Court File and Parties

COURT FILE NO.: CV-15-20

DATE: 20210426

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kris Lesko, Applicant

AND:

The Attorney General of Canada, Respondent,

BEFORE: C.M. Smith J.

COUNSEL: Simon Borys, Counsel for the Applicant

Derek Edwards, Counsel for the Respondent

HEARD: February 26, 2021

ENDORSEMENT on habeas corpus application

OVERVIEW

[1] The applicant is a federal inmate serving a life sentence. He is currently incarcerated at Warkworth Institution (“Warkworth”) where he has been since September 11, 2019 when he was the subject of an emergency involuntary transfer from Beaver Creek Minimum (“BCI”). Warkworth is a medium security penitentiary.

[2] The applicant was transferred involuntarily after his security classification was raised from minimum to medium.

[3] The applicant’s security classification rating was raised because his institutional adjustment rating, one of the factors used to determine security level, was re-assessed from low up to moderate. This was done as a result of the applicant's alleged involvement in institutional subcultures.

[4] The applicant denies the allegations against him. He also submits that the reasons provided by the Correctional Service of Canada (“CSC”) in support of the change in his institutional adjustment rating from low to moderate are unreasonable and that the decision to involuntarily transfer him to medium security is therefore unlawful.

[5] The applicant therefore submits that he should be assessed as minimum security.

[6] The applicant asks for an order in the nature of habeas corpus providing that he be transferred back to minimum security.

FACTUAL BACKGROUND

[7] The applicant began serving a life sentence for second degree murder on March 22, 1994. This is his first federal sentence. He was subsequently convicted of possessing/delivering contraband on April 6, 2005.

[8] Prior to his involuntary transfer to Warkworth the applicant's security ratings were low for institutional adjustment, low for escape risk and low for public safety. Pursuant to the provisions of s.18 of the Corrections and Conditional Release Regulations (“CCRR”) these ratings entitled him to a minimum-security classification.

[9] The applicant was transferred to Warkworth as a result of his alleged involvement in institutional subcultures. In the Assessment for Decision (“A4D”) the applicant's parole officer recommended his institutional adjustment be raised to moderate. This resulted in the applicant’s security classification being adjusted to medium.

[10] The “gist” of the allegations against the applicant was provided by acting Security and Intelligence Officer (SIO) Hubbert. That “gist” outlines the intelligence which tends to show that the applicant had been buying and selling tobacco and prescription medications within the institution and that the applicant has therefore “maintained a heightened profile with the SIO Department”.

[11] The applicant arrived at BCI minimum in June 2016 but was subsequently transferred to BCI medium in November of that year as a result of involvement in subculture activities, specifically the sale of prescription medications. Twelve Gabapentin pills were found in his cell which the applicant subsequently admitted where his.

[12] The applicant returned to BCI minimum in October 2017. He came to the attention of the SIO once again in April 2019. The applicant was allegedly involved in some institution subculture activities which the gist suggests had been corroborated by CSC staff observation. A non routine strip search and cell search were conducted on the applicant on September 10, 2019. Nothing was found in the search of the applicant himself however contraband was seized during the cell search. That is alleged to corroborate the intelligence received about the applicant’s subculture involvement. Specific details about that incident were set out in Memo to File 76.

[13] The A4D recommended raising the applicant’s public safety rating to medium. The document noted that during the applicant’s then 26 years of incarceration he had struggled to move along with his correctional plan. He had shown improvement since returning to BCI minimum however he continued to be a person of interest to the SIO. Intelligence had been received about his involvement in the institutional tobacco/drug subcultures. Substance abuse is an issue involved in the offence that led to the applicant's incarceration. His parole officer was concerned that the applicant was reverting back to behavior directly linked to his offence cycle.

Offender Security Level (OSL) decision

[14] In his OSL decision, the Manager, Assessment and Intervention (MAI) agreed with the recommendation of the applicant’s parole officer and the SIO to raise the applicant’s security level to medium. This was based on security intelligence information and numerous staff observation reports indicating the applicant's involvement in institutional subcultures. The MAI stated that a Security Reclassification Scale (SRS) completed on September 11, 2019 produced the score of 17 for the applicant. Such a score justifies a medium security designation.

[15] The MAI noted that the applicant denied involvement in such activities and suggested that the information provided by the SIO is not reliable. However, the MAI stated that there is information from the SIO outlining the applicant's involvement in the sale of tobacco and prescription medications, engaging in muscling activities, and using other offenders to disguise his activities. Some of the SIO's information in this regard is bolstered by observations from staff, who reported the detection of smoke on the range the applicant resided on, the seizure of medications on his range not prescribed to offenders residing on the range and observations of the applicant visiting other ranges and in turn being visited by other offenders not from his range.

[16] The MAI decided that the applicant's institutional adjustment should be raised to medium because of his involvement in these activities. The MAI declined to raise the applicant's public safety risk as there were no outward indications that the applicant was acting aggressively or violently toward others, be they offenders or staff. The indications of muscling were deemed to be insufficient to raise the applicant’s public safety rating.

[17] The MAI acknowledged the applicant had provided a rebuttal in this matter in which he denied involvement in the activities alleged and claimed to be simply acting as caretaker for an older inmate on the range as well as assisting with the management of the range’s finances, food and maintenance. The MAI found the rebuttal was not compelling and that the applicant was simply placing blame on others for his poor behaviour. The MAI felt that the applicant’s rebuttal did not contain an explanation of the behavior noted in the documentation received from the SIO.

The change in security level and institutional transfer decisions

[18] The Warden of BCI ultimately approved the change in security level and the involuntary transfer of the applicant to Warkworth Institution based on the recommendations of the MAI and the “compelling SIO information” about the applicant's activities. He also agreed with the MAI’s observation that the rebuttal filed by the applicant was not considered compelling. The Warden therefore approved the transfer.

POSITIONS OF THE PARTIES

The applicant

[19] The applicant submits that it was unreasonable for his security classification rating to be raised on the information outlined in the A4D as the allegations contained therein are vague, no credibility assessments were completed, and it was not clear why the applicants rebuttal arguments were rejected in favor of the SIO information.

[20] The applicant further submits the decision was procedurally unfair because the applicant did not receive an SRS scoring matrix. SIO information and numerous staff observation reports relied upon in the decision-making were also not provided to the applicant. This withholding of information limited the applicant's ability to effectively rebut the claims against him.

The respondent

[21] The respondent submits that the applicant was found to be part of the institutional subculture, was involved in such activities as illegally bringing tobacco into the institution, using tobacco products, selling and using illegal narcotics and medications purchased or taken from other inmates, and used physical force or threats of physical force to “muscle” fellow inmates from his range when they disapproved of his enterprises.

[22] The respondent further submits that CSC fully met its legislative duties under the CCRA and the CCRR in making its decision and that there is therefore no basis for a writ of habeas corpus.

ISSUES

1. Has the applicant suffered a deprivation of liberty?

2. Did the CSC meet its disclosure obligations to the applicant?

3. Were the security reclassification and involuntary transfer decisions reasonable and procedurally fair?

LAW AND ANALYSIS

The test for a successful habeas corpus application

[23] Habeas corpus is essentially an application for an order returning the applicant to a previously enjoyed level of liberty: see Khela v. Mission Institution (Warden), 2014 SCC 24 (“Khela”).

[24] To be successful an application for habeas corpus requires two elements. The applicant must first demonstrate that there has been a deprivation of liberty giving rise to a ground for bringing the application. If the applicant establishes a deprivation of liberty then the burden shifts to the respondent to demonstrate that the decision leading to the declaration of liberty was lawful and procedurally fair; see Khela, paragraph 30.

[25] In this case the respondent has conceded that an involuntary transfer from an institution of a lower security level to an institution with a higher security level constitutes a deprivation of liberty.

The standard of review

[26] The decisions of the Warden to increase the applicant’s security level and to transfer him to Warkworth must be reviewed against a standard of reasonableness, that being the presumptive standard of review of an administrative decision: see Vavilov v. Canada, 2019 SCC 65, (“Vavilov”) at paras. 16 and 23.

[27] In Vavilov, at paragraphs 85-87, the Court held that “a 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.”

[28] The application of the reasonableness standard also requires an acknowledgment of the decision makers experience and expertise in the context in question. That experience and expertise is owed deference by a reviewing court: see Vavilov, paragraphs 27-31, 75 and 93; and see Khela, supra, at para 75.

[29] Deference is also owed by a reviewing court to the CSC assessment of the reliability of a confidential source: see Khela at paragraph 89.

[30] The task of a court reviewing an administrative decision is not to reconsider and reweigh the evidence. Rather, it is the task of a reviewing court to determine whether or not the administrative decision maker reached a decision which fell within the range of acceptable and possible outcomes in the matter which are defensible in respect of the facts and law: see Khela.

[31] An administrative decision will be considered reasonable if it is “rational, justifiable and intelligible”: see Vavilov, para 95; and see Khela, para 30.

[32] An administrative decision will be considered unreasonable where there is a failure of rationality internal to the decision-making process itself, or where the decision is untenable in light of the relevant factual or legal constraints present: see Vavilov at para 101.

[33] The administrative decision must also be based on the standards set out in the relevant and applicable governing legislation which, in this case, is the CCRA and the CCRR.

Issue #1: Was there a deprivation of liberty?

[34] With the respondent’s concession on this issue the parties are ad idem that there was in fact a deprivation of liberty.

Issue #2: Did the CSC meet its disclosure obligations to the applicant?

[35] The applicant was provided with a notice of emergency involuntary transfer on September 11, 2019.

[36] At the same time the applicant was also afforded an opportunity to speak with counsel.

(a) Memo # 76

[37] The respondent asserts that the applicant was also given a memo, titled Memo #76, which outlines the contents of the CSC intelligence reports which were relied on by the MAI and the Warden in reaching the decisions that were reached about the involuntary transfer.

[38] Memo #76 also contains an explanation of the system used by CSC to assign reliability values to intelligence received. There are four labels used, unknown reliability, doubtful reliability, believed reliable and completely reliable. Each of those labels is defined.

[39] The memo also contained the “gist” of the information relied upon by CSC, as required by section 27(3) of the CCRA. It included the following:

1. there was believed reliable information that the applicant was involved in the muscling of inmates on lower F range;

2. there was completely reliable information that tobacco, matches and prescription drugs no one was prescribed were found on lower half range on more than one occasion;

3. there was believed reliable information that the applicant was involved in the purchase of other inmates prescribed medications;

4. there was believed reliable information that the applicant was selling tobacco;

5. there was completely reliable information from the staff that there was the smell of tobacco in the air when the applicant was present;

6. there was completely reliable information that staff had observed offenders on lower F range who did not reside there visiting the applicant;

7. there was believed reliable information that the applicant was visiting inmates on other ranges; and

8. there was believed reliable information that the applicant had other inmates buy, sell and conceal contraband for him.

[40] The applicant contends that he did not receive a copy of Memo #76. I have difficulty with that notion as I believe it is belied by the content of the applicant’s rebuttal. The rebuttal was handwritten by the applicant and is very difficult to read however, it does directly address at least 4 of the 8 points listed above. Had the applicant not received the memo then one would have expected the rebuttal to be silent on the actual details of the allegations and to have contained some suggestion or assertion of ignorance of the reasons behind the involuntary transfer. The fact that the applicant responded to details set out in the memo causes me to conclude that he did in fact receive the memo.

[41] Pursuant to the provisions of s. 27 of the CCRA the applicant is entitled to all information relied upon by correctional authorities in making decisions of this nature unless CSC has reasonable grounds to believe that the release of information would pose a threat to the security of an individual or of the institution. In that case the applicant is supplied with the “gist” of the information relied upon by correctional authorities in their decision-making process.

[42] Memo #76 represents that “gist”.

(b) The sealed affidavit

[43] A great deal of the information obtained by the security and intelligence officials at CSC comes from confidential informants. Any information that might possibly identify such confidential informants is not provided to the applicant in situations such as these due to concerns for the lives and safety of the informants.

[44] I was provided with a sealed affidavit prepared and sworn by Ms. Holly Goldthorp the institutional security officer. That affidavit contains a lengthy description of security arrangements in the institution and outlines the risks attendant on being a confidential informant. The affidavit also contains and more fulsome discussion of each of the eight issues listed in the gist provided to the applicant. actual security reports attached to the affidavit is exhibits. Many of those reports include the identity of confidential informants. Such information is rightfully the subject of the provisions of s. 27(3) of the CCRA.

[45] The security reports relating to items 1-4 and item 8 in the gist each relied on information received from confidential informers. Those individuals were identified in the reports. In my view those materials are properly covered by the protections provided by s. 27(3) of the CCRA.

[46] Items 5-7 on the list involved complaints of a general nature, made by staff, about problems the cause of which could not be proven to have been caused by any particular inmate. In my view these were relatively unimportant complaints which on their own were not likely to lead to serious consequences. That said though, I have not been provided with an explanation as to why those reports could not be shared with the applicant nor can I think of one myself. They should have been disclosed.

[47] There were shortfalls in information sharing however they relate to what appear to be relatively insignificant issues which would likely not lead to serious consequences for an inmate. Those reports could easily have been disclosed by CSC however the failure to do so does not in my view, rise to the level where it could be said to have affected the reasonableness or procedural fairness of the decisions.

(c) The Security Reclassification Scale (SRS)

[48] The SRS is a research-based tool used to assist in the assessment of the most appropriate level of security for an inmate. As I understand the tool it consists of a scoring matrix involving various factors each of which is considered individually with respect to each inmate. The completing officer, often the inmate’s parole officer, is obliged to address sixteen separate issues. Each issue yields a score depending on the nature of the information considered and the choices made by the user of the tool, a very subjective process. The total score is then compared against a scale which determines the appropriate level of security that should be assigned to the inmate.

[49] By way of example, question #7 involves an assessment by the completing officer of the particular inmate's progress regarding his correctional plan, question #8 relates to the inmate’s “motivation” concerning his correctional plan, while question #9 involves the inmate’s drug and alcohol “rating”. Each of these questions requires a subjective assessment by the completing officer. The number of points assigned to each answer is a function of the information entered by the completing officer.

[50] In this particular case the SRS total score was 17 on the institutional adjustment rating portion. That score led to the decision to reclassify the applicant’s security rating to medium, as required by the provisions of the CCRR.

[51] The applicant was not supplied with any information about the SRS other than the total score. The applicant was advised in the A4D that he could obtain a copy of the matrix from the institutional library in Warkworth. The respondent submits that providing the applicant with the ultimate score on the SRS and directing him to the prison library satisfies the disclosure obligations of CSC on the point. I disagree.

[52] In my view that would have been of little utility to the applicant as it would not have supplied him with the details of how application of the SRS in his particular case led to the score that it did. That would not have assisted the applicant in any meaningful way in responding to the information in the SRS which was considered by the Warden in his decision in this matter. Instead, the applicant would have needed details about the information entered by the completing officer in order to properly understand and respond to the results of the SRS.

[53] More to the point though, why not give an inmate a copy of the SRS results in such circumstances? Try as I might, I cannot think of any reason not to do so. Moreover, it seems to me that requiring an inmate, who has suddenly and without warning been uprooted from his home of some three years and placed in an unfamiliar institution, to go scrambling around in pursuit of any information used by the decision maker is unfair. The CSC is a very large entity. It’s employees, such as the Warden, the MAI, and the SIO, all have enormous authority over the lives of the inmates in their charge. The applicant is but one of those inmates. The David and Goliath is an appropriate analogy for such a power imbalance. In my view, the decision of the CSC not to supply the applicant with the SRS, and instead to direct him to the prison library, was high handed and, frankly, rather petty.

[54] The obligation of the correctional authorities to supply meaningful and thorough disclosure of the information behind their decision in matters such as this has been considered by the Supreme Court of Canada on at least two recent occasions. In the case of May v. Ferndale, 2005 SCC 82, a case also involving non-disclosure of SRS information, the Court queried how there could possibly be a meaningful response by an inmate to a reclassification decision in the absence of information explaining how the security rating was determined in the first place; see paragraph 117.

[55] The court in May v. Ferndale ultimately concluded that the transfer decision was made improperly as a result of the failure of correctional authorities to supply that information. The Court ruled that the Warden’s decision in that case was therefore null and void for want of jurisdiction and was an unlawful deprivation of liberty.

[56] The SCC considered the matter again in its decision in Khela. That case also involved non- disclosure of the SRS information which had been considered by the Warden in her involuntary transfer decision. The Court ruled that any information considered by a Warden in making such a decision should be disclosed to an inmate who is the subject of an involuntary transfer decision with a consequent deprivation of liberty. At paragraphs 96-98 the court in Khela held as follows:

[96] Further, I agree with the determination of the application judge and the Court of Appeal that the Warden’s failure to disclose the scoring matrix for the SRS was procedurally unfair. The appellants argue that the courts below should not have taken issue with the Warden’s failure to disclose the scoring matrix, because, unlike in May, the decision to transfer Mr. Khela was not based on the SRS alone, given that the Commissioner overrode the security classification. Whether the decision was based on that scale alone is irrelevant, however. What is instead of concern is whether the Warden considered the scoring matrix, on which the SRS calculation was based, in taking her decision (s. 27).

[97] An override of the SRS calculation does not eliminate the Warden’s obligation to disclose the scoring matrix. The scoring matrix is used to calculate the inmate’s security classification. That classification is then reviewed and can be overridden. Even if it is overridden, however, the security classification (and thereby, indirectly, the scoring matrix) is nonetheless “considered” within the meaning of s. 27 of the CCRA. The Warden or the Commissioner must review the calculation before it can be overridden. Without access to the scoring matrix and information on the methodology used to calculate the total score, Mr. Khela was not in a position to challenge the information relied upon for the calculation or the method by which the total score was arrived at, and therefore could not properly challenge the override decision.

[98] To be lawful, a decision to transfer an inmate to a higher security penitentiary must, among other requirements, be procedurally fair. To ensure that it is, the correctional authorities must meet the statutory disclosure requirements. In this case, these statutory requirements were not met, and the decision to transfer Mr. Khela from Mission Institution to Kent Institution was therefore unlawful. The British Columbia Supreme Court properly granted habeas corpus. Mr. Khela was properly returned to a medium security institution (C.A., at para. 95).

[57] The SCC in Khela upheld the decision of the BC Supreme Court which found the involuntary transfer decision of the Warden in that case to be null and void based on the non-disclosure of the SRS information.

CONCLUSION

[58] Section 27(2) of the CCRA requires the CSC to give an inmate “all the information that was considered in the taking of the decision or a summary of that information”. Section 27 of the CCRA is the applicable, governing legislation on the point.

[59] The provisions of the CCRA, and of s. 27 in particular, constitute the “legal constraint” within which the decision maker in cases of this nature must operate. As the SCC found in Vavilov, failure to operate within the relevant legal constraint renders the decision reached untenable and unreasonable.

[60] The failure to provide the applicant in this case with the SRS information was a failure to operate within the relevant legal constraint. The decision is therefore rendered untenable and unreasonable.

[61] Given the failure of CSC to properly meet its disclosure obligations in this case, I cannot find that the Warden's decision in the matter falls within the range of acceptable outcomes which are defensible in respect of the facts and law as contemplated by the Supreme Court of Canada in their decision in Khela.

[62] That being the case it is not necessary for me to consider the remaining issue in the matter.

ORDER

1. The time for service and filing of the notice of application herein shall be extended accordingly.

2. An order in the nature of habeas corpus is made. The applicant shall be transferred back to a minimum-security institution forthwith.

C.M. Smith, J

Date: April 26, 2021