ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-15-327-MO
DATE: 2015 Oct 15

BETWEEN:

ANDREW KREKO
Applicant

– and –

ATTORNEY GENERAL OF CANADA
Respondent

J. Todd Sloan, for the Applicant

Talitha A. Nabbali, for the Respondent

HEARD: October 13, 2015 at Kingston

Tranmer J.

decision on habeas corpus application

INTRODUCTION

[1] The Applicant was a federal penitentiary inmate confined at Collins Bay Institution in medium security when, on May 11, 2015, the Warden of Collins Bay Institution made the decision to reclassify and involuntarily transfer him to Collins Bay maximum-security.

[2] It is common ground that this decision has resulted in the deprivation of the Applicant's liberty. The parties are agreed that the onus is on the Respondent to satisfy the Court that the decision was lawful.

THE ISSUE

[3] The main issue supporting the application concerns the decision by prison authorities to withhold certain information from disclosure to the Applicant pursuant to the terms of s. 27(3) of the Corrections and Conditional Release Act, S.C. 1992, c.20.

[4] The gist of the information contained in 5 security reports, namely SIR 2015-004 and 2015-003; IOR 2015; and IOR 2015-007 and PIR 440-15-014, is set out in the Assessment for Decision dated April 23, 2015, page 51 of the Respondent’s Application Record (Public) paragraphs 1, 2 and 3, attached as exhibit E to the public affidavit of Linda Coletta, security intelligence officer at Collins Bay Institution.

[5] In accordance with the direction of the Supreme Court of Canada in Mission Institution v. Khela 2014 SCC 24, the Respondent has filed a sealed affidavit sworn by Linda Coletta, in which these reports are fully disclosed, and the reason for invoking s. 27(3) is set out.

[6] In my view, this application turns on the comparison of the contents of the reports to the gists disclosed to the Applicant.

THE LAW

[7] The relevant paragraphs of the Supreme Court of Canada decision in Khela are as follows:

85 A decision to withhold information pursuant to s. 27(3) is necessarily reviewable by way of an application for habeas corpus. Such a decision is not independent of the transfer decision made under s. 29. Rather, s. 27 serves as a statutory guide to procedural protections that have been adopted to ensure that decisions under s. 29 and other provisions are taken fairly. When a transfer decision is made under s. 29 and an inmate is entitled to make representations pursuant to the CCRR, s. 27 is engaged and decisions made under it are reviewable. If the correctional authorities failed to comply with s. 27 as a whole, a reviewing court may find that the transfer decision was procedurally unfair, and the deprivation of the inmate's liberty will not be lawful. This is certainly a "legitimate ground" upon which an inmate may apply for habeas corpus.

86 Habeas corpus is structured in such a way that so long as the inmate has raised a legitimate ground upon which to question the legality of the deprivation, the onus is on the authorities to justify the lawfulness of the detention (May, at para. 71). 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 prove that there were reasonable grounds to believe that disclosure of that information would jeopardize one of the listed interests.

87 Where, pursuant to s. 27(3), the correctional authorities do not disclose to the inmate all the information considered in their 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 of the penitentiary, the safety of any person or the conduct of a lawful investigation.

88 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" (Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326, at para. 56).

89 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 or informant 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.

90 I should point out that not all breaches of the CCRA or the CCRR will be unfair. It will be up to the reviewing judge to determine whether a given breach has resulted in procedural unfairness. For instance, if s. 27(3) has been invoked erroneously or if there was a strictly technical breach of the statute, the reviewing judge must determine whether that error or that technicality rendered the decision procedurally unfair.

93 In this case, the application judge noted that the Warden had failed to disclose information about the reliability of the sources (at para. 47), the specific statements made by the sources (at para. 51), and the scoring matrix that informed Mr. Khela's security classification (para. 56). She found that the failure to disclose this information had rendered the transfer decision procedurally unfair (para. 59). I agree with that finding.

94 The specific statements made by the sources and information concerning the reliability of the sources should have been disclosed to Mr. Khela. The appellants submit that information on the reliability of sources and substantial details about the incident that led to Mr. Khela's transfer were in fact disclosed. The only information in the Assessment regarding the sources was that "[s]ource information was received by the Security Intelligence Department implicating Mr. Khela as the contractor for the stabbing assault" in October 2009 and January 2010, and that "three separate and distinct sources" implicated Mr. Khela in the incidents which led up to his transfer. The Assessment also states that the information so received "corroborates previous claims and lends credence to [existing] suspicions". These statements do not provide Mr. Khela with enough information to know the case to be met. It is unclear from the Assessment what each of the three separate and distinct sources said, or why the new information "corroborated" previous claims. Vague statements regarding source information and corroboration do not satisfy the statutory requirement that all the information to be considered, or a summary of that information, be disclosed to the inmate within a reasonable time before the decision is taken.

ANALYSIS

[8] I have unsealed and carefully read the Sealed Affidavit of Linda Coletta. I have compared the five documents which I have identified above contained in this sealed affidavit to the information provided to the Applicant as identified above, at page 51 of the public affidavit, paragraphs 1, 2 and 3.

[9] With respect to SIR 2015-004, information concerning relevant nude pictures are attributed to “other sources” (pg. 21, Sealed affidavit). That is the sole identifier of such sources. They are not said to be believed reliable nor is it stated why they are believed reliable, if such is the case. Certain information contained in the report was not disclosed to the Applicant, namely, latter half of the first paragraph on p. 19, and last paragraph on p. 19, and latter half of fourth paragraph from the bottom on p. 20. Also, a handwritten 3 line note “Received… 2015/01/19” attached to that document was not disclosed in gist, or otherwise.

[10] With respect to IOR 2015-003, information set out in lines 4, 5, 6, 8, 9, 10 and 11 was not disclosed in the gist.

[11] With respect to IOR 2015-022, there is an inconsistency between the two affidavits of Linda Coletta, as to who else was present when the OPP officer interviewed the former kitchen worker. This makes the gist misleading in stating that the report was received 15/04/21. This also contradicts the Respondent’s submission that it is not in possession of a statement from the kitchen worker.

[12] With respect to IOR 2015-007, the nature of the picture and the information contained in the last two sentences of the first paragraph are not gisted at all in the information provided to the Applicant.

[13] With respect to PIR 440-15-014, there is no reason why further details of the information supplied could not have been disclosed to the Applicant in gist form. Furthermore, the source is not said to be believed reliable or not, and no assessment of the reliability of that source is provided in the sealed affidavit although addressed in part in paragraph 10 of the sealed affidavit.

[14] The A4D at p. 53, Respondent’s Application Record (Public), last line, paragraph 2, states “information received from the source information is assessed as believed and completely reliable.” As I have pointed out, in regard to the anonymous note, “the other sources” and 440-15-014, the Respondent has not complied with the Khela requirements.

DECISION

[15] I find that the prison authorities have breached their obligation of disclosure to this Applicant in the ways that I have identified. I am aware that not all such breaches will be found to be procedurally unfair so as to warrant setting aside the decision taken. However, as in Khela, in this case, there has been a failure to disclose certain information in circumstances where doing so would not have jeopardized the interests protected in s. 27(3), there has been a failure to disclose information about the reliability of sources or efforts at verifying the reliability, and the Respondent's submission that it is not in possession of any statements for example, by the food services worker, is at best misleading in view of the contents of Ms. Coletta’s sworn sealed affidavit evidence concerning the OPP interview.

[16] These breaches are not of a minor or technical nature. I find that the warden's decision did not meet the legal requirements related to the duty of procedural fairness, in so far as disclosure to the Applicant is concerned.

[17] For these reasons, the application will be granted. The decision of the warden to reclassify and transfer this Applicant to maximum-security is quashed.

[18] I have re-sealed the sealed affidavit and I order that it is to remain sealed, unless otherwise ordered by this Court, or other Court of competent jurisdiction.

Honourable Justice Gary W. Tranmer

Released: October 15, 2015

COURT FILE NO.: CR-15-327-MO
DATE: 2015 Oct 15

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

ANDREW KREKO
Applicant

– and –

ATTORNEY GENERAL OF CANADA
Respondent

DECISION ON HABEAS CORPUS APPLICATION

Tranmer J.

Released: October 15, 2015