ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SHELDON STUBBS Applicant
– and –
THE ATTORNEY GENERAL OF CANADA Respondent
Kate Mitchell, for the Applicant
Samar Musallam, for the Respondent
HEARD: June 18, 2021
MUSZYNSKI J.
HABEAS CORPUS DECISION
1This is an application for a writ of habeas corpus with certiorari in aid brought by Sheldon Stubbs, a federal inmate incarcerated at Millhaven Institution. The applicant challenges his security reclassification from medium to maximum and his involuntary transfer from Warkworth Institution to Millhaven Institution that occurred as a result.
2The respondent, the Attorney General of Canada, opposes the relief sought by the applicant and seeks an order dismissing the application with costs.
ISSUES
3The 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
4I find that the decisions by the Correctional Service of Canada (“CSC”) to reclassify the applicant, Sheldon Stubbs, from medium to maximum security and the associated institutional transfer to have been unreasonable, procedurally unfair and therefore unlawful. The habeas corpus application is granted. The decisions of the Warden to reclassify and transfer the applicant are hereby quashed.
POSITION OF THE PARTIES
5The parties agree that the security level reclassification and the resulting involuntary transfer of the applicant constitute a deprivation of liberty.
6The parties differ as to whether the decisions were lawful, specifically, whether they were reasonable and whether the process was procedurally fair.
7The applicant takes the position that the decisions to reclassify and transfer him were unreasonable because they were based on the conclusion that he was actively involved with a drone drop of contraband at Warkworth Institution. The applicant submits that there is insufficient information to conclude that he was actively involved in the drone drop incident. The applicant further states that other incidents relied upon by CSC to justify his reclassification and transfer were dated or minor in nature. 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.
8The 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
9The applicant is a 35 year-old federal inmate currently serving a 19 year and 1 month sentence at Millhaven Institution for attempted murder, break and enter, use of firearm to commit an indictable offence, possession of a prohibited weapon, fail to comply x 2, carry a concealed weapon and assault causing bodily harm. The applicant began his federal sentence on June 24, 2009. Throughout most of his period of incarceration the applicant has been classified as a maximum security inmate. In December 2019, the applicant was reclassified as a medium security inmate and transferred to Warkworth Institution.
10On June 15, 2020, the applicant was transferred to Millhaven Institution (maximum security) on an involuntary basis from Warkworth Institution (medium security) following an incident that took place on June 14, 2020. On that date it is alleged that the applicant was actively involved with a drone drop of contraband that occurred at Warkworth Institution while the applicant was out in the yard.
11It is this reclassification and transfer that forms the subject of this application.
12Following the June 14, 2020 drone drop incident, an Assessment for Decision (“A4D”) was prepared by the applicant’s parole officer that outlined the applicant’s background and contained recommendations about his future. The A4D contains the following information:
a. “Since his transfer to Warkworth Institution from Millhaven Institution (MI) six months ago, Mr. STUBBS has incurred one serious institutional, was involved been physical altercation with a fellow inmate, and recently participated in a serious incident that prompted this involuntary transfer back to MI.”
b. “On 2020-06-14, a drone was observed going over the west yard and dropping a package into the yard during recreation. Observation reports from the incident noted that Mr. STUBBS was observed disposing of a 2/3 empty of a container of Vaseline under the fence in the yard. Minutes later, two inmates were observed entering the outhouse together, and shortly after, one inmate leaves followed by the other inmate a few minutes later. The fact that Mr. STUBBS was in possession and deposed of the container of Vaseline demonstrates some premeditation or knowledge of the contraband introduction. Equally concerning is the fact that, as the correctional officers were trying to contain the incident and search offenders before moving them back to the unit, Mr. STUBBS was actively trying to incite the other inmates. It was also noted that Mr. STUBBS was one of the offenders that forcefully pushed past officers to gain access to the gym as officers tried to contain the situation. It was noted that Mr. STUBBS was rude, disrespectful, vocal, confrontational, and refused direct orders while trying to incite inmates to leave before being search. It should be noted that several items were located around the outhouse including a fishing quick release clip, package of cigars, bale of tobacco, and plastic black bag with dental floss.”
c. “As a result of Mr. STUBBS’ involvement in this serious incident, it has been determined that he can no longer remain in open population at Warkworth. His behaviour during his short time at Warkworth Institution has demonstrated that he cannot be managed in a medium security setting and requires the structure that only a maximum-security setting can provide.”
d. “His role in this incident is of great concern and prompted his involuntary transfer to MI.”
e. “The security reclassification scale was completed on 2020-06-16 producing a score of 24, which is reflective of a medium security rating. An override to MAXIMUM security is being recommended based on the following security ratings.”
f. “Mr. STUBBS is being reassessed as an offender with high institutional adjustment concerns. His behaviour at Warkworth demonstrates that he cannot be managed in a medium security setting.”
13The applicant submitted a written rebuttal to the Warden on June 22, 2020 with respect to this involuntary emergency transfer and security reclassification. The rebuttal includes the following information:
a. “In no way will I begin to pretend to know how to do your job. Nor will I pretend to try to comprehend the magnitude of attempting to oversee an offender population in such great numbers.”
b. “I am simply looking to add colour to the events which took place on the dates in question.”
c. “The first one which took place on March 29th, 2020 for being disrespectful to an officer. Which to attempt to defend would be pointless and baseless. Due to the fact that I cannot provide evidence or support the fact that my comments were misconstrued & taken completely out of context.”
d. “However the incident on June 2nd, 2020 was completely the opposite of the actual events recorded. It was inappropriate horseplay/play fighting by another inmate & myself.”
e. “Now the incident on June 14th, 2020 which I understand was a serious security risk. However I had zero involvement in contraband being potentially introduced. Simply being one of the inmates who had to wait while officers attempted to monitor the situation & take the appropriate actions as staff members responding to such an event. My frustration which was evidence caused staff members to feel as if my behaviours towards officers was in an attempt to incite other inmates jeopardizing the safety & well-being of the institution.”
f. “There is no evidence supporting that I was apart of this security incident in any manner or fashion other then I was unlucky in the sense I was at yard when this incident occurred & my displeasure of the situation in general was misconstrued as comments & words which other inmates related to & shared their displeasure causing staff members to feel a heightened threat of discomfort & alertness & have caused to re-max me.”
14A Referral Decision Sheet for Offender Security Level was approved by the Warden of Warkworth Institution on June 25, 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. “Mr. Stubbs was actively involved in events on 2020-06-14. He is believed to have been involved in attempted introduction of contraband via a drone drop. He then engaged in behaviour that was described as inciting, rude, and confrontational, and escalated to him forcibly pushing past Officers while officers were attempting to contain the situation. I recall that in March, he also demonstrated an unwillingness to follow officer direction, was rude and attempted to physically intimidate an officer by sticking out his chest. I consider these events and Mr. Stubbs’ recent involvement in a physical altercation with another offender as significant enough to warrant an increase into his Institutional Adjustment rating to High.”
b. “Mr. Stubbs submitted a written rebuttal to his emergency involuntary transfer to Millhaven maximum security and I have considered his submission. While he explained that he was frustrated due to the heat and the stress of events on 2020-06-14, this is insufficient justification for his reported behaviours. Nor was he able to provide a satisfactory explanation for his other problematic behaviours while at WI.”
15A Referral Decision Sheet for Institutional Transfer (Involuntary) was approved by the Warden of Warkworth Institution on June 25, 2020. The Warden provides the following rationale for the transfer decision:
a. The applicant initially indicated he did not want to participate in the rebuttal process but changed his mind and received the extension of time he required. The applicant’s rebuttal was received and considered.
b. “In your rebuttal. You are respectful and deny any knowledge of the drone, although you do not offer any explanation for the Vaseline you were observed disposing of. You indicate that the extreme heat and stress of events on the evening of 2020-06-14 frustrated you and fueled your behaviour when officers were trying to contain and move people. You also state that your previous disrespectful behaviour toward an officer was misconstrued and that CSC has identified as a fight on 2020-06-02 was in fact just horseplay.”
c. “In the short time that you have been in our population, you have been involved in the above noted problematic incidents and your behaviour during the events on 2020-06-14 were viewed as serious enough to warrant an emergency involuntary transfer back to Millhaven Maximum security institution.”
ANALYSIS
16The 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.
Reasonableness of Decision
17In 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”: see para 65.
18Khela 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…”: see para 74.
19The 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.
20The issue to be determined is whether the decisions to reclassify and transfer the applicant were reasonable having regard to the unique expertise and specialized knowledge of prison officials.
21While the Warden’s decisions refer to the applicant’s behaviour on other occasions while at Warworth Institution, the Warden’s decisions state that the applicant’s alleged involvement in the drone drop incident was the chief reason for his reclassification and transfer. It was the triggering event that caused CSC to reassess the applicant as having “high institutional adjustment” thereby resulting in a recommendation to reclassify him as maximum and transfer him to Millhaven Institution.
22The A4D and the Warden’s decisions conclude that the applicant was involved with the drone drop because:
a. he was observed disposing of a container of Vaseline on the yard;
b. he was one of the inmates trying to push past guards;
c. he was making comments to incite other inmates;
d. he was being rude and disrespectful to the guards while they were trying to contain the situation.
23In the Supreme Court of Canada case of Canada (Minister of Citizenship and Immigration) v. Vavliov, 2019 SCC 65 [Vavilov], the process for reviewing an administrative decision was addressed:
Developing an understanding of the reasoning that led to the administrative decision enables a reviewing court to assess whether the decision as a whole is reasonable….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 the constrain the decision maker: see para 85.
24Vavilov confirms that it is both the actual decision made by the administrative body and the process in which the decision is made that must be considered to determine whether it was reasonable. The issues of reasonableness of a decision and procedural fairness can therefore, to some extent, involve overlapping considerations.
25I accept the respondent’s submission that it is not necessary for CSC to prove an offender’s guilt beyond a reasonable doubt in order to justify a change in security classification and transfer to another institution. In Gallant v. Canada (Deputy Commissioner, Corrections Service), 1989 CanLII 9463 (FCA), [1989] 3FC 329, the Federal Court of Appeal confirmed that all that is required is the existence of information “sufficient to raise a valid concern and warrant the transfer”: see para 28.
26I am unable to connect the reasoning in the A4D and the Warden’s decisions as to why the applicant’s behaviour on June 14, 2020 allowed CSC to conclude he was actively involved in the drone drop. The materials of CSC fail to provide an explanation as to why the disposal of the Vaseline jar was significant or why the applicant’s behaviour otherwise led to this conclusion. It is important to connect the applicant’s behaviour to the incident itself and to place the applicant’s behaviour within the correctional context as being problematic for the incident to be used to justify a reclassification and transfer. I find that this was not done in this case.
27When questioned at the hearing about the significance of the Vaseline, counsel for the respondent acknowledged there was limited information contained in the record regarding this issue and that I was not being asked to take judicial notice as to how the Vaseline was connected to the drone drop.
28Vavilov states:
Where a decision maker’s rationale for an essential element of the decision is not addressed in the reasons and cannot be inferred from the record, the decision will generally fail to meet the requisite standard of justification, transparency and intelligibility: see para 98.
29The applicant’s behaviour during his short time at Warkworth Institution is concerning. However, on the record before me, the lack of connection between the applicant’s behaviour on June 14, 2020 and his active involvement in the drone drop result in a gap in CSC’s chain of analysis which was central to the decisions to reclassify and transfer the applicant. It is for this reason that I find the decisions to be unreasonable and therefore unlawful.
Procedural Fairness
30The applicant further 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.
31The standard of review for whether a decision was unlawful on the basis of procedural fairness is correctness.
a) Information Sharing
32Following a security reclassification and transfer of an inmate, s. 27 of the Corrections and Conditional Release Act S.C. 1992, c. 20 [CCRA] provides that “all of the information” or a “summary of that information” that was put to the Warden, and was ultimately used by the Warden in reaching a decision, must be disclosed to the offender.
33The applicant acknowledges that s. 27(3) of the CCRA permits CSC to withhold information if disclosure of that information would jeopardize the safety or security of any person, the institution or the conduct of an investigation. In this case, CSC did not invoke s. 27(3) of the CCRA to justify withholding information from the applicant.
34The objective of the disclosure requirements in the CCRA are to ensure that an offender has the information required to make an effective rebuttal to allegations made against him or her. In this case, CSC submits that the applicant had the information, or a summary of the information, relied upon by the Warden to make the decisions to reclassify and transfer him and that there has been no breach of the disclosure requirements contained in s. 27 of the CCRA.
35The applicant submits that he was provided with merely vague allegations of being rude and confrontational as opposed to more concrete examples of his alleged poor behaviour that warranted the reclassification and transfer. The applicant was not provided with the following documents, which were ultimately produced as evidence on this application:
a. Observation Report, June 14, 2020 (PSW Davies);
b. Observation Report, June 14, 2020 (Lake);
c. Observation Report, June 14, 2020 (Forster);
d. Observation Report of Institutional Charge, March 29, 2020;
e. Report of Physical Altercation, June 2, 2020.
36In the A4D and the Warden’s decisions, there is no specific summary or gist of each of the above noted reports. CSC only provided the applicant with bald allegations of poor behaviour including being “inciting, rude, and confrontational”. The above noted reports include additional details, such as what the applicant is specifically alleged to have said to whom, and what he was specifically observed to have done.
37It is not necessary for every observational or incident report to be provided to an offender following a reclassification or transfer. However, when such information is withheld by CSC without invoking s. 27(3) of the CCRA, summaries must be provided that contain sufficient detail to permit an offender to make an informed rebuttal.
38I find that CSC failed to follow the disclosure provisions of s. 27 of the CCRA by not providing the applicant with “all the information” or a “summary of that information” relied upon by Warden to make his decisions to reclassify and transfer the applicant or, alternatively, by failing to follow the procedure in s. 27(3).
39I find that the manner in which information was shared and disclosed to the applicant was therefore procedurally unfair.
b) Consideration of the applicant’s rebuttal
40The applicant alleges that the Warden did not adequately consider his rebuttal, which allegation I reject.
41An 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 submitted a written rebuttal to contest his reclassification and transfer.
42The Warden acknowledged reviewing the applicant’s written rebuttal including the applicant’s explanation for his behaviour on June 14, 2020, that being that he was frustrated and hot. The Warden’s decisions state that the applicant provided “insufficient justification for his reported behaviours.”
43It is not incumbent on CSC to respond to every argument raised in an offender’s written rebuttal. The Warden’s decisions acknowledge the rebuttal and comment on the applicant’s explanation for his behaviours. I find that the applicant’s rebuttal was considered by the Warden in a manner that was procedurally fair.
c. Sufficiency of Reasons
44The applicant alleges that the Warden’s reasons were insufficient. The consideration of sufficiency of reasons can take place both in the analysis of whether a decision was reasonable and whether the decision was made in a manner that was procedurally fair.
45As I have found that the decisions of the Warden to reclassify and transfer the applicant to be unreasonable due to the gap in CSC’s chain of analysis on the record before me, for the same reason, I find that the Warden’s reasons are insufficient and therefore result in procedural unfairness.
CONCLUSION
46I find that the decisions by CSC to reclassify the applicant, Sheldon Stubbs, from medium to maximum security and the associated institutional transfer to have been unreasonable, procedurally unfair and therefore unlawful. The habeas corpus application is granted. The decisions of the Warden to reclassify and transfer the applicant are hereby quashed.
COSTS
47At the hearing of the application, the applicant took the position that no costs should be awarded regardless of the outcome. Accordingly, no costs are ordered.
Muszynski J.
Released: July 7, 2021
Stubbs v. The Attorney General of Canada, 2021 ONSC 4819
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SHELDON STUBBS
-and-
THE ATTORNEY GENERAL OF CANADA
HABEAS CORPUS DECISION
Muszynski J.
Released: July 7, 2021