CITATION: Janjanin v. Canada (Attorney General), 2015 ONSC 134
COURT FILE NO.: CR-14-398-MO (Kingston)
DATE: 2015 Jan 07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BOGDAN JANJANIN
Applicant
– and –
ATTORNEY GENERAL OF CANADA and the Wardens of Collins Bay Institution and Millhaven Institution
Respondent
T. Sloan, for the Applicant
L. Garvin, for the Crown
HEARD: January 6, 2015 at Kingston
TRANMER, J.
See also: Emonts v. Canada (Attorney General), 2015 ONSC 135
DECISION ON APPOINTMENT OF AMICUS CURIAE
[1] The applicants’ applications for the appointment of amicus curiae in these two separate applications for habeas corpus were argued together at the request of counsel because they raise the same issues.
[2] The applicants seek an order of this court appointing a person to act as amicus curiae in order to review and make representations to the court with respect to the respondents’ Sealed Affidavit filed pursuant to the law set out by the Supreme Court of Canada in Khela v. Mission Institution 2014 SCC 24, and in particular paragraph 87.
[3] In each case, the respondents decided to involuntarily transfer the applicants who were incarcerated at Collins Bay Institution, medium security, first into segregation, and then to reclassify their security levels to maximum security and involuntarily transferred them to Millhaven Institution, which is maximum security.
[4] The substantive merits of the applications for habeas corpus in each case will consider whether the respondents can satisfy the court that this deprivation of liberty was lawful.
[5] At the core of the issue regarding the applications for the appointment of amicus curiae is that while the correctional decision-makers disclosed certain information to the applicants concerning these decisions, certain information was withheld from the applicants by the correctional authorities under section 27(3) of the Corrections and Conditional Release Act S.C. 1992, c. 20. That withheld information has been filed by the respondents in a sealed envelope in each case for review by me as the reviewing judge in accordance with Khela.
[6] The applicants seek to have an amicus curiae appointed who has expertise in correction matters and in particular, with regard to matters including the culture, inmate code, security concerns and reasons for inmates to give information to the authorities concerning misconduct by other inmates within the walls of a federal penitentiary. If an amicus curiae is appointed, the applicants seek to have that person read the contents of the sealed envelope and make submissions to the court as to whether there was compliance with s. 27(3), and also sections 27(1) and (2), and with Khela, paras 87 to 90, through the perspective of his or her expertise.
[7] The applicants submit that such a person is necessary to permit these habeas corpus proceedings to be successfully and justly adjudicated, and that such assistance is essential for me as the reviewing judge to discharge my judicial functions in the case. This is the test for the appointment of amicus curiae set out in Ontario v. Criminal Lawyers Association, 2013 SCC 43, [2013] 3 S.C.R. 3, paras. 44 to 47.
ANALYSIS
[8] Counsel advised me that section 27 has been in full force and effect since 1992. The applicants do not challenge the constitutional validity of that section or in particular, of s. 27(3). Counsel advised me that there is no precedent for the appointment of amicus curiae as is sought by the applicants.
[9] In its decision in Khela, the Supreme Court of Canada has directed the procedure to be followed in dealing with the s. 27(3) withheld information about which these applicants complain in paragraphs 87 to 90 of the decision.
[10] The applicants submit that because Bill C-44, an Act to amend the Canadian Security Intelligence Service Act and other Acts, contemplates the appointment of amicus curiae, this indicates an intention by Parliament that such persons should be appointed. In my respectful opinion, this court cannot draw such an inference because Parliament has not sought to amend s. 27 in a similar fashion, and further, the Supreme Court of Canada, with the issue of withheld information pursuant to s. 27(3) squarely before it, directed that the reviewing judge deal with the issue and made no mention of the appointment of amicus curiae.
[11] In effect, it is the submission of the applicants that despite this direction by the Supreme Court of Canada, the reviewing judge is less qualified to discharge this responsibility than a prisons security expert or a lawyer with correctional law experience. This submission by the applicants is directed at any and all reviewing judges regardless of his or her legal, educational background, law practice experience, and experience as a sitting judge. The applicants submit that the reviewing judge requires assistance to successfully and justly adjudicate the merits of the decision to withhold information, and that such assistance is essential to the reviewing judge in order for him or her to discharge his or her judicial function. The applicants submit that it is only an amicus curiae with expertise in correctional matters who is able to provide to the court the assistance which it needs to determine whether s. 27(3) was properly and lawfully invoked by corrections officials and whether the concerns pointed to in Khela have been properly and lawfully addressed by corrections in the sealed Affidavit material.
[12] The applicants submit that the reviewing judge, with input from Counsel on both sides, must define the duties and limits on an appointed amicus curiae. This is a curious proposition in the face of the applicants’ submission that the reviewing judge is not qualified sufficiently to undertake the work to be assigned to the amicus curiae. How then is such reviewing judge qualified to define duties and impose limits?
[13] Khela makes it clear that this court must determine whether the respondents have satisfied the onus of proving that deprivation of liberty complained of is lawful. That court decided that a decision will not be lawful if the detention is not lawful, if the decision maker lacks jurisdiction to order the deprivation of liberty or if there is been a breach of procedural fairness. The court also decided that a review for lawfulness will require an assessment of the reasonableness of the decision.
[14] One element of lawfulness requires that inmates transferred on an emergency and involuntary basis are entitled to all the information considered in the warden’s decision-making process or a summary thereof, except where s. 27(3) applies. Khela makes it clear in paragraph 83 that 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 and a summary of that information will suffice. Disclosure to the standard of Stinchcombe is not required in this context.
[15] The Supreme Court of Canada in Khela specifically directs that it is the judge of the reviewing court who is to review the sealed affidavit filed by the respondents, not an amicus curiae. Khela directs that it is the reviewing judge who is charged with the responsibility to determine whether s.27(3) was complied with by corrections, to compare both the information that was withheld from the inmate with the information that was disclosed and the reasons why disclosure of that information might jeopardize the security of the penitentiary, the safety of any person or the conduct of a lawful investigation, and why informants were considered reliable by corrections and what, if any, measures were taken to verify the reliability of evidence of informants that was relied upon. The Supreme Court of Canada directs that it is up to the reviewing judge to determine whether a given breach, if any, has resulted in procedural unfairness and whether any such breach renders the decision taken procedurally unfair.
[16] It is my respectful opinion that the reviewing judge does not require the assistance of an expert in prison culture, inmate code, correctional officer’s code, security issues, or the motivations of prison rats or snitches. All such relevant evidence is accessible to these applicants including through further affidavit evidence, cross examination by the applicants on the respondents’ affidavit evidence, the literature, or through case law and otherwise. Amicus curiae cannot be put forward by the applicants to give evidence. Parliament and the Supreme Court of Canada have directed that the reviewing judge discharge the responsibilities that the applicants would have assigned to an amicus curiae.
DECISION
[17] For these reasons, I am satisfied that this court can successfully and justly adjudicate upon the s. 27 disclosure of information issues relevant to the cases of each of these applicants and upon the merits of their applications for habeas corpus and that the assistance of the amicus curiae as sought by these applicants is not essential for this court to discharge its judicial responsibilities.
[18] Therefore, the application in each of these cases for the appointment of amicus curiae is dismissed.
[19] In accordance with my endorsement made in each case on January 6, 2015, these habeas corpus applications will be heard, commencing on Friday, January 9, 2015 at 10 AM with Mr. Janjanin’s application first, followed by Mr. Emonts’ application.
Honourable Mr. Justice Gary W. Tranmer
Released: January 7, 2015
CITATION: Janjanin v. Canada (Attorney General), 2015 ONSC 134
COURT FILE NO.: CR-14-398-MO (Kingston)
DATE: 2015 Jan 07
ONTARIO
SUPERIOR COURT OF JUSTICE
BOGDAN JANJANIN
Applicant
– and –
ATTORNEY GENERAL OF CANADA and the Wardens of Collins Bay Institution and Millhaven Institution
Respondent
DECISION ON APPOINTMENT
OF AMICUS CURIAE
Tranmer, J.
Released: January 7, 2015