ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO. 287/15

DATE: 20151103

BETWEEN:

CARLOS SAMANIEGO

Applicant

– and –

ATTORNEY GENERAL OF CANADA

Respondent

Todd Sloan, for the applicant

Michael Sims, for the respondent

HEARD: June 15, 2015

Bale J.

[1] Carlos Samaniego is a first-time federal offender, serving a six-year sentence for drug and firearms offences. In January of 2015, he was transferred from the minimum security unit at Joyceville Institution to the medium security Warkworth Institution. On this application for habeas corpus, he challenges both the procedural fairness of the transfer decision, and the reasonableness of the decision.

[2] The test that must be satisfied on an application for habeas corpus is described as follows in Mission Institution v. Khela, 2014 SCC 24, at para. 30:

To be successful, an application for habeas corpus must satisfy the following criteria. First, the applicant must establish that he or she has been deprived of liberty. Once a deprivation of liberty is proven, the applicant must raise a legitimate ground upon which to question its legality. If the applicant has raised such a ground, the onus shifts to the respondent authorities to show that the deprivation of liberty was lawful (Farbey, Sharpe and Atrill, at pp. 84-85; May, at paras. 71 and 74).

[3] It is common ground that the transfer of Mr. Samaniego from minimum to medium security constituted a deprivation of his liberty. However, the respondent argues that the transfer decision was both procedurally fair, and reasonable.

[4] The challenge to the procedural fairness of the transfer decision is based upon s. 27 of the Corrections and Conditional Release Act (“CCRA”) which outlines the disclosure required in order for a reviewing court to find a transfer decision to be fair, and therefore lawful. Pursuant to s. 27(1), before a decision is taken, the inmate must be given all of the information to be considered in the taking of the decision, or a summary of that information. Pursuant to s. 27(2), after the decision is taken, the inmate must be given all of the information that was considered in the taking of the decision, or a summary of that information. Section 27(3) contains an exception to the disclosure requirements: where the Commissioner has reasonable grounds to believe that the disclosure of information would jeopardize (a) the safety of any person, (b) the security of a penitentiary, or (c) the conduct of any lawful investigation, he or she may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified.

[5] The information provided to Mr. Samaniego included the following:

You were placed in involuntary segregation on 2014-12-15 after SIO Burelle examined the contents of a duffel bag, which other offenders attempted to retrieve from the highway area on the evening on 2014-12-14. The bag contained various contraband and unauthorized items, most notably marijuana, tobacco and alcohol, with an estimated institutional value of $9,290.

In a pocket of the duffel bag, SIO Burelle found an old (1998) letter, which was addressed to your sister. In interview with SIO Burelle and AWO Trainor, you were allowed to read this letter. As you started to read it, SIO Burelle observed that your cheeks and neck area turned red. You then looked at SIO Burelle and AWO Trainor and said, “Where did you find this?” SIO Burelle advised that it was in the duffel bag of contraband from Sunday night. You denied having anything to do with what happened on 2014-12-14 and alleged that your sister would never involve herself in sending in contraband for you or anyone else.

Believed reliable SIO information indicates that you are a major player in the introduction and distribution of drugs, alcohol and tobacco at JI Minimum Unit. Source information identifies you as the financial person and the one with the necessary community connections to arrange and put together whatever you want/need to introduce into JI Minimum Unit. Source information also alleges that, once your connections put together a package of contraband, you arrange for it to be delivered to another offender’s community contacts and they, in turn, arrange to get it delivered to the institution for pick up by other offenders who are willing to go out of bounds to retrieve them.

I consider the letter found in the duffel bag of contraband to be evidence that substantiates this information. The bag clearly belonged to your sister; there is no other plausible explanation as to why the letter would be in the bag of contraband.

[6] While Mr. Samaniego acknowledges that the withholding of confidential source information may be justified, he complains that he was not informed as to why the source information was believed to be reliable, that he wasn’t given particulars of the source information (i.e. dates that the alleged activities took place, etc.), and that he wasn’t given the rationale for withholding the information, with reference to the exceptions in s. 27(3) of the CCRA.

[7] In support of his argument that he should have been told that information was being withheld under the authority of s. 27(3), counsel for Mr. Samaniego quotes the following from Khela, at para. 86: “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.”

[8] However, it is not necessary that the fact of reliance on s. 27(3) be included in the information given to the inmate. It is sufficient, where a decision is challenged, that the correctional authorities submit to the reviewing court a sealed affidavit that contains “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 [one of the listed interests]”: Khela, at para. 87.

[9] In the present case, a sealed affidavit was provided to me at the hearing. In it, the SIO provides the history of his receipt of the confidential information, the reasons why this history was not disclosed, and explains why he believes the confidential source to be reliable. Given the required measure of deference on these issues to be accorded to the Commissioner or his designate (Khela at para. 89), I am satisfied that the warden had reasonable grounds to withhold the undisclosed information. I also find that s. 27(3) aside, Mr. Samaniego was given a sufficient summary of the information to be used in the transfer decision, to inform him of the case to be met.

[10] With respect to the reasonableness of the decision, the test has been stated as follows: “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” (Khela at para. 74).

[11] Counsel for Mr. Samaniego submitted in his factum that the evidence did not support the transfer decision because articles such as duffel bags were kept in a place accessible to all inmates, and that Mr. Samaniego’s duffel bag may have been accessed by the “real perpetrator of the impugned activities.” However, there is no evidence before the court to support this assertion, and I find the conclusions reached by the SIO to be reasonable.

[12] Mr. Samaniego’s complaint is not so much that he was reclassified as medium security, as it is the type of medium security institution that Warkworth represents. Relying upon s. 28 of the CCRA, he argues that the restrictions at Warkworth are greater than necessary, and that he should be transferred to Beaver Creek, a medium security institution with a responsibility-based, small-group living environment. However, although a transfer to Beaver Creek was considered, it was not supported by the institution’s Manager of Assessment and Intervention, based upon the activity in which Mr. Samaniego was alleged to have been engaged. Other medium security institutions with fewer restrictions than Warkworth were also ruled out due to incompatibility issues. In any event, on an application for habeas corpus, a court has no power to order an inmate to be transferred to a particular institution: Jenkins v. Canada (Correctional Service), 2014 ONSC 6922, at para. 35. Within reason, such decisions are better left to the correctional authorities with expertise in the environment of a particular penitentiary.

[13] For the reasons given, the application is dismissed.

[14] The Attorney General requests that the sealed affidavit be returned in order to avoid inadvertent disclosure of information that might reveal the identities of confidential informers. I have therefore placed the affidavit in a sealed envelope, and invite Crown counsel to contact the trial coordinator at Peterborough, in order to make arrangements for its return. The envelope shall remain sealed, pending further order of this, or an appellate, court.

“Bale J.”

Released: November 3, 2015