CITATION: Earhart. v. Bath Institution (Warden), 2017 ONSC 4908
COURT FILE NO.: CV-17-580648
DATE: 20170822
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DONALD EARHART
Moving Party/Applicant
– and –
BATH INSTITUTION (WARDEN), COLLINS BAY INSTITUTION (WARDEN), CORRECTIONAL SERVICE CANADA, MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS and ATTORNEY GENERAL OF CANADA
Responding Parties/Respondents
Ian B. Kasper and Anil Kapoor, for the Moving Party/Applicant
Ayesha Laldin and Caitlin Page, for the Responding Parties/Respondents
HEARD: August 15, 2017
REASONS FOR DECISION
J. FERGUSON, J.
[1] This is the applicant’s emergency motion seeking an injunction to prevent his transfer out of the Province of Ontario to the Drumheller Institution (“the DI”) in Alberta. The applicant has been residing on an emergency basis in segregation at the Collins Bay Institution (“the CBI”).
[2] The applicant has commenced an application for a writ of habeas corpus in relation to a decision to transfer him from the Bath Institution (“the BI”) to the CBI into segregation and a further decision of the respondents to transfer him out of province to the DI.
[3] By way of background, the applicant is an inmate of the federal corrections system. He is currently serving a life sentence with no possibility of parole for 25 years as a result of his conviction for first degree murder. He has a high-school education and has completed some college. He is Aboriginal, being of the Chippewas of the Thames First Nation. His home, family, and community supports are all in Ontario, particularly in the London area.
[4] The parties, for the purpose of this motion, proceeded on the basis that the Superior Court of Justice has jurisdiction to order an injunction. I have received many written submission, many of which deal with the application for habeas corpus.
[5] I learned at the hearing of the motion that the applicant was already on a plane and would be arriving at the DI. This was despite Dow J’s request that he not be transferred pending a decision of the injunction. There is a plane scheduled to return from the DI in six weeks, should I grant the injunction.
[6] Some of the applicant’s details of institutional history up until his transfer to the DI, is found in the materials and is Exhibit “D” to the affidavit of Jeff Tousignant who is an acting deputy warden at the CBI. I am going to touch only on the highlights:
i. The applicant was transferred to segregation at Beaver Creek Institution (“BCI”) medium unit in January 2015 for a fresh security reclassification review. He was determined to be a maximum security offender;
ii. The applicant was assessed and was recommended for a transfer to the Saskatchewan Penitentiary (“the SP”). He was transferred there in September of 2015;
iii. In June of 2016 the applicant’s security classification was downgraded to medium and he was placed in open population at the SP medium unit;
iv. In November of 2016 the applicant requested and was placed in segregation;
v. The applicant was then transferred to Stoney Mountain Institution with the hope of integration into an open population. He however remained in segregation;
vi. On June 26, 2017 the applicant was involuntarily transferred from the BI to the CBI medium. The BI does not have an administrative segregation unit. The applicant was placed in administrative segregation at the CBI medium; and
vii. The applicant was transferred to the DI on August 15, 2017.
[7] The applicant seeks an injunction in order that he remains in segregation at the CBI medium pending the disposition of his habeas corpus application. In reality this means a transfer back to the CBI medium segregation. The applicant consents to being placed back in segregation. He has hip surgery booked for October of 2017 in Kingston, Ontario, which he does not want delayed and wants to be closer to his family in Ontario.
[8] The respondents` position is that he should not be granted an injunction to remain in segregation at the CBI medium pending the disposition of his habeas corpus application and that he should remain at the DI. They make the following submissions (frankly many go to the habeas corpus application):
i. Pursuant to s. 31(3) of the Corrections and Conditional Release Act S.C. 1992, c. 20, (“CCRA”), one pre-condition to place an inmate in administrative segregation is that there must be no reasonable alternatives to that form of confinement. Pursuant to s. 31(3), an inmate is to be released from segregation at the earliest appropriate time. In furtherance of these provisions, GL-709-1 – Administrative Segregation Guidelines, adopted under Commissioner’s Directive 709 – Administrative Segregation, requires that after an institution has considered all alternatives to segregation and eliminated them as viable options, and it has been determined that the inmate cannot be reintegrated within the institution, CSC must initiate an inter-region or an intra-region transfer for the purpose of alleviating the inmate’s segregation status.
ii. Collectively, these requirements are reinforced by the principle outlined at s. 4(b) of the CCRA that the Service use measures that are consistent with protection of society, staff, and offenders, and limited to only what is necessary and proportionate to attain the purposes of the Act.
iii. The purpose of the applicant’s transfer to the DI Institution is to relieve his segregated status and prevent the possibility of long-term segregation in Ontario, as required by the CCRA and GL-709-1. The applicant has a long term history of segregation on his current sentence. He cannot be released in open population of any penitentiary in Ontario. Since CSC has approved the DI as suitable for his release into open population, it is no longer the case that no reasonable alternatives exist to his segregation at the CBI Medium.
iv. The fact that the applicant intends to challenge his transfer to the CBI segregation unit on the merits of the application is fundamentally at odds with the requested interim relief – the applicant seeks to prolong the very segregation that he is claiming to be unlawful on the main application. An inmate who remains in segregation out of his own volition cannot establish a deprivation of liberty.
v. The court should be wary of a tactical use of habeas corpus. The applicant purports to challenge two decisions on the habeas corpus: the transfer from the BI (medium security) to the CBI (segregation); and the proposed transfer to the DI (medium security). In bringing this motion, the applicant is requesting the court to make an order that would maintain the purported basis of one of his challenges by perpetuating a deprivation of liberty.
vi. Even when viewed as a single continuing transaction, the transfer from the BI to the DI is “at best, a lateral transfer”. The courts have consistently dismissed habeas corpus applications that challenge lateral transfers because the case law instructs that a lateral transfer does not constitute a deprivation of liberty for the purpose of habeas corpus. Further, with greater force, courts have held that a transfer to alleviate an inmate’s segregation cannot properly be the subject of a habeas corpus because the transfer results in an increase of residual liberty.
[9] The applicant essentially raised charter issues (the right to counsel and disclosure) which are dealt with below.
Issue 1 – Is there a Serious Question to be Determined?
[10] The threshold for a serious issue to be tried is low. The test was set out by the Supreme Court in RJR-MacDonald Inc. 1994 117 (SCC), [1994] 1 SCR 311. At paragraph 50 of that decision the court states “once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable”.
[11] It is the applicant’s position that there is an arguable irreparable harm caused to the applicant. He submits that it is arguable that the transfer decision is unlawful (the requirement to obtain a writ of habeas corpus). The applicant has provided an affidavit from Ani Mamikom (a law clerk with the applicant’s law firm). She sets her understanding that the BI is an open egress institution which allows for free flow of movement throughout the institution. She further sets out her information that after his transfer to the CBI the applicant was placed into segregation and then further was served the notice of involuntary transfer to the DI. Her further understanding is that the DI is not an open egress institution and is more restrictive in that it does not allow for free flow of inmates through the institution. I am aware that this information will be challenged in the application for habeas corpus. This is however the information that is available to me in dealing with the requested injunction.
[12] The applicant further submits that the applicant’s rights to counsel were entirely “trampled” by the respondents when making the decision to transfer him west. It is clear from the materials reviewed, that despite repeated requests to speak to counsel after learning about the intended transfer, that the applicant was not afforded those rights to counsel. This is even after counsel returned from holidays and before the order for transfer was made. Counsel could not obtain an extension to deal with this. The applicant had no counsel to assist him when he learned of the proposed transfer. He made repeated requests for counsel. I also note that the transfer occurred despite the request by Dow, J. to put the transfer on hold pending a decision regarding the injunction. I am aware that his request was not binding.
[13] On this point about rights to counsel, counsel for the respondents submits that this was an urgent situation and when dealing with administrative segregation transfers, such urgency does not give rise to extensions. Further, the rights to counsel are not as protected because of the urgency of the situation. I do not accept that submission with respect to the urgency somehow preventing the applicant from being able to retain and instruct counsel. It is clear from the materials that he was attempting to deal with this matter on his own, even though he kept asking that his counsel become involved. The right to counsel is a fundamental right, one that is at the core of an individual’s rights. (even convicted criminals)
[14] A further point made by the applicant is with respect to disclosure, specifically a lack of information provided to the applicant supporting the decision to transfer him. Apparently a lot of the information gathered deals with the “inmate informants” at the BI.
[15] The applicant has pointed to the Supreme Court of Canada in Dumas v. LeClerc Institution 1986 38 (SCC), [1986] 2 SCR 459. The court states “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. This applicant believes that there will be an arguable restriction of his liberties at the DI (this will be contested by the respondents).
[16] With respect to the first prong of the test for an injunction, I find that there is a serious issue to be tried. The application is neither vexatious nor frivolous. The transfer from the BI to the DI has arguably created a restriction of the applicant’s residual liberties.
Issue 2 – Will the applicant suffer irreparable harm if the injunction is denied?
[17] It is the respondents’ position that the denial of interim relief will not result in irreparable harm to the applicant. She submits that the proposed transfer will increase residual liberties while he awaits the disposition of his habeas corpus application as he will not remain in segregation.
[18] She refers to a prior transfer of the applicant to SP against his will in November of 2015 during which time he showed positive progress. However, the applicant’s family unit is based in Ontario and it will be much more difficult to have access to his family unit while in the DI.
[19] Further, the applicant has scheduled hip replacement surgery in Kingston in October of 2017. The respondent submitted that there is no evidence that he would not be afforded such surgery out west. There is however no evidence that anything has been arranged or that the wheels have even been set in motion to have it arranged out west.
[20] The applicant directs me to paragraph 59 of the MacDonald case which states that “is irreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm which can either not be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other”. In this case, the nature of harm cannot be quantified in damages. The transfer west will jeopardize the applicant’s hip surgery; will remove him from his family unit; and is wholly disruptive to him. The penitentiary is his home. He is serving a life sentence with no chance of parole for 25 years. It is clear that the harm cannot be quantified for by damages.
Issue 3 - Does the balance of convenience favours the granting of a stay?
[21] It is the respondents’ position that the balance of convenience does not favour staying the transfer pending the outcome of the applicant’s habeas corpus application. The test requires the determination of which of the two parties will suffer the greater harm from the granting or refusal of the stay pending an appeal. Among the factors which must be considered are the nature of the legislation at issue and where the public interest lies. The public interest has been recognized to be very important and weighs heavily in this inquiry.
[22] Looking at this prong of the test, it is necessary to look at the specifics to the applicant. There is no public interest which is affected by his remaining in segregation at the CBI. If the public interest is the transfer expense, then the respondents should have honoured the Dow, J. request. The applicant knows he will go to segregation and consents to that. The fact that there are programs which would be more readily available at the DI is not a reason. There is no great rush for him to complete programs. He is not eligible for parole for 25 years.
[23] The applicant further points out that he has been in segregation for 1000 days and that as a result there is no desperate situation to have him removed from segregation pending the outcome of the habeas corpus application.
[24] The balance of convenience favours the applicant.
Conclusion
[25] The application is not frivolous or vexatious. The applicant will suffer irreparable harm by the transfer. Further the balance of convenience favours returning the applicant to the CBI. There is real harm which will be caused to him by this transfer and little harm to CSC. The applicant knows he will be in segregation. This does not contravene any public interest.
[26] The injunction is granted pending the outcome of the habeas corpus application.
[27] Counsel are encouraged to expedite the habeas corpus application. If I can be of any assistance in furthering this, I am available.
J. Ferguson, J.
Released: August 22, 2017
CITATION: Earhart. v. Bath Institution (Warden), 2017 ONSC 4908
COURT FILE NO.: CV-17-580648
DATE: 20170822
ONTARIO
SUPERIOR COURT OF JUSTICE
DONALD EARHART
Moving Party/Applicant
– and –
BATH INSTITUTION (WARDEN), COLLINS BAY INSTITUTION (WARDEN), CORRECTIONAL SERVICE CANADA, MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS and ATTORNEY GENERAL OF CANADA
Responding Parties/Respondents
REASONS FOR JUDGMENT
J. Ferguson, J.
Released: August 22, 2017