Court File and Parties

COURT FILE NO.: CR-22-27100807-00MO DATE: 20230111 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: CHRISTOPHER GOULBOURNE, Applicant – and – ATTORNEY GENERAL OF CANADA, Respondent

Counsel: J. Todd Sloan, for the Applicant Derek Edwards, for the Respondent

HEARD: December 23, 2022 via Zoom

RULING ON THE HABEAS CORPUS APPLICATION

verner J.

[1] The Applicant is a federal inmate. In February 2022 he was reclassified from a minimum-security inmate to a medium security inmate, and he was accordingly involuntarily transferred from Collins Bay Institution (CBI) – Minimum to CBI - Medium. The Applicant brings a habeas corpus application challenging the decision to involuntarily transfer him to a medium security facility.

Background

[2] The Applicant is a 33-year-old first time offender serving a sentence of 11 years, 8 months and 28 days for breaking and entering, using an imitation firearm while committing robbery and assaulting and disarming a peace officer. He was sentenced on November 17, 2016. His statutory release date is September 15, 2024.

[3] There is little evidence before me as to the circumstances of the Applicant’s incarceration between 2016 and the summer of 2021. I know that after an incident in 2018, in which he was stabbed, he was involuntarily transferred to a maximum-security institution. And I can infer that he was in a medium security institution in 2021 until the summer, when he was transferred to Stoney Mountain Institution (SMI) - Minimum in Manitoba. He stayed at SMI - Minimum until December 16 of that year.

[4] On December 16, 2021, the Applicant was transferred from SMI - Minimum to CBI - Minimum. There is no evidence before me as to why he was transferred.

Incidents at CBI - Minimum as Reported by the Correctional Services of Canada

[5] On December 19, 2021, there was an incident reported by CBI – Minimum staff. According to the Correctional Services of Canada (CSC), the Applicant called the security desk 16 times within five hours that day. During one such call, he asked to see a Correctional Manager, and when he was informed that there was not one on site, he yelled obscenities on the phone. When a Correctional Manager called, the Applicant did not answer the phone.

[6] The same day, December 19, 2021, the Applicant started a hunger strike. He refused his meal and was yelling at the food steward. He claimed that the food was being tampered with and asked for sealed meals. He was described as being aggressive with staff and as becoming increasingly difficult.

[7] On December 23, 2021, the Applicant insisted that his concerns with the food should be documented. He indicated that he would continue his hunger strike until he saw the Assistant Warden. In his affidavit, the Applicant clarified that he was being verbally abused and threatened by one staff member and did not want that staff member handling his food, as he feared the staff member would contaminate it. He did not provide a basis for this fear, nor did he give any examples of abuse or threats. When he was cross-examined on his affidavit, he further clarified that there were two staff members at CBI - Minimum, who he did not trust, rather than just one.

[8] On February 1, 2022, the Applicant refused to stand for formal count. He had been warned on previous occasions about the requirement to stand for count.

[9] On February 2, 2022, the Institution facilitated a meeting with the Applicant, two Correctional Officers and the Acting Assistant Warden for Operations. At the meeting, the Applicant accused the Correctional Officers of mistreatment and racism.

[10] On February 3, 2022, contrary to the rules, the Applicant wore a housecoat to retrieve his meal. When he was stopped by a Correctional Officer for his inappropriate clothing, he became aggressive and accused the officer of “picking on him”. The officer warned him he would be charged with a disciplinary charge if he continued to proceed to the meal line in his housecoat. In his affidavit, the Applicant explained why he was wearing a housecoat. He indicated that he wore it over his clothes, since it was particularly cold in the hallway, which had a door opening to the outside in winter.

[11] The Applicant ignored the officer’s warning about the housecoat and continued to the meal line. Other officers described the Applicant as loud, argumentative and disrespectful. After the incident, the Applicant returned to the main desk and continued to argue with the officer who had warned him earlier. The Applicant, who began raising his voice, was described as agitated. He was asked to return to his living unit, when he started in that direction, he began screaming and clenched his fists near his head. He indicated he needed to see a mental health professional. He was erratic, and physically and verbally threatening. The Applicant laid on the floor in a prone position with his hands behind his back. He was crying. He believes he had a panic attack. When a mental health professional attended as requested, the Applicant calmed down immediately.

[12] There is a report based on a confidential source of undisclosed reliability that less than an hour after the Applicant was on the floor, he was seen with a shank and yelling.

[13] That day, February 3, 2022, the Applicant’s cell was searched and officers located contraband – a bronze teeth cap.

[14] Correctional staff described the Applicant as challenging, disrespectful and accusatory with them while he was at CB Minimum Institution between December 16, 2021 and February 3, 2022. In his affidavit, the Applicant wrote:

It is true that I have emotional conditions and I can become over-anxious and act out on occasion. This occurred particularly at CBI Minimum because I was being verbally harassed by staff members.

I tried to resolve differences when I met with staff but they tended to simply say I was being uncooperative whenever I disagreed with them.

[15] On February 3, 2022, CSC reassessed the Applicant’s security level and concluded that he no longer met the security classification for minimum security. Although his escape risk remained assessed at low, both his institutional adjustment score and his public safety risk score were increased from low to medium. There is a 13-page report outlining the reasons for the increases in his scores. It was recommended that he be transferred to Warkworth Medium Security Institution.

[16] On February 3, 2022, Health Services indicated that there were no medical concerns related to the transfer. That day he was transferred to a medium security institution. He was not transferred to Warkworth Institution, as there were no beds available in medical isolation there (I assume that medical isolation was necessary as a COVID-related precaution). Instead, he was transferred to CBI - Medium, to do his medical isolation there before being transferred to the general population at Warkworth.

[17] On February 7, 2022, Mental Health Services provided the following comments:

Mr. Goulbourne’s Parole Officer, S. MacDonald, has indicated that Mr. Goulbourne is being considered for an involuntary transfer. As per section 87 of the CCRA, Mental Health Services has been asked to provide a transfer opinion.

A review of OMS Alerts/Flags/Needs and Mr. Goulbourne’s mental health file was completed (last 6 months) on 2022-02-03. Mr. Goulbourne is not currently on a high/modified risk suicide watch or on mental health monitoring. Based on available file documentation, there is no evidence to suggest he is currently suffering from an acute mental health disorder that would impact a transfer. Please note, because no mental status assessment interview was completed, the information provided cannot be taken to represent a comprehensive assessment regarding the offender’s current state of mental health. Prior to the transfer should staff become aware of acute mental health symptoms that could affect a transfer, they should refer Mr. Goulbourne to Mental Health Services.

[18] On February 7, 2022, the Applicant was served with the Assessment for Decision, Security Reclassification Scale, the Notice of Involuntary Transfer, Statement/Observation reports, and a “Protected C gist” form. On February 14, 2022, the Applicant provided a written rebuttal. In the rebuttal, he requested video security footage of the February 3, 2022 incident. He was never provided with this footage.

[19] In this same time period, between February 3 and February 15, 2022, the Applicant requested that he be transferred to Bath Medium Security Institution, rather than Warkworth Institution.

[20] On February 15, 2022, the Warden of CBI - Minimum, Larry Ringler, considered the Applicant’s rebuttal and a number of other factors and concluded that the Applicant would be transferred to a medium security facility as recommended by his case management team. Given the Applicant’s request, he was transferred to Bath Institution, rather than Warkworth. He remained at Bath until June, when he was voluntarily transferred to Cowansville Medium Security Institution.

The Issues

[21] This habeas corpus application with certiorari in aid raises the following issues:

(1) Does this court, the Ontario Superior Court of Justice, have jurisdiction to consider this habeas corpus application? (2) Is this application moot in light of the fact that after the involuntary transfer, the Applicant voluntarily transferred from one medium security institution to another? (3) Did CSC err in failing to comply with the procedural protections codified in the Corrections and Conditional Release Act (CCRA)? (4) Was CSC’s decision to transfer the Applicant unreasonable?

[22] In assessing these four issues I keep in mind the important role the court plays in considering habeas corpus applications brought by federal inmates. Decisions that impact an individual’s liberty must be subject to review. If this is the proper forum for that review, the court must seriously consider whether the deprivation of liberty is lawful. CSC must be held accountable for their actions and their decisions, and they must be aware that they will be held accountable. Inmates in federal custody are in a difficult position to ensure that their liberty interests are not illegally interfered with. Few inmates have the resources, opportunities and/or desire to challenge the legality of actions and decisions of the CSC. Only a few of the countless decisions being made every day by CSC are subject to review by an independent body. This is one of those few decisions.

(1) Does the Ontario Superior Court of Justice have the jurisdiction to consider this habeas corpus application?

[23] The Supreme Court of Canada clarified in Khela v. Mission Institution, 2014 SCC 24 that provincial superior courts have the jurisdiction to consider habeas corpus applications such as this one. This court can consider the reasonableness of a decision to involuntarily transfer an inmate from a lower security institution to a higher security institution, and can consider whether the inmate was afforded procedural fairness in the decision making process. If the court finds the decision was not reasonable, or if the court finds that the inmate was not afforded procedural fairness, this court can quash the decision to reclassify the inmate as a higher security inmate and order that the inmate be returned to a lower security institution.

(2) Is this application moot in light of the fact that after the involuntary transfer, the Applicant voluntarily transferred from one medium security institution to another?

[24] The Respondent submits that this application is moot since the Applicant requested a transfer from one medium security institution to another medium security institution, after he was involuntarily reclassified as a medium security inmate. The Respondent argues that since habeas corpus relates only to the “here and now” (Ewanchuk v. Canada (Attorney General), 2017 ABQB 237 at para. 23), and since the Applicant is “here and now” being held at an institution where he requested to be held, the Applicant can have no complaints.

[25] The Respondent did not provide any support in caselaw for his position. He submits that it is supported by common sense.

[26] In contrast, the Applicant relies on Ruttan v. Attorney General of Canada, 2022 ONSC 5568, in which, similar to this case, the inmate brought a habeas corpus application relating to an involuntary transfer from a minimum to a medium security institution. And similar to this case, prior to the application being heard, but after the involuntary transfer, the inmate successfully requested a transfer to another medium security facility. In Ruttan, there was no suggestion that the habeas corpus application was moot.

[27] I note that if I find that the decision maker in this case erred in transferring the Applicant to a medium security facility, I may order that he be transferred to a lower security institution. This factor in itself is compelling evidence that this application is not moot.

[28] I also note that inmates often have to wait long periods before having their habeas corpus applications heard in court. It would be inconsistent with the operating principles of our correctional system to insist that inmates remain in institutions where they have issues and/or difficulties and insist that they not request transfers, if they want to keep their habeas corpus applications alive. As I already alluded to, inmates have significant hurdles in challenging the legality of the limitations on their liberty. The court should not unnecessarily be adding to those hurdles.

[29] In the circumstances, I find that this application is not moot.

(3) Did CSC fail to comply with the procedural protections codified in the CCRA?

[30] The Applicant submits that the decision maker failed to comply with ss. 27 and 87 of the CCRA, and on that basis alone the transfer was unlawful. Whereas the Respondent submits that both ss.27 and 87 were adhered to, but concedes that if either of the sections were not complied with, the transfer was illegal.

(i) Section 27

[31] The Applicant submits that s. 27 was violated since he was not provided with video footage of the incident on February 3, 2022 and was not provided with mental health reports from Stoney Mountain Institution, before the transfer decision was made. Section 27 reads:

27 (1) Where an offender is entitled by this Part or the regulations to make representations in relation to a decision to be taken by the Service about the offender, the person or body that is to take the decision shall, subject to subsection (3), give the offender, 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.

[32] The Supreme Court discussed s. 27 in Khela v. Mission Institution, 2014 SCC 24. Notably, by the time Mr. Khela got before the Supreme Court of Canada, his habeas corpus application was moot, and the judgment in that case was rendered for the sole purpose of giving direction to lower courts. The following is the direction the Supreme Court gave with respect to s. 27:

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. [Italics in original.]

[33] The Supreme Court could not be more clear. Pursuant to s. 27, CSC is only required to provide the inmate with evidence that was considered and CSC need not provide the original documents considered, but only a summary of the information that was relied upon.

[34] There is no evidence that CSC considered the video footage of the events on February 3, 2022. In fact, the Applicant’s implicit position is that CSC erred in not considering the footage. Since s. 27 only requires that the inmate be provided evidence that was considered, s. 27 did not require that CSC provide the Applicant with video security footage. Moreover, only a summary of the documents considered needs to be disclosed and the Applicant was provided with a fairly detailed summary of the events of February 3, 2022.

[35] The Applicant’s argument regarding the failure to provide his mental health records suffers from the same weakness. The Applicant’s position is that CSC did not consider the mental health records in its decision to transfer the Applicant. If CSC did not consider the records, then CSC was not required under s. 27 to disclose those records.

[36] I dismiss the Applicant’s arguments that s. 27 was violated.

(ii) Section 87

[37] The Applicant submits that s. 87 of the CCRA was not complied with, since CSC did not consider whether the Applicant’s risk could be controlled at a minimum-security institution through mental health treatment. Section 87 reads:

87 The Service shall take into consideration an offender’s state of health and health care needs

(a) in all decisions affecting the offender, including decisions relating to placement, transfer, confinement in a structured intervention unit and disciplinary matters; and

(b) in the preparation of the offender for release and the supervision of the offender.

[38] The Applicant submits that there is evidence his risk could be controlled with access to mental health services. In particular, he points out that when a mental health professional attended on February 3, 2022, he calmed down immediately. He also pointed out that in the report in which his risk levels were reassessed, it indicated that he had responded positively to treatment at Stoney Mountain Institution. He relied on this passage:

A psychological Risk Assessment was completed on November 18, 2020 by Dr. G. Fisher. Dr. Fisher noted the following: “From a violence risk perspective, considering variables falling on the HCR-20, Mr. Goulbourne presents as a High risk individual, given the lengthy nature of his criminal justice system involvement, diversity of offense types including Robbery and Assault, evidence of early maladjustment, a limited employment history, concerns surrounding instability within the context of interpersonal relationships, prior failure to complete community-based supervision opportunities successfully, and the obvious fact that prior periods of incarceration have had insufficient deterrent impact upon him. On a more positive note, and likely moderating his risk level, there is evidence of some recent change with respect to behaviour and attitude, he has been cooperative with his Correctional Plan, seems to have some appreciation that a gradual community reintegration process is likely to be necessary for him, and also seems to have some awareness of a need for ongoing supports.” While at SMI, Goulbourne regularly met with his primary therapist for ongoing biweekly counselling sessions in order to manage his emotions related to anxiety and conflict. The focus of the sessions was on interpersonal communication, expectations and effectiveness.

[39] The Applicant submits that s. 87 requires not only that CSC consider whether his mental health would be negatively impacted by a transfer, but, given the evidence he may be treated, CSC also was required to consider whether his risk could be controlled with access to mental health services. He provided no support, aside from the plain reading of the section, for his position.

[40] The Respondent argues that s. 87 only requires that the Applicant’s mental health be considered before transferring an inmate; it does not specifically require that CSC consider whether a transfer can be avoided with access to mental health services.

[41] I note that s. 87 does not explicitly require CSC to consider whether a transfer can be avoided with access to mental health treatment. The language of s. 87 does no more than require CSC to consider the inmate’s mental health in deciding whether the inmate should be transferred.

[42] I also note that CSC apparently believes it complied with s. 87 in this case. For ease of reference, here is the relevant passage, which outlines steps that were taken before concluding that the Applicant needed to be transferred:

Mr. Goulbourne’s Parole Officer, S. MacDonald, has indicated that Mr. Goulbourne is being considered for an involuntary transfer. As per section 87 of the CCRA, Mental Health Services has been asked to provide a transfer opinion.

A review of OMS Alerts/Flags/Need and Mr. Goulbourne’s mental health file was completed (last 6 months) on 2022-02-03. Mr. Goulbourne is not currently on a high/modified risk suicide watch or on mental health monitoring. Based on available file documentation, there is no evidence to suggest he is currently suffering from an acute mental health disorder that would impact a transfer. Please note, because no mental status assessment interview was completed, the information provided cannot be taken to represent a comprehensive assessment regarding the offender’s current state of mental health. Prior to the transfer should staff become aware of acute mental health symptoms that could affect a transfer, they should refer Mr. Goulbourne to Mental Health Services.

[43] I agree with the Respondent that s. 87 did not require CSC to specifically consider whether the transfer in this case could have been avoided through mental health treatment. I dismiss the Applicant’s submission that s. 87 was violated.

(4) Was CSC’s decision to transfer the Applicant unreasonable?

[44] The Applicant further submits that the decision to transfer was unreasonable, which would render the transfer illegal.

[45] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court defined when a decision such as the one in the case at bar would be deemed unreasonable. The majority emphasized that a reasonable decision is one that is both based on internally coherent reasoning and is justified in light of the constraints that bear on the decision. The majority expanded on those two concepts in the following passage:

(1) A Reasonable Decision Is Based on an Internally Coherent Reasoning

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": Irving Pulp & Paper, at para. 54, citing Newfoundland Nurses, at para. 14. 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": Ryan, at para. 55; Southam, at para. 56.

(2) A Reasonable Decision Is Justified in Light of the Legal and Factual Constraints That Bear on the Decision

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: Dunsmuir, at para. 47; Catalyst, at para. 13; Nor-Man Regional Health Authority, at para. 6. Elements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers.

106 It is unnecessary to catalogue all of the legal or factual considerations that could constrain an administrative decision maker in a particular case. However, in the sections that follow, we discuss a number of elements that will generally be relevant in evaluating whether a given decision is reasonable, namely the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies.

[46] In Khela the Supreme Court identified when a decision to involuntarily transfer an inmate would be deemed unreasonable. The Court said:

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" (N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (S.C.C.), at para. 12, quoting with approval D. Dyzenhaus, "The Politics of Deference: Judicial Review and Democracy", in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304).

[47] The question therefore is whether the Warden’s decision to involuntarily transfer the Applicant was “rational and logical”, as well as “justified” given “the constraints that bear on the decision”, such that the decision is an “acceptable” and “defensible” outcome given the facts and law. The central legal constraint on the decision to reclassify an inmate from minimum security to medium is s. 18 of the Corrections and Conditional Release Regulations (CCRR), which reads:

18 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.

[48] In assessing whether the Warden’s decision to find that the Applicant no longer met the requirements for a minimum-security inmate is rational and justified, I must respect the expertise of the Warden. This exact point was emphasized in Khela:

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.

[49] There are multiple reports that outline the rationale and justification for increasing the Applicant’s public safety score and his institutional adjustment score, which led to his involuntary transfer. For example, the reports indicate that he no longer requires only a low degree of supervision and control, in light of the series of incidents in which he refused to follow the institutional rules. In particular, in the less than two months that he was at CBI - Minimum, he was involved in four reported disruptions, on December 19 and 23, 2021 and on February 1 and 3, 2022. The Applicant’s involvement in these disruptions logically support the conclusion that he needed more than a low degree of supervision. In other words, the decision to increase his institutional adjustment score was rationale. Moreover, keeping in mind the expertise of the Warden and the constraints on the decision, it was also justified. In summary, the decision to reclassify the Applicant as medium security was both rationale and justified.

[50] The Applicant did not strenuously argue that the decision to reclassify him was not rationale or justified. Instead, he argued that the Warden should have considered the evidence that the Applicant could be controlled with mental health treatment. However, there was no evidence that the Applicant’s risk could be significantly reduced immediately in a minimum-security facility, through mental health treatment. The failure of the Warden to specifically reference the possibility of controlling the Applicant’s risk through treatment, did not render his decision irrational or unjustified.

Conclusion

[51] The decision to involuntarily transfer the Applicant to medium security was both rational and justified, and the Applicant was afforded procedural fairness. In the circumstances of this case, the decision to transfer was reasonable and lawful. The habeas corpus motion is dismissed.

[52] The Respondent’s counsel noted in his factum that he would seek costs if the application is dismissed. He did not specify what he would be seeking in costs and in fact made no submissions supporting his requests for costs either in writing or orally.

[53] I find that this is not an appropriate case to award costs. In R. v. Ciarniello (2006), 215 O.A.C. 29, Justice Sharpe made the following observations about why costs are not typically awarded in criminal matters:

Routine costs awards in favour of the winning party are a feature of civil, not criminal proceedings. Costs awards in civil litigation serve several purposes. Costs in civil cases are awarded on the compensatory principle that it is just to allow the successful civil litigant at least partial indemnity for the costs of the action. Costs sanctions are also an important tool at the disposal of civil courts to control proceedings and to discourage unreasonable or inappropriate behaviour. Especially when fortified with offer to settle rules that penalize unreasonable litigation, the threat of an adverse costs award serves to discourage unnecessary or frivolous litigation and encourages parties to settle their disputes.

Different considerations apply to criminal proceedings. Criminal proceedings are brought in the public interest, not by one party to vindicate his or her private interests as against another. As Devlin L.J. explained in Berry v. British Transport Commissioners (1961), [1962] 1 Q.B. 306 (Eng. C.A.) at p. 327: "A plaintiff brings an action for his own ends and to benefit himself; it is therefore just that if he loses he should pay the costs. A prosecutor brings proceedings in the public interest, and so should be treated more tenderly." Costs are not usually deployed in criminal law to influence the conduct of litigation. The threat of conviction and loss of liberty provides an adequate incentive to the accused to defend the case. As the Crown acts in the public interest when conducting criminal prosecutions, it is said that its discretion should not be influenced or fettered by the threat of a costs award.

[54] The case before me is not per se a prosecution of a criminal charge, but it is similar in that the outcome impacts the liberty interest of one of the parties. I have mentioned more than once in this decision that the justice system provides enough hurdles for inmates to ensure that their liberties are not illegally interfered with. I am not prepared to add to those hurdles the threat of an award of costs being ordered against an inmate. There will be no award for costs.

The Honourable Madam Justice C. Verner

Released: January 11, 2023