Court File and Parties

Court File No.: CR-16-59-MO Date: 2016 Jun 07 Ontario Superior Court of Justice

Between: Errol Spooner, Applicant – and – Attorney General of Canada, Respondent

Counsel: J. Todd Sloan, for the Applicant Jennifer Francis, for the Respondent

Heard: May 27, 2016 at Kingston

Before: Tranmer J.

Habeas Corpus Decision

[1] The Applicant makes this application for an order in the nature of habeas corpus with certiorari in aid challenging the decision of correctional authorities to transfer him from Millhaven Institution, maximum security, segregation, to Stony Mountain Institution, maximum security, general population.

Facts

[2] The Applicant has been incarcerated at Millhaven Institution since December 12, 2014. He has been in segregation from March 7, 2015 to October 23, 2015 and from November 2, 2015 to present. Correctional authorities wish to transfer the Applicant to alleviate his segregation status and to provide him with a safe environment.

Position of the Applicant

[3] The Applicant submits that the proposed transfer involves a significant reduction in the residual liberty of the Applicant within the meaning of R. v. Miller, [1985] S.C.J. No. 79, and therefore reviewable by this court on a habeas corpus application. In Mission Institution v. Khela, 2014 SCC 24, [2014] S.C.J. No. 24, the court stated that “decisions which might affect an offender’s residual liberty included, but are not limited to administrative segregation, confinement in a special handling unit and, as in the case at bar, a transfer to a higher security institution.”

[4] The Applicant submits that the proposed transfer reduces the residual liberty of the Applicant in three ways. Firstly, he will lose contact with family members and his common-law spouse. Secondly, he will lose contact with various organizations that have assisted him medically and therapeutically and supportively. Thirdly, the Applicant submits that it is reasonable to assume that he will very shortly wind up in segregation at Stony Mountain.

Position of the Respondent

[5] The Respondent submits that this is merely a lateral transfer and therefore, the Applicant has failed to establish a deprivation of liberty. The Respondent further submits that there is no factual basis supporting the three ways the Applicant submits his residual liberty will be impacted.

Analysis

[6] On the record before me, there is no basis to find that there will be any impact on the Applicant's family relationships or contact. He has not been visited by family members, and there is no evidence as to why it would be more difficult or restrict visits for family to fly from Barbados to Winnipeg rather than to Toronto. The common-law partner has not visited, but stays in touch by telephone. That can continue. The suggestion that he planned to visit when his financial circumstances improve is mere speculation.

[7] With respect to the affidavit by Mr. Clarke that the support of various organizations will be lost and therefore, adversely affect the Applicant, I note that he takes on the role of an advocate in suggesting the Applicant should not be punished with the separation from his supports for essentially being a victim of an attack while in Ontario. There is no evidence of expertise on the part of Mr. Clarke in regard to his opinion as to the adverse impact of a transfer. His assertions in that regard appear to be mere speculation. Although he states that “federal program workers visited him regularly during our trips to Kingston”, there is no evidence as to the frequency of these visits or by whom. He does point out that contact has been maintained regularly by telephone. With respect to the other organizations, evidence is that the Applicant “has engaged” with them with no indication as to how or frequency.

[8] The Respondent has filed evidence as to the availability of comprehensive healthcare for the Applicant at Stony Mountain. Access to PASAN can continue. It is to be noted that Mr. Clarke’s program is federal.

[9] On the record before me, the evidence does not satisfy me that the Applicant’s residual liberty will be impacted negatively in so far as his medical, therapeutic and support needs are concerned.

[10] With respect to the third basis advanced by the Applicant, I find that it is mere speculation that he will soon after transfer end up in segregation.

[11] There is no evidence before me that distinguishes this case from the case law that holds that relief by way of habeas corpus is not available in the situation of a transfer from maximum security, segregation, to maximum security, general population, in another province. The Applicant has not demonstrated that “the transfer would amount to a substantial change in the Applicant’s conditions of incarceration, thereby resulting in a deprivation of a residual liberty interest.” Dodd v. Warden of Isabel House, 2008 ONCA 654, para. 6; Desmond v. Attorney General of Canada, S.C.J.O. CR-15-126-00MO; Muir v. Canada (AG), 2015 ONSC 3593; Debrocke v. AG Canada, S.C.J.O., CR-15-231-MO; Storry v. William Head Institution, [1997] F.C.J. No. 1768 (FCTD), p. 10.

[12] I find that the Applicant has not made out a deprivation of liberty as is required on an application for habeas corpus and therefore, this application is dismissed.

Honourable Mr. Justice Gary W. Tranmer Released: June 07, 2016