COURT FILE NO.: CR-17-537-MO
DATE: 2018/03/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KEVIN YAWORSKI
Applicant
– and –
THE ATTORNEY GENERAL OF CANADA and THE WARDEN OF JOYCEVILLE INSTITUTION
Respondents
In person
Joanie Roy, for the Respondents
HEARD at Kingston: March 5, 2018
hurley, j.
REASONS FOR DECISION
Introduction
[1] Mr. Yaworski has brought an application for a writ of habeas corpus challenging his security reclassification from minimum to medium and consequent transfer from Joyceville Institution to Collins Bay Institution. He has also delivered a Notice of Constitutional Question alleging that his rights under section 7 of the Charter of Rights were infringed as a result of this decision.
[2] The respondents agree that the reclassification from minimum to medium security resulting in his transfer to Collins Bay constitutes a deprivation of Mr. Yaworski’s residual liberty interest and therefore the first jurisdictional requirement of a habeas corpus application, the deprivation of liberty, is satisfied. This means that the respondents have the onus of establishing that the deprivation of liberty was lawful. They contend that it was. They also say that there was no breach of section 7 in the circumstances.
[3] Both sides filed affidavits. In addition, the respondents filed a sealed affidavit of Security Intelligence Officer Marc Burelle sworn February 16, 2018 pursuant to section 27 (3) of the Corrections and Conditional Release Act, S. C. 1992, c. 20 (“CCRA”) which I reviewed before the hearing.
[4] The hearing took place on March 5, 2018. At the conclusion of it, I dismissed the application with written reasons to follow. I also ordered that the affidavit of Mr. Burelle be resealed pursuant to section 137(2) of the Courts of Justice Act, R. S. O. 1990, Chap. C. 43.
The Facts
[5] Mr. Yaworski is serving a six-year sentence for drug trafficking and firearms offences which commenced October 19, 2016. He is 36 years old and a first time offender. His security level was initially classified as minimum and he was incarcerated at Joyceville Institution.
[6] In March 2017, Mr. Yaworski was approved for a community service escorted temporary absence (“ETA”) and began volunteering at the Habitat for Humanity Re-Store in Kingston.
[7] One of the conditions of the ETA was that he abstain from the purchase or possession of alcohol, non-prescription drugs and tobacco products.
[8] Because tobacco is a prohibited substance at Joyceville, it has a substantial black market value. A single cigarette is currently worth $10. The trade in tobacco presents serious security and safety concerns due to the violence that can arise from the extrajudicial enforcement of debts incurred as a result of the purchase and sale of such contraband.
[9] Mr. Yaworski’s ETA was suspended in June 2017 after SIO Burelle found a pack of cigarettes at the Habitat for Humanity store hidden under a pallet. He had received confidential information that Mr. Yaworski was smoking cigarettes at Joyceville and associating with inmates involved in the tobacco subculture at the prison.
[10] Following an investigation, SIO Burelle concluded that Mr. Yaworski was not implicated in the smuggling of tobacco into Joyceville but he was warned about his consumption of it and his continuing association with members of the tobacco subculture.
[11] His behaviour became a “recorded incident” in Mr. Yaworski’s Security Reclassification Scale ( “SRS”). This is a computer application used by the Correctional Service of Canada (“CSC”) to determine an inmate’s security rating. Mr. Yaworski was advised that any future breaches of institutional rules could lead to the review of his minimum security classification.
[12] In November 2017, Mr. Yaworski was approved for a six-month work release at Mulrooney’s Trucking Limited in Kingston. As part of the approval process, he signed a memorandum of understanding which included, inter alia, a condition that he abstain from the use or possession of alcohol, non-prescribed drugs, narcotics and tobacco products. This condition was also included (as the first one) in the written decision approving his application for a work release. A copy of this decision was given to Mr. Yaworski at or about the same time that he signed the memorandum of understanding.
[13] He started at Mulrooney’s on November 13, 2017. SIO Burelle again received confidential information, this time about Mr. Yaworski’s pending receipt of tobacco at the workplace.
[14] SIO Burelle observed his common law spouse,Marie Mihalakopoulos ,drop off a carton of cigarettes at Mulrooney’s on November 18, 2017. Two days later, he interviewed Mr. Yaworski who admitted that his spouse had brought the cigarettes to the workplace at his request but claimed that they were only for his personal consumption. SIO Burelle did not believe him given the black market value of the carton, which was $2000, and an intercepted telephone conversation between Mr. Yaworski and his spouse in which she complained about her lack of money.
[15] On November 22, 2017, Mr. Yaworski was given three documents entitled “SRS and SRS Functional Specification Version 4.0.3, “Assessment for Decision” and “Notice of Emergency Involuntary Transfer Notice”. These documents set out the reasons for his security reclassification from minimum to medium and his transfer from Joyceville to Collins Bay. He was given the opportunity to controvert them and did so.
[16] The written decision of Acting Warden Coimbra approving the reclassification and transfer, a copy of which was also given to Mr. Yaworski, reads :
As documented in the Notice of Involuntary Transfer and Assessment for Decision, which you received on 2017-11-24, security intelligence information was received from a known reliable source that your C/L wife would be dropping tobacco off to your Work Release location; Mulrooney Trucking Ltd. Based on this information, authorization was approved by the Institutional Head to monitor your telephone communications.
On 2017-11-18, the Security Intelligence Officer (SIO) attended Mulrooney Trucking and observed Ms. Mihalakopoulos drive into the parking lot. He later found that she had dropped off a carton of NEXT cigarettes under two orange pylons (this area had previously been searched and nothing was there). The telephone intercept also confirmed the SIO information and the fact that you were actually on the phone with Ms. Mihalakopoulos when she arrived at Mulrooney Trucking.
In the interview with SIO Burelle on 2017-11-20, you admitted that your C/L wife attended Mulrooney’s and dropped off a carton of cigarettes. You reported that everyone smokes at the work location and that you had started smoking again. You maintained that you were planning to leave the cigarettes at your work location and had no intention of introducing them into the institution. The SIO did not find this story credible and noted that the institutional value for one cigarette is $10; with the total value per carton at $2000.
A multi-disciplinary meeting was held and all present agreed that you were no longer suitable for placement in a minimum-security environment. In consideration of your involvement in subculture activities, it was recommended that you be transferred to medium-security. Your Case Management Team has reviewed your security classification and reassessed you as a medium-security offender with ratings of moderate institutional adjustment, low escape risk and low public safety concerns. The increase in your institutional adjustment is due to the above-noted information. Your public safety and escape risk rating are not viewed as being elevated as a result of your institutional behavior.
As such, you are now considered a medium-security offender with ratings of moderate institutional adjustment, low escape risk and low public safety. I note that your Security Reclassification Scale (SRS) score of 16.5 is minimum security; within the 5% discretionary range for medium security. However, the SRS is an assessment tool and the OSL ratings are considered appropriate in your case.
Classification: Medium.
This decision may be appealed through the inmate grievance procedure within 30 days of receipt of notification. The first level in the grievance procedure in this case is the Commissioner.
[17] Two other factual issues deserve comment. The first is the nature of a minimum security penal institution and the second is the calculation of Mr. Yaworski’s SRS score.
[18] The former is succinctly described in paragraph one of the respondents’ factum:
Minimum security correctional institutions, as their name suggests, have minimum levels of control and surveillance over inmates. Most have no perimeter fences or armed guards. Inmates live in open, house like accommodations. The increased liberties enjoyed in a minimum security correctional institution, however, come with a greater sense of responsibility for inmates and there is little tolerance for deceitful behaviour or breaking institutional rules. This mutual quid pro quo is an important part in the successful reintegration of inmates into the community.
[19] The dispute with respect to the SRS score is the basis of Mr. Yaworski’s constitutional challenge. CSC’s calculation was 16.5 which, according to the SRS, placed Mr. Yaworski within the discretionary range for reclassification from minimum to medium security. Mr. Yaworski submits that the correct number is 15.5 which is within the minimum security classification. The differential is due to the number of “recorded incidents”.
[20] It should be the lower number, Mr. Yaworski argues, because the first allegation of misconduct, when he was volunteering at the Habitat for Humanity store, should not have been treated as a “recorded incident”. The respondents disagree; it is their position that, although Mr. Yaworski was ultimately found not to be involved in a plan to smuggle the tobacco into Joyceville, he contravened the institutional rules by smoking and associating with members of the tobacco subculture and this could be considered a “recorded incident”.
The Law
[21] The relevant statutory provisions are sections 28-30 of the CCRA and 12, 17 and 18 of the Corrections and Conditional Release Regulations, SOR/92 – 620.The CCRA identifies the criteria for placement of inmates, authorizes the transfer of them and imposes a requirement that each inmate be assigned a security classification. The Regulations deal specifically with the reclassification and transfer of prisoners.They read:
- Before the transfer of an inmate pursuant to section 29 of the Act, other than a transfer at the request of the inmate, an institutional head or a staff member designated by the institutional head shall
(a) give the inmate written notice of the proposed transfer, including the reasons for the proposed transfer and the proposed destination;
(b) after giving the inmate a reasonable opportunity to prepare representations with respect to the proposed transfer, meet with the inmate to explain the reasons for the proposed transfer and give the inmate an opportunity to make representations with respect to the proposed transfer in person or, if the inmate prefers, in writing;
(c) forward the inmate’s representations to the Commissioner or to a staff member designated in accordance with paragraph 5(1)(b); and
(d) give the inmate written notice of the final decision respecting the transfer, and the reasons for the decision,
(i) at least two days before the transfer if the final decision is to transfer the inmate, unless the inmate consents to a shorter period; and
(ii) within five working days after the decision if the final decision is not to transfer the inmate.
- The Service shall take the following factors into consideration in determining the security classification to be assigned to an inmate pursuant to section 30 of the Act:
(a) the seriousness of the offence committed by the inmate;
(b) any outstanding charges against the inmate;
(c) the inmate’s performance and behaviour while under sentence;
(d) the inmate’s social, criminal and, if available, young-offender history and any dangerous offender designation under the Criminal Code;
(e) any physical or mental illness or disorder suffered by the inmate;
(f) the inmate’s potential for violent behaviour; and
(g) the inmate’s continued involvement in criminal activities.
- For the purposes of section 30 of the Act, an inmate shall be classified as
(a) maximum security where the inmate is assessed by the Service as
(i) presenting a high probability of escape and a high risk to the safety of the public in the event of escape, or
(ii) requiring a high degree of supervision and control within the penitentiary;
(b) medium security where the inmate is assessed by the Service as
(i) presenting a low to moderate probability of escape and a moderate risk to the safety of the public in the event of escape, or
(ii) requiring a moderate degree of supervision and control within the penitentiary; and
(c) minimum security where the inmate is assessed by the Service as
(i) presenting a low probability of escape and a low risk to the safety of the public in the event of escape, and
(ii) requiring a low degree of supervision and control within the penitentiary.
[22] In Mission Institution v. Khela, 2014 SCC 24, the Court outlined the substantive legal requirements that the respondents must fulfil at paras. 73 – 75:
A transfer decision that does not fall within the “range of possible, acceptable outcomes which are defensible in respect of the facts and law” will be unlawful (Dunsmuir, at para. 47). Similarly, a decision that lacks “justification, transparency and intelligibility” will be unlawful (ibid.). For it to be lawful, the reasons for and record of the decision must “in fact or in principle support the conclusion reached” (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 12, quoting with approval D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304).
As things stand, 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, although I do not foreclose the possibility that it may also be unreasonable on other grounds. Deference will be shown to a determination that evidence is reliable, but the authorities will nonetheless have to explain that determination.
A review to determine whether a decision was reasonable, and therefore lawful, necessarily requires deference (Dunsmuir, at para. 47; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 59; Newfoundland and Labrador Nurses’ Union, at paras. 11-12). An involuntary transfer decision is nonetheless an administrative decision made by a decision maker with expertise in the environment of a particular penitentiary. To apply any standard other than reasonableness in reviewing such a decision could well lead to the micromanagement of prisons by the courts.
[23] On the issue of procedural fairness, the Court stated in May v. Ferndale Institution, 2005 SCC 82 at paras. 77 and 92:
A deprivation of liberty will only be lawful where it is within the jurisdiction of the decision-maker. Absent express provision to the contrary, administrative decisions must be made in accordance with the Charter. Administrative decisions that violate the Charter are null and void for lack of jurisdiction: Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1078. Section 7 of the Charter provides that an individual’s liberty cannot be impinged upon except in accordance with the principles of fundamental justice. Administrative decisions must also be made in accordance with the common law duty of procedural fairness and requisite statutory duties. Transfer decisions engaging inmates’ liberty interest must therefore respect those requirements.
In the administrative context, the duty of procedural fairness generally requires that the decision-maker discloses the information he or she relied upon. The requirement is that the individual must know the case he or she has to meet. If the decision-maker fails to provide sufficient information, his or her decision is void for lack of jurisdiction. As Arbour J. held in Ruby, at para. 40:
As a general rule, a fair hearing must include an opportunity for the parties to know the opposing party’s case so that they may address evidence prejudicial to their case and bring evidence to prove their position . . . .
Disposition
[24] The decision was procedurally fair. The Warden complied with his statutory obligations in respect of the disclosure of information. Mr. Yaworski was given a reasonable opportunity to respond to the information that was being relied upon to support the decision to reclassify and transfer him. He did, in fact, respond.
[25] Having reviewed the sealed affidavit of SIO Burelle, I find that s.27 (3) of the CCRA was properly invoked. The affidavit supports his assessment of the reliability of the information which was disclosed in his public affidavit.
[26] The Warden had the statutory jurisdiction under the CCRA and the Corrections and Conditional Release Regulations to make the decision. It was a reasonable one that met the requirements of “justification, transparency and intelligibility”.
[27] Mr. Yaworski’s main complaint is that he was, in his view, a “model inmate”, without any disciplinary history and there were other, less serious sanctions that could have been imposed for his admitted misconduct. The respondents dispute that he was, asserting that he engaged in a continuing pattern of problematic behaviour during his relatively brief period of incarceration.
[28] There may well have been other measures, instead of a reclassification and transfer, that could have been taken to address his transgressions. But if I was to decide the case on this basis, I would be doing exactly what the Court in Khela directed judges not to do: micromanaging the prison.
[29] Minimum security is just that. Surveillance and monitoring of inmates is less and their autonomy greater both within and without the prison walls. As counsel for the respondents put it during argument, trust is an essential prerequisite for minimum security and Mr. Yaworski, by his duplicitous conduct and manifest disregard for the institutional rules, broke that trust. He will have to earn it back if he wants to return to a minimum security institution.
[30] There is no merit in the constitutional challenge. The CSC’s calculation of the SRS score is likely the correct one but, even if it was not, this was but one factor in the Warden’s decision and I would still find that it was a reasonable one if I accepted Mr. Yaworski’s calculation as the correct one.
[31] The application is dismissed. There will be an order that the affidavit of Mark Burelle sworn February 16, 2018 be treated as confidential, sealed and not form part of the public record pursuant to section 137 (2) of the Courts of Justice Act. Although requested by the respondents, this is not a case for costs.
Hurley, J.
Released: March 13, 2018
Yaworski v. The Attorney General of Canada, 2018 ONSC 1734
ONTARIO
SUPERIOR COURT OF JUSTICE
KEVIN YAWORSKI
– and –
THE ATTORNEY GENERAL OF CANADA and THE WARDEN OF JOYCEVILLE INSTITUTION
REASONS FOR DECISION
Hurley, J.
Released: March 13, 2018