Court File and Parties

KINGSTON COURT FILE NO.: CR-15-582-MO DATE: 20160718 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jay Sedore, Applicant AND Attorney General of Canada, Respondent

BEFORE: Mr. Justice Timothy Minnema

COUNSEL: J. Todd Sloan, for the Applicant Sarah Churchill-Joly, for the Respondent

HEARD: June 30, 2016

Endorsement

[1] This is an application by Jay Sedore in the nature of habeas corpus with certiorari in aid thereof to determine the legality of his detention, and for any necessary added relief.

Test

[2] A successful application for habeas corpus requires two elements: (1) a deprivation of liberty, the onus of which rests on the applicant; and (2) that the deprivation be unlawful. The onus of establishing the lawfulness of deprivation rests on the detaining authority.

Factual Background

[3] The applicant is serving an indeterminate sentence for first degree murder with parole eligibility after twenty five years. His sentence commenced in 1991. He started in a maximum security institution, was subsequently transferred to a medium security institution and then to another, and eventually moved to a minimum security facility in 2013.

[4] While at the minimum security facility he was denied requests related to Correctional Services Canada (“CSC”) programming and escorted absences within the community. Subsequently in 2014 he was involved in an incident with another inmate. Although he disputes some of the details, the investigation included interviews with two witnesses and concluded that he held a knife to the other man’s throat and threatened to kill him. The applicant does not deny making a threat while holding a knife, but denies holding a knife to the throat. This incident triggered the applicant’s reclassification and led to his transfer to a maximum security prison.

Positions

[5] There are two distinct aspects to the applicant’s relief request as set out in his factum and argument. First he seeks a finding that his former placement in the minimum security institution instead of a release into the community was a deprivation of liberty and unlawful. He claims to have been thwarted on the way to a placement in a half-way house. Second, he seeks a finding that the current placement in the maximum security institution is unlawful. He seeks the habeas corpus remedy with respect to both claims. The respondent’s position, in turn, is that the first request is not a deprivation of liberty, and that although the second request relates to an admitted deprivation of liberty, that deprivation is lawful.

Former Placement

[6] I find that there is no relief available to the applicant related to issues during his former placement. The habeas corpus remedy is not designed to grant greater residual liberty and the alleged refusals relate to a denial of additional privileges; the complaints are not associated with a form of confinement that is more restrictive than normal prison. Also, the habeas corpus remedy is to address occurring deprivations; this request relates to concerns from back in 2013/2014.

Current Placement

[7] As the applicant suffered a deprivation of liberty in the transfer from minimum security to maximum security, the onus is on the respondent to establish that the deprivation is lawful. To be lawful the transfer must be reasonable in all the circumstances and procedurally fair (*Mission Institution v. Khela*, 2014 SCC 24, [2014] 1 S.C.R. 502 at paragraphs 77 and 80). This case turns on procedural fairness.

[8] Section 27(1) of the *Corrections and Conditional Release Regulations*, SOR/92-620 indicates that where an offender is entitled to make representations in relation to a decision by CSC he is to be given “all the information to be considered in the taking of the decision or a summary of that information”. The applicant was clearly entitled to make representations, whether he elected to or not.

[9] The applicant asserts that there was a procedural deficiency in that, although he was given the Security Reclassification Scale (“SRS”) score or index, he never received the “Functional Specification” also known as the “scoring matrix”. It essentially provides details of the calculation. Per the Commission’s Directive 710-6 titled Review of Inmate Security Classification, the SRS is to be administered and incorporated into the final assessment whenever there is a review of an inmate’s security level. As the applicant was in segregation, per Annex B to that directive “… staff must provide the inmate with a hard copy of the Security Reclassification Scale Functional Specification.” The CSC did administer the SRS and as noted the applicant was provided with the score which indicated a medium security classification, but the respondent acknowledges that CSC failed to provide the Functional Specification/scoring matrix as required.

[10] The respondent argues that the omission does not render the applicant’s reclassification and transfer procedurally unfair for the following reasons. First, while the SRS is mentioned in the Assessment for Decision, the CMT did not follow it but rather overrode it choosing instead the maximum security classification. The respondent maintains that the SRS therefore played no part in the reclassification and transfer and as such the failure to disclose the scoring mechanism is irrelevant as it wasn’t considered. It relies on *Lising v. Warden of Kent Institution*, 2007 BCSC 248, for the proposition that as the SRS was not “the critical determining factor” in the decision to transfer, the failure to provide the scoring matrix did not deprive the inmate of the ability to make a meaningful response to the CMT’s recommendation. Second, while admitting that by failing to provide the scoring matrix CSC did not provide “all the information” to the applicant per section 27(1) of the Regulations, the respondent asserts that the applicant still had a “summary of that information” per that regulation and therefore knew the case to be met. Lastly, and in the alternative, the respondent argues if the court finds that there was a breach of procedural fairness, it is only technical in nature and does not deprive CSC of its jurisdiction to order the transfer.

[11] I cannot see how the respondent can get around the Commissioner’s Directive that clearly and specifically indicates that a hard copy of the scoring matrix was to have been provided. The following excerpt from Khela succinctly refutes its first two arguments:

[96] … I agree with the determination of the application judge and the Court of Appeal that the Warden’s failure to disclose the scoring matrix for the SRS was procedurally unfair. The appellants argue that the courts below should not have taken issue with the Warden’s failure to disclose the scoring matrix, because, unlike in May, the decision to transfer Mr. Khela was not based on the SRS alone, given that the Commissioner overrode the security classification. Whether the decision was based on that scale alone is irrelevant, however. What is instead of concern is whether the Warden considered the scoring matrix, on which the SRS calculation was based, in taking her decision (s. 27).

[97] An override of the SRS calculation does not eliminate the Warden’s obligation to disclose the scoring matrix. The scoring matrix is used to calculate the inmate’s security classification. That classification is then reviewed and can be overridden. Even if it is overridden, however, the security classification (and thereby, indirectly, the scoring matrix) is nonetheless “considered” within the meaning of s. 27 of the CCRA. The Warden or the Commissioner must review the calculation before it can be overridden. Without access to the scoring matrix and information on the methodology used to calculate the total score, Mr. Khela was not in a position to challenge the information relied upon for the calculation or the method by which the total score was arrived at, and therefore could not properly challenge the override decision.

[12] With respect to the respondent’s final argument, regardless of how reasonable a transfer decision appears, if the process was procedurally unfair it is still unlawful: Khela at paragraphs 80 and 98.

Decision

[13] Whether the applicant would have challenged the decision upon being provided with the scoring matrix is unknown. However, per Khela at paragraph 98, to be lawful a decision to transfer an inmate to a higher security penitentiary must, among other requirements, be procedurally fair. To ensure that it is, the correctional authorities must meet the statutory requirements. In this case the disclosure requirements were not met, and it therefore follows that the decision to transfer Mr. Sedore from Beaver Creek Minimum to Millhaven Institution was unlawful. For those reasons a Writ of habeas corpus with certiorari in aid shall issue. The decision of the Warden dated November 6, 2014 is set aside and the applicant is approved for transfer to Beaver Creek Minimum.

Mr. Justice Timothy Minnema Date: July 18, 2016