Court File and Parties

Court File No.: CR-24-00000009-00MO Date: 2024 May 10 Ontario Superior Court of Justice

Between: ZDENEK ZVOLENSKY, Applicant – and – CANADA (ATTORNEY GENERAL), Respondent

Counsel: Mitchell Huberman, for the Applicant Leah Jamieson, for the Respondent

Heard at Napanee: April 24, 2024

Before: Lacelle J.

Reasons for Decision (Habeas Corpus Application)

Introduction

1The applicant, Zdenek Zvolensky is a federal inmate serving a sentence for first degree murder after being convicted in a murder for hire plot. He has been serving his sentence since 2012, initially in a maximum-security penitentiary and then a medium-security penitentiary, Beaver Creek Institution (“BCI”).

2On December 11, 2023, he was involuntarily transferred from BCI to a maximum-security penitentiary, following a decision by the Correctional Service of Canada to raise his security classification rating. This decision was taken based on an allegation that the applicant had engaged in an inappropriate personal relationship with a staff member and then leveraged it to introduce contraband into BCI.

3The applicant brings a habeas corpus application and seeks an order returning him to a medium-security institution.

4In the main, the applicant argues that his involuntary transfer to a maximum-security institution was unlawful due to a breach of procedural fairness resulting from the correctional authorities failing to comply with their statutory disclosure requirements. The applicant also asserts that the involuntary transfer decision was unreasonable. While he requests Charter relief in his Notice of Motion, he abandoned that claim for relief in oral argument.

5For its part, the respondent argues that the transfer was lawful since there was no procedural unfairness arising from the disclosure process, and the transfer decision was reasonable.

Issue to be Decided

6The issue in this application is whether the CSC’s decision to transfer the applicant from a medium-security institution to a maximum-security institution was lawful. Since there is no dispute that the applicant has established a deprivation of liberty (see Khela v. Mission Institution, 2014 SCC 24 at para. 34), the issue to be decided is whether the respondent has met its onus in proving that the deprivation was lawful: Khela at paras. 30, 40-41, 77 and 86.

7I have had the benefit of reviewing the sealed affidavit of Rebecca Barfoot, a security intelligence officer involved in investigating the applicant’s alleged misconduct while incarcerated at BCI. Given the contents of the sealed affidavit, I am satisfied that the decision to transfer was based on reliable information and was reasonable.

8As became clear during oral submissions, the central issue to be resolved in this application is whether the respondent has shown that the transfer was procedurally fair given the limited information disclosed to the applicant in the transfer process. The applicant says the information disclosed to him was so vague and lacking in detail that he was unable to know the case to meet and he was therefore unable to make meaningful submissions during the transfer process. He asks the court to find that the CSC’s reliance on s. 27(3) of the Corrections and Conditional Release Act (“CCRA”) resulted in the withholding of more information than was strictly necessary. He also argues that the process was unfair because he was not provided with the scoring matrix for the Security Reclassification Scale (“SRS”) which was relied upon by the warden in authorizing his transfer, which also impaired his ability to defend himself.

9I have determined that the respondent has not met its onus in demonstrating that the transfer process was procedurally fair because the scoring matrix for the SRS was not disclosed to the applicant. Given this conclusion, which I will further explain below, it is not necessary to make a finding about the adequacy of the remaining disclosure provided to the applicant. In the event CSC initiates another transfer of the applicant to a maximum-security institution in the wake of my decision, its reliance on s. 27(3) may be different given the passage of time and given that the investigation giving rise to the transfer has now concluded. In these circumstances, I do not think it is helpful for the court to make any further comments about the adequacy of the disclosure which occurred in the transfer process I am reviewing.

Overview of the Evidence

10The applicant states in his affidavit that he was provided with his Security Reclassification Scale dated December 12, 2023. The document provided to him does not include the scoring matrix indicating what scores are assigned to which questions nor any details of how the final SRS score was determined.

11Prior to the allegations which prompted the transfer, the applicant’s institutional adjustment rating was ‘low’, his escape risk rating was ‘low’, and public safety rating was ‘medium’. These ratings were consistent with a medium-security classification pursuant to s. 18 of the Corrections and Conditional Release Regulations (“CCRR”). The applicant’s SRS score was 14.5, indicative of minimum security. However, it had been overridden to medium.

12After the alleged misconduct, the applicant’s institutional adjustment rating was increased to “high”, his escape risk rating was increased to “medium”, and his public safety rating remained “medium”. The “high” institutional adjustment rendered the applicant a maximum-security offender and permitted the warden to approve the emergency involuntary transfer to a maximum-security facility. As for the SRS score, after the alleged misconduct, it increased to 19.5, indicative of medium-security. The CMT determined that the score was not reflective of the applicant’s actuarial security risk, however. The additional reasons for the security reclassification included the applicant’s “demonstrated ability to mask his illicit behaviour” and his predisposition for impressions management and planning, all of which were traits that were present in his index offence. Consequently, the CMT recommended raising the applicant’s security classification to maximum.

13The public affidavit of Rebecca Barfoot does not reference disclosure of the SRS scoring matrix when outlining the documents that were provided to the applicant regarding his involuntary transfer. Ms. Barfoot’s affidavit does include two exhibits, however, both “Assessments for Decision”, which include this identical statement: “... an actuarial assessment was calculated using the Security Reclassification Scale (SRS); information about the calculation of the SRS can be obtained within the SRS Functional Specification (version: 4.0.3) document. The offender has been advised he will be provided with a copy of the Security Reclassification Scale Functional Specification scoring matrix along with a finalized copy of this report”. [emphasis added]

14There is no further evidence about why the scoring matrix was not provided to the applicant. The respondent suggests in its written argument that if it was not provided, it was the result of inadvertence or a clerical oversight.

15The SRS score, and the reasons for which it was not considered an accurate reflection of the applicant’s risk, were considered by the warden in ratifying the applicant as a maximum-security offender. The warden acknowledged the applicant’s SRS score stressing that it is only a tool, and that CSC ultimately relies on further analysis and assessment of an inmate’s institutional adjustment, escape risk and public safety ratings: Public Affidavit of Rebecca Barfoot, Exhibit G.

Legal Principles

16The law that applies is well settled and I will not review it fully here. Certain points of law are worth emphasizing, however, including that:

a. The standard of review for procedural unfairness is correctness, while the standard for assessing the reasonableness of the transfer decision is reasonableness: Khela at paras. 79-80;

b. Where there has been a breach of procedural fairness, the decision to transfer an inmate to a more restrictive jail will not be lawful: Khela at paras. 52, 67 and 85;

c. Section 27(1) of the CCRA imposes “an onerous disclosure obligation on CSC”. The statutory duty of disclosure in respect of transfer decisions is “substantial and extensive”: May v. Ferndale Institution, 2005 SCC 82 at paras. 95, 100 and 112;

d. Section 27(1) of the CCRA requires that where an inmate is being transferred on an emergency and involuntary basis, the decision maker must give the inmate “all the information” considered in the decision-making process subject only to section 27(3). This may be done by providing a summary of the information/evidence considered: Khela at paras. 81-82, 86;

e. If the decision maker chooses to withhold information from an inmate on the basis of section 27(3), the onus shifts to the decision maker to show that section 27(1) was complied with and the decision maker must show that there were reasonable grounds to believe that disclosure of that information would jeopardize one of the listed interests. These interests include (a) the safety of any person, (b) the security of a penitentiary, or (c) the conduct of any lawful investigation. Even then, the decision maker may only withhold from the offender as much information as is strictly necessary in order to protect the interest identified;

f. The Commissioner, or his or her representative, is in the best position to determine whether such a risk could in fact materialize. As a result, they are entitled to a margin of deference on this point, as well as on the question of whether a given source is reliable. If certain information is withheld without invoking s. 27(3), deference will not be warranted, and the decision will be procedurally unfair and therefore unlawful: Khela at para. 89;

g. Even where the decision maker invokes s. 27(3) to withhold information, the decision to do so remains reviewable by way of a habeas corpus application. If the reviewing court finds that the correctional authorities failed to comply with section 27 as a whole, it may find the transfer decision was procedurally unfair which would render the deprivation of the inmate’s liberty unlawful: Khela at para. 85;

h. Even so, not all breaches of the CCRA or the CCRR will be unfair. It will be up to the reviewing judge to determine whether a given breach has resulted in procedural unfairness. For instance, if s. 27(3) has been invoked erroneously or if there was a strictly technical breach of the statute, the reviewing judge must determine whether that error or that technicality rendered the decision procedurally unfair: Khela at para. 90.

The SRS scoring matrix

17The SRS and its scoring matrix have been considered at length in the habeas corpus jurisprudence. In May, the court described the SRS this way at paras. 102-103:

The Security Reclassification Scale (“SRS”) is a computer application that provides a security rating based on data entered with respect to various factors related to the assessment of risk … The SRS scale has been developed to assist caseworkers to determine the most appropriate level of security at key points throughout the offender’s sentence.

The SRS is completed by assigning scores to several factors assessing the offender’s security risk and custody performance. The SRS provides numerical “cut-off levels” which determine a security rating. If the officer completing the review does not agree with the results provided by the SRS, he or she may override the results and give a different security classification. The override provisions are incorporated in the SRS as a means to address factors that may compel the transfer of an offender to a security level that is different from the one obtained through the computer application.

18The court in May held that “considering the nature of the scoring matrix and its role in the SRS, its non-disclosure constituted a major breach of the duty to disclose inherent in the requirement of procedural fairness”: at paras. 112 and 117 [emphasis added]. It further explained at para. 118:

How can there be a meaningful response to a reclassification decision without information explaining how the security rating is determined? As a matter of logic and common sense, the scoring tabulation and methodology associated with the SRS classification score should have been made available. The importance of making that information available stems from the fact that inmates may want to rebut the evidence relied upon for the calculation of the SRS score and security classification. This information may be critical in circumstances where a security classification depends on the weight attributed to one specific factor.

19Ultimately, after noting that the duty to disclose information used in making transfer decisions is “substantial”, the court held: “if the scores generated by the computerized tool played a role in the transfer decisions, its scoring matrix should have been disclosed” [emphasis added]: at para. 112. The court also noted that “the SRS presumptively classifies inmates and constitutes an important aspect of the classification process”: at para. 114. In May, the tool had played an important role, and the transfer decisions were found to be unlawful.

20The failure to disclose the SRS scoring matrix has since been considered by various courts, including the court in Khela. In Khela, the court found that the warden’s failure to disclose the SRS scoring matrix was a factor in determining that there had been a breach of procedural fairness. It noted that the SRS score indicating medium-security classification, while overridden, was nevertheless considered in the decision-making process, and should have been disclosed. It held: “An override of the SRS calculation does not eliminate the warden’s obligation to disclose the scoring matrix”: see paras. 96-97.

21Lower courts have also considered the failure to disclose the scoring matrix. In Cliff v. Kent Institution, 2016 BCSC 1525, amongst other lapses in disclosure, the court found that the SRS “Scoring Guide” was not provided to the inmate. The court noted that the form was “far from self-explanatory”, and that without reference to the guide, it was virtually indecipherable. It held that “[i]f an inmate’s SRS score is considered by the decision-maker, then full disclosure to the inmate includes the scoring matrix. Without the scoring matrix and information on the methodology used to calculate the total score, an inmate is effectively denied the opportunity to challenge the score”: at para. 26 (i). The court went on to find that the failure to disclose the scoring matrix meant that the inmate was unable to challenge his score and unable to challenge the decision to “override” his SRS score. The score was not only considered but was of significance in the warden’s decision to transfer the inmate (at para. 35). While mindful that not all breaches are of consequence to the process, the court held that the institution’s failure to disclose the SRS scoring matrix resulted in procedural unfairness, rendering the decision to transfer unlawful on that basis alone (at para. 36).

22Similarly, in Richards v. Springhill Institution, 2014 NSSC 121, the court addressed the failure to disclose the scoring matrix. It noted that the duty to disclose cannot be avoided by imposing a responsibility upon inmates to ask for the necessary disclosure. It held: “The failure of CSC to voluntarily provide this information at the time of the reclassification decision being made is a breach of its disclosure obligations”. The breach compromised the inmate’s ability to respond to the transfer process. Even though the court found that SRS was not determinative of the outcome, it was an important tool in the process, and “ it was taken into consideration ”. Without timely access to the scoring matrix, the inmate’s ability to respond was compromised: see paras. 69(1) and (3). Given other failures in the disclosure process, the court found a breach of procedural fairness which rendered the transfer decision unlawful: at para. 78.

Analysis

23I find that CSC did not provide the SRS scoring matrix to the applicant. This is the only conclusion available on the totality of the evidence.

24The evidence does not permit me to draw any conclusions about why the SRS scoring matrix was not provided. Regardless, I agree with the applicant’s counsel that the analysis about the impact of the breach remains the same, whether the failure to disclose was intentional, or the product of inadvertence.

25There is no dispute that the SRS scoring matrix was not subject to s. 27(3) of the CCRA. No viable justification has been provided as to why it was not disclosed.

26There is also no dispute that the SRS scoring was considered by the warden. The SRS scoring also featured prominently in the rebuttal submissions filed by the applicant’s counsel, along with the changes associated with his ratings for institutional adjustment and escape risk.

27The respondent argues that the applicant had counsel, he was aware of his scores both before and after the alleged misconduct, and he had sufficient information to provide meaningful submissions. The respondent notes that in Khela, other disclosure issues contributed to the conclusion that the transfer process had been procedurally unfair. Counsel argues that in this instance, any clerical oversight in ensuring the disclosure of the scoring matrix “would be insufficient to undermine the procedural fairness of the process, which involved extensive disclosure and participatory rights for the applicant and his counsel”.

28This argument misses the mark, since the jurisprudence makes clear that the scoring matrix is part of “all the information” to which the applicant was entitled under the CCRA. I also do not see how other measures intended to promote procedural fairness overcome this failure to disclose. The effectiveness of those other measures was blunted by the lack of information to which the applicant was entitled. The respondent has provided no jurisprudence which supports the argument that other procedural safeguards may cure the failure to disclose information, or any cases where the failure to disclose the SRS scoring matrix was considered an inconsequential breach of the CSC’s statutory obligation.

29I note too that the respondent does not suggest that the SRS was inconsequential in the warden’s decision-making. Further, when the court is considering the issue of procedural fairness, the standard of review is correctness. Whether the information disclosed to the applicant was “reasonable” is not the standard against which the conduct is assessed.

30The failure to disclose the scoring matrix means there was a failure to provide the applicant with “all the information” required pursuant to s. 27(1) of the CCRA. This is a breach of CSC’s obligations under the CCRA. The more consequential issue to be determined is whether this breach has “rendered the decision procedurally unfair” (Khela at para. 90), and therefore, unlawful.

31It is difficult to qualify this breach as only minor or technical, and of no real consequence, given the language in May that “considering the nature of the scoring matrix and its role in the SRS, its non-disclosure constituted a major breach of the duty to disclose inherent in the requirement of procedural fairness”: at para. 117. This is so even though the facts in May leave no doubt as to the centrality of the SRS score to the transfer decision in that case. The additional jurisprudence I have reviewed also confirms the importance of disclosure of the SRS scoring matrix and its impact upon procedural fairness.

32In this instance, while the SRS score and the reasons for it were only one aspect of the case to meet, they were consequential in the decision to reclassify the applicant as a maximum-security offender and transfer him to a maximum-security prison. I conclude that the failure to disclose the scoring matrix for the SRS deprived the applicant of the ability to address one of the considerations in the warden’s decision-making process. I find that the transfer process was procedurally unfair. The applicant’s transfer was therefore unlawful.

33Consequently, the applicant’s habeas corpus application is granted. The decision of the warden to reclassify and transfer the applicant to maximum-security is quashed.

34I have re-sealed the sealed affidavit of Ms. Barfoot and I order that it is to remain sealed, unless otherwise ordered by this court, or other court of competent jurisdiction. I also direct that the further written submissions received by the parties following the conclusion of oral arguments shall be filed in the court record.

Lacelle J.