Cundell v Bowden Institution, 2016 ABQB 348

Court of Queen’s Bench of Alberta Citation: Cundell v Bowden Institution, 2016 ABQB 348 Date: 20160623 Docket: 151522232X1 Registry: Edmonton Between: Donald Brian Joseph Cundell Petitioner - and - The Warden of Bowden Institution Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice S.D. Hillier _______________________________________________________ I. Introduction [ 1 ] The Applicant, Donald Cundell, is a first time federal offender. Mr.

Cundell was a young offender but was sentenced in adult court on May 28, 2002 to life imprisonment without parole for at least seven years for the violent sexual assault and second degree murder of a female victim. He has resided in a number of different institutions, and is currently incarcerated at Bowden Institution, a medium security correctional facility operated by Corrections Services Canada (CSC). [ 2 ] Mr. Cundell was briefly accorded minimum security status between June 11, 2011 and October 27, 2011. He seeks reinstatement of that status. II. Background [ 3 ] The records reflect that Mr.

Cundell took the victim to a dumpster, doused her in accelerant, and lit her on fire. The groin

area, which should have been protected by the thighs, buttocks and abdomen, was the most disrupted. [ 4 ] He was denied both day and full parole by the Parole Board of Canada on November 19, 2008 based on its assessment that release would present an undue risk to the community. [ 5 ] In the period leading up to 2011 facilitators at the Mission Medium Institution noted areas for improvement, including development of prosocial skills and attitudes. [ 6 ] Although the materials are quite incomplete, correspondence indicates that a probation officer at Mission Institution, Steve Bayes, authored reports in consultation with a program facilitator, Shannon Wood, to assess Mr.

Cundell’s institutional adjustment, escape risk and public safety threat. These reports in June and July 2011 calculated the Security Reclassification Scale (SRS) ratings for Mr. Cundell variously at the low or minimum security level. [ 7 ] Upon approval of his June 24, 2011 request, and despite a differing assessment of public safety from the Manager of Assessment and Intervention, Mr. Cundell was transferred to minimum security at William Head Institution effective August 11, 2011.

It does not appear to be disputed that the transfer to minimum security arose out of the SRS ratings and an Assessment for Decision also prepared on June 17, 2011. [ 8 ] From limited records, it seems that all did not go smoothly for Mr. Cundell at William Head Institution. In particular, the facilitator for the Institution’s sex offender maintenance program noted that the Applicant “has not taken responsibility for his sexual/homicidal offence and remains very entrenched in a pre-contemplative state regarding changing the various risk factors that preceded his offending”.

It is not at all clear how this perception reconciled with the reports from Mission Institution. [ 9 ] On October 27, 2011, Mr. Cundell’s security classification was reviewed by Parole Officer Bernie Reay in the context of the Commissioner’s overall direction that all offenders in minimum security serving over 10 years be reviewed. At this point, Mr. Cundell had been in custody for about 9½ years on a life sentence. [ 10 ] By Ms. Reay’s Assessment for Decision, the Applicant’s security classification did not support placement in the minimum security institution where he had resided for less than three months.

In particular a “high” rating or Public Safety Risk was considered appropriate, partly due to the Applicant’s history of violent behaviour prior to commission of the index offence and the psychological assessment that the Applicant is at “high risk for sexual, spousal and general violent recidivism”. [ 11 ] In consultation with Acting Deputy Warden T. Baldo, Acting Assistant Warden Intervention, B. Monkhouse, and Acting Manager of Assessment and Intervention, M. Wiber, it was determined that Mr. Cundell could no longer be managed at William Head Institution.

Predictably, the Applicant took strong exception to the assessment. [ 12 ] On October 28, 2011, Mr. Cundell was provided with a Notice of Involuntary Transfer back to the Mission Institution. Mr. Cundell indicated he wished to challenge this medium security reclassification. He retained legal counsel Mark Redgwell who obtained several extensions to permit the preparation of a rebuttal. In mid-December, Mr. Redgwell noted that he needed to review specified copies of prior SRS ratings and decisions in order to complete the rebuttal. Inexplicably, these materials were never provided. [ 13 ] On January 5, 2012, Mr.

Cundell was transferred on an emergency involuntary basis to the Mission Institution. There is no indication of any incident precipitating that transfer, nor the extent to which relocation may have disrupted communication with Mr. Redgwell. Mr. Cundell continued to seek an extension of time for his rebuttal, but that was rejected and two decisions were rendered. [ 14 ] On January 23, 2012 A/Warden Dave Clouston quoted the results of the Assessment for Decision: Mr. Cundell’s risk for violent re-offending, and to the safety of society is considered to be HIGH, at this time.

He has yet to adequately internalize the skills he was taught during program interventions and, he lacks a clear understanding of the seriousness of his current risk. Thus, he does not meet with the minimum security requirements for Public Safety, according to policy. MEDIUM SECURITY RECOMMENDED [ 15 ] Mr. Clouston then confirmed the SRS security assessment and attributed the following ratings: Institutional Adjustment: Moderate; Escape Risk: Low; Public Safety: Moderate. Having assessed an overall Medium risk, he then advised of the right to access the grievance process to the Regional Deputy Commissioner under

Section 16 of the Commissioner’s Directive 081. Nothing indicates that Mr. Cundell pursued that option or indeed took any other action. [ 16 ] Although Mr. Cundell deposes that he made the last request for extension January 20, 2012, it is unclear when the legal retainer of Mr. Redgwell was discontinued. [ 17 ] On January 24, 2012, Mr. Clouston issued a further Referral Decision Sheet regarding the involuntary transfer, which summarized that five time extensions had already been granted, and stated: On 12 01 20 you requested another extension.

I denied that extension because you, along with your lawyer, have had sufficient time to prepare a rebuttal to this involuntary transfer process. I am, now, obligated to submit a decision for this involuntary transfer. [ 18 ] No explanation was given as to what obliged a decision on that date, bearing in mind that Mr. Cundell had already been physically transferred. The Record neither contains copies of any extension correspondence after December 15, 2011, nor does it explain the absence of those documents. It is difficult to determine which documents were accessed or available to Mr.

Clouston. [ 19 ] The Final Decision does not quote or extract any part of the Mission Institution’s SRS ratings and decisions which Mr. Redgwell was seeking to review in order to prepare any rebuttal. Nothing is noted as to why Ms. Reay’s SRS rating was more reliable than the one prepared by Mr. Bayes. However, it does state:

During the review, your Parole Officer found that your former security reclassification review did not accurately reflect some of thespecific factors in your case. For example, you are a violent sex offender, where psychological concerns will be evident throughout yourlife. Further, the former scale indicated that you have completed your correctional plan. This is incorrect, considering your life sentenceand ongoing need for program interventions and maintenance. [20] Again, Mr. Clouston alerted Mr.

Cundell to his right to submit a grievance within the Pacific Region directly to the secondlevel of the Inmate Grievance Process. However, no further steps were taken at that time. [21] It is unclear when the next SRS Assessment was provided to Mr. Cundell. The Commissioner’s Directive 710-6 contemplatesratings every two years. What is known is that the latest assessment was July 15, 2015, the rating remained at Medium, and no grievanceor judicial review application was filed in relation to that process. [22] Mr. Cundell was subsequently transferred to the Bowden Institution where he currently resides.

His security classification wasreviewed on July 31, 2015, and it was confirmed that he should continue at present to be housed in a medium security facility. [23] During his incarceration, Mr. Cundell has participated in institutional programs, including family violence and sex offenderprograms. III. Positions of the Parties 1. Petitioner [24] On December 11, 2015, Mr. Cundell filed a Notice of Application, seeking “habeas corpus with certiorari and mandamus inaid if needed” in relation to security reclassification and institution transfers in 2011.

Those written materials sought the following relief: 1. ... that his the (sic) matter be referred back to the decision maker with an order to transfer to lower and or lower his [SecurityReclassification Score] and move Mr. Cundell within seven days to a Minimum Institution or Healing lodge or that meets hisneeds/culture/medical and other needs as per the rulings by the SCC in R v. Gladue and R v. Ipeelee and as per Doyle v., Gibson v., andKhela v. and in accordance to the Doctrine of Musitano v. ie: habeas corpus can be used in the reverse (send one to minimum), and 2.

In the alternative, that in the case of Day/Full parole the matter be referred back to the Parole Board with Seven days to releaseMr.

Cundell on day or full parole... [25] As prepared from within Bowden Institution, the whole of the materials failed to reconcile why reference was made todecisions affecting aboriginal interests, or to parole relief beyond the jurisdiction of Queen’s Bench. [26] By contrast, the Brief of Law filed February 12, 2016 by articling students on behalf of the Applicant was more useful, despitethe failure to abandon or dissociate from the earlier materials, including the remedy of parole. [27] From the oral submissions of two student agents, the Court understands that Mr.

Cundell seeks reinstatement of his minimumsecurity status. They assert that a breach of procedural fairness, lack of disclosure and unreasonable criteria tainted the process by whichhis reduced security status was revoked.

They submit that his failure to take earlier steps in court to challenge the result from 2011 mustbe considered in the full context of his incarceration, the treatment of prior legal counsel, the denial of parole in July 2015 and thesubstance of his concerns. [28] The student agents have profiled the following points as breaches of procedural fairness that should attract attention uponhabeas corpus: 1. The circumstances at the end of October 2011 were not properly characterized as to justify an emergency transfer.

The security re-assessment arose as part of a review contemplated pursuant to s 28 of the Corrections and Conditional Release Act, SC 1992, c 20. Whilethe crime under review was a serious and violent offence which attracted a life sentence, there had been no re-offending incident orprecipitating conduct by the Applicant.

No imminent threat or safety issues arose within the scope of s 13 of the Regulations andapplicable case law: Dorscheid v Kent Institution, [1998] BCJ No 1866 (QL), (BCSC); Doan v Canada (AttorneyGeneral, 2014 BCSC 2388, 118 WCB (2d) 165; Nguyen v Mission Institution, 2012 BCSC 103 at para 57, 99 WCB (2d) 587. 2. The materials used to support reclassification to minimum security in July 2011 should have been disclosed to the Applicant for usein preparation of a Rebuttal and certainly included as part of the records to be considered in the Final Decision.

Again the parameters ofapplicable disclosure are set out in s 27 of the CCRA and applicable case law: May v Ferndale Institution, 2005 SCC 82 at paras 94-100,[2005] 3 SCR 809. 3. The Final Decision failed to consider the factors for transfer as prescribed by s 17 of the Regulations and placed undue weight on anon-enumerated consideration, being whether the offender accepted responsibility for the sexual nature of his index offence: Tuckanowv Bowden Institution, 2014 ABQB 563 at paras 31-35, 591 AR 348.

As such, the outcome was not within the spectrum of reasonableoutcomes. [29] In an Affidavit sworn February 3, 2016, Mr. Cundell asserts that he had been unnecessarily referred to sex offendermaintenance programs, and that his institutional parole officer (at William Head Institution) was prejudiced, insulting, and had reactednegatively to a confrontation in 2011. Mr. Cundell describes how the institutional parole officer’s “aggressive and angry persona had me

fearful for my physical safety” and he believes that it was this conflict that led to his being reclassified and transferred to MissionInstitution. [30] In effect, Mr. Cundell does not challenge the lawfulness of his present post-July 31, 2015 classification as a medium riskoffender and his detention at Bowden Institution. His only basis to challenge the result of the July 31, 2015 review is that it was andremains tainted by the failure to accord a fair review process to the appeal he filed in 2011. 2. Respondent [31] The Respondent takes the position that habeas corpus is unavailable because Mr.

Cundell is lawfully detained and did notexperience a deprivation of liberty at his last security assessment dated July 31, 2015. [32] The Respondent emphasizes that Mr. Cundell has been rated as a medium security risk since late October 2011. The securityassessment decision July 15, 2015 confirmed that rating and did not result in any deprivation or reduction in liberty. This is afundamental prerequisite for the process of habeas corpus. Nothing supports going back to review earlier SRS classifications. [33] As such, there has been no deprivation of liberty and the application is moot.

Not only was the decision to re-institute mediumsecurity made more than four years ago, Mr. Cundell participated in a full review and confirmation of his security status as at August 15,2015: A recent psychological assessment completed supports a very slow and structured plan to cascade to minimum security and eventualrelease. As noted, Cundell has only recently begun to work positively with his case management team and this will need to be sustainedover a longer period of time before consideration for minimum security.

Medium security remains the appropriate level to manage risk levels at this time. [34] However, the Respondent concedes that if the 2011 reclassification was subject to review, then it would be unable to establishprocedural fairness, including the right to know the case by disclosure and a proper opportunity to respond. IV. Analysis [35] Habeas corpus is a powerful and exceptional civil remedy in which a detained person must first establish a deprivation ofliberty.

At common law, it is intended to be specific and timely in order to ensure that a person whose liberty is currently restricted,including through security reclassification, endures any loss of liberty on a lawful basis: Khela v Mission Institution, 2014 SCC 24,[2014] 1 SCR 502. [36] If an applicant shows a legitimate ground to question the legality of the deprivation, then the burden shifts to the Crown toprove that the deprivation or continued detention is lawful: May v Ferndale. [37] Although powerful, habeas corpus is not an all-pervasive remedy. It is not an appeal.

Further, it only applies to protect againstpotentially unlawful present and ongoing detention. It does not apply to attack hypothetical detention: Dumas v Leclerc Institute, (SCC), [1986] 2 SCR 459, [1986] SCJ No 61 at paras 12-14. It is also unavailable to challenge a historical detention: R vLatham, [2000] OJ No 3720 at paras 21-23, 2000 CarswellOnt 348 (Sup Ct J). [38] The issue then is whether Mr.

Cundell has established a current deprivation of liberty. [39] It is apparent from the record that he was classified at medium security for nine years during which he was refused both dayand full parole in November 2008. His Security Reclassification Score in June 2011 was supportive of transfer to minimum securitywhich occurred in August 2011. Less than three months later, his SRS assessment set a medium security rating. [40] I am not particularly persuaded by Mr.

Cundell’s affidavit allegations or complaints as to conflicts between him and officers atWilliam Head Institution, nor his frustrations about the refusal of temporary absences and having to take further programs. [41] However, the earlier process was arguably flawed by lack of disclosure, invoking emergency transfer and a differingperspective on risk, having regard to the full circumstances at that time. [42] Mr. Cundell argues that these earlier flaws continue to taint the current risk assessment as a matter of logic which the Courtought to recognize as essentially unassailable.

That proposition simply cannot be sustained on the limited evidence before the Court, oras a matter of law. The Record does not support that his progress was nearly so glowing as his agents argued. And the law does notpresume that subsequent valuation must be treated as cumulative. The problem, fundamentally, is that Mr.

Cundell has not sought norpresented the July 2015 Final Decision for critique. [43] Even he had done so, it would be extremely difficult on the face of the text alone to now determine the extent, if any, to whichthe January 2012 Final Decision would be more persuasive than the June 2011 assessment. Neither may have much more than historicvalue given that security assessments are intended to be updated to respond to current circumstances. I note in that regard that Mr.Cundell was returned to Mission Institution in January 2012.

That is where he had obtained his lowest assessment but he remained thereuntil his medium security transfer to Bowden. [44] All of this simply points out the importance of dealing with the current assessment in order that habeas corpus can operate ona timely basis. [45] J Farbey & RJ Sharpe in The Law of Habeas Corpus, 3rd ed (Oxford: Oxford University Press, 2011) at 199 explain:

The general rule is that unless prior illegality vitiates the present cause of detention it will not matter what has happened to the prisoner, so long as the detention is now justified . ... [Emphasis added.] [ 46 ] This exact point was considered by Arnold-Bailey J in Lord v Coulter; Lord v Canada (Correctional Service, Commissioner) , 2007 BCSC 1758 at para 94 , 72 Admin LR (4th) 264, aff’d 2009 BCCA 62 , 266 BCAC 122: ...

I note that it is only the most recent assessment of Lord's security classification and penitentiary placement (the Second Involuntary Transfer Recommendation and Decision) that is relevant in determining the lawfulness of his current incarceration . ...

I must examine the reasons and process behind the latest transfer decision to determine if the transfer was lawful. [Emphasis added.] [ 47 ] The case of Wood v Atlantic Institution , 2014 NBQB 135 , [2014] NBJ No 278 dealt with a prisoner whose security classification over a twenty year span went from maximum (six years) to medium (seven years) and back to maximum (seven years). Despite some historical security assessments, the Court found no current deprivation of liberty because there was no change in status. [ 48 ] Mr.

Cundell seeks to distinguish the circumstances in that case on the basis of the extended period of unchanged security status. Quite frankly, the difference between six years in Wood and four years here is not a basis for distinction. Admittedly, historical unfairness as such was not significant in Wood , but the principle is clear.

Reviews must relate to the current assessment in order to determine whether there has been an unlawful deprivation as would support relief, which is not merely declaratory but remedial in returning an applicant to prior liberty. [ 49 ] A similar result derived in Robinson v Canada (Attorney General) , 2013 ONSC 7992 , [2013] OJ No 5997. In that case, the Court was dealing with a challenge to security classification that remained the same: “The applicant challenges the assessment tools and information given to the decision-maker and objects to the requirement that he disassociate with Hells Angels”.

Despite a Charter argument, the Court found that prior decisions foreclosed access to habeas corpus as an effective remedy where no deprivation arises: Dumas v Leclerc Institute , and Moldovan v Canada (Attorney General) , 2012 ONSC 2682 , [2012] OJ No 3113. [ 50 ] The strength of an argument which confronts the absence of a deprivation cannot be improved by going back to purport to challenge an earlier assessment.

Habeas corpus is simply unavailable to impeach an historical decision. [ 51 ] The July 2015 Final Decision did not result in any change in status affecting deprivation of liberty. [ 52 ] That does not excuse what the Respondent has conceded is the unfairness of the non-disclosure, nor the use of emergency transfer powers or the failure to receive submissions as to a comparison of the SRS assessments of June and October 2011. From my review of the material before this Court:

a) nothing on the Record supports that the materials sought by Mr. Redgwell, including reports from Mr. Bayes at Mission Medium Institution, were ever disclosed for analysis and inclusion in any Rebuttal, much less ever fairly explained to be irrelevant to the proper preparation of a Rebuttal;

b) nothing in the circumstances precipitated the need for an emergent transfer, given the low risk of escape; and

c) in all events, nothing required that a decision be issued on January 23 or 24, 2012, particularly given that Mr. Cundell had already been involuntarily transferred and had still not been provided with disclosure to prepare a Rebuttal. [ 53 ] Despite these findings, Mr. Cundell has not pointed to anything which would indicate that the events surrounding his reclassifications in 2011/12 had any impact on the 2015 Final Decision.

Nor has he established that any of the failings listed above impaired his ability to challenge his current security rating. [ 54 ] I conclude that habeas corpus is not available as a remedy: Mapara v Ferndale Institution (Warden) , 2012 BCCA 127 at para 15-16 , 318 BCAC 139, leave denied [2012] SCCA No 21. V. Conclusion [ 55 ] The application is dismissed. [ 56 ] However, this decision is not intended to foreclose any other remedy with respect to obtaining disclosure of materials to which Mr. Cundell might be entitled relating to the entire period of his incarceration. VI.

Costs [ 57 ] The Respondent conceded that it would not be able to establish procedural fairness in relation to the reclassifications in 2011/12. Although I have dismissed the application, I decline to order costs in this matter. Heard on the 2 nd day of March, 2016.

Dated at the City of Edmonton, Alberta this 23rd day of June, 2016. S.D. Hillier J.C.Q.B.A. Appearances: Ms. E. Weisenburger and Mr. J. Doran Agents for the Applicant Ms. M. McEachern and Mr. R. Drummond Department of Justice Canada Prairie Region, Edmonton Office Counsel for the Respondent