Bell v. Canada (Attorney General), 2019 ONSC 540

Court File and Parties

BRACEBRIDGE COURT FILE NO.: CR-18-10-MO DATE: 2019-01-21 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

IAN BELL Applicant

– and –

THE ATTORNEY GENERAL OF CANADA Respondent

Counsel: S. Borys, for the Applicant H. Thompson, for the Respondent

HEARD: December 10, 2018

RULING ON APPLICATION

CASULLO J.:

OVERVIEW

1The Applicant, Ian Bell, seeks a writ of habeas corpus with certiorari in aid thereof, and an order that he be transferred from medium to minimum security unless the Respondent can justify his continued detention in medium security.

BACKGROUND

2Mr. Bell is a federal offender serving an indeterminate sentence for Assault Cause Bodily Harm. This was his second federal sentence – his first was for manslaughter. Mr. Bell was declared a dangerous offender in 2007, in accordance with s. 753 of the Criminal Code of Canada.

3Mr. Bell was assessed as a medium security inmate and approved for placement at Collins Bay Institution. He was voluntarily transferred to medium security at Beaver Creek, formerly known as Fenbrook Institution, two years later in 2009.

4In March of 2016, Mr. Bell applied for a voluntary transfer to minimum security. This necessitated a re-examination of his institutional adjustment, escape risk, and public safety ratings. Pursuant to s. 18 of the Corrections and Condition Release Regulations (“CCRR”), these are the factors which determine an inmate’s security level. (A prior review in August 2014 assessed Mr. Bell as requiring medium security given moderate public safety concerns.)

5While Mr. Bell’s Case Management Team (“CMT”) recommended a reduction in public safety concerns from moderate to low, the Regional Deputy Commissioner (“RDC”) maintained Mr. Bell’s public safety rating at moderate, resulting in a medium security rating under s. 18 of the CCRR. The RDC recommended a series of Escorted Temporary Absences (“ETAs”) to allow Mr. Bell the opportunity to practice program skills.

6In 2018, Mr. Bell submitted a second request to be transferred to minimum security. Pursuant to the Correction Plan he “requested transfer to minimum security and reassessment of his security level to transition to minimum security and once he has established himself for a significant period of time in minimum security he will in concert with CMT and his correctional plan work toward his gradual return to the community.”

7A Security Reclassification Scale assessment was conducted in June 2018, yielding a score of 17.5, which is indicative of medium security, even when factoring in the 5% discretionary range. Despite the 17.5 score, Mr. Bell’s CMT, the Warden and the RDC were all supportive of a minimum security classification.

8However, given Mr. Bell’s dangerous offender status, the Assistant Commissioner, Correctional Operations and Programs (“AC”), is the final decision maker for the reclassification to minimum security. In this instance, the AC recommended continuing on in a cautious matter “that includes a further period of demonstrated stability” before Mr. Bell could be moved to minimum security. The AC was of the view that despite the gains made by Mr. Bell, there was still work to be done. He agreed with the low ratings for institutional adjustment and escape risk but was not prepared to assess Mr. Bell’s public safety rating below moderate. Accordingly, Mr. Bell’s security classification remained at the medium security level.

ISSUES

9The two issues before me are:

a) Whether Mr. Bell has established a deprivation of liberty; and

b) Whether any deprivation is lawful

(a) Deprivation of Liberty

10The Supreme Court of Canada in May v. Ferndale Institution, 2005 SCC 82, outlined the legal test for habeas corpus. To begin, the applicant has the onus of establishing that there was a deprivation of liberty. If a deprivation of liberty is established, then the onus falls to the respondent detaining authority to establish that the deprivation is lawful.

11In R. v. Miller, 1985 CanLII 22 (SCC), [1985] 2 S.C.R. 613 at para. 36, the Supreme Court of Canada outlined the purpose of habeas corpus in an institutional setting:

…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 the mere loss of certain privileges, is more restrictive or severe than the normal one in an institution.

12In Dumas v. Leclerc Institute, [1986] S.C.R. 459, the Court stated at p. 464 that “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 further deprivation of liberty, and the continuation of the deprivation of liberty.”

13The 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. For example, a transfer to a higher security institution.

14In respect of the continuation of the deprivation of liberty, the example provided in Dumas was of an inmate who, upon being granted parole, was not released immediately. In this instance the restriction of liberty would continue unlawfully.

15The Court in Dumas was clear that “the continuation of an initially valid deprivation of liberty can be challenged by way of habeas corpus only if it becomes unlawful.” (p. 464).

16It is under this third rubric that Mr. Bell seeks redress. He submits that the denial of his reclassification from medium to minimum security equates to a continuation of the deprivation of liberty, relying on the following decisions to ground his argument:

• Musitano v. Canada (Attorney General), 2006 CanLII 9151 (ON SC);
• Canada (Attorney General) v. Hollinger, 2007 CanLII 36816 (ON SC);
• R. v. Scarcella, 2009 CarswellOnt 3680 (ON SC);
• Hutchinson v. Canada (Attorney General), 2010 ONSC 535; and
• R. v. Moulton, 2010 ONSC 2448.

17In Robinson v. Attorney General of Canada, 2013 ONSC 7992, Justice Healey of our court dealt with an application on all fours with Mr. Bell’s. She declined to follow the first three decisions noted above:

None of these decisions makes reference to Dumas, and in particular the clear direction set out in Dumas that where there has been no change in the conditions or circumstances of detention, no deprivation of liberty occurs so as to entitle the offender to apply for habeas corpus.

18I echo and apply Justice Healey’s rational in not following Hutchinson and Moulton, as neither decision references Dumas’ clear directive.

19Subsequent to Robinson three further decisions from our court have held that denying an application to lower an inmate’s security classification does not equate to a deprivation of liberty: Ahmad v. Canada (Attorney General), 2015 ONSC 7010; Canada (Attorney General) v. White, 2015 ONSC 6994, Lao v. Canada (Attorney General), 2016 ONSC 1273.

20In Lao, Justice Eberhard rejected an argument similar to Mr. Bell’s: “I do not accept that the Supreme Court intended to include failure to reduce the level of security in the third category of “continuation of a deprivation of liberty”” (para. 5).

21I prefer Ahmad, White, and Lao over the cases submitted by Mr. Bell. As Justice Tranmer held in Ahmad, “I am bound at law by the principles set out in the decision of the Supreme Court of Canada” (para. 17).

22Mr. Bell’s application for habeas corpus is dismissed. The refusal to transfer is not a deprivation of an inmate’s residual liberty. Consequently Mr. Bell cannot establish he has been deprived of his liberty.

23If I am incorrect in this regard, I turn now to the decision of the AC.

(b) Is the Continuing Detention Unlawful?

24The standard of review is reasonableness.

25Mr. Bell submits that the decision to maintain his medium security classification as medium is unreasonable. The Supreme Court of Canada held in Mission Institution v. Khela, 2014 SCC 24, that a transfer decision under the CCRA will be unreasonable if there is no evidence to support the decision, if the decision was based on unreliable or irrelevant evidence, or if the evidence simply cannot support the decision (paras. 73-74).

26Recall that despite the recommendations of the CMT, the Warden, and the RDC that Mr. Bell’s security classification be reduced from medium to minimum, the final decision rested with the AC given Mr. Bell’s dangerous offender status. In arriving at his decision, the AC considered Mr. Bell’s offender history, his most recent psychological risk assessment (October 2017), his file, and the recommendations to reduce his security rating. He ultimately determined Mr. Bell was not yet ready for a minimum security classification:

You are assessed as high risk for violent recidivism within the context of a relationship. You have a significant history of violence and a Dangerous Offender designation. On five separate occasions the PBC [Parole Board of Canada] has denied your release as they believe it would, “result in undue and unmanageable risk to the community, in particular to women.” Based on this, I encourage you to participate in Escorted Temporary Absences, in order to practice your program skills, demonstrate accountability and ability to adapt to new environments and situations over a sustained period of time.

Your security classification is limited to only what is necessary and proportionate to meet the purposes of the Correctional and Conditional Release Act and the Correction and Conditional Release Regulations. This means in balancing the interests of the person affected by a correctional decision, including the safety of the public, you present as a medium security inmate.

27I find the AC’s decision was reasonable, and I accord it the deference it is owed:

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 (Khela, para. 76).

COSTS

28Submissions were made as to costs. In making a costs determination I find guidance in Wood v. Atlantic Institution (Warden), 2014 NBQB 135 at para. 70:

In the end, the just balance is found by imposing more modest cost awards relative to the length of the hearings, the conduct of the party and the merits of the claim that might otherwise be imposed, recognizing an inmate’s special situation.

29Mr. Bell shall pay to the Respondent costs fixed in the amount of $1,000.00 inclusive.