Emonts v. Canada (Attorney General), 2015 ONSC 852
COURT FILE NO.: CR-14-498-MO (Kingston)
DATE: 2015 Feb 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DENTON EMONTS
Applicant
– and –
ATTORNEY GENERAL OF CANADA and the Wardens of Collins Bay Institution and Millhaven Institution
Respondents
Todd Sloan, for the Applicant
Mathew Johnson, for the Respondents
HEARD: February 4, 2015 at Kingston
TRANMER, J.
DECISION ON APPLICATION FOR HABEAS CORPUS
[1] The applicant seeks an Order in the nature of habeas corpus with certiorari in aid thereof to determine the legality of his detention, and in particular, challenging his reclassification from medium to maximum-security, and his transfer from a medium security institution to a maximum security penitentiary.
BACKGROUND FACTS
[2] The applicant was incarcerated at Collins Bay Institution (CBI), a medium security federal penitentiary. He was serving a sentence of nine years and seven months for drug related offences, including 10 counts of trafficking in scheduled substances, 2 counts of possessing scheduled substances for the purpose of trafficking and one count of producing a scheduled substance. The information that corrections authorities had concerning these offences was that these drug offences were for the benefit of, or at the direction of, or in association with a criminal organization.
[3] Between May and July 2014, an investigation was conducted by the Security Intelligence Office at Collins Bay into multiple drug overdoses within the institution, including one which led to the death of an inmate.
[4] In the course of that investigation, institutional authorities, including Security Intelligence Officer Coletta (SIO), received information that caused her to conclude that the applicant was a leading member of the group of inmates who were importing drugs into and distributing drugs within the institution.
[5] On the basis of the information gathered, the applicant and a number of other inmates were involuntarily placed into segregation on July 3, 2014 pending completion of the investigation into the institutional drug problem.
[6] The Assessment for Decision dated September 25, 2014 approved a reclassification and transfer to maximum-security Millhaven Institution (Tab F).
[7] The Addendum to Assessment for Decision dated October 8, 2014, purports to “detail all reports available on the security intelligence file pertaining to Emonts and his involvement in the drug subculture since his arrival to CBI on 2012-04-18.” The reports cited are withheld from full disclosure to the applicant pursuant to section 27(3)(a) of the CCRA (Tab G).
[8] A Notice of Involuntary Transfer Recommendation is dated September 26, 2014 (Tab J). At page 3 of that Notice, pg. 196 of the Respondent’s Record, boxes are checked off indicating that the offender has received a copy of the notice, that he has been advised of his right to retain and instruct counsel, that he has been provided with a reasonable opportunity to retain and instruct counsel, that he does wish to make representation with respect to the proposed transfer in writing and that he requests an extension of time to submit a rebuttal to the proposed transfer. It is also noted “lawyer back October 10, 2014 and says lawyer is doing a written rebuttal.”
[9] The written “Rebuttal of Involuntary Transfer Notice, Denton Emonts” by legal counsel is dated October 14, 2014 and filed at Tab K.
[10] The Referral Decision Sheet Offender Security Level is dated October 21, 2014 (Tab L). The Warden approved a maximum security classification.
[11] The Referral Decision Sheet for Inst. Transfer (Involuntary) is dated October 21, 2014 (Tab M). An involuntary transfer to maximum security Millhaven Institution was approved.
[12] The applicant was transferred to Millhaven Institution on October 24, 2014.
POSITION OF THE PARTIES
[13] It is agreed that there has been a deprivation of liberty.
[14] The issue is whether the respondent has met the onus on it to prove that the decision resulting in the deprivation of liberty is lawful, from the perspective of procedural fairness and reasonableness.
[15] The applicant submits that the overarching principles include firstly, that the applicant must be given sufficient information by the correctional authorities to know the case to be met; secondly, the applicant must of been given a reasonable opportunity to make informed representations in regard to the case against him; and thirdly, such representations by the applicant must have been considered by the correctional authorities. The applicant also submits that the principle of law requiring the least restrictive form of custody is applicable to this case.
[16] The issues raised in this proceeding are as follows.
The s. 27(3) CCRA and Disclosure Issues
[17] The applicant submits that section 27 of the Corrections and Conditional Release Act, Part 1, S.C. 1992, c.20, was not complied with by prison authorities in that all of the information to be considered and that was considered by correctional authorities was not disclosed to the applicant, and section 27(3) was unlawfully invoked by the correctional authorities.
[18] The applicant submits that the SIO failed to appreciate that there is a two stage test under s. 27(3), firstly, protection of the relevant interest, and secondly, to withhold only “as much information as is strictly necessary.”
[19] The respondent has filed a sealed envelope, marked as Exhibit 2 in these proceedings, in accordance with the direction of the Supreme Court of Canada in Mission Institution v. Khela, 2014 SCC 24, paras. 86 to 90. The respondent submits that upon reviewing the contents of that envelope, this court will be satisfied that s. 27(3) was complied with by corrections authorities namely, only such information as was strictly necessary to protect the safety of informants was withheld from the applicant, and that full and proper disclosure of the information considered by the prison authorities was made to the applicant, enabling him to know fully the case against him.
[20] The applicant submits that in her cross-examination, the SIO testified that she considered de-personalizing and severing information in order to permit disclosure to the applicant. He submits that the sealed affidavit filed by the respondent should provide evidence that she did this.
[21] The applicant submits that the SIO and staff had relevant information that they did not share with the Warden, who was the decision-maker.
[22] The respondent submits that the affidavit and cross-examination evidence of the SIO demonstrates that all information was in fact shared with the Warden.
[23] The SIO was cross-examined on her affidavit filed in these proceedings and indicated the factors she considered in determining whether the informants were believed reliable. The applicant submits that she should also have considered the substance dependency of the informants as a reliability factor.
[24] The respondent submits that the SIO was not bound in law to consider such a factor.
Duty to Investigate
[25] The applicant submits that the correctional authorities should have, but did not, obtain and review the bank records of the applicant about which they had information. The applicant notes that the SIO relied on information obtained in the telephone intercepts of the applicant's conversations about those bank records, without reviewing the bank records directly.
[26] The applicant further submits that when faced with the applicant’s written rebuttal, the law requires the Warden to consult with the SIO concerning it.
[27] The respondent submits that there is no obligation on corrections authorities to further investigate. The Warden was required to make the decision based on the record before him at the time, which is what he did.
Rebuttal Issues
[28] The applicant submits that the Warden did not consider the applicant's written rebuttal, or alternatively, did not give reasons for rejecting the explanations set out by the applicant in his rebuttal.
[29] The respondent submits the record is clear that the Warden did, in fact, consider the written rebuttal of the applicant, and further, clearly demonstrates the Warden rejected the applicant’s various explanations in the face of the totality of the information weighing against him.
[30] The applicant further submits that the Warden failed to hear the applicant's rebuttal in person when requested to do so by the applicant.
[31] The respondent submits that the documentary evidence before me indicates the applicant wished to make his rebuttal in writing through his lawyer. The respondent further submits that the written rebuttal was made and the legislation, s. 12(b) CCRR, does not require corrections authorities to allow the applicant both the written rebuttal and an in person rebuttal.
The s. 12(b) CCRR issue
[32] The applicant submits that there was no meeting between him and the Warden, or his delegate, which is required under s. 12(b) of the Corrections and Conditional Release Regulations.
[33] The respondent agrees that s. 12(b) mandates a meeting. The respondent submits that on September 26, 2014, the applicant did meet with a correctional officer who gave to him at that time the Assessment for Decision, the Addendum and the Notice of Involuntary Transfer Recommendation. The respondent agrees that technically there was no meeting as contemplated by s. 12(b). The respondent submits however, that the spirit of the section was met, in that the applicant was fully informed of the reasons for the proposed transfer by the documents given to him and therefore, he knew fully the case against him to be met. The respondent submits that in any event, this is no more than a technical breach of this section that did not render the decision procedurally unfair (para. 90, Khela).
The Reasonableness Issue
[34] The applicant submits that the totality of the evidence available to corrections authorities did not warrant the reclassification and transfer of the applicant to maximum security and that the decision to reclassify and transfer was unreasonable.
[35] The respondent submits that the decision process was procedurally fair and lawful, and that the decision to reclassify and transfer was reasonable.
ANALYSIS
The s. 27(3) CCRA and Disclosure Issues
[36] In accordance with the principles set out by the Supreme Court of Canada in Khela, I have unsealed and read Ex. 2, the Sealed Affidavit of Linda Coletta.
[37] I have instructed myself on the principles set out in Khela, and in particular at paragraphs 86 through 89, inclusive.
[38] I am fully satisfied that the respondent has met the onus on it in invoking s. 27(3)(a) to withhold certain information and that the respondent has proven that there were reasonable grounds to believe that disclosure of that information would jeopardize the safety of the informants. The respondent has also explained why the information of the informants was considered reliable and what measures were taken to verify the information.
[39] The respondent has proven that there were reasonable grounds to believe that disclosure of the information that was withheld would jeopardize the safety of the informants and that the Warden withheld from the offender only as much information as was strictly necessary in order to protect that interest.
[40] The SIO testified in her cross-examination that all information obtained by her or staff in regard to the investigation of the applicant was written down and given to the Warden for him to consider in making his decision on reclassification and transfer (transcript pages 20-21, 25 and 34). On this evidence, I conclude that all information obtained was put before the Warden for consideration.
[41] There was no requirement that the SIO consider as a factor of reliability of the informants their particular substance dependency.
[42] The SIO testified on her cross-examination that she considered depersonalizing and severing information in order to permit further disclosure of withheld information. There is no requirement for any further evidence in this regard.
[43] I am satisfied that the respondent has met the onus imposed on it to prove that prison authorities provided to the applicant all of the information that was considered in the making of the decision, or a summary of that information, except such information as it lawfully withheld under section 27(3) as was strictly necessary to protect the safety of the informants.
[44] Accordingly, so far as the disclosure issues are concerned, the respondent acted with procedural fairness.
Duty to Investigate
[45] There was no obligation on the Warden to conduct further investigation after receiving the applicant's rebuttal. Foster v. Mission Institution 2011 BCCA 451, at para. 14; Caouette v. Mission Institution 2010 BCSC 769, at para. 89; Nguyen v. Mission Institution 2012 BCSC 103, at para. 62. Therefore, it was not necessary for prison authorities to obtain the bank records, and review them. There is no requirement that the Warden consult with the SIO about the content of the applicant`s rebuttal.
Rebuttal Issues
[46] The record discloses clearly that the Warden considered the applicant's written rebuttal. The Warden also summarizes the information obtained by the security intelligence investigation into the presence of drugs in Collins Bay Institution. (See Referral Decision Sheet for Inst. Transfer (Involuntary)). The Warden decides “Given the information available to us, I am satisfied that Mr. Emonts was involved in the introduction of contraband to Collins Bay Institution, that he intended to continue to do so as indicated in the telephone intercepts and that his illegal activities resulted in drug use to the point of overdose by a number of inmates and death by overdose of one inmate in May and June of 2014. The use of drugs poses a direct threat to the health of inmates, staff, and our communities and all steps must be taken to protect inmates from the dangers of drug use. Mr. Emonts has demonstrated that he cannot be safely managed in a medium security facility and that the risk he poses requires placement in an environment with more structure and security and is available at the medium security level.”
[47] There is no basis on the record to say that the Warden did not consider the applicant’s rebuttal. It was open for the Warden to weigh and to dismiss his rebuttal. (Caouette, para 85). In considering the applicant's rebuttal against the investigation information, it was open to the Warden to rely on the information provided by the informants who were believed to be reliable and on the information provided by the informants of unknown reliability. Otherwise, “it would be very difficult or impossible for the CSC to establish security ratings and investigate offences within the prison.” (Caouette, para. 86). It was also open to the Warden to view the information provided to him by the SIO and staff through the prism of the applicant’s index offences.
[48] I find that the Warden met the standard required of him for giving reasons for his decision as set out in Newfoundland and Labrador Nurses’ Union v. Her Majesty the Queen 2011 SCC 62, para. 16. The Warden's reasons, as set out in the Referral Decision Sheet for Inst. Transfer (Involuntary), allow this court to understand why the Warden made his decision and permit this court to determine whether the conclusion is within the range of acceptable outcomes. The Warden was entitled to and did accept the information gained from the intelligence investigation over the explanations offered by the applicant in considering security, classification and transfer issues concerning the applicant. Assessment of such issues is within the Warden’s expertise. He was in the best position to assess all of the information and the risks posed to the safety and security of the inmates, personnel and institution.
[49] With respect to the applicant's submission that he was entitled to an in person hearing to make his rebuttal, I disagree. On September 26, when presented with the Notice of Involuntary Transfer Recommendation, the applicant indicated in writing that he wished to make representation with respect to the proposed transfer in writing and that he requested an extension of time to submit a rebuttal to the proposed transfer. It is specifically noted on that document that the applicant stated “Lawyer back Oct. 10/2014 and says lawyer is doing a written rebuttal.” The lawyer sent the written rebuttal by letter dated October 14, 2014. That letter is ambiguous as to whether the applicant was also requesting a further in person rebuttal hearing.
[50] Section 12(b) of the CCRR specifically provides that the inmate is to be given an opportunity to make representations with respect to the proposed transfer “in person or, if the inmate prefers, in writing.” The legislation does require that an inmate be given both types of rebuttals.
[51] Accordingly, with respect to the rebuttal issues raised in this proceeding, I find that the respondent acted in a procedurally fair way and in a lawful way and reasonably.
The s. 12(b) CCRR Issue
[52] The relevant portions of s. 12 of the CCRR provide as follows:
- Before the transfer of an inmate, … an institutional head or a staff member designated by the institutional head SHALL
(a) give the inmate written notice of the proposed transfer, including the reasons for the proposed transfer and the proposed destination;
AND
(b) after giving the inmate a reasonable opportunity to prepare representations with respect to the proposed transfer,
MEET with the inmate TO EXPLAIN THE REASONS for the proposed transfer
AND
give the inmate an opportunity to make representations with respect to the proposed transfer in person or, if the inmate prefers, in writing…. (Emphasis added)
[53] In this case, it is common ground that the Notice referred to in ss. (a) is the Notice of Involuntary Transfer Recommendation which was given to the applicant on September 26, 2014. It is also common ground that the “meet” required under ss. (b) did not occur in this case.
[54] There is no doubt that a meeting in which the institutional head or his delegate explains the reasons for the proposed transfer to higher security to an inmate without legal representation at the time would be most important and critical to the inmate making decisions on such matters as to whether he wishes to make a rebuttal, whether the rebuttal should be in writing or in person, whether to consult legal counsel and what the substance of such rebuttal should contain. The notice given at the ss.(a) stage could be lengthy, complicated and beyond the inmate's understanding. While s. 12 contemplates a reasonable opportunity to prepare representations before the meeting and after the meeting an opportunity to make representations, the Notice form given to the inmate restricts any such representations to within the next two working days, unless an extension is requested.
[55] The respondent in this case submits that this breach of s. 12 is of a technical nature and that this court should determine that such a technical breach should not render the decision procedurally unfair. He cites para. 90 of Khela.
[56] On the record before me, the Notice given under ss. (a) is three pages long and the reasons for the proposed transfer are clearly set out on the first two pages which are, in reality, only about a page in length. The reasons are readable and readily understandable. They are not complex. There is no evidence that the applicant did not understand the reasons or require further explanation other than reading the Notice.
[57] The applicant was given the opportunity to prepare and make his rebuttal which he did through legal counsel in writing on October 14, 2014, 18 days later.
[58] On the particular facts of this case, including the brevity and clarity of the ss.(a) Notice setting out the reasons for transfer and the fact that the applicant was given a reasonable opportunity to prepare and submit his representations through his legal counsel, I am persuaded that this breach of the legislation is of a technical nature and does not render the relevant decisions procedurally unfair. The principles set out in the Ontario Court of Appeal decision in Boone v. Ministry of Community Safety and Correctional Services 2014 ONCA 515 support my decision.
[59] The result of a similar breach of this section in other cases could well be found to be substantive rather than technical in nature and result in a finding of procedural unfairness.
Reasonableness of the Decision
[60] On the record before me, I am satisfied that the respondent has met the onus on it to prove that the decisions to reclassify and to transfer this applicant to maximum security were reasonable and lawful and in accordance with the principles set out in the Khela decision. I am satisfied that the evidence presented by the respondent confirms the information obtained by the correctional authorities that was disclosed to the applicant, or presented as a summary thereof, or lawfully withheld from the applicant, was reliable and supportive of the decision made.
Decision
[61] For these reasons, this application for habeas corpus is dismissed.
[62] I have resealed Ex. 2, the sealed envelope. It is not to be released or to be opened except by order of this court, or the court hearing an appeal from this decision, if so ordered.
Honourable Mr. Justice Gary W. Tranmer
Released: February 17, 2015
COURT FILE NO.: CR-14-498-MO (Kingston)
DATE: 2015 Feb 17
ONTARIO
SUPERIOR COURT OF JUSTICE
DENTON EMONTS
Applicant
– and –
ATTORNEY GENERAL OF CANADA and the Wardens of Collins Bay Institution and Millhaven Institution
Respondent
DECISION ON APPLICATION
FOR HABEAS CORPUS
Tranmer, J.
Released: February 17, 2015