Court File and Parties

COURT FILE NO.: CR-20-017-00MO DATE: March 1, 2021

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THESHANTH THAVAKULARATNAM Applicant – and – THE ATTORNEY GENERAL OF CANADA Respondent

Counsel: Kate Mitchell and Simon Borys, for the Applicant Taylor Andreas, for the Respondent

HEARD: February 12, 2021

MUSZYNSKI J.

HABEAS CORPUS DECISION

[1] The subject application for habeas corpus with certiorari in aid is brought by a federal inmate, Theshanth Thavakularatnam (the “Applicant”). The Applicant challenges his reclassification from medium security to maximum security and his involuntary transfer from Bath Institution to Millhaven Institution that occurred as a result of his security reclassification.

[2] The Respondent, the Attorney General of Canada (the “Respondent”), opposes the relief sought by the Applicant and seeks an order dismissing the application with costs.

ISSUES

[3] The issues in this application are:

a. Has the Applicant shown that there has been a deprivation of his liberty as a result of his reclassification and transfer? b. If so, has the Respondent established the lawfulness of that deprivation of liberty?

RESULT

[4] I find that the decision by the Correctional Service of Canada (“CSC”) to reclassify the Applicant from medium to maximum security and the associated institutional transfer to have been reasonable, the process procedurally fair, and therefore lawful. The application is dismissed.

POSITION OF THE PARTIES

[5] The parties agree that the reclassification from medium to maximum security and the resulting involuntary transfer of the Applicant constitutes a deprivation of liberty.

[6] The parties differ as to whether the decision was lawful, specifically, whether it was reasonable and whether the process of coming to the decision was done in a manner that was procedurally fair.

[7] The Applicant takes the position that the decision to reclassify him was unreasonable because the decision was based on unproven allegations that the Applicant arranged for contraband to be imported into the institution. The Applicant further states that other misconduct relied upon by CSC to justify his reclassification were dated and therefore should not be given significant weight. The Applicant also submits that the process was procedurally unfair because the Warden did not adequately consider the Applicant’s written rebuttal. While the Applicant originally alleged that he was denied procedural fairness by being deprived of information, that allegation was withdrawn at the hearing.

[8] The Respondent’s position is that the decision to reclassify and transfer the Applicant was justified by the record and therefore reasonable. The Respondent also states that the process was fair and, specifically, that the Applicant’s written rebuttal was given due consideration.

BACKGROUND FACTS

[9] The Applicant is serving a 3 year, 9 month and 29 day sentence for Possession of Firearm Knowing Possession is Unauthorized, Possession of Prohibited or Restricted Firearm with Ammunition, Armed Robbery and Aggravated Assault.

[10] The Applicant began serving his sentence on April 17, 2018 at Beaver Creek Institution - medium security.

[11] On July 19, 2019, the Applicant was transferred to Bath Institution - medium security, due to issues of incompatibility at Beaver Creek Institution. The Applicant’s transfer from Beaver Creek Institution to Bath Institution is not contested.

[12] The Applicant was released on day parole on August 20, 2019. Day parole was suspended on March 2, 2020 after the Applicant pushed a 14-year old boy at a basketball game. Credit card information belonging to someone other than the Applicant and rap lyrics suggesting continued involvement with his Security Threat Group (“STG”), the “Hood Hustle” gang, were also found in his room at a Community Residential Facility.

[13] The Applicant was recommitted to federal custody at Bath Institution - medium security, and the Parole Board of Canada ultimately revoked his parole.

[14] On May 12, 2020, a large quantity of contraband was discovered inside a television mailed to the Applicant. The contraband consisted of fentanyl, crystal meth, THC products and cell phones.

[15] The discovery of the contraband triggered an Assessment for Decision (“A4D”) completed on May 14, 2020 by the Applicant’s Case Management Team (“CMT”), which include the Applicant’s Parole Officer, a Manager of Assessment Intervention and a Correctional Officer. The A4D reported a Security Reclassification Scale score of 22.5 for the Applicant. While a score of 22.5 is indicative of medium security classification, the A4D recommended raising the Applicant’s institutional adjustment rating from moderate to high. This had the effect of reclassifying the Applicant from medium security to maximum security due to the conclusion that the Applicant needed constant and direct supervision. The following factors were noted in the A4D:

a. The Applicant incurred four misconducts in provincial custody; b. The Applicant was transferred from Beaver Creek Institution to Bath Institution due to incompatibles; c. A television was mailed to the Applicant, with the return address of his family, which contained narcotics and cell phones; d. The Applicant assaulted a minor while on day parole; e. Credit card information (not belonging to him) was found in the Applicant’s room while on day parole; f. Rap lyrics found in the Applicant’s room while on day parole suggested that he has continued involvement with his STG; g. The Applicant had a serious institutional charge for a positive urinalysis test for THC on November 20, 2018; and h. The Applicant had a minor institutional charge on August 22, 2019 for being in another inmate’s cell when he was not supposed to be there.

[16] The CMT’s recommendations were provided to the Warden who ultimately approved the Applicant’s reclassification and transfer on or around June 9, 2020. The following information was referenced as the rationale for the reclassification and transfer:

a. The Applicant demonstrated major difficulties causing moderate institutional adjustment problems, which requires a highly structured environment. b. The contents seized within the television sent to the Applicant “had a quantity of drugs, including fentanyl, crystal meth and THC products as well as cell phones.” c. With respect to the discovery of the contraband in the television, “…the police were notified and an on-going investigation continues.” d. “There continues to be moderate indicators of escape risk.” e. The Applicant’s “criminal history includes violent offences and there continues to be indicators of moderate risk to public safety. He has been identified as a member of a security threat group. Despite program completion, there was only marginal gains noted.” f. “He has not demonstrated the behavioural norms expected of inmates accessing a responsibility-based, small-group living environment.” g. The Applicant “requires a highly structured environment subject to constant and direct supervision.” h. “There are no listed incompatibles, security intelligence concerns or physical and mental health concerns that would preclude transfer.”

[17] With respect to process, the Warden specifically mentions the following in the final decision to reclassify the Applicant and transfer him to Millhaven Institution:

a. The Applicant was served with the Notice of Involuntary Transfer Recommendation and the A4D on May 14, 2020. b. The Applicant was advised of his right to retain counsel and advised of his right to provide representations regarding the proposed transfer in person. c. The Applicant noted that he did wish to make representations with respect to his proposed transfer. d. The Applicant was interviewed on May 5, 2020. e. The Applicant provided a written rebuttal which was reviewed. f. With respect to the television incident, the Applicant “claimed no knowledge of the contents within the television, claiming he was forced by another inmate to have the television sent in.” g. “Having considered the totality of the information, including the corresponding Assessment for Decision, written and verbal rebuttal, THAVAKULARATNAM has been classified as Maximum Security.”

ANALYSIS

[18] The parties have agreed that the reclassification and transfer of the Applicant in this case constitutes a deprivation of liberty. The onus therefore shifts to the Respondent to demonstrate that the decision was lawful in the circumstances.

[19] The Applicant’s main arguments are that the decision to reclassify and transfer the Applicant was unlawful because the decision was both unreasonable and procedurally unfair.

Reasonableness of Decision

[20] In Mission Institution v. Khela, 2014 SCC 24 [Khela], the Supreme Court of Canada confirmed that the reasonableness of a decision to transfer an inmate should be regarded “as one element of lawfulness”. [Khela at para 65].

[21] Khela goes on to state: “…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…” [Khela at para 74].

[22] With respect to whether the decision to reclassify and transfer the Applicant was reasonable, the parties agree that the standard of review is reasonableness and requires deference. Khela emphasizes the importance of 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. [Khela at para 75].

[23] The Applicant states, and the fact is, that his reclassification and transfer followed the discovery of contraband in the television mailed to him.

[24] The Applicant submits that there was insufficient evidence to conclude that he was involved in the importation of contraband. If the Applicant cannot be linked to the contraband, then the Applicant submits that it was inappropriate for CSC to rely on his old misconducts and the suspension of his day parole to support his reclassification and transfer as these prior issues were known to CSC and had not resulted in a maximum security classification previously.

[25] With respect to the television incident, the evidence of the Respondent is that:

a. A package was received at Bath Institution addressed to the Applicant containing a television and other personal effects. b. The Security Intelligence Office confirmed that a quantity of drugs, including fentanyl, crystal meth and cannabis products and cell phones had been discovered inside the television. c. The institutional value of these items would exceed $50,000.00. d. The “discovery of drugs and contraband cell phones concealed in the package addressed to the Applicant was a major source of concern for the Institution, as the illicit trafficking in these items can jeopardize the security and safety of CSC institution.” e. The return address on the package containing the television was the Applicant’s family.

[26] In his written rebuttal, the Applicant concedes that he agreed to have the television sent to him. However, he claims that he only agreed after being pressured by another inmate. He denied knowing that there was contraband in the television.

[27] In the A4D, it is noted that, in the context of programming provided by CSC (April 23, 2019), the Applicant acknowledged the impact of negative associates in his life and said: “I did anything they asked in order to be accepted by them.” The A4D also says that the Applicant “continues to gravitate” towards these negative associations, including individuals who are heavily entranced in the subculture at Bath Institution.

[28] The ultimate decision by the Warden to reclassify and transfer the Applicant does not rest on the conclusion that the Applicant was the mastermind of the plan to import contraband into the institution. It merely states that the Applicant was involved. By the Applicant’s own admission, he was involved in the television incident in some fashion.

[29] I accept the submission of the Respondent that there is no obligation on CSC to prove an inmate’s guilt beyond a reasonable doubt before a reclassification or transfer decision is made. In Gallant v. Canada (Deputy Commissioner, Corrections Service), [1989] 3 FC 329 at para 28, the Federal Court of Appeal confirmed that all that is required is the existence of information “sufficient to raise a valid concern and warrant the transfer.”

[30] I find that it was reasonable for CSC to conduct a review of the Applicant’s security classification following the television incident, despite a fulsome investigation not having been completed. CSC had sufficient information of the Applicant’s involvement.

[31] While the television incident may have been the catalyst to review the Applicant’s security classification, the Respondent states that it was only one factor considered by CSC. Specifically, the Respondent submits that the television incident pointed to a continued pattern of conduct and confirmed “that he was no longer manageable in a responsibility-based medium-security setting”.

[32] I find that it was reasonable and appropriate for CSC to review the Applicant’s case in a holistic manner. I accept the Respondent’s submission that the Applicant’s prior misconducts, institutional charges, and behaviour while on parole were all relevant to the analysis. I specifically reject the Applicant’s submission that since the prior issues had not previously resulted in a maximum security classification, there was no basis for their consideration following the television incident.

[33] I find the concerns raised by CSC regarding the Applicant’s pattern of conduct, the resulting recommendation that the Applicant be given a high institutional adjustment rating, and the conclusion that the Applicant be reclassified as maximum security and transferred due to the fact that he could no longer be managed in Bath Institution all to be reasonable.

[34] Under the reasonableness analysis, the Applicant also submits that the court should have regard to the Supreme Court of Canada decision of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov]. Specifically, the Applicant highlights the need for sufficient reasons to demonstrate that the decision was justified, transparent and intelligible. [Vavilov at para 86].

[35] In this case, the Applicant submits that the Warden’s decision was not justified, transparent or intelligible. In particular, the Applicant states that the final decision was only a few paragraphs and ultimately concludes that there is an “on-going pattern of subculture and security threat group involvement, paralleling community conduct as outlined in the corresponding Assessment for Decision report.” The Applicant alleges that the Warden fails to identify the conduct that establishes this “pattern”. I reject the Applicant’s submission in this regard.

[36] The Warden’s decision refers to, and relies upon, the information contained in the A4D. The A4D sets out the Applicant’s continued gravitation to negative associates, the previous institutional charges, the circumstances that resulted in his revocation of parole, as well as the television incident. I accept that this conduct establishes a pattern.

[37] The Applicant further states that the Warden’s decision does not specifically address why the Applicant’s explanation about the television incident contained in his written rebuttal was not accepted. Whether the Applicant knowingly imported contraband into the institution was not a factor relied upon by the Warden. The Applicant knowingly agreed to let another inmate send him the television. The Applicant now admits that he should have known it was filled with contraband and that it was a poor decision. The Warden’s decision relies on the fact that the Applicant was involved in the television incident generally, which he was.

[38] I find that the decision of the Warden to reclassify the Applicant as maximum security and transfer him to Millhaven Institution, when “read in light of the record and with due sensitivity to the administrative regime” was founded on a rational chain of analysis, was intelligible and clear, and was therefore reasonable. [Vavilov at para 103].

Procedural Fairness

[39] On the issue of procedural fairness, while the Applicant’s written material focused on the alleged non-disclosure of information by CSC, that allegation was abandoned at the hearing of the application. There is no question that CSC complied with its disclosure obligations and provided the Applicant with the information necessary for him to know the case he had to meet to rebut his reclassification and transfer.

[40] The Applicant’s focus has now shifted to the allegation that the Warden did not adequately consider the Applicant’s rebuttal regarding the television incident, or that the Warden provided inadequate reasons as to why the Applicant’s rebuttal was rejected. The issue of the Warden’s alleged failure to consider the Applicant’s rebuttal was raised under the Vavilov reasonableness analysis but will be reconsidered at this stage as the parties agree that the standard of review for whether a decision was unlawful on the basis of procedural fairness is correctness.

[41] It is conceded that an inmate has the right to prepare representations with respect to a proposed transfer, to make verbal representations to CSC, and to make a written rebuttal Corrections and Conditional Release Regulations, SOR/92-620, at s. 12(b). In this case, the Applicant:

a. was given the opportunity to make representations about the proposed transfer; b. was given the opportunity to speak with counsel about those representations; c. met with CSC to make verbal representations about the transfer; d. provided a written rebuttal.

[42] The Warden’s decision specifically acknowledged the Applicant’s rebuttal. I find that there was no need for the Warden to provide an analysis as to whether he accepted or rejected the Applicant’s version of the television event. As previously noted, the Warden did not rest his decision on the conclusion that the Applicant knowingly imported contraband into the institution. The mere fact that the Applicant was involved was enough when viewed in light of the Applicant’s past record of behaviour.

[43] Accordingly, I find that the procedure by which the Applicant was reclassified and transferred was fair.

CONCLUSION

[44] I find that the decision by the Correctional Service of Canada to reclassify the Applicant from medium to maximum security and the associated institutional transfer to have been reasonable, the process procedurally fair, and therefore lawful.

[45] The application by the federal inmate, Theshanth Thavakularatnam, challenging his reclassification from medium security to maximum security and his involuntary transfer from Bath Institution to Millhaven Institution is dismissed.

COSTS

[46] The Respondent advised the court that if the application was ultimately unsuccessful, a request for costs in the nominal amount of $500 would be advanced.

[47] In Little v. Canada (Attorney General), 2020 ONSC 3239, MacLeod-Beliveau J. confirmed that costs can be awarded in habeas corpus applications of a civil nature subject to the discretion of the application judge.

[48] Costs should generally follow the cause in a civil matter. I find the nominal cost being sought by the Respondent of $500 are reasonable in the circumstances of this case.

[49] Accordingly, an order shall issue that the Applicant, Theshanth Thavakularatnam, shall pay costs fixed in the amount of $500 all inclusive to the Respondent, The Attorney General of Canada, made payable to the Receiver General of Canada.

Muszynski J. Released: March 1, 2021