COURT FILE NO.: CR-21-001-00MO
DATE: May 11, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT DUNKLEY
Applicant
– and –
THE ATTORNEY GENERAL OF CANADA Respondent
Robert Goddard and Simon Borys, for the Applicant
Julie Chung, for the Respondent
HEARD: April 9, 2021
MUSZYNSKI J.
HABEAS CORPUS DECISION
[1] The subject application for habeas corpus with certiorari in aid is brought by a federal inmate, Robert Dunkley. The applicant challenges his security reclassification from medium to maximum 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, 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 security level reclassification and the resulting involuntary transfer of the applicant constitute a deprivation of liberty.
[6] The parties differ as to whether the decisions were lawful, specifically, whether they were reasonable and whether the process was done in a manner that was procedurally fair.
[7] The applicant takes the position that the decisions to reclassify and transfer him were unreasonable because they were overwhelmingly based on one incident where he allegedly threatened CSC staff. The applicant submits that, when context is considered, that incident is insufficient to justify reclassification and transfer. The applicant further states that other incidents relied upon by CSC to justify his reclassification and transfer were dated. On the issue of procedural fairness, the applicant submits that CSC failed to disclose adequate information to allow him to make a fulsome rebuttal. The applicant further submits that the process was procedurally unfair because the Warden did not sufficiently consider his rebuttal. Finally, the applicant takes the position that the reasons provided for the decisions were insufficient.
[8] The respondent’s position is that the decisions to reclassify and transfer the applicant were justified by the record and therefore reasonable. The respondent submits that the process was fair and, specifically, that the applicant was provided information in accordance with the legislation, his rebuttal was duly considered, and the Warden’s reasons were sufficient.
BACKGROUND FACTS
[9] The applicant is a 61-year-old federal inmate currently serving a life sentence at Millhaven Institution for second-degree murder.
[10] The applicant has spent most of his sentence to date in maximum security institutions, including significant periods of time in segregation.
[11] The applicant was transferred to Millhaven Institution (maximum security) on an involuntary basis from Bath Institution (medium security) following an incident that took place on September 21, 2020. On that date it is alleged that the applicant threatened a Correctional Officer.
[12] It is this reclassification and transfer that forms the subject of this application.
[13] Following the September 21, 2020 incident between the applicant and CSC staff member, an Assessment for Decision (“A4D”) was prepared by Parole Officer Danette Countryman that outlines the applicant’s background and contains recommendations about his future. The A4D contains the following information:
c. “The index offence resulted from DUNKLEY being faced with a $6000 drug debt, for which he agreed to a contract killing of the victim in order to purge this debt.”
d. “DUNKLEY has been incarcerated for over thirty years and over the years he has demonstrated considerable difficulty managing his behaviour.”
e. The Applicant admitted to a plan to kill another offender while at an earlier medium security institution;
f. “Since his arrival to Bath Institution in November 2019, DUNKLEY has presented with institutional adjustment issues specifically with violent and aggressive behaviour.”
g. “Of significant concern, is offence mirroring behaviour noted in the current incident leading to his involuntary transfer to Millhaven Institution and specifically, on 2020-09-21, DUNKLEY, in failing to abide by institutional rules and staff direction, stated to a staff member, ‘You are going to get hurt one day.’ It is the opinion of the Case Management Team that these comments should not be taken lightly when considering the offenders index offence, and his institutional conduct history.”
h. “In addition to the index offence, DUNKLEY has a history of violence and aggression with threatening and assaultive behaviour toward staff and offenders.”
i. The Applicant has taken numerous correctional programs over his sentence with mostly positive outcomes, while further areas of growth are also identified.
j. “Risk factors include impulsivity, problem solving, associates and his ability to establish/maintain health relationships, emotions management, and thoughts and attitudes that support the use of violence.”
k. The Security Reclassification Scale (“SRS score”) resulted in a score of 22.5 which denotes medium security, but the “Case Management Team is not in congruence with this recommendation and an override to maximum security is being recommended to coincide with ratings of High Institutional Adjustment, Low Escape Risk and High Public Safety Risk”;
l. Since arriving at Bath Institution, there are 11 recorded incidents on the Applicant’s file;
m. The Applicant was noted as being rude and inappropriate at mealtime, aggressive towards other offenders on the range, and being assaultive towards an offender in August of 2020.
[14] A Notice of Emergency Involuntary Transfer Recommendation was completed on September 23, 2020 by the Manager of Assessment and Intervention, Paul Carr, recommending the immediate transfer of the applicant to Millhaven Institution. A copy of the notice was provided to the applicant. The following reasons were relied upon to support the involuntary emergency transfer:
a. “On 2020-09-21, you failed to abide by institutional rules and staff direction after which you made a threatening comment to a staff member; specifically, ‘you are going to get hurt one day’.”
b. “…the Security Intelligence Officer has outlined a gist of intelligence information indicating threatening / intimidating other inmates, assaulting another inmate, interpersonal conflict with staff and making inciting remarks. These are not the behavioural norms expected of inmates accessing a responsibility-based, small group living environment or in any medium security environment.”
c. “A review of your security classification has occurred and it has been recommended that you be classified as maximum security.”
d. “It is clear that you require an institutional environment where you are subject to constant and direct supervision.”
[15] On October 6, 2020, counsel for the applicant wrote to the Warden of Bath Institution providing a rebuttal to the reclassification and transfer. The rebuttal disputes the notion that the applicant engaged in “offence mirroring behaviour”. Further, it suggests that the applicant’s recent behaviour at Bath Institution must be evaluated in light of the context in which it occurred. Specifically, the applicant was concerned about the enforcement of a vague new rule concerning phone use. It is also noted that following the so-called threat made by the applicant to the CSC staff member, the applicant explained that he was not threatening to harm the Officer, rather he was only reporting that other inmates might do so.
[16] A Referral Decision Sheet for Offender Security Level was approved by the Warden of Bath Institution on October 21, 2020. The Warden concurs with the recommendation contained in the A4D to reclassify the applicant as maximum security. The Warden provides the following rationale for the reclassification decision:
a. “DUNKLEY has demonstrated major difficulties causing serious institutional adjustment problems and requiring significant management intervention.”
b. “Overall, DUNKLEY has demonstrated major difficulties and requires an institutional environment where he is subject to constant and direct supervision.”
c. “There is no recent serious escapes and no current indicators of escape potential.”
d. “He has participated in programming in the past and has been provided with the skills and knowledge to mitigate risk. Of primary concern is his continued aggressive and assaultive behaviour towards other offenders, and his threatening behaviour toward a Correctional staff. This demonstrates no mitigation of risk.”
e. “DUNKLEY’s mental and physical health was considered in this decision.”
[17] A Referral Decision Sheet for Institutional Transfer (Involuntary) was approved by the Warden of Bath Institution on October 21, 2021. The Warden provides the following rationale for the transfer decision:
a. “Essentially, DUNKLEY has exhibited on-going aggressive and threatening behaviour towards staff and other inmates. There is video evidence of DUNKLEY assaulting another inmate.”
b. “…DUNKLEY has demonstrated major difficulties and requires an institutional environment where he is subject to constant and direct supervision.”
c. “His legal counsel provided a submission on 2020-10-08, which has been thoroughly reviewed.”
d. “DUNKLEY has not demonstrated the behavioural norms of a medium security inmate as outlined in Commissioner’s Directive 706, including the behavioural norms for inmates accessing a responsibility-based, small group living environment such as Bath Institution.”
e. “It is expected that inmates will follow the reasonable and lawful direction of staff and when not in agreement, use prosocial tools available to address those issues. It is clear that DUNKLEY has not incorporated programming skills into his daily behaviour.”
f. “…DUNKLEY has demonstrated major difficulties and requires an institutional environment where he subject to constant and direct supervision.”
g. “There are no mental or physical health concerns, and no listed incompatibles or security intelligence concerns that would preclude this transfer.”
ANALYSIS
[18] The parties agree that the security reclassification and transfer of the applicant 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 submits that the decisions to reclassify and transfer the applicant were unlawful because the decisions were 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] The standard of review is reasonableness and requires deference. The importance of deference is emphasized in Khela:
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: see para 75.
[23] A federal inmate’s security rating is based on several factors including an offender’s SRS score, institutional adjustment rating, public safety rating and escape risk rating. Following the September 21, 2020 incident, the applicant’s SRS score was calculated as being 22.5 which is consistent with a security classification of medium. However, CSC staff determined that due to an increase in the applicant’s rating to high for both institutional adjustment and public safety risk, the applicant was more appropriately categorized as maximum security. The applicant claims that CSC’s decisions to increase his institutional adjustment and public safety ratings to high was unreasonable
[24] The applicant admits that on September 21, 2020 he uttered to Correctional Officer Cross: “you are going to get hurt one day”. The applicant claims that immediately after the utterance he explained to Officer Cross that this was not a threat from him, but merely a warning that other inmates may want to hurt him. The applicant submits that CSC ignored this explanation, which is a crucial part of the narrative and changes the meaning of the utterance.
[25] The applicant’s so-called explanation to Officer Cross comes across as lacking in sincerity. There is no dispute that the applicant uttered: “you are going to get hurt one day” to Officer Cross. Whether the applicant provided a subsequent explanation as to what he meant by those words, I find, is not a crucial part of the narrative. I find that it was reasonable for Officer Cross and CSC to perceive “you are going to get hurt one day” as a threat, regardless of what explanation came after.
[26] The record confirms that some of the factors taken into account by CSC when considering the applicant’s institutional adjustment rating included: a physical assault of another offender by the applicant; the applicant’s rude and inappropriate behaviour, including inciting remarks; the applicant’s aggressive and intimidating behaviour towards other offenders and the threatening utterance to Officer Cross. I find that the factors identified in the respondent’s material provide a reasonable justification for an increase in the applicant’s institutional adjustment rating from medium to high.
[27] In considering the applicant’s public safety risk rating, CSC reviewed the applicant’s history, including his prior behaviour while incarcerated. The applicant submits that since a security reassessment was not warranted after “any of the other incidents at Bath Institution”, those prior incidents should not have been used to justify an increase in his public safety risk rating following the September 21, 2020 incident. He further relies on his participation in various programming within the institution as a factor that should have been given more weight in his favour.
[28] I find that it was reasonable and appropriate for CSC to review the applicant’s case in a holistic manner, including past behaviour that did not immediately result in an increase in security classification at the time. I specifically reject the applicant’s submission that since the prior issues had not resulted in a security reclassification at the time, there was no basis for their consideration following the September 21, 2020 incident. While CSC acknowledges that the applicant participated in programming, it is also noted that the applicant failed to internalize the skills taught in those programs in order to manage his behaviour in a medium security setting.
[29] The record confirms that the applicant’s index offence of second-degree murder was motivated by a desire to “right a perceived wrong”. This is the “offence mirroring behaviour” identified by CSC. The evidence suggests that the applicant continues to be unable to manage his risk factors and resorts to violence when he perceives he has been wronged. This is demonstrated by the applicant’s utterances to Officer Cross when he believed the telephone rules were being arbitrarily applied and the assault on his fellow inmate when he believed that inmate was doing a poor job cleaning. I find that it was reasonable for CSC to reclassify the applicant as a high public safety risk for the reasons identified. The record demonstrates that the applicant is unable to regulate his behaviour without resorting to aggression or violence.
[30] I find the concerns raised by CSC regarding the applicant’s behaviour and the corresponding increase in his institutional adjustment and public safety risk ratings to have been reasonable. I find the conclusion reached by CSC to reclassify the applicant as maximum security and transfer him to Millhaven Institution to be equally reasonable because the record contains evidence that the applicant requires the constant and direct supervision characteristics of a maximum security institution.
Procedural Fairness
[31] The applicant claims that the process used to reclassify his security rating and transfer him to Millhaven Institution was procedurally unfair because:
a. There was deficient information sharing;
b. The Warden failed to duly consider the Applicant’s rebuttal; and
c. The Warden’s decisions were insufficient.
[32] The standard of review for whether a decision was unlawful on the basis of procedural fairness is correctness.
a) Information Sharing
[33] The applicant submits that CSC did not comply with s. 27 of the Corrections and Conditional Release Act S.C. 1992, c. 20 [CCRA] in that all of the information that was put to the Warden, and was ultimately used by the Warden in reaching a decision, was not disclosed to the applicant. The applicant acknowledges that s. 27(3) of the CCRA permits CSC to withhold information in certain circumstances if a proper procedure is followed.
[34] The proper procedure includes CSC providing the applicant notice that s. 27(3) is being invoked, an explanation as to why there are reasonable grounds to believe that withholding the information is necessary, an explanation of the reliability of the informant information, and a gist of the information withheld that is sufficient to allow the inmate to make an effective rebuttal.
[35] There is no question that CSC provided the applicant notice that s. 27(3) was being invoked. Rather, the applicant alleges that credibility / reliability assessments were not produced for each allegation and that the gist provided was insufficient for the applicant to rebut.
[36] The gist was prepared by Security Intelligence Officer (“SIO”) Karen Moore and was contained within the A4D. SIO Moore notes that the applicant exhibited threatening behaviour towards other inmates, acted rudely and inappropriately in the kitchen during meal time and with staff over changes due to COVID-19, made an inciting remark “bring on the team”, assaulted a fellow inmate, and threatened a staff member on September 21, 2020.
[37] With respect to credibility / reliability assessments, the gist references a surveillance video depicting the applicant acting intimidating on the range. This was reviewed by SIO Moore and deemed credible. Further, the gist states that there are intelligence reports of unknown reliability that identify the applicant as being involved in the contraband trade but also that “it is not the crux of the transfer”. There are no other assessments made with respect to credibility / reliability in the gist.
[38] The applicant had the A4D, which included the gist, when his legal counsel made a written rebuttal on his behalf.
[39] The public affidavit of SIO Moore, dated March 23, 2021, was only produced in response to the subject application and includes additional details of specific incidents and assessments of reliability / credibility.
[40] Further, CSC filed a sealed affidavit of SIO Moore, dated March 23, 2021. I have unsealed and read the sealed affidavit and have instructed myself on the principles set out in Khela. In her sealed affidavit, SIO Moore explains why the information is considered reliable and what steps were taken to verify the information. I find that the respondent has met its onus in s. 27(3)(a) of the CCRA to withhold certain information from the applicant. There are reasonable grounds to believe that the disclosure of that information would jeopardize the safety of the sources who provided the information, or the institution more broadly. CSC is in the best position to determine whether such a safety risk could materialize. I find that only as much information as was strictly necessary was withheld.
[41] The applicant’s reclassification and transfer occurred after the incident of September 21, 2020 wherein the applicant made an utterance that was perceived to be a threat to Officer Cross. The applicant admits to making that utterance. There are also admissions that the applicant assaulted a fellow inmate in 2020 while at Bath Institution and plotted to kill a fellow inmate while at Beaver Creek Institution in 2017. Further, the applicant’s rebuttal contains admissions that there have been “frictions” with other inmates and staff at Bath Institution, he has bartered for vegetables, has lost his temper, and says things that get him in trouble.
[42] The applicant’s rebuttal, in my view, provides a response to the key issues raised in the A4D in spite of the fact that certain details were withheld pursuant to s. 27(3) of the CCRA.
[43] I acknowledge that the public affidavit contains information that was not included in the gist. This information could have been disclosed to the applicant earlier. This is a technical breach which did not result in procedural unfairness in these circumstances: Khela at para 90.
[44] I find that credibility / reliability assessments were not required for every allegation in this case because the applicant admitted the bulk of the material facts relied upon by CSC in reaching its decisions. I further note that CSC did not rely on allegations about the applicant’s involvement in the contraband trade due to the unknown reliability of the information. In my view, this is a factor that demonstrates CSC’s commitment to procedural fairness and the process set out in s. 27(3) of the CCRA.
[45] I find that the manner in which information was shared and disclosed to the applicant was procedurally fair.
b) Consideration of the applicant’s rebuttal
[46] The applicant alleges that the Warden did not adequately consider his rebuttal.
[47] 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; and
c. provided a written rebuttal through his counsel.
[48] The Warden’s decision to transfer the applicant to Millhaven Institution acknowledges that the applicant’s rebuttal was reviewed thoroughly.
[49] I find that it was unnecessary for the Warden to provide an analysis as to whether she accepted or rejected the applicant’s version of the September 21, 2020 incident. The applicant admitted to uttering “you are going to get hurt one day” to Officer Cross. Regardless of whether the applicant offered a subsequent explanation, I have found that it was reasonable for Officer Cross and CSC to perceive the applicant’s utterance as a threat. I find it was not essential for the Warden to analyze whether the applicant’s alleged post-utterance explanation changed the context of the encounter for Officer Cross or CSC.
[50] The Warden did not respond to each of the arguments raised in the applicant’s rebuttal. In this case, I find it was not necessary to do so as CSC’s decision to reclassify and transfer the Applicant was largely based on material facts that the applicant had admitted.
[51] I find that the manner in which the applicant’s rebuttal was considered was procedurally fair in the circumstances of this case.
c. Sufficiency of Reasons
[52] The applicant submits that the Warden’s decisions are so cursory that they lack the “justification, transparency and intelligibility” that the law requires: Khela at para 73.
[53] CSC submits that, while succinct, the Warden’s decisions provide an adequate justification for the increased security rating and transfer. Further, CSC states that decisions from an administrative body should not be assessed against a standard of perfection and must be reviewed in the institutional context within which the decision was made: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov] at para 93.
[54] The Warden’s decisions are brief but, nonetheless, provide sufficient information to allow the court to understand that the security level increase and transfer were brought about by the applicant’s threatening and aggressive behaviour which is more appropriately managed in a maximum security facility with constant, direct supervision.
[55] 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: Vavilov at para 103.
[56] Overall, I find that the procedure by which the applicant was reclassified and transferred was fair.
CONCLUSION
[57] I find that the decisions by the 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.
[58] The application by the federal inmate, Robert Dunkley, challenging his reclassification from medium security to maximum security and his involuntary transfer from Bath Institution to Millhaven Institution is dismissed.
[59] I have re-sealed the sealed affidavit and I order that it is to remain sealed, unless ordered otherwise by this court or other court of competent jurisdiction.
COSTS
[60] While not addressed in oral argument, the respondent’s written material indicates an intention to seek costs if the application is dismissed.
[61] 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.
[62] Costs should generally follow the cause in a civil matter. In this case, I find it reasonable to fix costs in the nominal amount of $500 (inclusive of HST and disbursements).
[63] Accordingly, an order shall issue that the applicant, Robert Dunkley, 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: May 11, 2021
Dunkley v. The Attorney General of Canada, 2021 ONSC 3453
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT DUNKLEY
-and-
THE ATTORNEY GENERAL OF CANADA
HABEAS CORPUS DECISION
Muszynski J.
Released: May 11, 2021