Court File and Parties
COURT FILE NO.: CR-16-0010-00MO DATE: 2016-06-21
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
QUINTON DANVERS Applicant – and – ATTORNEY GENERAL OF CANADA Respondent
Counsel: Jacqueline Gumienny, for the Applicant Jacob Pollice, for the Respondent
HEARD: June 15, 2016
Reasons for Decision on Application
R. MacKINNON J.:
[1] The applicant is a federal inmate serving a life sentence for second degree murder. He seeks an order for relief in the nature of habeas corpus ad subjiciendum with certiorari in aid for transfer from a medium (formerly maximum) security facility to a minimum security facility on the basis that Correctional Services of Canada (herein “CSC”) breached its duty to act reasonably and fairly. While his affidavit in support was sworn on February 9, 2016, his application was not prepared until April 15, 2016 and was not filed with the court until May 5, 2016.
[2] Mr. Danvers now serves his life sentence in medium security as a result of his most recent voluntary transfer from maximum security in April 2016. The Attorney General argues that the recent voluntary transfer reflects the best current assessment of this inmate’s security risk and displaces the earlier 2015 transfer decision to maximum security which is being challenged.
Background
[3] Mr. Danvers began serving his federal sentence in June 2003 in maximum security. As a result of his successful completion of correctional programs and his institutional conduct, he progressed from maximum through medium to minimum security by April 2014. He remained at that level until April 10, 2015. He completed all required correctional programming and was participating in a daily escorted temporary absence program performing community volunteer work. It is asserted on his behalf, and I find, that as of mid-February 2015 he was well positioned to plan for parole based on his rehabilitative gains.
[4] However, on February 25, 2015 he was admitted into segregation at Beaver Creek Medium Institution (herein “BCI”) after an allegation that he had stabbed his cell partner with a kitchen knife two days earlier. He denied he’d stabbed his cell partner but admitted to authorities that he’d behaved inappropriately by engaging in a consensual fight. On April 10, 2015, he was transferred to Collins Bay Maximum Security Institution.
[5] Following that incident, in which no institutional or criminal charges were laid, his Security Reclassification Scale (herein “SRS”) was re-administered. It returned a minimum score within the discretionary points for medium security, not minimum. Notwithstanding, the Warden at BCI overrode the SRS base and raised the inmate’s Institutional Adjustment and Public Safety Ratings (herein “PSR”) from low to high. Mr. Danvers was identified as the aggressor in the February 2015 incident and as the perpetrator of an assault with a weapon – on the basis of three confidential sources of information. Some information was withheld from him, which the Attorney General argues was to protect the safety and security of the institution and other inmates at BCI, pursuant to s. 27(3) of the Corrections and Conditional Release Act, SC 1992, c. 20 (herein “CCRA”). However, a gist of this information including the fact that certain information was being withheld, was shared with Mr. Danvers in two memoranda authorized by Security Information Officer (“SIO”) McMullin before a final decision was rendered.
[6] As I have already noted, Mr. Danvers’ application for habeas corpus was filed in this court May 5, 2016 about the involuntary transfer decision of March 26, 2015 transferring him from minimum to maximum security. However, on April 14, 2016, over one year later and before this habeas corpus application was prepared or filed, he was voluntarily transferred from maximum security to medium at Collins Bay.
[7] It is the position of counsel for the inmate that this court retains jurisdiction to entertain his application, and that there has been an unlawful deprivation of his liberty. His counsel argues the Warden’s decision to reclassify to maximum was neither procedurally fair nor reasonable. The Attorney General’s position is that the information provided to Mr. Danvers before the 2015 involuntary transfer decision was sufficiently fulsome and reasonable, and that he was fairly provided with sufficient disclosure of the information relied on to the fullest extent possible, having regard to the competing interest of s. 27 of the CCRA. The respondent asserts Mr. Danvers was provided with the case to meet and with a full opportunity to rebut that involuntary transfer.
[8] In addition, the Attorney General argues mootness since the 2016 voluntary transfer decision was made prior to the filing of this habeas corpus application. Counsel for the respondent argues that this new 2016 security classification is the most accurate and current assessment of the inmate’s risk factors for the purposes of current security classifications and has displaced the 2015 decision being challenged. As a result, the respondent’s counsel asserts that the 2015 decision under challenge is inoperative since the question to be determined is moot.
2015 Involuntary Transfer from Minimum to Maximum Security
[9] In mid-January 2015, SIO McMullin received an anonymous uncorroborated report complaining that Mr. Danvers was muscling other inmates. In mid-February of that year, a correctional officer had provided similar information noting his concern that other inmates may take action as they were losing patience. On February 25, 2015, a confidential informant (herein “CI #1”) provided information to SIO McMullin that Danvers had engaged in a physical fight with his cell mate on either February 23 or 24. CI #1 said that during the fight, Danvers stabbed his cell mate in the arm, the blade broke off, and the cell mate self-administered first aid. On February 25, 2015, SIO McMullin interviewed the applicant who confirmed that he engaged in a consensual physical fight with his cell mate Bradley Mark but denied using a weapon. Danvers admitted he may have punched Mr. Mark in the ribs but uttered no threats and did not use a weapon. On February 27, 2015, a second confidential informant (herein “CI #2”) provided information about another problematic inmate who was associated with “Danvers who stabbed another inmate on 2015-02-23”.
[10] On March 6, 2015, a summary of the investigation was prepared in memorandum form by SIO McMullin and provided to the applicant through his parole officer. She provided him with copies of the Notice of Involuntary Transfer Decision Recommendation and the Assessment for Decision on March 16, 2015. The Assessment for Decision noted that:
- (a) The applicant was suspected of muscling and intimidating other inmates but that information had not been substantiated;
- (b) On February 25, 2015 information was received that the applicant stabbed an unnamed inmate with a kitchen knife;
- (c) On February 25, 2015 the applicant was interviewed and was found to be deceptive in relaying his version of events.
[11] SIO McMullin’s memorandum of March 6, 2015 stated that:
- (a) CI #1 indicated that the applicant stabbed an inmate with a kitchen knife on February 23 or 24, 2015;
- (b) The applicant fought with an inmate who was seriously hurt and required medical attention;
- (c) A summary of Mr. Danvers’ interview was provided to him;
- (d) CI #2 indicated that the appellant assaulted/stabbed an inmate on February 23, 2015;
- (e) Background information was given on the CI sources and their history – with regards to their providing information in the past.
[12] On March 17, 2015, Mr. Danvers submitted a rebuttal to the Transfer Decision Recommendation. On March 19, 2015 SIO McMullin provided a second memorandum in which she clearly invoked s. 27(3) about certain details that were withheld in the summary memo regarding the identity and some details of her investigation. The supplementary memorandum was provided to Danvers on March 19, 2015 before he resubmitted his written rebuttal on March 20, 2015.
[13] On March 26, 2015, a final decision was made to transfer the inmate. It was approved by the Warden of BCI. The next day a copy was provided to him. The Warden reviewed the information about the stabbing of Mr. Mark and Mr. Danvers’ rebuttals, along with the entire file. He decided to override the applicant’s security classification from minimum to maximum security. He did so even though the SRS resulted in a score at that time of 16.5 which corresponded with minimum security. The Warden’s decision was stated to be as a result of Mr. Danvers’ public safety risk from information he assessed to be reliable and substantiated by injuries to the victim.
2016 Voluntary Transfer from Maximum to Medium
[14] On April 11, 2016, more than a year after his arrival at maximum security, Mr. Danvers’ security classification was reassessed. Prior to the authorities doing so, the record is clear that his parole officer advised him to seek legal advice about the request and about whether it might affect his anticipated application for habeas corpus which had not yet been filed. The 2016 SRS produced a score of 19.5, a medium security score. That test was administered having regard only to the twelve month period immediately preceding it. The SRS questions related only to his behaviour from April 11, 2015 to April 11, 2016. Probation officer Desjardins also lowered Mr. Danvers’ institutional adjustment score to low and his Public Safety Risk to moderate which similarly support a medium security classification. It is clear, and I find, that the applicant’s 2016 security classification was assessed based on a review only of the previous twelve month period, having no regard for the stabbing at BCI in February 2015. As a result of that recommendation, the Warden of the Collins Bay Institution ordered a transfer from maximum to medium security.
Is the Challenged 2015 Involuntary Transfer Decision Moot?
[15] A court may decline to decide a case which raises only hypothetical or abstract questions. Mr. Danvers’ right to seek habeas corpus arises from a custodial decision which results in the deprivation of his residual liberty rights while incarcerated. I find that the 2016 Voluntary Transfer Decision from maximum to medium security was as a result of his request and agreement for transfer to a lower security setting. That resulted in no deprivation of his residual liberty interest and could only be reviewed through the internal grievance process and/or an application for judicial review before the federal court. This habeas corpus application relating to the 2015 Involuntary Transfer Decision was not filed until after this inmate was voluntarily transferred to medium security, which transfer was not challenged. I find that the 2015 Involuntary Transfer Decision was displaced by the 2016 Voluntary Transfer Decision which reflects a more accurate and complete assessment of Mr. Danvers’ current situation. He was the one that, on the material before me, made an informed decision to have his security classification reconsidered more than a year following his transfer to maximum security. He did so knowing that that request might affect that this habeas corpus application. He was voluntarily transferred in 2016 as a result of his new security classification which reflected only the previous twelve months, his current escape risk, public safety risk, institutional adjustment, and his current SRS score. The 2016 security classification does not at all take into account the stabbing of Mr. Mark at BCI minimum security which occurred outside that twelve month assessment period.
[16] Counsel for the applicant asserts that his 2016 voluntary classification had, as its starting point, a reclassification from maximum security. She notes that as at March 26, 2015, Mr. Danvers’ SRS score was 16.5, indicative of minimum security. As at April 14, 2016, it was 19.5, indicative of medium security. While his 2015 domain ratings for Institutional Adjustment Public Safety went from low to high, his 2016 domain ratings went from high to moderate. She accordingly argues this application is not moot. I disagree. She also argues there still remains an adversarial context. I disagree. She notes that her client has still not been returned to minimum security and that his current placement in medium is a direct result of his 2015 involuntary transfer to maximum. She argues that his residual liberty interest continues to be negatively impacted at this time by the 2015 Involuntary Transfer Decision. I disagree.
[17] Mootness involves a consideration of the requirement of an adversarial context including the role of adverse legal consequences, the concern for judicial economy, and the need for the court to demonstrate awareness of its proper lawmaking function.
[18] Given that Mr. Danvers is now housed in medium security, there are no collateral legal consequences for him. In the context of this habeas corpus application, the only concrete impact could have been on the deprivation of his liberty by transfer to minimum security. However, that challenged transfer has been superseded by subsequent events. The existence of the 2015 Transfer Decision will not, I find, have an impact on parole or other future applications. Rather, it is the substance of his conduct on which the Involuntary Transfer Decision was based that may affect him. The 2016 Voluntary Decision remains operative and clearly classifies him as medium security. Any review of the 2015 Involuntary Decision would, I find, be purely academic. It is moot.
[19] Mr. Danvers could have commenced this habeas corpus application at any time during the previous thirteen month period between the 2015 Involuntary Decision and his 2016 Voluntary Transfer. Instead, he filed it after he had been voluntarily transferred. The court is no longer in a position to make any meaningful order in the sense of affecting a reduction in his security status to minimum. There is evidence before me that he is currently and properly classified as medium security, and so housed. This court’s role is not to dislodge the discretion of CSC to determine his appropriate security classification from time to time. That current security classification has not been challenged. I have a supervisory and reviewing role in considering the 2015 Involuntary Decision for procedural and fairness concerns. It has and will have no impact on his current security classification.
Was the Challenged 2015 Involuntary Transfer Decision Reasonable? Was it Fair?
[20] Once an inmate raises a legitimate ground upon which to question the legality of his liberty deprivation, the onus is on the authorities to justify the lawfulness of the detention. All transfer decisions are, of course, contextual.
[21] The Superior Court has jurisdiction to hear habeas corpus applications that challenge the lawfulness of decisions on the basis of jurisdiction, procedural fairness or reasonableness. The 2015 Involuntary Transfer from minimum to maximum security level was a deprivation of Mr. Danvers’ residual liberty interest. I find, however, that the 2015 Involuntary Transfer in question was both procedurally fair and demonstrably reasonable, objectively viewed. The authorities have met their onus. There is no demonstrated breach which results in any procedural unfairness. Mr. Danvers was entitled to and received a summary of the information. He was entitled to know the case he had to meet, subject to the CSC’s discretion to withhold information pursuant to s. 27(3) of CCRA. Pursuant to that Act’s regulations, an institutional head or designated staff member must afford an inmate certain procedural protections before any involuntary transfer. The inmate must be provided with a written notice of the proposed transfer. The institutional head or his/her delegate must meet with the inmate after affording him/her a reasonable opportunity to make representations with respect to the proposed transfer. That representation must be presented to the institutional head who must provide written decision and reasons for the transfer at least two days’ prior to the proposed transfer if it is approved, and five days’ prior if it is not.
[22] Section 27 of the CCRA provides that when an inmate is entitled by regulations to make representations, the decision-maker must provide him with all information that was considered in the taking of the decision or a summary of that information, subject to s. 27(3). Mr. Danvers was entitled to know the case that he had to meet. The institutional obligation to provide an evidence summary to an inmate does not require disclosure to the greatest extent possible of all details surrounding all events supporting the transfer decision. That is unnecessary and would impose an unrealistic and unworkable disclosure obligation upon institutional heads. Section 27(1) of the CCRA requires only production of a summary of evidence that was considered in CSC’s decision-making. Procedural fairness in these security level transfer decisions requires, however, that measures be taken to verify the evidence being relied upon by the institution.
[23] Section 27(3) of the CCRA allows CSC to withhold certain information where “there are reasonable grounds to believe” that disclosure would jeopardize “(a) the safety of any persons; (b) security of the penitentiary; or (c) the conduct of any lawful investigation.” Where information is withheld from an inmate under s. 27(3), the onus is on correctional authorities to invoke the provision and prove there were reasonable grounds to withhold the information. Not all breaches of CCRA or its regulations will be procedurally unfair.
[24] In involuntarily transferring Mr. Danvers in 2015, he was provided with written notice of the proposed transfer. His written rebuttal and revised rebuttal were considered in March 2015. His representations were considered, and written notice of the Warden’s decision was provided March 27, 2015. CSC argues, and I find, that it fully met its disclosure obligations. I find that Mr. Danvers knew the case he had to meet and was provided disclosure of all information considered, to the greatest extent possible, pursuant to CSC’s obligations under s. 27 of the CCRA.
[25] Mr. Danvers was provided with a summary of the case against him by way of an interview with SIO McMullin, Notice of Involuntary Transfer Decision, the Assessment for Decision, the SRS and the SRS Functional Specification as well as two SIO memos. He was informed that SIO information confirmed he was involved in a serious assault on his cellmate, Mr. Mark, which was substantiated by three confidential sources and the injuries sustained by his cellmate corroborated this version of events. He was informed that the injuries were consistent with a stabbing and that medical treatment was necessary. He was informed that the information was deemed reliable by SIO McMullin because the sources were trusted sources, and their version of events was corroborated by one another in physical evidence. While the confidential informant reliability codes were not shared with him, there was no requirement to do so. He was also informed that SIO McMullin found him to be deceptive during his interview.
[26] Mr. Danvers was informed that certain pieces of confidential information were being withheld from him pursuant to s. 27(3) of CCRA since disclosure would jeopardize the safety of one or more persons and the security of the institution. He does not have the right to obtain all information with respect to the identity of those sources. He was provided with a meaningful opportunity to respond to the allegations and chose not to challenge the involuntary transfer decision by way of the inmate grievance process.
[27] I am not required on this application to parse details. I find that SIO McMullin’s summaries were sufficiently fulsome and detailed to enable the applicant to know the case he had to meet. There was sufficient information provided to enable Mr. Danvers to know the reliability of the sources and content of the specific statements made by them. The transfer decision was procedurally fair. I also find it was reasonable. Counsel for Mr. Danvers argues that her client and his cell partner continued residing together for two days following the assault and without further incident. She asserts that is consistent with Mr. Danvers’ version of a consensual fight, following which they resolved their dispute. That argument, however, ignores all of the information from trusted sources detailed in these reasons.
[28] The evidence summary fairly provided this inmate with the case to meet. I have reviewed, at the request of counsel for the Attorney General, the confidential un-redacted copy of the May 27, 2016 affidavit of SIO McMullin. The redacted portions are double-underlined. I hold those redacted portions were properly withheld from Mr. Danvers pursuant to s. 27(3) of the CCRA. With the issuance of these reasons, the original confidential affidavit is returned to Crown counsel uncopied. No copy remains in the court file.
Conclusion
[29] I conclude that the 2015 Transfer Decision is now moot. That decision, having regards to the information then available, was reasonable. Quinton Danvers was provided with disclosure of the information relied upon to the fullest extent possible, having regard to the competing interests under s. 27 of the CCRA. He was provided with the case to meet and with a full opportunity to rebut the proposed involuntary transfer. The decision was reasonable. The decision process was fair. His application is dismissed.
R. MacKINNON J.
Released Date: June 21, 2016