ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 390/11
DATE: 2012Jan30

BETWEEN:

ALBERTO SUMAN Applicant – and – THE ATTORNEY GENERAL OF CANADA Respondent

John Dillon, for the Applicant

Agnieszka Zaborska, for the Respondent
HEARD: January 23, 2012 at Kingston

TRANMER, j.

Habeas corpus DECISION

NATURE OF THE PROCEEDINGS

[ 1 ] Mr. Suman seeks an Order granting relief in the nature of a Writ of Habeas corpus ad Subjiciendum with Certiorari in Aid thereof directing the Respondent to transfer him from maximum security Kingston Penitentiary (KP) to medium security Fenbrook Institution (FI).

[ 2 ] He submits that the decision to increase his security rating from medium to maximum was not in accordance with the principles of fundamental justice and was arbitrary. He further submits that the decision to transfer him to a maximum security institution was not in accordance with the principles of fundamental justice. He submits that these decisions were in breach of the rules of natural justice and procedural fairness and contrary to Section 7 of the Canadian Charter of Rights and Freedoms .

BACKGROUND FACTS

[ 3 ] The Applicant is 28 years of age, born August 11, 1983.

[ 4 ] He is serving his first federal penitentiary custodial sentence which commenced December 10, 2007, for a term of six years, six months.

[ 5 ] In July of 2010, he was incarcerated at FI. On July 8, 2010, he was involuntarily put into segregation. The Review of Offender’s Segregated Status First Working Day Review described the incident or circumstances leading to the consideration of placement in segregation as follows, “You are suspected of being the perpetrator in a vicious assault with a weapon on another inmate. You are being placed in segregation pending further investigation into the incident.” It is noted that alternatives to administrative segregation were not viable due to the free egress design of the institution. The decision to segregate was made by the warden of the institution.

[ 6 ] On July 8, 2010, the Applicant spoke with his parole officer inquiring as to why he was in segregation. He was shown the above document. He stated that he did not do the assault as alleged. He said he was trying to stay out of trouble so that he could be transferred to minimum.

[ 7 ] On July 30, 2010, he again spoke with his parole officer, who indicated that the Security Intelligence Officer (SIO) would be speaking with him. The parole officer explained that if the investigation vindicated him, there would be a plan to reintegrate him into the population. If the investigation found him to be responsible, he would likely be written up for maximum security. The Applicant said he was innocent of the allegation.

[ 8 ] The Review of Offender’s Segregated Status Institutional Review document is dated August 5, 2010. It recites that on July 13, 2010, at his fifth working day segregation review, it was recommended and confirmed by the warden that he be maintained in segregation pending completion of the SIO investigation and possible transfer options. The investigation has been ongoing. The Applicant appeared in person before the Administrative Segregation Review Board on August 5, 2010. At the hearing, the SIO reported that “the department was satisfied based on information that Mr. Suman was the aggressor in the assault.” Mr. Suman stated that he still did not understand why he was in segregation because he had no institutional charges since being at FI and further that he has never assaulted any inmate. He relied on legal advice not to speak to the authorities without his lawyer present. The Segregation Review Board recommended that he be maintained in segregation pending completion of the SIO investigation and possible transfer options. He was advised of his right to grieve directly to the Deputy Commissioner. The warden concurred with the recommendation that the Applicant be maintained in segregation pending completion of SIO investigation and possible transfer options.

[ 9 ] On August 12, 2010, Mr. Suman spoke to his parole officer about the SIO findings and the next steps. He said he was grieving the decision to place him in segregation and that he did not do what was alleged. His parole officer advised him that he was writing him up for maximum and asked him whether he preferred Millhaven or KP. He stated that he would prefer Millhaven over KP.

[ 10 ] The Applicant spoke to his parole officer again on August 30, 2010. He indicated that he was innocent of the allegation that he had assaulted another inmate. He advised that he had put in an application for voluntary transfer to Collins Bay Institution (CBI), medium security. He advised that he did not want to go to maximum security.

[ 11 ] The Security Reclassifications Scale dated September 9, 2010, prepared by the parole officer and the assistant manager of assessment intervention, rated the Applicant as medium security

[ 12 ] On September 9, 2010, the Applicant's parole officer gave him a copy of the Assessment for Decision (A4D), which was finalized on that date. The purpose of the report was to address Mr. Suman’s offender security level and consideration for a voluntary and involuntary transfer out of FI as a result of the serious incident and subsequent administrative segregation. The report recites that he had been the subject of a security reclassification and that the result was medium. The report recites that the SIO investigated the subject assault incident and found that Mr. Suman was responsible for the attack. The report indicates that the Applicant strongly disagreed that he was responsible and claimed that it was a case of mistaken identity. The report recites that the Applicant provided a Written Rebuttal on September 2, 2010 to the report of the SIO. He wrote that he did not commit the assault. He wrote that the allegations were untrue and pointed out that he had not been street charged, or institutionally charged in regard to the incident. He wrote that being accused and punished for something that he did not do, without any proof of any sort, besides the lies of other inmates, is violating his right. He wrote that the validity of the security intelligence information was not good because it was based on fabrications of other inmates which are unreliable sources of information. He indicated that he did not wish to stay at FI, but that FI should be using the least restrictive measure because of his innocence. He noted that he had submitted a voluntary request for transfer to CBI.

[ 13 ] The A4D, which the Applicant first saw on September 9, 2010, recites that the SIO made the following comments on August 26, 2010. The alleged assault was on inmate Edgar Brown on July 6, 2010. The Applicant was attributed with responsibility “based upon video surveillance and information gathered within the course of an intelligence led investigation.” The assault was premeditated, deliberate and gratuitous. The victim sustained non-serious injury. It is believed that the assault was intended to inflict a more substantial degree of harm. A slashing or stabbing weapon was used and not recovered. The SIO noted that Mr. Suman denied involvement. He noted that a police investigation was continuing, but that it was doubtful that this would lead to criminal charges. He stated that on the totality of the information, there is “overwhelming and justifiable cause” to identify the Applicant's culpability for the assault and to proceed with the administrative managing of his security needs.

[ 14 ] The A4D report reviews the Applicant's institutional adjustment, disciplinary convictions, other incidents, continuation of criminal activities while incarcerated, other administrative interventions, behaviour and program participation, overall institutional adjustment, escape risk factors, and public safety.

[ 15 ] The A4D assessed Mr. Suman as requiring maximum security as a result of the alleged assault incident as an override against his otherwise medium security rating. It stated that as a result of him being found responsible for a vicious assault on another inmate, security reclassification is a maximum and it was decided that the most suitable placement was at KP. His request for voluntary transfer to CBI was denied.

[ 16 ] On the same date, September 9, 2010, the parole officer served the Applicant with Notice of Involuntary Transfer Recommendation (NITR). The Applicant indicated that he would provide a further rebuttal on Monday.

[ 17 ] On September 13, 2010, Mr. Suman, by way of Verbal Rebuttal in a discussion with his parole officer, indicated strong disagreement with the content of the A4D. He said he was innocent of the incident and that he will challenge this in court. He stated that he did not want to go to KP.

[ 18 ] The Referral Decision Sheet for Involuntary Institutional Transfer is dated September 15, 2010. It notes that at that point the Applicant had been in segregation for 68 days and involuntary transfer to maximum was initiated as a desegregation strategy. The document notes the verbal rebuttal made by the Applicant September 13, 2010 as referred to above. The Correctional Intervention Board concludes that it does not find any compelling information contained in the rebuttal to warrant a reassessment and recommended the involuntary transfer to KP be approved. By decision dated September 17, 2010, the acting warden approved the transfer.

[ 19 ] The Referral Decision Sheet for Offender Security Level, on September 15, 2010 recommended security rating of maximum. On September 17, 2010, the warden approved the recommendation and her decision was maximum security rating.

[ 20 ] On September 17, 2010, the Applicant was told by his parole officer that the transfer decision was approved, namely to KP, maximum security.

[ 21 ] On September 20, 2010, the parole officer gave to the Applicant, the Notice of Decision of Involuntary Transfer.

[ 22 ] On September 27, 2010, the Applicant had a further discussion with his parole officer about when he would be transferred. There was to be a segregation review on Thursday.

[ 23 ] On October 1, 2010, Mr. Suman spoke to his parole officer about postponing his parole hearing until January.

[ 24 ] On October 20, 2010, he spoke to his parole officer, who asked him not to check into segregation if he was transferred to KP. Mr. Suman indicated that he was resolved to spend his time in segregation if incarcerated at KP.

[ 25 ] The Applicant swears that a psychologist who visited with him while he was in segregation stated that he saw the video and that the attacker did not look like Mr. Suman. The Respondent submitted no evidence to contradict this assertion.

POSITION OF THE APPLICANT

[ 26 ] The Applicant submits that the prison authorities have an obligation to provide to him sufficient information as to the basis for their decision to place him in segregation and then to transfer him. He submits that the information that he was given, namely that there was a video of the assault and there is informant (Counsel’s word) information implicating him is insufficient at law. He points out that the Respondent has not contradicted or challenged his statement that the psychologist told him that the person in the video does not look like him. He was told absolutely nothing about the informant, such as the reliability of that informant. He notes that it is common knowledge that there are many motivations for an inmate within a penitentiary setting to fabricate lies.

[ 27 ] The Applicant points out that there were no outside criminal charges and no disciplinary charges laid against him as a result of the assault incident.

[ 28 ] He submits that the Respondent has not complied with section 27 of the Corrections and Conditional Release Act in that the Respondent has not provided to him “all the information to be considered in the taking of the decision”. He also notes that there is no evidence that the Commissioner has any reasonable grounds to believe that the disclosure of information to him would jeopardize the safety of any person, or the security of the penitentiary or the conduct of any lawful investigation so as to invoke subsection 27(3). He submits that the Respondent has breached its obligation of procedural and fundamental fairness.

POSITION OF THE RESPONDENT

[ 29 ] The Respondent submits that on this application for habeas corpus , it is not for this Court to second-guess the decisions made by the penitentiary authorities. It is not for this Court to review the merits of the decisions made.

[ 30 ] The Respondent refers to the Affidavit of the acting deputy warden of FI, which sets out the background facts underlying the decisions made. Counsel notes that there were a number of segregation reviews, that the SIO concluded that the Applicant was responsible for the July 6 assault based on video surveillance and information gathered in the course of an intelligence led investigation, the documentation generated in the course of the process, the continuous contact that the Applicant had with his parole officer and the written and verbal rebuttal made by the Applicant, his appearance before the Administrative Segregation Review Board and the case review by the Correctional Interventions Board. The Respondent submits that the Applicant had an opportunity to receive this information and make submissions.

[ 31 ] The Respondent notes in particular that the A4D, given to the Applicant on September 9, 2010, provides him with the gist of the information about the assault, namely the date, the name of the victim, that a slashing weapon was used, that there was no serious injury and that based on the video and information obtained the SIO had concluded that he was the person who was responsible.

[ 32 ] The Respondent submits that the prison authorities had the authority to reclassify the Applicant and to transfer him and that they complied completely with the Act and Regulations governing such decisions. It is submitted that the Applicant was given the opportunity to participate in the decision-making process and to be heard in his response to the allegations against him.

[ 33 ] It is submitted that the decisions were lawful, and that the information given to the Applicant was sufficient and in accordance with all legal requirements.

THE LAW

[ 34 ] Pursuant to s. 30 of the Corrections and Conditional Release Act , S.C. 1992 c.2, the prison authority shall assign a security classification of maximum, medium or minimum to each inmate. The Regulations, SOR/92-620 mandate the criteria for each of these classifications and the factors to be taken into consideration in determining the security classification for an inmate. ( s.17 , 18 )

[ 35 ] Under s. 28 of the Act , the Canadian Correctional Service (CSC) shall take all reasonable steps to ensure that the penitentiary in which the inmate is confined is one that provides the least restrictive environment for that person. The Respondent in this proceeding relies on section 29 of the Act pursuant to which the Commissioner may authorize the transfer of a person who is sentenced to a penitentiary to another penitentiary in accordance with the Regulations . The Regulations set out the steps that the institutional head shall take before the transfer of an inmate namely, written notice, allowing the inmate a reasonable opportunity to prepare representations, meet with the inmate to explain the reasons for the proposed transfer and give the inmate an opportunity to make representations with respect to the proposed transfer, forward the inmate’s representations to the Commissioner or to the staff member designated and give the inmate written notice of the final decision and the reasons for it. (s. 12 Commissioner’s Directive 710-2 prescribes the steps to be taken in regard to involuntary transfers. s. 48 to 56)

[ 36 ] The Act, s. 27, requires that the decision-maker give to the inmate all the information to be considered in the taking of the decision or a summary of that information. The exception is provided for in subsection 3, where the Commissioner has reasonable grounds to believe that disclosure of the information would jeopardize the safety of any person, the security of the penitentiary, or the conduct of any lawful investigation. In such case, the Commissioner may authorize the withholding from the inmate of as much information as is strictly necessary in order to protect the interest identified. It is to be noted, in this case of Mr. Suman, there is no evidence supporting the withholding of information under subsection 3. There is no evidence as to the Commissioner having reasonable grounds to believe or that only as much information as is strictly necessary in order to protect the identified interest has been withheld. (In the decision of Severin v. The Attorney General of Canada 2011 ONSC 37 , I commented on the need for such evidence (para. 57).) In this present case of Mr. Suman, the information identified as underlying the decisions and the conclusion that the Applicant was responsible for the assault is “information” (The Review of Offender’s Segregated Status Institutional Review document of August 5, 2010) and “video surveillance and information gathered within the course of an intelligence led investigation” (the A4D).

[ 37 ] The relevant legal principles have been considered in a number of transfer cases.

[ 38 ] An application for habeas corpus does not involve the court in a review of the decision on the merits as if on an appeal. Habeas corpus will only issue where the decision-maker has acted without jurisdiction. A disagreement as to facts or the weight given to evidence does not amount to a jurisdictional error. ( May v. Ferndale , 2005 SCC 82 , [2005] 3 S.C.R. 809; R. v. Miller , 1985 SCC 22 , [1985] 2 S.C.R. 613; Williams v. Smith-Black , 2008 BCSC 1250 )

[ 39 ] In Bachynski v. Gallagher et al , [1995] B.C.J. No. 1714 , the inmate was transferred from medium to maximum security. At para.31, the Court cited Camphaug v. Canada (1990), 34 F.T.R. 165 where Strayer, J. stated at page 167:

I fully accept the view of Marceau J ... that a decision to transfer is not like a conviction for an offence: what is required on the part of the decision maker is a reasonable belief that the prisoner should be moved for the sake of the orderly and proper administration of the institution. This implies that fairness in the making of such a decision does not require that the inmate be given all the particulars of the alleged wrongdoings, it is sufficient if he can make representations to demonstrate that the recommendation that he be moved is an unreasonable one.

[ 40 ] The Court held that requiring penitentiary officials to provide a detailed explanation for their decision is, as a general principle, imposing too onerous a standard. The Court found that in that case, the officials had based their decisions on the belief that the inmate should be moved for the sake of the orderly and proper administration of the facility. The Court noted “only rarely will a court interfere unless it is manifest that the authorities did not deal properly with the inmate,

34 ... Faulkner v. Canada (Solicitor General) et al (1992), 62 F.T.R. 19 at 24 [17], Jerome A.C.J.:

... the decision to transfer an inmate from one institution to another, is essentially an administrative matter. As such, it will only be interfered with by the courts on the rare occasion when it is manifestly clear the inmate has not been dealt with fairly, taking into account all the circumstances surrounding the transfer.

35 Behind these words is the realization that a prison is a complex institution. Some inmates resent their incarceration and do not intend to reform. Others are remorseful in varying degrees and want to rehabilitate themselves. Inmate secrecy, deceit and a code of silence are part of every day life within the institution. Inmate loyalty is usually given to those who control the inmate power structure. Very rarely is there explicit evidence of misbehaviour coming from credible sources within the inmate population. These observations are not new revelations. Most, if not all, are confirmed in the various cases relating to prisoners rights.

36 Prison authorities must act on the best information available. Sometimes it is unreliable and an individual inmate is wrongly charged or wrongly transferred. But given the nature of the inmate population and the necessity of preserving order there is often no other alternative. If a dangerous person is allowed to remain in the general prison population of a medium security institution, it is the other prisoners and staff who suffer the consequences because they have no place else to go.

37 Perhaps the Petitioner was not dealt with perfectly. But, the law does not demand perfection. This is because the system is run by human beings. Very rarely do any of us perform anything perfectly. Courts must always be vigilant in protecting the individual rights of an inmate who is dealt with in an unreasonable manner. On the other hand, we should realize the difficult situations that confront prison officials.

[ 41 ] In Lising v. Warden of Kent , 2007 BCSC 248 , the inmate was involuntarily transferred from medium to maximum security. The Court held that there must be disclosure of the information upon which a decision is to be made in order that the party affected can respond adequately. (para.8) The Court held that the strict Stinchcombe principles applicable to criminal proceedings do not apply in the administrative context, citing the May decision. It went on to quote from May ,

9 ...

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. As Arbour J. held in Ruby , 2002 SCC 75 , [2002] 4 S.C.R. 3 at para. 40 :

As a general rule, a fair hearing must include an opportunity for the parties to know the opposing party's case so that they may address evidence prejudicial to their case and bring evidence to prove their position ...

[ 42 ] The Court noted that section 27 of the Act provided the informational obligation in the transfer situation. It also noted that the majority decision in May determined that the disclosure required by section 27(1) was onerous and extensive, subject to the exception in subsection 3. It further noted that even if section 27(3) was applicable then, pursuant to the Commissioner's Directives, the inmate must be given the gist of the information relied upon.

[ 43 ] The Court held that the question was whether the information that was provided to the inmate was sufficient for the inmate to know the case he had to meet. “This is what procedural fairness requires”. (para. 39) The question is was the inmate in a position to make a meaningful response. The Court continued,

49 In comparing what was with what was not disclosed to Mr. Lising, I have to be satisfied that he was provided with sufficient disclosure to know the case he had to meet. I understand why Ms. Turko requests more information, including the reliability level of the source of each gist. That is not, however, the question I must answer. The question for me is a jurisdictional one. Was the disclosure sufficient to enable Mr. Lising to make an adequate or meaningful response? I am satisfied it was.

50 I refer to Justice Romilly's decision in Athwal at paras. 39, 40 and 41:

The task of the warden or supervisor in the corrections system is a difficult one. A prison transfer decision is significantly different from a criminal conviction, and so the content of fairness in transfer decisions is necessarily less than that required in the criminal setting ( Camphaug , [1990] F.C.J. No. 333 at 166 ; Gallant , 1989 9463 (FCA) , [1989] F.C.J. No. 70 at para. 28 ). In a situation like this one, corrections officials must consider a wide array of factors. These include: scarce resources, including time as well as tangible resources, of the staff and the system itself; the safety and security of inmates as well as of the institution as a whole; and the importance of ensuring that staff can learn of rules infractions within the inmate community.

From the perspective of the applicants, the freedom at issue is a very significant one. Involuntary transfers to higher security prisons reduce an inmate's residual liberty, and must conform to strict standards ( May , paras. 76, 95-100 ). This is borne out by the extensive regulations and directives governing and issued by CSC, and highlighted by the applicants.

There is a clear tension between these two positions. In light of these forces and the facts of this case, in my view, the information provided to the applicants was sufficient to allow them to address the allegations against them.

[ 44 ] I note that the Court in Athwal went on to say,

49 This Court should be careful to avoid a too fine reconsideration of the possible dangers that informants might face in the corrections system. A warden, making a decision while faced with knowledge of dynamics within the penitentiary, is better situated than this Court when it comes to assessing the level of threat to individuals and to the institution itself.

50 In the instant case, while it is possible to parse the information released by the Warden and decide that slightly more could have been given, this is not the Court's proper function. The information provided by the Warden satisfied the requirement of disclosing the case to meet, and should not be upset. ( Athwal v. Ferndale 2006 CarswellBC 2271 (BCSC) )

[ 45 ] The Supreme Court of Canada in May at para. 99 referred to the informational requirements of NITR as set out in the Commissioner’s Directive SOP 700-15. It must contain enough information to allow the offender to know the case against him or her. The offender must be in a position to be able to respond to the recommendation for an involuntary transfer. To meet this standard, the details of the incident, which prompted the transfer recommendation, must be provided to the greatest extent possible. This may include providing the offender with the following information regarding the incident: where it occurred, when it occurred, against whom it occurred, the extent of injury or damage which resulted, the evidence or proof of its occurrence, and any further relevant information which may elaborate on the incident. In cases where sensitive information exists which cannot fully be shared, the offender shall be provided with a gist. In Mr. Suman’s case, the NITR did not contain this information. However, such information is contained in the A4D served the same day, September 9, 2010, so, in my view; nothing turns on the lack of detail in the NITD.

[ 46 ] In my decision in Severin , referred to above, I note two other decisions on this obligation to disclose,

[46] ... Cartier v. Canada (Attorney General) 1998 CarswellNat 2976 where Nadon J. wrote as follows:

... Not so in the case of a decision to transfer made for the sake of the orderly and proper administration of the institution and based on a belief that the inmate should, because of concerns raised as to his behaviour, not remain where he is. In such a case, there would be no basis for requiring that the inmate be given as many particulars of all the wrongdoings of which he may be suspected. Indeed, in the former case, what has to be verified is the very commission of the offence and the person involved should be given the fullest opportunity to convince of his innocence; in the latter case, it is merely the reasonableness and the seriousness of the belief on which the decision would be based and the participation of the person involved has to be rendered meaningful for that but nothing more. ...

[48] In Gaudet v. Marchard 1994 CarswellQue 260 , at para.35, Rothman J.A. wrote:

In my respectful opinion, the authorities had no duty to provide appellant with copies of the statements given by informers, nor to afford appellant an opportunity to cross-examine these witnesses or the penitentiary authorities themselves. ...

[ 47 ] Also relevant on this issue are the principles set out in Latham v. R ., 2000 CarswellOnt 348 at para[7]:

7. ...The duty on the penitentiary authorities is not high. All that is required is some evidence that they observed the basic requirements of fairness. ... Courts are reluctant to second guess correctional decision making by those whose work brings them into daily contact with the realities of prison life. As Addy J. said:

... except in clear and unequivocal cases of serious injustice coupled with mala fides or unfairness, judges, as a general rule, should avoid the temptation of using their ex officio wisdom in the solemn, dignified and calm atmosphere of the courtroom in substituting their own judgment for that of experienced prison administrators.

[ 48 ] The principles set out in Caouette v. Mission Institution, 2010 BCSC 769 are also relevant:

[94] It was clear that in the context of transfer proceedings within the prison system, an applicant is not entitled to all information in the hands of the authorities. There is a specific provision for the maintenance of the confidentiality of information with respect to sources. The purpose of that provision is obvious. The applicant does not have the right to cross-examine confidential sources, nor to obtain information with respect to the identity of the sources, despite the fact that the identity of the source may play some role in determining how much weight the Warden can place upon the applicant’s evidence. I cannot find that it was a breach of the norms of procedural fairness to fail to give the applicant any additional information with respect to the identity of the informant in this case.

ANALYSIS

[ 49 ] The parties are agreed that the action taken by the prison officials in this case constitutes a deprivation of liberty which may be reviewed by the court. The only issue is whether the deprivation was unlawful in the sense that it was effected without jurisdiction. The onus of making out the lawfulness of the deprivation of liberty rests upon the Respondent.

[ 50 ] As I understand the position of the Applicant, the real issue is the sufficiency of the information relied upon by the prison officials in making their decisions and the sufficiency of the information provided to the Applicant. While I cannot sit as if on appeal from the decisions made, I must determine in this case whether the information provided to the inmate was sufficient to permit him to know the case that he had to meet and to make a meaningful response.

[ 51 ] What information was disclosed and when, is not in dispute.

a. July 8, 2010: The Applicant was placed into segregation. He spoke to his parole officer who showed him the document entitled the Review of Offender’s Segregated Status First Working Day Review. It told him that he was suspected of being the perpetrator in a vicious assault with a weapon on another inmate.

b. August 5, 2010: The Applicant appeared in person before the Administrative Segregation Review Board. It confirmed that on July 13, 2010, at his fifth working day segregation review, it was recommended and confirmed by the warden that he remain in segregation. At this hearing, the SIO advised that “the department was satisfied “based on information” that the Applicant was the aggressor” in the subject assault. By this point in time, Mr. Suman had been in contact with a lawyer who had given him legal advice including not to speak to the authorities about the incident without the lawyer being present. The recommendation and decision was that he be maintained in segregation pending completion of the SIO investigation and possible transfer options.

c. August 12, 2010: His parole officer advised the Applicant that he was writing him up for maximum security and asked him whether he preferred Millhaven or KP.

d. September 9, 2010: The Applicant was given a copy of the A4D. That report indicates that the Applicant had made a written rebuttal on September 2, 2010 to the allegations made about his involvement in the assault, and that this written rebuttal had been considered as part of the decision-making process. The report indicates the date of the assault, the identity of the inmate who was assaulted, that the victim sustained on non-serious injury, that a slashing or stabbing weapon was used and that the weapon had not been recovered. The report stated that it was determined that the Applicant was responsible based on “video surveillance and information gathered within the course of an intelligence led investigation.” The report also indicated that it was doubtful that there would be outside criminal charges laid. No reasons for this are stated. The report reviews a number of factors relevant to the Applicant's institutional adjustment. It informed him that he was reclassified as maximum-security. He was also served with the NITR on that date, which stated that the reclassification was as a result of him being found responsible for a vicious assault on another inmate.

e. September 13, 2010: Mr. Suman made a verbal rebuttal to his parole officer indicating his strong disagreement with the content of the A4D.

f. September 15, 2010: The Referral Decision Sheet for Involuntary Institutional notes that the verbal rebuttal was considered but the Correctional Intervention Board concluded there was no compelling information contained in the rebuttal to warrant a reassessment. It recommended the involuntary transfer to KP be approved.

g. September 17, 2010: The decision to transfer was made by the acting warden and the Applicant was informed about that.

h. September 20, 2010: The Applicant was served with the Notice of Decision of Involuntary Transfer.

[ 52 ] I find that the A4D informed the Applicant of most of the information called for in the May decision, para. 99 , except for where the assault occurred and time of day, and the nature or particulars of the “information gathered within the course of an intelligence led investigation”. The inmate was provided with absolutely no information whatsoever about this other “information” which was relied upon by the SIO and the decision-makers or about the “information” referred to in The Review of Offender’s Segregated Status Institutional Review document. Although counsel for the Applicant in his submissions referred to an informant or informants, I find no reference whatsoever to such sources of information in the evidence which is before me. Furthermore, as I have already commented, there is no evidence before me as to any reasonable belief on the part of the Commissioner so as to invoke section 27(3) and therefore permit authorities to disclose only such information as does not jeopardize the interests set out in that subsection. There is no evidence that information was withheld from Mr. Suman because of the application s. 27(3).

[ 53 ] However, Mr. Suman was informed of the who, the when so far as the day is concerned, the nature of the injuries, the nature of the attack, the fact that a slashing or stabbing weapon was used and that it was not recovered. Importantly, he was told that there was video surveillance relevant to the attack. He swears that the psychologist told him that he did not appear to be the person shown in the video. The Respondent did not lead evidence to contradict that this statement was made. But most importantly in my view, on the uncontradicted facts before me, neither the Applicant, nor his lawyer at the time asked to view the video.

[ 54 ] In May , the Supreme Court of Canada found that the decision to transfer from minimum to medium security was unlawful because CSC failed to disclose the scoring matrix for the computerized rating tool. In that case, the Court noted more than once in its decision that the inmates and their counsel had made several requests and had acted diligently in requesting more information concerning the scoring matrix. The scoring matrix information that was deliberately and misleadingly withheld by CSC was essential to an understanding by the inmates of the computerized system which generated their scores. The failure to disclose the information prevented them from formulating a meaningful response to the reclassification system. The Court held that if the scores generated by the computerized tool played a role in the transfer decisions then its scoring matrix should have been disclosed. It found that in fact the scores generated by the computerized tool played an important role in the decisions.

[ 55 ] In Athwal , the Court referred to Commissioner's Directive 701, Information Sharing, in reference to section 27 (3) of the Act . This Directive states “if information cannot be shared with the offender in a gist form, then the information should not be used in the decision making.” That Court found that the applicants in the A4D had been provided with information about the location of the infraction, the time that the infraction was committed, the nature of the infraction, that alcohol bottles had been found, and that the information came from “sources considered believable reliability”. Such information was found to be sufficient to permit those applicants to play a reasonably informed part in the process. “The right to answer was far from illusory”. In that case, the Court found that the prison officials had demonstrated why supplying further information about the informants would be inadvisable.

[ 56 ] In Brazeau v. Kent 2011 BCSC 935 , the inmate was informed that he was alleged to have obtained medication from two inmates on E Block by way of muscling and intimidation and that as a result the inmates passed the medication to him. He was informed that it was alleged he had tried to take canteen items from an inmate. He was informed the source had provided reliable information in the past. He was also informed that a source had indicated that he planned an attack on staff. This was found to be sufficient for him to be aware of the case he had to meet.

[ 57 ] The facts of Mr. Suman’s case and in particular, the nature of the information provided to the inmate is very similar to that provided to the inmate in the Severin case. In Severin , there was no video surveillance evidence. On the basis of the authorities, I concluded that prison officials had complied with their information obligations in that case.

[ 58 ] In Mr. Suman’s case, the reliance on unidentified “information” is troubling. However, Mr. Suman was able to deny involvement in a specific assault, maintain a case of mistaken identity, advance the defence of motivations on the part of informant inmates and advance the defence of what the psychologist had said to him. He had the benefit of legal counsel and no requests to view the video or details of the further “information” were made.

[ 59 ] On the basis of the legal authorities that I have cited, I find that the facts that were provided to the Applicant including the fact of the existence of video surveillance satisfies the informational obligation on the part of the prison authorities and was sufficient to permit Mr. Suman to know the case that he had to meet and to make a meaningful response. Indeed, after receiving the benefit of legal advice, he responded formally on three occasions: personal attendance on August 5, 2010; by way of written rebuttal; and then by verbal rebuttal, in addition to the less formal direct communications he had on a regular basis with his parole officer in which he denied involvement.

[ 60 ] Accordingly, I find that Mr. Suman was given sufficient information and that the Respondent has satisfied the onus of demonstrating that the deprivation of Mr. Suman’s liberty was lawful.

PRELIMINARY OBJECTION

[ 61 ] The Respondent made a preliminary objection that this application was out of time and should be dismissed at the outset as a result. Crown counsel noted that the decision to transfer was made on September 17, 2010, but that the present application was not issued until the 26th day of July 2011. This is well outside the 30 days prescribed by the Rules for Criminal Proceedings which she says is applicable.

[ 62 ] Counsel referred me to the case of R. v. Nguyen 2011 ONSC 6097 where Glass, J. lists five considerations in reference to a test for leave to extend time to move to obtain mandamus order following a preliminary inquiry decision.

[ 63 ] I note that Mr. Suman chose to wait out the decision of the National Parole Board before launching this application, but also that the Crown has not indicated any prejudice resulting to it.

[ 64 ] Because I have decided that the case put forward by the Applicant fails on the merits, it is unnecessary for me to decide this preliminary issue and therefore, I decline to do so.

SUMMARY

[ 65 ] This Application by Mr. Suman is dismissed.

Tranmer, J.

Released: January 30, 2012

COURT FILE NO.: 390/11
DATE: 2012Jan30

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ALBERTO SUMAN Applicant – and – THE ATTORNEY GENERAL OF CANADA Respondent HABEAS CORPUS decision Tranmer, J.

Released: January 30, 2012