Court File and Parties

COURT FILE NO.: CR-20-51-MO DATE: 20210108

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

STEPHANE TURCOTTE Applicant – and – ATTORNEY GENERAL OF CANADA Respondent

COUNSEL: J. Todd Sloan, for the Applicant Susanne Wladysiuk, for the Respondent

HEARD: December 16, 2020

Tranmer J.

DECISION ON APPLICATION FOR HABEAS CORPUS

1The Applicant seeks an Order in the nature of habeas corpus challenging his reclassification from minimum to medium security and his involuntary transfer from a minimum-security institution to a medium security institution.

2The Applicant filed an affidavit in support of his application.

3The Respondent filed both a public affidavit of the security intelligence officer who was part of the team investigating the Applicant’s conduct within Collins Bay minimum security institution, and that officer’s sealed affidavit.

Background Facts

4The Applicant has been a federal penitentiary inmate since June 1996.

5He has been incarcerated at Collins Bay institution, minimum security, since August 22, 2019.

6At the end of June and in early July 2020, prison authorities received information from sources pointing to the Applicant as being instrumental in the introduction and distribution of contraband into the institution, namely alcohol, tobacco and marijuana. The Respondent asserts that these items pose danger to inmates and staff and threaten the security of the institution.

7On July 1, 2020, a search of the Applicant’s prison cell revealed several lengths of green para cord and a large green nylon bag. These items are considered unauthorized items within the institution and also pose danger for inmates and staff and can undermine the security efforts of the institution.

8As a result of the information received and the discovery of the unauthorized items, the Applicant was transferred to medium security on July 1, 2020 on an involuntary emergency basis on the authority and direction of the deputy warden.

9The Assessment for Decision to increase the Applicant’s security classification and transfer to medium security was completed July 3, 2020, Exhibit H: public affidavit of the security intelligence officer.

10Exhibit I is an Observation Report from July 1, 2020. The CSC officer reported seeing what appeared to be tobacco remnants in the Applicant’s prison cell and located several lengths of green para cord and a large green nylon bag.

11Exhibit J is the Security Reclassification Scale dated July 3, 2020.

12Exhibit K is the Notice of Emergency Involuntary Transfer Recommendation dated July 6, 2020. This document stated that information received from believed reliable sources identified Mr. Turcotte as the principle individual responsible for the introduction of the significant contraband, tobacco, alcohol and marijuana, onto the property of Collins Bay Institution minimum security. The document advised the Applicant that he had two working days to prepare a rebuttal to the proposed reclassification and transfer. An extension of time could be requested and in this case was requested and granted. It advised the Applicant that he had the right to legal counsel without delay.

13These documents, Exhibits H, I, J and K were provided to the Applicant on July 6, 2020.

14Five documents, namely three Intelligence Observation Reports dated July 2, 2020 and July 3, 2020, one Protected Information Report dated June 29, 2020 and one Protected Statement Observation Report dated July 1, 2020 were withheld from and not disclosed to the Applicant. They are contained in the sealed affidavit filed on this application. In Exhibit K, the prison authorities report that they withheld these documents pursuant to s. 27(3) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”), CD 701 and Policy Bulletin 451 on the basis that, “there are reasonable grounds to believe that disclosure of certain information contained within these reports would jeopardize the safety of one or more persons and the security of the institution or would interfere with a lawful investigation”. “Gists” of the information contained in these reports are set out in the A4D, Exhibit H. The A4D also informed the Applicant that pursuant to CCRA s. 27(3), CD 701 and PB 451, “some aspects of the intelligence information and specific details are being withheld as there are reasonable grounds to believe that disclosure of the information would jeopardize the safety of one or more persons and the security of the institution or would interfere with a lawful investigation”.

15The Applicant prepared a written rebuttal dated July 9, 2020, Exhibit L.

16Exhibits M and N are the Referral Decision Sheets for the offender security level and for institutional involuntary transfer respectively. These are the final decisions dated July 28, 2020 for reclassification and transfer from minimum security to medium security. They indicate that there were four sources of the information of Mr. Turcotte’s involvement with contraband. It is reported that the sources indicated that he was” instrumental” in the introduction and distribution of alcohol, tobacco and marijuana in the institution, “as being responsible for all of the alcohol, tobacco and marijuana coming into the CBI minimum unit”, and described as the “main guy supplying contraband to offenders in the minimum unit”. Exhibit M addresses Mr. Turcotte’s written rebuttal.

The Issue

17Counsel agree that the reclassification and transfer constitute a deprivation of liberty.

18The issue advanced by the Applicant is whether the Respondent has met the onus on it to prove that the decision resulting in the deprivation of liberty is lawful, from the perspective of procedural fairness and reasonableness.

19The primary issue in this case is whether authorities have complied with their legal duty to disclose the information relied upon in making the subject decisions and whether the withholding of information was lawful.

20The other issue is whether the decisions were correct, which is the standard argued by the Applicant, or reasonable, as was submitted by the Respondent.

The Law

21Counsel agreed that the decision of the Supreme Court of Canada in Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 sets of the governing principles.

30 To be successful, an application for habeas corpus must satisfy the following criteria. First, the applicant must establish that he or she has been deprived of liberty. Once a deprivation of liberty is proven, the applicant must raise a legitimate ground upon which to question its legality. If the applicant has raised such a ground, the onus shifts to the respondent authorities to show that the deprivation of liberty was lawful (Farbey, Sharpe and Atrill, at pp. 84-85; May, at paras. 71 and 74).

39 In the Federal Court, a wide array of relief can be sought in an application for judicial review of a CSC decision (see s. 18.1(3)(b) of the FCA). But all a provincial superior court can do is determine that the detention is unlawful and then rule on a motion for discharge.

65 Ultimately, weighing these factors together leads to the conclusion that allowing a provincial superior court to conduct a review for reasonableness in deciding an application for habeas corpus would lead to greater access to a more effective remedy. Reasonableness should therefore be regarded as one element of lawfulness.

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' 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 [page 537] 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 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.

80 It will not be necessary to determine whether the decision made by the Warden in the instant case was unlawful on the basis of unreasonableness. As I will explain below, the decision was unlawful because it was procedurally unfair.

D. Discipline and Disclosure

81 Section 29 of the CCRA authorizes inmate transfers, and ss. 5(1)(b) and 13 of the CCRA outline how this authority is exercised where an immediate transfer is necessary. Section 29 of the CCRA provides that the Commissioner may authorize the transfer of an inmate from one penitentiary to another in accordance with the regulations on condition that the penitentiary to which the inmate is transferred provides him or her with an environment that contains only the necessary restrictions, taking into account the safety of the public and persons in the penitentiary, and the security of the penitentiary (ss. 28 and 29). According to s. 13(2)(a) of the CCRA, 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 As this Court put it in Cardinal, one of the cases in the Miller trilogy, “there is, as a general common law principle, a duty of procedural [page539] fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual” (p. 653). 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] 3 S.C.R. 326. As the Court stated in May, “[t]he requirements of procedural fairness must be assessed contextually” (para. 90, citing Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3, at para. 39; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 21; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 743; Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3, at para. 82). 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 [page 541] 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.

22In Khela, the Court held that the warden, in making the transfer decision, considered information that she did not disclose to the Applicant. The Court held that the warden did not give him an adequate summary of the missing information. The withholding of the information was not justified under s. 27(3).

23The Court noted that the application judge found that the warden had failed to disclose information about the reliability of the sources, the specific statements made by the sources and the scoring matrix.

24The Court stated that the specific statements made by the sources and information concerning the reliability of the sources should have been disclosed to the Applicant. In that case, the information that was disclosed was “source information was received by the security intelligence department implicating Mr. Khela as the contractor for the stabbing assault and that three separate and distinct sources implicated him in the incidents which led up to his transfer”. The information disclosed also said that the information so received “corroborates previous claims and lends credence to existing suspicions”.

25The Court held that those statements did not provide Mr. Khela with enough information to know the case to be met. “Vague statements regarding source information and corroboration do not satisfy the statutory requirement that all the information to be considered, or a summary of that information, be disclosed to the inmate within a reasonable time before the decision is taken”. para.94.

Analysis

26I have opened the sealed affidavit for consideration on this application. I have compared the information provided to the Applicant in this case to the information withheld which is contained in the sealed affidavit.

27I make the following observations.

Doc. 103

28While the document itself references a single source, that gist use of the words “several sources” is consistent with other source information contained in the other documents, as is the gist reference to “a supply of contraband that is sufficient to service CBI minimum as a whole”.

Doc. 139

29The gist refers to the believed reliable source information received. However, it makes no reference to the fact that the source provided two items of U/R information.

Doc. 140

30The gist use of the word “closely” and use of the word “accessing” is not identical to the source information provided but are reasonable inferences.

31Even if I assume that these are breaches of s. 27, they did not result in procedural unfairness. They are technical in nature only. They do not result in unlawful procedural unfairness. Khela, para. 90.

32I have no hesitation in finding that the sealed affidavit proves, on a balance of probabilities, why the information received, which was characterized as believed reliable in the Respondent’s documents as disclosed to the Applicant, was properly assessed as being believed reliable. The sealed affidavit explains why the information of the sources was considered reliable and the basis for such belief.

33I have no hesitation in finding that the sealed affidavit also proves that the authorities had reasonable grounds to believe that disclosure of the information which was withheld would jeopardize the safety of the sources, the security of the penitentiary and the conduct of the stated lawful investigation.

34I find that the authorities withheld only as much information as was strictly necessary in order to protect the interests identified in sections 27(3)(a), (b) and (c).

35The Respondent informed the Applicant that it had invoked s. 27(3) and it provided the reasons for doing so. The Respondent has proven that it acted lawfully in respect of the procedural fairness required in respect of disclosure of information.

36I am satisfied that the Respondent has met the onus imposed on it to prove that prison authorities provided to the Applicant all of the information that was considered in the making of the decision, or a summary of that information, except such information as it lawfully withheld under s. 27(3) as was strictly necessary to protect the interests identified in that section.

37The information which the Respondent acted upon was provided to it within a short time frame by four independent sources. The information was consistent internally and as between sources. It was also confirmed to some extent independently of the sources as set out in the sealed affidavit. The unauthorized items found in the Applicant’s prison cell also confirmed to some extent the source information and was a basis for the decision to reclassify and transfer.

38On the record before me, the decisions that the Applicant challenges were reasonable and lawful in accordance with the Khela principles.

39For these reasons, the application is dismissed.

40I have resealed the sealed affidavit and it is to remain sealed subject to any further order of a court of competent jurisdiction.

The Honourable Mr. Justice Gary. W. Tranmer