Court Information

DATE: 20190425 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: SERGE EWONDE Applicant – and – THE ATTORNEY GENERAL OF CANADA Respondent

COUNSEL: J. Todd Sloan, for the Applicant Derek Edwards, for the Respondent

HEARD: April 25, 2019

RULING ON APPLICATION

WOODLEY, J.:

OVERVIEW

[1] The Applicant, Serge Ewonde, seeks an order granting the writ of habeas corpus requiring that he be transferred from Warkworth Institution, being a medium security institution, to Bath Institution, also a medium security institution, or to another similarly designed and organized medium security institution in Ontario.

[2] The Applicant is an inmate at a federal institution. No information was provided regarding either the cause or duration of the Applicant’s incarceration.

[3] On December 19, 2018, the Applicant was involuntarily transferred by the Warden of Bath Institution from Bath Institution to Warkworth Institution.

[4] The Applicant submits that the decision to effect his transfer was based on improper conclusions that the Applicant had repeatedly assaulted another inmate and had otherwise been involved in trafficking drugs and unauthorized items. The Applicant claims that he was not provided with adequate information to contest the decision that led to his transfer — and the transfer was effected unlawfully, both as to its justification and the administrative fairness of the decision-making process.

[5] It is the Applicant’s position that his transfer to Warkworth has resulted in an unlawful restriction of his liberty.

BACKGROUND

[6] Bath Institution and Warkworth Institution are both managed by the Correctional Service of Canada (the “CSC”) pursuant to the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the “CCRA”) and both are medium security institutions.

[7] CSC rates the security of penitentiaries as low, medium, and high security. Each institution managed by CSC is different in both structure and layout. No two institutions are exactly the same, yet each institution has common features with other institutions in the same security level.

[8] Medium security CSC institutions provide inmates with opportunities to demonstrate increased responsibilities and accountability. This supports inmate rehabilitation while the inmates continue to be managed in a controlled environment.

[9] Medium security institutions have an observation area. This is a central area for the Correctional Officers to monitor activity on the range. Officers are not armed, although firearms and/or other devices used to manage a crisis are available under lock and key in specific secure locations.

[10] In most medium security ranges, inmates have access to a common kitchenette which consists of a fridge, microwave, toasters, and freezer. Each range contains washers and dryers for inmates to wash their clothing, and washrooms are also accessible from the range.

[11] Bath Institution features an open campus design and a responsibility based, small group living environment. This means that inmates live in “pods” of bedrooms surrounding a kitchen and living room, purchase their own food, cook meals as individuals or small groups, and have minimal staff intervention or supervision.

[12] The Applicant claims that the facilities and supervision at Bath Institution is “much like the case in minimum security institutions”.

[13] The Respondent submits that Bath Institution is a medium level security penitentiary where the supervision relies heavily on dynamic supervision inside the double-fenced perimeter. The Respondent describes Bath Institution as being a “responsibility based small group living environment. It is a medium security institution, however, inmates must demonstrate over and above their security classification that they must have a capacity to manage their own behavior with minimal staff intervention”.

[14] Warkworth Institution is a standalone medium security facility and features a structured campus design with ranges of cells, common eating areas for the whole institution and, according to the Applicant, “significant supervision and control of inmate movements”. Warkworth has direct cell observation ranges. Inmates at Warkworth Institution must maintain a medium security classification. The Respondent advises that supervision at Warkworth relies heavily on “dynamic supervision inside the fenced perimeter”.

[15] In both Bath and Warkworth, inmates are not allowed to enter each other’s cells and may only gather in common areas; this is a unifying element of all medium security institutions. Inmates must all return to their units for regular security counts to ensure that all are accounted for. At all medium security institutions, inmates’ movements are controlled.

[16] In the present case, the Applicant claims that he was sent from Bath to Warkworth expressly as a means of more closely controlling his movements because staff believed he was not displaying the responsibility associated with open concept medium institutions.

[17] The Applicant claims that the transfer to Warkworth has a negative impact on his liberty interests because of the restrictive effect of the Warkworth living environment, compared to Bath.

[18] The Applicant seeks return to Bath or to another open concept medium security institution with small group units.

[19] The Respondent submits that “except for the privilege of being able to cook their own meals there is no difference in the daily activities of a medium security inmate at Warkworth Institution or Bath Institute”.

[20] The Respondent advises that inmates in federal penitentiaries are given security ratings based on their likelihood to pose a risk to the public, their ability to adjust to the institution, and their risk to escape. The Applicant has a medium security rating and is incarcerated in a medium security institution.

ISSUE TO BE DETERMINED

[21] The sole issue at this time is whether this court has jurisdiction to hear the Applicant’s application for habeas corpus. In other words, has the Applicant suffered a deprivation of liberty? If there is no deprivation of liberty, then the application is at an end.

[22] If there is a deprivation of liberty, the parties will return for the second step to determine whether the Respondent has demonstrated that such deprivation was lawful. If the deprivation was unlawful then habeas corpus may be granted.

THE LAW AND ANALYSIS

[23] The Supreme Court of Canada in May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, and Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 outlined the test to be applied when considering an application for habeas corpus.

[24] In order to be successful, the Applicant must first demonstrate that he suffered a deprivation of liberty.

[25] If the Applicant establishes a deprivation of liberty, the onus then shifts to the Respondent to demonstrate that the deprivation was lawful.

[26] As to what constitutes a deprivation of liberty, the Supreme Court of Canada in Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459, at para. 11, held as follows:

In the context of correctional law, there are three different types of liberty: the initial deprivation of liberty, a substantial change in conditions amounting to a further deprivation of liberty, and a continuation of the deprivation of liberty.

[27] The initial deprivation is the incarceration itself. A further deprivation occurs when an inmate’s residual liberty is reduced by a decision of the prison authorities. The last type of deprivation is continuation of deprivation which may occur where deprivation becomes unlawful, for example where a parolee continues to be incarcerated.

[28] In the present case, the Applicant claims that his transfer from Bath Institution to Warkworth Institution entailed a restriction in liberty sufficient to give rise to habeas corpus jurisdiction.

[29] Although both institutions are designated as medium security, Bath is an open concept or campus institution, with relatively unsupervised pathways and reduced supervision and restrictions on inmate movements, as compared to the traditional medium security “structured” institutions, where corridors of movements are more closely monitored.

[30] The Applicant submits that Bath, with its open concept and small group units, is analogous to the housing and supervision conditions in a minimum security institution, except for the surrounding security fence found in medium security facilities. Warkworth, unlike Bath, has a structured concept and traditional rows of cells with central control of access to cells. Inmates are closely monitored and their movements are controlled; staff frequently intervene with inmates as a matter of dynamic security. Warkworth does not have the same kitchen facilities available as Bath does.

[31] The Applicant refers the court to the criteria for permission to reside in medium security as set out in the Commissioner’s Directive 706 Classification of Institutions and submits that if an inmate is transferred from an institution described at paragraph 10 to an institution described at paragraph 9, this inter-level transfer triggers a loss of residual liberty and the availability of habeas corpus. The relevant paragraphs that apply to medium security institutions are found at paragraphs 8 to 10 inclusive as follows:

Medium Security Institutions – Male Inmates

Security

8. The perimeter of a medium security institution will be well defined, secure and controlled. Inmate movement and association will be regulated and normally monitored. Although firearms will be retained in the institution, they will not normally be deployed inside the perimeter.

Behavior Norms

9. Medium security inmates are expected to: a. interact effectively and responsibly while subject to regular direct/indirect monitoring b. demonstrate an interest and actively participate in their Correctional Plan.

10. To access a medium security institution offering a responsibility-based, small-group living environment, inmates will be expected to demonstrate: a. a capacity to manage responsibility for their own behaviour with minimal staff intervention b. a high level of motivation to participate in their Correctional Plan.

[32] The Applicant submits that an inmate who is housed in a responsibility based institution referenced at paragraph 10 above enjoys facilities more akin to a minimum security institution than a traditional medium security institution.

[33] It is the Applicant’s position that he was sent from Bath to Warkworth expressly as a “means of more closely controlling his movements because staff believed he was not displaying the responsibility associated with open concept institutions”.

[34] The Applicant argues that determining whether residual liberty has been restricted is not a clear determination. More particularly, the Applicant relies upon the Supreme Court of Canada’s decision in R. v. Miller, [1985] 2 S.C.R. 613, at para. 35 as follows:

Confinement in a special handling unit or in administrative segregation … is a form of detention that is distinct and separate from that imposed on the general inmate population. It involves 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 ….I do not say that habeas corpus should lie to challenge any and all conditions of confinement in a penitentiary or prison, including the loss of any privilege enjoyed by the general inmate population. But it should lie in my opinion 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 mere loss of certain privileges, is more restrictive or severe than the normal one in an institution.

[35] The Applicant argues that consideration of what constitutes restriction of residual liberty has been nuanced but tends toward requiring a significant and physical impediment of inmate movement or independence.

[36] The Applicant argues that the transfer is patently more than an inconvenience, a change in privilege, or a change in normal day to day routine. The change in environment is tantamount to an increase in restriction from that of a minimum security facility to that of a traditional medium security institution. It is for this reason, the Applicant argues, that there has been a substantial change in the Applicant’s conditions of incarceration, thereby resulting in a deprivation of residual liberty interest.

[37] It is the Applicant’s position that he had “graduated” from Warkworth to Bath and disputes the need for restriction incident to transfer.

[38] Despite the able submissions of counsel — I cannot accept the Applicant’s argument.

[39] First, the Miller decision does not assist the Applicant.

[40] In Miller, the court spoke of a distinct form of confinement or detention in which the actual physical constraint or deprivation of liberty, as distinct from mere loss of certain privileges, was more restrictive or severe than the normal one in an institution.

[41] Warkworth and Bath are both managed by the CSC pursuant to the CCRA and both are medium security institutions.

[42] Each institution is different in structure and layout yet each has common features with other institutions in the same security level. There is no distinct form of confinement or detention present at Warkworth that is more restrictive or severe than the normal one in another medium security institution.

[43] The Applicant’s complaints relate to his loss of privileges not to confinement or detention that is more restrictive than normal. The Supreme Court in Miller clearly stated that a loss of privileges is not a deprivation of liberty.

[44] The Applicant’s argument that the facilities enjoyed by Bath Institution inmates, a responsibility based small group living environment, are more akin to a minimum security institution than to Warkworth, a traditional medium security institution, misses the point. It is not the difference in the facilities that is important — it is the difference in liberties. The differences in medium security facilities represents differences in privileges not differences in liberties.

[45] The Commissioner’s Directive 706 Classification of Institutions does not create a separate security classification within medium security institutions. The security measures are the same for both traditional institutions and responsibility based institutions.

[46] Despite any similarities in layout, the Applicant was not residing at a minimum security institution. Similar to Dumas, the Applicant cannot claim that his transfer from Bath to Warkworth was unlawful as the move was lateral.

[47] In other words, the Applicant while residing at Bath had not acquired minimum security classification. As such, he cannot claim a loss of residual liberty to challenge a transfer between medium security institutions as any loss was a loss of privileges and not residual liberty.

[48] Similar to Storry v. Canada (Warden, William Head Institution) and Dodd v. Warden of Isabel McNeill House, aff’d 2008 ONCA 654, I find that the transfer from one medium level institution to another does not constitute a deprivation of residual liberty. There are minimal differences in the facilities without a marked departure from the CSC guidelines for the treatment and housing of like prisoners.

[49] As noted by the Court of Appeal for Ontario in Dodd, an applicant who is lawfully in custody and who is seeking relief by way of habeas corpus from an order transferring that applicant to another institution must demonstrate that the transfer would amount to a substantial change in the applicant’s conditions of incarceration, thereby resulting in a deprivation of a residual liberty interest. Psychological impact such as added perimeter security that enhances the sense that one is in prison does not affect any residual liberty interests in the relevant sense. Further, added security also does not mean that the prisoners are any more or less confined than at the previous prison. Finally, subjective concerns regarding restriction of movements also cannot in and of themselves rise to the level of establishing a liberty deprivation sufficient to invoke habeas corpus relief.

[50] In my view, there is no deprivation of any liberty interest flowing from the transfer of the Applicant. It follows that the application for habeas corpus must fail. The application is dismissed.

[51] As for the Respondent’s request for costs, although the Respondent has been successful, there is no evidence that the Applicant has the ability to pay which is an important consideration in assessing costs: see Muir v. Canada (Attorney General), 2015 ONSC 3593 and Thompson v. Canada (Attorney General), 2018 ONSC 6484. In the circumstances, there shall be no order as to costs of this application.

WOODLEY, J. Released: April 25, 2019

DATE: 20190425 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: SERGE EWONDE Applicant – and – THE ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT Justice Woodley Released: April 25, 2019