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COURT FILE NO.: CR-14-396-MO

DATE: 2014/12/01

IN THE SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Julian Telfer vs. Her Majesty the Queen in Right of Canada

BEFORE: The Honourable Mr. Justice R. F. Scott

COUNSEL: J. Todd Sloan, Solicitor for Applicant

Youri Tessier-Stall, Solicitors for the Respondent

E N D O R S E M E N T

[1] Julian Tefler, a Federal Inmate (the Applicant) seeks an order granting relief in the nature of Habeas Corpus and Subjiciendum with Certiorari in Aid thereof to have the Applicant returned to the medium security Collin’s Bay Institution (“CBI”) from the maximum security Millhaven Institution (“MI”) where he was involuntarily transferred as a result of his involvement in an inmate assault in May of 2014. The Respondent opposes the Application.

[2] The parties agree that this Court, the Superior Court of Justice, has the jurisdiction to review this involuntary transfer by means of a Habeas Corpus Application and, that as a result of the segregation and the transfer to a higher security facility, the Applicant has suffered deprivation of liberty.

[3] The parties further agree that once the deprivation of liberty is demonstrated, the onus is on the Respondent to show that the deprivation was lawful.[^1]

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[4] Briefly, the Applicant submits that:

(1) the Warden failed to provide the Applicant administrative fairness at common law or within the meaning of the Corrections and Conditional Release Act (“the CCRA”) and the Corrections and Conditional Release Regulations, DOR/92- 620 (“the CCRR”);

(2) the decisions relating to his transfer breached the Applicant’s right to security of the person and liberty under section 7 of the Canadian Charter of Rights and Freedoms (“the Charter”);

(3) the decision to transfer was not justified under section 1 of the Charter;

(4) The Warden’s reasons and justification for the decisions did not comply with the CCRA and the CCRR provisions relating to segregation, security and were not reasonable classifications and transfers; and

[5] Central to each of these submissions is the Applicant’s submissions that the Applicant was denied sufficient disclosure of the facts known to the Warden in reaching his decision to segregate and transfer the Applicant and, thereby, the Applicant was not able to properly answer or rebut the involuntary transfer decision.

[6] The Respondent submits that the Application for Habeas Corpus should be dismissed because the respondent complied with all procedural requirements of the CCRA and the CCRR. The Applicant’s security classification was increased due to his involvement in an assault against a fellow inmate which necessarily resulted in his transfer.

[7] The Respondent further argues that the resulting deprivation was lawful that it had the jurisdiction to make the involuntary transfer and that it fulfilled its disclosure obligations and was authorized to withhold certain information for safety reasons.

[8] On this point, the Respondent submits that should this Court ultimately determine that any of the withheld information should have been disclosed, such non-disclosure was a technical breach and, the Respondent’s decision was nevertheless reasonable.

[9] Lastly, the Respondent submits that the Warden’s decision to transfer the Applicant to a higher security institution was reasonable under the circumstances.

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BACKGROUND:

[10] The Applicant is serving a five year, five month sentence for weapons and drug offences. He is associated with the Jamestown Crips.

[11] Previously released on parole on this sentence, his parole was revoked due to a breach of curfew, his deteriorating attitude and serious criminal history.

[12] Prior to the assault which is central to this matter, the Applicant had been implicated in two other assaults during this sentence in 2010 and 2012 respectively. The latter assault resulted in his involuntary transfer to MI.

[13] During the course of this incarceration, the Applicant had other difficulties including testing positive to a THC drug test and challenging the non-association condition relating to gang members.

[14] On May 3, 2014, an inmate of CBI by the name of Charlton (the victim), was assaulted in his cell.

[15] A few days later, a reliable proven source informed a member of the staff at CBI investigating the assault that on the day and time of the assault, the Applicant and two other inmates had entered the victim’s cell, closed the cell door, assaulted the victim and stole his drugs. A review of video footage of the corridor adjacent to the victim’s cell confirm that the Applicant together with two others, had entered the victim’s cell where they remained behind the closed door for approximately 24 minutes during the alleged assault.

[16] On the same day that the informant came forward and the video was reviewed, the Applicant was involuntarily placed in segregation pending on investigation. On 1 October 2014, the Applicant was removed from segregation and transferred involuntarily to Millhaven.

[17] There is no dispute between the parties that the Respondents provided the Applicant with all necessary documents which aside from the disclosure issues, provided certain information rationalizing the involuntary transfer from CBI to MI. These documents were:

(a) the Security Reclassification Scale (“SRS”);

(b) the Assessment for Decision (“A4D”);

(c) the Notice of Involuntary Transfer Recommendation (“Transfer Notice”);

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(d) the Referral Decision Sheet for Offender Security Level (“Security Level Referral”); and,

(e) the Referral Decision Sheet for Institutional Transfer (“Transfer Referral”).

[18] The Applicant through counsel twice rebutted in writing the decision. As well, due to the unavailability of the Applicant’s counsel, the Applicant and his counsel also received and reviewed the video a few weeks prior to this Hearing.

[19] Each rebuttal requested additional disclosure however, the Transfer Referral provided to the Applicant indicated that such additional information would not be released with reliance being placed on s. 27(3) of the CCRA in order to protect the safety of the Confidential Sources. S. 27(2) of the CCRA requires that the Applicant receive “all the information that was considered in taking of the decision or a summary of that information”.[^2]

[20] S. 27(3) reads in part; “Where the Commissioner has reasonable grounds to believe that disclosure of information under s. 27(2) CCRA “would jeopardize (a) the safety of any person”.

[21] As required by paragraph 87 of Khela,[^3] the Respondent provided this Court, the reviewing Court, with a sealed affidavit which contained the relevant information considered in arriving at the transfer decision as well as other required information necessary to satisfy this judicially imposed requirement relating to the “safety” of the believed reliable source (Exhibit “1”)

[22] In determining whether the deprivation of the Applicant’s residual liberty interest due to his reclassification and transfer to MI is lawful, a number of issues must be resolved.

PROCEDURAL AND ADMINISTRATIVE FAIRNESS AND THE OBLIGATION TO DISCLOSE:

My review of the disclosure provided to the Applicant during relevant times together with a review of the confidential affidavit material provided to me in a sealed envelope (Exhibit

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“1”), the limited disclosure was necessary and justified particularly as the Warden was justified in relying on s. 27(3) of the CCRA and provided the Applicant with this decision as required.

REASONABLE:

There is no issue that as a result of the decision in Khela, an inmate has the right to pursue the reasonableness of the decision to deprive the Applicant of his liberty within the Federal Correctional System through the Application for Habeas Corpus before the Superior Court.

Given all of the facts before this writer, there is no doubt that the Warden’s decision was reasonable on all matters. As to the legality of the deprivation of liberty, the Respondent has satisfied the onus on them and have justified all aspects of the lawfulness of the detention of the Applicant.

Lastly, the parties agree that the proper Style of Cause relating to the Respondents should be “the Attorney General of Canada” rather than “Her Majesty the Queen in Right of Canada”, and such change is so ordered.

The Application for Habeas Corpus is dismissed. Costs would not be appropriate under the circumstances.

The Honourable Mr. Justice R. F. Scott

DATED: December 1, 2014

[^1]: May v. Ferndale Institution, 2005 SCC 82 and Mission Institution v. Khela, 2014 SCC 24

[^2]: CCRA s. 27(2)

[^3]: Mission Institution v. Khela, supra paragraph 87