Court File and Parties

COURT FILE NO.: CR-16-008-MO DATE: 2016 June 10 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ADAM NEWMAN Applicant – and – THE WARDEN OF BATH INSTITUTION and THE ATTORNEY GENERAL OF CANADA Respondents

COUNSEL: Mary Jane Kingston, for the Applicant Stephen Kurelek, for the Respondents

HEARD: June 8, 2016 at Kingston

MacLeod-Beliveau, J.

Reasons on Application for Habeas Corpus

[1] The applicant seeks an order that a writ of habeas corpus with certiorari in aid to determine the legality of his detention at Bath Institution. In particular, the applicant seeks to quash his re-classification from minimum security to medium security, and his transfer from minimum security Joyceville Institution, formerly Pittsburgh Institution, to medium security Bath Institution on February 24, 2014 by the Correctional Service of Canada (CSC).

The Issues:

1. Did CSC’s decisions to re-classify the applicant as a medium security offender and to transfer him to Bath Institution constitute a deprivation of his residual liberty?
2. Were CSC’s decisions to re-classify and transfer the applicant lawful?

Result:

[2] I find the applicant’s deprivation of liberty was reasonable in the circumstances of this case. The decision to re-classify and transfer the applicant to Bath Institution was therefore lawful. Accordingly, the application for habeas corpus is dismissed.

Positions of the Parties:

[3] The position of the applicant is that his involuntary transfer from a minimum security institution to a medium security institution was unreasonable and unlawful and that serious errors occurred due to incorrect file information that affected his Security Classification Scale (SRS) score that contributed to his unlawful transfer to Bath Institution.

[4] The position of the respondent is that the re-classification and transfer was reasonable in all the circumstances and was therefore lawful. The SRS was only one factor in the determination of the decision to re-classify and transfer the applicant to Bath Institution and that no material file information errors occurred. The respondent’s position is that there were ample grounds to support the reasonableness of the decision to re-classify and transfer the applicant on the facts of this case.

Background:

[5] The applicant is a 44 year old first time federal offender serving a life sentence for his August 17, 2007 conviction for second degree murder, contrary to s. 231(7) of the Criminal Code of Canada. The applicant murdered his girlfriend with an axe after she told him she was going to leave him and reconcile with her husband.

[6] The applicant served the first three years of his sentence at maximum security Kingston Penitentiary. In 2010, he was transferred to medium security Bath Institution.

[7] On January 21, 2014, the applicant received a Security Classification Scale Report that classified him as a minimum security offender with a score of 15. On February 4, 2014, the applicant was approved for a voluntary transfer to minimum security on the basis that he was classified as a minimum security offender with a low ratings for institutional adjustment, low escape risk and low risk to public safety in conjunction with his SRS score of 15. On February 17, 2014 he was transferred to minimum security Joyceville Institution, formerly Pittsburgh Institution.

[8] Within a week of arrival at Pittsburgh Institution, his Case Management Team at Pittsburgh recommended his emergency involuntary transfer back to medium security Bath Institution. On February 24, 2014 the applicant was transferred back to Bath Institution where he still remains. It is this last involuntary transfer that the applicant says is unreasonable and therefore unlawful.

[9] On February 28, 2014 the applicant received a Notice of Involuntary Transfer and an Assessment for Decision. The reasons given for his transfer back to Bath were that Bath Institution did not have all the relevant information when considering the transfer to Pittsburgh, namely the November 2013 incident, and that the applicant’s most recent psychological risk assessment did not consider all relevant file information. The applicant’s SRS score was changed to 17. The additional two point increase was one point for the 2013 incident and one point for psychological concerns noted.

[10] On February 1, 2015, CSC acknowledged that there was an error made with respect to the use of the November 2013 incident in the applicant’s security scale rating. The applicant’s position is that the error made was that the 2013 incident did not occur and was part and parcel of the 2011 incident. No one contests the fact that a 2011 incident occurred. The 2011 incident involved the applicant allegedly planning the murder of his ex-wife, her husband and their new baby after he escaped from a minimum security institution. No charges were laid due to lack of clear evidence and the investigation was concluded by the O.P.P. in 2012. While there was not enough evidence to lay criminal conspiracy charges against the applicant, the police reasonably believed the information they received in 2011 was accurate.

[11] The respondent’s position is that the 2013 incident did occur, but only one recorded incident should have been included for consideration of the SRS score due to time limit considerations. The 2013 incident led to the applicant being listed as an incompatible with another offender. The security information officer received reliable information that the applicant had vowed to retaliate against another inmate whom he believed had played a role in his ex-wife forming a relationship with her current partner.

[12] The review decision of February 1, 2015 makes it clear that there should have been only one recorded incident considered and not two. As a result, the applicant’s SRS score dropped from 17 which is reflective of medium security to 16 which is reflective of minimum security within the discretionary range for medium security. The applicant’s ratings were found to be moderate institutional adjustment, moderate escape risk, and moderate risk to the public in light of the significant security information that was not adequately taken into consideration prior to the transfer to Pittsburgh Institution. It was then determined by CSC that given these concerns and the concerns outlined in the Assessment for Decision, that an override of the SRS was appropriate in the applicant’s case and that the applicant was properly detained in medium security Bath Institution where he remains.

[13] The applicant is currently assessed as a medium security inmate with a SRS score of 19.5, increased from 16 due to his engagement in prison subculture activities, his disrespect for prison officials and his current escape potential.

Analysis:

[14] No one contested the fact that the transfer of Mr. Newman to Bath Institution was a deprivation of his residual liberty. The answer to the first issue is yes.

[15] The second issue of the whether or not the re-classification and transfer of the applicant was lawful has two aspects. Firstly, the decision must be procedurally fair and secondly, the decision must be reasonable in the circumstances. No one contested the fact that the decision in this case was procedurally fair. The parties disagree on whether the applicant’s deprivation of liberty was reasonable.

[16] The respondent has filed a sealed envelope which I have marked as Exhibit 1, in accordance with the decision of Mission Institution v. Khela, 2014 SCC 24. I have unsealed and read the sealed Affidavit of Michelle Denton. I have instructed myself on the principles set out in the Khela case, and in particular, paragraphs 86 through 89. I find that the respondent has met the onus in s. 27(3)(a) of the Corrections and Conditional Release Act to withhold certain information. There are reasonable grounds to believe that disclosure of that information would jeopardize the safety of the sources who provided the information and/or the security of the penitentiary. I find only as much information as was strictly necessary was withheld.

[17] One of the important considerations in the applicant’s transfer back to Bath Institution was the discovery by Pittsburgh Institution that the applicant’s psychological risk assessment of October 29, 2013 was conducted without consideration of the 2011 and 2013 incidents and without the security information officer’s file. The applicant’s pre-transfer SRS assessment was completed on January 21, 2014 and again was without consideration of the 2013 incident and led to a finding of ‘no psychological concerns’.

[18] When Lisa Racicot, the Pittsburgh parole officer discovered this fact, all information was then made available to the applicant’s Case Management Team at Pittsburgh Institution. At their February 24, 2014 review, all members of the team agreed that the information was of sufficient concern to return the applicant to medium security on an emergency involuntary transfer basis. In her February 26, 2014 time locked report, parole officer Racicot was of the professional opinion that in consideration of the considerable difficulty that the applicant had dealing with the personal and emotional issues in relation to his ex-wife, and how those issues mirrored the index murder of his girlfriend, that a finding of ‘psychological concerns noted’ was an accurate assessment of the applicant. In consideration of the now complete record before them, the team determined that the applicant was a medium security inmate and sent him back to Bath Institution on an emergency basis.

[19] The SRS is only one factor in the final determination of an inmate’s security classification. The SRS is an actuarial tool used to help ground an offender’s security level. It is the assessment of institutional adjustment, escape risk and risk to the public that actually comprises the offender’s security level recommendation. In other words, the SRS score does not replace the clinical assessment of experienced and specialized CSC staff who may find, in the exercise of their professional judgment in accordance with the statutory regime, that the SRS computer generated score is outweighed by other factors.

[20] In the case of the applicant, when the institutional adjustment, escape risk and risk to the public assessment was considered in conjunction with his SRS score and the significant security officer’s information that was not adequately considered prior to his transfer to Pittsburgh Institution, a finding of medium security classification was totally appropriate and reasonable.

[21] I find on all the evidentiary record before me, including the evidence contained in the sealed affidavit, that this decision was reasonable. The decision falls within the range of possible, acceptable outcomes supported by the facts of this case and the law. The decision is justifiable, transparent and intelligible. Upon review, the finding that the record that resulted in the applicant’s transfer to minimum security in the first place was materially deficient is supported by the record before me.

[22] The evidence underlying the re-classification and transfer decision to medium security I find to be reliable and relevant and supports the conclusion reached. CSC was aware and considered the completion of the Moderate Intensity Family Violence Prevention program by the applicant and subsequent maintenance components of the program in 2011, 2012 and 2013. Attendance at these courses is but one factor in his security level assessment.

[23] The decision to re-classify and transfer the applicant was demonstrably reasonable and entitled to deference being administrative in nature by persons with expertise in the environment of a penitentiary.

[24] As a result, the answer to the second issue is yes. The applicant’s re-classification and transfer to Bath Institution was lawful. The application for habeas corpus is dismissed.

[25] I have resealed the affidavit of Michelle Denton, Exhibit 1. It is not to be released or to be opened except by order of this court, or by order of the court hearing any appeal from this decision.

The Honourable Madam Justice Helen MacLeod-Beliveau

Released: June 10, 2016