ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-536-MO
DATE: July 18, 2013
BETWEEN:
MARLON ROWE
Applicant
– and –
ATTORNEY GENERAL OF CANADA
Respondent
Shane Martinez, for the Applicant
Max Binnie, for the Respondent
HEARD: March 27, 2013
HABEAS CORPUS DECISION
Abrams, J.
Overview
[1] Mr. Rowe seeks an Order granting relief in the nature of a Writ of Habeas Corpus with certiorari in aid. He specifically seeks an Order that the decision of the Warden, David Finucan, dated April 2, 2012, which increased Mr. Rowe’s security level and caused his involuntary transfer to a maximum security institution from a medium security institution, be quashed. Moreover, he seeks an Order that he be returned to the general population of a medium security institution to be determined by the Correctional Service of Canada (CSC).
FACTS
[2] Mr. Rowe is serving a life sentence for First Degree Murder. The index offence occurred on January 11, 1999, for which he received no parole eligibility for 25 years and a lifetime firearms prohibition.
[3] The Assessment for Decision found at Tab 3 of Mr. Rowe’s Affidavit includes details of the offence, where it says:
The index offence of First Degree Murder is considered extremely violent. According to the official version of the offence on 99/01/11, four masked men entered a bank in Brampton. Three of the men were armed with loaded handguns and one with a loaded shotgun. Employees and customers were forcibly confined in the bank and forced to the ground. The robbers demanded cash and personal items belonging to employees and customers, as well as cash from the tills and safe. The victim of the offence (a 44 year old woman) was shot and killed by offender Rowe without provocation. Several customers and staff were pushed, kicked, pistol whipped and threatened at gunpoint.
[4] On January 22, 2012, Mr. Rowe was an inmate on range 1B of Joyceville Institution, a medium security facility.
[5] At approximately 5:15 pm officers responded to a cell alarm on 1B and found an inmate lying on the floor. The inmate was conscious, but had obviously been assaulted. The inmate refused to identify his attacker(s).
[6] Each inmate on 1B, including Mr. Rowe, was interviewed and visually inspected for signs of being involved in the assault. Mr. Rowe and another inmate, Bramwell, were segregated as suspects immediately after the incident.
[7] Security Intelligence Officer (S.I.O.), Karen James, initiated an investigation involving the use of confidential informant(s).
[8] As a result of her investigation, S.I.O. James formed the belief that Mr. Rowe both orchestrated and participated in the assault.
[9] Thereafter, Mr. Rowe acknowledges receiving the following documentation from CSC on or about February 21, 2012: A Security Reclassification Scale, the Assessment for Decision related to his Involuntary Transfer, and a Notice of Involuntary Transfer Recommendation. Mr. Rowe further acknowledges receiving Referral Decision Sheets for his Offender Security Level and Involuntary Institutional Transfer on April 2, 2012.
[10] In the result, Mr. Rowe was transferred to Millhaven Institution, a maximum security facility. At the time of this hearing, he had been transferred yet again to a maximum security facility located in the Province of Quebec.
ISSUE
[11] The parties agree that a successful application for habeas corpus requires two elements: (1) a deprivation of liberty; and (2) proof that the deprivation was unlawful. The onus of making out a deprivation of liberty rests on the Applicant. The onus of establishing the lawfulness of that deprivation rests on the detaining authority.[^1]
[12] The parties agree that the involuntary transfer of Mr. Rowe from Joyceville Institution to Millhaven Institution constituted a deprivation of liberty. Accordingly, the onus rests on CSC to prove that the deprivation of liberty was lawful.
POSITION OF THE APPLICANT
[13] Mr. Rowe contends that the deprivation of his liberty was unlawful due to CSC’s breach of its duty to disclose sufficient information to him pursuant to S. 27(1) of the Corrections and Conditional Release Act (“CCRA”) and the Canadian Charter of Rights and Freedoms (“the Charter”). In effect, Mr. Rowe contends that the Warden’s decisions to increase his security classification and subject him to an involuntary transfer were made without due regard for procedural fairness and without due regard for his rights under the CCRA and the Charter.
[14] Mr. Rowe asserts that CSC had an onus to supply him with as many details as possible regarding the information it intended to rely on when deciding whether to change his security classification and subject him to an involuntary transfer. More specifically, Mr. Rowe contends that CSC had a duty to provide him with a basic outline of the allegations made against him, which should have included:
(i) the name of the complainant;
(ii) the time when the assault occurred;
(iii) the location on the range where the assault occurred;
(iv) the name of the other person believed to have been involved in the assault;
(v) the nature of the injuries sustained by the complainant; and
(vi) the date when he allegedly “send word” from segregation, and to whom.[^2]
[15] Finally, Mr. Rowe contends that as a result of not having been provided with sufficient information to allow him to respond to the allegations he was effectively denied procedural fairness at both the grievance stage and rebuttal stage of the administrative process.
POSITION OF THE RESPONDENT
[16] CSC contends that while Mr. Rowe was not told everything regarding the investigation into the assault, he was provided with a gist of the information relied upon and a gist was all that CSC was able to provide without jeopardizing the safety of confidential informants.
[17] CSC asserts that the information provided to Mr. Rowe included the date and location of the assault, the fact that there were two aggressors, that the other aggressor had confessed to his own involvement in the assault, and that Mr. Rowe both orchestrated and participated in the assault.
[18] CSC acknowledges that while ss. 27(1) and (2) CCRA dictates that an offender is entitled to be given reasons for a decision taken by CSC, including all of the information that was considered in the taking of the decision, disclosure is limited by the exceptions articulated in s. 27(3) CCRA, specifically:
(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).
[19] CSC contends that Stinchcombe – level disclosure is not required in the context of administrative decisions in the prison context.[^3] Rather, in order for such decisions to be procedurally fair, the offender “must know the case that he or she has to meet.”[^4]
[20] CSC further contends that the necessary level of disclosure is also impacted by the nature of the decision, specifically:
It must be kept in mind that decisions made for the sake of the proper administration of an institution do not require the same level of disclosure as decisions of a disciplinary nature.[^5]
[21] The distinction between decisions aimed at imposing a sanction or punishment for the commission of an offence versus a transfer made for the sake of the orderly and proper administration of an institution was judicially considered by the Federal Court of Appeal, where the Court said:
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.[^6]
[22] CSC asserts that what is required for an institutional transfer to be lawful on the part of the decision maker is a “reasonable belief” that the prisoner should be moved for the orderly and proper administration of the institution. Moreover, this implies that fairness in the making of such a decision does not require that the inmate be given all of the particulars of the alleged wrong doings; it is sufficient if he can make a representation to demonstrate that the recommendation that he be moved is an unreasonable one.[^7]
[23] CSC contends that the “reasonable belief” standard is low because of the critical importance of allowing CSC to manage its institutions to the best of its ability. To that end, the British Columbia Supreme Court said:
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.
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. Vary 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.[^8]
[24] Finally, CSC contends that Warden Finucan’s decision to transfer Mr. Rowe was not made based solely on the incident of January 22, 2012. Rather, the events of that day were, in effect, the proverbial “straw that broke the camel’s back”. While Mr. Rowe’s grievance[^9] asserts that he has always “contributed positively to maintaining good, amicable and respectful relationships with both inmates and staff”, his disciplinary record does not bear this out. CSC contends that Mr. Rowe has been difficult to manage within Federal Institutions. In the year before the assault alone he was convicted of 6 minor disciplinary offences with 3 more charges being dismissed and another withdrawn. To that end, paragraph 14 of S.I.O. James sworn Affidavit, which outlines Mr. Rowe’s difficulties while at Joyceville Institution, stands alone, uncontradicted.
ANALYSIS
[25] Mr. Rowe’s contention that he was never provided with sufficient details for him to know the case he had to meet is without merit. Firstly, he acknowledged that he was in the range at the time of the incident.[^10] In the close knit environment of the range it would have been no secret to Mr. Rowe who the complainant was. To speak plainly, the complainant was the fellow who was assaulted and left lying on the floor of his cell. Secondly, Mr. Rowe was segregated along with inmate Bramwell immediately after the incident. Thus the approximate time of the alleged assault would have been known to him as well. Thirdly, Mr. Rowe advised that he knew that another inmate, his co-accused, the one with whom he was segregated, had confessed to the assault. On this point Mr. Rowe places great weight, asserting that Mr. Bramwell, by his admission, somehow cleared Mr. Rowe of any involvement. That conclusion simply does not follow. It is doubtful that confrontations and assaults of this nature are necessarily the result of two inmates squaring off in a one-on-one match where Marquess of Queensberry Rules apply. Rather, it is more likely that such assaults are pre-planned with two or more inmates on one, and carried out in short order to avoid detection by the guard staff. Indeed, it was known that two inmates were involved in the assault of inmate Gangaram. Further, as a result of the investigation conducted by S.I.O James, Mr. Rowe was identified along with inmate Bramwell as one of the two assailants. In all of the circumstances, the Court finds that S.I.O James had a reasonable and serious belief that Mr. Rowe participated in the assault. Moreover, the Court finds that Mr. Rowe was provided with the gist of the information relied upon by CSC sufficient for him to know the case that he had to meet, which was augmented by information that was reasonably within his personal knowledge, such as: the identity of the complainant, the approximate time of the alleged assault and the identity of the other person believed to have been involved in the assault.
[26] To the extent that Mr. Rowe was not told everything by CSC, s.27(3) CCRA provides a statutory exception to safeguard the safety of a person (confidential informant), the security of the penitentiary or the conduct of any lawful investigation.
[27] Further, there is no denying that Mr. Rowe’s index offence was one of extreme violence: shooting a defenceless female in the context of an armed robbery. Put simply, Mr. Rowe was a dangerous person when he entered the Federal correctional system. To compound matters, the Court finds that Mr. Rowe has been difficult to manage within Federal Institutions. The Court accepts the uncontradicted evidence of S.I.O James regarding Mr. Rowe’s six convictions for disciplinary offences in the year leading up to the assault. Moreover, against this backdrop the Court rejects Mr. Rowe’s contention that he always contributed to maintain good, amicable and respectful relations with inmates and staff. To adopt the language of British Columbia Supreme Court in Bachinski v. William Head Institution: 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 to go.[^11]
[28] Warden Finucan was not required as a matter of law to deal with Mr. Rowe perfectly. By saying that, however, there is nothing to imply that the Warden and CSC took any unreasonable action in respect of Mr. Rowe. Rather, Warden Finucan was required to form a “reasonable belief” that Mr. Rowe should be moved for the sake of the orderly and proper administration of the institution.
[29] For all of the reasons articulated above, the Court finds that Warden Finucan had a “reasonable belief” to effect the transfer as he did. Accordingly the reclassification and transfer that resulted in the deprivation of Mr. Rowe’s liberty was lawful. Application dismissed.
The Hon. Mr. Justice Brian Abrams
Released: July 18, 2013
COURT FILE NO.: CR-12-536-MO
DATE: July 18, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARLOW ROWE
Applicant
– and –
ATTORNEY GENERAL OF CANADA
Respondent
habeus corpus decision
Abrams, J.
Released: July 18, 2013
[^1]: May v. Ferndale, 2005 – SCC 82 at para. 74
[^2]: CSC alleged that Mr. Rowe was involved in the assault on the other inmate because the inmate had spread sexual rumours about him. It was further alleged that Mr. Rowe had “sent word” from segregation that anyone who “verifies the information” would be dealt with.
[^3]: May v. Ferndale, supra at para. 91
[^4]: Ibid at para. 92
[^5]: Chow v. Canada (AG), 2011 FC 914 at para. 29. Notably, Mr. Rowe was not charged with a disciplinary offence in respect of the alleged assault.
[^6]: Canada (AG) v. Boucher 2005 FCA 77 at para. 29
[^7]: Camphaug v. Canada [1990], 34 F.T.R. 165 at para. 5
[^8]: Bacynski v. William Head Institution 1995 Carswell BC 2338 at paras. 36 and 37.
[^9]: See Tab 5 of the Application Record” Offender Grievance Presentation; dated Mary 16, 2012
[^10]: See Offender Grievance Presentation supra. And Applicant’s Affidavit at Tab 5, p.2, para. 4.
[^11]: Bachynski supra. at para. 36