Tyler v. Attorney General of Canada, 2015 ONSC 1283
BRACEBRIDGE COURT FILE NO.: 14-15 MO
DATE: 20150226
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHRISTOPHER TYLER
Applicant/Moving Party
– and –
THE ATTORNEY GENERAL OF CANADA
Respondent
B. Callender, for the Applicant/Moving Party
M. Sims, for the Respondent
HEARD: February 18, 2015
VALLEE, J.
Introduction
[1] Mr. Tyler brings this application for habeas corpus ad subjiciendum with certiorari in aid for an order that he be transferred back to Beaver Creek Institution – Minimum Security or another minimum security institution within the Ontario region. On May 1, 2014, Mr. Tyler was reclassified and transferred Beaver Creek Institution – Medium Security. He makes three allegations:
[2] That in transferring him the Commissioner of Correctional Services Canada and its officers failed to adhere to the level of procedural fairness which was owed to him;
[3] That in making the transfer the Commissioner of Correctional Services Canada and its officers failed to act in accordance with the Corrections and Conditional Release Act; and
[4] That the Commissioner of Correctional Services Canada and its officers failed to act reasonably.
[5] Mr. Tyler is a federal inmate serving a life sentence for murder. Beaver Creek Correctional Institute is divided into two parts. Beaver Creek Correctional Institute – Minimum (BCI – Min) is a minimum security facility where inmates are housed in various units. They cook their own meals in their units. There is no perimeter security. An inmate could simply walk away from BCI – Min if he wished to do so. In contrast, Beaver Creek Institution – Medium (BCI – Med) has a higher level of security which includes perimeter security.
Issues
[6] The issues as set out by Mr. Tyler are as follows:
[7] Whether Mr. Tyler has raised a legitimate ground to question the legality of his detention at BCI – Med in order to shift the onus onto the respondent to justify the lawfulness of his detention there;
[8] If the answer to a) is yes, whether the institutional head exceeded his jurisdiction by failing to afford Mr. Tyler the level of procedural fairness owed to him in law; and
[9] If the answer to b) is no, whether the institutional head’s decision to transfer Mr. Tyler involuntarily to BCI- Med was reasonable in all the circumstances.
The Tests for Determining the Issues
[10] The parties do not have any significant disagreement on the tests to be applied.
Authority to Transfer
[11] The test on an application for habeas corpus has two parts. First the applicant must show a deprivation of liberty (see Maestrello). Second, where a deprivation of liberty is shown, the respondent must show that the deprivation was lawful. (see May v. Ferndale Institution, 2005 SCC 82, [2005] S.C.J. No. 84 (S.C.C.) para. 100)
[12] The Correction and Conditional Release Act, S.C. 1992 C.20 (CCRA) and its associated regulations provide that the Correctional Services of Canada (CSC) must assign every offender a security classification.
[13] The Act also permits the CSC to transfer an offender to another institution and to reclassify him or her at a higher or lower security level. (sections 28-30).
[14] 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 when it is manifestly clear the inmate has not been dealt with fairly, taking into account all of the circumstances surrounding the transfer. (see Bachynski v. William Head Institutions, 57 A.C.W.S. (3d) 2.)
[15] Classification and transfer decisions are owed a high degree of deference from reviewing courts, given the inherent difficulty and complexity in administering a prison. The decision to transfer need not be perfect. It need only be taken on the basis of reasonable belief that the transfer was required for the safe and orderly administration of the institution. (See Mission Institution v. Khela, 2014 SCC 24, 2014 S.C.C. 24)
[16] The scope of review under habeas corpus may involve an analysis of whether the decision maker has complied with the duty of fairness appropriate for the particular circumstances or whether the duty has been breached. (see Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J. 2056 (F.C.A.))
[17] Generally when a breach of procedural fairness is found, the challenged decision should be set aside. (see Cardinal and Oswald v. Director of Kent Institution, 1985 23 (SCC), [1985] S.C.J. No. 78 (S.C.C.))
[18] One aspect of procedural fairness is the requirement to make adequate disclosure to the inmate regarding the grounds for the transfer and the evidence that was considered.
[19] In Khela, the Supreme Court considered the issue of disclosure under s. 27 and held as follows:
…even inmates transferred on an emergency and involuntary basis are therefore entitled to all the information considered in the warden`s decision making process, or a summary thereof, except where s. 27(3) applies. The requirement that the inmate be provided with “all the information” can be satisfied by providing him or her with a summary of the information.
…the onus is on the decision maker to show that s. 27(1) was complied with.
This disclosure is not tantamount to the disclosure required by R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326…section 27 does not require the authorities to produce evidence in their possession that was not taken into account in the transfer decision; they are only required to disclose the evidence that was considered. Furthermore whereas Stinchcombe requires the Crown to disclose all relevant information, s. 27 of the CCRA provides that a summary of that information will suffice.
…if the Commissioner or a representative of the Commissioner, chooses to withhold information from the inmate on the basis of s. 27(3), the onus is on the decision maker to invoke the provision and proof that there were reasonable grounds to believe that disclosure of that information would jeopardize one of the listed interests.
Where, pursuant to s. 27(3), the correctional authorities do not disclose to the inmate all the information considered in the transfer decision or a summary thereof, they should generally, if challenged on an application for habeas corpus submit to the judge of the reviewing court a sealed affidavit that contains both the information that has been withheld from the inmate compared with the information that was disclosed and the reasons why disclosure of that information might jeopardize the security at the penitentiary, the safety of any person or the conduct a lawful investigation.
When the prison authorities rely on kites or anonymous tips to justify a transfer, they should also explain in the sealed affidavit why those tips are considered to be reliable. When liberty interests are at stake, procedural fairness also includes measures to verify the evidence being relied upon. If an individual is to suffer a form of deprivation of liberty, “procedural fairness includes a procedure for verifying the evidence adduced against him or her” (see Charkaoui v. Canada (Citizen and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326, at para. 56)
Section 27(3) authorizes the withholding of information when the Commissioner has “reasonable grounds to believe” that should the information be released, it might threaten the security of the prison, the safety of any person or the conduct of an investigation. The Commissioner, or his or her representative, is in the best position to determine whether such a risk could in fact materialize. As a result, the Commissioner or the warden is entitled to a margin of deference on this point. Similarly, the warden and the Commissioner are in the best position to determine whether a given source of information is reliable. Some deference is accordingly owed on this point as well. If, however, certain information is withheld without invoking s. 27(3), deference will not be warranted and the decision will be procedurally unfair and therefore unlawful.
Disclosure
[20] The applicable statutory duty of disclosure in respect of transfer decisions is substantial and extensive. (see May, para. 100)
[21] A prisoner is to receive full disclosure unless s. 27(3) of the CCRA requires that information must be withheld. (see Athwal v. Ferndale Institution, 2006 CarswellBC 2271, para. 23)
[22] The Act also provides that where an offender has the right to make representations, he or she shall be given the information to be considered by the decision made or a summary of that information. (CCRA s. 27(1))
[23] Notwithstanding its onerous information sharing obligations, the Act permits the CSC to withhold information considered in a transfer decision which it reasonably believes might threaten a protected interest:
s. 27(3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosure of information under subsection 1 or 2 would jeopardize
a) the safety of any person,
b) the security of a penitentiary, or
c) the conduct of any lawful investigation,
the Commissioner may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified in paragraph a, b or c.
[24] Where the disclosure of information would threaten the security of a person, such as the identity of a confidential informant, that information need not be provided to the offender. (see Alzehrani v. Warden of Kingston Penitentiary, 2013 ONSC 5160, para. 60)
[25] As noted above, the obligation to make disclosure under s. 27(1) of the CCRA and the exemption from that obligation permitted under s. 27(3) was dealt with by the Supreme Court of Canada in Khela.
[26] That case involved an involuntary transfer, on an emergency basis, because Mr. Khela’s security classification was reassessed as a result of Mr. Khela’s allegedly arranging for the assault of another inmate.
[27] Mr. Khela brought an application for habeas corpus on the ground that non-disclosure as required by s. 27(1) rendered the decision unlawful.
[28] At the trial level, the court found that the statutory obligation to disclose under s. 27(1) the CCRA was “onerous, substantial and extensive.” (para. 44) The trial judge concluded that the warden had failed to prove that she had fulfilled her obligation to make disclosure “to the greatest extent possible.” (para. 46 and 59)
[29] In particular, the trial judge found that the warden had unjustifiably failed to disclose the specific statements made by the anonymous sources, information concerning the reliability of these anonymous sources, and the scoring matrix relied upon for the SRS calculation. (para.51 and 56) The trial judge set aside the decision as being null and void.
[30] The Court of Appeal in Khela allowed the appeal only to the extent of limiting the trial judge’s order to read that habeas corpus was granted and that Mr. Khela should be returned to a medium security institution. (para. 95).
Reasonableness
[31] An administrative decision will be reasonable if, when considered in light of the record before the decision maker, it falls within a range of possible, acceptable outcomes. (see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, para. 47)
[32] Reasonableness is a deferential standard of review:
In assessing whether the decision is reasonable in light of the outcome and the reasons, the court must show “respect for the decision-making process of adjudicative bodies with regard to both the facts and the law”…this means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome. (Newfoundland Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 para. 15).
[33] In Dunsmuir, the court stated:
Reasonableness is the deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to the outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process. But is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. (Dunsmuir para. 47)
[34] In Khela, para. 74, the court stated:
As things stand, a decision will be unreasonable, and therefore unlawful, if an inmate’s liberty interests are sacrificed absent any evidence or on the basis of unreliable or irrelevant 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.
[35] Deference is owed particularly in a case such as this, given that the court must defer to the CSC’s determinations of both the risk posed to the institution and its assessment of the reliability of the intelligence information received. (see Khela para. 89).
Events Leading to Mr. Tyler’s Reclassification and Transfer to BCI - Med
[36] The Crown set out a detailed chronology of the events leading to Mr. Taylor’s reclassification. It is set out below because there is little disagreement concerning the sequence of events.
[37] Mr. Tyler has a long history of incarcerations and escaping from custody. Mr. Tyler has escaped or been unlawfully at large at least nine times since 1981. The last time he escaped, Mr. Tyler strangled the wife of a former inmate while having sex with her. He is serving a life sentence for her murder.
[38] Mr. Tyler also has a history of suspicious behaviour which indicates escape planning. Correctional authorities have discovered detailed escape plans in his cell.
[39] The authorities at BCI had been aware for some time that Mr. Tyler was involved in the drug and tobacco subcultures within the institution.
[40] On April 29, 2014, the BCI Security Intelligence Office (“SIO”), Bobbi McMullin, received an anonymous tip indicating that Mr. Tyler was intending to escape from BCI – Min. When confronted, Mr. Tyler denied that he intended to escape. As the information was anonymous and, at that time, uncorroborated, no further steps were taken at that point.
[41] Two days later, on May 1, 2014, Ms. McMullin received further intelligence information from a confidential source that Mr. Tyler was making arrangements to walk away from BCI - Min. That information suggested Mr. Tyler had been discussing escaping with other inmates. Further information indicated Mr. Tyler may have been discussing acquiring a weapon after escaping. That new information corroborated the information in the April 29 tip.
[42] As a result of that information, Mr. Tyler’s parole officer, Natalie Kurkimaki, recommended that he be involuntarily admitted to the BCI Medium Segregation Unit on the grounds that his continued presence in the general population would interfere with the SIO’s on-going investigation.
[43] After Mr. Tyler was removed to Segregation on May 1, 2014, correctional officers found a lighter and 31 individually-wrapped doses of a prescription opioid hidden in his cell. On May 7, 2014, correctional officers searched Mr. Tyler’s cell in the Segregation Unit and again discovered the same prescription opioid hidden under his TV.
[44] Ms. McMullin, the SIO, received further intelligence from confidential sources on May 5, 6 and 16, 2014, all of which confirmed the initial information that Mr. Tyler’s intended to escape from BCI – Min.
[45] On May 7, 2014, Mr. Kurkimaki conducted a Security Reclassification Scale (SRS) for Mr. Tyler. The SRS is an actuarial tool used by the Service to reassess offenders’ security classification by assigned numerical scores to three categories of indicators. In Mr. Tyler’s case, the May 7 SRS resulted in scores of “medium” in the institutional adjustment and escape risk categories, and “low” in the public safety category. The resulting overall score was 22.0, indicating medium security classification. Regardless of the escape risk score, the institutional adjustment score alone would have indicated Mr. Tyler should receive a medium security classification.
[46] Ms. Kurkimaki shared the results of the SRS indicating a medium security classification with Mr. Tyler the following day, May 8, 2014.
[47] On May 28, 2014, Ms. Kurkimaki met with Mr. Tyler in Segregation and provided him with Memo #18, a gist of information prepared by the SIO Office setting out a summary of the details of the SIO’s investigation. She also discussed with him again the SRS of May 7, 2014, and the fact that his security rating was now likely to be medium.
[48] Ms. Kurkimaki met Mr. Tyler in Segregation the following day, May 29, 2014, and shared with him the SRS and an Assessment for Decision (“A4D”) recommending reclassifying him to medium security and transferring him to BCI – Med. She also provided him with a Notice of Involuntary Transfer Recommendation. Mr. Tyler signed the Notice of Involuntary Transfer Recommendation, indicating that he did not wish to make representations with respect to the proposed transfer.
[49] On June 2, 2014, Mr. Tyler received the Warden’s Final Decision reclassifying him as medium security. He signed the form, waiving his right to make submissions.
[50] Mr. Tyler was released from Segregation into the general population of BCI – Med that same day.
[51] The Crown alleges that Mr. Tyler uses the wheelchair; however, he is not confined to it. He frequently uses a cane to move around the institution. Correctional officials have recently seen him walk more than 200 yards with the use of a cane.
[52] The Crown also states that Mr. Tyler is physically capable of wrestling another able bodied inmate and injuring him.
Mr. Tyler’s Position
The Disclosure was not Adequate
[53] Mr. Tyler argues that the decision to transfer him from BCI – Min to BCI – Med was demonstrably unfair. He states that in light of the minimal amount of information disclosed to him concerning the reliability and credibility of the informants, he cannot adequately demonstrate that the recommendation to transfer him involuntarily was unreasonable.
[54] He argues that fairness dictates that he should be given sufficient information to demonstrate that the recommendation to transfer him involuntarily was unreasonable. (see Camphaug v. Canada, [1990] F.C.J. No. 333, para. 5)
[55] Mr. Tyler states that s. 24(1) of the CCRA is part of his rights package. This creates a statutory duty on the CSC to take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up-to-date and complete as possible. (see Tehrankari v. Canada (Correctional Services) 2000 15218 (FC), 188 F.T.R. 206, para. 40)
A decision to involuntarily transfer an inmate without any fault or misconduct on his part is the quintessence of unfairness and arbitrariness. (see Hay v. Canada (National Parole Board), 18 C.C.R. 313 CarswellNat. at 155)
The Decision was Unreasonable
[56] Mr. Tyler argues that the decision to involuntarily transfer him to a higher security facility, which was based exclusively on informant information, in its totality is unreasonable because it was outside the range of possible acceptable outcomes. Given the facts and law, the decision lacked justification, transparency and intelligibility.
[57] Mr. Tyler states that any conclusion that he would have tried to escape from BCI – Min given his physical condition and his personal circumstances is unreasonable. The fact that he has limited mobility makes the concern about escape unfounded.
Analysis
Disclosure
[58] A basic principle of administrative law is that a person who will be affected by a decision is entitled to participate meaningfully in the decision making process. The affected person is entitled to know the case he or she must meet to achieve the desired outcome, and is entitled to an opportunity to make submissions to the decision maker.
[59] The Act and associated regulations provide that except in an emergency, an offender has the right to notice of a proposed transfer to another institution and the opportunity to make representations.
[60] As noted above, the Act also provides that where an offender has the right to make representations, he or she shall be given the information or a summary of the information to be considered in making a decision. The requirement to provide information is recognized as onerous although it does not approach the criminal law standard of disclosure in Stinchcombe.
[61] Mr. Tyler was not deprived of procedural fairness. He knew the gist of the information that the CSC was relying on to recommend reclassifying him to medium security. He was given a chance to make submissions in response. He chose not to make any submissions. As noted above he signed the Notice of Involuntary Transfer. Recommendation indicating that he did not wish to make representations. He also signed the Warden’s Final Decision form waiving his rights to make submissions.
[62] After the April 29 interview with Ms. McMullin and Ms. Kurkimaki Mr. Tyler received memo #18 on May 27 and the A4D on May 29. They set out the following:
a) The Security Intelligence Office (SIO) department had intelligence information that he was selling his saboxin prescription medication to other inmates and was able to generate an illegal income within the prison;
b) the SIO department had received an anonymous tip indicating that he was planning to escape, but because its reliability could not be assessed, the CSC was not relying on that information;
c) CSC had information from three confidential informants and one source which was considered reliable and on which it was relying;
d) the SIO had received the confidential informations on certain dates;
e) two of the informants had been active informants for more than two years, and that the third had been active for less than two years;
f) in all three cases, the informant’s past information was determined to be reliable and had led to disciplinary and/or transfer decisions;
g) the CSC believed that Mr. Tyler had repeatedly discussed with other inmates his plans to walk away from BCI – Min;
h) the CSC believed Mr. Tyler had discussed plans to acquire a gun after escaping; and,
i) the CSC believed Mr. Tyler had discussed plans to return to Florida, where he had previously fled after an escape, and the CSC considered his extensive history of escapes and being unlawfully at large to be significant in assessing the risk of another escape.
[63] Only the identities of the informants and the circumstances under which the information was received were withheld from Mr. Tyler.
[64] Mr. Tyler received a summary of all of the information CSC relied upon when it decided to reclassify and transfer him to medium security. He was given the opportunity to make submissions but he chose not to do so.
[65] Mr. Tyler was not denied procedural fairness.
Reasonableness
[66] Parliament has provided in the Act that the protection of society must be the CSC’s paramount consideration in its administration of the correctional system. (CCRA s. 3.1)
[67] The decision to transfer to Mr. Tyler from minimum to medium security was reasonable given his criminal history and the intelligence information that CSC received. As noted above, at the time they decided to transfer Mr. Tyler, the correctional authorities knew or had a reasonable basis to believe that: a) he had repeatedly discussed escaping with other inmates; b) he had discussed obtaining a weapon after escaping; c) he was capable of walking at least 220 yards with a cane; d) he had escaped or been unlawfully at large at least nine times; e) detailed escape plans were found in his cell on other occasions; f) the last time he escaped he murdered a woman; g) he was involved in the drug and tobacco subcultures within the institution and he could generate an income which would allow him to meet his needs once he was off the premises.
[68] Mr. Tyler to medium security was reasonable because a) he demonstrated a willingness to escape from custody, b) BCI- Min has no perimeter security preventing inmates from leaving, and c) CSC has a paramount duty to ensure public safety, the decision to reclassify and transfer.
Conclusion
[69] The decisions to reclassify Mr. Tyler and to transfer to BCI – Med were lawful.
[70] Accordingly, the application is dismissed.
Costs
[71] The Attorney General has successfully defended this application. Accordingly to Wood v. New Brunswick (Warden of Atlantic Institution), 2014 NBQB 135, habeas corpus is a civil remedy. Generally, costs follow the cause. The court noted,
As Mission Institution v. Khela, supra, foretells and the present case exemplifies, it can be reasonably expected that many more challenges to prison administrative decisions will be brought by inmates to provincial superior courts given our greater accessibility and the now expanded scope of review by habeas corpus. Courts in locales where prisons exist are particularly on the front line. Unchecked, there would be no disincentive for inmates to see to have a judge review the reasonableness of each and every administrative decision potentially impacting on a residual liberty interest, regardless of merit. Put differently, what would a person have to lose?
This is all to say that every litigant in society invoking the civil law in seeking redress before the court is expected to assess the monetary risks should they be unsuccessful. I do not see why an inmate should not also be expected to engage in some introspective consideration of the relative merits of a potential claim, i.e. engage in a “risk-reward” assessment. Inmates too must shoulder some responsibility for their decisions in these regards.
At the same time, costs cannot become a roadblock to accessing the writ of habeas corpus. After all, habeas corpus is the law’s oldest front line bastion of protection against “unlawful” loss of liberty; in modern times including the protection against “unlawful” reduction or restriction of residual liberty interests of inmates. Habeas corpus can be an efficacious remedy suited to respond to a multitude of situations. Money cannot be made to act as bar to its resort.
In the end, the just balance is found in imposing more modest cost awards relative to the length of the hearings, the conduct of the party and the merits of the claim than might otherwise be imposed, recognizing an inmate’s special situation.
[72] The Crown requested $1,500 for costs. Taking into account the court’s comments in Wood, costs are fixed in the amount of $1,000.
VALLEE, J.
Released: February 26, 2015