KINGSTON COURT FILE NO.: CR-14-383-MO

DATE: 2014 Nov 24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MASON J. JENKINS

Applicant

– and –

HER MAJESTY THE QUEEN IN RIGHT OF CANADA (CORRECTIONAL SERVICE CANADA)

Respondent

Applicant, appearing in person

David Aaron, for the Respondent

HEARD: October 15, 2014 at Kingston

BELCH, J.

Habeas corpus DECISION

[1] The Applicant, Mason Jenkins, applies for habeas corpus ad Subjiciendum with Certiorari in Aid as a result of his continued detention in a medium security institution which he submits reflects a higher level of supervision and restriction of liberty than is required or permitted by law.

[2] The Respondent, Her Majesty the Queen in Right of Canada (Correctional Service Canada) (CSC) submits the Applicant has not suffered a deprivation of his liberty given his security classification has been reduced from maximum to medium, he has been moved to a lower security federal penitentiary, a transfer the Applicant had agreed to. Absent deprivation of liberty, his application must be dismissed.

[3] For the reasons that follow, the Applicant’s request for habeas corpus is dismissed.

BACKGROUND

[4] The Applicant is serving a life sentence for first-degree murder. In his own words, he has cascaded through the federal correctional system from maximum security to medium security over the past 14 years. While doing so, he has incurred one major and one minor inmate offence as well as one criminal conviction, none of which were for violence. There have been no offences since 2009 and he has completed the objectives of his rehabilitative strategy known as his correction plan.

[5] In 2013, he was involuntarily transferred from medium security Bath Institution to maximum security Millhaven Institution. He filed an application for habeas corpus as a result of the transfer from medium to maximum security. He was represented by legal counsel on that application.

[6] Before the matter proceeded to trial, the Respondent offered terms of settlement which were accepted by the Applicant. Before acceptance, the Applicant and his counsel attempted to change the terms of settlement allowing the Applicant to choose the medium security institution to which he would be transferred, however, the proposed changes were rejected by the Respondent. The Applicant’s choice for the medium security institution was either Bath or Fenbrooke. The Applicant, through his counsel, accepted the terms of settlement after his proposed changes had been turned down. The terms of settlement are as follows:

Within five days of accepting these minutes of settlement, the Applicant, Mason Jenkins, will discontinue the habeas corpus application by filing a Notice of Discontinuance with the Superior Court of Justice in Kingston, Ontario.
Upon receipt by CSC of proof that the Notice of Discontinuance has been filed, Mason Jenkins will be moved from Millhaven Institution to a medium security federal correctional institution in Ontario. The move will take place no later than 30 business days following the receipt of the Notice of Discontinuance.
All references to the involuntary transfer and increase to maximum security classification that are at issue in this application will be removed from the Applicant’s CSC file and CSC will not rely on them in taking future decisions or in providing information or making representations to the Parole Board Canada.
Both parties agree not to seek costs in this application.
This agreement, in no way, abrogates the rights and responsibilities of the CSC as outlined in applicable legislation, regulations and institutional rules.
This agreement, in no way, abrogates the discretion of CSC to manage federal correctional institutions in accordance with applicable legislation regulations and institutional rules.

[7] During the transfer proceedings, the Applicant discovered the Respondent intended to transfer him to the medium security facilities at Warkworth. The Applicant, immediately and prior to transfer, made it known he objected and was withdrawing his consent. He announced this made his an involuntary, not a voluntary transfer and he wrote on CSC documents the word “involuntary.”

[8] It was revealed CSC could not strictly comply with the wording of paragraph 3 of the terms of settlement because they were unable to alter documents which had been “locked down.” All reference to the involuntary transfer and increase to maximum security classification at issue and in all other instances where a complete deletion was not possible, a memorandum was placed on the Applicant’s CSC file indicating all references to involuntary transfer and increase to maximum security classification were not to be taken into consideration when making decisions and were not to be provided when making representations to the Parole Board of Canada. A copy of the settlement agreement was also placed on the Applicant’s file.

[9] When the Applicant was transferred to Warkworth, he filed the present application for habeas corpus.

APPLICABLE LAW

[10] Both the Respondent and Applicant referred the court to many case authorities as the use of habeas corpus within the prison system has been quite robust. Neither side took issue with the jurisdiction of the Superior Court of Justice to hear this application. Both acknowledged the applicability of the cases of May and Ferndale Institution 2005 SCC 82, [2005] S.C.J. No. 84 and Khela v. Mission Institution (Warden), 2010 BCSC 721.

[11] The parties agree a successful application for habeas corpus has two elements: deprivation of liberty; and that the deprivation be unlawful. The onus of establishing the deprivation of liberty rests on the Applicant; and the onus of establishing the lawfulness of that deprivation rest on the detaining authority. In considering lawfulness, a court is concerned with whether the decision is within the jurisdiction of the decision-maker. Transfer decisions that violate the Charter, the common-law duty of procedural fairness, or statutory duties should be considered null and void for lack of jurisdiction. A decision-maker will also lose jurisdiction if the decision is unreasonable.

ISSUES

[12] The issues are:

a. Has the Applicant suffered deprivation of liberty?

b. If so, is the deprivation lawful?

c. Is the decision reasonable?

APPLICANT’S POSITION ON DEPRIVATION OF LIBERTY

[13] Initially serving a life sentence for first-degree murder in a penitentiary setting deprives one of his liberty. The Applicant made no argument on either the reasonableness or lawfulness of the court’s decision on conviction and sentence. Before his involuntary transfer to Millhaven Institution, the Applicant was incarcerated at Bath Institution where he was accommodated in housing with free egress with limited restrictions. There is no doubt at the time of his first application for habeas corpus, the transfer to Millhaven, a maximum-security institution, represented a deprivation of liberty. That application for habeas corpus was discontinued pursuant to terms of settlement above and the Applicant was transferred to the medium security facility at Warkworth. Evidently, the housing arrangements at Warkworth were more restrictive than those at Bath even though they are both medium security facilities. The Applicant relies upon the difference in housing, in particular, the freer access at Bath to say he has suffered deprivation of his liberty.

RESPONDENT’S POSITION ON DEPRIVATION OF LIBERTY

[14] The Respondent submits there has been no deprivation of liberty in the present case. The Applicant was transferred from a maximum security to a medium security prison. He now faces fewer restrictions on his liberty than he did prior to transfer. He is now housed in a penitentiary with less restrictive detention from that which was imposed pre-transfer. In addition, the Applicant voluntarily agreed to the transfer with which he now takes issue. He was represented by counsel receiving legal advice before agreeing to the transfer. There can be no deprivation as a result of his own conduct.

[15] The Respondent relies upon a decision of the Supreme Court of Canada in R. v. Miller 1985 22 (SCC), [1985] 2 SCR 613, para.36: “… an application for habeas corpus does not … lie to challenge any and all conditions of confinement in a penitentiary or prison, including the loss of any privilege enjoyed by the general inmate population. But it should lie, in my opinion, to challenge the validity of the distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution.”

[16] The Respondent submits the court must be cautious not to improperly usurp the discretion bestowed upon the Warden by the Corrections and Conditional Release Regulations to manage the care, custody and control of all inmates in the penitentiary and the management, organization and security of the penitentiary as he sees fit. In fact, this discretion was recognized and accepted by the Applicant as part of the terms of settlement of his previous habeas corpus application.

REPLY

[17] The Applicant replies by disputing the transfer from Millhaven to Warkworth was voluntary stating after the terms of settlement, but prior to the transfer, he withdrew his consent, thereby, making the transfer involuntary not voluntary as the Respondent’s documentation suggests. In fact, the Applicant wrote upon the Respondent’s documents that this was an involuntary transfer.

DEPRIVATION, ANALYSIS AND CONCLUSION

[18] The court agrees the transfer from Millhaven to Warkworth presented the Applicant with more, not less freedom and therefore, there is no deprivation of liberty. In the event there was deprivation, the Applicant agreed in minutes of settlement to the move. Before agreement, he attempted to negotiate more favourable terms without success while he had the assistance of legal counsel.

PARAGRAPH 3 of the TERMS OF SETTLEMENT

[19] Has CSC breached the terms of settlement? CSC agreed to remove all references to the involuntary transfer and increase to maximum security classification that is at issue in this application from the Applicant’s CSC file. Now CSC submits it has taken appropriate steps to remove from the Applicant’s CSC file all references to the involuntary transfer and increase to maximum security classification at issue, however, it states that where a complete deletion of these references was not possible, a memorandum was placed on the Applicant’s CSC file indicating that all references to involuntary transfer and increase to maximum security classification are not to be taken into consideration when making decisions and are not to be provided when making representations to the Parole Board of Canada. In addition, a copy of the terms of settlement was also placed on the Applicant’s file, and in doing so, it submits CSC complied with its obligations.

[20] The Applicant is concerned a subsequent decision-maker may apply the involuntary transfer and increase to maximum security into account because he or she will have notice, of it despite the memorandum placed on his file. CSC argues if a decision-maker inappropriately uses such information, this can be addressed by judicial review. Also, this issue has been addressed in at least two decisions of the Federal Court when a memorandum with similar wording was placed in an Applicant’s file.

[21] In Brown v. Canada (Attorney General) [2006] F.C.J. No. 571 paragraph 26, “To a large extent, what is recorded in the Security Intelligence Report... And at paragraph 29…. Even if the allegations made by JB were indeed totally spurious, there are very good reasons why the correctional service of Canada may quite properly want to keep a record on Mr. Brown’s file of the fact that the allegations had been made against him.”

[22] At paragraph 36 the court writes, “in the event that at some point in the future, Mr. Brown forms the view that the parole board has made improper use of the information currently on his file in denying him parole, it would be open to him to seek judicial review of any negative decision that he might receive.”

[23] In MacDonald v. Canada (Attorney General) [2009] F.C.J. No. 1097, the Federal Court follows Brown, in which a judicial review was granted and an offending reference was removed and replaced by:…” After a file review, any reference to this conviction will not be taken into consideration with regards to any decision making.”

[24] The Applicant’s fear of the use of this material is understandable, particularly, if the decision making authority uses the material without revealing it was taken into account. Judicial review in these circumstances would be futile. Also, the memorandum suggested by CSC is strictly speaking not in full compliance with “all” reference.

[25] Taking everything into consideration, I am satisfied while the involuntary transfer from medium to maximum security in fact occurred, the transfer was reversed, and the documentation confirms the reversal. The wording to the used has been approved of in previous court decisions and the proposed memorandum and the filing of the terms of settlement in the Applicant’s file is in substantial compliance with the terms of settlement.

[26] Absent deprivation and taking into account the terms of settlement, the application for habeas corpus is dismissed. In the event my finding is in error, I will go on to address lawful and reasonableness later in this judgment.

IF THERE WAS DEPRIVATION OF LIBERTY, WAS IT LAWFUL?

APPLICANT’S POSITION ON LAWFULNESS

[27] The Applicant argues his transfer to Warkworth was done without complying with the requirement for administrative fairness within the meaning of section 27 of the Corrections and Conditional Release Act and also breached his rights under sections 2 and 7 of the Charter.

[28] Addressing section 27, the Applicant argues the Warden did not provide all of the information intended to be used on his hearing transfer to the Applicant. In addition, the information used by the Warden was incorrect. For example, the material speaks of an incompatibility with an individual at Bath when that individual had filed documentation declaring there was no incompatibility. Further, the Warden relied upon recommendations from staff which were vague and unsupported by the facts. No reference was made to the fact his transfer was now involuntary as he had withdrawn his consent. Where habeas corpus or review is sought of an administrative decision that has the effect of deprivation of liberty, the court should have careful regard to the decision-maker’s legal justification.

[29] The Applicant argues the transfer decision was not made on principles of fundamental justice as required by section 7 of the Charter. Not only did the Warden fail to follow the rules for an involuntary transfer, he relied on information that was not up to date and accurate.

RESPONDENT’S POSITION ON LAWFULNESS

[30] The Respondent submits the Warden acted within his jurisdiction in making the transfer and relies upon section 29 of the Corrections and Conditional Release Act. He also followed the appropriate Regulations and Commissioner’s Objectives. Further, the Applicant was not denied procedural fairness. The Applicant fails to identify any document or information to which he claims to have been unable to obtain access, nor does he indicate he made any request for specific documents or information, or that such a request was denied.

[31] The Warden had access to the Assessment for Decision when he rendered his transfer decision. That assessment contained the Applicant’s criminal history, his most recent psychological risk assessment, his Security Reclassification Scale actuarial results of June 4, 2014, a review of his institutional behaviour, escape risk, and risk to public safety ratings. The Applicant was provided with a copy of this assessment. There is no evidence to suggest the Warden relied upon specific confidential intelligence or informant information and therefore, there was no such information to disclose.

[32] The Applicant fails to identify any specific information that he claims to be missing or any other specific occurrence to support his claim.

ANALYSIS AND CONCLUSION ON LAWFULNESS

[33] It is impossible for the court to know what reliance was placed on the possibility of an incompatible at Bath institution in preventing the Applicant’s return to Bath. The Assessment for Decision appears to contain sufficient information to allow the Warden to make the decision he did. Other than the reference to the incompatible, there is no allegation the other information provided was either vague or incorrect

[34] The Applicant places great reliance on his withdrawal of consent to the transfer. His attempt to withdraw consent has little impact on an agreement already made and to influence the choice of the medium security institution.

[35] Can the Applicant’s unilateral withdrawal of the terms of settlement put him in better standing than he was before? The applicant’s original habeas corpus application found him in maximum security at Millhaven. If unsuccessful, he would be left in maximum security. If successful, and the court speculates that may well have been the result, given the respondent was prepared to offer terms of settlement, the court could only order his transfer to a medium security facility in Ontario. The court does not have the authority to dictate which medium security facility. See R. v. Miller. Prior to signing the terms of settlement, the Applicant and his counsel’s attempts to select the medium security facility of their choice were rejected. The terms of settlement read in para. 2 “… Mason Jenkins will be moved from Millhaven Institution to a medium security federal correctional institution in Ontario,” and he was moved to Warkworth.

[36] Neither the terms of settlement nor success in an application for habeas corpus could prevent those in administration at CSC from selecting the medium security institution in which the sentence was to be served.

[37] The court is not swayed by the Applicant’s arguments on lawfulness.

IF THERE WAS DEPRIVATION OF LIBERTY, WAS IT REASONABLE?

[38] The Applicant argues because CSC chose not to disclose or apply all the information available prior to making a decision that could assist all parties, the decision to transfer to Warkworth was not reasonable.

[39] CSC relies upon the case of Mission Institution v. Khela. In that case, at paragraph 65, the court held, “reasonableness should therefore be regarded as one element of lawfulness.”… And at paragraph 72,” reasonableness is therefore a “legitimate ground” upon which to question the legality of a deprivation of liberty in an application for habeas corpus … . At paragraph 73, … a Transfer decision that does not fall within the “range of possible, acceptable outcomes which are defensible in respect of the facts and law “will be unlawful… . At paragraph 74, … as things stand, a decision will be unreasonable, and therefore unlawful, if an inmate’s liberty interest are sacrificed absent any evidence or on the basis of unreliable or the relevant evidence, or evidence that cannot support the conclusion, although I do not foreclose the possibility that it may also be unreasonable on other grounds. Deference will be shown to a determination that evidence is reliable, but the authorities will nonetheless have to explain that determination.”

[40] A reading of the Khela decision reveals the Warden, in making the transfer decision, considered information that she did not disclose to Mr. Khela nor did she give him an adequate summary of the missing information and the withholding of this information was not justified therefore the Warden’s decision did not meet the statutory requirements related to the duty of procedural fairness. Further, the Warden failed to disclose the scoring matrix for the SRS and this was procedurally unfair.

[41] As already discussed under the topic of lawfulness, the Applicant in the present case failed to identify any document or information to which he did not have access. The Warden’s decision was based on the assessment provided to the Applicant and there is no evidence the Warden used specific confidential intelligence or informant information. The Applicant’s objection to the source of some of the information such as which parole officer provided the information was, at best, an irregularity only.

[42] In summary, at the first application for habeas corpus the parties with legal advice made an agreement whereby the Applicant was to be transferred from a maximum to medium security institution. That agreement was substantially complied with. The Applicant cannot improve his position by unilaterally withdrawing from the agreement. The Applicant does not get to choose the medium security institution to which he is to be sent. Finally, neither can the court direct the choice of institution.

[43] The Applicant has not made the case for either on unlawfulness or unreasonableness and accordingly, his application for habeas corpus is dismissed, without costs.

Honourable Mr. Justice Douglas M. Belch

Released: November 24, 2014

KINGSTON COURT FILE NO.: CR-14-383-MO