CITATION: Surujpal v. Canada (Warden of Millhaven Institution) 2015 ONSC 473

COURT FILE NO.: CR-14-402-MO

DATE: 2015 Jan 23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DANIEL SURUJPAL

Applicant

– and –

THE WARDEN OF MILLHAVEN INSTITUTION

Respondent

Mary Jane Kingston, for the Applicant

Aileen Jones, for the Respondent

HEARD: January 20, 2015 at Kingston

TRANMER, j.

Habeas corpus DECISION

BACKGROUND

BACKGROUND

1This is an application for an order that a writ of habeas corpus ad subjuciendum with certiorari in aid thereof issue in which the applicant challenges his reclassification from medium to maximum security and his transfer from medium security to maximum security. He was initially transferred to maximum security Millhaven Institution. Last week, he was transferred to the maximum security unit at Collins Bay Institution. His complaint is about the maximum security reclassification and transfer. It is not about which institution it is that he is incarcerated in.

FACTS

FACTS

2The applicant was initially classified as a medium security risk and incarcerated at medium security Collins Bay Institution.

3On March 4, 2014, he was placed in segregation for alleged involvement in a fight in a cell on his range.

4In the Assessment for Decision dated May 7, 2014, the Warden of Collins Bay Institution set out the evidence upon which he based his decision to reclassify the applicant as maximum security and transfer him to a maximum security institution.

ISSUE

ISSUE

5The applicant submits that this was not a reasonable decision by the Warden as defined by the Supreme Court of Canada in Mission Institution v. Khela 2014 SCC 24.

6Clearly, there has been a deprivation of liberty made out by the applicant.

7The onus then falls upon the respondent to satisfy the court that the transfer was reasonable in light of all of the circumstances. Khela, para.77.

APPLICANT’S POSITION

APPLICANT’S POSITION

8The applicant argues that in part, the Warden based his decision on an incident alleged to have occurred in 2013, that was similar in nature to the recent alleged assault incident, about which the applicant says “the author (of the Assessment for Decision) reports that I was involved in an attack where another inmate was beaten and stabbed. I had no knowledge of this allegation until it was raised by the Segregation Review Board. If I had been involved, I would have been segregated and charged, which I was not.”

9The applicant submits that the additional evidence relied upon by the Warden of brew charges and a positive urinalysis were being managed in medium security.

10It is submitted therefore that the decision to reclassify and transfer the maximum security was unreasonable.

RESPONDENT’S DECISION

RESPONDENT’S DECISION

11The respondent submits that the decision was reasonable, in law, and that in the Assessment for Decision, the Warden sets out clearly the evidence upon which he based his decision, which includes the current assault, the 2013 incident, an incident in 2012, the brew charges and positive urinalysis, the SIO recommendation and the similarity between the three incidents of violence to his index offense.

ANALYSIS

ANALYSIS

12The relevant law is set out in Khela, in particular, at paragraph 76: “… A transfer decision requires a “fact driven inquiry involving the weighing of various factors and possessing a ‘negligible legal dimension’ “… The statute outlines a number of factors to which a Warden must adhere when transferring an inmate; the inmate must be placed in the least restrictive environment that will still assure the safety of the public, penitentiary staff and other inmates, should have access to his or her home community, and should be transferred to a compatible cultural and linguistic environment… Determining whether an inmate poses a threat to the security of the penitentiary or the individuals who live and work in it requires intimate knowledge of that penitentiary’s culture and of the behaviour of the individuals inside its walls. Wardens and the Commissioner possess this knowledge and related practical experience to a greater degree than a provincial Superior Court judge.”

13The Supreme Court of Canada accordingly dictates that “a review to determine whether a decision was reasonable, and therefore lawful, necessarily requires deference.” Para 75.

14The Court set out that a decision will be unreasonable and therefore unlawful, if an inmate's liberty interests are sacrificed 1. Absent any evidence, or 2. On the basis of unreliable or irrelevant evidence or 3. Evidence that cannot support the conclusion. Para. 74.

15I agree with the decisions that hold that the Warden may consider information that did not result in charges against the inmate. Maillet v. Springhill Institution 2014 NSSC 240; Oliver v. Canada (Attorney General) 2010 ONSC 3976.

16I agree that it is reasonable to view the applicant's conduct within the penitentiary system through the prism of his index offence. Wood v. New Brunswick (Warden of Atlantic Institution) 2014 NBQB 135. In the case before me, there is similarity between the applicant’s conduct for which he was initially convicted and his three incidents of involvement in violence within the prison environment.

17The Supreme Court of Canada instructs Superior Court judges not to micromanage prisons. Para. 75 Khela.

18On the basis of the applicable legal principles and the record before me of all of the evidence the Warden took into account, I am satisfied the respondent has satisfied the onus upon it of proving the decision to reclassify and transfer this applicant to maximum security was reasonable, and therefore lawful.

19For these reasons, this application for habeas corpus is dismissed.

Honourable Mr. Justice Gary W. Tranmer