ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-15-326-MO

DATE: 2015 Dec 07

BETWEEN:

SOLOMAN OMOGHAN

Applicant

– and –

ATTORNEY GENERAL OF CANADA

Respondent

T. Sloan, for the Applicant

M. Parker and C. Patry, for the Respondent

HEARD: November 12, 2015

Tranmer, J.

decision on application for habeas corpus

BACKGROUND

[1] The Applicant is a second time federal offender who is currently serving a five-year sentence for conspiracy to commit an indictable offence (x6). His index offences identified him as a high level drug trafficker in the Kingston and Toronto areas. Prison authorities do not believe him to have an addiction to illegal substances and believe that his involvement in the drug trade was for financial gain.

[2] He was incarcerated at Collins Bay Institution, medium security, commencing March 27, 2013. While in federal custody, he incurred institutional disciplinary infractions for providing a urine sample that tested positive for THC and for refusing to provide a sample for urinalysis.

[3] Based on information gathered or received, prison authorities concluded that the Applicant was actively involved in coordinating and organizing the introduction and distribution of contraband, including drugs and tobacco, into Collins Bay Institution. He was initially placed into segregation on June 4, 2015, but then was reclassified and involuntarily transferred to maximum-security Millhaven Institution on September 22, 2015.

[4] The Applicant petitions the court for an order in the nature of habeas corpus with certiorari in aid thereof, alleging that he has suffered a deprivation of liberty and that the decision leading to this deprivation of liberty, to reclassify him and transfer him to maximum security, is unlawful.

[5] It is common ground that the Applicant has suffered a deprivation of liberty as a result of the increase in his security classification and transfer to a maximum security institution. Therefore, the onus falls upon the Respondent to prove that the decision to reclassify and transfer was procedurally fair, lawful and reasonable. Mission Institution v. Khela 2014 SCC 24, para. 77. “A decision will not be lawful if the detention is not lawful, if the decision maker lacks jurisdiction to order the deprivation of liberty, or if there has been a breach of procedural fairness.” Para. 52. “Reasonableness should therefore be regarded as one element of lawfulness.” Para. 65.

POSITION OF THE APPLICANT

[6] The Applicant argues firstly, prison authorities breached the Applicant's right to procedural fairness by not disclosing to him all of the information that was considered in making the decision to reclassify and transfer. He submits that some of the information was withheld by prison authorities invoking section 27(3) of the Corrections and Conditional Release Act, was not lawfully withheld because it did not impact one of the protected interests under that section, and was not only as much information as was strictly necessary in order to protect the interests identified in the section.

[7] The Applicant complains that prison authorities unlawfully failed to identify persons identified in the gists of information and failed to disclose to him why certain sources were believed to be reliable.

[8] The Applicant’s second submission is that the decision was not reasonable. He submits the information which purports to support the decision is unreliable and irrelevant.

POSITION OF THE RESPONDENT

[9] The Respondent submits that it provided to the Applicant complete copies of 10 of the reports containing the information that was considered and with respect to the remaining 16 reports, which it did not fully disclose to him, it provided gists of the information in accordance with the law and sufficient to enable him to know the case he had to meet. The Respondent cites Khela as authority for the principle that that deference is owed to decisions concerning the disclosure or withholding of considered information.

[10] The Respondent points out that it expressly invoked the provisions of s. 27(3) in the Assessment for Decision that was given to the Applicant. In accordance with the decision in Khela, the Respondent has filed on this application a sealed affidavit which it submits complies strictly with the requirements of that decision, in that it confirms:

a. That the information that was withheld was done so lawfully under s. 27(3); and

b. That the reliability of sources was assessed and why it was ranked believable, completely believable or unknown.

[11] The Respondent submits that the decision taken was reasonable on the record of information considered by the warden. Khela stands for the proposition that the Warden is in the best position to determine whether a given source or informant is reliable and accordingly, some deference is owed on this point. The further principle set out in Khela is that “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 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.” (Para. 76). This principle mandates a margin of deference to decisions regarding reclassification and transfer. (Para. 75).

PROCEDURAL FAIRNESS; SECTION 27(3) ISSUE

The Law

[12] Section 27 of the CCRA provides as follows,

Information to be given to offenders

27. (1) Where an offender is entitled by this Part or the regulations to make representations in relation to a decision to be taken by the Service about the offender, the person or body that is to take the decision shall, subject to subsection (3), give the offender, a reasonable period before the decision is to be taken, all the information to be considered in the taking of the decision or a summary of that information.

Idem

(2) Where an offender is entitled by this Part or the regulations to be given reasons for a decision taken by the Service about the offender, the person or body that takes the decision shall, subject to subsection (3), give the offender, forthwith after the decision is taken, all the information that was considered in the taking of the decision or a summary of that information.

Exceptions

(3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosure of information under subsection (1) or (2) would jeopardize

(a) the safety of any person,

(b) the security of a penitentiary, or

(c) the conduct of any lawful investigation,

the Commissioner may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified in paragraph (a), (b) or (c).

[13] The Supreme Court of Canada in Khela stated the principle of procedural fairness as follows:

81 … if the Commissioner or a designated staff member determines that an inmate must be transferred immediately on an emergency and involuntary basis, the inmate is nonetheless entitled to make representations regarding the transfer. Section 27(1) of the CCRA provides that where an inmate is entitled by the regulations to make such representations, the decision maker must give him or her "all the information" to be considered in taking a final decision regarding the transfer, subject only to s. 27(3). Even inmates transferred on an emergency and involuntary basis are therefore entitled to all the information considered in the Warden's decision-making process, or a summary thereof, except where s. 27(3) applies. The requirement that the inmate be provided with "all the information" can be satisfied by providing him or her with a summary of the information.

82 … Section 27 of the CCRA guides the decision maker and elaborates on the resulting procedural rights (May, at para. 94). In order to guarantee fairness in the process leading up to a transfer decision, s. 27(1) provides that the inmate should be given all the information that was considered in the taking of the decision, or a summary of that information. This disclosure must be made within a reasonable time before the final decision is made. The onus is on the decision maker to show that s. 27(1) was complied with.

83 This disclosure is not tantamount to the disclosure required by R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326. … In this context, the inmate's residual liberty is at stake, but his or her innocence is not in issue. Stinchcombe requires that the Crown disclose all relevant information, including "not only that which the Crown intends to introduce into evidence, but also that which it does not" (p. 343). Section 27 does not require the authorities to produce evidence in their possession that was not taken into account in the transfer decision; they are only required to disclose the evidence that was considered. Further, whereas Stinchcombe requires the Crown to disclose all relevant information, s. 27 of the CCRA provides that a summary of that information will suffice.

84 The statutory scheme allows for some exemptions from the onerous disclosure requirement of s. 27(1) and (2). Section 27(3) provides that where the Commissioner has reasonable grounds to believe that disclosure of information under s. 27(1) or (2) would jeopardize (a) the safety of any person, (b) the security of a penitentiary, or (c) the conduct of a lawful investigation, 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.

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.

92 It is clear from the record that the Warden, in making the transfer decision, considered information that she did not disclose to Mr. Khela. Nor did she give him an adequate summary of the missing information. The withholding of this information was not justified under s. 27(3). As a result, the Warden's decision did not meet the statutory requirements related to the duty of procedural fairness.

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.

95 Although some of this information may have been justifiably withheld under s. 27(3) of the CCRA, the appellants did not invoke s. 27(3) or lead any evidence (including a sealed affidavit) to suggest that their withholding of information related to concerns arising from the interests protected by s. 27(3). If s. 27(3) is never invoked, pled, or proven, there is no basis for this Court to find that the Warden was justified in withholding information that was considered in the transfer decision from the inmate.

ANALYSIS

[14] The Applicant was provided with copies of the entirety of 10 of the 26 reports containing information considered by prison authorities. With respect to the remaining 16 reports, he was provided with summaries of those reports. In the Assessment for Decision and the Addendum, prison authorities specifically informed the Applicant that some information contained in the 16 reports was being withheld pursuant to section 27(3) on the basis that there were reasonable grounds to believe that disclosure of certain information would jeopardize the safety of one or more persons and the security of the institution. He was informed that some of the information had been provided by confidential sources and that in a penitentiary, the safety of a person is in jeopardy if they are known to be or suspected, rightly or wrongly, of being a confidential source. Therefore, the information that could reasonably be used to identify a source or sources had been withheld. Prison authorities acted lawfully in specifically informing the Applicant that they had invoked provisions of s. 27(3).

[15] 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 carefully compared the information that was disclosed to the Applicant to that contained in the sealed affidavit. I have now resealed the sealed affidavit.

[16] My review of the contents of the sealed affidavit satisfy me that it contains both the information that has been withheld from the inmate compared with the information that was disclosed and it sets out why disclosure of that information might jeopardize the safety of any person or the security of the penitentiary. 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. Based on the contents of the sealed affidavit, prison authorities have satisfied me that there was good reason for the belief that disclosure of the withheld information might jeopardize the interests identified in s. 27(3).

[17] The sealed affidavit discloses that with respect to 3 of the 16 reports, some information that probably could have been disclosed was not (see Ex.5, 7 and 8 of sealed affidavit). In my view, these are minor failings and do not result in procedural unfairness. Deference is owed to the decision not to disclose. My conclusion is that these failings do not render the decision procedurally unfair.

[18] The sealed affidavit also describes the level of reliability assigned to the information received from confidential sources, and an anonymous kite, why that level of reliability was assessed in respect of each item of information and what steps were taken to verify the information being relied upon. Deference is owed to those prison authorities who are in the best position to determine whether a given source or informant is reliable and to what extent.

[19] Furthermore, I am satisfied that prison authorities withheld only as much information as was strictly necessary to protect the interests identified in s. 27(3) (a) and (b).

[20] The Applicant raises the issue in this case that it is not sufficient disclosure and therefore, procedurally unfair to the Applicant, that prison authorities disclosed to him that the informant is believed to be “believed reliable” without giving some explanation as to why that assessment was made, for example, that this particular informant had given information previously that proved to be accurate and resulted in seizure of contraband. On this point, it is important to remember that Khela holds that the Warden and the Commissioner are in the best position to determine whether a given source or informant is reliable. Their decisions in that regard are owed deference. Furthermore, Khela holds that the Commissioner or his or her representative is in the best position to determine whether a risk could in fact materialize should an informant be identified. Deference is owed to such decisions as well. There is evidence on the record before me sufficient to conclude that inmates are capable of piecing together seemingly insignificant bits of information sufficient to permit them to identify, either, rightly or wrongly, a confidential source. There is no doubt that when a confidential source is identified in the prison setting that person’s safety is at high risk as is the security of the institution. Further, on this point, I note in Khela, the Supreme Court of Canada found that simply identifying confidential source information as “source information”, without identifying the level of reliability placed on that information by prison authorities, was found to constitute a failure to disclose information about the reliability of the sources. In contrast, in the Applicant’s case, prison authorities do inform him as to the level of reliability assessed by prison authorities, specifically identifying it as “believed reliable”. In my opinion, that is all that is required of prison authorities. Khela makes it clear that the details as to why a given level of reliability is assessed for a piece of information, is to be done within the sealed affidavit. Para. 88, Khela.

[21] On the issue raised by the Applicant that certain persons described in the information disclosed to him should be specifically named, for example Mr. X, I do not agree. For all of the reasons that I have set out above, it is lawful for the prison authorities to withhold such identification. Prison authorities are in the best position to determine the risks consequent to disclosure of such identities.

[22] I am satisfied that the extensive disclosure given to the Applicant enabled him to fully know and address the case he had to meet.

[23] The Respondent has proven that it has strictly complied with the disclosure obligations imposed on it by law, that it strictly complied with the provisions of s. 27 CCRA, including ss. 3, that it fully complied with the principles of procedural fairness set out in Khela, and that there was no breach of procedural fairness in this case.

[24] I find that prison authorities complied with the duty of procedural fairness to the standard of correctness.

REASONABLENESS

The Law

[25] The decision in Khela sets out the law for the consideration of reasonableness on an application for habeas corpus:

72 The above reasoning leads to the conclusion that an inmate may challenge the reasonableness of his or her deprivation of liberty by means of an application for habeas corpus. Ultimately, then, where a deprivation of liberty results from a federal administrative decision, that decision can be subject to either of two forms of review, and the inmate may choose the forum he or she prefers. An inmate can choose either to challenge the reasonableness of the decision by applying for judicial review under s. 18 of the FCA or to have the decision reviewed for reasonableness by means of an application for habeas corpus. "Reasonableness" is therefore a "legitimate ground" upon which to question the legality of a deprivation of liberty in an application for habeas corpus.

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' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 12).

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 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.

ANALYSIS

[26] In view of the significant believed reliable information that prison authorities considered, the nature of the Applicant's index offenses and his few but significant institutional charges, it cannot seriously be suggested that their conclusion that he was involved in coordinating and organizing the introduction and distribution of contraband into the penitentiary was unreasonable.

[27] I agree with the Respondent that the reclassification and transfer to maximum security falls within the range of possible, acceptable outcomes and is justified, transparent and intelligible. The record supports the decision. It cannot be said that there was an absence of evidence or that the decision was made on the basis of unreliable or irrelevant evidence or evidence that cannot support the conclusion. The record supports a conclusion that the Warden properly considered the factors set out in the CCRR for security classification decisions, and further that he considered the Applicant's rebuttal and that there was no less restrictive environment than maximum security manages security needs.

[28] The Warden possesses the necessary knowledge to determine whether an inmate poses a threat to the security of the penitentiary or of the individuals who live and work in it. He possesses the intimate knowledge about the penitentiary's culture and of the behaviour of the individuals inside its walls. He has the necessary related practical experience. I have examined the substance of the warden's decision and determined that the evidence considered by the Warden in arriving at the decision is reliable, relevant and supports the decision.

[29] The Respondent has proven that the transfer was reasonable in light of all of the circumstances.

DECISION

[30] For these reasons, this application for habeas corpus is dismissed. The sealed affidavit shall remain sealed unless otherwise ordered by a court of competent jurisdiction.

Honourable Justice Gary W. Tranmer

Released: December 7, 2015

COURT FILE NO.: CR-15-326-MO

DATE: 2015 Dec 07

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

SOLOMAN OMOGHAN

Applicant

– and –

ATTORNEY GENERAL OF CANADA

Respondent

habeas corpus dECISION

Tranmer J.

Released: December 07, 2015