ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-135 (Kingston)

DATE: 2013/08/09

BETWEEN:

MAITHAM AZIZ ALZEHRANI

Applicant

– and –

THE WARDEN OF KINGSTON PENITENTIARY

Respondent

Mary Jane Kingston, for the Applicant
David Aaron, for the Respondent

HEARD: July 17, 2013 at Kingston

Leroy, J.

Habeas Corpus Decision

Introduction

[1] This is an application for Habeas Corpus with Certiorari in aid to challenge Warden Beatty’s decision to reclassify the applicant’s security classification from medium to maximum on December 4th, 2012. The issue is whether the disclosures made to the Applicant by Correctional Services Canada (CSC) in the lead up to the hearing were sufficient for him to inform a fair hearing.

[2] Habeas Corpus lies to determine the lawfulness of a confinement. The detention must have resulted from the act of an officer having jurisdiction over the applicant and the subject matter of the enquiry which led to the committal must be evidenced by a warrant or other order regular on its face. The review goes to two points: the formal sufficiency of the document purporting to authorize the detention and the jurisdiction of the officer issuing it. The applicant does not challenge the formal sufficiency of the Warden’s decision. The applicant asserts that disclosure deficits deny basic procedural fairness denuding the warden of jurisdiction to rule on his status.

[3] The increased security level from medium to maximum invokes a reduction in the Applicant’s residual liberty. The Applicant seeks to be reinstated as a medium security inmate and by implication, release from the form of detention implicit in the reclassification.

Facts

[4] The facts that pertain to the issue are not in dispute; the implications are.

[5] The Applicant is a 29 year old first-time offender in Canada, currently serving a nine-year sentence, beginning February 14, 2007, for sexual assault and trafficking in human life contrary to s. 271 and paragraph 465(1)(c) of the Criminal Code of Canada. His known American record involves convictions for domestic battery on May 5, 1997 and sexual assault on April 13, 1998, both in Illinois. Mr. Alzehrani served 2.5 years on the sexual assault conviction. In Ontario, Justice Molloy, in her sentencing reasons, noted that the Applicant showed limited insight into the serious nature of the offences for which he was convicted, minimized the crime and his involvement.

[6] Correctional Service Canada’s initial security classification assessment placed the Applicant in the medium security category. He was placed at Warkworth Institution (Warkworth), a medium security penitentiary located in Campellford, Ontario in February 2007.

[7] The Applicant was put in involuntary administrative segregation, pursuant to subparagraph 31(1)(b) of the Corrections and Conditional Release Act (CCRA) on August 7th, 2012. The official basis for this action was that the applicant was suspected of being centrally involved in a mercantile tobacco operation within the prison and continued association with the inmate population would interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of the CCRA. He was moved from Warkworth to Millhaven Institution. His status as a medium security offender was unchanged. Mr. Alzehrani was placed in segregation because CSC identified two inmates at Millhaven Institution with whom he was incompatible.

[8] Mr. Alzehrani was reclassified from a medium to a maximum security offender on December 4, 2012 by Warden Beatty.

[9] The change in classification has implications for Mr. Alzehrani. There are two maximum security federal correctional institutions in Ontario, namely Kingston Penitentiary and Millhaven Institution. Kingston Penitentiary is scheduled to close in October 2013 and transfers in are not usually an option. CSC identified the Kent Institution, a maximum security correctional facility in British Columbia as a preferred placement to alleviate the detrimental effects of segregation. Inmate incompatibility is not an issue there. Mr. Alzehrani prefers to remain in this region.

[10] On or about January 4, 2013 the applicant initiated Habeas Corpus proceedings challenging the reduction in residual liberty inherent in segregation. The plan to move Mr. Alzehrani to Kent Institution was put on hold. CSC moved Mr. Alzehrani to the Kingston Penitentiary on March 8th, 2013 to relieve segregation. He abandoned that Habeas Corpus application on March 13, 2013.

[11] The Applicant issued this Habeas Corpus application on March 12, 2013 challenging the lawfulness of the decision to reduce residual liberty inherent in the reclassification to maximum security status.

[12] The disclosures made to Mr. Alzehrani relative to the reclassification were as follows:

i. Janice Froats, a parole officer at Millhaven Institution met with Mr. Alzehrani there on November 28, 2012 to review the security reclassification scale (SRS), the assessment for decision that had been completed at Warkworth and the Notice of Involuntary Transfer.

ii. On November 29, 2012, Mr. Alzehrani wrote to Ms. Froats asking for his score/points.

iii. Mr. Alzehrani acknowledged receipt of the Notice of involuntary transfer recommendation on December 3, 2012.

iv. Mr. Alzehrani contested the proposed involuntary transfer on December 3, 2012. He cited the proximity of his statutory release date, the proximity of family support and the implications for loss of community support on release from Kent and pleaded for compassion.

v. In his submissions to the Warden, Mr. Alzehrani did not challenge or deny the factual context depicted in the Security Reclassification Scale or Assessment for decision completed by D.L Aitchison, a parole officer working at the Warkworth Insititution. His objection was directed at the consequences.

[13] Section 30 of the CCAC provides that the CSC shall assign a security classification of maximum, medium or minimum to each inmate. Regulation SOR/92-620 provides that the CSC shall take the following factors into consideration in determining the security classification to be assigned to an inmate pursuant to section 30 of the Act:

a. The seriousness of the offence committed by the inmate;

b. Any outstanding charges against the inmate;

c. The inmate’s performance and behaviour while under sentence;

d. The inmate’s social, criminal and, if available, young offender history and any dangerous offender designation under the Criminal code;

e. Any physical or mental illness or disorder suffered by the inmate;

f. The inmate’s potential for violent behaviour; and

g. The inmate’s continued involvement in criminal activities – emphasis added by writer.

[14] The SRS is a tool used by CSC to measure the security level required for an inmate at key points through the sentence period. It is one consideration the parole officer will use to establish an inmate’s security classification at any point in time. It involves fifteen areas of enquiry. The parole officer will then complete the security classification based on all the known circumstances and the result is the “assessment for decision” which forms the basis of the CSC recommendation to the warden. Its contents were reviewed with Mr. Alzehrani on November 28, 2012.

[15] Mr. Alzehrani’s most recent SRS score tallied in the maximum security range. The scale results reveal three or more recorded incidents, one or more segregation periods, no progress on his correctional plan and no motivation to progress and psychological concerns.

[16] The assessment for decision references his criminal record, refusal to accept responsibility for the offences, absence of remorse and insight and disinterest in rehabilitative pursuits. The conclusion was that his risk for criminal recidivism was unmanageable. It notes that although Mr. Alzehrani scored in the medium security range in April 2012, the October results placed him in the maximum security range barring an override.

[17] The theme of the assessment narrative is that Mr. Alzehrani is thought to be comfortable and confident with criminal activity in prison. Ms. Aitchison wrote that their intelligence unit continually received information stating that Mr. Alzehrani was centrally involved in the sale of contraband tobacco and actually maintained collection staff. The report confirms that the investigators secured authority to intercept his communications, which they say, confirm and enhance the credibility of informer reports of Mr. Alzehrani’s involvement in these activities. The report cites money transactions in amounts between $100 and $1,500.

[18] There are other, more dated references to events in 2010 and 2011, which include reports of an assault on another inmate over an unpaid account, contraband seizure in his cell and reports of orchestration of and involvement in “hits” on other inmates.

[19] The ongoing investigation into allegations of the tobacco smuggling cell, said to include the Ontario Provincial Police is repeated.

[20] The assessment references a potential for serious management problems within a medium security institution.

Positions

[21] Mr. Alzehrani challenges the process involved in the reclassification, which he argues denudes the lawfulness of the decision. If that determination is set aside for want of procedural fairness, his security status remains at the medium level and the need to transfer him out of province dissolves.

[22] When the CSC relies on the exceptional circumstances in subsection 27(3) that narrow their disclosure obligations, the expectation is that the disclosure needs to inform the gist of the case. Mr. Alzehrani argues that information not communicated to him was such that he was denied the opportunity of knowing the gist of the case he was to meet. He submits that the assertions made are so general and lacking in detail he cannot address them, save to deny.

[23] He submits that compliance with the informational component of s. 27 of the Corrections and Conditional Release Act is central to his ability to respond to the reclassification case presented by CSC to the Warden. Non-compliance amounts to breach of procedural fairness.

[24] The applicant submits that if the process satisfies the requirements of procedural fairness then Habeas Corpus contemplates a judicial review of the warden’s determination, reasonableness is the applicable standard of review and the decision is, in all the circumstances, unreasonable and should be struck.

[25] The respondent acknowledges that the decision to reclassify is a deprivation of liberty and that the burden of proving lawfulness of the deprivation rests on the respondent. The respondent submits it is required to inform the applicant as to the gist of the case against him and their information flow satisfies that disclosure.

[26] The respondent submits that Habeas Corpus is a review that is directed to jurisdiction and that it is not intended to be a vehicle of appeal or judicial review.

Gist and Statutory Disclosure Requirements

[27] The Concise Oxford English Dictionary, 11th edition describes the gist of a case as “the real point of the action”.

[28] Section 27 of the CCAC is the section that directs CSC disclosure in relation to decisions to be taken by the Service about the offender. It provides as follows:

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.

(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).

[29] Annex C to Commissioner’s Directive Number 701 instructs the CSC officer about “How to prepare a gist for protected information. Paragraph 8 states that the gist must provide the relevant facts including

a. The dates and places of specific incidents;

b. The manner in which these became known to the authorities; and

c. Any other evidence supporting the intelligence information.

[30] Paragraph 9 states that the name of the source is not relevant information. Paragraph 10 states that the disclosure of information to an offender does not necessarily mean that he/she has a right to:

a. Know the identity of the source of the information, or details and circumstances which could reveal the identity of a source of information;

b. A copy of the actual documents; or

c. All of the details of the case against him/her.

[31] Paragraph 11 states that in order to justify withholding a gist, it will have to be demonstrated that the information meets one of the injury tests outlined in subsection 27(3) of the CCRA.

Jurisprudence and Remedy

[32] Certiorari allows a review court the option of quashing a decision maker’s ruling or not. Habeas Corpus allows me to discharge the applicant from the effects of the warden’s ruling if I conclude that the consequential detention is unlawful. It does not permit me to quash the ruling.

[33] Certiorari in aid of Habeas Corpus is a distinct subspecies of Certiorari and a quash order is not an available option. Certiorari was the medieval equivalent of “Get me the file on such and such a matter” – In the same way the court used Habeas Corpus to ensure jurisdiction over the person, it used Certiorari to ensure jurisdiction over the cause. Certiorari at the time involved a hearing de novo. The extent of the remedy changed when new administrative powers were extended to magistrates. The court of King’s Bench did not have the authority to make the administrative decisions designated to the magistrates and consequently did not have the jurisdiction to proceed de novo, leaving only a motion to quash.

[34] Certiorari seeks to remove an order of an inferior adjudicator making a decision in relation to which it has exclusive jurisdiction over the merits. Certiorari brings the matter before the court to be dealt with. The court can quash the lower court order or do nothing. On Certiorari, an order would be quashed if the justices did not have the authority to make it. The court could only satisfy itself that the inferior court had stayed within its jurisdiction – Thomas Cromwell, 3 Queen’s L.J. 295.

[35] The Federal Court Trial Division has exclusive jurisdiction to grant Certiorari against any federal board, commission or other tribunal to quash a conviction or an order - Federal Court Act, R.S.C. 1970 (2nd Supp.), c.10, s. 18. The court reviews the conditions precedent to the board, commission or other tribunal exercising jurisdiction to ensure they are in order and that no error of law was made in the course of reaching the decision. A failure to act within the minimum standards or procedural fairness amounts to an excess of jurisdiction.

[36] Certiorari in this context is an independent and separate mode of review having as its object to quash a conviction or order by its own strength – R. v. Miller, [1985] 2 S.C.R. at page 624, 625. The focus in Certiorari reviews is on the absence or excess of jurisdiction in the adjudication under review. The underlying theory is that the adjudicator has limited jurisdiction and power and must be kept within its bounds. Although affidavit evidence is adduced on Certiorari matters to enable the reviewing authority to assess absence or excess of jurisdiction, it is not for review of the merits of the determination as in an appeal – Simon Kwok Cheung Chow v. Attorney General for Canada 2011 FC 914 Para. 19.

[37] That is to be distinguished from the Certiorari in aid, which is the modern equivalent of “Get me the file on such and such a matter”.

[38] The distinction is articulated in R. v. MacDonald (1902), 1902 131 (NS SC), 5 C.C.C. 279 at 285 – 290 by Graham E.J. Certiorari in aid is a procedural or evidentiary device to make Habeas Corpus more effective by requiring production of the record of proceedings so the court has the information at its disposal to decide the matter. Depositions cannot be quashed. Habeas Corpus with or without Certiorari in aid does not engage authority to quash a decision or an order – R. v. Schumiatcher (1961), 1961 265 (SK CA), 131C.C.C. 112, R. v. Botting, [1966]2 O.R. 123 (ONCA), R. v. Trepanier (1885), 1885 66 (SCC), 12 S.C.R. 111 (S.C.C.).

[39] Although Chow is a Federal Court judicial review ruling, it illustrates standards of review and may be instructive here. In Chow, Madame Justice Tremblay-Lamer applied the standard of correctness to the issue of whether the CSC breached the Applicant’s right to procedural fairness. On the issue of whether the CSC erred in the decision to deny the grievance, the learned Justice applied the deferential reasonableness standard. Did the decision fall within a range of possible outcomes which are defensible in respect to facts and law?

[40] Habeas Corpus is a procedural remedy available in provincial Superior courts. It is a guarantee against unlawful or arbitrary detention. It is available to militate against unlawful reductions in residual liberty interests within the penitentiary system. The rule concerning the admissibility of affidavit evidence on Habeas Corpus is the same as it is on Certiorari. Affidavits are not admissible to controvert facts found by the judgment of the adjudicator, though they may be received to show some extrinsic collateral matter essential to jurisdiction or to show want or excess of jurisdiction – R. v. Miller, [1985] 2 S.C.R. at page 633. The function of this writ does not extend beyond an inquiry into the jurisdiction of the adjudication by which process the applicant is held in a level of confinement and into the validity of the process on its face – Miller page 632.

[41] The traditional view of the Habeas Corpus review is that 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 – Suman v. The Attorney General of Canada, 212 ONSC 677, per Tranmer, J. para 38.

[42] Mr. Justice Chiasson of the British Columbia Court of Appeal favours a departure from the historical scope of review accorded Habeas Corpus – Khela v. Mission Institution (Warden) 2011 BCCA 450. He explicitly rejected the premise that Habeas Corpus should not be treated like a judicial review – para 62 that applies the reasonableness standard with considerable deference – reference Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. He concluded that an unreasonable decision is unlawful for Habeas Corpus purposes – para. 66. He concluded that the term “patent unreasonableness” has replaced the old terminology of error of law and error of fact on the face of the record and this foreshadowed the evolution of judicial review and should do the same for Habeas Corpus so that the two evolve in the same functional direction. He concludes, contrary to the underlying logic espoused in Miller, that on an application for Habeas Corpus, a court may consider the reasonableness of the decision in determining whether a deprivation of liberty is lawful, applying the approach articulated in Dunsmuir.

[43] I am advised that the Supreme Court of Canada will hear the appeal of that decision in October 2013.

Were the CSC disclosures to Mr. Alzehrani sufficient to meet the requirement of procedural fairness?

[44] This is the issue. The jurisprudence recognizes that the social framework within the correctional system is different than mainstream. The prison context has implications for disclosure expectations. The tension between interests of full disclosure and circumspection is unremitting.

[45] A deprivation of liberty will only be lawful where it is within the jurisdiction of the decision-maker – May at para. 77. To be within the decision-maker’s jurisdiction, the decision must conform with the Charter, as well as the common law duties of procedural fairness and requisite statutory duties. The applicant contests the procedural fairness applied in the security reclassification.

[46] The Stinchcombe principles do not apply in this administrative context because it is not a criminal trial and innocence is not at stake.

[47] Judicial notice of the differences in expectation and reasons were stated in Faulkner v. Canada (Solicitor General) et al (1992), 62 F.T.R. 19, at para. 35, by Jerome A.C.J. as follows:

“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 is a part of everyday life within the institution. Inmate loyalty is usually given to those who control the inmate power structure. Very rarely is there explicit evidence of misbehavior 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.

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, 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. 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.”

[48] In Athwal v. Ferndale 2006 CarswellBC 2271 Justice Romilly recognized the tension between the stresses, pressures and limitations facing the warden and the inmate’s concern for reduction in residual liberty. The Court should be careful to avoid a too fine reconsideration of the possible dangers informants face in the system. A warden imbued with knowledge of penitentiary dynamics is better situated than the court to assess the threat level to individuals and the institution itself.

[49] A prison is a complex institution. I would think that it would be the rare case where there is overt evidence of misbehavior from credible sources in the inmate population. Prison authorities must act on the best evidence available. Informer reliability will always be an issue. Poorly thought disclosure may have critical consequences. We must be vigilant about preserving individual inmate rights. Context requires that we also recognize the difficult situation facing prison officials.

[50] The requirements of procedural fairness are to be assessed contextually in every circumstance – May para. 90. Different administrative decisions involving inmates in penitentiaries affect different rights, privileges and interests and may lead to differing standards of procedural safeguards. The decision to re-evaluate Mr. Alzehrani’s security classification was administrative and standard policy. It was not undertaken as a disciplinary measure. These reassessments are mandated through the course of the sentence and are designed to not only enhance the inmates experience but also to match inmates of similar security status.

The applicable duty of disclosure

[51] To ensure procedural fairness in the penitentiary context, the inmate must know the case that he or she has to meet – May v. Ferndale, para. 92. 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 – Chow v. Canada (AG), 2011 FC 914, para 29.

[52] 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 reflex, (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. Requiring penitentiary officials to provide a detailed explanation for their decision is, as a general principle, imposing too onerous a standard.

Analysis and Conclusion

[53] An inmate’s security classification is made for the sake of the proper administration of an institution and will be variable over the course of serving a sentence and will factor in all the evidence the assessor has at the time. Factors in play as the sentence wears on will change in significance. For example, considerations involving acceptance of responsibility for the offence, commitment to programs offered by the institution designed to prepare the inmate for reintegration into society, contraband possession and CSC observations of the inmate’s conduct and cooperation during his stay would not be factored into the initial assessment.

[54] Evidence that could be seen as neutral to the assessment in the past may take on more importance as more information is known. The fact of the discovery of contraband tobacco and instruments on January 1, 2010 may not have been an indicator of anything particularly incriminating on its own. It is a fact that takes on more significance as suspicion crystallized through the communications interceptions.

[55] Mr. Alzehrani knew he was not meeting expectations relative to rehabilitation that would reasonably be expected to impact negatively on a security status review. The known ancillary facts are that he was caught with contraband tobacco in his cell, suspicious money transfers on August 5, 2010, six years into the nine year sentence, he continues to deny the seriousness of and his complicity in the sentence offences, his insight into the psychological pathology that informs his misconduct is viewed by CSC as non-existent and he has declined offerings of counseling that might ameliorate risk perceptions.

[56] Mr. Alzehrani submits that without the conclusions relative to the tobacco enterprise, the ancillary facts would not constitute valid grounds to change his status. Ms. Kingston, for Mr. Alzehrani submits that he is being “railroaded” by unsubstantiated informer allegations regarding the contraband enterprise operational logistics and collection enforcement that cannot be examined and tested and these are driving the results of the security status reclassification.

[57] CSC recognized the concern adjudicators have for the unreliability of informer reporting. The assessment recognizes that it was only with the reveal of the current joint investigation and the telephone intercepts that the informer-based information started to gain the level of credibility to be a probative factor in a security reassessment.

[58] Mr. Alzehrani was informed of the narrative that motivated the prison officials to look at his file. It was not important for the truth of its contents. Its purpose was to describe context for investigation. He was advised that prison administration received regular disclosures related to his central involvement in a tobacco smuggling enterprise at Warkworth. Particulars included reports of a collection related slashing in 2010, report of attempts at a “hit” against another inmate and reports of employment of collection agents within the prison. Those reports did no more than instigate investigation.

[59] He was advised of recent incriminating telephone interceptions. He did not ask to hear the interceptions nor did he ask for a transcript of the pertinent sections relied on. He was advised that the OPP were engaged in an ongoing investigation and there were concerns that the enterprise involved a CSC employee.

[60] Mr. Alzehrani is not entitled to informer information that might reveal identity. In the normal course of a police investigation, the suspects are unaware unless the investigation culminates in reasonable grounds and an arrest ensues.

[61] Mr. Alzehrani was provided with the “gist” of prison administration concerns. The results of the communications interception crystallized all that was previously amorphous. He was given approximate datelines and event descriptors that the CSC say connect him to the contraband smuggling operation which established a level of suspicion.

[62] My analysis is that all of the background is essentially narrative exception to the rule against hearsay. It would not be adduced for the truth of the content. The record of informer disclosures would not likely ever be the core evidentiary basis for a decision in the prison system. It does no more than explain CSC suspicions. The events of January 1, 2010 would be seen as a random event that only became probative with the addition of the intercept. The probative evidence of criminal activity within the prison is the pertinent portion of the results of the communication interception.

[63] An inmate’s failure to embrace rehabilitative counseling is a statutorily mandated security assessment consideration that can only be assessed as time passes. It was the Applicant’s decision to deny the merit and decline the opportunity to engage in recommended counseling. He disputes responsibility for the offences for which he was convicted. He had to know those decisions would impact on his status in some negative fashion.

[64] If Mr. Alzehrani requested access to the pertinent portions of the intercept transcripts or recordings they would have been produced with necessary protective redactions and he would have been fully informed of the factual context for this one aspect of the security status change.

[65] The applicant was not denied procedural fairness in the process that culminated in his security status change. The gist of the reasons for the reclassification was communicated to him.

1. Refusal to address the behavioural and psychological issues that allows rehabilitation and safe re-integration into society;

2. Recent communication interceptions link him to criminal activity within the prison that is incompatible with medium security status

[66] Mr. Alzehrani addressed neither in the written submissions made to the Warden.

[67] The applicant asserts that the court has authority to release Mr. Alzehrani from the maximum security status if I conclude that Warden Beatty’s decision was unreasonable. This invokes judicial review considerations into the Habeas Corpus review and, as noted earlier, is a matter of contention. If such is properly reviewable on Habeas Corpus, the standard of review is deferential reasonableness on matters within his discretion.

[68] Based on all the information communicated to the applicant, the warden’s decision to change Mr. Alzehrani’s security status is not one he could not reasonably make.

[69] The application is dismissed.

Justice Rick Leroy

Released: August 9, 2013

COURT FILE NO.: CR-13-135 (Kingston)

DATE: 2013/08/09

ONTARIO
SUPERIOR COURT OF JUSTICE

MAITHAM AZIZ ALZEHRANI

Applicant

– and –

THE WARDEN OF KINGSTON PENITENTIARY

Respondent

Habeas Corpus Decision

Justice Rick Leroy

Released: August 9, 2013