CITATION: Little v. Canada (Attorney General), 2017 ONSC 6282
COURT FILE NO.: CR-17-233-MO
DATE: 2017 Oct 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GARY LITTLE
Applicant
– and –
THE ATTORNEY GENERAL OF CANADA and WARDEN OF BATH INSTITUTION
Respondents
Applicant, appearing in person
M. Parker, for the Respondents
HEARD at Kingston: 21 September 2017
TRANMER J.
HABEAS CORPUS DECISION
Nature of the Application
[1] Mr. Little brings this Application for habeas corpus with certiorari in aid to challenge the decision of the respondents to emergency involuntarily transfer him from medium security Bath Institution to medium security Collins Bay Institution. He also submits that the transfer violates his section 7 rights under the Charter.
Background
[2] Mr. Little has been designated as a dangerous offender and is serving an indeterminate sentence, imposed upon him on appeal on July 27, 2007. (R. v. Little, 2007 ONCA 548). His index offences relate to an incident with an ex-girlfriend following his release from Joyceville Institution in 2001. He had been incarcerated at Joyceville as a result of convictions for aggravated assault and obstruct justice involving the ex-girlfriend. Following his release from Joyceville, he immediately contacted the ex-girlfriend and began pursuing her romantically. He was convicted of assault with a weapon, possession of a weapon x2, uttering threats, mischief, forcible entry, and break enter and commit.
[3] The transfer which he challenges was decided upon after Bath Institution authorities received information that he was involved in an inappropriate, romantic, consensual and physical relationship with the prison chaplain. He had been employed in the chapel. The information included that he and the chaplain had been locked together in the chapel on occasions. The prison chaplain admitted to the relationship and was discharged from her duties. Although he denied the relationship to prison authorities, Mr. Little, during his submissions in court before me, admitted to the relationship.
[4] The public affidavit, commencing at paragraph 51, of Security Intelligence Officer Denton sets out in detail why this conduct gave rise to concerns about safety and security of inmates, staff and the institution which existed despite the fact that the chaplain was relieved of her duties at the institution. In the Addendum to the Assessment for Decision dated May 10, 2017, the Acting Warden at Bath Institution said, “you can no longer be managed within the medium security, responsibility based environment of Bath Institution. Your behaviour reflects the need for more “regular direct/indirect monitoring” as per CD706”. In the Assessment for Decision dated May 3, 2017, prison authorities stated “…he requires enhanced monitoring not available within the open access environment at Bath Institution”.
The Law
[5] The Supreme Court of Canada in Mission Institution v. Khela 2014 SCC 24, para. 30, states the relevant legal principles on an application for habeas corpus. First, the applicant must establish that he or she has been deprived of liberty. Once the 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 authorities to show that the deprivation of liberty was lawful.
The Issue
[6] In my opinion, this Application fails on the first ground, namely the applicant has not established that he has been deprived of liberty within the meaning of the governing legal authorities.
[7] The applicant has provided no evidence on the record as to increased restrictions on his liberty other than answers to a couple of questions asked of him by the court.
[8] The public affidavit of Ms. Denton sets out in paragraph 63 that the applicant had demonstrated by his conduct a need for greater supervision and monitoring. His behaviour was not consistent with the expectations for living at Bath Institution, where inmates need to demonstrate a capacity to responsibly manage their own behaviour with minimal staff intervention.
[9] Ms. Denton’s public affidavit describes the security classification of CSC Institutions. She specifically describes medium security institutions and states that they “all offer comparable programming and other activities, including recreation, educational programs, healthcare, spiritual activities and employment”. She describes static security and dynamic security measures in detail. She describes responsibility based living environments such as at Bath Institution and clustered medium security units as at Collins Bay Institution. Her sworn evidence is that the medium security risk is managed differently in the two institutions.
[10] Commissioner's Directive 706 sets out the security parameters for Collins Bay and for Bath. They are similar. The Commissioner's directive also sets out the behavioural norms for inmates.
The Law
[11] In Dumas v. Leclerc Institute, 1986 CanLII 38 (SCC), [1986] 2 S.C.R. 459, the Court identified three different types of deprivation of liberty, which occur in the prison setting, the initial deprivation of liberty, a substantial change in conditions amounting to a further deprivation of liberty and the continuation of the deprivation of liberty. Mr. Little alleges a substantial change in conditions amounting to a further deprivation of liberty resulting from the transfer.
[12] In R. v. Miller, 1985 CanLII 22 (SCC), [1985] 2 S.C.R. 613, the Court held that “confinement in a special handling unit, or in administrative segregation as in Cardinal, is a form of detention that is distinct and separate from that imposed on the general inmate population. It involved a significant reduction in the residual liberty of the inmate. It is in fact a new detention of the inmate purporting to rest on its own foundation of legal authority. It is that particular form of detention or deprivation of liberty which is the object of the challenge by habeas corpus” … “it should lie to challenge the validity of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from the mere loss of privileges, is more restrictive or severe than the normal one in an institution”.
[13] In Debrocke v. Attorney General of Canada (8 October 2015), Kingston, Ontario, Superior Court of Justice, this court reaffirmed the Dumas principle that deprivation of liberty must be a substantial change in condition. This court cited May v. Ferndale Institution, [2005] SCC 82, “the words ‘substantial change’ in the condition of an inmate involves a significant reduction in residual liberty, such as an increase in the applicant’s security classification or a transfer to a special handling unit”. That case involved a transfer from a maximum security penitentiary in Quebec to another maximum security penitentiary in Ontario. The court considered that a lateral transfer. One maximum “institution may run its day-to-day operations in a slightly different fashion” as compared to another maximum institution, yet there was no change in the applicant's security classification or transfer to a higher, more restrictive security facility.
[14] This court must not micromanage prison facilities and further, precedent dictates that this court cannot direct as to which institution prison authorities are to incarcerate an inmate, within the same security classification. (Samaniego v. Canada (Attorney General), 2015 ONSC 6790).
[15] The Court of Appeal upheld a decision of Scott J. where female inmates classified as minimum-security had been incarcerated at a minimum security facility in Kingston, but were transferred to another minimum-security facility, which also had separate housing for medium and maximum-security prisoners. Justice Scott found that there were differences between the facilities, but that those differences were minimal and did not constitute a marked departure from the guidelines, which are to be followed by CSC in the treatment and housing of female prisoners. Dodd v. Warden of Isabel McNeill House, 2008 CanLII 17569 (ONSC); 2008 ONCA 654.
[16] Storry v. Canada (Warden, William Head Institution) (22 July 1996), Vancouver, CFN: CC960379 (BCSC), is another case where the applicant was transferred from a medium security institution to another medium security institution in British Columbia. The court denied his application holding that “the petitioner here must satisfy the court that there has been a significant reduction in the residual liberty which is distinct and separate from that imposed on the general inmate population and that the deprivation of liberty is distinct from the mere loss of certain privileges and is inherently more restrictive or severe than the normal one in an institution or of conditions applying to the general inmate population”. The court noted “there will invariably be some advantages and disadvantages in placement in any particular facility. That is part of the classification and transfer and decision-making process. But the court’s ability to interfere with the decisions of correctional authorities is limited to those instances where there has been a significant change in circumstances resulting in a reduction in residual liberty and in this case that has not occurred”.
[17] The public affidavit of S.I.O. Denton describes that in the Bath Institution responsibility-based living environment, there is comparatively less surveillance. “This does not mean that inmates …(at Bath)… are subject to less security, but rather that security is managed differently with greater emphasis on inmate cooperation and the collection of information rather than constantly monitoring inmate activities through direct surveillance and confining inmates to certain areas”. (para. 25)
[18] At Bath, Mr. Little was housed in Unit 4 of 5 Units. Ms. Denton describes Unit 4 in para. 34, as follows:
Unit 4 at Bath is a single building set up as pods. Within each pod, eight inmates share a kitchen, common living area and washrooms. The main doors to each pod can be locked down by CSC staff in an emergency situation, but inmates inside the pod can still access their cells and common areas. There is no ability to lock down the individual cells within the pod. As in Unit 3, there is a lower level of staff presence in Unit 4 as compared to Units 1 and 2. There is an open control post facing the entry to all the pods and a closed off security office behind the control post.
[19] Ms. Denton describes Collins Bay Medium in her affidavit as follows:
CBI is a clustered federal penitentiary with minimum, medium and maximum security units located in Kingston, Ontario and administered by CSC. I am familiar with CBI as a result of my past work at the institution, my interactions with staff there, and my visits to the institution.
CBI Medium is a part of CBI and is comprised of four inmate-occupied living units (Units 6, 7, 8 and 9) and one segregation unit (Unit 5). Units 1, 2, 3 and 4 have all been closed. Unit 9 of CBI Medium is generally understood to offer a responsibility-based living environment, while the remaining medium security living units do not. (Mr. Little is residing in Unit 6.)
I am informed by Elizabeth McGregor, a Parole Officer (“PO”) at CBI Medium, that inmates in Unit 9 reside in twelve pods which resemble a dormitory. The unit is tired with six pods on each level. Each pod contains cells and a shared kitchen, living area and washroom. Inmates access their pod with a key card and can open and close their cell doors on their own. Officers are stationed at an open control post in front of the pods.
The other four living units at CBI Medium are not generally understood to offer a responsibility-based living environment.
I am informed by PO McGregor that these living units are all considered open concept because there are no barriers at the end of ranges that allow staff to isolate and contain inmates on a range, and because officers are stationed in an open control post accessible to inmates when they are not secured in their cells rather than an enclosed office. The units, however, vary in their set-up and organization. For example, Unit 6 is a tiered range with two levels and four wings. There is an open control post at the front of the unit. Each wing has its own kitchenette and seating area. The cell doors lock when they are closed and can be opened from the control post using a touch screen or with a key held by staff.
When inmates are transferred to CBI Medium, they are transferred to CBI Medium as a whole, not to the individual living units within CBI Medium. Upon arrival, inmates are assessed by staff at CBI Medium to determine the living unit in which they should reside. I am informed by PO McGregor that inmates may be placed in Unit 9 on arrival or at some later time during their residence at CBI Medium.
[20] On the record before me, the applicant has failed to meet the onus upon him to establish a significant reduction in his residual liberty as required by the authorities that I have cited.
[21] For these reasons, his Application under s. 7 of the Charter fails also.
[22] In view of my decision on the first prong of the test in this habeas corpus Application, it is not necessary for me to deal with the issues as to whether the respondent has met its onus of establishing that the decision and transfer were lawful, including its disclosure obligations and on the basis of reasonableness. It is also unnecessary for me to consider the sealed affidavit filed by the respondent. It remains sealed.
[23] This Application is dismissed.
Honourable Mr. Justice Gary W. Tranmer
Released: October 11, 2017
CITATION: Little v. Canada (Attorney General), 2017 ONSC 6282
COURT FILE NO.: CR-17-2733-MO
DATE: 2017 Oct 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GARY LITTLE
Applicant
– and –
THE ATTORNEY GENERAL OF CANADA and WARDEN OF BATH INSTITUTION
Respondents
Habeas corpus decision
Tranmer J.
Released: October 11, 2017