COURT FILE NO.: CR-18-00000203-0000MO DATE: 20181129 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DONALD EARHART Applicant – and – THE ATTORNEY GENERAL OF CANADA Respondent

Counsel: Simon Wallace, for the Applicant Derek Edwards, for the Respondent

HEARD: November 15, 2018

HOOD, J.

Habeas Corpus Decision

Nature of Application

[1] Mr. Earhart is currently serving a life sentence for first degree murder. His sentence commenced on March 18, 2008. On May 26, 2018 he was serving his sentence at Bath Institution, a medium security facility. On May 28, 2018 he was involuntarily transferred to Millhaven Institution, a maximum security facility on an emergency basis.

[2] On July 9, 2018 the warden of Bath Institution rendered a decision increasing Mr. Earhart’s security classification to maximum. Because of this he was no longer eligible to return to Bath Institution.

[3] On July 9, 2018 the warden of Bath Institution, in accordance with Mr. Earhart’s security re-classification, rendered a decision authorizing Mr. Earhart’s transfer to Millhaven Institution.

[4] The respondent has brought this application seeking a writ of habeas corpus with certiorari in aid ordering his return to medium security unless the respondent, on behalf of the Correctional Service of Canada (“CSC”) can justify his continued detention in maximum security. The applicant acknowledges that if the order is granted this return could be to any medium security facility and not necessarily Bath Institution.

Issue

[5] The respondent, hereinafter noted as CSC, accepts that for the purpose of this application transferring Mr. Earhart from Bath Institution to Millhaven Institution, namely from a medium security institution to a maximum security institution, constitutes a deprivation of Mr. Earhart’s liberty thereby engaging a consideration of habeas corpus.

[6] 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 authorities to show that the deprivation of liberty was lawful: Mission Institution v. Khela, 2014 SCC 24, at para. 30.

[7] To be lawful the deprivation of liberty must be made within the jurisdiction of the decision-maker and in a procedurally fair manner. If the decision-maker fails to provide information sufficient to allow an offender to know the case they have to meet to challenge a deprivation of liberty, the decision will be void for lack of jurisdiction: May v. Ferndale Institution, 2005 SCC 82, at para. 77 and 92.

Position of Parties

[8] Although two decisions were made – firstly, the increase in Mr. Earhart’s classification and then the transfer, the material relied upon for both was the same, as the transfer decision was inevitable following the classification decision. Accordingly, the two decisions were argued before me as one.

[9] Mr. Earhart argues that the process was unfair because the warden made overly broad and sweeping privilege claims with respect to the evidence and she failed to consider exculpatory evidence. He further argues that she relied upon one single piece of evidence as the foundation of her decision without any explanation so that he was unable to understand the case against him and was unable to respond. This he argues was also unfair. Moreover, because there was no logical reasoning chain the warden’s decision was unreasonable.

[10] CSC argues that the disclosure was sufficient despite the privilege claims, Mr. Earhart knew the case against him, and he had the opportunity to answer the case which he did through a number of submissions. While the warden’s reasons may not be perfect they were clear and her ultimate decision was a result that was within the realm of possible outcomes. Being an administrative decision the warden’s decision is entitled to deference.

Decision

[11] For the following reasons the application is dismissed.

Analysis

[12] On May 27, 2018 an inmate at Bath Institution contacted security staff advising that he had been assaulted by Mr. Earhart on May 25, 2018. Mr. Earhart was placed in voluntary lockup while CSC investigated. During the course of CSC’s initial investigation into the first assault a second inmate said that he had been assaulted by Mr. Earhart on May 26, 2018.

[13] CSC determined during the course of this initial investigation that there were reasonable grounds to conclude Mr. Earhart had committed these two assaults, his security classification should be increased to maximum and that as a result he be transferred to Millhaven Institution, the only viable maximum security institution in Ontario.

[14] On May 29, 2018 Security Intelligence Officer Stratford conducted an investigation and prepared a summary of this investigation or gist to CSC which gist was included in the Assessment for Decision dated May 29, 2018 whereby Mr. Earhart’s security classification was increased to maximum. As part of the process, Mr. Earhart was interviewed by his parole officer. He denied committing any assaults.

[15] Also, as disclosed in the Assessment for Decision, not only were the two alleged assaults considered, Mr. Earhart’s criminal history, institutional adjustment and history at various institutions including his interaction with staff and other inmates, and his involvement in various programs were also considered. The Assessment for Decision is detailed and consists of 25 pages of text, along with a four page addendum.

[16] The Assessment for Decision was provided to Mr. Earhart on May 30, 2018 along with a Notice of Involuntary transfer which in effect provided a synopsis of the Assessment for Decision and the steps taken by CSC in concluding that Mr. Earhart’s security classification should be increased.

[17] Mr. Earhart provided a twenty-one page handwritten rebuttal on June 4, 2018. On June 10, 2018 his counsel provided a five page opinion letter to Legal Aid Ontario concluding that the increase to Mr. Earhart’s security classification was unlawful. Mr. Earhart provided this letter to CSC as part of his ongoing rebuttal. On June 20, 2018 Security Intelligence Officer Stratford prepared Memo #21, which was 13 pages in length. It summarized his investigation and the investigations of others into the two alleged assaults along with a summary or gist of his follow-up interviews with those individuals pointed out by Mr. Earhart as being able to provide him with exculpatory testimony along with his review of any possible CCTV footage. Memo #21 was given to Mr. Earhart.

[18] On June 28, 2018 Mr. Earhart provided a second rebuttal. This one was again handwritten and consisted of 12 pages. In it Mr. Earhart, among other things, complained of the CSC investigation and the information provided to him. He suggested others to be interviewed, commented on the lack of appropriate exculpatory CCTV footage and critiqued the stories given by others. On June 28, 2018 the warden had a meeting with Mr. Earhart where he provided a verbal rebuttal to his increased security classification and transfer.

[19] On July 5, 2018 SIO Stratford prepared Memo #22, which was 2½ pages in length and responded to some of the matters raised in Mr. Earhart’s second rebuttal.

[20] In my view, the process was procedurally fair. Mr. Earhart was aware of the case he had to meet and was given opportunities to respond both in writing and in person. He took advantage of these opportunities by providing two lengthy written submissions, a letter from his lawyer and having a meeting with the warden, the ultimate decision-maker.

[21] While some specific information was withheld from Mr. Earhart, such as the CCTV footage itself and specifics of some of SIO Stratford’s investigations this was done pursuant to s. 27(3) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“the Act”). Under s. 27(3) of the Act the Commissioner, or his or her representative, may withhold information if they have reasonable grounds to believe that disclosure of information would jeopardize the safety of any person or the security of a penitentiary. They are in the best position to determine whether a risk could in fact materialize to the security of the prison or to any person through the release of information. As a result the warden is entitled to a margin of deference on this: Khela, ibid, at para. 89.

[22] In any event, Mr. Earhart was provided with a gist in Memo #21 of what was withheld so as to enable him to respond. He was also provided with a gist of the other concerns with his prison behavior based upon his security file history as set out in Memo #21 at pages 12 and 13. I have reviewed the confidential affidavit of Ms. Shkwarek and Exhibits B and E to J inclusive upon which the gist of the two altercations was based and the gist of this prison behavior was based. The gists given are in my view more than adequate in order to allow Mr. Earhart to know what was alleged against him and for him to respond.

[23] I have also reviewed the CCTV footage which was withheld from Mr. Earhart for general prison security reasons, namely, the position of the CCTV blind spots. While it appeared to me that Tracey carried his shirt and belt in his right hand as opposed to his left, the balance of the description as contained in Memo #21 at page 5 and summarized in the warden’s decision is reasonable when compared against the CCTV footage. Mr. Earhart, despite not seeing the actual video, was able to respond to it.

[24] Mr. Earhart knew who made the accusations against him, had full particulars of the accusations and the supporting evidence, and was in a position to be able to fully respond to the accusations.

[25] Similarly Mr. Earhart argues that the decision of the warden is unfair because only one part of the information which she reviewed was categorized as Believed Reliability, and only in relation to the first assault. The balance of the information in relation to the first assault and all the information in relation to the second assault was categorized as either Unknown Reliability or Doubtful Reliability. With only one part being categorized as Believed Reliability Mr. Earhart argues that there was insufficient evidence for the warden to make the decision that she did.

[26] I do not accept Mr. Earhart’s argument. The warden’s decision does not rely solely on the information categorized as Believed Reliability. Memo #21, which the warden reviewed in coming to her decision, sets out what is considered reliable and the level of reliability. Not everything is categorized. Not all of the information is either of Unknown or Doubtful Reliability. The warden in her decision set out what evidence she relied upon in coming to her decision. Mr. Earhart was unable to show any authority to support the proposition that she was restricted to considering only information of Believed Reliability. Even if he had such authority the information of Believed Reliability, as set out in Memo #21, supported the first assault and, as acknowledged by Mr. Earhart in argument before me, a finding that Mr. Earhart committed the first assault was enough for his increased security classification even if the second assault was rejected by the warden. It is for the warden to weigh all the evidence in the exercise of her discretion. The warden is entitled to deference on the issue of determining whether a given source is reliable: Khela, ibid, para 89.

[27] Mr. Earhart makes a similar argument in saying that the warden’s decision is unreasonable because there was no logical reasoning chain in how she came to the conclusion that Mr. Earhart assaulted two inmates. However, she did state how she reached this conclusion. She relied on the statements from the two victims, the fact they both had injuries and Mr. Earhart’s intricate and convoluted explanation with respect to victim 1 and Mr. Earhart’s changing story with respect to victim 2.

[28] Moreover, her decision to approve Mr. Earhart’s increased classification to maximum also relied, not just on the two assaults, but also on his pattern of behavior in the institution, his failure to meet the behavioural norms expected of inmates at medium security, his breach of trust history, his dismal supervision record, his pattern of impulsivity and his most recent Psychological Risk Assessment. The warden concluded that Mr. Earhart had a need for a highly structured environment where he would be subject to direct and constant supervision such as that provided in maximum security. This could not be provided at Bath Institution but could be provided at Millhaven Institution.

[29] The conclusion reached by the warden was within her jurisdiction and area of expertise. It is entitled to deference. As stated in Khela at para 76:

[A] transfer decision requires a “fact-driven inquiry involving the weighing of various factors and possessing a ‘negligible legal dimension’”...Determining whether an inmate poses a threat to the security of the penitentiary or of the individuals who live and work in it requires intimate knowledge of that penitentiary’s culture and of the behaviour of the individuals inside its walls. Wardens and the Commissioner possess this knowledge, and related practical experience, to a greater degree that a provincial superior court judge.”

[30] In my view Mr. Earhart was provided with more than enough information as to why his classification had been increased, he participated in the process, was given the opportunity to respond with written material, was able to suggest lines of inquiry and investigation, and was given a hearing before the warden. The fact that he disagrees with the decision ultimately reached by the warden does not make the decision unfair. The CSC has shown that the decision was lawful, it was carried out in a procedurally fair manner, and the decision falls within a range of reasonable possible and acceptable outcomes.

[31] The application is dismissed. In its material CSC asks for costs. If it is still seeking costs it is to provide its costs submissions which are to consist of no more than two typed double spaced pages along with Bill of Costs and any authorities on or before December 10, 2018 to my attention at Judges Administration, Room 170, 361 University Avenue. The applicant’s submissions, subject to the same directions, are to be provided on or before December 20, 2018. There are to be no reply submissions.

[32] 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.

HOOD J. Date: November 29, 2018

COURT FILE NOS.: CR-18-00000203-0000MO DATE: 20181129 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: DONALD EARHART Applicant – and – THE ATTORNEY GENERAL OF CANADA Respondent Habeas Corpus Decision

HOOD J. Released: November 29, 2018