ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 136/13
DATE: 2013 Sep 09
BETWEEN:
ROY FISH
Applicant
– and –
THE ATTORNEY GENERAL OF CANADA
Respondent
J. Dillon, for the Applicant
D. Aaron, for the Respondent
HEARD: August 27, 2013 at Kingston
TRANMER j.
DECISION ON Habeas Corpus APPLICATION
NATURE OF THE APPLICATION
1The Applicant applies by way of Writ of Habeas Corpus ad Subjiciendum with Certiorari in aid thereof for an order that his security classification be returned to minimum and that he be transferred back from a medium security institution to a minimum security institution.
THE FACTS
2The facts are not in dispute. They are contained in the affidavits of Betty Spence, Roy Fish and Christal Weaver, a parole officer at medium security Bath Institution, and the exhibits attached to those affidavits.
3The Applicant was transferred from Pittsburgh Institution following a random search of his sister, Betty Spence, conducted as she approached the institution for the purposes of visiting him. The search located an open white envelope with the name “Roy” written on it. Inside the envelope was found a small finger size package of five $100 bills wrapped in plastic wrap and black electrical tape. It also contained the Applicant’s bank account number.
THE LAW
4A successful application for habeas corpus requires two elements: 1. the deprivation of liberty; and 2. proof that the deprivation was unlawful. The onus of making out a deprivation of liberty rests upon the Applicant while the onus of establishing the lawfulness of the deprivation rests upon the Respondent.
5In this case, it is agreed that the Applicant has been deprived of his liberty as a result of the reclassification and transfer from minimum to medium security.
THE ISSUE
6The primary issue in this case is narrow. The Applicant submits that in these habeas corpus proceedings, the court must consider the reasonableness of the transfer decision taken by correctional authorities. The Applicant submits that this decision was so obviously unreasonable as to be unlawful.
7The Applicant cites as authority for his position the decision of the British Columbia Supreme Court, affirmed by the British Columbia Court of Appeal in Khela v. Knopf[1]. At paragraphs 39 and 40 of the decision of the Supreme Court of British Columbia, the court finds that an administrative decision-maker can lose jurisdiction if the decision is unreasonable and that such an examination is open to the court upon a habeas corpus application. The court notes that a standard of review based upon unreasonableness does not sanction a wholesale review of the merits of the decision. The British Columbia Court of Appeal agreed with this standard of review seeing “no basis for excluding a consideration of reasonableness from the scope of review of superior courts on an application for habeas corpus.” (para. 79).
8I am advised that the Supreme Court of Canada has granted leave to appeal in Khela, supra.
9The Applicant submits that the facts of the Applicant's case demonstrate the decision made by correctional authorities was unreasonable and warrants the relief sought in this application. Those facts include:
There is no evidence that the Applicant knew that his sister was in possession of the money;
A reasonable explanation for the money was given by Ms. Spence and by the Applicant and was supported by bank receipts;
The officer suspected of bringing tobacco into the institution had been retired for three or four weeks at the time the money was discovered;
The investigating security intelligence officer was of the view that the explanation given by Ms. Spence and the Applicant was plausible to a point.
The Applicant points out that he has “not had any institutional charges of any kind in over 10 years.” (Rebuttal Letter, November 26, 2012).
10It is the position of the Respondent that the standard of review by this Court in these proceedings is one of lawfulness, not reasonableness. The Respondent relies on the decision of this court in Suman v. AG (Canada)[2], and in particular, paragraph 38, for the principle 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 the evidence, does not amount to a jurisdictional error. It is submitted that, to the same effect, are the decisions of the Supreme Court of Canada in May v. Ferndale[3] and R. v. Miller[4].
11The Respondent also refers to the decision of the Supreme Court of Canada in May v. Ferndale where the court holds that a deprivation of liberty will only be lawful where it is within the jurisdiction of the decision-maker. Administrative decisions must be made in accordance with the Charter. Administrative decisions that violate the Charter are null and void for lack of jurisdiction. Administrative decisions must also be made in accordance with the common-law duties of procedural fairness and requisite statutory duties. Transfer decisions engaging inmates’ liberty interests must therefore respect those requirements.
12The Respondent submits that the courts in Ontario have not followed the Khela trial or appeal decisions.
13The Respondent further submits that even if the standard of review was one of reasonableness, the transfer decision in this case was clearly reasonable.
ANALYSIS
A. The Standard of Review
14The information that the correctional authorities had at the time the transfer decision was made includes the following:
a. A recent investigation revealed that a staff member at Pittsburgh minimum institution was introducing contraband into the institution;
b. Information was received that the Applicant approached that staff member to indicate he was aware that the staff member was bringing tobacco into the institution for other offenders (the Applicant admitted having confronted the staff member about bringing in tobacco for other offenders, but denied that the staff member ever brought anything in for him);
c. Reliable information indicated that the staff member was introducing both tobacco and marijuana for the Applicant;
d. The Applicant admits that it was common knowledge that a staff member was bringing in tobacco for people;
e. The locating on November 18, 2012 in the Applicant's sister's purse as she attended at Pittsburgh institution to visit the Applicant of the open white envelope with the name “Roy” written on it containing a small finger sized package wrapped in plastic wrap and black electrical tape containing five $100 bills and the Applicant’s bank account number.
f. The explanation given by the Applicant and his sister that her intention was to deposit this money into a bank account for the Applicant on account of a loan he had made previously to his nephew, that she did not intend to bring the package into the institution, and that the package was wrapped in this peculiar fashion by his nephew’s father who had stored it in a toolbox and further, that his nephew was a mechanic and has dirty hands;
g. Bank records provided by the Applicant confirmed the withdrawal of $1000 and the deposit of $500 as he had explained;
h. The Applicant's institutional record included numerous incidents and charges, including an attempted escape from Millhaven, possessing and dealing in contraband, smuggling, muscling, brew-making, uttering threats to other inmates, requests for protective custody due to suspected drug debts, refusing to release an officer's hand after the officer reached for a jar of brew, being under the influence of pills, brew and drugs;
i. He violated terms of an ETA and an UTA by consuming alcohol during the passes;
j. In November of 2010, he was placed in segregation and transferred for involvement in the introduction of unauthorized items, tobacco, into the institution; the authorities allege that he admitted to having been involved in the tobacco subculture since December 2009; authorities allege that the incident involved his sister, Betty Spence, acting as an intermediary in the community for the transfer of money for the purchase of tobacco for the institution; the Applicant subsequently strenuously denied any involvement on the part of his family.
15In Bachynski v. Gallagher et al[5], [1995] B.C.J. No. 1715, the inmate was transferred from medium to maximum security. At para. 31, the court accepts Strayer J.’s ruling in Camphaug v. Canada[6] (1990), 34 F.T.R. 165 at 166, “... A decision to transfer is not like a conviction for an offense. 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…”. That court went on to say that the transfer decision in that case was based on the belief that the inmate should be moved for the sake of the orderly and proper administration of the institution. “Only rarely will the courts interfere unless it is manifest the authorities did not deal properly with the inmate: Faulkner v. Canada et al[7], 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 where it is manifestly clear the inmate has not been dealt with fairly, taking into account all the circumstances surrounding the transfer.” In paragraphs 35, 36 and 37 of Bachynski, supra, the court points out that a prison is a complex institution. Inmate secrecy, deceit, and a code of silence are 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 misbehaviour coming from credible sources within the inmate population. 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. The court points out that if the dangerous person is allowed to remain in the general prison population, it is the other prisoners and staff who suffer the consequences because they have no place else to go. The court must realize the difficult situations that confront prison officials.
16On the record of the case before me, I find, without deciding the substantive issue as to the proper standard of review that even if the standard of review is one of reasonableness, as asserted by the Applicant, the Respondent has established that the decision made by the correctional officials to transfer this Applicant was reasonable and not arbitrary.
B. Other Issues
17As stated, the onus of establishing the lawfulness of the decision to transfer the Applicant to medium security rests upon the respondent. Lawfulness in this context requires compliance with the Charter, compliance with the applicable legislation and affording to him procedural fairness, including providing to the Applicant all of the information that he requires to know and meet the case made out against him for this administrative transfer.
18The Applicant submits that the transfer in question was arbitrary. I find that it was not arbitrary, so as to violate the Charter, for the same reasons that I have found the decision to have been reasonable, namely the information known to the correctional authorities and the applicable legal principles.
19The Applicant does not strongly submit that the decision was made in violation of the applicable legislation. I find that the decision was made in compliance with the legislative provisions that apply to the decision.
20The Applicant submits that he was not provided with the information the correctional authorities relied on that led Officer Burrelle to suspect he was a recipient of the tobacco and drugs being brought into Pittsburgh, in regard to which the A4D stated: “The SIO received subsequent reliable information that said staff member was introducing both tobacco and marijuana for Offender Fish.”
21The A4D stated as follows, in part,: p2. “The SIO received subsequent reliable information that said staff member was introducing both tobacco and marijuana for Offender Fish”; p.3: “… And his involvement in the institutional subculture…”; p.3 : “… The subject has incurred two recorded incidents over the last two months ( this should be read as years in view of the 2010 incidents referred to below) in relation to both institutional subculture activity…”; p.4 : “… He has incurred numerous incidents and charges dating back to 1981…”; “… Although in May 2010 concerns that exist relating to the suspicion of the subject’s involvement in the institutional tobacco subculture, he was approved for community service ETAs…”; “... Although the subject applied for this work release in July 2010 and for personal development (AA) ETAs under citizen escort in October 2010, both requests were denied in light of the continuing concern/suspicion regarding the subject’s subculture activity. The subject was subsequently placed in segregation and transferred to FMI in November 2010 for his involvement in the introduction of unauthorized items (tobacco) into BCI; the subject reportedly admitted to having been involved in the tobacco subculture since December 2009.”
ANALYSIS
22In May, supra, the Supreme Court of Canada stated that the Stinchcombe principles of disclosure do not apply in this administrative context. The duty of procedural fairness generally requires the decision-maker disclose the information she or he rely 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, 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…” (para. 92).
23In Alzehrani v. The Warden of KP[8], Leroy J. of this court noted that decisions made for the sake of the proper administration of an institution, such as was made in the case of the Applicant, do not require the same level of disclosure as decisions of the disciplinary nature, citing Chow v. Canada[9]. Leroy J. also cited Bachynski, supra, for the principle that fairness in the making of a decision to transfer does not require that the inmate be given all the particulars of the alleged wrongdoings.
24In Rowe v. Canada[10], Abrams J. of this court held that information provided to Mr. Rowe, which was analogous to that provided to the Applicant, was sufficient.
25I have commented before that if correctional officials wish to rely on s. 27(3) of the Corrections and Conditional Release Act (“CCRA”) to limit the information to be provided to an inmate, there should be affidavit evidence provided to substantiate the reasonable grounds to believe that disclosure of such information would jeopardize either the safety of any person, the security of the penitentiary or the conduct of any lawful investigation. (Severin v. A.G. Canada[11]). Other courts, some of which I have referred to already in these reasons, are prepared to accept such limitation of disclosure without affidavit evidence.
26I find that the second reference made in the A4D to the Applicant's involvement in the institutional subculture, found at page 3, can be reasonably founded on his institutional history, the 2010 incidents and the incidents involving his sister. Therefore, he was given sufficient information of that general statement.
27With respect to the reference in the A4D that the SIO received subsequent “reliable information” that said staff member was introducing both tobacco and marijuana for Offender Fish, found at page 2, this is the extent of the information provided. There is no assertion that disclosure of further information would jeopardize any of the three concerns set out in section 27(3) of the CCRA. It is unclear as to whether the reliable information is from a single confidential informant or more than one or what the nature or quality of that information is.
28As Leroy J. noted in Alzehrani, supra, “In Athwal v. Ferndale[12], Romilly J. 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 that informants might 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.” (para.48).
29On the facts of the case before me and the applicable legal principles, I find that the Respondent has established the legal and procedural fairness requirements to provide the Applicant with information of the case he had to meet were satisfied and that therefore, the Respondent has established the lawfulness of the transfer decision.
DECISION
30For these reasons, this application is dismissed.
Tranmer J.
Released: September 9, 2013
COURT FILE NO.: 136/13
DATE: 2013 Sept 09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROY FISH
Applicant
– and –
THE ATTORNEY GENERAL OF CANADA
Respondent
HABEAS CORPUS DECISION
Tranmer J.
Released: ** September 9, 2013**
1Khela v. Knopf et al 2010 BCSC 721, and 2011 BCCA 450
2Suman v. AG (Canada) 2012 ONSC 677, [2012] O.J. No. 374
3May v. Ferndale 2005 SCC 82
4R. v. Miller 1985 22 (SCC), [1985] 2 S.C.R. 613
5Bachynski v. Gallagher et al, [1995] B.C.J. No. 1715
6Camphaug v. Canada (1990), 34 F.T.R. 165 at 166
7Faulkner v. Canada et al (1992), 62 F.T.R. 19 at 24
8Alzehrani v. The Warden of KP 2013 ONSC 5160
9Chow v. Canada (AG), 2011 FC 914, 29
10Rowe v. Canada (AG) [2013] O.J. No. 3355
11Severin v. A.G. Canada 2011 ONSC 37
12Athwal v. Ferndale 2006 CarswellBC 2271