HABEAS CORPUS DECISION

COURT FILE NO.: CR-18-65-00MO DATE: 2018 Oct 16 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JOSH BARRIERA Applicant – and – ATTORNEY GENERAL OF CANADA Respondent

J. Todd Sloan, for the Applicant Charles Maher, for the Respondent

HEARD: October 3, 4, 2018 at Kingston MACLEOD-BELIVEAU j.

[1] The applicant, Josh Barriera, seeks an order for habeas corpus with respect to his imprisonment in segregation at Millhaven maximum security institution and his impending involuntary transfer to Atlantic maximum security institution resulting from his segregation, such that he be placed back into the general population at Millhaven Institution.

[2] Specifically, the applicant seeks an order granting the writ of habeas corpus with certiorari in aid; an order that the decision of the Warden of Millhaven Institution segregating and if applicable, transferring the applicant on an emergency basis be quashed; and an order that the applicant be returned to the general population of Millhaven Institution.

[3] The respondent seeks that the application for habeas corpus be dismissed and for an order for costs associated with responding to the application.

[4] The same background facts apply to the applicant’s initial placement in segregation at Millhaven on July 12, 2018 and his impending involuntary transfer to Atlantic effective August 27, 2018. The applicant’s status in segregation changed from involuntary to voluntary on August 27, 2018 as a result of the Acting Warden’s decision to transfer him to Atlantic on that date. But for this application for habeas corpus, and the agreement of counsel, the applicant would have been transferred to Atlantic in September of 2018. The applicant seeks to rely on the same facts to challenge the decision of initially placing him in segregation in the first place on July 12, 2018, as the basis for challenging the Acting Warden’s decision of his impending transfer from Millhaven to Atlantic. I find that the transfer to Atlantic is the main reason for this court application for habeas corpus.

The Issues:

[5] The issues in this case are:

1. Does the applicant’s current voluntary placement in segregation at Millhaven, pending his transfer to Atlantic, attract this Court’s habeas corpus jurisdiction?
2. Alternatively, if the court does have jurisdiction, is the lateral transfer from Millhaven, a maximum security institution to Atlantic, another maximum institution, a deprivation of liberty of the applicant, and is it reasonable and lawful?

Decision:

[6] The application for habeas corpus and other relief sought by the applicant are dismissed.

The Position of the Applicant, Mr. Barriera:

[7] The applicant’s position is that his placement in segregation on July 12, 2018 caused him an increased deprivation of his liberty and that it matters not that his status in segregation changed from involuntary to voluntary as of August 27, 2018. He argues that his initial placement in segregation was unlawful and as the factual background for that decision and the subsequent decision of his lateral transfer to Atlantic are the same, that he can argue that habeas corpus is still the appropriate remedy for him to pursue in this court.

[8] The applicant argues several procedural and substantive breaches of the Corrections and Conditional Release Act (CCRA). The applicant argues that there is no justification for his lateral transfer to Atlantic and that the breaches of s. 28 of the CCRA make his segregation illegal. The applicant argues that given that his placement in segregation was illegal, then a decision to transfer him to another maximum security institution outside Ontario will not be required or necessary, and is therefore also illegal.

[9] The applicant seeks an order requiring Millhaven to release and return him to the general population at Millhaven.

The Position of the Respondent, the Attorney General of Canada:

[10] The respondent’s position is that the decision to place the applicant in segregation, pending his transfer, does not attract this court’s habeas corpus jurisdiction. The applicant has voluntarily remained in segregation since August 27, 2018 to oppose his proposed transfer to Atlantic. The respondent’s position is that habeas corpus is a focused remedy that is not intended to be used to challenge decisions of this nature. Further, the respondent submits that the applicant is not without a remedy and that the proper forum to challenge this decision is though judicial review before the Federal Court.

[11] Alternatively, the respondent argues that even if the proposed transfer could be said to constitute a deprivation of liberty, it is nevertheless reasonable and lawful. The respondent has clearly explained why it intends to transfer the applicant to Atlantic. The applicant has engaged in a pattern of conduct that makes him unmanageable at Millhaven. The decision to transfer him was procedurally fair. The applicant was provided with a comprehensive summary of the security intelligence information forming the basis of the decision. The applicant knew the case he had to meet.

Background Facts:

[12] The applicant is a 30 year old inmate at Millhaven maximum security institution currently serving a life sentence for first degree murder that he committed on November 30, 2013. At age 18, the applicant received his first federal sentence imposed for possession of cocaine for the purpose of trafficking, possession of a restricted weapon, and failure to comply with the conditions of his recognizance. The applicant was subsequently convicted of several other offences. The applicant’s sentence for first degree murder commenced on May 31, 2017. He began serving his sentence at Millhaven, where he was classified as a maximum security integrated inmate.

[13] The applicant was placed in administrative segregation at Millhaven on July 12, 2018 as it had come to the attention of the attention of the Security Intelligence Division at Millhaven that the applicant may have been the source of disruptive activities on the range causing unrest among other inmates. The applicant had also been named as a conspirator to recent assaults and contraband activities and had made threats to staff which led to a formal investigation by the Security Intelligence Division at Millhaven. The institution’s concerns relate to not one incident, but a pattern of conduct by the applicant, such that they have determined that he is no longer manageable within the Millhaven institutional environment. The only option was then for Millhaven to consider a transfer to another maximum security integrated institution.

[14] The applicant, as an integrated inmate, cannot be placed in a non-integrated institution. There are no other maximum security institutions in Ontario that can accommodate the applicant, and therefore Millhaven determined an interregional transfer would be required.

[15] On July 30, 2018 the applicant’s parole officer met with the applicant to discuss the information and allegations and the applicant was told a Gist was being prepared. A Gist is a summary of protected information prepared and given to the applicant pursuant to the CCRA to provide the applicant with sufficient details to enable him to respond meaningfully to the assertions being made against him. The applicant stated that he did not want to go to Kent Institution in British Columbia and that he would prefer Atlantic Institution in New Brunswick.

[16] On August 7, 2018, Atlantic confirmed that they were capable of accommodating the applicant.

[17] On August 8, 2018, the Security Intelligence Division at Millhaven completed its investigation. The applicant was advised of the decision that he be transferred to Atlantic in New Brunswick, maintaining his maximum security classification. The applicant was given his Notice of Involuntary Transfer which included the completed Action for Decision together with the Gist as required. The applicant objected to the insufficiency of the Gist provided and wanted copies of intercepted communications and productions of other materials relied upon by the Security Intelligence Division at Millhaven for their investigation, which was denied by Millhaven.

[18] On August 13, 2018, the applicant provided a verbal rebuttal to the temporary replacement for the Acting Warden at Millhaven.

[19] On August 14, 2018, the applicant enquired about the possibility of being transferred to the Quebec region. After the Quebec region was consulted, no institution in Quebec could accommodate the applicant’s needs.

[20] On August 14, 2018 the Acting Warden, who had returned, was fully briefed on the matter and reviewed the notes taken by staff during the applicant’s verbal rebuttal.

[21] On August 16, 2018, the Manager of Assessment Intervention at Millhaven, who is a member of the applicant’s case management team, and who was present throughout the process including the verbal rebuttal by the applicant, recommended to the Acting Warden that the applicant be transferred to Atlantic.

[22] On August 22, 2018, the applicant stated he no longer wanted to be transferred to Atlantic due to safety concerns, but the applicant could not provide any details of any incompatibles at Atlantic.

[23] On August 27, 2018, the Acting Warden approved the applicant’s transfer to Atlantic. The applicant was scheduled to be transferred to Atlantic in September of 2018.

[24] On August 8, 2018, the applicant commenced his notice of application for habeas corpus in court returnable on August 31, 2018 in the Superior Court in Kingston. The application record was filed in court on August 31, 2018 before Tranmer, J. The court dates of October 3 at 2:00 pm and October 4 at 2:00 pm were set which is when the matter was argued before me.

[25] On August 31, 2018, counsel advised that they agreed before Justice Tranmer that the applicant would remain voluntarily in segregation at Millhaven pending the determination of this Application by the court. If the applicant had not agreed to voluntarily remain in segregation, his transfer to Atlantic as approved by the Acting Warden, would have been implemented immediately. Justice Tranmer endorsed on the Application Record that the applicant was entitled to be present for his hearing before me. The respondent’s record and case briefs were filed September 28, 2018 together with the sealed affidavit of Millhaven’s Security Intelligence Officer, which is not accessible by the public or by the applicant which expands the details of the Gist provided to the applicant for the benefit of the court. The information was withheld pursuant to s. 27 (3)(a) of the CCRA for security reasons due to safety concerns of other inmates.

Analysis:

[26] I agree with the submissions of the respondent. At this time, the only reason the applicant remains in administrative segregation at Millhaven is because he is opposing his interregional transfer through this application for habeas corpus and has voluntarily agreed to stay in administrative segregation pending the court’s decision. Had he already been transferred, he would by now have been re-integrated into a maximum security institution’s general population at Atlantic.

[27] I agree that the transfer to Atlantic is intended to release the applicant from segregation in accordance with the CCRA which requires Millhaven to do so at the earliest appropriate opportunity. The evidentiary record before me, including the sealed affidavit filed, does not raise any concerns about the reasonableness or procedural fairness of Millhaven’s actions or decisions.

[28] The respondent acknowledges that placement in administrative segregation usually amounts to a deprivation of liberty, but these are not the facts of this case. The only reason the applicant remains in administrative segregation, which I find is as of August 27, 2018, and is on a voluntary basis, is because of the pending court decision and pending his interregional transfer to Atlantic. Once the decision of the acting Warden was made on August 27, 2018, the applicant’s status in segregation I find changed from involuntary to voluntary. Contrary to the position of the applicant, I further agree with the respondent, that the fact that the applicant was placed in administrative segregation on July 12, 2018 does not provide this court with the jurisdiction to inquire into the lawfulness of the decision to transfer the applicant from Millhaven to Atlantic.

[29] His current placement in segregation I find is clearly voluntary. It is well established law that habeas corpus only applies to detentions that are imposed by state action. The detention and deprivation of liberty must be involuntary and against the detained person’s will. This is not the case of the applicant.

[30] I find that the applicant is therefore voluntarily in administrative segregation at the time of this hearing and the court lacks jurisdiction to make any order of habeas corpus in these circumstances. There is no deprivation of his liberty in relation to his current placement in administrative segregation.

[31] I find that the applicant’s placement in segregation cannot be used to review the validity of the proposed transfer to Atlantic. All a Superior Court in a habeas corpus application can do is determine whether or not a detention is unlawful or not. If the detention is unlawful, then the court can order the release or discharge of an applicant from the unlawful detention. The remedy available to the applicant if he was unlawfully detained in segregation would be to obtain an order that he be released from segregation. There is no jurisdiction for the court to specifically order the release of the applicant from administrative segregation into Millhaven’s general population. There is further no jurisdiction for the court to order an inmate be transferred to a particular institution on an application for habeas corpus.

[32] This court has repeatedly held that that transfer of an inmate between maximum security institutions is a lateral transfer which does not amount to a deprivation of liberty engaging the court’s habeas corpus jurisdiction. This was re-affirmed in Mission Institution v. Khela, 2014 SCC 24. I am also not persuaded that a lateral transfer will deprive an inmate of any substantial right or opportunity to exercise that right. (See Johnston v. Attorney General of Canada, File 16-0491-00M0, ONSC, April 20, 2018, Mew, J.).

[33] I agree with the submissions of the respondent that the applicant has failed to establish any deprivation of his liberty. Without any deprivation of liberty, this court has no jurisdiction to make the orders sought by way of habeas corpus.

[34] The application for habeas corpus and other relief sought are dismissed. No order as to costs.

[35] I have re-sealed the sealed affidavit and I order that it is to remain sealed, unless otherwise ordered by this court, or other court of competent jurisdiction.

Honourable Madam Justice Helen MacLeod-Beliveau Released: October 16, 2018