COURT FILE NO.: CR-18-86-MO DATE: 2019 Apr 01

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHEL LARABIE Applicant – and – ATTORNEY GENERAL OF CANADA Respondent

COUNSEL: J. Dillon, for the Applicant E. Skowron, for the Respondent

HEARD at Kingston: March 20, 2019

Tranmer, J.

decision on application for habeas corpus

1In these proceedings, Mr. Larabie challenges the decision of the Warden of Collins Bay institution, where he was being held in medium security, to reclassify him as maximum security and to involuntarily transfer him from medium security to maximum security at Millhaven institution.

2The applicant is a 48 year old aboriginal person serving a life sentence of imprisonment in federal custody.

The Issues

3It is common ground that the decision to increase the applicant’s security level and the decision to transfer to maximum security constitutes a deprivation of his liberty.

4The onus is on the respondent to satisfy the court that these decisions were lawful.

5The applicant submits that the decision were not lawful, firstly, because the decisions were unreasonable, and secondly, because the decisions were procedurally unfair in that he was not provided with all of the information required by law and further, that the information that was withheld from him purportedly on the basis of s. 27(3) of the CCRA was not warranted under that section and was not lawfully gisted for him under CD 701, para. 8.

6Briefly, on the first issue, the Warden based the decision to reclassify and transfer on several sources and items of information that the applicant was involved in the bringing of illegal drugs into the institution and distributing them within the institution. Illegal drugs within the institution threaten the security within the institution and the lives of inmates and staff. At the relevant time, there was a serious crisis within Collins Bay institution arising from drugs within the institution and overdoses. The applicant and his wife filed affidavits in these proceedings denying involvement in this drug culture and activity. The applicant referred to the institutional records indicating that the applicant was making good progress. They submit that the information relied upon by the Warden was insufficient and unreliable and therefore, make the decision an unreasonable one.

7On the second issue, the applicant submits that he was not provided with all of the disclosure required by law and that information was improperly withheld from him and that some information provided to him was improperly gisted. On this point, the respondent filed a public affidavit from Linda Coletta, a security intelligence officer at Collins Bay institution, as well as her sealed affidavit pursuant to the decision in Mission Institution v. Khela, 2014 SCC 24, para. 87.

1. Procedural Fairness

The Law

8Section 27 of the CCRA provides as follows,

Information to be given to offenders

27. (1) Where an offender is entitled by this Part or the regulations to make representations in relation to a decision to be taken by the Service about the offender, the person or body that is to take the decision shall, subject to subsection (3), give the offender, a reasonable period before the decision is to be taken, all the information to be considered in the taking of the decision or a summary of that information.

Idem

(2) Where an offender is entitled by this Part or the regulations to be given reasons for a decision taken by the Service about the offender, the person or body that takes the decision shall, subject to subsection (3), give the offender, forthwith after the decision is taken, all the information that was considered in the taking of the decision or a summary of that information.

Exceptions

(3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosure of information under subsection (1) or (2) would jeopardize

(a) the safety of any person, (b) the security of a penitentiary, or (c) the conduct of any lawful investigation,

the Commissioner may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified in paragraph (a), (b) or (c).

9The Supreme Court of Canada in Khela stated the principle of procedural fairness as follows:

81 … if the Commissioner or a designated staff member determines that an inmate must be transferred immediately on an emergency and involuntary basis, the inmate is nonetheless entitled to make representations regarding the transfer. Section 27(1) of the CCRA provides that where an inmate is entitled by the regulations to make such representations, the decision maker must give him or her "all the information" to be considered in taking a final decision regarding the transfer, subject only to s. 27(3). Even inmates transferred on an emergency and involuntary basis are therefore entitled to all the information considered in the Warden's decision-making process, or a summary thereof, except where s. 27(3) applies. The requirement that the inmate be provided with "all the information" can be satisfied by providing him or her with a summary of the information.

82 … Section 27 of the CCRA guides the decision maker and elaborates on the resulting procedural rights (May, at para. 94). In order to guarantee fairness in the process leading up to a transfer decision, s. 27(1) provides that the inmate should be given all the information that was considered in the taking of the decision, or a summary of that information. This disclosure must be made within a reasonable time before the final decision is made. The onus is on the decision maker to show that s. 27(1) was complied with.

83 This disclosure is not tantamount to the disclosure required by R. v. Stinchcombe, 1991 SCC 45, [1991] 3 S.C.R. 326. … In this context, the inmate's residual liberty is at stake, but his or her innocence is not in issue. Stinchcombe requires that the Crown disclose all relevant information, including "not only that which the Crown intends to introduce into evidence, but also that which it does not" (p. 343). Section 27 does not require the authorities to produce evidence in their possession that was not taken into account in the transfer decision; they are only required to disclose the evidence that was considered. Further, whereas Stinchcombe requires the Crown to disclose all relevant information, s. 27 of the CCRA provides that a summary of that information will suffice.

84 The statutory scheme allows for some exemptions from the onerous disclosure requirement [page540] of s. 27(1) and (2). Section 27(3) provides that where the Commissioner has reasonable grounds to believe that disclosure of information under s. 27(1) or (2) would jeopardize (a) the safety of any person, (b) the security of a penitentiary, or (c) the conduct of a lawful investigation, he or she may authorize the withholding from the inmate of as much information as is strictly necessary in order to protect the interest that would be jeopardized.

85 A decision to withhold information pursuant to s. 27(3) is necessarily reviewable by way of an application for habeas corpus. Such a decision is not independent of the transfer decision made under s. 29. Rather, s. 27 serves as a statutory guide to procedural protections that have been adopted to ensure that decisions under s. 29 and other provisions are taken fairly. When a transfer decision is made under s. 29 and an inmate is entitled to make representations pursuant to the CCRR, s. 27 is engaged and decisions made under it are reviewable. If the correctional authorities failed to comply with s. 27 as a whole, a reviewing court may find that the transfer decision was procedurally unfair, and the deprivation of the inmate's liberty will not be lawful. This is certainly a "legitimate ground" upon which an inmate may apply for habeas corpus.

86 Habeas corpus is structured in such a way that so long as the inmate has raised a legitimate ground upon which to question the legality of the deprivation, the onus is on the authorities to justify the lawfulness of the detention (May, at para. 71). If the Commissioner, or a representative of the Commissioner, chooses to withhold information from the inmate on the basis of s. 27(3), the onus is on the decision maker to invoke the provision and prove that there were reasonable grounds to believe that disclosure of that information would jeopardize one of the listed interests.

87 Where, pursuant to s. 27(3), the correctional authorities do not disclose to the inmate all the information considered in their transfer decision or [page541] a summary thereof, they should generally, if challenged on an application for habeas corpus, submit to the judge of the reviewing court a sealed affidavit that contains both the information that has been withheld from the inmate compared with the information that was disclosed and the reasons why disclosure of that information might jeopardize the security of the penitentiary, the safety of any person or the conduct of a lawful investigation.

88 When the prison authorities rely on kites or anonymous tips to justify a transfer, they should also explain in the sealed affidavit why those tips are considered to be reliable. When liberty interests are at stake, procedural fairness also includes measures to verify the evidence being relied upon. If an individual is to suffer a form of deprivation of liberty, "procedural fairness includes a procedure for verifying the evidence adduced against him or her" (Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326, at para. 56).

89 Section 27(3) authorizes the withholding of information when the Commissioner has "reasonable grounds to believe" that should the information be released, it might threaten the security of the prison, the safety of any person or the conduct of an investigation. The Commissioner, or his or her representative, is in the best position to determine whether such a risk could in fact materialize. As a result, the Commissioner, or the warden, is entitled to a margin of deference on this point. Similarly, the warden and the Commissioner are in the best position to determine whether a given source or informant is reliable. Some deference is accordingly owed on this point as well. If, however, certain information is withheld without invoking s. 27(3), deference will not be warranted, and the decision will be procedurally unfair and therefore unlawful.

10Commissioner’s Directive 701, para. 8, is also relevant to this issue,

8. The gist must provide the relevant facts, including:

a. the dates and places of specific incidents b. the matter in which these became known to the authorities c. any other evidence supporting the intelligence information.

11The information that was provided to Mr. Larabie in advance of the final decisions was contained in the following documents:

1. A4D dated May 24, 2018
2. SRS dated May 24, 2018
3. Notice of Involuntary Transfer dated May 25, 2018
4. Addendum to A4D dated June 1, 2018

12The latter document states that it is the gist of information not disclosed under s. 27(3) CCRA and states the reason why the information was withheld, namely, the safety of persons in the institution.

13I have opened the sealed affidavit and reviewed it carefully in accordance with and for the purposes directed by the Supreme Court of Canada in Khela. I have carefully compared the information that was disclosed to the Applicant to that contained in the sealed affidavit. I have now resealed the sealed affidavit.

14My review of the contents of the sealed affidavit satisfy me that it contains both the information that has been withheld from the inmate compared with the information that was disclosed and it sets out why disclosure of that information might jeopardize the safety of any person or the security of the penitentiary. Prison authorities are in the best position to determine whether such a risk could in fact materialize. This determination is entitled to a margin of deference. Based on the contents of the sealed affidavit, prison authorities have satisfied me that there was good reason for the belief that disclosure of the withheld information might jeopardize the interests identified in s. 27(3).

15The sealed affidavit also describes the level of reliability assigned to the information received from confidential sources, why that level of reliability was assessed in respect of each item of information and what steps were taken to verify the information being relied upon. Deference is owed to those prison authorities who are in the best position to determine whether a given source or informant is reliable and to what extent.

16Furthermore, I am satisfied that prison authorities withheld only as much information as was strictly necessary to protect the interests identified in s. 27(3)(a).

17It is important to remember that Khela holds that the Warden and the Commissioner are in the best position to determine whether a given source or informant is reliable. Their decisions in that regard are owed deference. Furthermore, Khela holds that the Commissioner or his or her representative is in the best position to determine whether a risk could in fact materialize should an informant be identified. Deference is owed to such decisions as well. There is evidence in the record before me sufficient to conclude that inmates are capable of piecing together seemingly insignificant bits of information sufficient to permit them to identify, either, rightly or wrongly, a confidential source. There is no doubt that when a confidential source is identified in the prison setting that person’s safety and as well others linked to the source, such as family on the outside, are at high risk as is the security of the institution. Khela makes it clear that the details as to why a given level of reliability is assessed for a piece of information, is to be done within the sealed affidavit. Para. 88, Khela.

18The applicant was also given copies of the Observation Reports which he attached as Ex. D to his affidavit.

19With the disclosed information, the applicant filed his rebuttal letter on June 18, 2018. He also met with SIO on June 18, 2018. On June 21, 2018, he made verbal representations.

20The Final Decision on Security Level is dated June 25, 2018. The Final Decision on transfer was made June 26, 2018.

21Mr. Larabie’s written and oral rebuttals were considered as was his aboriginal background and his positive progress in the institution.

22I am satisfied that the disclosure given to the Applicant enabled him to fully know and address the case he had to meet.

23The Respondent has proven that it has strictly complied with the disclosure obligations imposed on it by law, that it strictly complied with the provisions of s. 27 CCRA, including ss. 3, that it fully complied with the principles of procedural fairness set out in Khela, and that there was no breach of procedural fairness in this case.

24I find that prison authorities complied with the duty of procedural fairness to the standard of correctness.

25I order that the sealed affidavit, now re-sealed by me, remain sealed unless otherwise ordered by a court of competent jurisdiction.

26I am also satisfied that the gist provided to Mr. Larabie, by way of the Addendum to the A4D meets the requirements of CD 701, para. 8, bearing in mind the deference owed to the prison authorities with respect to steps necessary to protect the safety of informants.

2. Reasonableness

The Law

27The decision in Khela sets out the law for the consideration of reasonableness on an application for habeas corpus:

72 The above reasoning leads to the conclusion that an inmate may challenge the reasonableness of his or her deprivation of liberty by means of an application for habeas corpus. Ultimately, then, where a deprivation of liberty results from a federal administrative decision, that decision can be subject to either of two forms of review, and the inmate may choose the forum he or she prefers. An inmate can choose either to challenge the reasonableness of the decision by applying for judicial review under s. 18 of the FCA or to have the decision reviewed for reasonableness by means of an application for habeas corpus. "Reasonableness" is therefore a "legitimate ground" upon which to question the legality of a deprivation of liberty in an application for habeas corpus.

73 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' [page536] 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).

74 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.

75 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.

76 Like the decision at issue in Lake, a transfer decision requires a "fact-driven inquiry involving the weighing of various factors and possessing a 'negligible legal dimension'" (Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at paras. 38 and 41). The statute outlines a number of factors to which a warden must adhere when transferring an inmate: the inmate must be placed in the least restrictive environment that will still assure the safety of the public, penitentiary staff and other inmates, should have access to his or her home community, and should be transferred to a compatible cultural and linguistic environment (s. 28, CCRA). Determining whether an inmate poses a threat to [page537] 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 than a provincial superior court judge.

77 The intervener the BCCLA argues that the application of a standard of review of reasonableness should not change the basic structure or benefits of the writ. I agree. First, the traditional onuses associated with the writ will remain unchanged. Once the inmate has demonstrated that there was a deprivation of liberty and casts doubt on the reasonableness of the deprivation, the onus shifts to the respondent authorities to prove that the transfer was reasonable in light of all the circumstances.

78 Second, the writ remains non-discretionary as far as the decision to review the case is concerned. If the applicant raises a legitimate doubt as to the reasonableness of the detention, the provincial superior court judge is required to examine the substance of the decision and determine whether the evidence presented by the detaining authorities is reliable and supports their decision. Unlike the Federal Court in the context of an application for judicial review, a provincial superior court hearing a habeas corpus application has no inherent discretion to refuse to review the case (see Farbey, Sharpe and Atrill, at pp. 52-56). However, a residual discretion will come into play at the second stage of the habeas corpus proceeding, at which the judge, after reviewing the record, must decide whether to discharge the applicant.

28The record in this case satisfies me that the decision to reclassify and transfer involuntarily to maximum security was a reasonable one.

29The applicant’s position seeks to have me micromanage the prison and, in effect, seeks to have me weigh the facts and factors favouring the decision as against those Mr. Larabie says supports his position, which include the denials by him and his wife, the results of Ms. Larabie’s voluntary polygraph test and his positive progress in his Correctional Plan.

30The prison authorities have that expertise. I do not. Deference is owed to the experts.

31The Warden’s letter of April 25, 2018 to Ms. Larabie is not inconsistent with the information relied upon as the basis for the decisions, including the positive Ion scans, and drugs found in the possession of two inmates.

32I agree with the Respondent that the reclassification and transfer to maximum security falls within the range of possible, acceptable outcomes and is justified, transparent and intelligible. The record supports the decision. It cannot be said that there was an absence of evidence or that the decision was made on the basis of unreliable or irrelevant evidence or evidence that cannot support the conclusion. The record supports a conclusion that the Warden properly considered the factors set out in the CCRR for security classification decisions, and further that he considered the Applicant's rebuttal and that there was no less restrictive environment than maximum security manages security needs.

33The Warden possesses the necessary knowledge to determine whether an inmate poses a threat to the security of the penitentiary or of the individuals who live and work in it. He possesses the intimate knowledge about the penitentiary's culture and of the behaviour of the individuals inside its walls. He has the necessary related practical experience. I have examined the substance of the warden's decision and determined that the evidence considered by the Warden in arriving at the decision is reliable to the standard necessary, relevant and supports the decision.

34The Respondent has proven that the transfer was reasonable and therefore lawful, in light of all of the circumstances.

DECISION

35For these reasons, this application for habeas corpus is dismissed. The sealed affidavit shall remain sealed unless otherwise ordered by a court of competent jurisdiction.

36I make no Order as to costs, which were claimed by the Respondent.

Honourable Justice Gary W. Tranmer

Released: April 1, 2019

COURT FILE NO.: CR-18-86-MO DATE: 2019 Apr 01 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: MICHEL LARABIE Applicant – and – ATTORNEY GENERAL OF CANADA Respondent habeas corpus dECISION Tranmer J.