ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-15-241-MO

DATE: 2015 Aug 25

BETWEEN:

DONALD EARHART

Applicant

– and –

THE ATTORNEY GENERAL OF CANADA

Respondent

F. O’Connor, for the Applicant

K. Shannon, for the Crown

HEARD: August 17, 2015 at Kingston

Tranmer, J.

HABEAS CORPUS DECISION

RELIEF BEING SOUGHT

[1] The Applicant seeks an order that a writ of habeas corpus ad subjiciendum with certiorari in aid thereof issue challenging the decision of the correctional authorities to reclassify him from medium security to maximum security and the decision to transfer him out of Ontario to a maximum security institution in Saskatchewan.

CURRENT SITUATION

[2] The Applicant is serving a life sentence of imprisonment in the federal penitentiary system.

[3] The Applicant had been incarcerated at Kingston Penitentiary, but was transferred to Beaver Creek Institution, a medium security federal penitentiary, when Kingston Penitentiary was closed.

[4] As a result of a decision made on August 15, 2013, the Applicant’s security classification was changed from medium to maximum. He was transferred to Millhaven Institution, a maximum security facility. While at Millhaven, he was twice placed in administrative segregation. On July 14, 2014, he was informed that he would be transferred to Stony Mountain Institution in Manitoba. This decision was finalized on August 19, 2014.

[5] The transfer did not take place because the correctional authorities set aside these decisions.

[6] On January 13, 2015, the Applicant was returned to medium security pending a re-determination of the security classification. He was placed in administrative segregation. Indeed, he has been in administrative segregation since the summer of 2014.

[7] On April 9, 2015, the Warden determined the Applicant’s security classification to be maximum security. A decision was made on June 2, 2015 to transfer the Applicant to the Saskatchewan Penitentiary, maximum security. It is these two decisions that are challenged in this proceeding.

ISSUE

[8] The Respondent accepts that the Applicant has established a deprivation of his liberty.

[9] The onus is on the Respondent to establish that this deprivation is lawful.

POSITION OF THE APPLICANT

[10] The Applicant has denied the allegations of misconduct made against him. He did this in writing in two Rebuttals delivered by him to the institution.

[11] The Applicant submits that the weight of the information relied upon by correctional authorities in coming to the decisions is insufficient.

[12] The Applicant submits that there is no allegation of the Applicant causing harm, no shank was found, and the allegations concerning the Applicant's involvement in fights with other inmates do not rule out the possibility that he was the victim, and acting in self-defence.

[13] The Applicant submits that he has suffered a very severe penalty unwarranted by the information relied upon by the correctional authorities.

[14] The Applicant submits that the disclosure that has now been made to him should have been made to him at the time of the original decision to reclassify him as maximum security.

[15] The Applicant points out that the sealed affidavit filed by the Respondent pursuant to the Supreme Court of Canada's direction in the Mission Institution v. Khela 2014 SCC 24 decision, contains disclosure of information that the Applicant should be entitled to view and respond to.

[16] There is evidence of good behaviour on the part of the Applicant in that he has benefited from programs within the institution.

[17] The Applicant submits that the Gladue principles are applicable to his current situation in law and that those principles weigh against the decisions.

[18] The Applicant submits that it is not lawful for the correctional authorities to transfer him out of the Province of Ontario to Saskatchewan, relying on the principles set out in Bonamy v. Commissioner of Correction Service Canada 2000 SKQB 385.

POSITION OF THE RESPONDENT

[19] The Respondent submits that correctional authorities are in the best position to consider the weight of information concerning the Applicant and make decisions concerning security and the appropriate institution. (See Khela, paras. 73-78).

[20] The Respondent submits that the decisions were made in accordance with the applicable legislation and the case law and that the decisions are lawful and reasonable, given the assessment by the correctional authorities of the information concerning the Applicant, which includes 51 observational reports, his written rebuttals, the legislation and case law.

[21] The Respondent submits that correctional authorities disclosed all of the information or summaries of the information that was considered to the Applicant, specifically and expressly, invoked its power to withhold certain information, and identified it and gave reasons for doing so to the Applicant. The Respondent submits that it has complied with the direction by the Supreme Court of Canada in Khela by filing a sealed affidavit containing the withheld information for consideration by this court. (Khela, paras. 83-90).

[22] The Respondent points out that the correctional authorities considered the written rebuttals of the Applicant.

[23] The Respondent submits that the aboriginal status of the Applicant was in fact considered. While the Respondent takes the position that the Gladue principals do not strictly apply, it points out that the decisions expressly consider such principles, and the aboriginal status of the Applicant. Furthermore, the decision to transfer to Saskatchewan was in part based on the opportunity for the Applicant to work with the general population elder and native liaison officer in order to further explore his culture, traditional spirituality and work on his healing journey should he wish to do so.

[24] The Respondent submits that the out of province transfer falls within the statutory authority of the correctional authorities and is within the range of acceptable outcomes and that it is justified, transparent, intelligible and the reasons and the record support that decision. There are incompatibles in the two Ontario maximum penitentiaries, there are no beds in Québec region and Atlantic region has no aboriginal programming.

[25] The Respondent points out the Applicant responded to each allegation against him, confirming he knew the case he had to meet as a result of the full disclosure that was made to him.

[26] The Respondent submits that a proper and lawful assessment of the information concerning the Applicant and the consideration of his rebuttals to that information support the decisions in that the Applicant is a safety and security risk in a medium security institution to himself, to other inmates and staff and he is a risk to the security of such an institution.

ANALYSIS

Procedural Fairness

[27] Exhibit 2E of the Respondent’s materials is the Revised Security Information Sharing document date and time locked April 9, 2015 which was given to the Applicant at about that date. It provided to the Applicant, the gist or summary of 51 documents, which had to do with his institutional behaviour and which was the information considered by the correctional authorities in making their decision to reclassify him and transfer him. That document identified the dates that the reports were written, provided a summary of the information received or obtained, identified the reliability rating assigned to the source and why and identified whether the information was from a confidential source, an anonymous source, first-hand observations or intercepted or received telephone calls. It specifically indicated whether the document or information was withheld pursuant to s. 27(3) and if so, why.

[28] Six of the reports were given to him.

[29] With respect to the remaining reports, he was specifically informed with respect to each report that it was being withheld because there were reasonable grounds to believe that disclosure would jeopardize the safety of one or more persons and the security of the institution. In doing this, the correctional authorities invoked s. 27(3) of the Corrections and Conditional Release Act.

[30] The Applicant filed two extensive rebuttals, first, to the February 17, 2015 Addendum to the A4D (Ex. 2D), which was the predecessor document to Ex. 2E. That rebuttal was approximately 180 pages in length and is dated March 4, 2015 (Ex. 1K of the Respondent’s materials). That Addendum was amended to add the dates that the 51 documents were drafted. The amended document is Ex. 2E. The Applicant's second rebuttal is approximately 29 pages in length and is dated April 30, 2015. (Ex. 1Q of the Respondent’s materials).

[31] The Respondent filed a sealed affidavit pursuant to Khela, paras. 87 to 90.

[32] I have opened the sealed affidavit and reviewed it carefully in accordance with and for the purposes directed by the Supreme Court of Canada in Khela. I have now resealed it.

[33] The decision-makers must give to the Applicant all of the information considered in the decision to reclassify and transfer. The requirement can be satisfied by providing the Applicant with a summary of the information. (Khela, paras. 81 and 85).

[34] Section 27(3) provides that where the Commissioner has reasonable grounds to believe that disclosure of the information would jeopardize (a) the safety of any person, or (b) the security of the penitentiary, he or she may authorize the withholding from the inmate of as much information as is strictly necessary in order to protect the interest that would be jeopardized. (Khela, para. 84).

[35] The decision to withhold information pursuant to s. 27(3) is reviewable by way of an application for habeas corpus. If the Commissioner chooses to withhold information from the inmate on this basis, the onus is on the decision-maker to invoke the provision, which was specifically done in Mr. Earhart’s case as I have indicated, and prove that there were reasonable grounds to believe that disclosure of that information would jeopardize one of the listed interests.

[36] Khela at para. 87, directs that the sealed affidavit contain 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 safety of any person or the security of the penitentiary. My review of the contents of the sealed affidavit satisfy me completely that these two requirements have been met by the Respondent. Prison authorities are in the best position to determine whether such a risk could in fact materialize. This determination is entitled to a margin of deference (Khela, para. 89). However, the contents of the sealed affidavit satisfy me that there was good reason for the belief.

[37] The contents of the sealed affidavit also meet the requirement that when prison authorities rely on anonymous tips they should explain why those tips are considered to be reliable if that is the decision. (Khela, para. 88). This requirement is confirmed to have been met by the contents of the sealed affidavit. The disclosed information indicates what information prison authorities considered to be of unknown reliability.

[38] The sealed affidavit thoroughly explains why certain information was withheld and whether it was determined to be reliable, not reliable or of unknown reliability and why.

[39] Prison authorities are also required to take measures to verify the evidence being relied upon. (Khela, para. 88). This requirement is also confirmed to have been met by the contents of the sealed affidavit.

[40] Prison authorities are in the best position to determine whether a given source or informant is reliable and some deference is owed to their decision in that regard. (Khela, para. 89. See also Bachynski v. William Head Institution, [1995] B.C.J. No. 171, paras. 36-37 and Suman v. Canada (Attorney General) 2012 ONSC 677, para. 40). The sealed affidavit explains how the reliability of each piece of information was determined.

[41] This Applicant was provided with a summary of the information considered by CSC such that he knew and could respond to the case that he had to meet. He did so in his two Rebuttals. (Suman, para. 41).

[42] I am satisfied on the basis of the affidavit materials filed by the Respondent, both public and sealed, that the correctional authorities acted in a lawful manner in their disclosure of the information considered and in the withholding of certain information. The Respondent has, in this case, acted completely in accordance with its statutory obligations and with the case law including Khela.

[43] The Applicant submits that the disclosure provided to him in Ex. 2D and in Ex. 2E should have been provided to him in August 2013 when he was reclassified to maximum and transferred to Millhaven. Those decisions were the subject of habeas corpus application #1, which was not proceeded with to a final adjudication as the decisions were set aside by CSC and the Applicant was returned to medium security.

[44] Disclosure issues related to those events cannot be the subject of relief to this habeas corpus proceeding which deals with his present situation and the decisions of April 9, 2015 to reclassify and of June 2, 2015 to transfer the Applicant to Saskatchewan Penitentiary. What is relevant to the present application is the disclosure in regard to these decisions which I have dealt with above.

Gladue Principles and Aboriginal Status

[45] In this case, it is not necessary for me to adjudicate upon the issue of whether the Gladue principles are applicable to the subject decisions.

[46] The fact is that correctional authorities specifically considered both the Gladue principles and the Applicant’s aboriginal status in the decision to reclassify and in the decision to transfer. In fact, these considerations were express factors on the decision to transfer to Saskatchewan Penitentiary as it was the only option which would provide the Applicant with the opportunity to work with an Elder to further explore his culture, traditional spirituality and work on his healing journey.

The Rebuttals

[47] As I have indicated, the Applicant submitted two extensive written Rebuttals to the decisions.

[48] On the record before me, I am completely satisfied that they were properly and fairly considered by the correctional authorities.

Out of Province Transfer

[49] The Applicant relies on Bonamy as authority against the decision to transfer him out of province to Saskatchewan. He submits that that removes him thousands of kilometers from his support and his home.

[50] Section 28 of the CCRA requires that the correctional service take all reasonable steps to ensure that the penitentiary in which the inmate is confined is one that provides him with an environment that contains only the necessary restrictions, taking into account (a) the degree, kind of custody and control that is necessary and (b) accessibility to, (i) the persons home community and family, (ii) a compatible cultural environment, and (iii) a compatible linguistic environment, and (c) the availability of appropriate programs and services and the person's willingness to participate in those programs.

[51] On the record before me, all of these factors were taken into account. The authorities specifically recognized that the Applicant’s community support is in the Ontario region and in person visiting may be adversely affected. The evidence before me explains why maximum security institutions in Ontario, the Québec region and the Atlantic region, all of which were considered, were determined to be unsuitable and why placement in the Saskatchewan Penitentiary was consistent with the applicable factors.

[52] The Supreme Court of Canada specifically recognized that a transfer decision necessarily requires deference. A transfer decision is made by a decision-maker with expertise in the environment of a particular penitentiary. To apply other than a reasonableness standard in reviewing such a decision could well lead to the micromanagement of prisons by the courts. A transfer decision requires a “fact driven inquiry involving the weighing of various factors and possessing a ‘negligible legal dimension’ ”. “Determining whether an inmate poses a threat to the security of the penitentiary or of the individuals who live and work in it requires intimate knowledge of that penitentiary’s culture and of the behavior 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.” (Khela, para. 75 and 76).

[53] I am not bound by Bonomy. The evidence in Mr. Earhart’s case does not persuade me that community and family factors should override the other mandated factors.

[54] In my view, in this case, prison authorities weighed all relevant considerations and the decision that they reached was reasonable and in accordance with the legislation that applies.

Decisions were Reasonable and Lawful

[55] The evidence before me satisfies me without hesitation that the decisions in this case were within the range of possible and acceptable outcomes which are defensible in respect of the facts and law. The evidence makes it clear that the decisions were justified, transparent and intelligible and the reasons for and the record of the decisions in fact and in principle support the conclusions reached. These decisions were reasonable. This is not a case of absence of evidence, or consideration of unreliable or irrelevant evidence. It is a case that the evidence supports the decisions reached. (Khela, paras. 73 and 74). This is a case of procedural fairness. My examination of the substance of the decision and my determination that the evidence upon which it was based is substantive, reliable, and was reasonably relied upon and supports the decision leads me to conclude that the decisions were lawful.

[56] The Applicant is to be commended for his good efforts and performance as disclosed on the record.

DECISION

[57] For these reasons, the application will be dismissed.

Tranmer J.

Released: August 25, 2015