ONTARIO

SUPERIOR COURT OF JUSTICE

BRACEBRIDGE COURT FILE NO.: CR-13-33-MO

DATE: 20131231

CORRIGENDA: 20140122

BETWEEN:

SHAUN ROBINSON

Applicant

– and –

ATTORNEY GENERAL OF CANADA

Respondents

J. Dillon, for the Applicant

S. Widdifield, for the Respondent

HEARD: December 18, 2013

REVISED DECISION

The text of the original decision has been corrected with text of corrigendum

(released January 22, 2014) appended.

HEALEY J.

Nature of the Application

[1] The applicant seeks an order granting a writ of habeas corpus with certiorari in aid, directing that the applicant be brought before this court in order for the respondent to certify the right, if any, to detain the applicant in a medium security facility. The applicant seeks to be moved from Fenbrook Medium Institution to Beaver Creek Institution, the latter being a minimum security facility.

The Facts

[2] The applicant is serving a six-year and nine-month sentence for trafficking in cocaine. His conviction was the result of an undercover operation targeting illegal activities of members of the Hells Angels Motorcycle Club. The applicant is a full patch member of Hells Angels and has been since 2000.

[3] The applicant's annual security classification reassessment was conducted in March, 2013. The Corrections and Conditional Release Act (“CCRA”) S.C. 1992, c. 20, ss. 37 and 97, Corrections and Conditional Release Regulations, SOR/92-62, ss. 17-18, Commissioner's Directives and related policies establish the jurisdiction and procedures for reassessing an offender's security rating. The annual review of security classification was conducted by the applicant's case management team. The applicant scored a 19 on that scale, indicating a clear "medium" security rating. The applicant does not dispute that all requirements for reassessment were followed in the present case, and that he was given full reasons for the Assessment for Decision. He does, however, object to the significance attached to incidents that affected his security rating. He also objects, overall, to the fact that his continued association with Hells Angels members both within Fenbrook and the community should be a factor in assessing his security classification. The applicant asserts that these considerations are unfair and in breach of ss. 2 and 7 of the Canadian Charter of Rights and Freedoms.

[4] The Assessment for Decision indicates that there were four "Recorded Incidents" assessed against the applicant. An offender having three or more incidents has 3 points added to or included in the Security Reclassification Scale (“SRS). Although the Assessment also notes that a urinalysis completed on December 13, 2012 indicated that the applicant tested positive for prescribed medication, counsel for the respondent explained that a urinalysis must always be recorded, but that the positive test result did not adversely affect the applicant's rating.

[5] The four incidents recorded against the applicant were described as follows:

2012-10-18 Possession of Contraband attributed to a visitor who attended the institution, behaving in a suspicious manner, and subsequently had his car searched. Marijuana was found in his car and police attended. The visitor identified himself as an HA member and indicated that he was here to deliver some cash to his "brother" as a means of support.

2012-10-14 Disciplinary Problems attributed to Robinson and another inmate sharing the phone in Edgewood Unit.

2012-09-28 Observation that Robinson was seeking the name of an officer via "what's the big stocky black female officer's name that works at this jail". He described her as a "bitch that's nicknamed gorilla".

2012-06-15 Unauthorized Items attributed to Robinson as his cell was searched and unauthorized items not listed on his 514 were seized and placed in A&D.

[6] It is also noted in the Assessment that he has an "affable nature in interaction with staff" and has no charges for institutional misconduct. He maintains that he has been described as a "model inmate".

Issues

[7] The issues to be decided are:

1. Whether the application discloses a liberty interest which supports the issuance of the writ of habeas corpus;

2. Whether the decision to maintain the applicant's security assessment was lawful.

The Law

[8] Habeas corpus is an extraordinary writ requiring a two-two-stage analysis. In May v. Ferndale (2005) 2005 SCC 82, 3 S.C.R. 809 at para. 74, the SCC held that:

A successful application for habeas corpus requires two elements: (1) a deprivation of liberty and (2) that the deprivation is lawful. 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.

[9] In Dumas v. Leclerc Institute, 1986 38 (SCC), [1986] 2 S.C.R. 459 [“Dumas”] at para. 11, Lamer, J. described that there are three different forms of deprivations of liberty in a correctional context: (1) the initial deprivation of liberty of imprisonment; (2) a substantial change in conditions amounting to a deprivation of residual liberty; and (3) a continuation of a deprivation of liberty. This application concerns the third type described in Dumas, because there has been no change in the degree, nature or kind of the applicant's deprivation of liberty. Habeas corpus was not available to the offender in Dumas because the court found that there was no substantial change in the conditions of the detention. Mr. Dumas had received a decision that he would be released on day parole, but before that parole was actually granted, the parole board reversed its decision. Because he never became a parolee, there was no change in his deprivation of liberty and the SCC found that he had no right to habeas corpus. Lamer, J. indicated at para. 14 that the lawfulness of the decision to rescind parole could be challenged by other means, such as an application under s. 18 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10 or s. 24(1) of the Charter.

[10] Dumas was applied in Moldovan v. Canada (Attorney General), 2012 ONSC 2682 [“Moldovan”] to reach a finding that habeas corpus was not available on facts very similar to those on this application. Mr. Moldovan objected to the fact that his correctional plan required sexual offender programming, which he stated contravened the provisions of the CCRA, infringed principles of fundamental justice contrary to s. 7 of the Charter and was an abuse of process. He submitted that his unwillingness to comply with the correctional plan, which he believed to be unconstitutional, was taken into account by the National Parole Board in denying him full parole and was one of the factors preventing him from being classified as a minimum-security risk and from being transferred to the minimum-security facility at Beaver Creek. At para. 15 MacDonnell J. held:

[15] (i) Insofar as the application for habeas corpus is based on the refusal of the applicant's request to be transferred to a minimum-security facility, it is dismissed. There has been no change in his security classification, the manner in which a sentence is being served, or the location where it is being served and accordingly there has been no deprivation of liberty that is reviewable by way of habeas corpus…

(ii) Decisions of CSC in relation to correctional plans for inmates do not constitute deprivations of liberty and are not reviewable by way of habeas corpus. They are reviewable under the scheme laid down in the CCRA, but by reason of ss. 18 of the Federal Courts Act, 1985, R.S.C., c. F-7, exclusive jurisdiction for judicial review in that respect is vested in the Federal Court.

[11] Dumas and Moldovan are the complete answer to this application. The applicant challenges the assessment tools and information given to the decision-maker, and objects to the requirement of his correctional plan that he disassociate with Hells Angels. There has been no deprivation of his liberty because his status remains unchanged. Further, the decisions made by CSC in this case, and the criteria on which they are based, are only challengeable in the Federal Court.

[12] In addition, the applicant has raised the constitutionality of the correctional plan and/or the Assessment for Decision by arguing that it infringes his right to freedom of association under s. 2(d) of the Charter because he is expected to not associate with members of Hells Angels. The Supreme Court has made it clear that habeas corpus is directed at liberty interests only, corresponding to s. 7 and s. 9 of the Charter: May v. Ferndale, supra, at para. 22 (S.C.C.); R. v. Miller, 1985 22 (SCC), [1985] 2 S.C.R. 613 at para. 36. Accordingly, the argument made by the applicant is not available to him within a habeas corpus application.

[13] The applicant relies on several decisions of this court in support of his proposition that the refusal to reclassify him so as to support a transfer to a minimum-security facility is a deprivation of liberty. These decisions are Musitano v. Canada (Attorney General), 2006 9151 (ON SC), [2006] O.J. No. 1152 (S.C. J.); Canada v. Hollinger, 2007 36816 (ON SC), [2007] O.J. No. 3326 (S.C.J.); and Her Majesty the Queen v. Scarcella, 2009 32918 (Ont. S.C.). None of the these decisions makes reference to Dumas, and in particular the clear direction set out in Dumas that where there has been no change in the conditions or circumstances of detention, no deprivation of liberty occurs so as to entitle the offender to apply for habeas corpus. For this reason, I disagree with the submission of the applicant's counsel that Musitano, Hollinger and Scarcella can be relied upon to conclude that the decision not to grant a lesser security classification…

[14] Even if the applicant had satisfied the first part of the analysis in May v. Ferndale, I would nonetheless have found that such deprivation is lawful and reasonable on the facts of this case.

[15] There appears to be some uncertainty in the law as to whether courts seized with an application for habeas corpus may consider the reasonableness of the impugned decision, in addition to the issue of jurisdiction. It is the position of the respondent that on an application for habeas corpus, the review of the decision at issue is limited to lawfulness. The Attorney General asserts that in this case the decision by CSC to maintain the applicant's security rating at medium was within its jurisdiction. However, in Khela v. Mission Institution (Warden), 2011 BCCA 450, the British Columbia Court of Appeal held that the reasonableness of the impugned decision may be considered on an application for habeas corpus. The Supreme Court of Canada heard the appeal of that decision on October 16, 2013 and reserved judgment. In contrast, in Judge v. Canada (Attorney General), 2010 ONSC 4811, the Ontario Superior Court declined to adopt the application of reasonableness standard in Khela. At para. 22 Belch, J. stated:

I do not read May v. Ferndale, supra, to say that the Superior Court, on habeas corpus, has concurrent jurisdiction with the Federal Court to review the reasonableness of the decision along with lawfulness. Rather, May v. Ferndale, ibid confirmed inmates may choose to challenge the legality of a decision affecting their residual liberty either in a Provincial Superior court by way of a habeas corpus or in the Federal Court by way of judicial review. Such a decision was required to clear up the confusion as to whether the Superior Court has jurisdiction to use habeas corpus in question of inmate transfer, given the Federal Court had the authority to examine deprivation of residual liberty through a judicial review.

[16] Given the uncertainty in the law I will deal with both aspects. First, with respect to jurisdiction, the applicant has not challenged the jurisdiction of the parole officer, her supervisor, or the Deputy Warden to take the steps that they did, including application of the standardized security reclassification scale, or completion of the Assessment for Decision or Referral Decision Sheet which included the Deputy Warden's decision.

[17] Instead, the applicant attacks the reasonableness of the decision to refuse his transfer, arguing that he has been denied fundamental justice and procedural fairness because certain incidents were unfairly used against him to calculate his SRS score at 19. More importantly, he argues that CSC’s requirement that he disaffiliate from Hells Angels is fundamentally unjust, because he asserts that CSC is demanding that he become an informer prior to allowing him to progress through the system.

[18] The affidavit of Jason Rea (the “Rea affidavit”), who is the Manager for Assessment Intervention and supervisor of the applicant's parole officer, states that the incidents recorded against Mr. Robinson were significant but not determinative of his security rating. Although the applicant minimizes these incidents, they are important in demonstrating both his continued affiliation with members of Hells Angels and his resistance to following institutional rules. In his factum, his counsel argues that the applicant has a right to choose the organizations to which he belongs, in the same way that he has freedom of thought and religion. He argues that the Hells Angels is not an illegal organization, and that to require that the applicant disaffiliate with the club is to coerce the applicant in such a way that he must forgo his Charter s. 2 rights in order to gain the additional freedom afforded by a minimum-security institution.

[19] The Rea affidavit explains that the Hells Angels is considered to be a security threat group which poses a serious threat to the safety of CSC operations and to its duties to protect society. The applicant has made no significant attempt during his sentence to disaffiliate with Hells Angels. As the reported incidents show, one of its members in the community came to bring money to the applicant. Contrary to the rules of the institution, of which he was aware, the applicant shared the telephone with another institutionalized member of Hells Angels. Mr. Robinson's sentence for trafficking cocaine was the result of an undercover operation into the activities of the Hells Angels. Commissioner's Directive 568-3 provides that an inmate's association with a criminal organization shall be considered a significant risk factor when making any decision related to an offender. In the affidavit of Rebecca Barfoot (the “Barfoot affidavit”), who is employed as a Security Intelligence Officer at Fenbrooke, she explains that offender membership or association with a security threat group creates significant risk for assessment and management. Members or associates of security threat groups often exercise influence and power in both penitentiaries and in the community, and often make efforts to continue their criminal and/or illicit activities both within and outside the prison walls.

[20] The Barfoot affidavit also explains that disaffiliation from a security threat group is demonstrated on a case by case basis, and indicia of disaffiliation includes not associating with members of the security threat group within the institution, or refusing to accept visits with or money from members of the security threat group. While it is obvious that providing information about Hells Angels members would provide strong evidence of disaffiliation, the applicant has not pointed to any CSC policy or regulation which states that an offender must become an informer to provide absolute proof of disassociation. The Barfoot affidavit is clear that this can be demonstrated through other means, none of which the applicant has followed. Mr. Robinson simply maintains that he will disaffiliate from the club once he is no longer under federal sentence.

[21] The reasons for classifying Mr. Robinson's public safety risk as moderate are set out in the Assessment for Decision as follows:

This is Robinson's second federal sentence for a drug trafficking offence. Robinson's offending includes his ties to the criminal organization known as the Hells Angels Outlaw Motorcycle Gang. Robinson remains an active full patch member. He is not willing to disaffiliate from the club while he is in federal custody. He associates with other members of the Hells Angels while incarcerated at FMI.

Correctional Services of Canada regards the Hells Angels Outlaw Motorcycle Gang as an illegal organization that is regarded as a Security Threat Group. In accordance with Commissioner's Directive 568-3, this membership is deemed a significant risk and poses a serious threat to the safety and security of CSC Operations and compromises the protection of society.

According to the Judge's Reasons for Sentence, the Judge stated that the selling of cocaine, especially in such a large quantity "leads to major distribution of a deadly drug to the public" and that "cocaine leads to crack cocaine which leads to death and every criminal offence known in the Criminal Code".

According to the Parole Board of Canada decision dated December 2012, "the board defines your ongoing full patch membership in the HA’s to be an extremely aggravating factor. Little weight can be put on your professed intention to leave the gang. You have voiced similar intentions in the past. Your whole life since 1988 has been intricately intertwined with your membership. To this day, while incarcerated, you continue to associate with other members of the HA’s. Your criminal record reflects ingrained criminal values. While your last federal sentence was completed successfully, and you also completed a lengthy bail, the Board places less weight on these accomplishments in light of your decision to evade capture for two years and your ongoing membership in the HA’s. As a full patch member, you would not have to involve yourself personally in criminal activities. Others would do your bidding. Similarly, your membership in the HA’s, and your resulting "status" while incarcerated, leads the Board to place less weight on your good institutional conduct." The primary concern remains Robinson's associations with the Hells Angels.

[22] The decision of CSC is therefore not arbitrary, but based on cogent evidence that the applicant continues to be a moderate threat to public safety because he has made little change in attitude or conduct concerning his support for this organization. The Deputy Warden’s confirmation of the decision to refuse transfer to a less restrictive setting is reasonable in these circumstances. In particular, the applicant’s ongoing connections to the Hells Angels supported the assessment of such threats to public safety as “moderate” and an overall security designation as “medium” in accordance with Corrections and Conditional Release Regulations, s. 17(c) and (d).

[23] For the foregoing reasons the application is dismissed.

[24] The respondent shall have its costs of this application paid by the applicant and fixed in the amount of $2,000 inclusive.

HEALEY J.

Released: January 22, 2014

C O R R I G E N D A

1. Page 4, para. 13 now reads: For this reason, I disagree with the submission of the applicant's counsel that Musitano, Hollinger and Scarcella can be relied upon to conclude that the decision not to grant a lesser security classification…