ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-15-0354-00MO

DATE: 2015 Oct 22

BETWEEN:

SHELDON WYNTER

Applicant

– and –

THE WARDEN OF MILLHAVEN INSTITUTION

Respondent

Moiz Baig, for the Applicant

Max Binnie, for the Respondent

HEARD: October 19, 2015 at Kingston

Tranmer J.

DECISION ON APPLICATION FOR HABEAS CORPUS

[1] This is an application for an order granting a writ of habeas corpus with certiorari in aid thereof to quash the decision of the Correctional Service of Canada reclassifying and transferring the applicant from a medium security institution to a maximum security institution.

THE FACTS

[2] When he was initially admitted into federal custody in early 2013, the applicant was assigned a medium security classification and placed at Joyceville Institution medium unit.

[3] In May of 2015, the applicant’s security classification was reviewed and confirmed as medium security.

[4] As a result of conduct on the part of the applicant, commencing on or about July 1, 2015, prison authorities decided to reclassify him and involuntarily transferred him to maximum security at Millhaven Institution.

[5] On July 1 at 23:20 hours, correctional officer Bertrand was conducting a mandatory range patrol and found the applicant naked and masturbating. He had done this on her two previous shifts. The evidence is that when the correctional officer enters onto the range, the applicant's nightlight in his cell comes on and also that he is able to hear the guard walking the range.

[6] On July 2 at 0830 hours, correctional officer Smith informed the applicant that he was suspended from his job due to this inappropriate behaviour. The applicant approached the officer during each of her following three range patrols to explain that he has to masturbate with his eyes closed and thus, did not observe the nightlight. The applicant had these discussions openly on the range within the hearing of other inmates. The applicant did not acknowledge that his behaviour was inappropriate nor did he show any remorse or embarrassment for his actions.

[7] On July 2 at 19:35 hours, the applicant challenged correctional officer Bertrand calling her a liar. He stated that he always masturbates every night and then he was not performing for the officer. He had this discussion with her in the presence of other inmates who were listening and laughed. He persisted in discussing the matter with her 10 minutes later, again, in the presence of several inmates on the range who were laughing. He was told that he should stop such conduct by both this officer and another officer.

[8] On July 3 at 11:25 hours, correctional officer Eaton was on a guard patrol and observed that the applicant had a window covering on his door. The officer asked the applicant to remove the covering and he indicated that he was masturbating. The officer informed the inmate that he would expect the window covering to be removed for the next guard patrol. During the next guard patrol at approximately 12:30 hours, he observed that the applicant still had his window covered and directed the applicant to remove the covering. The applicant refused. The officer informed the applicant that he had to remove the cell flap covering the door window, and then observed the applicant to have his genitals in his hand.

[9] On July 5, 2015 at 07:10 hours, four correctional officers attended at the applicant’s cell to escort him to segregation for this inappropriate behaviour. The applicant was observed to become agitated and to display some passive-aggressive behaviour. The applicant was observed to step towards two of the officers in an aggressive manner while pulling back his shoulder in a manner which appeared as if he was getting ready to throw a punch at one of the officers. Another officer reported that the applicant became upset when told he was going to segregation and described the applicant's behaviour as pulling back from the officer while at the same time making a quick aggressive motion forward with his shoulder as if to throw a punch. A third officer described the applicant as becoming physically uncooperative and making a sudden and aggressive movement towards staff. The fourth officer described the applicant as becoming physically uncooperative and aggressive by pulling his hands back and making an aggressive move toward staff. The officers decided to use pepper spray and force as a result of this conduct.

[10] After the applicant was placed in segregation, on July 5, 2015 at 16:00 hours, correctional officer Ferguson, who was on routine patrol observed the applicant to be masturbating. The applicant was observed for the second time to be blocking his cell window and did not respond when spoken to. When the officer opened the window covering, the behaviour continued.

[11] The applicant denied that he masturbated intentionally so as to offend the correctional officers and maintains that he had had a system in place with the officers whereby if he had his window covered, they would know he was masturbating and would not interrupt him. Correctional authorities do not confirm this arrangement.

[12] After receiving written notice of the pending decision to reclassify and transfer him to maximum security, the applicant filed a written rebuttal, which was considered by the Warden before the final decision was made.

[13] Institutional charges arising from the observations of the officers concerning the masturbation were dismissed. There were no charges laid with respect to the alleged aggressive behaviour.

[14] As a result of the Warden's decision to reclassify and transfer the applicant to a maximum security institution, the applicant was transferred to Millhaven Institution on July 24, 2015.

APPLICANT’S POSITION

[15] The applicant submits firstly that there is no legislative authority that authorizes reclassification and transferred to higher security as a result of this masturbating behaviour. He submits that such behaviour does not fall within s. 28(a)(iii) of the Corrections and Conditional Release Act, SC 1992, c.20, which is relied upon by the Warden.

[16] He also submits that the aggressive behaviour described is so vague, and the actions of the officers unwarranted, and therefore, does not fall within that section of the CCRA as authority for the reclassification and transfer.

[17] Finally, the applicant submits that his rights under section 7 of the Charter are breached in so far as the actions of correctional authorities were arbitrary and grossly disproportionate to what is alleged to be offending conduct. He cites Mission Institution v. Khela 2014 SCC 24 for the authority that the rule of law continues to run within the penitentiary and for the principle that any deprivation of the prisoner’s liberty within an institution must be justified.

POSITION OF THE RESPONDENT

[18] The respondent submits that the conduct of the applicant directly impacts the security of the institution. The applicant refused to follow requests and then orders and then challenged the officers in front of other inmates who laughed. He submits that the decisions of this type fall within the expertise of prison authorities and deserve deference. It is not for the court to micromanage prisons.

[19] The respondent submits that the decision was lawful and reasonable, that it was not arbitrary and it was not grossly disproportionate.

THE LAW

[20] The decision in Khela sets out the principles that are particularly relevant to Mr. Wynter’s application,

73 A transfer decision that does not fall within the "range of possible, acceptable outcomes which are defensible in respect of the facts and law" will be unlawful (Dunsmuir, at para. 47). Similarly, a decision that lacks "justification, transparency and intelligibility" will be unlawful (ibid.). For it to be lawful, the reasons for and record of the decision must "in fact or in principle support the conclusion reached" (Newfoundland and Labrador Nurses' [page536] Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 12, quoting with approval D. Dyzenhaus, "The Politics of Deference: Judicial Review and Democracy", in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304).

74 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.

75 A review to determine whether a decision was reasonable, and therefore lawful, necessarily requires deference (Dunsmuir, at para. 47; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 59; Newfoundland and Labrador Nurses' Union, at paras. 11-12). An involuntary transfer decision is nonetheless an administrative decision made by a decision maker with expertise in the environment of a particular penitentiary. To apply any standard other than reasonableness in reviewing such a decision could well lead to the micromanagement of prisons by the courts.

76 Like the decision at issue in Lake, a transfer decision requires a "fact-driven inquiry involving the weighing of various factors and possessing a 'negligible legal dimension'" (Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at paras. 38 and 41). 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 (s. 28, CCRA). Determining whether an inmate poses a threat to [page537] 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 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.

77 The intervener the BCCLA argues that the application of a standard of review of reasonableness should not change the basic structure or benefits of the writ. I agree. First, the traditional onuses associated with the writ will remain unchanged. Once the inmate has demonstrated that there was a deprivation of liberty and casts doubt on the reasonableness of the deprivation, the onus shifts to the respondent authorities to prove that the transfer was reasonable in light of all the circumstances.

78 Second, the writ remains non-discretionary as far as the decision to review the case is concerned. If the applicant raises a legitimate doubt as to the reasonableness of the detention, the provincial superior court judge is required to examine the substance of the decision and determine whether the evidence presented by the detaining authorities is reliable and supports their decision. Unlike the Federal Court in the context of an application for judicial review, a provincial superior court hearing a habeas corpus application has no inherent discretion to refuse to review the case (see Farbey, Sharpe and Atrill, at pp. 52-56). However, a residual discretion will come into play at the second stage of the habeas corpus proceeding, at which the judge, after reviewing the record, must decide whether to discharge the applicant.

79 Third, the ability to challenge a decision on the basis that it is unreasonable does not necessarily change the standard of review that applies to other [page538] flaws in the decision or in the decision-making process. For instance, the standard for determining whether the decision maker complied with the duty of procedural fairness will continue to be "correctness".

[21] Section 28(a)(iii) and s.29(a) of the CCRA provide as follows:

28. If a person is or is to be confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which they are confined is one that provides them with an environment that contains only the necessary restrictions, taking into account

(a) the degree and kind of custody and control necessary for

(iii) the security of the penitentiary;

29. The Commissioner may authorize the transfer of a person who is sentenced, transferred or committed to a penitentiary to

(a) another penitentiary in accordance with the regulations made under paragraph 96(d), subject to section 28; …

[22] Commissioner’s Directive Number 566-4 provides for Counts and Security Patrols as follows:

PURPOSE

• verify offenders are alive during counts and security patrols of accommodation areas

Standards for Security Patrols

34. During security patrols, staff and contractors will ensure the presence of a live breathing body. In situations where it is not possible for staff or contractors to ascertain if the offender is alive and not in distress, they will interact with the offender in a manner consistent with CD 560 - Dynamic Security and Supervision to verify his/her well-being.

ANALYSIS

[23] The applicant's background including the conduct leading to the decision is set out in the Assessment for Decision dated July 20, 2015.

[24] The Notice of Involuntary Transfer Recommendation dated July 20, 2015, summarizes the most recent conduct, namely the pattern of masturbation an