COBOURG COURT FILE NO.: CR-20-0744
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Todd Mallen Applicant
– and –
Correctional Service of Canada and Joyceville Institution Respondents
Todd Mallen, Self-Represented
Benjamin Wong, for the Respondents
HEARD: February 18, 2021
REASONS FOR DECISION
Overview
1The Applicant’s security classification was increased from minimum to medium and he was involuntarily transferred to a medium-security institution (“Warkworth Medium”) on an emergency basis.
2The Applicant takes the position that his liberty has been restricted unlawfully. The Applicant maintains that the Warden’s decision to transfer him from minimum to medium security was procedurally unfair and unreasonable.
3The Respondents concede that the involuntary transfer of the Applicant in this case constitutes a deprivation of liberty and engages section 7 of the Charter of Rights and Freedoms. However, the Respondents take the position that the Correctional Service of Canada’s (“CSC”) decision to reclassify the Applicant as medium-security and the Warden’s decision to transfer him to Warkworth Medium were procedurally fair and reasonable.
4I agree with the Respondents. The basis for the transfer decision has been more than adequately explained to the Applicant in the materials provided to him. The process has been fair, and it was open for the Warden to make the decision that he did. The application is dismissed.
5The reasons for my decision are outlined below.
Facts
Applicant’s Background
6The Applicant is a 46-year-old first time federal offender, currently serving a life sentence for second degree murder. The Applicant was convicted in February 2008 and was sentenced in April 2008.
7The Applicant was voluntarily transferred from Warkworth Medium to Joyceville Minimum on February 28, 2020.
8In the latest version of his Correctional Plan from August 28, 2020, the Applicant’s “personal/emotional orientation” and “attitude” were identified as the domain factors requiring the most need for improvement:
(a) Personal/emotional orientation: the Correctional Plan assessed the Applicant as requiring a moderate level of intervention due to “deficits in solving interpersonal problems, unrealistic goal setting, disregard for others, problematic family ties, impulsivity, aggression, poor conflict skills and coping with stress poorly.”
(b) Attitude: the Correctional Plan assessed the Applicant as requiring a high level of intervention due to “his negative attitude toward the criminal justice system, his negative attitude toward the correctional system and attitudes that support instrumental or goal oriented violence.”
9The Correctional Plan identified that since his arrival at Joyceville Minimum, “Mallen has presented as if he has a great level of disdain and distrust toward CSC” and that the Applicant “will need to demonstrate a willingness to work collaboratively with his CMT and work specifically on his tendency to externalize blame on CSC for his lack of progress toward positive behaviour and conditional release.”
Security Classification of Joyceville Minimum
10Joyceville Minimum is a minimum-level security penitentiary situated near the City of Kingston, Ontario.
11Joyceville Minimum has perimeters which are clearly defined, but not normally directly controlled. Firearms are not utilized for perimeter security, nor retained in the institution. Inmates in Joyceville Minimum are expected to interact effectively and responsibly with minimal monitoring. They are also expected to demonstrate a high level of motivation towards self-improvement by actively participating in their Correctional Plan.
12The security environment at Joyceville Minimum is modeled on the concept of dynamic security, which refers to regular and consistent interaction between CSC staff and inmates. In this environment, institutional security and safety of staff and inmates is fostered through maintenance of positive relationships, and through constant observation and communications.
13Minimum-security units and institutions are generally viewed as the most desirable institutions for an inmate to be placed in, given that they are the least restrictive. One consequence of this, however, is that minimum-security units and institutions have a lower tolerance for problematic behaviour, because the maintenance of institutional security is heavily dependent upon inmates managing their own behaviour. If an inmate displays any deviation from institutional rules or they cannot be safely managed at the institution for some other reason, CSC staff is required to take immediate and effective measures to maintain order and protect institutional security.
Decision to Increase the Applicant’s Security Level and Transfer Him to Warkworth Medium
14Despite initially approving a voluntary transfer to another minimum-security institution on October 15, 2020, in an Assessment for Decision dated October 29, 2020 (Assessment for Decision), the Applicant’s case management team (“CMT”) recommended that the Applicant’s security classification be increased from low to medium due to an increase in the Applicant’s institutional adjustment rating from low to moderate. The CMT also recommended that the Applicant’s emergency involuntary transfer to Warkworth Medium be approved.
15The Applicant was escorted on an emergency involuntary basis from Joyceville Minimum to Warkworth Medium on October 29, 2020.
16The Assessment for Decision set out a pattern of increasingly deceitful, intimidating, and undermining behaviour against staff and other offenders at Joyceville Institution in September and October, 2020, including:
(a) Interactions with staff members which were perceived as intimidating and crossing boundaries, for example:
(i) Acting in a disrespectful and aggressive manner against a Program Assistant (i.e. raised voices, overreactions to the Program Assistant carrying out her duties in a professional manner); and
(ii) When his parole officer asked him to clarify serious comments of concern he had made previously, the Applicant became aggressive in tone, mocked the parole officer, accused him of making false accusations, and informed him that if the comments were included in his reports, he and his lawyer would “go after” them.
(b) Efforts to undermine staff and other offenders, including admitting to his parole officer that he was attempting to “set up” the inmate grievance coordinator and staff to breach policies so that he could subsequently bring legal recourse against them.
(c) Deceitful statements to a number of individuals, for example:
(i) Claiming in his Psychological Risk Assessment that he had been accepted to three Community Residential Facilities when he had not received support from any of them; and
(ii) Advising a media organization (Ontario Farmer) that he had approval to participate in an interview when he had not requested approval from the Warden (and his parole officer had previously informed him that approval was necessary).
(d) Attempting to discredit CSC staff by disseminating inflammatory but unproven allegations against staff, for example:
(i) During a meeting with his parole officer, the Applicant alleged that a correctional manager threatened and intimidated inmates with being “shipped” to higher security so that they would plead guilty to institutional charges;
(ii) Source information indicated that the Applicant had made comments to other inmates alleging that staff did not like him and mistreated him because he was related to a staff member at Joyceville Minimum, filed grievances, and dated the Warden’s wife before the Warden did; and
(iii) Alleging to the Parole Board of Canada that no masks were worn during a case conference with the Warden and various staff, when the staff involved, including the Warden, confirmed without question that all staff in attendance were wearing masks.
(e) In the Applicant’s unauthorized interview with Ontario Farmer, he described specific observations of the institutional farm that could not have been made unless the Applicant was in an out of bounds area as the Applicant was never employed at the institutional farm.
(f) Refusing to work with CSC staff in an open, honest and cooperative manner, including ignoring advice from his CMT, as well as refusing to alter the above negative behaviours even after being counselled.
17In the Assessment for Decision, the CMT noted that the above concerns had escalated in significance since the Applicant’s previous low Institutional Adjustment Rating, resulting in the Applicant’s moderate Institutional Adjustment Rating and the CMT’s recommendations.
18On November 2, 2020, the Applicant was provided with the Assessment for Decision, his Security Reclassification Scale results (“SRS”), guidelines for him to interpret his SRS results, and a Notice of Emergency Involuntary Transfer Recommendation (“Transfer Notice”), which provided further reasons for the involuntary transfer.
19Although the Applicant was advised of his right to retain counsel and rebut the involuntary transfer, the Applicant chose not to submit a rebuttal.
20On November 10, 2020, the Warden approved the Applicant’s security classification increase to medium as well as his emergency involuntary transfer to Warkworth Medium. The Applicant was provided a copy of both decisions on November 13, 2020.
Information Withheld from the Applicant
21In coming to its decision, the CSC relied on withheld information from two Protected C reports, which were withheld in accordance to ss. 27(3)(a) of the Corrections and Conditional Release Act (“CCRA”), Commissioner’s Directive 710-6 (“CD 710-6”), and Policy Bulletin 451 (“PB 451”). These reports are summarized as follows:
(a) Protected C report dated June 1, 2020, where a confidential source provided information indicating that the Applicant had said that staff did not like him because he had filed grievances against specific staff and he had dated the Warden’s wife before the Warden did. CSC relied on the identify of a confidential source, whose identity was withheld.
(b) Protected C report dated September 27, 2020, where two confidential sources provided information indicating that the Applicant was telling inmates in the institution that Joyceville Minimum staff disliked him and mistreated him because he was related to a staff member at JI Minimum and he specifically named the staff member. CSC relied on the identity of the confidential sources, whose identities were withheld.
22The withheld information in these reports consisted of the identities of confidential sources. This information was withheld in accordance with ss. 27(3)(a) of the CCRA and CD 701 because the Warden concluded that there were reasonable grounds to believe that disclosure would jeopardize the safety of one or more persons and the security of the institution.
23In the Assessment for Decision and the Transfer Notice, CSC provided the Applicant with summaries of the information provided by the confidential informants and outlined in the above reports. The Transfer Notice also described the sources for the September 27, 2020, report as believed to be reliable. Neither the Assessment for Decision nor the Transfer Notice described/explained the reliability of the source for the June 1, 2020, report. The decision to withhold the explanation for reliability again related to a concern for the safety of the source.
24In coming to its decision, CSC did not rely on any withheld information from two other protected reports, namely:
(a) Protected C report dated October 8, 2020.
(b) Protected C report dated October 28, 2020.
25These reports provided details of the Applicant’s conversations with CSC staff where he admitted that he had attempted to set up other inmates and staff, his inflammatory allegations against a correctional manager at Joyceville Minimum, his aggressive response to his parole officer asking him to clarify previous concerning comments, and his efforts to discredit Joyceville Minimum staff to the Parole Board of Canada and Ottawa Parole.
26The Applicant was provided with all of the information from the reports that CSC relied upon in making its decision. The name of the inmate that the Applicant attempted to set up and the name of the correctional manager he made allegations against were withheld. However, CSC did not rely on this information in coming to its decision.
Issues Raised by the Applicant
27The Applicant asserts that his liberty has been restricted unlawfully. The Applicant asserts the restriction is not the “least restrictive measure” as set out in the Corrections and Conditional Release Act (CCRA). The Applicant takes the position that the decision lacks justification, transparency and evidentiary foundation. He takes the position that it was done in bad faith as retribution for his decision to speak with the media.
28The Applicant asserts that the Warden has not invoked s. 27(3) of the Corrections and Conditional Release Act and has failed to meet his disclosure obligations under s. 17(1) of the Act. This complaint relates to the Warden’s decision to withhold details pertaining to the reliability of the source information relied upon for the involuntary transfer.
29As a remedy, the Applicant seeks to be returned to the minimum-security classification.
Analysis
1) Did the CSC Comply with its Disclosure Obligations?
30Section 27 of the CCRA outlines the disclosure obligations applicable to decisions to be taken by CSC about an offender, including involuntary transfer decisions.
31Subsection 27(1) of the CCRA provides that where an inmate is entitled by the regulations to make representations, the decision maker shall provide him with “all information that was considered in the taking of the decision or a summary of that information,” subject to ss. 27(3).
32Subsection 27(3) allows CSC to withhold certain information where “there are reasonable grounds to believe” that disclosure would jeopardize “(a) the safety of any person; (b) security of the penitentiary, or (c) the conduct of any lawful investigation.”
33Where information is withheld from an inmate to protect the interests under ss. 27(3), the onus is on the correctional authorities to invoke the provision and prove that there were reasonable grounds to withhold the information.
34In this context, the correctional authorities are required to 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. When the prison authorities rely on the information to justify a transfer, they should also explain in the sealed affidavit why those tips are considered to be reliable.: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 87.
35In this case, the CSC has provided copies of the withheld documents, explanations as to their reliability assessments and why their disclosure would jeopardize the safety of one or more persons and the security of the institution. I have reviewed the documentation and I am satisfied that the Warden had reasonable grounds to believe that disclosure could jeopardize the safety of persons and the security of the institution.
36A comparison of the documents attached as exhibits to the sealed affidavit with the information provided to the Applicant confirms that he was provided with more than sufficient information to allow him to understand the reasons for the transfer, and substantively respond to the allegations.
37I see no basis to interfere with the decision to withhold the information in the circumstances, nor do I have any concerns with respect to the reliability of the information.
2) The Involuntary Transfer Decision
Standard of Review
38In Khela, the Supreme Court explained the importance of the Court’s deference to a Warden’s determination under section 28:
76 … 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.
39The Supreme Court has described an involuntary transfer decision as an administrative “fact-driven inquiry involving the weighing of various factors and possessing a ‘negligible legal dimension.’” The reasonableness standard of review applies to such decisions in order to avoid a “micromanagement of prisons.” A transfer decision will be reasonable if it falls within the range of possible, acceptable outcomes which are defensible on the facts and at law.
40A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”.
41When conducting a reasonableness review, “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion”.
42A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review”.
43The reviewing court must ask “whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”.
Was the Involuntary Transfer Decision Reasonable?
44Section 29 of the CCRA authorizes the Commissioner to transfer an inmate to another penitentiary, subject to requirements of s. 28.
45Section 28 of the CCRA requires CSC to take all reasonable steps to ensure that an inmate is confined in penitentiary that contains only the necessary restrictions, taking into account:
(a) the degree and kind of custody and control necessary for safety of public, the inmates and other persons in the penitentiary, and institutional safety;
(b) accessibility to the inmate’s home community and family, compatible cultural and linguistic environment; and
(c) availability of appropriate programs and an inmate’s willingness to participate in those programs.
46The determination of an inmate’s security classification is governed by ss. 17 and 18 of the Corrections and Conditional Release Regulations, SOR/92-620 (“CCRR”). Section 17 outlines the factors that CSC is required to consider when determining an inmate’s security classification. These include seriousness of the inmate’s offence and outstanding charges, behaviour while under sentence, social and criminal history, physical and mental illness, potential for violence, and continued involvement in criminal activities.
47Section 18 of the CCRR provides that an inmate shall be classified as:
(a) maximum security if the inmate presents a high probability of escape and a high risk to public safety or requires a high degree of supervision and control within a penitentiary;
(b) medium-security if the inmate presents a low to moderate risk of escape and a moderate risk to public safety or requires a high degree of supervision and control within a penitentiary;
(c) minimum-security if the inmate presents a low risk of escape and a low risk to public safety or requires a low degree of supervision and control within a penitentiary.
48The basis for the Warden’s decisions are set out in the Assessment for Decision, the Security Reclassification Scale and the Transfer Notice. A review of these documents indicates that the Warden considered a number of the factors, of which the following were the most significant:
the seriousness of the offence committed by the inmate (s. 17(a));
the inmate’s performance and behaviour while under sentence (s. 17(c));
the inmate’s social and criminal history (s. 17(d));
the inmate’s potential for violent behaviour (s. 17(f)); and
the inmate’s required degree of supervision and control within the penitentiary (s. 18).
49The Warden’s reasons show that he formed the view that the Applicant required greater supervision and control within the institution than was available at the minimum-security institution. The Applicant engaged in a pattern of increasingly deceitful, intimidating, and undermining behaviour against staff and other offenders at Joyceville Institution.
50As outlined above, the security environment at Joyceville Minimum is modeled on the concept of dynamic security, which refers to regular and consistent interaction between CSC staff and inmates. In this environment, institutional security and safety of staff and inmates is fostered through maintenance of positive relationships, and through constant observation and communications.
51Minimum-security units and institutions are generally viewed as the most desirable institutions for an inmate to be placed in, given that they are the least restrictive. One consequence of this, however, is that minimum-security units and institutions have a lower tolerance for problematic behaviour, because the maintenance of institutional security is heavily dependent upon inmates managing their own behaviour.
52If an inmate displays any deviation from institutional rules or they cannot be safely managed at the institution for some other reason, CSC staff is required to take immediate and effective measures to maintain order and protect institutional security.
53In the context of Joyceville Minimum’s security classification, the Applicant’s behaviours, (i.e. participating in an unauthorized interview where he offered observations he could not have made personally without going out of bounds, and his attempts to discredit and undermine CSC staff and other inmates), led to the conclusion that the Applicant was no longer manageable at Joyceville Minimum.
54In my view, it was open to the Warden to conclude that his escalating behaviour undermined the safety and security of staff and other offenders at Joyceville Minimum. This fact reinforced the need for increased supervision and intervention in order to manage the Applicant’s behavior.
55In the circumstances, I find the Warden’s decision to reclassify the Applicant to medium-security and to transfer the Applicant to Warkworth Medium were reasonable. These decisions fall within the range of possible, acceptable outcomes.
56Accordingly, the application is dismissed.
57Each party is to bear its own costs in the application.
Justice C.F. de Sa
Released: April 8, 2021
ONTARIO SUPERIOR COURT OF JUSTICE
Todd Mallen Applicant
– and –
Correctional Service of Canada and Joyceville Institution Respondents
REASONS FOR DECISION
Justice C.F. de Sa
Released: April 8, 2021