Court File and Parties
COURT FILE NO.: CR-18-70-MO DATE: 2019 May 1 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
TIMOTHY ALLAN WOOD Applicant – and – ATTORNEY GENERAL OF CANADA Respondent
Counsel: Brian A. Callender, for the Applicant Derek Edwards, for the Respondent
HEARD at Kingston: April 18, 2019
BEFORE: Tranmer, J.
Decision on Application for Habeas Corpus
[1] Mr. Wood challenges the decision of the acting Warden of Joyceville Institution (JI) to reclassify him to medium security risk and involuntarily transfer him from a minimum security institution, Joyceville Institution, to a medium security institution, Collins Bay (CBI).
Background Facts
[2] On July 4, 2018, Correctional managers at JI received information from Mr. Wood’s cellmate who is the alleged victim, from 2 other inmate sources and from the inmate committee, that Mr. Wood had threatened and bullied his cellmate and in particular, that Mr. Wood had threatened his cellmate to “slit his throat”, and that the cellmate feared for his life. A representative of the inmate committee had spoken to an unidentified number of the 8 or 9 members of Mr. Wood’s house who confirmed that Mr. Wood had threatened his cellmate on multiple occasions.
[3] Mr. Wood’s parole officer spoke to him on July 4, 2018 and Mr. Wood denied that he threatened or attempted to assault any inmate at JI.
[4] Mr. Wood’s parole officer authored an A4D (Doc. 1) on July 5, 2018 recommending the reclassification and involuntary transfer. This document set out the information that had been received and that it had been received from “further interviews”, “reported that”, “sources” “witnessed by at least two other inmates”, and “the Inmate Committee had met with inmates from the same house and they confirmed that Wood had threatened this other inmate on multiple occasions”. A copy of this A4D was given to Mr. Wood on July 6, 2018.
[5] A notice of emergency involuntary transfer recommendation (Doc. 2) was authored July 5, 2018 and a copy given to Mr. Wood on July 6, 2018. This report set out the information that had been received from believed “reliable source information” concerning the alleged bullying and threatening as was outlined in the A4D. It indicated that prior to Mr. Wood speaking to his parole officer as outlined above, he had spoken twice to CM Melanson and denied that he had verbally or physically threatened the victim and alleged that the victim had made the whole thing up. It stated that the case management team had concluded that Mr. Wood was no longer manageable at JI and recommended that he be involuntarily transferred to a medium security institution.
[6] Mr. Wood made an in person rebuttal on July 9, 2018 in which he denied threatening the victim, but admitted to being frustrated by his snoring and inconsiderate behaviour within the house. Mr. Wood conceded that he had acted aggressively toward the victim on one occasion by stepping toward him quickly. The rebuttal is outlined in the referral decision sheet for offender security level dated July 18, 2018, authored by the acting Warden at JI (Doc. 3).
[7] In the referral decision sheet for institutional transfer involuntary dated July 18, 2018 (Doc. 4), it is stated that in his rebuttal Mr. Wood also said that he told his cellmate that he needed to “learn some respect in this house”. He also indicated that after he had stopped advancing toward the victim, one of their housemates had put a hand on his shoulder.
[8] In both of the latter two documents, the acting Warden characterizes the information received as “believed reliable source information”.
[9] On this application, the respondent filed the affidavit of Sarah Forbes, the Manager, Assessment and Intervention at JI. She was cross-examined on her affidavit. She reported that there was no determination by authorities made of the reliability of the information received from the inmate sources. This was because such assessments of reliability are made by security intelligence officers and there were no such officers at JI. It was the correctional managers who received and considered the information and they do not make assessments of reliability. She testified that the decision to reclassify and transfer was based on several other inmates corroborating what the victim stated and the admissions made by Mr. Wood.
Legal Principles
[10] Of particular relevance to this application are the principles set out in Mission Institution v. Khela, 2014 SCC 24, and in particular, as follows:
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. … 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". …
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. … 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'". … 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 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.
78 …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. 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.
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 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).
[11] Also relevant, are the words of Justice Joyce in Doan v. Matsqui Institution (Warden), 2014 BCSC 2388 at paras. 59 and 60:
59 As the respondents have pointed out in their submissions, Mr. Doan's arguments on this application are the same as those that were presented to and considered by the Acting Warden. I accept the submission of the respondents that Mr. Doan is inviting the Court to reweigh the evidence. However the Court is not entitled to substitute its own findings of fact for those of the Acting Warden. Considerable deference must be given to the decisions of CSC institutional heads regarding matters that are within their jurisdiction and for which they have considerable expertise. As the Court stated in Khela at para. 76:
[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 than a provincial superior court judge.
60 In my view, the reasons for the transfer in this case are apparent from the record. The decision is the result of a rational, logical process in considering the factual circumstances and the decision falls within a range of reasonable acceptable outcomes. It passes the test of reasonableness.
Analysis
No Sealed Affidavit
[12] At the hearing, the respondent sought to file a sealed affidavit purportedly in accordance with para. 87 of Khela. For the brief reasons endorsed on the Application record, I did not permit the affidavit to be filed. The CSC documentation did not state, and therefore did not inform Mr. Wood, that any information had been withheld pursuant to s. 27(3) of the CCRA, or the reason why it was necessary to withhold such information.
No Collusion
[13] During the hearing, the applicant argued that there was no evidence that there had been no collusion between inmate sources A and B. The applicant argued that the explanation given by Ms. Forbes during her cross-examination was patently absurd. I disagree. The explanation given by Ms. Forbes reasonably explains her reasonable belief that the two inmate sources would have had no notice of their separate meetings with authorities or time to collude on the information that they provided to the correctional manager.
Information from the Representative of the Inmate Committee
[14] The applicant argued that there was no evidence that the representative of the inmate committee had in fact spoken to members of the applicant’s house. Ms. Forbes accepted that that had in fact occurred, and so did the acting Warden.
[15] While it would have been preferable, that the information provided by this representative have been set out in more detail for example by indicating how many such members had provided information to the representative and clarifying whether or not inmate sources A and B were or were not the member spoken to, there is no reason for me not to accept that information was received by the representative and provided to CSC authorities.
Mr. Wood’s Rebuttal
[16] The applicant submits that there should have been a more accurate record made by the authorities of the substance of Mr. Wood’s in person rebuttal. He points out that this is all the more important in this case because the respondent relies on admissions alleged to have been made by Mr. Wood in his rebuttal.
[17] It is important to note that during the cross-examination of Ms. Forbes, the admissions attributed to Mr. Wood were not seriously challenged. In his affidavit, Mr. Wood did not deny making such admissions.
[18] Section 12(b) of the CCRR provides that before the transfer of an inmate, the institutional head shall “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”.
[19] Mr. Wood made an in person rebuttal. As I have indicated, the record shows that the authorities relied in part on the admissions alleged to have been made by him in the course of his rebuttal.
[20] It would be preferable that some form of record, be it video/audio recording, audio recording or a witness who took and preserved notes, be made of an in person rebuttal especially where authorities attribute significant admissions against the inmate’s interests.
[21] On the record before me however, I find that the respondent was entitled to rely on the admissions attributed to Mr. Wood.
No Believed Reliable Sources
[22] In my view, this case turns on the critical inconsistency between Ms. Forbes’ testimony during cross-examination that no determination was or could be made of the reliability of the inmate sources relied on by the correctional authorities, and the CSC documents Doc. 2, 3 and 4 claiming that the information relied upon by the authorities came from “believed reliable sources”.
[23] Doc. 1 does not state on its face that the information came from “believed reliable sources”.
[24] As Khela holds, information relied upon must be reliable. Deference will be shown to a determination that the evidence is reliable, but the authorities will nonetheless have to explain that determination. Para. 74. Ms. Forbes testifies that there was no reliability assessment and the documentation does not explain any basis for the stated conclusion of “believed reliable sources”.
[25] In my view, because of this failure and the inconsistency, the record in Mr. Wood’s case does not meet the principles required by Khela.
[26] I reach this decision even though Khela instructs that a review to determine whether a decision was reasonable necessarily requires deference. Khela instructs that an involuntary transfer decision is nonetheless an administrative decision made by a decision-maker with expertise in the environment of a particular penitentiary. I must not re-weigh the decision made by the acting Warden or attempt to micromanage the prison. CSC authorities possess knowledge and practical experience to a far greater degree than does a provincial Superior Court judge. Para. 75 and 76.
[27] However for the reasons stated, I cannot be satisfied that the information relied upon by correctional authorities to reclassify and transfer Mr. Wood was based on reliable source information.
[28] Therefore, the application is granted and the decision to reclassify and transfer must be found to be unlawful.