Court File and Parties

COURT FILE NO.: CR-17-0005-MO DATE: 20170622 CORRIGENDA: 20170626 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brian Hickey v. Attorney General of Canada

BEFORE: The Honourable Mr. Justice M. McKelvey

COUNSEL: Ayesha Laldin, Counsel for the Respondent Simon Borys, Counsel for the Applicant

HEARD: March 31, 2017

Endorsement

Introduction

1The applicant, Brian Hickey, is an inmate currently incarcerated at the Beaver Creek Medium Security Penitentiary, which is operated by the Correctional Services of Canada. He was transferred to that institution on May 15, 2011 from the Beaver Creek Minimum Security Institution. This is an application for a writ of habeas corpus with certiorari in aid to determine the lawfulness of his transfer. Specifically, the applicant seeks an order requiring his return to a minimum security institution in Ontario. In support of his application, the applicant argues that the decision to transfer him to a medium security institution was not reasonable. He also asserts that there was a lack of procedural fairness associated with the decision.

Background

2Mr. Hickey was convicted of second degree murder in 1996 and received a life sentence. He was subsequently convicted while incarcerated on charges of mischief under $5,000 and unlawful assembly in relation to a prison riot. He has a significant criminal history consisting of approximately 28 convictions over a nine year period prior to his index offence.

3In the period prior to May 11, 2015, Mr. Hickey was at the Beaver Creek Minimum Security Institution. On May 11, he was transferred to the Beaver Creek Medium Security Institution on an emergency basis. The decision to transfer was based on allegations that Mr. Hickey had made threats against the life of his step-father. There were also reports of peer interaction problems with other inmates and verbal aggression with a dietician at the institution. Mr. Hickey has denied making any threats against the life of his step-father.

4Following the emergency transfer, Mr. Hickey was given information relating to the allegations made against him and made a presentation to the Warden of the institution. In confirming the decision to transfer Mr. Hickey, the Warden made the following endorsement:

In reviewing the notice of involuntary transfer recommendation, I observed that HICKEY was advised of his right to retain counsel and a right to rebut the involuntary transfer. I note that HICKEY requested an extension on the rebuttal timeframe to 16-05-18 which was granted and presented a verbal rebuttal to myself on this date. Within the context of his presentation, HICKEY cited physical and mental health issues impacting him negatively by way of memory/recall difficulties and weight loss due to what he believes to be unfair dietary per deium realignment to community standards. However, with respect to the central allegation of uttering death threats towards his stepfather, HICKEY continued to deny the accuracy of this information and suggested he would take a polygraph test to confirm his innocence. Notwithstanding, I find the aforementioned information to be credible in light of the source of same, his violent index offending and deteriorating, reactionary behaviour including a recent incident of a significant verbal aggression with the Regional Dietician. It is my view that HICKEY clearly requires a period of 6-9 months at Medium Security to stabilize, including on-going therapeutic work with psychological professionals and to address any physical health problems that may be contributing to his negative conduct. Following this period, an early reassessment of security level can be considered.

A security reclassification scale was completed by PO Broderick that reflects a security classification of MEDIUM, without the use of an override factor.

There are no incompatibles at the Medium Unit of Beaver Creek Institution.

This involuntary transfer is APPROVED.

5This analysis was also reflected in the notice given to Mr. Hickey on May 16, about the reasons for his transfer, where it is stated:

In summary, your demonstrated security needs clearly cannot be met at BCI Minimum, with the opportunity to access the community in the event of an escape; you have exhibited a requirement for an institution with an enclosed perimeter as per CD 710.

The Applicable Legal Principles

6The applicable legal principles are set out in the Supreme Court of Canada decision in Mission Institution v. Khela, [2014] SCC 24. To be successful on an application for habeas corpus an applicant must first establish that he has been deprived of liberty. Once a deprivation of liberty is proven the applicant must raise a legitimate ground upon which to question its legality. If the applicant has raised such a ground the onus shifts to the respondent to show that the deprivation of liberty was lawful.

7In the present case the respondent acknowledges that the involuntary transfer of Mr. Hickey constituted a deprivation of his liberty. The onus is therefore on the respondent to show that the deprivation of Mr. Hickey’s liberty was lawful.

8In the Khela decision the Supreme Court comments that a transfer decision that does not fall within the range of possible, acceptable outcomes which is defensible in respect of the facts and the law will be unlawful. A decision will be unreasonable and therefore unlawful if an inmate’s liberty interests are sacrificed absent any evidence or on the basis of unreliable or irrelevant evidence or evidence that cannot support the conclusion. It is noted, however, that in reviewing whether a decision is reasonable, deference will necessarily be given and the test is reasonableness. Deference will also be shown to a determination that evidence is reliable, but the authorities will nonetheless have to explain that determination.

9A duty of procedural fairness is owed to an inmate. The standard for determining whether the decision maker complied with the duty of procedural fairness is correctness.

10Section 27(2) of the Corrections and Conditional Release Act, SC 1992, c. 20 provides as follows:

(2) Where an offender is entitled by this Part or the regulations to be given reasons for a decision taken by the Service about the offender, the person or body that takes the decision shall, subject to subsection (3), give the offender, forthwith after the decision is taken, all the information that was considered in the taking of the decision or a summary of that information.

11This obligation to provide information is limited in certain circumstances by s. 27(3), which provides as follows:

(3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosure of information under subsection (1) or (2) would jeopardize

(a) the safety of any person, (b) the security of a penitentiary, or (c) the conduct of any lawful investigation,

the Commissioner may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified in paragraph (a), (b) or (c).

12In the Khela decision, the court noted that s. 27 does not require the authorities to produce evidence which was not taken into account in the transfer decision; they are only required to disclose the evidence that was considered. Further, s. 27 provides that a summary of that information will suffice.

13With respect to s. 27(3), the Supreme Court notes in Khela that the onus is on the decision maker to invoke the provision and prove that there are reasonable grounds to believe that disclosure of that information would jeopardize one of the listed interests. The court goes on to note, however that the Warden is entitled to a margin of deference on this point. Further, some deference is owed to the Warden on the issue of whether a given source or informant is reliable.

Has the Respondent met its burden of establishing that the transfer of Mr. Hickey from a minimum to a medium security institution was reasonable?

14Section 18 of the Corrections and Conditional Release Act Regulations requires the correctional service to classify an inmate’s security level according to certain criteria. Under s. 18(b) an inmate shall be classified as medium security where he is assessed by the service as presenting a low to moderate probability of escape and a moderate risk to the safety of the public in the event of escape, or he requires a moderate degree of supervision and control within the penitentiary. An inmate should be assessed as requiring minimum security where he presents a low probability of escape and low risk to the safety of the public in the event of escape and he requires a low degree of supervision and control within the penitentiary.

15The file documentation contains an assessment for decision which is dated May 12, 2016, which recommends the transfer of Mr. Hickey. This document assesses Mr. Hickey’s escapement risk to be low, which is the same assessment he had received while in the minimum security institution.

16The assessment rates the public safety risk posed by Mr. Hickey as moderate. This was an increase from the earlier assessment which had rated his public safety risk as also low. The change in classification of his public safety risk appears to be related primarily to the allegation that he had made allegations that he wanted to kill his step-father. It also makes reference to the fact that Mr. Hickey appeared to be trending towards behavioural instability with episodes of emotional and angry outbursts.

17Mr. Hickey argues that it was not reasonable to assess his public safety risk as moderate where there was no evidence of an increased escape or flight risk. Mr. Hickey argues that as he is serving a life sentence and as there is no change to his escape risk which is assessed as being low, it is unreasonable to rely on the allegations of a threat to his step-father to increase the assessment of his public safety risk. Further, it is argued that other factors such as getting along with other inmates and the alleged aggressive discussion with the dietician do not relate to public safety and cannot justify the decision to increase his public safety risk to moderate. It is apparent in reviewing the relevant criteria, however, that while the concept of public safety may to some extent be influenced by an inmate’s escape risk, it comprises a set of considerations which are separate and distinct from an inmate’s escape risk. This is reflected in the wording of s. 18(c)(i) of the Regulation which provides that for a minimum security classification, the inmate must present with both a low probability of escape and a low risk to the safety of the public in the event of escape. Each of these factors must be considered in assessing the correct classification of an inmate.

18In the Correctional Service Canada Commissioner’s Directive, No. 710-6, it addresses the public safety rating. For a low public safety rating, one of the following criteria should be met:

(a) criminal history does not involve violence (b) criminal history involves violence/sexually-related offence(s), but the inmate has demonstrated significant progress in addressing the dynamic factors which contributed to the criminal behaviour and there are no signs of the high risk situations/offence precursors identified as part of the offence cycle (where it is known) (c) criminal history involves violence, but the circumstances of the offence are such that the likelihood of reoffending violently is assessed as improbable

19For a moderate rating, the following criteria apply:

(a) criminal history involves violence, but the inmate has demonstrated some progress in addressing those dynamic factors which contributed to the violent behaviour (b) criminal history involves violence but the inmate has demonstrated a willingness to address the dynamic factors which contributed to the violent behaviour (c) there are current indicator(s) of moderate risk/concern

20If the allegations made against Mr. Hickey are correct it would appear that it would be within a reasonable range of outcomes to conclude that there had been a significant negative change in the inmate’s progress in addressing the dynamic factors which contributed to his violent behaviour. There would also appear to be current indicators of moderate risk and concern. The allegation that he intended to kill his step-father is a very serious one. These considerations could reasonably lead the Warden to a conclusion that the inmate should be assessed as a moderate public safety risk under Directive 710-6, which in turn would lead to a medium security classification.

21Further, if the concerns relating to his interaction with other inmates and the dietician are accurate, there would also appear to be evidence of emotional instability which is one of the factors to be considered as part of the public safety risk assessment, in accordance with Directive 710-6.

22The respondent further relies on the affidavit of Ms. Bobbie McMullin dated March 9, 2017. Ms. McMullin is a Security Intelligence Officer at Beaver Creek Minimum Security Institution. In her affidavit, she states that Beaver Creek Minimum Security Institution facilitates a lifestyle similar to living in the community. The inmates live in residence styled units and have access to a kitchen where they can cook their meals individually or in a small group. As a minimum security institution, Beaver Creek has a marked perimeter, but does not have fences separating the offenders from the community. There are parole officers stationed in each living unit and there are a few roaming correctional officers who patrol the institutional grounds at scheduled times. However, given there are far fewer correctional officers than inmates, the ability to monitor inmate activities is limited.

23The decision, therefore, to increase Mr. Hickey’s public safety risk to moderate would therefore appear to be consistent with the established guidelines which suggest a change in the inmate’s progress in addressing the dynamic factors which contributed to his violent behaviour and the presence of current indicators of moderate risk and concern. All of this leads me to conclude that the decision to transfer Mr. Hickey was within a range of acceptable outcomes if one accepts that the information before the Warden was reliable. It follows that her decision was reasonable subject to the reliability issue.

24I have considered the reliability of the evidence relied upon by the institution. As noted earlier, a decision will be unreasonable if it is based on unreliable or irrelevant evidence, or evidence that cannot support the conclusion. Deference is required to be shown, however, to a determination that evidence is reliable.

25In the present case, Mr. Hickey denies that he uttered any death threats towards his step-father. However, the Warden found this information to be credible and gave reasons in her decision for this finding. There was evidence before the Warden that Mr. Hickey met with Security Intelligence Officer McMullin on March 9, 2016. During this conversation, Ms. McMullin reported that Mr. Hickey told her that he hated his step-father, wished that he was dead and said something to the effect that he should have killed him a long time ago. An observation report documenting the meeting was prepared by Ms. McMullin.

26In April, 2016, according to the affidavit from Ms. McMullin, she received information from different sources, including Mr. Hickey, suggesting that his behaviour and mental health were deteriorating. She states that on April 14, 2017, Mr. Hickey told a staff member that while at another institution he believed another inmate was drinking his milk so he put bleach in the container with a note on it saying “contaminated”.

27Further, on April 21, 2016, according to the affidavit from Ms. McMullin she received information that Mr. Hickey participated in a video conference call with the Regional Dietician and accused her of cancelling additional money to buy proper food for his chronic medical condition.

28Finally, according to the affidavit of Ms. McMullin, she received confidential information in May, 2016 from a community source that Mr. Hickey had made threatening comments directed at his step-father. He stated that he would seek out his step-father upon his release and kill him.

29Taking into account that deference must be shown to the Warden’s conclusion that the evidence is reliable, I have concluded that there is no basis to interfere with her conclusion in this regard. She has given an adequate explanation as to how she reached that conclusion in her decision when she states, “I find the aforementioned information to be credible in light of the source of same, his violent index offending and deteriorating, reactionary behaviour including a recent incident of significant verbal aggression with the Regional Dietician”.

Was Mr. Hickey afforded procedural fairness?

30Section 27(2) of the Corrections and Conditional Release Act, require that after an emergency transfer, an inmate is entitled to be given all of the information that was considered in the taking of the decision or a summary of that information. It is clear that Mr. Hickey received a summary of the information relating to his alleged statements about threatening the life of his step-father, the difficulties he was having with other inmates and the allegation related to his conversation with the dietician. All of this information was contained in a series of documents which were given to him. The issue on procedural fairness relied upon by the applicant was the failure to disclose information under s. 27(3) of the Act.

31During argument, however, a further issue arose. Counsel for the respondent submitted that Mr. Hickey was provided with a summary of all the information that was considered in the decision making process, except for the information excluded under s. 27(3). When questioned further about this submission, however, counsel for the respondent was not able to point to any specific evidence attesting to the fact that there was no other information considered.

32I addressed this issue with counsel as I considered it to be a serious one in the circumstances. Counsel for the respondent advised that if necessary, she would seek leave to enter a further affidavit to deal with this issue. It was agreed that the respondent would send a copy of the proposed affidavit to the applicant’s counsel. If there was going to be an issue with respect to the right of the respondent to file the affidavit, the Trial Coordinator would be notified and the parties would re-attend to argue whether any further affidavit material would be received in evidence. I was subsequently advised that with the consent of the parties, the respondent was filing a further affidavit from Nancy Kinsman dated April 25, 2017. Neither party has requested the opportunity to make further submissions in light of the filing of this affidavit, as provided for in my endorsement of March 31, 2017. In this affidavit Ms. Kinsman, who is the Warden at the Beaver Creek Minimum Security Institution and Beaver Creek Medium Security Institution confirms that no other information other than what was set out in the application before me was considered in making her decision to transfer the applicant other than two documents for which protection under s. 27(3) is claimed. I accept this evidence and conclude that subject to s. 27(3) the applicant was provided with all of the information considered in the decision making process.

33In the information provided to Mr. Hickey, it clearly indicates that some information has been withheld from him in accordance with s. 27(3) of the Corrections and Conditional Release Act. The information provided to Mr. Hickey makes reference to a letter dated May 5, 2016 as well as a report number 000444 dated May 10, 2016. With respect to the report dated May 10, 2016, the information provided to Mr. Hickey states that the report summarizes information received from a member of the community outlining direct threats made to the safety of his step-father and credible information outlines that Mr. Hickey would upon his release be seeking out his step-father to kill him.

34In the Khela decision, the Supreme Court outlines the process to be followed when s. 27(3) is engaged. It directs that the reviewing court be provided with a sealed affidavit that contains the information that has been withheld from the inmate and the reasons why disclosure of that information might jeopardize the security of the penitentiary, the safety of any person or the conduct of a lawful investigation. As noted previously, the Supreme Court notes that the Commissioner or his representative is in the best position to determine whether such a risk could in fact materialize and is therefore entitled to a margin of deference on this point.

35In the present case, Ms. Kinsman in her affidavit of April 25, 2017 states that in making her decision on the transfer, she considered only two documents which were not disclosed on this application. These documents consisted of a letter dated May 5, 2016 and Observation Report 000444. Both of these documents were contained in the confidential affidavit of Bobbie McMullin dated March 9, 2017.

36I have reviewed two documents referred to above and I am satisfied that s. 27(3) of the Act was properly relied upon by the respondent. Mr. Hickey argues that inadequate information was provided to him about the information omitted. He relies on Correctional Service Canada Policy Bulletin 451. In that bulletin it states that where information is withheld under s. 27(3) a “gist” will be prepared and shared with the individual. It further indicates that where possible, an explanation of why there are reasonable grounds to believe that the disclosure of information would be justified under s. 27(3) should be given and that where possible, if confidential source information is being relied upon an explanation of the level of reliability of the information should be provided.

37It is apparent that a gist of the information contained in the report dated May 10, 2016 was provided to Mr. Hickey and he was provided with limited information about the fact that this information was considered credible. He was not specifically provided with a gist of the information with respect to the letter dated May 5, 2016 nor an assessment of its credibility. However, having reviewed this letter and taking into account that the Warden is entitled to a margin of deference on this point, I am satisfied that the information was properly withheld in accordance with s. 27(3) of the Act. I further conclude that Mr. Hickey had reasonable notice of the concerns relating to his behaviour and which led to the decision by the Warden to transfer him to a medium security institution.

38In the circumstances, the respondent has satisfied me that it has met its burden of establishing procedural fairness in the decision to transfer Mr. Hickey to a medium security facility.

Conclusion

39For the above reasons, this application is dismissed. In accordance with my discussion with counsel at the hearing, I am directing that the confidential affidavit of Bobbie McMullin which contains the documents which were subject to the claim for protection under s. 27(3) be returned to the respondent’s counsel if no objection is received by the court office within 30 days from the release of this decision.

Justice M. McKelvey Date: June 22, 2017

CORRIGENDA

1. Paragraph 14 of this decision has been amended to correctly refer to Section 18 of the Corrections and Conditional Release Act Regulations and not Section 8.