive 568-2 explains the standard, or basis, for the assignment of a particular reliability code to specific information from an inmate.

[49] However, Earhart accurately points out that Memo #21 invokes s. 27(3) in respect of the reliability code assigned to some information from Inmate 1. To put the issue in context, Memo #21 provides the most comprehensive record of the information obtained from Inmate 1. The memo assigned a reliability code of "Unknown Reliability" to information provided by Inmate 1 about the assault during the two interviews conducted with him on May 27, 2018. In respect of that information, Memo #21 states:

Some of the information that was shared during this interview is being withheld as per subsection 27(3) of the CCRA, Commissioner's Directive (C.C) 701 and Policy Bulletin 451 because there are reasonable grounds to believe that disclosure of that information would jeopardize the safety of one or more persons and the security of the institution.

[50] A third interview of Inmate 1 was conducted by SIO Stratford on May 28, 2018. The information provided by Inmate 1 at that time was assigned a reliability code of "Believed Reliable". Section 27(3) was again invoked, but in different terms:

Some of the information shared during this interview and the process in determining the Reliability Code of [Inmate 1's] statement, is being withheld as per subsection 27(3) of the CCRA, Commissioner's Directive (C.C) 701 and Policy Bulletin 451 because there are reasonable grounds to believe that disclosure of that information would jeopardize the safety of one or more persons and the security of the institution.

[51] Earhart argues that the application judge failed to determine whether the Institution had justified its invocation of s. 27(3) in accordance with the process set out in Khela, at paras. 86 to 89.

[52] I disagree.

[53] In accordance with the procedure directed in Khela at para. 87, the respondent filed with the application judge a confidential affidavit from Gail Shkwarek, an SIO at the Institution who had supervised the work of SIO Stratford. Her affidavit identified information withheld pursuant to CCRA s. 27(3). The withheld information was contained in Statement/Observation 2018-423-182 prepared by SIO Stratford and referred to by the Warden in her decisions. Most of the withheld information identified in the confidential affidavit concerned information obtained by SIO Stratford in his interviews with Inmates 1 and 2, as well as his review of some CCTV footage.

[54] The application judge reviewed the confidential affidavit and the withheld information, and wrote, at para. 21:

While some specific information was withheld from Mr. Earhart, such as the CCTV footage itself and specifics of some of SIO Stratford's investigations this was done pursuant to s. 27(3) of the [CCRA] ("the Act"). Under s. 27(3) of the Act the Commissioner, or his or her representative, may withhold information if they have reasonable grounds to believe that disclosure of information would jeopardize the safety of any person or the security of a penitentiary. They are in the best position to determine whether a risk could in fact materialize to the security of the prison or to any person through the release of information. As a result the warden is entitled to a margin of deference on this: Khela, ibid, at para. 89.

[55] Contrary to the submissions of Earhart, I read this portion of the application judge's reasons as directly considering and accepting the Institution's invocation and proof of the information exceptions contained in CCRA s. 27(3). Having reviewed the confidential affidavit, I see no reversible error in the application judge's analysis.

[56] That said, the confidential affidavit of SIO Shkwarek could have been better drafted. As Khela explains, for the Institution to rely on CCRA s. 27(3), it must invoke the section – which was done in this case – and prove that the withholding of any information related to concerns arising from the interests protected by s. 27(3), in this case that there were reasonable grounds to believe that disclosure of the information would jeopardize the safety of one or more persons and the security of the institution. A confidential affidavit filed on a habeas corpus application to justify an institution's invocation of CCRA s. 27(3) should identify the piece or group of withheld information, followed immediately by the evidence justifying its non-disclosure, instead of separating the withheld information from the justificatory evidence, as was done in this case.

[57] Commissioner's Directive 701 provides, in Annex C, that an institution may only withhold as much information as is strictly necessary to protect the interests identified in CCRA s. 27(3): at para. 3. Where information is withheld, an inmate should be provided a "gist" of the withheld information: at paras. 1-2, 4. The Directive states, at para. 2:

A gist conveys the essence of the information to be considered by decision makers and provides sufficient detail to allow the offender to know what the information is about. It must give as much of the information as possible without disclosing information which can legitimately be withheld under the specified criteria for non-disclosure.

[58] The application judge specifically considered whether the Institution had provided Earhart with an adequate "gist" of the withheld information. He concluded, at para. 22, that it had:

In any event, Mr. Earhart was provided with a gist in Memo #21 of what was withheld so as to enable him to respond. He was also provided with a gist of the other concerns with his prison behavior based upon his security file history as set out in Memo #21 at pages 12 and 13. I have reviewed the confidential affidavit of Ms. Shkwarek and Exhibits B and E to J inclusive upon which the gist of the two altercations was based and the gist of this prison behavior was based. The gists given are in my view more than adequate in order to allow Mr. Earhart to know what was alleged against him and for him to respond.

[59] I agree with the application judge that the gists of the withheld information contained in Memo #21 were more than adequate to allow Earhart to know what was alleged against him and to respond. I would also observe that the substance of much of the withheld information in fact was disclosed in the latter part of Memo #21, albeit originating from sources other than Inmates 1 and 2.

[60] The present case differs markedly from the quality of the disclosure at issue in Khela, which the Supreme Court described as "[v]ague statements regarding source information and corroboration": at para. 94. Here, the disclosure made to Earhart identified who made which statements, together with the reliability codes assigned to the information.

[61] As a result, I am satisfied that the Institution met its statutory disclosure obligations regarding the information obtained from inmates and the reliability it attributed to that information.

The CCTV Footage and Photographs

[62] In Memo #21, SIO Stratford reported that "[a]fter viewing the CCTV footage in relation to [Inmate 1's] statement of an assault occurring in the Unit 1 entrance, it was found that there was no CCTV footage of that area." As to the location where Inmate 2 said he was assaulted, SIO Stratford wrote:

[T]he writer was able to verify that EARHART and [Inmate 2] were in the kitchen/washroom area on North A range at the same time between 1230 hrs. and 1330 hrs. [Inmate 2] can be seen entering this area fully clothed, then a brief time later, exited with his shirt and belt now in his left hand with his facial area visibly red. [Inmate 2] then turned around and entered the kitchen/bathroom area again, where he then exited approximately 30 seconds later and proceeded to his cell.

[63] Memo #21 went on to state that some of the CCTV footage information about the reported incidents was being withheld pursuant to CCRA s. 27(3) as "there are reasonable grounds to believe that disclosure of that information would jeopardize the security of the institution."

[64] Earhart submits that the summary of the contents of the CCTV footage breached the disclosure requirements of s. 27 because no case-specific reason was given for withholding the videos, nor did the prison summarize the entirety of the video footage available.

[65] The application judge rejected Earhart's submission, holding at para. 23:

I have also reviewed the CCTV footage which was withheld from Mr. Earhart for general prison security reasons, namely, the position of the CCTV blind spots. While it appeared to me that [Inmate 2] carried his shirt and belt in his right hand as opposed to his left, the balance of the description as contained in Memo #21 at page 5 and summarized in the warden's decision is reasonable when compared against the CCTV footage. Mr. Earhart, despite not seeing the actual video, was able to respond to it.

[66] Having reviewed the CCTV footage filed with the respondent's confidential affidavit, I agree with the application judge's assessment of the adequacy of the gist of the CCTV footage provided to Earhart. As well, the justification offered by the respondent in Memo #22 and its public affidavit for withholding CCTV footage was a reasonable one – i.e., disclosure would reveal camera blindspots that would pose a risk to the institutional security as inmates with knowledge of the blind spots could act away from the supervision of Institution staff. The reasonableness of that justification was underlined by Earhart's sketch of the Unit 1 vestibule area that he included in his first rebuttal. In his sketch, Earhart noted that he did not know if there were cameras pointed in certain directions, underscoring the point made in the confidential affidavit that inmates are often keen to collect information about the camera system. I see no reversible error in the application judge's finding that the respondent made out its CCRA s. 27(3) justification in respect of the CCTV footage.

[67] Dealing with the photographs taken of Inmates 1 and 2, the Assessment for Decision states that when the inmates were interviewed by Institution staff, they had visible signs of an assault and pictures were taken for the incident file. In her security reclassification decision, the Warden noted that SIO Stratford "observed injuries on the two victims when taking their official statements regarding the assaults and that he took photos." A similar statement can be found in her Institutional Transfer decision, as well as a statement that a staff member had observed Inmate 2 had a black eye.

[68] As part of his broader submissions before the application judge that it was unfair he was provided with only summaries of much of the evidence, Earhart observed that "the pictures of the injuries were only described." However, CCRA s. 27(1) permits disclosure to be made by way of a summary of information. Khela holds that a summary suffices for purposes of assessing the procedural adequacy of disclosure: at para. 83. Given the statutory availability of providing a summary of information in the photographs, I see no breach of the CCRA s. 27(1) duty of disclosure. I would also note that in the case of Inmate 2, reliance was placed on how Inmate 2 looked on the CCTV footage. As I have stated, I agree with the application judge that the gist of that information was adequate.

Information Obtained from Earhart and Inmates Other Than Inmates 1 and 2

[69] Earhart advances one additional submission concerning the inadequacy of the Institution's information disclosure. Memo #21 records that some information obtained during interviews with Earhart and several of the other inmates whom he asked the Institution to interview was being withheld pursuant to CCRA s. 27(3)(a) and (b). Earhart submits it was wrong to withhold from him information disclosed during his interview, as obviously he is aware of the information. As well, the other inmates were told that their information would be shared with Earhart, so the Institution could not invoke CCRA s. 27(3) to withhold it.

[70] In her confidential affidavit, Ms. Shkwarek does not set out any information obtained from Earhart or the other inmates interviewed at his request that the Institution was withholding pursuant to CCRA s. 27(3). That leads me to query whether the insertion in Memo #21 of references to CCRA 27(3) at the end of the sections setting out information from other interviewed inmates was boilerplate, not references to information actually withheld. In the result, I am satisfied that nothing turns on this point. The Warden did not indicate that she was relying on any such information in making her decisions. Given that state of the record, I am not persuaded that any procedural unfairness resulted in practice from the CCRA s. 27(3) references included in Memo #21 on this point.

Conclusion

[71] For the reasons set out above, I do not accept Earhart's submission that the application judge erred in concluding that the decision was reached in a procedurally fair manner: at para. 30.

VIII. SECOND ISSUE: DID THE APPLICATION JUDGE ERR BY CONCLUDING THAT THE WARDEN'S RECLASSIFICATION DECISION WAS REASONABLE?

A. The Issue Stated

[72] On this second ground of appeal, Earhart advances two arguments.

[73] First, he contends that the application judge misapprehended the Warden's reasons.

[74] Second, Earhart submits that the Warden's reclassification decision was unreasonable because she failed to explain why she preferred the information given by Inmates 1 and 2 about the assaults over his explanation of events. Since the Warden had described the two assaults as lying "[a]t the root of the decision to remove" Earhart from the Institution, her failure to explain her credibility assessment in respect of the assaults fatally taints her decisions.

[75] Although Earhart's appeal challenges the reasonableness of only the reclassification decision, that decision and the transfer decision inform one another and draw upon the same evidentiary foundation. Some further description of both decisions is required.

B. The Warden's Decisions

[76] In her security reclassification decision, the Warden noted that "[a]t the root of the decision to remove EARHART from Bath is whether he physically assaulted two inmates during the weekend of May 25." In considering that issue, the Warden relied on: the statements of the Inmates 1 and 2; the observations of SIO Stratford, who saw injuries on the two victims when he interviewed them and took photos of the injuries; Earhart's denial of any assault on Inmate 1 but his admission that he struck Inmate 2 in self-defence, after initially denying that he struck Inmate 2 at all; a security risk assessment test that produced a score suggestive of medium security; written submissions from Earhart and his lawyer; SIO Stratford's two memos (Memos #21 and #22), which included information from interviews with several inmates whom Earhart had asked be interviewed; the absence of CCTV footage of the vestibule area where the alleged assault of Inmate 1 took place; what the CCTV footage showed of Inmate 2 leaving the kitchen/bathroom area after the second alleged assault; the failure of the broader interview process to locate any other inmate who witnessed either assault; and an in-person discussion the Warden held with Earhart. The Warden noted that the interviews with other inmates confirmed that Earhart "had been inciting [Inmate 1] on Friday evening."

[77] The Warden then set out her analysis, credibility assessments, and conclusion:

In review of information available, I am satisfied that the evidence has demonstrated that EARHART physically assaulted two offenders as noted above. I have relied on the statements of the two victims who both reported that EARHART assaulted them. I note that the A/SIO observed injuries on the two victims when taking their official statements regarding the assaults and that he took photos. I note that some information has been withheld from EARHART due to the belief that the disclosure of that information would jeopardize the safety of any person as per CCRA section 27(3) (a). EARHART has denied assaulting [Inmate 1] and indicates that his physical assault of [Inmate 2] was done in self-defence. EARHART has attempted to offer a very intricate and convoluted explanation as to how he could not have possibly assaulted [Inmate 1]. This is typical of his pattern of behaviour where he usually minimizes, denies and rationalizes his negative actions. This conduct does not meet the behavioral norms expected of inmates at medium security. His reassessed security requirements indicate that he requires an institutional environment which is highly structured in which individual or group interaction is subject to constant and direct supervision. Institutional Adjustment is now clearly High.

[78] Although the security assessment test suggested a medium security classification, the Warden approved maximum security "given case specifics with ratings of High Institutional Adjustment, Moderate Escape Risk and High Risk to Public Safety." She referred to the Aboriginal history of Earhart's family. The Warden then concluded:

These circumstances are noted but unfortunately, there are no reasonable alternatives to transfer to maximum security at this juncture. EARHART has physically assaulted two offenders in a responsibility-based, small-group living environment where the behavioural expectations [are] the capacity to manage responsibility for their own behaviour with minimal staff.

[79] The Warden's decision regarding Earhart's involuntary transfer to Millhaven Institution considered the same information referenced in her security reclassification decision, albeit in more detail. The Warden was satisfied the evidence demonstrated that Earhart had physically assaulted the two inmates. She continued:

This conduct does not meet the behavioural norms expected of inmates at medium security. His reassessed security requirements indicate that he requires an institutional environment which is highly structured in which individual or group interaction is subject to constant and direct supervision.

Therefore, I am approving the emergency involuntary transfer to Millhaven Institution. Emergency Involuntary Transfer is Approved.

C. Analysis

First Argument: The Application Judge Misapprehended the Warden's Reasons

[80] Earhart submits that the application judge misapprehended the Warden's reasons for reclassifying his security level by ignoring her statement that the assaults were "at the root of the decision to remove" Earhart.

[81] I see no merit in this submission. It ignores the plain language of the application judge's reasons. The application judge commenced his reasonableness review by addressing, at paras. 25 to 27, how the Warden dealt with the issue of the assaults. He did not misapprehend her reasons.

Second Argument: The Warden's Decisions Were Unreasonable

[82] The deferential reasonableness standard applies to a review of the Warden's decisions because security reclassification and involuntary transfer decisions are administrative decisions made by a decision-maker with expertise in the environment of a particular penitentiary. To apply any standard other than reasonableness in reviewing such administrative decisions could well lead, inappropriately, to the micromanagement of prisons by the courts: Khela, at para. 75.

[83] Given that deferential standard of review, I am not persuaded by Earhart's second argument that the Warden's explanation about why she concluded that Earhart had assaulted Inmates 1 and 2 did not meet the reasonableness requirements of justification, transparency, and intelligibility.

[84] The application judge directly addressed this argument at paras. 26 and 27 of his reasons, where he wrote, in part:

The warden's decision does not rely solely on the information categorized as Believed Reliability. Memo #21, which the warden reviewed in coming to her decision, sets out what is considered reliable and the level of reliability. Not everything is categorized. Not all of the information is either of Unknown or Doubtful Reliability. The warden in her decision set out what evidence she relied upon in coming to her decision. Mr. Earhart was unable to show any authority to support the proposition that she was restricted to considering only information of Believed Reliability. Even if he had such authority the information of Believed Reliability, as set out in Memo #21, supported the first assault and, as acknowledged by Mr. Earhart in argument before me, a finding that Mr. Earhart committed the first assault was enough for his increased security classification even if the second assault was rejected by the warden. It is for the warden to weigh all the evidence in the exercise of her discretion. The warden is entitled to deference on the issue of determining whether a given source is reliable: Khela, ibid, para[.] 89.

Mr. Earhart makes a similar argument in saying that the warden's decision is unreasonable because there was no logical reasoning chain in how she came to the conclusion that Mr. Earhart assaulted two inmates. However, she did state how she reached this conclusion. She relied on the statements from the two victims, the fact they both had injuries and Mr. Earhart's intricate and convoluted explanation with respect to [Inmate 1] and Mr. Earhart's changing story with respect to [Inmate 2].

[85] The application judge's reasons incorporate Khela's recognition of the comparative expertise of courts and wardens on the issue of whether an inmate poses a threat to the security of the penitentiary or of the individuals who live and work within it. On this point, wardens possess greater knowledge and practical experience than courts because they have intimate knowledge of that penitentiary's culture and of the behaviour of the individuals inside its walls: at para. 76. As well, the reasons apply Khela's recognition that a warden is in the best position to determine whether a given source is reliable and some deference is owed on this point: at para. 89.

[86] While at the end of the day a warden must explain her determination that results in a restriction of an inmate's residual liberty interest, I agree with the application judge that the Warden did so and that her reasons met the justification, transparency, and intelligibility requirements of the reasonableness standard. Could the Warden have written better sets of reasons? Perhaps. But the legal standard is not perfect reasons, but reasonable ones. As well, when reviewing the way in which the Warden expressed her reasoning, it must be recalled that administrative decision-making is only one of several operational tasks that the Warden is called upon to perform as part of her daily job. Unlike members of administrative tribunals, the Warden is not a full-time adjudicator. Accordingly, I see no basis for appellate interference with the application judge's conclusion that Warden's decisions were reasonable.

IX. DISPOSITION

[87] For the reasons set out above, I would dismiss the appeal.

Released: December 13, 2019

"David Brown J.A."

"I agree. C.W. Hourigan J.A."

"I agree. David M. Paciocco J.A."