CITATION: Janjanin v. Canada (Attorney General), 2015 ONSC 964
COURT FILE NO.: CR-14-398-MO (Kingston)
DATE: 2015 Feb 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BOGDAN JANJANIN
Applicant
– and –
ATTORNEY GENERAL OF CANADA and the Wardens of Collins Bay Institution and Millhaven Institution
Respondent
Todd Sloan, for the Applicant
Leah Garvin, for the Respondent/Crown
HEARD: February 5, 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, his reclassification and transfer from medium security to maximum security.
Background Facts
[2] The applicant is a 28-year-old first-time Federal offender serving a 14 year sentence for one count of possession of a Schedule 1/2 substance and one count of import of a Schedule 1/2 substance.
[3] The details of his index offences are that he was driving a tractor-trailer loaded with plastic pallets back into Canada. He was the owner/operator of the transport. He was stopped at the Fort Erie border crossing. Upon searching the vehicle, CBSA agents found 167 kg of cocaine in 5 bags within the trailer. The street value is estimated to be approximately $10-$14 million. In the cab of the truck, they found 3 cell phones, 2 laptop computers and his logbook.
[4] His sentence commenced in April of 2013. He was classified as medium security and incarcerated at Collins Bay Institution.
[5] Between May and July 2014, an investigation was conducted by the security intelligence office into multiple drug overdoses at Collins Bay Institution, one of which resulted in the death of the inmate.
[6] The Security Intelligence Officer Coletta (SIO) received information from multiple sources believed to be reliable that the applicant was one of the persons responsible for financing, introducing and distributing drugs, mainly heroin, within the institution.
[7] In particular, in May of 2014, the SIO received information from two believed reliable sources that the applicant and another inmate were muscling an inmate to bring drugs into Collins Bay.
[8] On June 1, 2014, the applicant's wife attended Collins Bay to visit the applicant and exceeded the threshold for heroin on the ION scan machine.
[9] On June 4, 2014, another believed reliable source identified the applicant as part of Collins Bay’s drug ring through his job as the visiting and correspondence representative.
[10] Commencing June 4, 2014, prison authorities intercepted the applicant's telephone communications. These revealed that in his conversations with his wife, he asked her about sending money to different individuals, and whether she had received any messages from anyone.
[11] A fourth believed reliable source provided information that the applicant had previously brought heroin into Collins Bay.
[12] On the basis of this information, on July 3, 2014, the applicant and a number of other inmates were placed into segregation on an involuntary basis.
[13] On July 4, 2014, a fifth believed reliable source provided information regarding a bank account number belonging to the applicant's wife that was being used to facilitate the drug trade within Collins Bay. In September of 2014, the police confirmed that this account was not in good standing on the basis that there was suspicious activity and the amounts being deposited and transferred.
[14] In the Assessment for Decision dated August 27, 2014, completed by the parole officer, it is noted “Mr. Janjanin’s suspected current involvement in the drug subculture is much like his offences. In the community, he had no prior charges and was a model citizen. In the institution, he has spent the first year without any institutional charges or incidents and was seen as a model offender earning a bed in the open concept unit…. While the CMT is not naïve enough to believe that Mr. Janjanin had no involvement whatsoever in the current allegations, it is the CMT’s opinion that the information is not sufficient at this time to justify an increase to a maximum security rating… and …that the risk he poses can still be managed at Collins Bay, medium security…. This writer would like to enforce the fact that, should any information, even minor information, come to light, a new review will most definitely be completed by this writer recommending maximum-security.” It was noted in this document that the preventive security office did not concur with this opinion, but was of the view that Mr. Janjanin should be classified as a maximum-security offender. The manager of assessment intervention supported the medium classification at this time (Tab E).
[15] On the record before me, the only new information that came to light was that indicated in paragraph 13 hereof, namely information from the police concerning the bank account in September of 2014.
[16] As a result of this police information, Addendum 1 dated September 23, 2014, was prepared (Tab G). It noted that the police had advised that the bank account did indeed belong to the applicant's wife and that the account was not in good standing and further, there was suspicious activity in regard to the amounts being deposited and transferred from that account. While the author of the report continued to support a medium security classification, the manager of assessment and intervention was of the view that a maximum-security classification was warranted.
[17] Addendum 2 dated October 8, 2014, was prepared in order to provide the applicant with the specific references to the reports and dates related to the security intelligence and source information contained in the Assessment for Decision (Tab H).
[18] On October 10 and October 14, 2014, the applicant was provided with opportunities to listen to his phone calls that had been intercepted.
[19] On October 17, 2014, the applicant was given a Notice of Involuntary Transfer Recommendation (Tab A, Affidavit of Jodi Holmberg). It informed the applicant that he was being recommended for involuntary transfer to maximum security Millhaven Institution. The notice explained that due to the dissenting opinion of the manager of assessment and intervention, an assessment of an involuntary transfer to maximum-security in conjunction with the offender security level review was being completed.
[20] At the same time on October 17, 2014, the applicant was given a newly prepared Assessment for Decision dated October 14, 2014. This document informed him that his case management team continued to be of the opinion that he should remain classified as a medium security offender. It noted that both the preventive security office and the manager of assessment and intervention disagreed and were of the opinion that he should be reclassified as maximum-security and involuntarily transferred to maximum-security (Tab B, Affidavit of Jodi Holmberg).
[21] It is important to note that counsel agreed during the hearing before me that at the time that Ms. Holmberg met with the applicant on October 17, 2014 to give him the documents to which I have just referred, she read or paraphrased portions of the documents to him. To this extent, the statement she makes in paragraph 6 of her Affidavit filed in these proceedings is qualified and varied. I will refer to this evidence in more detail in the course of these reasons.
[22] On October 17, 2014, when he received the Notice of Involuntary Transfer Recommendation, Mr. Janjanin checked the box on page 3 to indicate that he wished to make representations with respect to the proposed transfer in person in the next two working days. On October 20, 2014, the applicant verbally requested an extension of time for his rebuttal for 10 working days. By memo dated October 21, 2014, the Warden advised the applicant that he was aware the applicant was requesting an extension of 10 working days after consulting with his lawyer. The Warden approved an extension of the rebuttal period for five working days. He set the in person representation to be heard on October 28, 2014.
[23] Mr. Janjanin’s lawyer delivered a letter to the Warden on behalf of the applicant on October 27, 2014 entitled, “Rebuttal of Notice of Involuntary Transfer.” It began, “I am submitting written comments on Mr. Janjanin’s behalf. I understand that he will be speaking with you tomorrow… .”
[24] On October 27, 2014, Ms. Holmberg informed the applicant in person that the Warden was accepting his lawyer’s submission as his written rebuttal and that the in person rebuttal would not take place on October 28, 2014.
[25] The Referral Decision Sheet for Offender Security Level is dated November 3, 2014. The Warden agreed with a classification of maximum-security.
[26] The Referral Decision Sheet for Inst. Transfer (Involuntary) is dated November 3, 2014 and indicated the Warden approved a transfer to maximum-security Millhaven Institution.
[27] The applicant was transferred to Millhaven Institution on November 7, 2014.
Position of the Parties
Disclosure Issues, s. 27 Corrections and Conditional Release Act, S.C. 1992, c. 20
[28] The applicant submits that the SIO and other staff did not put before the Warden all of the information obtained by them in the course of their investigation into the drug problem. The applicant submits that ss. 27(1) and (2) should be interpreted such that all such information should be disclosed to the inmate and not just such information as was to be considered or was considered in the decision-making process.
[29] The applicant further submits that he questions whether s. 27(3) was complied with by Corrections authorities in the withholdings of certain information from the applicant. He points to evidence from the SIO on her cross–examination, that she did not understand there to be a distinction between withholding information to protect an interest listed in s. 27(3), and withholding only such “information as was strictly necessary” to protect the interest.
[30] The applicant further submits that prison authorities should have disclosed to the applicant information such as the dates, times and places of the activities alleged against him such as the muscling of other inmates.
[31] The applicant further submits that the prison authorities should have disclosed to him more information concerning the reliability of the informants, including their past involvement in providing information to authorities, whether those occasions provided information proven to be reliable, any motives to lie, any incentive offered or jeopardy threatened.
[32] The respondents submit that full and all lawfully required disclosure was made to the applicant and that s. 27(3) was complied with.
[33] The respondents note that the Supreme Court of Canada in Mission Institution v. Khela 2014 SCC 24 states that this court must afford deference to the correctional authorities in regard to the decision to withhold information from an inmate facing a reclassification and transfer and to the decisions by correctional authorities with respect to the reliability of information provided by informants. The respondents also rely upon the decision of the Supreme Court of British Columbia in Athwal v. Ferndale Institution 2006 BCSC 1386 in this regard and in particular, at paragraphs 30, 36, 37, 49 and 50.
[34] The respondents submit the law is clear, that the disclosure requirements of Stinchcombe are not required in the circumstances of this case.
[35] The respondents submit that it complied strictly and fully with the requirements of s. 27(3), and in accordance with Khela, has filed with the court a sealed envelope, Ex. 1, containing the evidence required in that regard.
[36] The respondents submit that the applicant was provided with all of the information to which he was entitled and that information fully informed him as to the case to be met with respect to the proposed transfer. Based on the information that was disclosed to him, he was fully able to respond on an informed basis and did so through legal counsel.
Duty to Further Investigate
[37] The applicant submits that prison authorities should have translated the telephone conversations in which Serbian was spoken rather than just assume that because the applicant and his wife spoke in Serbian that it was done in furtherance of drug trafficking activities. The applicant submits that the prison authorities themselves should have reviewed the bank accounts about which they received information. The applicant further submits that prison authorities should have looked more closely at the significance, or lack thereof, of a single positive ION scan of the wife.
[38] The respondents submit that there was no duty on prison authorities to conduct further investigation. The Warden was entitled to and required to make his decision based on the information that was provided to him.
s. 12(b) Corrections and Conditional Release Regulations Issue
[39] The applicant submits that there was no meeting as contemplated by this section. The section calls for a meeting between the inmate and the institutional head or his delegate to explain the reasons for the proposed transfer. The parties agree that what occurred was Ms. Holmberg provided the Notice and Assessment for Decision to the applicant on October 17 and read or paraphrased portions of the documents to him. The parties are agreed that she did not explain the reasons for transfer to him as is alleged in para. 6 of her Affidavit.
[40] The applicant further submits that prison authorities did not comply with ss. 12(a) and (b) because they did not first give him the notice of the proposed transfer and then after giving him a reasonable opportunity to prepare representations with respect to the proposed transfer, meet with him to explain the reasons for the proposed transfer.
[41] The respondents submit that any breach of this provision was merely technical in nature and did not result in procedural unfairness. The respondents rely on paragraph 90 of Khela and on the decision of the Ontario Court of Appeal in Boone v. Ministry of Community Safety and Correctional Services 2014 ONCA 515 in that regard.
[42] The respondents submit that what is important is the applicant was fully informed of the case to be met and was given the opportunity to respond on an informed basis, which he did in fact do through legal counsel.
Rebuttal Issues
[43] The applicant submits he indicated in writing that he wished to make in person representations with respect to the proposed transfer, as was his right under s. 12(b) CCRR. Although the Warden had initially scheduled such a meeting, the applicant was denied that in person meeting with the Warden after the Warden had received the letter from the applicant's lawyer. The applicant submits that, despite the written submission from legal counsel, the Warden was required to permit the applicant to make in person representations as he had requested.
[44] The respondents submit that s. 12(b) does not mandate both written and in person representations by the inmate, with respect to the proposed transfer. In this case, the Warden gave his reasons for not holding the in person meeting in the Referral Decision Sheet for Inst. Transfer (Involuntary), “…Janjanin had elected to make representations in person. However, he is represented by legal counsel and his counsel has submitted a written rebuttal to the Warden on October 27, 2014, which will be accepted as Janjanin’s rebuttal to the proposed transfer.” Ms. Holmberg informed the applicant of this decision in person on October 27, 2014.
Reasonableness of the Decision Issue
[45] The applicant submits that the decision made by the Warden was not justified on the information before him and was unreasonable and therefore, unlawful. On this point, the applicant notes the case management team remained of the opinion that the appropriate classification was medium security. The manager of assessment and intervention and the preventive security office were of the opinion that the proper classification was maximum-security. While previously supporting continued medium security, the manager of assessment and intervention revised her opinion after prison authorities received police information in September of 2014 concerning the bank account.
[46] The applicant submits that the decision was unreasonable in all of the circumstances.
[47] The respondent submits that Khela directs this court to afford deference to reclassification and transfer decisions made by corrections authorities.
[48] The respondent submits that in all the circumstances the decision to reclassify and transfer was reasonable and therefore lawful.
Analysis
Disclosure Issues, s. 27 Corrections and Conditional Release Act, S.C. 1992, c.20.
[49] In accordance with the principles set out by the Supreme Court of Canada in Khela, I have unsealed and read Ex. 1, the Sealed Affidavit of Linda Coletta.
[50] I have instructed myself on the principles set out in Khela and in particular, at paragraph 86 to 89, inclusive.
[51] I am fully satisfied that the respondent has met the onus on it in invoking s. 27(3) to withhold certain information and proven that there were reasonable grounds to believe that disclosure of that information would jeopardize the safety of the informants and the security of the institution. The respondent has also explained why the information of the informants was considered reliable and what measures were taken to verify the information.
[52] The respondent has proven that there were reasonable grounds to believe that the disclosure of the information that was withheld would jeopardize the safety of the informants and the security of the institution and that the Warden withheld from the offender only as much information as was strictly necessary in order to protect those interests.
[53] I am satisfied that the correctional authorities complied with the legal requirements imposed upon them, that they disclosed to the applicant the information, or a summary of the information, to be considered and considered by them in deciding upon the reclassification and transfer issues, and that they withheld only as much information as was strictly necessary to protect the interests of the safety of informants and the security of the institution as was their lawful obligation.
[54] I find no breach of the principle of procedural fairness in the disclosure of the information to the applicant in this case.
Duty to Further Investigate
[55] There was no breach of the duty for procedural fairness by the prison authorities in regard to the applicant’s submission that they failed to translate telephone conversations.
[56] There was no breach of the duty for procedural fairness by the prison authorities in regard to the bank records as submitted by the applicant.
[57] There was no breach of the duty for procedural fairness by the prison authorities in regard to their consideration of the single positive ION scan result of the wife.
[58] The Warden was entitled to and, on the record before me, did consider the information that was put before him. 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.
s. 12(b) Corrections and Conditional Release Regulations Issue
[59] The parties agreed before me that paragraph 6 of the Affidavit of Jodi Holmberg should be corrected to clarify that on October 17, she gave to the applicant The Notice and Assessment for Decision and read or paraphrased portions of the documents to him. The parties agree that the Warden or his delegate did not meet with the applicant to explain the reasons for the proposed transfer.
[60] Furthermore, s. 12(b) mandates the timing required for the meeting. First, the Warden or delegate gives the inmate written notice of the proposed transfer, including the reasons. In this case, this was done by Ms. Holmberg on October 17th. Then, the inmate is to be afforded a reasonable opportunity to prepare representations. Then, following this reasonable opportunity, the Warden or delegate is to meet with the inmate to explain the reasons for the proposed transfer. Finally, the inmate is to be given an opportunity to make representations in person or if the inmate prefers, in writing.
[61] I find that the meeting mandated under section 12(b) did not occur in this case.
[62] The reasons for the proposed transfer in this case are complicated in that the case management team recommended a continued classification of medium security, however, with the police information received in September of 2014, the manager of assessment and intervention had changed her opinion to recommend a reclassification to maximum-security, which resulted in the proposed reclassification to maximum-security and involuntary transfer to maximum-security. The preventive security department continued its support for reclassification and transfer to maximum-security. In the Assessment for Decision, the author notes that the divergence of opinion seems to lie in the believed level of involvement of the applicant in the drug activity and was of the opinion that the information provided lacks justification to increase the applicant`s institutional adjustment from a low rating to a high rating. The author also supports alternative management to the proposed involuntary transfer for the reasons stated in the document. While this document is authored by the case management team and is seven pages in length, it states that the preventive security department and the manager of assessment and intervention dissent from his opinion. There are no reasons given for the dissenting opinions of the manager of assessment and intervention and preventive security department.
[63] This disagreement of opinion highlights the importance to the inmate of the meeting as legislated under s. 12(b). There was no meeting, as required, to explain the reasons for the proposed transfer, either on October 17 or at some time after October 17, “after giving the inmate a reasonable opportunity to prepare representations.”
[64] The applicant’s liberty interests were at stake.
[65] Clearly, this breach by prison authorities could substantively affect the inmate`s ability to decide issues important to his liberty interests including as to whether he wishes to make representations with respect to the proposed transfer, the substance of such representations, whether they should be in person or in writing, and whether he should retain legal counsel to assist him. In his supplementary affidavit affirmed on December 4, 2014, the applicant explains he does not understand why, despite the recommendation by his case management team that he remain medium security, the manager of assessment and intervention, the preventive security department and the Warden believed he should be reclassified and transferred to maximum.
[66] In my view, in these circumstances, this is a serious breach of a legislated requirement imposed on the correctional authorities.
[67] For the reasons set out below in regard to The Rebuttal Issues, I do not believe that this breach combined with the breach in failing to provide the applicant with an in person opportunity to make representations, as he requested, are merely technical in nature and saved under Khela, para. 90 or, saved based on the principles set out by the Ontario Court of Appeal in Boone.
The Rebuttal Issues
[68] Section 12(b) CCRR gives the inmate the right to make representations with respect to the proposed transfer … “in person or, if the inmate prefers, in writing.”
[69] The applicant indicated on October 17, 2014, on the face of the Notice of Involuntary Transfer Recommendation that he wished to make representations with respect to the proposed transfer in person. At no time did he indicate a change of mind in that regard.
[70] The Warden's memo of October 21, 2014 does not indicate that the inmate had changed his mind about making in person representations, rather it confirms the in person representation will be heard on October 28, 2014.
[71] The letter dated October 27, 2014, from the applicant's legal counsel, does not indicate that it is submitted or should be taken in place of the in person meeting or that the inmate had changed his mind about wanting an in person meeting. The letter says its content is “written comments.” It does not say it is to be taken as the applicant’s representations in writing, in place of the applicant’s request to make in person representations. In fact, that letter contemplates the in person meeting occurring the next day.
[72] In his Referral Decision Sheet for Inst. Transfer (Involuntary), the Warden confirms that he decided to accept the lawyer’s letter as the applicant's written rebuttal and cancelled the in person hearing. No substantive reasons are given for doing so.
[73] While section 12(b) contemplates an in person or written representation and not both, this applicant at no time indicated a change of mind to make written representations, nor did his legal counsel do so. The Warden did not give reasons for not considering an alternative course of action in the circumstances, for example, accepting the lawyer`s “written comments” to supplement the applicant’s in person representations, or for not accepting the lawyer’s comments as written representations.
[74] This applicant wished to make in person representations and the Warden’s conduct in not permitting him to do so breached s. 12(b).
[75] The principles of natural justice and procedural fairness require that a person who is facing a deprivation of those liberty interests be advised of the reasons for that deprivation and be given an opportunity to be heard in response to the case against him.
[76] In this case, I find that the applicant was not given the specific reasons of the manager of assessment and intervention or the preventive security department for their dissenting opinions that there should be a reclassification and transfer to maximum security. This situation arose, at least in part, because prison authorities did not comply with the meeting requirement under s. 12(b) CCRR, and because of the Warden’s decision not to allow an in person opportunity to make representations. The documents given to the applicant did not disclose those reasons.
[77] As a result, the prison authorities breached their duty of natural justice and procedural fairness owed to this applicant.
[78] Unlike the facts in Boone, para. 55, the record before me does not show that prison authorities were in continuing contact with this applicant concerning the reasons for his proposed reclassification and transfer and he was left to make his rebuttal representations without the reasons of the manager of assessment and intervention or the preventive security department. Those reasons would have been important to him in the face of the supportive opinions of his case management team. Without these reasons, he was not fully informed of the case against him which he had to meet, and he could not and he was not afforded his opportunity to make informed representations.
[79] I find that the principles set out in Boone do not lead to the same outcome in the present case as in the Boone case. I find that these breaches of the legislation that provided rights to the applicant are more than technical in nature and are not saved under para. 90 of Khela.
[80] In my review of the procedure of this case, I recognize that I must show deference to the decisions of the Warden and prison authorities. I must not become involved in micro managing matters that are within the knowledge, experience and expertise of the Warden.
[81] To be lawful, and reasonable, a decision to transfer an inmate to a higher security penitentiary must, among other requirements, be procedurally fair.
[82] In this case, two fundamental rights of the applicant that are specifically provided for in the legislation were infringed.
[83] The decision to reclassify and transfer Mr. Janjanin from Collins Bay Institution to Millhaven Institution was unlawful.
[84] Accordingly, the application for habeas corpus is granted and the decision to reclassify and transfer Mr. Janjanin to maximum security is quashed.
[85] I have resealed Exhibit 1. It is not to be unsealed, except by further order of this court or, in the event of an appeal, by order of the Appeal Court.
Honourable Mr. Justice Gary W. Tranmer
Released: February 17, 2015
CITATION: Janjanin v. Canada (Attorney General), 2015 ONSC 964
COURT FILE NO.: CR-14-398-MO (Kingston)
DATE: 2015 Feb 17
ONTARIO
SUPERIOR COURT OF JUSTICE
BOGDAN JANJANIN
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