CITATION: Firbank v. Canada (Attorney General), 2016 ONSC 6592
COURT FILE NO.: CR-15-0588-MO
DATE: 2016 09 29
ONTARIO
SUPERIOR COURT OF JUSTICE
(East Region)
B E T W E E N
RICHARD FIRBANK
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
APPLICATION FOR HABEAS CORPUS
DECISION
By the Honourable Mr. Justice G. Mew
on the 29th day of September, 2016
at KINGSTON, Ontario
APPEARANCES:
Mr. Firbank Self-represented
S. Kurelek, Esq Counsel for the Federal Crown
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Firbank v AGC
Decision
THURSDAY 19 SEPTEMBER 2016
U P O N R E S U M I N G (3:50 p.m.)
D E C I S I O N
MEW, J. (orally):
By way of an application for habeas corpus, Richard Firbank, who is currently serving a two-year penitentiary sentence, seeks to challenge his transfer from administrative segregation at the Millhaven Assessment Unit, a maximum-security penitentiary near Kingston, Ontario, to the Port-Cartier Institution, a maximum-security penitentiary in Québec.
The background facts can be briefly stated.
Mr. Firbank was originally incarcerated at Millhaven Assessment Unit [MAU] on the 11th July 2015. He has a long history of recidivism, and is currently serving a two-year prison sentence for Possession of a Weapon for a Dangerous Purpose. He is classified as a maximum-security inmate. He spent 412 days in administrative segregation at MAU before being transferred to Port-Cartier on the 13th of June, 2016. After ten days in the general population at Port-Cartier, he was back in administration segregation - this time, of course, in Port-Cartier.
The applicant opposed the transfer to Port-
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Firbank v AGC
Decision
(THE COURT - continued)
Cartier, hence his application for habeas corpus, but his transfer occurred before the application had been heard.
He is now back at MAU - temporarily, at least - in administrative segregation and, absent an order from this court to the contrary, it is anticipated that he would be returned to Port-Cartier in due course.
Initially, the main concern expressed by Mr. Firbank was that his transfer to Port-Cartier would result in a residual deprivation of his liberty, because of the added dangers he would face in that institution as a unilingual Anglophone, with his personal characteristics. He felt, in particular, that he would be far more vulnerable to attacks by fellow inmates if he was moved. Indeed, it does appear that, when he got to Port-Cartier, there were incidents which led to the judgment being made, at that institution, that it would be better if he were placed back in segregation.
As I read what is in the record, and listened to Mr. Firbank's submissions, his main concern now seems to be that he is not getting the assistance and services that he feels he needs, particularly in relation to meeting his mental health and rehabilitation concerns. But these concerns seem to apply equally to Port-Cartier and to MAU.
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Firbank v AGC
Decision
(THE COURT – continued)
As set out by the Supreme Court of Canada in Mission Institution v Khela [2014] S.C.C. 24, a successful application for habeas corpus requires an applicant to demonstrate that he suffered a deprivation of liberty, following which the onus then shifts to the respondent to demonstrate that the deprivation was lawful.
Mr. Firbank bears the burden of first proving that he suffered a deprivation of liberty by being transferred from one maximum-security institution, the MAU, to another, Port-Cartier.
The Supreme Court of Canada outlined what constitutes a deprivation of liberty in Dumas v LeClerc Institution 1986 38 (SCC), [1986] 2 S.C.R. 459:
In the context of correctional law,
there are three different deprivations
of liberty: the initial deprivation
of liberty, a substantial change in
conditions amounting to a further
deprivation of liberty, and a
continuation of the deprivation of
liberty.
What is in issue, here, is the second of those categories. Has there been a substantial change in the conditions, amounting to a further deprivation of Mr. Firbank's residual liberty?
A substantial change amounting to a deprivation of liberty could involve, for example, an increase in an inmate’s security classification, transfer
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Firbank v AGC
Decision
(THE COURT – continued)
to administrative segregation, or transfer to a special-handling unit. Habeas corpus allows a court to review the validity of a "significant reduction" in the residual liberty of an inmate, not to review any and all conditions of an individual's incarceration.
The transfer from administrative segregation at MAU to, initially, the general population at Port-Cartier, but ultimately to administrative segregation at that institution, amounts to a transfer between equivalent regimes, albeit at different institutions. It was telling, as I listened to Mr. Firbank describing his interactions with the administration and staff at Port-Cartier that not once did he mention language difficulties.
The circumstances in this case are similar to those considered by Mr. Justice Abrams in Nome v Canada (AG), an unreported decision of this court dated the 16th of March, 2016. In granting a cross-motion by Canada on the same issue of jurisdiction that I am being asked to determine in the present case, Justice Abrams concluded that the applicant was being transferred laterally between two maximum-security institutions.
Mr. Justice Tausendfreund came to a similar conclusion in Debrocke v Canada, another unreported decision of this court, dated the 8th of October,
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Firbank v AGC
Decision
(THE COURT – continued)
- That case also involved a lateral transfer. The applicant had been moved from a maximum-security penitentiary in Quebec, where inmates could move about, outside of their cells, all day on most days, to Millhaven Institution, where such movements were limited to about half a day. In rejecting the habeas corpus application, Justice Tausendfreund made the following comments, which strike me as equally germane to the present case:
This was a lateral transfer for valid
reasons from one maximum-security
institution to another. Simply because
one institution manages its inmates in
one fashion compared to another, that,
in and of itself, is not a substantial
change in the conditions.
Further on in his decision he comments:
To grant the relief sought is to
micro-manage the prison system, for
which the relief of habeas corpus was
not intended.
It is not my function, on an application of this nature, to second-guess the appropriateness of the arrangements that have been made in either of the institutions in which Mr. Firbank has resided, in circumstances where those arrangements are, to all intents and purposes, equivalent. While there may well be more-optimal arrangements, at least from the perspective of Mr. Firbank, that could be made, that is not something with which this court can or should assist.
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Firbank v AGC
Decision
(THE COURT - continued)
The simple fact of the matter is that Mr. Firbank has gone from administrative administration in one institution to administrative segregation in another. Indeed, he acknowledges that if he were to be returned to MAU, which is what he asks for, he would likely remain in administrative segregation. As his ultimate objective is to get out of administrative segregation, quite apart from the application of a legal principle, it is difficult to see what benefit there could be from allowing his application to proceed further.
Accordingly, the notion is granted and, as a result, Mr. Firbank's application is dismissed.
There is no order as to costs.
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Form 2
Certificate of Transcript
Evidence Act, ss. 5(2)
I, Jodi Mullen, certify that this
document is a true and accurate
transcript of the recording of:
FIRBANK v AG CANADA
heard in the Superior Court of
Justice, held at 5 Court Street,
Kingston, taken from recording no:
0911_COUC_20160929_090820_10_MEWG
which has been certified in Form 1.
Certified: 04 October 2016