COURT FILE NO.: CR-21-00000003-00MO
DATE: 2021 Jun 30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
COSMO JACOBSON
Applicant
– and –
ATTORNEY GENERAL OF CANADA
Respondent
J. Todd Sloan, for the Applicant
Julie Chung, for the Respondent
HEARD at Kingston: May 12, 2021
Tranmer J.
decision on habeas corpus applicaTION
[1] The applicant seeks an order in the nature of habeas corpus with certiorari in aid thereof challenging the decision which reclassified him from minimum to medium security and resulted in an involuntary transfer from a minimum security penitentiary to a medium security penitentiary.
Background
[2] The applicant is a first time federal inmate serving a life sentence.
[3] His sentence began on September 6, 2005.
[4] Commencing on May 7, 2019, the applicant had been incarcerated at Joyceville minimum security penitentiary. Inmates in minimum security institutions are expected to interact effectively and responsibly with minimal monitoring. They are subject to comparatively less surveillance, and they must demonstrate that they have the capacity to manage their own behaviour with minimal staff intervention. Minimum security institutions have a lower tolerance for problematic behaviour or subculture activities because the lower staff presents make such conduct more difficult to manage. It is common knowledge that there is less tolerance for disruptive activity.
[5] At Joyceville institution, the applicant obtained employment as a cleaner for the third floor of the administration building. This is considered a position of trust. This position gave him access to the offices of the management team, the conference room of the Parole Board of Canada, the records department where offender files are stored and the finance department. Staff members who work in the building are not seasoned or trained correctional officers. The third floor is a restricted area.
[6] As a result of information obtained and observations of the applicant’s conduct and behaviour, a decision was made by the respondent authorities to reclassify the applicant’s security from minimum to medium and to involuntarily transfer him to a medium security institution.
[7] He was transferred to Warkworth Institution on July 23, 2020 as a result of these decisions made by the Warden.
The Decision-Making Process
[8] Information was received and observations were made of the applicant’s behaviour in April 2020 and July 2020. He was interviewed by the security intelligence officer on July 9, 2020.
[9] Further information was received on July 22, 2020 and the applicant was interviewed by the security intelligence officer again on July 23, 2020.
[10] On July 24, 2020, after his transfer to the medium security institution, the applicant telephoned the security intelligence officer and provided further information to her which was of concern to the authorities.
[11] The nature of the conduct by the applicant that concerned authorities included his failure to respect the necessary professional boundaries with staff members and in particular 2 administrative staff members, his failure to abide by institutional rules and his accessing a restricted area after he had been suspended from his employment. Furthermore, after his transfer, contraband was discovered in his cell in the nature of a functional charged cell phone.
[12] On July 27, 2020, the applicant received a copy of a Notice of Emergency Involuntary Transfer Recommendation dated July 24, 2020. He was also provided with copies of the Assessment for Decision dated July 24, 2020 (“A4D”), the Security Reclassification Scale dated July 24, 2020 and the SRS guidelines functional specifications version 4. In the Notice, he was specifically advised that he had 48 hours to submit a rebuttal in writing or in person. He was also advised of his right to counsel and access to the grievance process. The applicant acknowledged receipt of the documentation and information and indicated that he wished to make representations with respect to the transfer in person.
[13] The A4D set out the information that was relied upon in making the decisions. It also informed the applicant that s. 27(3) of the CCRA was being invoked in respect of some of the information. He was informed that specific information was being withheld, and only a gist provided, because disclosure of the information would jeopardize the safety and security of a person. It informed him that the Security Reclassification Scale was completed and indicated a security classification of medium. It also explained to him that the institutional adjustment factor was increased to medium and the reasons for that. It was recommended that an increase in the applicant security level and an involuntary transfer to medium security was deemed to be the most reasonable and least restrictive option based on the information and observations of the applicant’s inappropriate interactions with staff, as demonstrated, boundary issues and disregard of institutional rules and his possession of a cell phone.
[14] The applicant provided a verbal rebuttal by telephone on July 28, 2020.
[15] The Referral Decision Sheet for Institutional Transfer (Involuntary) dated August 4, 2020 summarizes and indicated that the applicant’s rebuttal was considered. The involuntary transfer decision was approved by the Warden after considering and weighing the information presented to him.
[16] The Referral Decision Sheet for Offender Security Level dated August 4, 2020 confirmed the medium security classification.
The Withheld Information
[17] In accordance with the decision of the Supreme Court of Canada in Mission Institution v. Khela, 2014 SCC 24, paragraph 87, the respondent has filed with this 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 safety of any person. The respondent has also explained in the sealed affidavit why such information is considered to be reliable. The sealed affidavit indicates the measures taken to verify the evidence relied upon.
Position of the Parties
[18] Counsel are agreed that the applicant has demonstrated that there was a deprivation of liberty and casts doubt on the reasonableness of the deprivation, and therefore the onus shifts to the respondent authorities to prove that the transfer was lawful in light of all the circumstances. Khela, paras. 30 and 77.
[19] The applicant submits that the standard of review to be applied by this court is correctness as set out in the Supreme Court of Canada decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, because the subject decisions concern general questions of law of central importance to the legal system as a whole. The applicant submits that the reclassification and involuntary transfer of an inmate to a higher level of security is a significant deprivation of liberty which is a question of law of central importance to the legal system as a whole.
[20] The applicant submits that if this court concludes that the standard of review is one of reasonableness, the presumptive standard as set out in Vavilov, then the respondent has not met the onus on it to prove that the decisions were reasonable.
[21] The applicant submits that the decisions are based on allegations which are vague and inaccurate. The applicant submits that the decisions were taken without consideration of other options to deal with the concerns about the applicant’s behaviour. The applicant submits that the decisions did not meet the requirement for the least restrictive environment. The applicant submits that the authorities have not met the onus on them to show that the applicant cannot be managed within a minimum security environment.
[22] The applicant points out that his rebuttal provides an innocent explanation for the concerns about his behaviour and that there are no clearly stated rules or policies that he is alleged to have breached. He argues that his behaviour did not jeopardize the safety of himself, staff or other inmates.
[23] The applicant also submits that the decisions were made in a procedurally unfair manner. The applicant submits that the respondent has not complied with its legal obligations for disclosure of information to the applicant, and in particular, the requirements of s. 27 of the CCRA. The applicant submits that the vagueness of the concerns expressed about his conduct did not permit him to respond.
[24] The applicant submits that this court must look at the record of information that was before the decision maker, and both the public affidavit and sealed affidavit filed by the respondent to determine whether the respondent has met the onus on it for disclosure of information and withholding of information in accordance with the principles set out in Khela.
[25] The respondent submits the standard for review is presumptively one of reasonableness as set out in Vavilov. The respondent submits that this case does not engage one of the exceptions, and that the Vavilov decision does not alter the principles set out in Khela that an inmate can have a transfer decision reviewed for reasonableness by means of an application for habeas corpus. The respondent has cited cases decided subsequent to Vavilov where courts have continued to apply the reasonableness standard of review as articulated in Khela.
[26] The respondent submits that the decisions hold that judges must pay careful attention to the institutional expertise of administrative decision-makers. Vavilov, para. 93; Khela, paras. 74-76. A review on the standard of reasonableness requires deference to the decision-maker’s expertise and knowledge of the threat an inmate poses to the institution’s security.
[27] The respondent submits that the Warden’s transfer decision must be based on reasoning that is both rational and logical. The court must be satisfied that there is a line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusions at which it arrived.
[28] The respondent points out that the record specifically identifies the applicant’s behaviour that gave rise to concerns about his respect for and breach of institutional rules, professional boundaries with respect to administrative staff and possession of contraband. The record explains why in the institutional context his behaviour gave rise to serious concerns.
[29] The respondent also points out that the authorities did take progressive steps to deal with the applicant’s concerning behaviours including interviews, warnings and counselling, and termination of his employment as the cleaner.
[30] The respondent also submits that procedural fairness in this context is reviewable on a correctness standard and that the respondent complied with the legal obligations imposed upon it by s. 27 of the CCRA and the relevant legal authorities and in particular, Khela and Vavilov. The respondent submits that the documentation produced on the record, and the public and sealed affidavit filed should satisfy the court in this regard.
[31] The respondent submits that based on the information provided to the applicant, he knew the case to be met and he was able to and did respond to it.
Analysis
Standard of review
[32] In accordance with the principles set out in Khela, and as confirmed in Vavilov, the exceptions set out in that case not being engaged in this application, the standard of review on this application for habeas corpus is one of reasonableness.
52 As I mentioned above, on an application for habeas corpus, the basic question before the court is whether or not the decision was lawful. Thus far, it is clear that a decision will not be lawful if the detention is not lawful, if the decision maker lacks jurisdiction to order the deprivation of liberty (see, for example, R. v. J.P.G. (2000), 2000 CanLII 5673 (ON CA), 130 O.A.C. 343), or if there has been a breach of procedural fairness (see May, Miller and Cardinal). However, given the flexibility and the importance of the writ, as well as the underlying reasons why the jurisdiction of the provincial superior courts is concurrent with that of the Federal Court, it is clear that a review for lawfulness will sometimes require an assessment of the decision's reasonableness.
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 … 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".
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 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.
77 … First, the traditional onuses associated with the writ will remain unchanged. Once the inmate has demonstrated that there was a deprivation of liberty and casts doubt on the reasonableness of the deprivation, the onus shifts to the respondent authorities to prove that the transfer was reasonable in light of all the circumstances.
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. … 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.
[33] Vavilov confirms that the presumption is that the judicial review of decisions of administrative decision-makers is one of reasonableness, absent the applicability of the exceptions identified in the decision. In my view, those exceptions are not engaged in this application.
[34] Vavilov also directs the reviewing court to respect administrative decision-makers and their specialized expertise, and directs that the court does not ask itself how it might have resolved an issue but rather should focus on whether the applicant has demonstrated that the decision is unreasonable. A reasonableness review finds that the starting point is judicial restraint and respects the distinct role of administrative decision-makers. Para. 75.
[35] A court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, or attempt to ascertain the range of possible conclusions that would’ve been open to the decision-maker or conduct a de novo analysis or seek to determine the correct solution to the problem. Rather, the reviewing court must consider only whether the decision made by the administrative decision-maker including both the rationale for the decision and the outcome to which it led was unreasonable. Para. 83.
[36] Vavilov continues and instructs that a reviewing court must begin its inquiry into the reasonableness of the decision by examining the reasons provided with “respectful attention” in seeking to understand the reasoning process followed by the decision-maker to arrive at its conclusion. Para. 84.
[37] Vavilov, at para. 85, states:
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. The reasonableness standard requires that a reviewing court defer to such a decision.
[38] The following paragraphs from Vavilov provide further principled guidance to the reviewing court:
[93] … In conducting reasonableness review, judges should be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons. Respectful attention to a decision maker’s demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision. This demonstrated experience and expertise may also explain why a given issue is treated in less detail.
[99] … To make this determination, the reviewing court asks 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.
[100] … Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep. Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable.
[102] To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error”. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”. Reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court in understanding the rationale underlying a decision and “are no substitute for statements of fact, analysis, inference and judgment.
[104] Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. This is not an invitation to hold administrative decision makers to the formalistic constraints and standards of academic logicians. However, a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”.
[105] In addition to the need for internally coherent reasoning, a decision, to be reasonable, must be justified in relation to the constellation of law and facts that are relevant to the decision. Elements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers.
[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review.
[126] That being said, a reasonable decision is one that is justified in light of the facts. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. …
[127] The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard. The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties.
[128] Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis”, or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion”. … a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it. In addition to assuring parties that their concerns have been heard, the process of drafting reasons with care and attention can alert the decision maker to inadvertent gaps and other flaws in its reasoning: Baker, at para. 39.
[39] In applying these legal principles to this application, in the context of the information before and considered by the decision-maker, I am satisfied that the respondent has met its onus to prove that the transfer decisions were reasonable in light of all of the circumstances.
[40] In my view, the allegations of which the applicant was informed were accurate and clear.
[41] The steps taken by the authorities were progressive including counselling and warnings, and termination of his employment. I am satisfied on the record before me that reclassification and transfer were reasonable.
[42] The applicant was afforded the opportunity to make a rebuttal and the Warden’s decision makes it clear that the rebuttal was taken into consideration in the decision-making process as set out in the legislation and by the authorities. I do not find it to be a serious flaw that the rebuttal was presented by telephone rather than face-to-face.
[43] The reasoning of the Warden is clearly set out in the documentation contained in the record before me. It is in accordance with the principles set out in Khela and Vavilov.
[44] The decisions were within the range of possible and acceptable outcomes and are defensible in respect of the facts and law that are applicable. The decisions demonstrate justification, transparency and intelligibility. The reasons for and the record of the decision in fact and in principle, support the conclusion reached. For the reasons set out below, I conclude that the evidence relied upon was relevant and reliable and I find that it supports the conclusion.
[45] The reasons of the Warden clearly demonstrate a line of analysis that could reasonably lead him from the evidence before him to the conclusion that he reached. The reasons are more than a repeat of statutory language, a summary of the arguments made or a statement of a peremptory conclusion.
[46] I have accorded deference and respectful attention as directed by these authorities. The respondent has satisfied me that based on all of the information that is identified as having been considered, it was reasonable for the Warden to conclude that the applicant could not be managed within a minimum security environment from the perspective of the authorities who have experience and expertise in such matters. What was considered and why it led to the decisions is clearly stated.
[47] The concerns identified include serious and repeated failure to respect professional boundaries with administrative staff members, failure to respect institutional rules by accessing unauthorized areas, failure to respect staff members and possession of contraband.
[48] The nature of a minimum security institution and the risks and danger associated with close relations with administrative staff, and the danger presented by contraband such as a cell phone, are identified as significant factors in the decisions taken.
[49] Accordingly, for these reasons, the respondent has satisfied me that the decisions were made lawfully, on the basis of the standard of reasonableness.
Procedural Fairness
The s. 27(3) CCRA and Disclosure Issue
[50] The decision in Khela holds that the standard for determining whether the decision maker complied with the duty of procedural fairness will continue to be “correctness”. Khela, para. 79.
[51] The Supreme Court of Canada in Khela stated the applicable principles as follows:
81 … According to s. 13(2)(a) of the CCRR, 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 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 CanLII 45 (SCC), [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 CanLII 138 (SCC), [1990] 1 S.C.R. 653, at p. 682; Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 21; Chiarelli v. Canada (Minister of Employment and Immigration), 1992 CanLII 87 (SCC), [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 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 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.
90 I should point out that not all breaches of the CCRA or the CCRR will be unfair. It will be up to the reviewing judge to determine whether a given breach has resulted in procedural unfairness. For instance, if s. 27(3) has been invoked erroneously or if there was a strictly technical breach of the statute, the reviewing judge must determine whether that error or that technicality rendered the decision procedurally unfair.
[52] In accordance with these principles, I have unsealed and read the sealed affidavit of Amy Scherger. I have now resealed it.
[53] I am satisfied that the respondent has met its legal obligations imposed upon it under section 27 of the CCRA. I am satisfied that the applicant was provided with all of the information considered by the decision-maker or a summary of that information.
[54] I find that the respondent has met the onus to explain that there were reasonable grounds to believe that disclosure of the withheld information would jeopardize the safety of a person. The respondent has demonstrated that only such information as was strictly necessary in order to protect that interest was withheld.
[55] The respondent has proven that the withheld information was believed to be reliable and what steps were taken to determine that reliability.
[56] I find that the applicant was provided with the necessary information that was lawfully required to be provided to him in order for him to understand the case he had to meet and to fully and, on an informed basis, respond to it.
[57] I find that the Warden considered all of the relevant information, both disclosed and gisted, which was provided to the applicant, and the applicant’s rebuttal in reaching the subject decisions.
[58] Accordingly, I am satisfied that the respondent has met its onus of proving to the court that the subject decisions were made in a procedurally fair manner.
Decision on Application
[59] For these reasons, the application is dismissed.
[60] I am not prepared to order costs in favour of the respondent as was requested. Access to justice is a fundamental principle to be respected. Such a costs order could impair Mr. Jacobson’s right to access to justice.
Honourable Justice Gary W. Tranmer
Released: June 30, 2021
COURT FILE NO.: CR-21-00000003-00MO
DATE: 2021 Jun 30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
COSMO JACOBSON
Applicant
– and –
ATTORNEY GENERAL OF CANADA
Respondent
DECISION ON HABEAS CORPUS APPLICATION
Tranmer J.
Released: June 30, 2021