Illes v Canada (Attorney General), 2016 ABQB 426

Court of Queen’s Bench of Alberta Citation: Illes v Canada (Attorney General), 2016 ABQB 426 Date: 20160804 Docket: 1603 09609 Registry: Edmonton Between: Mihaly Illes Applicant - and - The Attorney General of Canada Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I. Introduction [ 1 ] This is an application for habeas corpus (with certiorari in aid).

The Applicant, Mihaly Illes, was an inmate at the Drumheller Institution, a medium security federal correctional facility in Alberta. He was reclassified as a maximum security offender and involuntarily transferred to the Maximum Security Unit in the Stony Mountain Institution, a federal correctional facility in Manitoba. [ 2 ] The Applicant argues that the decisions to reclassify and transfer him were unreasonable. He also argues that the transfer decision was procedurally unfair.

He seeks an order declaring the decisions unlawful and directing that he be returned to a medium security federal correctional facility.

[ 3 ] The Respondent, the Attorney General of Canada, opposes the habeus corpus application, arguing that the Applicant was treated fairly and that the reclassification and transfer decisions were reasonable. II. Background Facts [ 4 ] The Applicant is a forty-seven-year-old offender serving a life sentence for first degree murder with no parole eligibility for twenty-five years. His day parole eligibility date is November 8, 2023 and his full parole eligibility date is November 8, 2026. He has a pending application for judicial review of his parole ineligibility period in British Columbia.

The Applicant is subject to a deportation order to Hungary upon his release. [ 5 ] The Applicant was transferred from a maximum security federal correctional facility to a medium security federal correctional facility, the Bowden Institution, in February 2014. In May 2015, he was segregated at the Bowden Institution after being found in possession of possible narcotics, two stabbing weapons and numerous unauthorized items.

He was transferred to the Drumheller Institution (another medium security federal correctional facility) in June 2015. [ 6 ] On January 13, 2016, the Applicant was segregated at the Drumheller Institution for his involvement in the institutional sub- culture and attempts to introduce contraband into the institution.

The next day, his score on the Security Reclassification Scale (SRS) was 27.5, indicating that he should be classified as a maximum security offender. [ 7 ] Correctional Service Canada (CSC) staff prepared an Assessment for Decision recommending that the Applicant be reclassified as a maximum security offender and involuntarily transferred to the Stony Mountain Institution’s Maximum Security Unit (the Assessment). The bases for the recommendations included the following:

a) the Applicant’s recent SRS score;

b) his involvement in the institutional sub-culture;

c) his possession of another inmate’s “Protected C” document;

d) his possession of unauthorized items at the Bowden Institution;

e) his attempt to smuggle contraband into the Drumheller Institution;

f) the Applicant was suspected of muscling and intimidating other offenders in order to introduce contraband into the Drumheller Institution;

g) there was information indicating that he is a member of the Rebels Security Threat Group and is associated with the Russian Mafia and Eastern European organized crime;

h) the Applicant had a history of institutional adjustment concerns, including assaults, smuggling, planning an escape and conspiring to assault staff; and

i) he was assessed as not being engaged with his Correctional Plan, due to his negative institutional behaviour. (A “Protected C” document is a document accorded the highest protection classification for the confidential information it contains.

An inmate in possession of another inmate’s “Protected C” document might have access to personal information that could be used to barter or trade within the prison setting.) [ 8 ] The Assessment, and other material to be considered by the acting warden of the Drumheller Institution (the Acting Warden), were provided to the Applicant on January 28, 2016. [ 9 ] The Applicant says he only had ten to fifteen minutes to review the forty pages of material he received.

However, Casework Record Log entries indicate that: a CSC staff member provided the Applicant with the material at 12:30; she advised the Applicant that she would return in half an hour to retrieve the material; and she returned to retrieve the material around 13:35. In any event, the Applicant says he was unable to fully read the material in the time he was given. [ 10 ] When the CSC staff member returned to retrieve the material from the Applicant, she discovered that the Assessment was missing.

The Applicant told her he had lent it to another offender. [ 11 ] The Applicant prepared a written rebuttal to his proposed involuntary transfer for the Acting Warden to consider. The rebuttal addressed a couple of the bases for the recommendations in the Assessment. The Applicant denied that he tried to muscle or intimidate anyone into bringing contraband into the institution for him. He said he would never do business that way.

He said he did not know where that information came from and suggested that the CSC’s informant had lied or the Security Intelligence Department had fabricated evidence against him. [ 12 ] The Applicant also explained how he came to be in possession of another inmate’s “Protected C” document. He said the inmate was a friend of his and had sent the document to him. He also said he had had the document for ten years before it was found in his drawer in the Drumheller Institution.

He did not think it was wrong for him to have the document. [ 13 ] Although the Applicant’s rebuttal did not address it, it is clear from the Assessment that he denied being associated with the Russian Mafia, stating that he is Hungarian and the Russian Mafia does not accept Hungarians. The Assessment does not say whether the Applicant denied being a member of the Rebels Security Threat Group or being associated with Eastern European organized crime.

III. Final Decisions [ 14 ] On February 1, 2016, the Acting Warden issued two final decisions. The first approved the Applicant’s reclassification as a maximum security offender (the Reclassification Decision). The second approved the Applicant’s involuntary transfer to the Stony Mountain Institution’s Maximum Security Unit (the Transfer Decision). Both decisions rely on the following:

a) the Applicant was assessed as meeting the maximum security classification;

b) his Case Management Team (CMT) concurred with that assessment;

c) on January 13, 2016, the Applicant was placed in administrative segregation as a result of his involvement in the institution’s sub- culture;

d) the Applicant was involved in introducing contraband within the institution and suspected of muscling and intimidating other inmates in order to do so;

e) on January 8, 2016, the Applicant was found in possession of another inmate’s “Protected C” reports;

f) as a result of his involvement in the institution’s sub-culture, and his aggressive and intimidating behaviour towards other inmates, the Applicant was no longer considered manageable in a medium security setting;

g) the Applicant demonstrated that he is unwilling to abide by medium security behavioural expectations and rules;

h) the Applicant’s CMT supported his proposed transfer to a maximum security facility;

i) the Applicant was identified as an active member of the Rebels Motorcycle Gang Security Threat Group and as being involved with Russian Mafia and Eastern European Organized Crime;

j) the Security Intelligence Department concurred with maximum security requirements and the Applicant’s proposed transfer to the Stony Mountain Institution’s Maximum Security Unit;

k) file information reflected the Applicant’s active role in the institutional sub-culture and lengthy history of institutional adjustment concerns; and

l) file information also noted that the Applicant has a significant number of identified incompatibles, none of whom are incarcerated at the Stony Mountain Institution’s Maximum Security Unit. [ 15 ] The Reclassification Decision specifically refers to the SRS completed on January 14, 2016 which resulted in a score of 27.5, indicating that the Applicant should be classified as a maximum security offender. [ 16 ] The Transfer Decision provides these bases for the Applicant’s involuntary transfer to the Stony Mountain Institution’s Maximum Security Unit:

a) the transfer will provide the appropriate level of security in response to the Applicant’s reassessed security requirements; and

b) the transfer will provide a level of supervision and control that will ensure the safety and security of others, ensure constant supervision for the Applicant and afford the Applicant an opportunity to engage in his Correctional Plan. [ 17 ] At the end of the Transfer Decision, the Acting Warden wrote: ILLES indicated in his written rebuttal that he is not involved in muscling and intimidating other inmates into bringing in contraband and he feels the S.I.O.’s are giving false information.

ILLES’s written rebuttal has been considered in this decision making process. [ 18 ] The Applicant was involuntarily transferred from the Drumheller Institution to the Stony Mountain Institution’s Maximum Security Unit in February 2016. He remains incarcerated there. IV. Parties’ Arguments [ 19 ] The Applicant relies on the rebuttal he prepared for the Acting Warden to consider. He maintains that he did not try to muscle or intimidate anyone into bringing contraband into the Drumheller Institution for him.

He also continues to rely on the explanation in his rebuttal for his possession of another inmate’s “Protected C” document. The Applicant argues that the Reclassification and Transfer Decisions are unreasonable because they do not explain how his rebuttal was considered or why his evidence was rejected. [ 20 ] The Applicant also argues that the Acting Warden’s decisions are unreasonable because the Certified Record of Proceedings (the Record) does not provide a reasonable basis for them. He says the decisions turned on (

i) the fact that he was found in possession of another inmate’s “Protected C” document and (ii) the fact that there was information indicating he was involved in the institution’s sub- culture and in smuggling contraband into the institution. He argues these are insufficient bases for the Reclassification and Transfer Decisions because the Record (including his written rebuttal) shows (

i) that his possession of another inmate’s “Protected C” document was an extremely minor incident and (ii) that the information regarding his involvement in sub-culture and smuggling contraband was weak.

[ 21 ] In making this argument, the Applicant relies on a portion of the Assessment which notes that, prior to January 2016, he displayed positive behaviour in the Drumheller Institution and was employed as a cleaner and a canteen worker.

He also relies on the fact that there is nothing in the Record to indicate that he was charged, or will be charged, with any institutional offences as a result of the information that CSC obtained against him. [ 22 ] The Applicant further argues that the Reclassification and Transfer Decisions are unreasonable because they do not indicate that the Acting Warden considered exercising his discretion to maintain the Applicant’s medium security offender classification.

In making this argument, the Applicant relies on the SRS document in the Record, which indicates that his computed security classification would be medium, rather than maximum, with the application of the “5% discretionary range”. [ 23 ] The Applicant also argues that the Transfer Decision was procedurally unfair because he received inadequate disclosure and was not given enough time to review the disclosure he did receive. The Applicant says he did not receive adequate details about the allegations against him.

More specifically, he says the material he received: did not say when he was believed to have smuggled, or attempted to smuggle, contraband into the Drumheller Institution; did not say when he was believed to have muscled or intimidated other inmates; did not provide details of the aspects of the institution’s sub-culture he was believed to be involved in; and did not reveal where the allegations against him came from (that is, who made them). He says the information he received about the allegations against him were so vague that the only response he could provide was a blanket denial.

In other words, he says he was denied an opportunity to properly respond to the allegations against him because he was not given sufficient details of those allegations. [ 24 ] Regarding the amount of time he was given to review the disclosure he received, the Applicant maintains that it was only ten or fifteen minutes. He says even if he is mistaken, and he had the material for an hour (like the Casework Record Log entries indicate), he was still given too little time.

He says he was unable to fully read the material in the time he was provided. [ 25 ] The Respondent argues the Applicant was treated fairly because he was provided the information to be considered by the Acting Warden and given ample time to review that information and contemplate his response.

The Respondent says: some details were withheld from the Applicant to protect the safety of others and the security of the Drumheller Institution; the Applicant limited the time he had to review the information he received by providing the Assessment to another inmate; and the Applicant was able to prepare a written response to the information addressing the issues he thought were pertinent. [ 26 ] The Respondent also argues that the Acting Warden’s decisions were reasonable in the circumstances.

It is the Respondent’s position that, based on the evidence before him, the Acting Warden was justified in deciding to change the Applicant’s security classification and transfer him to a maximum security institution. The Respondent says it was open to the Acting Warden to (

i) prefer the evidence contained in the Assessment to the Applicant’s rebuttal evidence and (ii) agree with the Assessment’s recommendations. Thus, it was reasonable for the Acting Warden to conclude that the Applicant’s behaviour had deteriorated to such a point that he could no longer be managed in a medium security institution. V. Legal Principles A.

Jurisdiction of the Provincial Superior Courts [ 27 ] In Mission Institution v Khela , 2014 SCC 24 , [2014] 1 SCR 502 [ Khela ], the Supreme Court of Canada confirmed that a provincial superior court has jurisdiction to hear an application for habeas corpus (with certiorari in aid) to review the legality of an inmate transfer decision: paras 3-4, 33-35, 51-52 and 67. B. Applicable Tests [ 28 ] To succeed on such an application, an applicant must establish a deprivation of his or her liberty and raise a legitimate basis on which to question the legality of the deprivation.

Once those requirements are satisfied, “the onus shifts to the respondent authorities to show that the deprivation of liberty was lawful”: Khela at para 30 . [ 29 ] The Respondent concedes that the Applicant has established a deprivation of his liberty. It is well-established that the “decision to transfer an inmate to a more restrictive institutional setting constitutes a deprivation of his or her residual liberty”: May v Ferndale Institution , 2005 SCC 82 , [2005] 3 SCR 809 at para 76 and Khela at para 34 .

The Respondent acknowledges that the Acting Warden decided to transfer the Applicant from a medium security institution to a maximum security institution. [ 30 ] The Applicant has also raised legitimate bases on which to question the legality of the Acting Warden’s Transfer Decision. An inmate transfer decision will be unlawful if the decision maker lacks jurisdiction to order the deprivation, if there has been a breach of procedural fairness or if the decision is unreasonable: Khela at paras 52 and 67 .

As outlined above, the Applicant argues that the Transfer Decision was procedurally unfair and unreasonable. [ 31 ] The remaining question to be determined is whether the Respondent has shown that the Acting Warden’s Transfer Decision was lawful. More specifically, I must determine whether the Transfer Decision was procedurally fair and reasonable. VI. Analysis A. Procedural Fairness [ 32 ] The standard for determining whether the Transfer Decision was procedurally fair is correctness: Khela at para 79 .

[ 33 ] The Corrections and Conditional Release Act , SC 1992, c 20 ( CCRA ) and the Corrections and Conditional Release Regulations , SOR/92-620 ( CCRR ) outline the disclosure required for me to find the Transfer Decision fair: Khela at para 4 . [ 34 ]

Section 12 of the CCRR provides that, before the involuntary transfer of an inmate from one penitentiary to another, CSC staff must “give the inmate an opportunity to make representations with respect to the proposed transfer in person or, if the inmate prefers, in writing”. [ 35 ] Subsection 27(1) of the CCRA provides that, where an inmate is entitled to make representations in relation to a decision to be taken by the CSC, the decision-maker must give the inmate “all the information to be considered in the taking of the decision or a

summary of that information.” [ 36 ] Subsection 27(1) is subject to subsection 27(3), which provides that, where the Commissioner of Corrections “has reasonable grounds to believe that disclosure of information under subsection (1) ... would jeopardize (

a) the safety of any person, (

b) the security of a penitentiary, or (

c) the conduct of any lawful investigation”, he or she may authorize the withholding from the inmate “of as much information as is strictly necessary in order to protect the interest” that would be jeopardized. [ 37 ] Thus, the Applicant was entitled to receive all the information to be considered by the Acting Warden in making the Transfer Decision, or a

summary of that information, unless subsection 27(3) applied. [ 38 ] The onus is on the Respondent to show that

section 27 of the CCRA was complied with: Khela at paras 82 and 86 . [ 39 ] The Respondent admits that some information was withheld from the Applicant pursuant to subsection 27(3). The Respondent must therefore show that there were reasonable grounds to believe that disclosure of that information would jeopardize a person’s safety, the security of a penitentiary, or the conduct of a lawful investigation.

Moreover, the Respondent must show that the information withheld from the Applicant was only that information that was strictly necessary to protect the interest that would be jeopardized. [ 40 ] In accordance with the Supreme Court’s instructions in Khela (at paras 87-88 ), the Respondent submitted a sealed affidavit containing: the information withheld from the Applicant compared with the information disclosed to him; and the reasons why disclosure of the withheld information might jeopardize other persons’ safety and the security of the Drumheller Institution.

The affidavit also explains why the withheld information is considered credible and reliable. [ 41 ] As the Supreme Court explained in Khela (at para 89 ), the Commissioner, or his or her designee, is in the best position to determine whether one of the risks in paragraphs 27(3)(a), (

b) or (

c) could materialize and whether a given source of information is reliable. Consequently, the Commissioner, or the Acting Warden in this case, is entitled to some deference on these points. [ 42 ] The Court must always be concerned when information is withheld from a person whose liberty may be affected by a decision based on that information. However, the sealed affidavit the Respondent submitted satisfies me that the information withheld from the Applicant was properly withheld.

That is, I am satisfied that there were reasonable grounds to believe that disclosure of the information would jeopardize other persons’ safety and the security of the Drumheller Institution. I am also satisfied that the only information withheld from the Applicant was that which was strictly necessary to protect the interests that would be jeopardized. [ 43 ] As a result of the decision to withhold certain information from him, the Applicant was forced to negotiate a maze while wearing a blindfold. Unfortunately, this is his lot.

The withholding of the information from him did not breach subsection 27(3) and did not render the Acting Warden’s Transfer Decision procedurally unfair. [ 44 ] I am also satisfied that the Applicant had sufficient time to review the disclosure he received. There are several bases for this conclusion. First, Casework Record Log entries indicate that the Applicant had the material for about an hour, which is significantly longer than the ten to fifteen minutes he claims to have had it.

Second, there is no indication in the Record that the Applicant suggested he did not have time to fully read the material when the CSC staff member attended to retrieve it from him. Third, the Record indicates that, not only did the Applicant have time to fully read the Assessment, he was able to loan it to another inmate for his review before the CSC staff member retrieved the material. [ 45 ] When the CSC staff member retrieved the material from the Applicant, she discovered the Assessment was missing. The Applicant told her he had lent it to another offender.

When asked why he did that, the Applicant said, “so that the other guy could have a good laugh and see how fucking retarded it was.” In addition to showing the Applicant’s cavalier attitude towards the Assessment, his response demonstrates that he read the Assessment thoroughly enough to form an opinion on its contents.

The Assessment was undoubtedly the most important document for the Applicant to review, as it contained the recommendations for his reclassification and transfer, as well as the bases for those recommendations. [ 46 ] Lastly, the Applicant’s written rebuttal indicates that he had sufficient time to review the disclosure he received.

While incomplete in the sense that it did not respond to every allegation against him, the rebuttal did respond to the most recent allegations against him (those of muscling or intimidating other inmates to bring contraband into the institution and possessing another inmate’s “Protected C” document). The rebuttal demonstrates that the Applicant reviewed the Assessment in its entirety. [ 47 ] In the result, I am satisfied that the CSC complied with its statutory disclosure requirements in this case. The Respondent has met its onus of showing that the Acting Warden’s Transfer Decision was procedurally fair. B.

Reasonableness [ 48 ] Next I must determine whether the Transfer Decision was reasonable. Reviewing a transfer decision for reasonableness requires deference. A transfer decision will be unreasonable, and therefore unlawful, if it lacks “justification, transparency and intelligibility”: Khela at paras 73 and 75 , citing Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 at para 47 .

[ 49 ] It is important to note at this point that the Acting Warden’s Reclassification Decision drove his Transfer Decision. Thus, although the decisions were issued separately, they are not really independent of one another. The decision to involuntarily transfer the Applicant to a maximum security federal correctional facility hinged on the decision to reclassify him as a maximum security offender. The bases for the two decisions were the same. That is why the Transfer Decision reproduces most of the Reclassification Decision.

It is also why the parties’ arguments, and my reasons, speak to the reasonableness of both decisions. [ 50 ] The Acting Warden’s decisions list many factors (outlined in

Part III) that provided the rationale for the Applicant’s reclassification and transfer. It may well be that those factors, and the evidence supporting them, were sufficient to support the Acting Warden’s decisions and render them reasonable. However, I cannot determine this because the Acting Warden’s reasons are inadequate. [ 51 ] I am concerned about how the Acting Warden determined the veracity of the factors he relied on, particularly the most recent allegations against the Applicant. He provided no explanation of this in his reasons.

Nor did he provide any basis for preferring the evidence contained in the Assessment to the Applicant’s rebuttal evidence. I recognize that the Acting Warden could not include any explanation that would disclose information that was properly withheld from the Applicant. Nonetheless, he should have provided some explanation of why he accepted the allegations in the Assessment over the Applicant’s denials and explanations. The Acting Warden’s reasons do not say anything about why the Applicant’s rebuttal evidence was discounted.

They simply acknowledge what some of his evidence was and say his rebuttal was considered. This is inadequate. [ 52 ] In reaching this conclusion, I am not suggesting that it was unreasonable for the Acting Warden to prefer the evidence contained in the Assessment to the Applicant’s rebuttal evidence. I am saying that the Acting Warden should have explained his decision-making process.

I hesitate to suggest how his reasons could have been properly drafted, but am confident that there were a number of ways the Acting Warden could have indicated how he weighed the contradictory evidence before him, without disclosing any of the properly withheld information. [ 53 ] There is another basis on which I have concluded that the Acting Warden’s reasons are inadequate. It appears that the Acting Warden failed to consider exercising his discretion to decide that the Applicant remained a medium security offender, despite the allegations against him and his most recent SRS score.

The Applicant’s score on the SRS was 27.5. While that score indicates that the Applicant should be classified as a maximum security offender, the SRS document in the Record shows that the Applicant’s computed security classification would be medium, rather than maximum, if the “5% discretionary range” was applied. In other words, even assuming the veracity of the allegations against him, the Applicant was a close case for reclassification. The Acting Warden’s reasons do not acknowledge this, nor reference the 5% discretionary range.

The Acting Warden’s failure to consider, or failure to explain how he considered, the 5% discretionary range also render his reasons inadequate. [ 54 ] The importance of adequate reasons cannot be overstated, particularly in a case where the challenged decision deprives an individual of liberty. The statutory scheme governing the CSC recognizes this by providing that the CSC must give an inmate reasons for changing his or her security classification and transferring him or her between penitentiaries: CCRA , s 30(2) and CCRR , s 12(d).

As the Supreme Court explained in R v Sheppard , 2002 SCC 26 , [2002] 1 SCR 869 at para 24 , “reasons justify and explain the result”; that is, they let the losing party know why he or she has lost. The Acting Warden’s reasons do not this. They do not explain why the Acting Warden preferred the evidence contained in the Assessment to the Applicant’s rebuttal evidence. Nor do they acknowledge that the Acting Warden had a discretion to apply the SRS’s 5% discretionary range and conclude that the Applicant remained a medium security offender, let alone indicate that he was not applying it.

Consequently, they do not justify and explain why the Applicant was reclassified as a maximum security offender and involuntarily transferred to the Stony Mountain Institution’s Maximum Security Unit. [ 55 ] In the result, the Respondent has not proven that the Acting Warden’s decisions were “reasonable in light of all the circumstances”: Khela at para 77 . The Reclassification and Transfer Decisions lack justification, transparency and intelligibility and are, therefore, unreasonable. VII. Result [ 56 ] The application for habeus corpus is granted.

The Acting Warden’s Transfer Decision is unreasonable and, therefore, unlawful. The Applicant should be returned to a medium security federal correctional facility. Heard on the 18 th day of July, 2016. Dated at the City of Edmonton, Alberta this 4 th day of August, 2016. Eric F. Macklin J.C.Q.B.A. Appearances:

Amanda Hart-Dowhun of Engel Law Office for the Applicant Brad Bedard of the Department of Justice Canada for the Respondent