ONTARIO SUPERIOR COURT OF JUSTICE

BRACEBRIDGE COURT FILE NO.: CR-15-30-MO

DATE: 20151113

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Respondent

– and –

MICHAEL WHITE

Applicant

Melanie Toolsie, for the Respondent

Simon Borys, for the Applicant

HEARD: October 21, 2015

RULING ON APPLICATION

VALLEE J.

[1] Mr. White brings an application for a writ of habeas corpus with certiorari in aid, ordering that he be transferred from medium to minimum security unless the respondent can justify his continued detention in medium security.

General Legal Principles

[2] Habeas corpus requires a two step analysis. In May v. Ferndale (2005) 2005 SCC 82, 3 S.C.R. 809 at para 74, the SCC held that:

A successful application for habeas corpus requires two elements: (1) a deprivation of liberty and, (2) that the deprivation be unlawful. The onus of making out a deprivation of liberty rests on the applicant. The onus of establishing the lawfulness of that deprivation rests on the detaining authority.

[3] In Dumas v. Leclerc Institute of Laval 1986 38 (SCC), [1986] 2 S.C.R. 459, in para 12, the court stated that, “there are three different deprivations of liberty: the initial deprivation of liberty, a substantial change in conditions amounting to a further deprivation of liberty and a continuation of the deprivation of liberty. This application concerns the third category.

Issues

[4] Mr. White is not in a typical situation where an inmate has been moved up to higher security and has been deprived of liberty that he previously had. Rather, he is in medium security and states that he should be moved down to minimum security. Accordingly, the issues to be decided are:

1. Does Mr. White’s continuing detention in medium security constitute a deprivation of liberty in the circumstances?

2. Is his continuing detention in medium security unlawful?

Has Mr. White suffered a deprivation of liberty?

Mr. White’s Position

[5] In 2006, Mr. White was convicted of second degree murder and offering an indignity to a human body for the murder of his wife. He was transferred to Beaver Creek Medium in 2009. He has been in medium security since that time because he maintains that he is innocent of the offences. This factor keeps his escape risk and public safety rating at moderate, which results in the assessment of his security level as medium rather than minimum.

[6] Mr. White states that he is an ideal candidate for minimum security. A psychological report dated January 5, 2015 stated that Mr. White was at the low range for both violent and general recidivism. The psychologist stated that Mr. White’s behaviour has been “entirely satisfactory during his term of federal custody” and supported him for minimum security.

[7] In April, 2015, the security reclassification scale was administered by the Correctional Service of Canada (“CSC”). Mr. White scored 16.5 which is at the high end for minimum security and is within the 5% discretionary range for medium security. Mr. White’s case management team wrote his bi-annual security review which served as an assessment. It described his behaviour as exemplary and stated that he was as a model inmate. The team recommended that Mr. White’s escape risk and public safety ratings be reduced from moderate to low and that he be transferred to minimum security.

[8] The manager of assessment intervention disagreed with the recommendation. He stated in his report that,

although WHITE has demonstrated engagement in programming and has evidenced positive institutional behaviour, the lack of insight and responsibility for his index offence cannot be ignored. There has been no clear reason for why WHITE committed this offence against his wife…Therefore, based on the SRS score of 16 which is within the discretionary range for medium, the subject’s OSL rating is being recommended maintained MEDIUM security…

[9] The warden concurred with the MAI’s recommendation. He stated that,

Mr. WHITE continues to deny any responsibility for his offences and has been appropriately rated low in the area of accountability in his Correctional Plan. I would agree that WHITE has demonstrated some progress…however, his denial of his offence is considered an aggravating factor and is a key in assessing his level of risk to the public and until such time as WHITE is able to take responsibility there can be no clear way of knowing whether the subject’s risk has been sufficiently reduced.

Therefore, WHITE is confirmed medium security with maintained risk ratings of low institutional adjustment, moderate escape risk and moderate public safety.

[10] The jurisprudence is divided regarding whether a refusal to transfer an inmate down to minimum security constitutes a deprivation of liberty. There are no Ontario appellate decisions on the issue. Nevertheless, there are relevant decisions from courts of appeal in other provinces.

[11] Mr. White relies on Musitano v. Canada (Attorney General), 2006 9151 (ON SC), 2006 CarswellOnt 1750. Justice Howden, of the Ontario Superior Court of Justice stated in para 2(5),

The decision to transfer an inmate to a more restrictive institutional setting constitutes a deprivation of his or her residual liberty…There is no issue in this case with the reverse proposition illustrated by this case; a refusal to transfer an inmate to a less restrictive setting constitutes a deprivation of residual liberty rights.

[12] In this case, Mr. Musitano’s case management team recommended that he be transferred from medium to minimum security. His security reclassification scale score was 14.5, within the minimum security range and lower than Mr. White’s score. Ultimately the Warden decided against the transfer. Mr. Musitano was considered to be a member of traditional organized crime. Further, the warden stated that there would be on-going media attention that would invoke a negative reaction that would likely disrupt and destabilize the security of a minimum or medium security institution with lesser internal controls and supervision than Warkworth, which is where Mr. Musitano was serving his sentence. The warden overrode the minimum security classification to medium security such that medium security would be maintained.

[13] The warden’s decision was made outside of the required timeline. The court found that Mr. Musitano had been treated arbitrarily and unfairly. There was no evidentiary basis for the finding that Mr. Musitano had continued criminal association. There was no evidentiary basis to justify the refusal to transfer.

[14] Mr. White also relies on several other cases that cite Musitano with approval. They are as follows:

• Canada (Attorney General) v. Hollinger, 2007 CarswellOnt 5646 (Sup Ct. J.), in which Mr. Hollinger’s score was 18.5 and he requested a transfer from maximum to medium security;

• R. v. Scarcella, 2009 CarswellOnt 3680 (Sup Ct J), in which Mr. Scarcella’s score was 13 and he requested a transfer from medium to minimum security;

• Hutchinson v. Canada (Attorney General), 2010 ONSC 535, in which Mr. Hutchinson’s score was 15 and he requested a transfer from medium to minimum security; and,

• R. v. Moulton, 2010 ONSC 2448, in which his score is described as in the medium range.

[15] Section 28 of the Corrections and Conditional Release Act states that where a person is confined to a penitentiary, the Correctional 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 (i) the safety of the public, (ii) the safety of that person and other persons in the penitentiary, and (iii) the security of the penitentiary…”

[16] Mr. White argues that if he is kept in an environment that contains greater restrictions than necessary, he is deprived of a liberty to which he is entitled by law. He states that the Warden failed to acknowledge any of the factors which militated strongly toward a minimum security assessment including his psychological report, his score on the security reclassification scale and the support of his case management team.

Analysis

Legal Principles

[17] In Dumas, the Supreme Court considered R. v. Miller, 1985 22 (SCC), [1985] 2 S.C.R. 613, pp. 640-641, as follows,

I do not say that habeas corpus should lie to challenge and all conditions of confinement in a penitentiary or prison, including the loss of any privilege enjoyed by the general inmate population. But it should lie in my opinion to challenge the validity of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution.

[18] The court also stated at p. 431, “The continuation of an initially valid deprivation of liberty can be challenged by habeas corpus only if it becomes unlawful.”

[19] In Mapara v. Ferndale Institution (Warden), 2012 BCCA 127, the court stated at paras. 15 and 16,

[Habeas corpus] is available to challenge only those decisions that result in a substantial change in the conditions of an inmate’s confinement that adversely affect his or her residual liberty interests…a decision that denies an inmate access to less restrictive conditions does not constitute such a deprivation.

[20] In Fisk v. Canada (Pacific Regional Correctional Service), [1996] B.C.J. No. 179, at para. 37, the court stated,

The petitioner does not challenge the validity of the initial deprivation of his liberty, nor does he suggest that there has been has been any substantial change in the conditions amounting to a further deprivation of liberty. Since his committal he has never had any greater degree of liberty than he currently enjoys. That being the case, this court does not have jurisdiction to grant relief in the nature of habeas corpus.

[21] These decisions support the view that a decision to refuse to confer a better classification on an inmate is not the same as subjecting an inmate to a more stringent classification. Mr. White has never enjoyed a less restrictive form of detention. Accordingly, I find that Mr. White has not suffered a deprivation of liberty. In case I have erred, I will consider the second issue.

Is Mr. White’s continuing detention unlawful?

Mr. White’s Position

[22] Mr. White states that the warden’s decision was unreasonable because he decided not to accept the recommendation of staff. He failed to take into account related evidence including the psychological assessment which stated that he was worthy of continuing his custody in a less restrictive environment.

[23] The Corrections and Conditional Release Regulations, SOR/92-620 in para. 18 states as follows:

For the purposes of section 30 of the Act an inmate shall be classified as:

(b) medium security where the inmate is assessed by the Service as

(i) presenting a low to moderate probability of escape and a moderate risk to the safety of the public in the event of escape, or

(ii) requiring a moderate degree of supervision and control within the penitentiary; and

(c) minimum security where the inmate is assessed by the Service as

(i) presenting a low probability of escape and a low risk to the safety of the public in the event of escape, and

(ii) requiring a low degree of supervision and control within the penitentiary.

[24] Mr. White states that the fact that he maintains his innocence does not justify the moderate rating for public safety and escape risk as determined by the warden. The warden’s decision was unreasonable and therefore unlawful.

Analysis

[25] In considering whether the warden’s decision was unlawful, I must apply a standard of reasonableness. Such a standard requires that deference be given to the warden’s decision. The warden had conflicting recommendations from the case management team and the manager of assessment intervention. The case management team and the psychological report both stated that Mr. White deserved chance at living in a minimum security environment as a step towards eventual parole. It should be noted that the paramount consideration of the Corrections and Conditional Release Act is the protection of society. Mr. White’s updated correctional plan states under the heading of accountability that Mr. White’s, “lack of responsibility for the offence amd lack of remorse/empathy indicate a low accountability rating.” Under the heading offence cycle, the report states, “there was never a theory put forward in regard to why he committed the index offence and given his denial of it one will never be known.”

[26] The warden states in his final decision,

Mr. WHITE continues to deny any responsibility for his offence and has been appropriately rated low in the area of accountability in his Correctional Plan. I would agree that WHITE has demonstrated some progress through the participation in programming toward addressing his dynamic need areas, however, his denial of his offence is considered an aggravating factor and is a key in assessing his level of risk to the public and until such time as WHITE is able to take responsibility there can be no clear way of knowing whether the subject’s risk has been sufficiently reduced.

[27] I find that the warden’s decision was reasonable. Mr. White’s denial of responsibility for the offence means that it will never be possible to determine why he committed the offence. His reason for committing the offence is directly related to any analysis of whether he is a risk to public safety and if so the degree of the risk. Because the paramount consideration of the CCRA is the protection of society, the warden’s decision to confirm Mr. White’s security rating as medium was justified and responsible. Therefore, his decision was lawful.

[28] The application is dismissed.

Costs

[29] The Attorney General submitted that costs generally follow the cause. If costs are not awarded on habeas corpus applications, they are paid for by the tax payers. In this case, there is an outstanding grievance process which could be judicially reviewed. The Attorney General agreed that costs should not be a roadblock for inmates to avail themselves of habeas corpus applications.

[30] Mr. White submitted that habeas Corpus is not a civil remedy because there is no determination of liberty. Costs should not follow in the normal course unless the application is egregious in some manner.

[31] Both the Attorney General and Mr. White agreed that if costs were to be awarded, $1000 would be appropriate.

[32] In Wood v. New Brunswick (Warden of Atlantic Institution), 2014 NBQB 135, the court noted that habeas corpus is a civil remedy. In para. 70 it stated,

In the end, the just balance is found by imposing more modest cost awards relative to the length of the hearings, the conduct of the party and the merits of the claim then might otherwise be imposed, recognizing an inmate’s special situation.

Taking this into account, costs are fixed in the amount of $1000 payable by Mr. White to the Attorney General.

VALLEE J.

Released: November 13, 2015