COURT FILE NO.: CR-21-4-MO

DATE: 2022/09/30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Kevin Ruttan

Applicant

Taylor Andreas, for the Crown

Todd Sloan, for the Applicant

HEARD: April 1, 2022 (Kingston)

REASONS FOR DECISION ON HABEAS CORPUS APPLICATION

Somji J

Overview

[1] The Applicant is detained at a medium security facility serving a life sentence for second degree murder. He challenges by way of habeas corpus the Correctional Services Canada Administration’s (“CSC”) decision to transfer him from a minimum to a medium security institution on November 19, 2019, following a security classification (“2019 transfer decision”). The reclassification resulted in the transfer of the Applicant from Joyceville Institution, a minimum-security facility, to Collin’s Bay Institution (“CB”) and upon the Applicant’s request, to Bath Institution a week later, CB and Bath both being medium security facilities.

[2] The Applicant argues that the CSC’s decision was unlawful, that it should be overruled, and that he should be reinstated to minimum security. The Applicant argues first that the decision-maker erred in fact and law by a) providing the Applicant with irrelevant and erroneous information; b) failing to share with him the information considered; and c) inappropriately considering the applicant’s representations regarding the decisions before they were taken. Second, the Applicant disagrees his purported misconduct on which the 2019 transfer decision was taken was inconsistent with a minimum-security setting, and therefore, the reclassification and transfer to a medium security institution contravened correctional legislation governing security classifications and transfers of inmates.

[3] The Respondent argues that the 2019 transfer decision was lawful. The Joyceville Warden’s reasons for the transfer and CSC records support the decision reached. As the decision was largely fact-driven, administrative in nature, and made by staff with expertise in the particular environment at Joyceville, it is entitled to deference and should not be intervened with: Mission Institute v Khela, 2014 SCC 24 at paras 74-76.

[4] Upon review of the affidavits and the reasons for transfer as set out in the CSC records filed, including the detailed A4D, I find that the 2019 transfer decision was lawful for the reasons set out below.

Background Facts

[5] The Applicant began serving a life sentence for second degree murder on May 20, 201l. He commenced his sentence on June 30, 2011, at Millhaven, a maximum-security institution.

[6] The Applicant’s security classification has fluctuated over the years. The Applicant was transferred to Edmonton Institution in 2012. In January 2014, he was reclassified as a medium security offender and transferred to Warkworth Institution and later Bath in October 2016. On March 3, 2019, he was reclassified to minimum security and transferred to Joyceville.

[7] On November 19, 2019, approximately eight months after his arrival at Joyceville, the Applicant was transferred involuntarily back to a medium security facility at CB following a security classification exercise undertaken by a team of staff and governed by a process set out in the Corrections and Conditional Release Regulations, (SOR/92-620). The 2019 transfer decision was authorized by the Warden of Joyceville, Scott Thompson (“Warden”).

[8] Approximately one week later, on November 26, 2019, the Applicant was laterally transferred, upon his own request, to another medium security institution at Bath.

[9] On February 6, 2020, the Applicant underwent another security classification which resulted in a decision to maintain his classification at medium security. Following this, he was involuntarily transferred to another medium security institution at Beaver Creek. This decision was authorized by Ryan Beattie, the Warden of Bath. The October 7, 2020, security classification governs his current detention status.

[10] The Applicant is not challenging any of the lateral transfers between the various medium security institutions nor is he challenging his present security classification of February 6, 2020. His request for a writ of habeas corpus is only with respect to CSC’s 2019 transfer decision.

Standard of Review

[11] The parties agree that the standard of review applicable to the 2019 transfer decision is reasonableness. The rationale for this standard is to prevent courts from micromanaging prison decisions: Khela at para 75. Involuntary transfer decisions are considered to be largely administrative and fact-driven inquiries involving the weighing of various factors and are decisions which possess limited legal dimensions: Khela, at para 76. Consequently, deference is owed to inmate transfer decisions made by CSC staff given their expertise in the environment of a particular penitentiary: Khela at 75.

[12] A decision will be reasonable if a court finds the “the existence of justification, transparency, and intelligibility in the decision-making process” and the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47; Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 86. The Supreme Court has emphasized that when conducting reasonableness reviews, courts must consider both the justification and outcome of the administrative decision. The focus must be on the decision made and justification for it and not on the decision a reviewing court would make had it been deciding the matter: Vavilov, at para 96.

Burden of proof on a habeas corpus application

[13] On an application for habeas corpus, the Applicant must first establish that there has been a deprivation of liberty. Upon doing so, the burden shifts to the Respondent to prove that the deprivation was lawful: Khela at para 30.

[14] The parties agree that the Applicant’s security reclassification from minimum to medium security and the resulting 2019 transfer from Joyceville (minimum security) to Bath (medium security) resulted in a deprivation of liberty. Consequently, the Respondent has the burden to prove that the deprivation was lawful.

Issue: Was the 2019 transfer decision lawful?

A. The Grounds for the 2019 transfer

[15] Lisa Racicot was assigned as the Applicant’s Parole Officer at Joyceville starting February 28, 2019, and up until his 2019 transfer. Ms. Racicot reports in her affidavit that in assessing an inmate’s classification, CSC utilizes the Security Reclassification Scale (“SRS”), a research based actuarial classification tool. While SRS is an important tool in the assessment of an offender, the classification is also guided by the clinical assessment and recommendations of parole officers, correctional officers and other institutional staff who have firsthand experience with the offender. The clinical assessment is based on factors set out in legislation and policy including the Commissioner’s Directive 710-6, Review of Inmate Security Classification.

[16] The use of this combined process for security reclassifications - the SRS and clinical assessment by staff - was corroborated by Gordon Zuber, an Assistant Warden at Beaver Creek.

[17] Ms. Racicot prepared an Assessment For Decision (“A4D”) dated November 21, 2019, and updated November 26, 2019, which sets out the reasons for the 2019 transfer decision. The grounds for the 2019 transfer relate to the Applicant’s employment suspensions, failing to follow protocols for school and employment applications, repeatedly attending the second floor of the PA building when directed not to be there, and making misleading statements to staff.

[18] In the A4D, Ms. Racicot reported that the Applicant displayed problematic behaviour almost immediately upon his arrival at Joyceville. The Applicant started employment on the grounds unit on April 1, 2019, and was suspended on April 25, 2019, less than a month later due to repeated failures to attend for work as scheduled and for demonstrating a poor work ethic.

[19] On May 8, 2019, the Applicant approached his previous supervisor on the grounds unit, and falsely claimed that staff had directed that he be rehired for his position. It was quickly discovered this was false, but despite his dishonesty, the Applicant was given a second chance to recommence employment with the grounds unit on May 10, 2019. He failed to report for his first scheduled shift and thereafter for three consecutive shifts. He was consequently suspended from employment on May 16, 2019.

[20] On May 24, 2019, the Applicant approached the grounds unit supervisor again and falsely claimed that staff had sent him to reapply for the position. Over the next few days, the Applicant continued to inundate staff with conflicting information and applications for intuitional employment without the knowledge and support of his parole officer.

[21] The Applicant was later approved for employment with the Joyceville house repairs unit and was sent to commence employment there on June 19, 2019. However, within eight days, this employment opportunity was suspended because the Applicant failed to attend shifts.

[22] On July 10, 2019, the Applicant inappropriately lobbied another Parole Officer, Trevor Larson, to sign a job application without Ms. Racicot’s knowledge, once again circumventing the procedures in place for job applications.

[23] On October 10, 2019, the Applicant attended a programs department office to submit a computer course application which had been signed by yet another Parole Officer, Joe Jansen. In Ms. Racicot’s absence, the Applicant misrepresented Mr. Jansen’s signature to be an endorsement by a Joyceville manager.

[24] In addition, the Applicant was directed while at Joyceville not to attend the second floor of the Program Administration (“PA”) building without prior authorization. The Applicant repeatedly breached this directive by attending when unauthorized and furthermore, misleading staff about his reasons for being there. For example, on October 4, 2019, the Applicant attended the second floor of the PA building regarding an employment application. He was advised by the Program Assistant Jessica Mangan that because he was not in any institutional programing or school, he was not allowed to be there. He was advised that until his employment suspension was over and his school attendance approved, he could not start school. Ms. Mangan directed the Applicant to seek clarification on his school application from his parole officer and to not attend the second-floor area of the PA building. The Applicant returned to the area ten minutes later.

[25] Ms. Mangan informed the Applicant’s parole officer of this transgression. Due to her prior involvement with the Applicant, Ms. Racicot asked Ms. Mangan to prepare a summary of the Applicant’s employment issues since his arrival at Joyceville. The report was filed as an exhibit and reflects one incomplete work assignment, three employment suspensions, and multiple attempts by the Applicant to manipulate staff to obtain employment.

[26] The details of the above-noted employment suspensions and acts of manipulation in April, May, June, and October 2019 are also summarized in the A4D prepared by Ms. Racicot

[27] Ms. Racicot met with the Applicant following the incident of October 4, 2019, to discuss his behaviour. She directed the Applicant not to attend the second floor of the PA building without prior authorization and to cease filing applications outside the course of the proper procedures. Ms. Racicot reminded the Applicant that he was under his third employment suspension since his arrival at Joyceville. She advised the Applicant that he would be listed for a Correctional Intervention Board (CIB) meeting to discuss his multiple suspensions and continued efforts to manipulate staff rather than following the processes in place.

[28] The Applicant did not comply with her directives. On October 11, 2019, he attended the second floor of the PA building again, standing in the doorway of the teacher’s class. He was issued an institutional charge for being in an unauthorized area.

[29] On October 17, 2019, the Applicant met with CIB to discuss his behaviour. Present at the meeting was the Program Manager, the Assistant Program Manager, the Guidance Counselor, the Social Program Officer, the Assistant Warden, Ms. Racicot, and the Applicant. Staff reviewed with the Applicant his multiple employment suspensions and his continued attempts to manipulate staff and circumvent the processes for various applications. The CIB warned the Applicant that his behaviour was unbecoming of a minimum-security inmate and that further breaches would result in a review of his security classification. The Applicant was offered employment in the kitchen. He was told he would not be offered other employment opportunities or computer courses until he could demonstrate consistently appropriate behaviour for three months. He was directed not to submit further employment applications and not to attend the second floor of the PA building.

[30] Despite this directive, CSC staff found the Applicant immediately after the meeting loitering on the second floor of the PA building. The Assistant Warden summoned the Applicant back before the CIB and he was given yet another warning.

[31] On November 19, 2019, PA staff found the Applicant again on the second floor of the PA building contrary to the directions given. When PA staff confronted the Applicant, he snapped his fingers in a disrespectful manner and stated he was “just passing along a message.” The PA staff informed him that he would be issued a second charge for attendance in the area without authorization and his response was “you do that.”

[32] The same day, the Applicant falsely told staff that the Assistant Warden had authorized his attendance at the PA building. This was later denied by the Assistant Warden at a meeting in the presence of the Applicant. The Appellant had also, by this date, accumulated further unexplained absences from his new employment in the kitchen.

[33] As a result of these cumulative breaches, the Warden, Assistant Warden, two security intelligent officers, the Program Manager, and Ms. Racicot met on November 19, 2019, to discuss the Applicant’s behaviour. The Assistant Warden confirmed he had not authorized the Applicant’s attendance at the PA building the day before. Everyone at the meeting unanimously decided that the Applicant’s behaviour was inconsistent with the expectations of a minimum-security offender and supported the recommendation for his reclassification to medium security. The Warden decided to transfer the Applicant to CB on an emergency basis.

[34] Ms. Racicot prepared the 14-page A4D dated November 21, 2019, summarizing the misbehaviors described above and recommending the Applicant’s transfer to medium security, a copy of which was provided to the Applicant. At page 7 of the A4D, Ms. Racicot concludes:

This writer has personally been involved in countless interactions with staff and the offender both individually and in case consultation/meeting formats in an effort to address the subject’s conduct. The offender has additionally approached this writer on multiple occasions to request guidance, to which he was repeatedly reminded of the same: that his suspensions are a result of his poor work ethic and attendance issues; that he is a young, able-bodied offender serving a Life sentence; that he is in good health and needs to demonstrate a high degree of motivation and require little supervision/intervention in a minimum security setting if he wishes to remain at this institution and before he will be supported for a form of conditional release.

In the opinion of the CMT, Offender Ruttan’s institutional behaviour requires a moderate degree of supervision and control within the penitentiary and as such, no longer meets the criteria for minimum security. The CMT recommends that an evaluation from the subject’s previously assessed low institutional adjustment rating to Moderate is warranted.

[35] The A4D also went on to explain the expectations of minimum-security inmates and how the Applicant had failed to meet those expectations. At page 12-13 of the A4D, Ms. Racicot states:

As per CD706 (para 5), with regard to behaviour norms, “Minimum security inmates are expected to: a) interact effectively and responsibly with minimal monitoring, and b) demonstrate a high level of motivation towards self-improvement by actively participating in their Correctional Plan”. As detailed in this report, Offender RUTTAN’s institutional behaviour has demanded an inordinate amount of resources poured into repeated informal resolution and charges, neither of which have deterred this offender’s dedication to the blatant disregard for both the rules and regulations of the institution and the direction of staff. He demonstrates little to no motivation to work, to follow processes or need the guidance of staff. He has, rather, repeatedly engaged in the manipulation of staff in an effort to both garner what he wants and avoid what he doesn’t. Offender RUTTAN’s institutional adjustment during this 8+ months at minimum security, culminating in the new information, would collectively suggest that the subject requires a significantly greater degree of supervision than what is expected for a minimum-security offender. As such, an increase in security level and an Emergency Involuntary Transfer are deemed to be the most appropriate/necessary options at this time.

[36] In addition, Ms. Racicot completed an SRS assessment on November 20, 2019, which resulted in a score of 24 and placed the Applicant in a medium security range. It is important to note that the SRS score did not include all the Applicant’s transgressions. In fact, only the institutional charge of possession of homemade cigarettes and tobacco of June 17, 2019, was inputted into the assessment. The breaches for his unauthorized attendance on the second floor of the PA building on October 11 and November 19, 2019, were not included and neither was an institutional breach on October 10, 2019, for failing to wear institutional clothing during work hours after being warned to do so previously. A copy of the SRS was provided to the Applicant.

[37] Following the meeting, the Applicant was placed in a holding cell where staff person CM J Steel explained to him that he was being involuntarily transferred to CB, a medium security institution, and why. The Applicant stated he did not think he had done anything wrong and did not understand why he had to leave. The situation and reasons for transfer were explained to him. At that time, the Applicant requested that he be able to return to Bath instead. Mr. Steel explained to him that he was going to CB because a bed was available there for him. According to the A4D, the Applicant was not pleased but did not offer any comment.

[38] On November 19, 2019, the Applicant was moved to CB. It was reported that he refused to integrate into the population. The Applicant entered segregation on November 22, 2019, citing concerns for his safety. He also requested a transfer to Bath which was subsequently approved by the Warden. On November 26, 2019, he transferred from CB to Bath.

[39] In addition to the A4D summarizing the reasons for the 2019 transfer decision, the Applicant also received and signed several documents confirming his transfer consisting of:

a. Referral Decision Sheet for Offender Security Level;

b. Referral Decision Sheet for Emergency Involuntary Transfer to Collins Bay; and

c. Notice of Emergency Involuntary Transfer Recommendation.

collectively referred to hereinafter as the “transfer documents.”

[40] The Referral Decision Sheet dated November 26, 2019, is a two-page document briefly summarizing the reasons for the transfer as detailed in the A4D. It confirms the Warden’s decision to reclassify the Applicant to medium security and that informs the Applicant of his right to appeal the decision through the inmate grievance process within 30 days. The Applicant did not appeal.

[41] The second document was the Referral Decision Sheet for the Emergency Involuntary Institutional Transfer to CB dated November 26, 2019, and signed by the Warden. The Applicant also signed and acknowledged receipt of the document at 12:37 on the same date. The Referral Decision Sheet for Emergency Involuntary Transfer confirmed that following the CIB meeting of November 19, 2019, it was determined that the Applicant could not be managed at a minimum-security institution because of his escalating behaviors and attitude since the beginning of October 2019. It noted that the Applicant had submitted a rebuttal to the proposed transfer to medium security and had an opportunity to meet with the Warden on November 25, 2019. Although it was recognized that CB could meet the security needs of the Applicant and that there were no compatibility issues that would impact his integration into CB, the Warden had, following his meeting with the Applicant, refused the transfer to CB and approved the Applicant’s request to be transferred to Bath which he found would be a more suitable environment for the Applicant. This approval was granted despite concerns raised by staff at Bath about whether the Applicant’s behaviour at Joyceville would be compatible with the expectations and open environment at Bath. Given the Applicant had previously fared well at Bath, the Warden granted the approval.

[42] The Referral Decision Sheet for Emergency Involuntary Transfer confirmed that the Applicant had reported to the Warden during the rebuttal meeting that he recognized his behavior at Joyceville had not been consistent with low institutional adjustment and that he would learn from his experience. Based on the rebuttal meeting and in conjunction with his review of the A4D, the Warden was satisfied that the decision to reclassify and transfer to Bath were both appropriate. The Applicant also confirmed by signature his waiver of the two-day notice period before his transfer could take effect.

[43] The third document signed by the Applicant is the Notice of Emergency Involuntary Transfer Recommendation (“Notice”) dated November 26, 2019. It sets out that pursuant to s. 29 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, the Applicant has been recommended for transfer to Bath from CB. It refers to the A4D which states that the Applicant’s behaviour at Joyceville has deteriorated substantially since October 4, 2019. It highlights that the Applicant has blatantly disregarded direction from staff, incurred institutional charges, and failed to comply with expectations of his correctional plan. It reviews the incident of October 4, 2019, makes references to poor employment attendance, and discusses the Applicant’s transgressions on the second floor of the PA building. It refers to the chronology of events leading to the reclassification to medium security and the transfer to CB. It states that once at CB, the Applicant refused to integrate and imploded staff for a transfer to Bath which was approved by the Warden.

[44] The Notice also goes on to state that based on the A4D and the in-person rebuttal to the proposed transfer, the case team has determined that the Applicant requires more structure and observation than can be afforded in a minimum-security setting, and that he is no longer manageable at a minimum-security detention center such as Joyceville. For all these reasons, a recommendation is made for the Applicant’s transfer to Bath.

[45] The Notice confirms that the Applicant has received the A4D, the SRS, and the Notice itself. The Applicant has 48 hours to submit a rebuttal in writing or in person which must be directed to the Warden at Joyceville. The Applicant is also entitled to contact a lawyer and have access to the CSC Grievance Procedure. At the bottom of the Notice, the Applicant signs and acknowledges the following:

a. That he has received a copy of the Notice;

b. That he has been advised of his right to retain and instruct counsel;

c. He has been provided a reasonable opportunity to retrain and instruct counsel by telephone; and

d. That he does not wish to make representation with respect to the proposed transfer in the next two working days after he receives the supporting documentation.

B. Was the Warden’s decision reasonable?

[46] The Applicant’s position that the Warden’s decision was unreasonable centers principally around two arguments: first, that the behaviors that formed the basis of the transfer decision are refused or mitigated by the Applicant in his affidavit; and second, that the Applicant’s misconduct does not represent behaviors that cannot be managed at a minimum-security facility.

[47] I will address each of these issues in turn.

i. Were the behaviours on which the Warden relied refuted or mitigated by the Applicant’s affidavit?

[48] The Applicant filed an unsigned affidavit dated June 2021 in which he states that his reclassification to medium security and involuntarily transfer to CB and Bath was because he had not been pursuing educational opportunities appropriately and had two breaches for unauthorized attendance on the second floor of the PA building which he believes he was internally disciplined for. For this reason, the Applicant believes his misconduct was not sufficiently severe to warrant his transfer to medium security.

[49] The Applicant goes on to state that he believes that the real reason for the 2019 transfer decision was because of a conflict between a Joyceville teacher Harold Higgs who supported his education and other correctional staff who did not. The Applicant believes Mr. Higgs was later relieved of his duties because of this conflict. The Applicant argues that the omission of this conflict in the A4D is contrary to s. 27 of the CCRA which requires the offender to be given a reasonable period before the decision is to be taken, all the information to be considered in the taking of the decision or a summary of that information: s. 27(1) Corrections and Conditional Release Act, S.C. 1992, c.20 (“the CCRA”).

[50] I find the Applicant’s arguments are not supported by the evidence filed.

[51] First, the detailed A4D sets out the multiple reasons for the Applicant’s transfer which far exceed his inappropriate attempts to apply for school programs outside the normal procedures and two PA building transgressions. The Applicant fails to acknowledge or address all the reasons for his reclassification as set out in the A4D described above which included employment suspensions, missing work shifts and poor work ethic, institutional breaches, inundating staff with applications that circumvented processes, misleading staff, and repeatedly attending the PA building when directed not to.

[52] Second, Harold Higgs, provided an affidavit wholly denying the Applicant’s claims. He states that he never gave the Applicant permission to attend the second floor of the PA building contrary to the direction of PA staff. In fact, he is not authorized to give such directions. Furthermore, upon learning from staff that the Applicant was banned from the area, he himself directed the Applicant to leave the area on several occasions when the Applicant came to see him. Finally, Mr. Higgs confirmed that there was no conflict between him and the PA staff regarding the Applicant’s educational opportunities and at no time was Mr. Higgs ever required to leave his duties as a teacher because of such alleged conflict.

[53] The Applicant was granted an adjournment to permit him an opportunity to cross-examine Mr. Higgs on these points, but he chose not to pursue cross-examination.

[54] Given Mr. Higgs did not identify any conflict between himself and other correctional staff regarding the Applicant’s education and training opportunities, there was no requirement for Ms. Racicot to refer to it in the A4D, and therefore, no omission of relevant information in A4D or the 2019 transfer documents. Moreover, had the Applicant believed at the time that the A4D and transfer documents contained factual errors or omissions, it was incumbent upon him to identify these in his rebuttal meeting or through the appeal process. There is no record that he did either.

[55] Third, the Applicant has not provided any evidence to support his claim that the institutional breaches resulting from his unauthorized attendance on the second floor of the PA building did not occur. The A4D clearly explains that the Applicant breached the directive not to attend the 2nd floor of the PA building on October 4, 11, and 17 as well as November 19, 2019. The A4D is corroborated by the report of Jessica Mangan who describes the October 4th breach as well as the affidavit of Harold Higgs who states that the Applicant attended his office on two or three occasions in October and November 2019 contrary to the directive and was directed to leave.

[56] Fourth, the Applicant suggests that if there was any improper behaviour on his part, it was based on his good faith intention to increase his knowledge and skills and to meet the CCRA goal of successful reintegration into the community. Even if the Applicant’s breach of the institutional rules were well intentioned as he suggests, this does not change the fact that he engaged in breaches. Moreover, the Applicant knew those breaches were contrary to the expectations of an inmate at a minimum-security facility and was spoken to about his conduct and potential consequences both on October 4, 2019, by Ms. Racicot, and again on October 17, 2019, at the CIB meeting, a month before the 2019 transfer decision.

[57] To summarize, I do not find that the transfer decision was based on patent errors of fact. Other than his bald assertion that the unauthorized attendance at the PA building did not occur or if it did occur, it was done in good faith, the Applicant has not provided an evidentiary basis for his position. On the contrary, the Applicant’s claims in his affidavit are contradicted by both the A4D, CSC reports filed, and the Affidavit of Harold Higgs.

ii. Did the Applicant’s misconduct represent behaviors that could not be managed at a minimum-security facility?

[58] The Applicant argues that his alleged misconduct does not reflect behaviours that could not be supervised or controlled within a minimum-security environment, and therefore, the 2019 transfer decision contravened:

a) ss. 17 and 18 of the Corrections and Conditional Release Regulations, SOR/92-620 (“the CCRR”);

(b) ss. 28 and 29 and 29.1 of the Corrections and Conditional Release Act, S.C. 1992, c.20 (“the CCRA”); and

c) CSC policies including the Commissioner’s Directive 705-4, Security Classification and Penitentiary Placement, promulgated under s. 98 of the CCRA.

[59] The determination of an inmate’s security classification is governed by paragraphs 17 and 18 of the CCRR. These provisions states as follows:

17 For the purposes of section 30 of the Act, the Service shall consider the following factors in assigning a security classification to each inmate:

(a) the seriousness of the offence committed by the inmate;

(b) any outstanding charges against the inmate;

(c) the inmate’s performance and behaviour while under sentence;

(d) the inmate’s social, criminal and, if available, young-offender history and any dangerous offender designation under the Criminal Code;

(e) any physical or mental illness or disorder suffered by the inmate;

(f) the inmate’s potential for violent behaviour; and

(g) the inmate’s continued involvement in criminal activities.

[60] Pursuant to paragraph 17 of the CCRR, CSC must consider the above-noted factors in assigning a security classification. Upon review of the 14-page detailed A4D, it is apparent that in addition to the Applicant’s conduct while serving sentence both before and during his time at Joyceville, Ms. Racicot also considered the other factors set out s. 17 of the CCRR.

[61] When deciding which penitentiary a person should be assigned to, CSC must take all reasonable steps to ensure that the penitentiary to which a person is confined is one that provides them with the least restrictive environment for that person taking into account:

(a) the degree and kind of custody and control necessary for

(i) the safety of the public,

(ii) the safety of that person and other persons in the penitentiary, and

(iii) the security of the penitentiary;

(b) accessibility to

(i) the person’s home community and family,

(ii) a compatible cultural environment, and

(iii) a compatible linguistic environment; and

(c) the availability of appropriate programs and services and the person’s willingness to participate in those programs: s. 28 CCRA; see also Khela at para 76.

[62] Section 30 CCRA requires each inmate to be designated a classification:

30 (1) The Service shall assign a security classification of maximum, medium or minimum to each inmate in accordance with the regulations made under paragraph 96(z.6).

[63] Section 18 of the CCRR defines the security classifications as follows:

For the purposes of section 30 of the Act, an inmate shall be classified as:

(b) medium security where the inmate is assessed by the Service as

(i) presenting a low to moderate probability of escape and a moderate risk to the safety of

the public in the event of escape, or

(ii) requiring a moderate degree of supervision and control within the penitentiary; and

(c) minimum security where the inmate is assessed by the Service as

(i) presenting a low probability of escape and a low risk to the safety of the public in the event of escape, and

(ii) requiring a low degree of supervision and control within the penitentiary (emphasis mine)

[64] The Applicant argues that his purported misconduct could be managed in a minimum-security setting as defined by s. 18 CCRR and therefore, his reclassification to medium security violated his right to be in the least restrictive environment as per s. 28 of the CCRA.

[65] The problem with the Applicant’s argument is that it is based on an erroneous and misplaced understanding of the reasons for his transfer. As stated above at paragraph 51, the reasons for the 2019 transfer were based on misconduct that far exceeded what the Applicant acknowledges or addresses in his affidavit.

[66] It is clear from the A4D and transfer documents that Ms. Racicot and the Applicant’s case management team viewed the Applicant’s misconduct during the eight months at Joyceville as unbecoming of a minimum-security inmate. This is because in a responsibility-based, minimum-security environment such as Joyceville, offenders are expected to demonstrate the ability to self-regulate their conduct and maintain positive interpersonal skills with minimal supervision from staff. The Applicant’s repeated defiance of directives which were observed not only by Ms. Racicot, but a variety of CSC staff, supported CSC’s finding that the Applicant required considerable supervision and was not suitable for a minimum-security setting such as Joyceville. As noted above at paragraph 35, this was explained by Ms. Racicot at pages 12-13 of the A4D.

[67] The staff’s clinical assessment was corroborated by the SCR which classified the Applicant at the medium security range even without input of all his institutional breaches. The staff’s finding was also consistent with the Commissioner’s Directive 710-6, Review of Inmate Security Classification which specifies that the need for management intervention in an inmate’s behaviour is indicative of a moderate classification rating. Finally, the Applicant himself acknowledged at his meeting November 25t meeting with the Warden that his conduct was inconsistent with the low institutional adjustment and that he would try to learn from his experience.

[68] The Warden concurred with the recommendation of the case management team that the Applicant should be reclassified as a medium security inmate and for reasons that are not limited to the Applicant’s unauthorized attendances on the 2nd floor of the PA building. The Warden relied on the information in the A4D. He summarized in the Referral Decision Sheet concerns with the Applicant’s behaviour and why it failed to meet the requirements of minimum-security inmates:

Notably, RUTTAN had difficulty maintaining employment, continued to attend areas of the institution which were unauthorized for him (based on previous disrespectful behaviours in those areas) and he was recently flippant with staff members when institutional charges were incurred. As detailed in the Assessment for Decision of November 21, 2019, he has not demonstrated behaviours and attitudes which are consistent with minimum security inmates. Options to manage RUTTAN in a minimum security environment have been attempted, but RUTTAN’S response to same has been non-compliance.

[69] As recognized in Khela, the head of an institution possesses experience and knowledge relating to the prevailing security environment in his or her particular institution and therefore, the Warden is entitled to considerable deference in his finding that the Applicant’s conduct was not manageable at Joyceville and that a medium security institution would be a more appropriate setting for him: Khela at para 76.

[70] In addition, there was no issue with transparency of the decision. The A4D sets out in detail the reasons for the 2019 transfer. The reasons are also summarized in the transfer documents. The Applicant met with Mr. Steele on November 19, 2019, who explained the reasons for transfer. The Applicant had an opportunity to review the A4D prior to his November 25th meeting with the Warden and also signed the transfer documents on November 26, 2019, prior to his transfer. It is clear that the Applicant’s concerns were heard at the November 25th at meeting with the Warden because the Warden heeded his request to go to Bath. While the Applicant may not have been pleased with the security reclassification, there is no evidence to suggest that he did not or would not have been able to understand the reasons for it. Had that been the case, the Applicant could have availed himself of his rights to counsel to obtain further clarification of the decision as well as his rights of appeal. He did neither. The Applicant the was accorded similar procedural fairness with an opportunity to appeal his 2020 security classification that maintained him at medium security and failed to do so.

[71] Finally, it is important to note that the 2019 transfer decision would not have come as a surprise to the Applicant. The Applicant knew following his meeting with CIB on October 17, 2019, the concerns surrounding his misconduct and was warned that a security reclassification could arise if he did not improve his behaviour.

[72] I find the 2019 transfer decision was intelligible, transparent, and justified and therefore reasonable: Dunsmuir at para 47. Both the Warden’s reasons and the CSC records support the decision reached. The decision is rationale and flows logically from the facts set out in the A4D which are corroborated by affidavits and CSC reports: Vavilov at paras 101 and 103. The Warden’s decision also falls within the range of possible acceptable outcomes in the context of the facts of this case: Vavilov at para 86.

[73] CSC is not required to prove the case against an inmate or to establish guilt of the impugned conduct, but simply to establish the existence of information sufficient to raise a valid concern and warrant the transfer: Gallant v Canada (Deputy Commissioner, Correctional Service Canada), [1989] 3 FC 329 (CA), at para 28, cited in Caouette v Mission Institution, 2010 BCSC 769, at para 70; see also Thavakularatnam v. The Attorney General of Canada, 2021 ONSC 1544 at para 30. The A4D and transfer documents do precisely that.

[74] As the transfer decision was largely fact driven, administrative in nature, and made by staff and the Warden who have expertise in the particular environment at Joyceville, it is entitled to deference and should not be interfered with unless demonstrably unfair which I find it was not: Khela at paras 74 to 76; see also R v Oliver, 2010 ONSC 3976 at para 57 citing Hay v Canada (National Parole Board) (1985), [21 C.C.C. (3d) 408 at 415.

[75] The application for habeas corpus is dismissed.

Costs

[76] The Respondent argued that should they be the successful party on this application, this court should order nominal costs in the amount of $500. Counsel for the Applicant argues that costs should not be awarded given this application is a criminal proceeding in which costs are not granted. To order costs in such a case would have a chilling effect on legitimate applications for habeas corpus.

[77] 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: at paras 5 and 12; see also Thavakularatnam at paras 46 to 49. Examples of civil issues include inmate transfer decisions: Little at para 5. While counsel for the Applicant suggests a costs order would have a chilling effect on such applications, I find that if the award is fair and proportionate, such risk is minimized. Moreover, a nominal costs award can serve as a reminder that such applications are not without any financial risk if one is unsuccessful: Little at para 14.

[78] The Applicant is an inmate at a penitentiary with likely limited, if any, financial means. The Applicant’s ability to pay is a factor I must consider in exercising my discretion. I find the nominal amount of $500 is fair and proportionate in all the circumstances of the case.

[79] The Applicant is ordered to pay costs in the fixed amount of $500 to the Respondent, the Attorney General of Canada, made payable to the Receiver General of Canada, within 90 days.

Somji J

Released: September 30, 2022

COURT FILE NO.: CR-21-4-MO

DATE: 2022/09/30

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

Kevin Ruttan

Applicant

REASONS FOR DECISION ON HABEAS CORPUS APPLICATION

Somji J.

Released: September 30, 2022