IN THE SUPERIOR COURT OF JUSTICE – ONTARIO

Court File No.: CR-14-411-MO
Date: 2014/12/11

RE: Yang Yang vs. The Warden of Millhaven Institution

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

Counsel:
Mary Jane Kingston, Solicitor for the Applicant
David Aaron, Solicitor for the Respondent

Heard: Friday, October 31, 2014

ENDORSEMENT

[1] This is an application by a Federal inmate for a writ of Habeas Corpus with Certiorari in Aid for the alleged illegal detention and transfer of the inmate from a medium security prison to a high security prison due seemingly, to a misunderstanding and the unreasonableness of the decision by the Warden of the medium security prison who allegedly unlawfully ordered the inmate’s transfer.

[2] The core facts are not in dispute. The explanation for the facts by the inmate and the ultimate decision by the Warden are in dispute.

[3] The applicant inmate is 29 years of age, was at all material times serving a Federal sentence of 7 years and 7 months for a number of offences including forcible confinement and robbery and had been returned to Collins Bay Institution (CBI).

[4] On March 21, 2014, the Applicant was returning from the general population area to his cell on his range. At a checkpoint, he failed to clear a metal detector operated by a Correctional Officer (C.O.) Upon being directed by the C.O. to remove his shoe, he pulled a sharpened “butter knife” from his shoe and handed it to the C.O. At the same time, he advised the C.O. that he, the Applicant, did not know that the knife was in his shoe or how the knife got into his shoe.

[5] That day, the Applicant was placed in segregation and following an investigation was transferred to a high security prison, namely Millhaven Institution (MI), a higher security prison.

[6] A certain member of his case management team being a parole officer within the institution who was familiar with the Applicant and who initially investigated the incident, ultimately believed the Applicant that he did not know how the knife got into his shoe and that the knife must have fallen into his shoe before he left his cell that day for the general population. He was charged criminally for this incident with his case pending trial. A member of the Case Management Team ultimately advised the Warden of these beliefs who, following an interview with the Applicant made his Final Decision which was also served on the inmate and which resulted in the inmate being transferred to MI.

[7] In his Final Decision the Warden noted the difference of opinion by one of his staff. Nevertheless the Warden concluded following his review of all necessary documents and findings and following his own interview of the inmate, as follows:

“After hearing and considering the merits of Yang’s rebuttal, I do not believe his explanation to be a credible one. Yang admits that the explanation he provided sounds unlikely and that he did not readily provide this explanation to officers until well after the incident happened. Consequently, I do not find it reasonable to believe that he did not notice a knife present inside his shoe while he walked around the institution. In considering the circumstances it is apparent to me that he possessed the weapon either for self-defence or with intentions to use it on someone else.

In possessing the weapon, his actions present a substantial risk that jeopardizes the safety and security of both staff and inmates due to the potential for serious harm that use of the weapon may cause. While Yang is apologetic for the incident, his behaviour is clearly not in accordance with the expectations of a medium security inmate.” ^1.

[8] The Warden then approved his involuntary transfer to MI.

[9] The Applicant submits that the decision by the Warden for the involuntary transfer does not meet the test for reasonableness as enunciated recently by the Supreme Court in Mission Institution v. Khela, 2014 SCC 24, [2014] 1 SCR 502, in light of the recommendation by one of his staff to the contrary. The Applicant submits that the Warden’s decision is unreasonable and therefore constitutes an unlawful involuntary transfer.

[10] There is no argument that there was a deprivation and that the Superior Court is able to hear this matter. The central issue is whether the decision by the Warden for the involuntary transfer was reasonable.

[11] Clearly, the circumstances of the case indicate that an involuntary transfer falls well within the “range of possible, acceptable outcomes which are defensible in respect of the Facts and law.” ^2. The respondents also followed the necessary procedures and are able to justify the Final Decision.

[12] The Warden is the person authorized by statute to make the Final decision on the involuntary transfer and he did. That there exists a difference of opinion between a member of the review team and the Warden, as acknowledged in writing by the Warden, demonstrates that there exists a healthy dialogue by team members within the facility.

[13] I feel that the decision by the Warden on critical matters, to be reasonable given all of the circumstances, particularly given it is his duty and responsibility to make the final determination not the Parole Officer.

[14] Procedural fairness was not mentioned, nor is it alleged.

[15] The application for Habeas Corpus is dismissed. Costs are not appropriate given all of the circumstances.

The Honourable Mr. Justice R.F. Scott

DATED: December 11, 2014