Hamm v Attorney General of Canada (Edmonton Institution), 2016 ABQB 440

Court of Queen ’ s Bench of Alberta Citation: Hamm v Attorney General of Canada (Edmonton Institution) 2016 ABQB 440 Date: 20160809 Docket: 160681052X1 Registry: Edmonton Between: Matthew Christopher Hamm, Shawn Curtis Keepness, Cullen Sol Johnson, Taylor James Tobin Applicants - and - Her Majesty the Queen Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Shawn Keepness, a 31 year old indigenous person, is serving a lengthy prison sentence, in part for manslaughter and in part from crimes committed while in custody, at the Edmonton Institution, a maximum security prison. On June 28, 2016, Mr. Keepness, and each of the other three applicants, was assigned to involuntary segregation, or solitary confinement, within that institution. Mr. Keepness applies for habeas corpus . Neither he nor any of the other applicants has a lawyer; no student agents assisted the applicants; no amicus curiae assisted the court.

[ 2 ] Since 2012, i.e. while the Corrections and Conditional Release Act directed that “the inmate is to be released from administrative segregation at the earliest appropriate time”, Mr. Keepness has already spent a total of 822 days in solitary confinement; the longest number of consecutive days that he has spent in solitary are 382 and 291 respectively. The longest sentence which an institution can impose as punishment for a serious breach of the institution’s rules is 30 days: s. 44(1)(

f) CCRA. Mr. Keepness has never been convicted of an institutional charge; each of his segregation placements has been for administrative purposes. [ 3 ] Matthew Hamm is a 37 year old who is serving a 5 and ½ year sentence for robbery at the Edmonton Institution. In March 2014, while Mr. Hamm was serving his sentence in a maximum security penitentiary in another province, a psychiatrist who reviewed Mr. Hamm’s medical records concluded that “Mr. Hamm suffers from Bipolar Disorder. This is an episodic, severe and persistent mental illness that has been present for well over a decade. . . . In Mr.

Hamm’s case, Bipolar Disorder is co-morbid with substance abuse and personality pathology. . Significant factors contributing to destabilization of Mr. Hamm’s illness, beyond his control, have included diagnostic uncertainty leading to the inappropriate prescription of medications (Vyvanse, Trazodone) and the inadequate use of mood stabilizing/anti-psychotic medication.” The segregation report relating to Mr.

Hamm’s placement in solitary states that there had been a consultation with a psychologist whose comments were: “While major mental disorder related to his mood has been considered in the past, more recently it does not appear that this diagnosis remains supported. . . . Although Mr. Hamm is currently receiving pharmacological therapy to address his emotional regulation difficulties, the most significant health domain is likely dysfunctional personality straits. . . . Based on this review, there is no evidence to suggest mental health concerns should preclude Mr.

Hamm’s placement in segregation at this time.” [ 4 ] Taylor Tobin is a 19 year old aboriginal person who is serving his first federal sentence of approximately 6 and ½ years for robbery and related crimes. The psychologist who assessed Mr. Tobin indicates: “Mr. Tobin has a history of suicidal ideation and behaviour; recent information indicates no elevated risk for suicide/self-harm at this time. He was prescribed psychotropic medications in the past, but due to diversion, his prescription was discontinued. Mr. Tobin rarely interacts with members of the Institutional Mental Health Team.

His level of mental health need would likely be rated as low to none. Therefore . . . there is no evidence to suggest mental health concern would preclude Mr. Tobin’s placement in segregation and there do not appear to be any mental health needs which will require accommodation while segregated.” [ 5 ] Curtis Johnson was placed in segregation on the same day as the other applicants; however, immediately prior to the hearing, Mr.

Johnson was removed from segregation and placed back in general population at the Edmonton Institution. [ 6 ] The institution acknowledges that the placement in segregation has further restricted the liberty of the applicants and, therefore, the institution bears the onus of establishing that it has provided each of the applicants with procedural fairness and that its decision to segregate each of them is reasonable. [ 7 ] With respect to each inmate, the institution gives the same reason for the segregated placement on June 28: “the Correctional Manager of Unit-6 received information from various creditable believed reliable sources that the applicants were going to seriously harm or assault Correctional Officers on June 30.

There was no indication that the inmates had weapons, or what their method of assault would be. However, it was suggested that they had picked three specific officers to assault to teach them a lesson not to "fuck" with the inmates.” [ 8 ] The statutory 5th Working Day Review decision in relation to each inmate follows a very similar pattern.

The conclusion in each case is the same and reads: I order inmate ____________ be maintained in Segregation as the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person. [ 9 ] Pursuant to the Baker analysis, the court concludes that, given the seriousness of the consequences of a placement in solitary confinement to each of the applicants amongst other factors, the government has a duty of providing a high level of procedural fairness to each applicant. The institution has not satisfied that burden.

In particular: - no criminal charges or institutional charges were laid against any of the inmates. The conduct alleged would provide the basis for criminal charges or institutional charges. Had institutional charges been laid, a hearing would have been required and, if convicted of institutional charges, the maximum sentence which the institution could have imposed was 30 days’ segregation.

The inmates had already served more than 30 days’ segregation by the time the habeas corpus hearing concluded; in other words, they had already suffered more than the most serious punishment that could have been imposed for the most serious disciplinary breach while at the same time not receiving the procedural safeguards that would accompany the laying of an institutional charge; - the wording of s. 27(3) of the CCRA may not allow the institution to withhold information from an inmate during a discipline hearing.

Where, as here, the effect of the decision to segregate inmates has an even worse effect that would a disciplinary hearing, it seems all the more important that recourse to that subsection not be available.

If, however, the institution is entitled to withhold information from the inmates in circumstances such as these, given the peculiar circumstances of this case, the institution has not dealt fairly with information from confidential informants; - the statutory 5 th Working Day Review of the inmates’ segregation refused to consider the reasons either for the initial segregation or for the continuation of segregation; the Review focussed only on current conditions of the segregation placement, i.e. was there access once every two days to a shower, and which different institution might the inmate be sent to.

On a purposive

interpretation of the statutory purpose of the Review, by failing to deal with the essential issue of establishing the basis for detention the institution has made it impossible for a court to conduct a robust review of the further denial of liberty; - the institution has not provided the inmates with conclusions, not reasons, for their detention under s.31(3)(a); - given the potential serious negative effects on an inmate of prolonged solitary confinement, and the personal mental health history of each applicant, before a placement in solitary confinement was approved, a mental status assessment interview should have

been completed and a comprehensive assessment of each applicant’s current state of mental health should have been provided to theReview Board; - given the potential rehabilitation benefits and other benefits of access to aboriginal spiritual and cultural programs, eachaboriginal inmate should have had a Gladue type assessment of what placements would be appropriate. [10] In all of the circumstances, including the international community’s standards relating to solitary confinement as reflected inthe current version of the Mandela Rules, the government has not satisfied its burden of proving that its decision to place each of theinmates in solitary confinement was reasonable. In particular:

a) as to the original placement in segregation - inmates Keepness and Tobin had no known incompatibles at Edmonton Institution. There does not appear to be any reason whythey could not have been moved to a different range, cell or unit, while the institution’s investigation of the original allegations wastaking place; - no behaviour of inmate Hamm’s was identified as the reason for his placement in segregation while the investigation of theoriginal allegation was taking place; and

b) as to the decision to keep the inmates in segregation - even assuming that the result of the institution’s investigation of the alleged conspiracy to harm three correctional officers was toconfirm that conspiracy, which is not what occurred, there is no explanation for the failure to separate the alleged co-conspirators fromone another and from the three officers, or the failure to separate the officers from the alleged co-conspirators as a reasonable solution tothe perceived threat. [11] For the foregoing reasons, the applications of the applicants Hamm, Keepness and Tobin are granted: they shall immediatelybe released back into the general population. [12] The application of Cullen Johnson is denied for mootness.

Cases and authority cited [13] By the institution: Khela v Mission Institute, 2014 SCC 24; Corrections and Conditional Release Act, SC 1992, c.20;Named Person v Vancouver Sun, 2007 SCC 43; R v Liepert, (SCC), [1997] 1 SCR 281; Bisaillon v Keable, (SCC), [1983] 2 SCR 60; Corrections and Conditional Release Regulations, SOR/902-620; Alberta Rules of Court, AR124/2010; Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342; Tuckanow v Bowden Penitentiary2014 ABQB 563; Wood v Atlantic Institution (Warden) 2014 NBQB 135; Oglamien v Ontario 2016 ONSC 3080. [14] By the court: Baker v Canada (Minister of Citizenship and Immigration) (SCC), [1999] 2 S.C.R. 817;Canada (Citizenship and Immigration) v Khosa 2009 SCC 12; Flynn v Canada (Attorney General) 2007 FCA 356; R. v Dhillon 2016ONCA 308; Mandela Rules, 2015 Revision; R. v.

Kahnapace 2008 SKCA 15; Bacon v Surrey Pretrial Services Centre 2010 BCSC805; Lopez v. Canada (National Parole Board) 2001 BCCA 742; R. v Osborne 2016 ONSC 3874; MacKenzie v LeBlanc 2007 BCSC768; 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town) 2001 SCC 40. Appendix A: 24 hour information/explanation/gist given to Keepness Appendix B: Mandela Rules, 2015 revision -Preamble and extracts relating to solitary confinement 1. Background

a) Factual and procedural [15] It is agreed by all parties that what the institution describes as “segregation” is often referred to in the public media, inacademia, and in United Nations documents as “solitary confinement”. There are two types of segregation – administrative anddisciplinary. Within the administrative segregation category there are also two types: voluntary and involuntary; the latter words are self-explanatory. [16] Special provisions relate to segregation arising out of discipline: a hearing must be held prior to the placement and, if theinmate is found guilty of the institutional charge, the maximum length of solitary confinement which can be ordered is 30 days.

i) Events relating to the placement in solitary confinement [17] The applicants are all inmates serving penitential sentences at Edmonton Institution, “the Max”. Each was placed in solitaryconfinement at approximately 9:00 on June 28, 2016 on the order of the Deputy Assistant Warden. The justification to the placement forthe applicant Keepness was set out in a document which was provided to him on June 29.

That document is a model that was repeated foreach applicant, with individual variations as set out below: At 15:00 hours (presumably on June 27 because that hour is later than the time admitted into segregation) the Correctional Manager ofUnit-6 received information from various creditable believed reliable sources that inmate Keepenss, Badger, Tobin, Hamm and Johnson,on C-Unit from Unit-6 were going to seriously harm or assault Correctional Officers.

During the course of the investigation it was determined that the noted inmates were talking about assaulting an officer. It is believed they were going to assault officers as a group when they had their behind barriers reinstated on 2016-06-30. Inmate Keepness (Hamm, Tobin, Johnson) amongst the group wanted to make a point on the unit and he was going to do that by seriously harming an Officer. There was no indication that the subject had weapons or what their method of assault would be towards Officers.

However, the investigation revealed that Keepness alongside the other inmates picked three particular Officers to assault. The plan was developed within the last seven days. The inmates noted they would stab the guards, teach them a lesson not to “fuck” with us. The Warden was briefed of the situation and segregation placement was approved. The investigation remains ongoing. . . . All reasonable alternatives have been considered prior to making the decision to place Inmate Keepness in administrative segregation.

The following list, while not exhaustive, is alternatives that were taken into consideration prior to this decision. Cell confinement is not a viable due to the nature of the severity of the assault, possible serious harm or death of an Officer. Mediation: Mediation at this time is not a viable option due to the pre planned assault towards an Officer. Change of cell/range/unit: Cell, unit or range changes are not viable options. The intent to harm officers is deemed serious and it is deemed that risk would not be managed if cells were changed. . . .

RECOMMENDATION Segregation recommended as the presence of Keepness in the open population could interfere with the ongoing investigation into this incident or result in a risk to the safety of staff or others. . . . Consideration of Aboriginal Social History was taken into account for [Keepness’s] placement into Segregation. Inmate Keepness mental health needs were taken into consideration prior to his placement in segregation. An OMS/RADAR review of the Offenders immediate needs Alerts, Flags and Needs was completed. There has not been an identified need for mental health intervention.

All factors relevant to the case were considered in rendering a decision. [ 18 ] With respect to Mr. Hamm, the general outline of the segregation placement was set out in exactly the same words as for Mr. Keepness, but the time admitted into segregation was 09:00. The following additional comments were also made: Inmate Hamm was notified of his segregation placement. Shortly after the decision, inmate Hamm was overheard giving detailed instructions to the remaining inmates on how to effectively barricade cell doors as he also stated “they will never get in this cell”.

Inmate Hamm continued to talk to inmate Keepness stating “we should make up a claim stating guards are making racial comments towards us”. Inmate Keepness agreed and said “make up a 3 rd level grievance with the same info on it so it goes directly to Ottawa”. At 1703 hours Inmate Hamm stated to the inmates on the range “it’s all fun and games until someone gets murdered”. . . . Inmate Hamm is not an Aboriginal offender and has no aboriginal social history factors to impact this decision. [ 19 ] With respect to Mr.

Tobin, the general outline of the segregation placement was set out in exactly the same words as for Mr. Keepness, but the time admitted into segregation was 09:00. [ 20 ] In each case, prior to June 27, the inmate had served an application in habeas corpus for having been placed in Unit 6 from Unit L.

Clearly, each original habeas corpus application became moot as a result of the June 28 placement in solitary. [ 21 ] In the interval between the June 28 th placement in solitary and the July 26, 2016 date set for the substantive habeas corpus application (there was an intervening application by the DOJ to strike out the original habeas corpus applications for mootness) Mr. Hamm attempted to file an application, returnable on July 22, 2016, requiring the production of the inmate who had signed two statements recanting information he had given to the institution; Mr.

Hamm was unable to file that application., which failure Mr. Hamm attributes to institutional lack of cooperation. It should be noted that, at a procedural hearing in this court on July 7, 2016, the presiding judge signed an order the effect of which was, in part, to allow the applicants to file their substantive materials relating to the current habeas corpus application through the DOJ. In the result, that initiative was unsuccessful, despite Mr. Hamm’s and the DOJ’s attempts at compliance.

The material in question was only provided to this court on the first day of this hearing which was July 26, 2016. ii) The Five Working Day Review [ 22 ] The placement of each of the applicants in solitary confinement was confirmed at a hearing on July 7, 2016. [ 23 ] The July 7 th Review relating to Keepness took a total of approximately 12 minutes. The Deputy Warden who conducted the review had, prior to the Review, been advised that - as it was the Fifth Working Day Review - i.e. as a short period of time had elapsed, “the Reintegration Action Plan has not yet been completed.

If Keepness remains in Segregation, a RAP will be completed and included in the synopsis for segregation for his Institutional (30 day) Review”. The consultation with security intelligence officers stated that Keepness "played an active role in the noted incident and that due to the nature of the incident Keepness would be best suited to remain

in Segregation until further investigation had occurred. Keepness does not have any listed incompatibles at Edmonton Institution". The report went on to state that Mr. Keepness "has adjusted satisfactorily to prior segregation admissions over the short-term, but he claimed to experience distressing mental health symptomology after serving almost a year in segregation in 2012. . . . Should he remain in segregation, he will be seen daily by a health professional and approached to participate in a 25 day mental health assessment for segregation review. Should staff become aware of mental health concerns, they should refer Mr. Keepness to Mental Health Services". In the

section of the report dealing with mental health, the report stated that Mr. Keepness had made a request to speak with a mental health professional for counselling and had been informed that if he needed to speak to psychology, "to make a request and they will come and see him". [ 24 ] At the commencement of the hearing, Keepness was told that the reason for his segregation had been converted from 31(3)(b) – investigation – to 31(3)(a) – “security of the penitentiary or the safety of any person”; in other words, the Deputy Warden confirmed that the investigation was finished and the words of subparagraph (

a) were invoked. No other information was ever provided to Keepness about the reason for his continued detention in segregation. [ 25 ] Early in the Review, during a run through of a check list of matters which had been dealt with prior to the Review, Mr. Keepness stated that he was never asked to be involved with the investigation process: this was disputed by the institution.

No proof was offered by the institution of Keepness' refusal to be interviewed; since the institution indicated that a guard had been the source of the invitation to be interviewed, one expects that there would be audio-video evidence available to the institution to confirm its position. [ 26 ] At approximately three minutes and 30 seconds into the review, after the discussion about Keepness’ involvement in the pre- Review process, the Deputy Warden told Mr. Keepness words to this effect: “that is neither here nor there.

We are going to maintain you in segregation – that is we will make a recommendation to maintain you in segregation. . .” [ 27 ] Despite this apparent conclusion by the Deputy Warden, Keepness returned to the issue of the basis for segregation.

He told the Deputy Warden that an affidavit (Keepness was wrong in referring to the handwritten and signed statements, both dated June 27, 2016 as affidavits because they had not been sworn or affirmed before a Commissioner for Oaths) had been submitted from an inmate who acknowledged to the applicants that he had told their correctional manager of the existence of a plot to harm guards because he wanted out of the placement on Unit 6 and back to a 96 bed unit and he wanted to bring a television with him.

The Deputy Warden did not deal with that submission or the written recantation from the inmate in question, repeating that he was satisfied with, and the decision would be made, on the information which had been provided to him. (approximately 7:12 into the hearing). [ 28 ] The Review then went on to deal with Mr. Keepness’ next placement, i.e. the plan for moving Mr. Keepness out of segregation. [ 29 ] At approximately 9 minutes into the hearing, the discussion returned to the issue of what Mr. Keepness insisted was a groundless decision to place him in segregation.

The Deputy Warden told him words to the effect, “there is only so much information we are required to give you on these types of investigation”. The Deputy Warden then informed Mr. Keepness of his right to make a rebuttal to any subsequent placement chosen by the institution. [ 30 ] Shortly before the termination of the hearing, Keepness told the Deputy Warden that the segregation placement terminated the only program he had participated in during his 8 years of imprisonment, 4 of which he has spent in the “hole”. [ 31 ] Insofar as the July 7 th hearing for Mr.

Hamm is concerned, the Board was not explicitly provided with the psychiatric assessment of Mr. Hamm set out in the

Summary, above. However, one must assume that the psychiatric report in question was available to the institution. No information was provided to the Review Board about why that report was no longer valid. The information set out in the

Summary, above, was available to the Review Board. [ 32 ] The hearing in relation to Mr. Hamm took a total of approximately 20 minutes. Prior to the hearing, an updated synopsis of the case had been provided to the Deputy Warden which included the following information about Hamm’s prior segregation history: Hamm has prior segregation periods at Saskatchewan Penitentiary and the Regional Psychiatric Center during this sentence.

Some of his prior placements have been for alleged custodial aggression and others for his own safety. [ 33 ] No proof of “the incident” which led to the segregation decision was given; indeed, the Deputy Warden kept telling Mr. Hamm that the hearing was not focussed on “the incident”, but rather was focussed on the institution’s obligation to get Mr. Hamm out of solitary as soon as possible. Mr. Hamm repeatedly told the Board that the incident was baseless and the applicants had statements from another inmate to that effect. Mr.

Hamm told the Board that, given his upcoming mandatory release date, it was nonsensical that he would put that benefit at risk by participating in “the incident”. [ 34 ] The consultation with Security Intelligence Officers as of June 29 th elicited the following information concerning Mr. Hamm: “due to Hamm’s current behaviour he is not suitable for return to a unit at this time. An investigation regarding the circumstances of Hamm’s segregation placement is ongoing.” [ 35 ] Subsequent to his placement in solitary confinement and filing the current habeas corpus application, and the July 7th hearing, Mr.

Hamm was placed in an observation cell within administrative segregation, that is, he was placed in a suicide watch cell where there was constant close surveillance. As I understand the material, he was in that cell for 5 days ending July 25th, the day immediately prior to the July 26th hearing. [ 36 ] Insofar as the inmate Tobin is concerned, in addition to the information set out in the

Summary, above, the Fifth Working Day Review for Mr. Tobin was provided with this consultation from Security Intelligence Officers: Intelligence information indicates that inmate Tobin and other inmates were conspiring to assault several officers during their behind barriers exercise. Tobin and the other inmates allege that they are being disrespected on the unit and in order to get respect they are

willing to physically assault officers. The investigation into the incident is ongoing. The SIO department is in support of maintaining the segregation status pending further investigation. File information identifies no incompatibles. Tobin is identified as an inactive member of the --------- gang. [ 37 ] Mr. Tobin did not request that he be provided with an electronic transcript of his Fifth Day Segregation Review.

However, given the clear and definitive approach of the Deputy Warden during the Keepness and Hamm reviews, it seems probable that the same approach would have been used in relation to Tobin, i.e. the Review was to discuss onward placement. [ 38 ] In each case, no comprehensive assessment regarding the inmate's state of mental health was made available to the Review board. iii) The habeas corpus hearing [ 39 ] On July 26, 2016, the first day of the habeas corpus hearing held in this court, the institution informed the court that it had re- assigned applicant Johnson to general population at Edmonton Max but that Mr.

Johnson was not voluntarily leaving the segregation unit. Mr. Johnson, a 21 year old aboriginal offender is, like Tobin, a first time federal offender serving a 3 year 9 month sentence for discharge of a firearm and related offences. Like the others, Mr. Johnson had prior solitary confinement placements, but no information is provided on the length of those placements. The Security Intelligence report on Johnson stated, like Hamm, that “due to Johnson’s current behaviour he is not suitable for any other unit at Edmonton Institution”.

Johnson had a history of suicidal behaviour but had not engaged in suicidal behaviour since arriving in federal custody; he was receiving pharmacological interventions. He suffers from Asperger’s syndrome which, the institution recognizes, limits his social skills. Mr. Johnson told the court that he did not want to return to general pop; he wished to stay with the other applicants and have their concerns addressed. I told Mr.

Johnson that his application was moot; regrettably, I did not tell him why, in my opinion, his situation did not meet the Borowski/Khela test for exercising judicial discretion to deal with moot situations and why I could not interfere with the institution’s decision on his placement except in the context of a habeas corpus application.

The applicants expressed the opinion that Johnson had been extracted from his solitary confinement cell. [ 40 ] At the substantive hearing, in relation to each case, the government filed a sealed affidavit; this court has opened and read that affidavit and advises the inmate/applicants that the substantive contents, i.e. the gist, of the sealed material has already been made known to them. [ 41 ] However, the court makes some additional comments concerning this material.

The material includes information obtained on July 6, July 8 and July 12; obviously, only the information obtained on July 6 could have been considered at the July 7 hearing.

In relation to the habeas corpus hearing, the court can say that the information in its totality does not advance the information made known to the applicants on June 29. [ 42 ] The institution has not met accepted police standards in relation to the way it has satisfied itself that the information from confidential informants was credible and reliable: it has not indicated whether the cis have provided information in the past which has proved reliable or whether the cis have ever received any type of payment for information provided. [ 43 ] Although the government acknowledges that the decision to place the inmates in solitary confinement further reduced their liberty and that, as a result, the government bears the burden of establishing procedural fairness and reasonableness, at the hearing there were some minor disputes about the level of increased loss of freedom.

For example, Keepness asserted that he was not allowed ceremonial sage while in solitary confinement whereas the institution asserted the opposite. Similarly, Keepness said that elders were not allowed to perform ceremonies for inmates in solitary whereas the institution maintained the opposite. [ 44 ] Hamm asserted that he was deprived of the use of a telephone; the institution stated that he had used the telephone a lot during the months of June and July.

In support of his contention, Hamm filed a formal written request he made on July 3, 2016 “to have the staff turn the phone back on the SHU (or Special Handling Unit – which the institution describes as an observation cell) . . . I have not used it for six days”.

The institution did not provide a log of Hamm's telephone calls, which would presumably have decided the issue. [ 45 ] The institution did not contest, for example, that as a result of the placement in solitary, Hamm and Keepness were deprived of continued access to their schooling programs; Hamm was taking a university level correspondence course and he had arranged invigilation for a final exam in his course on June 28 or 29. [ 46 ] Because the respondent was not contesting its onus on the habeas corpus hearing, I have not found it necessary to attempt to resolve these minor factual disputes between the applicants and the institution. [ 47 ] During the habeas corpus hearing, Mr.

Hamm presented a written outline of his prior segregation history: Solitary Confinement Edmonton Young Offender Centre: 1991-1996 age 12 years old to 17 yrs. old. What I’ll call extreme Solitary: 2 months 2 total. What I’ll call Normal Solitary: 6 months total. “Extreme Solitary”. In a “dignity Smock” one piece dress like gown, tear proof. Mattress and security blanket + _______ (indiscernible) at 7:00 AM returned at 10:00pm. No pillow or sheets ever. No yard or exercise. Never leave the cell. “Normal Solitary” (Wabasca unit) unit has “level” system. Levels 1 – 4. Level one in a dignity smock.

Nothing allowed in cell. I was level one most of my time on that unit.

Edmonton Remand Centre: 1998-2005. “Extreme Solitary”: 2 months Normal: 4 months Calgary Remand Centre: 2002-2004 Normal: 3 months Bowden Institution (Federal penitentiary): 1998 - 2006 9 months Edmonton Institution: 2001 – 2016 (July 26th in Solitary) 5 months Saskatchewan Penitentiary: 2011-2015 9 months Regional psychiatric centre (“CSC”) (Saskatoon) 2013-2014 3 months [ 48 ] This outline, created by Mr. Hamm, does not indicate how many consecutive days he served in solitary confinement on each of his previous segregation placements. Where Mr.

Hamm refers to a “smock”, I understand that to be what is sometimes called “baby dolls” in case law and is generally used by institutions where there is a concern that the inmate would harm themselves. Because this statement was presented in reply, the institution was unable to address Mr. Hamm’s history of segregation while imprisoned. [ 49 ] During the habeas corpus hearing, Mr.

Tobin presented evidence that, in November 2015, he was on Unit D, which he stated was a mental health unit; this was in support of his position that his presence on Unit L was for mental health reasons and that his transfer on June 2 from a mental unit to Unit 6 was a further deprivation of his liberty. If I have understood him properly, Mr. Tobin asserted that, since he was 13 years old, he has only been out of custody for 6 months.

He also asserted that, while he has been in custody, he was sent to Alberta Hospital, an Alberta mental institution, for assessment; the respondent did not have a realistic opportunity to comment on these two submissions. In support of his position opposing the institution’s position that “he rarely interacts with the Institutional Mental Health Team” Mr.

Tobin presented evidence of a formal written request on June 26 that he has been trying for some time to see a psychiatrist but that such an opportunity has not yet been made available to him. (Incidentally, his written request was made 2 days before he was placed in segregation, but his document states that he is in “seg”; this is consistent with the position taken by the applicants that their placement on June 2 was, effectively, a placement in segregation even though it was not formally a segregation placement.) [ 50 ] During the habeas corpus hearing , the inmates each presented the 30 day Review of their solitary confinement; unfortunately only portions of the documents were entered into evidence as a result of once sided copying of two-sided documents.

In relation to the applicant Keepness, the review includes the following comments: Due to the nature of the incident, the CMT believes that Segregation is currently the most suitable placement for Keepness until further investigation has occurred. Keepness had, of course been told, at the July 7 Fifth Working Day Review that the investigation was complete. The review also stated: “At this time [Keepness] has not been accepted at Saskatchewan Penitentiary and Stony Mountain Institution.

Consultation has been forwarded to RHQ for transfer to Kent. [ 51 ] In relation to the applicant Hamm, the review includes the following comments: The plan to alleviate segregation status is to transfer HAMM to another maximum security institution. SMI MSU agreed to take HAMM. As HAMM is not willing to transfer on voluntary basis, this will be an involuntary transfer. It is hoped that HAMM will be on the next flight or Regional Bus to SMI MSU.

I order inmate HAMM be maintained in Segregation as the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person, and allowing the inmate to associate with other inmates may jeopardize the security of the penitentiary or the safety of any person. (This is the same conclusion that the 30 day Review has reached for each of the applicants.) Mental and Physical health needs were considered in making this decision.

Based upon the information reviewed, there appear to be mental or physical health needs/concerns in this case at this time.

Psychology has been working with HAMM and will follow up with him upon return to the institution from court. [ 52 ] In relation to applicant Tobin, the 30 day review which apparently was signed on July 27, 2016, in other words long after the institution told the inmates on July 7 that the investigation was complete, still contains the following comment: The CMT will be able to make a decision on Tobin’s segregation status once the investigation into the planned assault against officers has been completed.

b) Legislative [ 53 ] Pertinent provisions of the Corrections and Conditional Release Act include: Information to be given to offenders 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.

(2) Where an offender is entitled by this Part or the regulations to be given reasons for a decision taken by the Service about the offender, the person or body that takes the decision shall, subject to subsection (3), give the offender, forthwith after the decision is taken, all the information that was considered in the taking of the decision or a

summary of that information.

Exceptions

(3) Except in relation to decisions on disciplinary offences , where the Commissioner has reasonable grounds to believe that disclosure of information under subsection (1) or (2) would jeopardize (

a) the safety of any person, (

b) the security of a penitentiary, or (

c) the conduct of any lawful investigation, the Commissioner may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified in paragraph (a), (

b) or (c). . . . Administrative Segregation Purpose 31

(1) The purpose of administrative segregation is to maintain the security of the penitentiary or the safety of any person by not allowing an inmate to associate with other inmates. Duration

(2) The inmate is to be released from administrative segregation at the earliest appropriate time. Grounds for confining inmate in administrative segregation

(3) The institutional head may order that an inmate be confined in administrative segregation if the institutional head is satisfied that there is no reasonable alternative to administrative segregation and he or she believes on reasonable grounds that ◦(

a) the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person and allowing the inmate to associate with other inmates would jeopardize the security of the penitentiary or the safety of any person; ◦(

b) allowing the inmate to associate with other inmates would interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of a serious disciplinary offence; or ◦(

c) allowing the inmate to associate with other inmates would jeopardize the inmate’s safety. • 1992, c. 20, s. 31 ; • 2012, c. 1, s. 60 . . . . Disciplinary sanctions 44

(1) An inmate who is found guilty of a disciplinary offence is liable, in accordance with the regulations made under paragraphs 96(

i) and (j), to one or more of the following: (

a) a warning or reprimand; (

b) a loss of privileges; (

c) an order to make restitution, including in respect of any property that is damaged or destroyed as a result of the offence; (

d) a fine; (

e) performance of extra duties; and (

f) in the case of a serious disciplinary offence, segregation from other inmates — with or without restrictions on visits with family, friends and other persons from outside the penitentiary — for a maximum of 30 days . [Emphasis added throughout; short chronology re s. 31 to illustrate that provisions have remained the same during entire incarceration period of the longest serving inmate] [ 54 ] Pertinent provisions of the Corrections and Conditional Release Regulations include: Administrative Segregation 19 Where an inmate is involuntarily confined in administrative segregation, the institutional head or a staff member designated in accordance with paragraph 6(1)(

c) shall give the inmate notice in writing of the reasons for the segregation within one working day after the inmate’s confinement.

20 Where an inmate is involuntarily confined in administrative segregation by a staff member designated in accordance with paragraph 6(1)(c), the institutional head shall review the order within one working day after the confinement and shall confirm the confinement or order that the inmate be returned to the general inmate population . 21

(1) Where an inmate is involuntarily confined in administrative segregation, the institutional head shall ensure that the person or persons referred to in

section 33 of the Act who have been designated by the institutional head, which person or persons shall be known as a Segregation Review Board, are informed of the involuntary confinement.

(2) A Segregation Review Board referred to in subsection (1) shall conduct a hearing (

a) within five working days after the inmate’s confinement in administrative segregation; and (

b) at least once every 30 days thereafter that the inmate remains in administrative segregation.

(3) The institutional head shall ensure that an inmate who is the subject of a Segregation Review Board hearing pursuant to subsection (2) (

a) is given, at least three working days before the hearing, notice in writing of the hearing and the information that the Board will be considering at the hearing; (

b) is given an opportunity to be present and to make representations at the hearing; and (

c) is advised in writing of the Board’s recommendation to the institutional head and the reasons for the recommendation. 22 Where an inmate is confined in administrative segregation, the head of the region or a staff member in the regional headquarters who is designated by the head of the region shall review the inmate’s case at least once every 60 days that the inmate remains in administrative segregation to determine whether, based on the considerations set out in

section 31 of the Act, the administrative segregation of the inmate continues to be justified. 23 Where an inmate is voluntarily confined in administrative segregation by a staff member designated in accordance with paragraph 6(1)(c), the institutional head shall review the order within one working day after the confinement and shall confirm the confinement or order that the inmate be returned to the general inmate population.. [Emphasis added throughout] [ 55 ] Pertinent sections of Correctional Service Canada’s Commissioner’s Directive 701 include: Information Sharing with Offenders 16.

Information that can be shared directly should be given to the offender as soon as practicable. 17.

The following types of information can be disclosed to the offender: a. information provided by the offender b. publicly available information c. information about the offender in a locked report in the Offender Management System (OMS) d. opinions that CSC and other federal employees, PBC members, members of the criminal justice system, agency employees and contracted agency employees have expressed about the offender's needs, attitudes, behaviours, etc., provided that there are no reasonable grounds to believe that the safety of any person will be jeopardized. 18.

The offender is permitted to keep copies of the reports used in the decision-making process or alternatively, the Institutional Head/District Director will provide the offender access to them so that he/she may have reasonable opportunity to review them privately and/or with his/her assistant at least 28 days before the scheduled date of the PBC hearing. 19. The Parole Officer will advise the offender that the PBC will review the report(

s) before making a decision. The offender may contact his/her Parole Officer if he/she believes that there is inaccurate or incomplete information contained in the report. 20. In the package of documents submitted to the PBC, CSC will clearly mark any sensitive reports as Protected A, B, or C, in accordance with the Information Security Requirements chart, CSC will also indicate that the gist has been shared with the offender. When it is determined that not even the gist can be provided, the reasons will be stated. 21.

Prior to any decision to disclose contents of reports for which confidentiality has been requested, the PBC is responsible for consulting the appropriate CSC authorities. In the event that no agreement can be reached, advice will be sought from Regional and National Headquarters. Although the final decision rests with the PBC, CSC's views must be fully considered, given the context in which the sources have provided the information and the repercussions of not maintaining its confidentiality. 22.

The PBC is responsible for advising both the offender and CSC of information that it has received independently, through channels other than the documentation submitted by CSC. Limitations to Information Sharing 23. Pursuant 10 subsection 27(3) of the CCRA, information may be withheld from an offender if disclosure would jeopardize:

a. the safety of any person b. the security of a penitentiary, or c. the conduct of any lawful investigation. Jeopardizes the Safety of Individuals 24. The withholding of this information must be supported by information that leads to the conclusion that disclosure could reasonably be expected to result in a direct threat to the safety of an individual (e.g. an employee, a registered victim, a PBC member, another offender, private citizen).

Examples include: a. sensitive information furnished by another offender, the disclosure of which would easily identify the source, or b. information given by an offender's partner or a registered victim who specifically requests confidentiality as he/she is afraid that the offender will harm him/her if it is disclosed that he/she is the source. Jeopardizes the Security of a Penitentiary 25. The potential for injury should be clearly demonstrated with a reasonable degree of probability of occurrence. It should not be seen as vague general harm which might occur.

Examples include: a. information as to the location of the institutional arms storage facilities, and information about the Perimeter Intrusion Detection System and the main computer and communications b. information describing any security system, or c. information on investigative techniques used for security intelligence purposes. Jeopardizes the Conduct of Any Lawful Investigation 26. This allows for the protection of information relating to investigative techniques or information collection methods that could have a detrimental effect on future investigative processes.

Examples include: a. information as to how the investigation was conducted (e.g. use of wire taps, informants, etc.), or b. information which would reveal the existence of a current investigation. For example, general statements such as "is suspected of drug trafficking" should normally be disclosed unless the source can demonstrate that there is an ongoing investigation and that letting the individual know of its existence could be injurious to the further progress of that investigation. When Disclosure Does Not Occur 27.

When relevant inform is of such a highly sensitive nature that not even a gist can be provided to the offender, the following statement will be included in the decision-making report: "The information contained in certain reports cannot be shared with you at this time since it is considered that disclosing this information to you would be injurious to a public interest which outweighs your right to receive the information." 28.

If a situation arises where the fact that information exists may need to be withheld to protect the safety of persons, the security of a penitentiary or the conduct of any lawful investigation, staff must consult with both their supervisor and Legal Services, National Headquarters. [ 56 ] The Mandela Rules, 2015 Revision have not been adopted by either the Canadian government or by the federal correctional service as a guideline for solitary confinement. 2.

The applicants’ original habeas corpus applications are moot and do not meet the Borowski/ Khela standards for adjudication of moot issues . [ 57 ] As the Supreme Court of Canada has established, in decisions such as Borowski and Khela , courts have discretion to hear moot cases, that is ones where there is no live controversy. The following generalized guidelines emerge from those cases: - are there collateral consequences to the decision which will provide the necessary adversarial context; - is the expenditure of scarce judicial resources warranted?

For example, by deciding an issue that will have a practical effect on the parties event though it is no longer necessary to decide the original dispute, or an issue which is of a recurring nature but of short duration, or an issue of public importance in relation to which a resolution is in the public interest; - is the dispute justiciable or political?

As the court put it in Borowski : “Pronouncing judgment in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch.” [ 58 ] In Khela , the court specifically addressed mootness in relation to decisions of prison authorities: Despite being moot, this appeal merits a decision in the circumstances of this case.

The nature of habeas corpus applications involving the transfer and segregation of inmates is such that the factual circumstances of a given application can change quickly, before an appellate court can review the application judge's decision. This means that such cases will often be moot before making it to the

appellate level, and are therefore "capable of repetition, yet evasive of review" (Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, at p. 364). As was true in May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 14,and Cardinal v. Director of Kent Institution, (SCC), [1985] 2 S.C.R. 643, at p. 652, the points in issue here aresufficiently important, and they come before appellate courts as "live" issues so rarely, that the law needs to be clarified in the instantcase. [59] As can be seen from the Background

section above, the transfer of the inmates from L unit to Unit 6 has been made moot bytheir subsequent placement in segregation. [60] For the following reasons, I have concluded that I should not exercise my discretion to rule on the applicants’ original habeascorpus applications: - nothing in the material suggests that there are collateral consequences to the June 2nd decision; - scarce judicial resources should not be expended on the original applications.

Since the Kehla decision, there has been anoticeable increase in the number of habeas corpus application brought before the courts; to the extent that there had not been muchjurisprudence in this area prior to the release of that decision, that lacuna has now been filled.

Nothing in the material before me suggeststhat a decision on those applications will have any practical effect on the parties; - in the absence of a live controversy, a decision by the court with respect to the placement of inmates smacks of interference in amatter in which the judiciary has no expertise and no legitimate function. [61] For substantially the same reasons, Mr. Johnson’s current habeas corpus is declared moot and the court declines to exercise itsdiscretion to hear his application for failure to meet the Borowski/Khela test. 3.

Has the institution proved that it has provided procedural fairness to the inmates?

a) Test for procedural fairness [62] The Supreme Court of Canada outlined the test for procedural fairness in Baker (extracts taken from the headnote): The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and therights affected.

The purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fairand open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity forthose affected to put forward their views and evidence fully and have them considered by the decision-maker.

Several factors are relevantto determining the content of the duty of fairness: (1) the nature of the decision being made and process followed in making it; (2) thenature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to theindividual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of proceduremade by the agency itself. This list is not exhaustive. . . .

It is now appropriate to recognize that, in certain circumstances, including when the decision has important significance for theindividual, or when there is a statutory right of appeal, the duty of procedural fairness will require a written explanation for a decision.Reasons are [page820] required here given the profound importance of this decision to those affected. This requirement was fulfilled bythe provision of the junior immigration officer's notes, which are to be taken to be the reasons for decision.

Accepting suchdocumentation as sufficient reasons upholds the principle that individuals are entitled to fair procedures and open decision-making, butrecognizes that, in the administrative context, this transparency may take place in various ways.

Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias, by an impartial decision-maker. [63] In Khosa, the Supreme Court reminded us that deference was owed where the legislator entrusted decision making to atribunal other than the courts. [64] The way in which the principles of procedural fairness apply in the correctional setting were explored in Flynn: 15 In the field of custodial law the decisions taken by administrative authorities are varied. They are not all of the same importance.They also give rise to consequences of varying duration and seriousness.

Sometimes they affect a privilege, sometimes a right,sometimes living conditions, sometimes the inmate's residual freedom, to mention only a few of the interests affected by such decisions.More often than not they are prompted by the security requirements of the institution or of a group of individuals. It will be understoodthat the duty to disclose information to an inmate may as a result be subject to limits and exceptions. Indeed, this is expressly recognizedby subsection 27(3) of the Act, which authorizes the non-disclosure of certain information. 16 In Gallant v.

Canada (Deputy Commissioner, Correctional Service Canada), (FCA), [1989] 3 F.C. 329, andCartier v. Canada (Attorney General), [1998] F.C.J. No. 1211, cited by the Federal Court in the case at bar, this Court stated as followsthe need to have some difference of treatment for administrative decisions so as to set the limits of the duty of procedural fairness. At pp.342 and 342 of Gallant, adopted in the reasons of Nadon J. in Cartier, in those of Pelletier J.A. in Blass v. Canada (Attorney General),2002 FCA 220, and by the undersigned in The Attorney General of Canada v.

Boucher, 2005 FCA 77, at paragraph 29, Marceau J.A.wrote: It seems to me that, to appreciate the practical requirements of the audi alteram partem principle, it is wrong to put on the same level alladministrative decisions involving inmates in penitentiaries, be they decisions of the National Parole Board respecting the revocation ofparole, or decisions of disciplinary boards dealing with disciplinary offences for which various types of punishments, up to administrativesegregation, can be imposed, or decisions, such as the one here involved, of prison authorities approving the transfer of inmates from one

institution to another for administrative and good order reasons. Not only do these various decisions differ as to the individual's rights, privileges or interests they may affect, which may lead to different standards of procedural safeguards; they also differ, and even more significantly, as to their purposes and justifications, something which cannot but influence the content of the information that the individual needs to be provided with, in order to render his participation, in the making of the decision, wholly meaningful.

In the case of a decision aimed at imposing a sanction or a punishment for the commission of an offence, fairness dictates that the person charged be given all the available particulars of the offence. Not so in the case of a decision to transfer made for the sake of the orderly and proper administration of the institution and based on a belief that the inmate should, because of concerns raised as to his behaviour, not remain where he is. In such a case, there would be no basis for requiring that the inmate be given as many particulars of all the wrong doings of which he may be suspected.

Indeed, in the former case, what has to be verified is the very commission of the offence and the person involved should be given the fullest opportunity to convince of his innocence; in the latter case, it is merely the reasonableness and the seriousness of the belief on which the decision would be based and the participation of the person involved has to be rendered meaningful for that but nothing more.

In the situation we are dealing with here, guilt was not what had to be confirmed, it was whether the information received from six different sources was sufficient to raise a valid concern and warrant the transfer. [ 65 ] Although the Baker , Khosa and Flynn decisions were issued in the context of judicial review, they are, of course, applicable to habeas corpus , which might be thought of as a sub-set of judicial review with respect to which the differences are immaterial in the context of these applications: see para. 37 Khela . [ 66 ] Given the severe consequences of the placement in solitary confinement, for the reasons which follow, the institution has not met its burden of proving that it provided the applicant inmates with procedural fairness.

b) A high level of procedural fairness is required in the process leading to the decision to place an inmate in solitary confinement [ 67 ] For the following reasons, I conclude that a high level of procedural fairness is required for a decision to place an inmate in involuntary segregation for alleged wrongdoing: - for the inmate who is placed in solitary confinement, the negative impact is great. The court can take judicial notice of much public commentary about the potentially deleterious effects on human beings as a result of being kept in solitary confinement.

One of those independent, public, sources of notice is the United Nations 2015 revision to the Mandela Rules, about which more will be said in the following section. Moreover, as the material on these applications discloses, within the custodial system not only are the effects of placement in involuntary segregation important while they are being served, but they are also important in the eventual completion of the existing sentence and the service of subsequent sentences.

As I understand it, the respondent acknowledges that a custodial institution’s decision to place inmates in involuntary segregation will affect those inmates throughout their lives; - a decision to place an inmate in solitary confinement is the equivalent, as other courts have put it, of sentencing an inmate to a “prison within a prison”.

Therefore, the process to be followed in making such decisions should mirror the process in the justice system whereby a court sentences a convict to a prison sentence; - the statutory scheme clearly intends that inmates should be provided in as timely a way as possible with the maximum amount of information about the reasons why they are being placed in solitary and given the appropriate opportunity to defend themselves, of course all within the strictures which are necessarily implicit in the penitentiary setting; as the case law states, inmates have a legitimate right to expect that the “rule of law continues to run within penitentiary walls”: see para. 29 Khela ; - necessarily, the usual administrative law safeguard against apprehension of bias must be modified in the custodial context where the inmate is fighting against the prison authorities from whom he must obtain practical support.

The general need for procedural fairness is heightened in such situations. [ 68 ] The appropriate level of procedural fairness required is, therefore, one which mirrors the safeguards contained in the criminal trial process as attenuated by the lower level of overall jeopardy.

c) The respondent has not provided the necessary high level of procedural fairness to the applicants

i) Route to solitary confinement [ 69 ] The formalities of the initial placement into segregation met the statutory requirements. For example, the applicants were placed in segregation on June 28 and, on June 29, in compliance with the legislation, each received the written notice required by s. 19 of the Corrections and Conditional Release Regulations, CCRR. Appendix A is the information provided to inmate Keepness on June 29; the format and indeed the information within the document are representative of the written notice received by each of the other inmate applicants.

In each case, the written notification given to the inmate indicated that the inmate had been placed in segregation under CCRA 31(3)(b), i.e. for investigation purposes. [ 70 ] However, the institution’s decision to proceed in the way it did, that is without laying criminal charges and without laying institutional charges, where it could have done either, deprived the applicants of procedural fairness in that there would not have been any segregation if institutional charges had been laid until after the hearing and after a finding of guilt in relation to the charges.

Moreover, if institutional charges had been laid, as will be discussed below, the institution may have been limited in the use it could have made of confidential informants; if there is protection in that connection at a discipline hearing, that protection was denied to these applicants. [ 71 ] As will be discussed below, the initial placement in segregation for investigation purposes, while procedurally compliant, was not reasonable.

ii) Fifth Day Segregation Review [72] For the following two major reasons, I have concluded that the Fifth Working Day Segregation Review was not procedurallyfair. [73] First, the hearing did not deal with the reason or basis for segregation. As will be seen from s. 21(3) of the CCRR, above, the statutory requirements relative to the hearing are minimal.

However, I have concluded that the 5th Working Day Segregation Reviewmust, provide sufficient information for the robust review of the institution’s practices which is called for in the case law; in other words,the basis for segregation, and continued segregation, must be transparent. The Review in relation to these applicants was not substantivein relation to the basis for segregation. In each case, the review dealt principally, almost exclusively, with the inmate’s input into thenext placement. This does not provide procedural fairness.

As the evidence on this hearing illustrates, an institution’s decision to place aninmate in involuntary segregation has immediate serious negative effects and will, moreover, follow the inmate through the whole of hislife. A decision of that magnitude requires procedural fairness of the general type demonstrated by a court when it restricts the liberty ofthe subject. The institution provided inadequate procedural fairness to these inmates. As the Keepness and Hamm hearings illustrate, theinstitution was not willing to explain and justify its decision to maintain the inmates in segregation.

It would not deal with the issueraised by both Keepness and Hamm with respect to the recantation of an inmate who had provided information to the institution. It didnot respond to Keepness’ argument that in his relatively lengthy history as a prisoner, he had never before had a serious problem with ajailer.

It did not respond to Hamm’s argument that, given the short time he has left in his sentence and the fact that he is serving the lastweeks of his sentence in Edmonton where his mother and his daughter reside, it is unreasonable to conclude that he would put hisimmediate future at risk by participating in such a plan. [74] Second, in all the circumstances here, the institution could not rely on information from confidential informants as the solebasis on which to make segregation placements. When denying the liberty of a subject it is critically important to establish the reasonswhy it is fair to do so.

Here, the institution gave limited information to the inmates about the reason why their liberty was being furtherrestricted. An institution is entitled to withhold information from an inmate: see s. 27(3).

It may be, however, that – given theintroductory words to the sub-section, such withholding is not possible in the context of a disciplinary hearing; given the nature of thepopulation with which it is dealing, ie. the potential unreliability of all penitentiary inmates, it would not be outlandish for Parliament tohave concluded that information from cis should not be allowed at discipline hearings where the result could be additional deprivation ofliberty for an inmate.

I have been unable to find any case law interpreting the limitation in this sub-section; nor have I been able to findany mention in Hansard of the reason for the statutory limitation; within the relatively short time period available, I have not had the timeto consult the records of the Standing Committee to whom the 1992 version of the legislation was referred.

If, however, withholdingwere not available at discipline hearings, then withholding would not be possible here since the inmates here have suffered punishmentbeyond that which would have been available to the institution if it had proceeded by way of disciplinary hearings. [75] In any event, however, the institution did not invoke s. 27(3) on the 5th Working Day Review; it only invoked that provision on the habeas corpus hearing itself.

Perhaps it should have disclosed all of the information in its possession on June 28th to the inmates. [76] It is obvious that the institution may need to keep the confidentiality of some of its informants. Indeed, in many ways,because of the closed nature of the community which it manages, custodial institutions have a more difficult responsibility in relation tothe health and safety of informants than do the police.

In this case, however, the institution has not provided to the court any informationwhich supports what the general case law considers to be standard safeguards in relation to confidential informants. Dhillon is a recentexample of the application of well-established principles concerning the characterization of confidential informants as credible andreliable and the assessment of the evidence of cis: 12 Notably, none of the three confidential informants had been used by police in the past. The first was said to be reliable and accuratein the ITO, but there is no reason given to support this assessment.

Confidential informants 2 and 3 were both described as being deeplyentrenched in the drug sub-culture. No assertion was made about their reliability or credibility. However, both were said to understandthat if they lied or embellished, they would not receive consideration and could face criminal charges. . . . The Grounds to Arrest were Objectively Reasonable 29 The main issue is whether these grounds were objectively reasonable.

In my opinion, even without the information about the arrestof the Nissan driver, they were. 30 In circumstances where confidential informant information is at issue, the Supreme Court of Canada's comments in R. v. Debot, (SCC), [1989] 2 S.C.R. 1140, apply. One must weigh whether the informant was credible, whether the informationpredicting the commission of a criminal offence was compelling, and whether the information was corroborated by police investigation:Debot, at p.1168.

The totality of the circumstances must meet the standard of reasonableness. 31 First, the credibility of the three informants was obviously weak. They were all untested. C.I. 1 was said to be reliable and accurate,but no support was given for this assessment. There was no claim that the other two informants were credible or reliable. There was noinformation about whether they had criminal records, though C.I. 2 and C.I. 3 were described as being deeply entrenched in the criminalsub-culture. 32 I would note though that the information was not derived from anonymous tips.

Police knew the informants, and the second andthird informants were informed of potential criminal consequences if they lied or embellished the information they provided. 33 The lack of indicators of credibility and reliability does not mean that the confidential informant information has no evidentiaryvalue. It can still contribute to the reasonable grounds to arrest if it is compelling and corroborated.

As Wilson J. explained in Debot atpp. 1170-1171, where the police rely on an untried informant, "the quality of the information and corroborative evidence may have to besuch as to compensate for the inability to assess the credibility of the source."

34 The trial judge found the confidential informant information to not be compelling. I disagree. The information was fairly detailedand specific. It described various personal characteristics of the respondent, the types of drugs being trafficked, where the transactionsoccurred, and how they were carried out. All the informants identified the respondent's Alfonso Crescent residence as the hub. Two ofthe confidential informants identified the precise address. 35 C.I. 1 was said to know the respondent personally, though no details were provided. C.I. 2 and C.I. 3 were described as customersof the respondent.

They had first-hand knowledge of the trafficking. This relationship helps to alleviate the concern that they were justperpetuating rumours or gossip. 36 The second and third informants described the manner in which the transactions occurred in slightly different ways. C.I. 2 said"Bunt" usually retrieved the drugs from his residence and sold them from inside his garage or locations near his residence. C.I. 3 said"Bunt" would usually come out of his residence and enter the informant's vehicle in the driveway.

A common thread is that thepurchasers would not enter the residence, and the transaction would occur near the residence -- either in the garage, locations near theresidence, or the informant's car while parked outside. 37 On the other hand, with the exception of C.I. 1, who spoke to Constable Barbara in April 2011, the currency of the information isunknown. 38 In these circumstances, I would describe the informant information predicting the trafficking of heroin and crystalmethamphetamine by the respondent from 21 Alfonso Crescent as moderately compelling. 39 With respect to corroboration, the consistency of the information from the three informants should be given some weight.

Therewas significant overlap in their description of the respondent's nickname and name, approximate age, ethnicity, residence, vehicle, typesof drugs in which he trafficked, location at which the transactions occurred, and, as described above, certain similarities in the manner inwhich the transactions would occur. These consistencies increase the significance and reliability of the informant information anddistinguish this case from circumstances in which there is only one anonymous or untried informant. 40 The trial judge found little corroborative value in the police investigation. Again, I disagree.

Police confirmed the accuracy ofspecific information during their investigation. This included: the respondent's name, though not his nickname; the colour, make, andage of the respondent's vehicle; the respondent's ethnicity; the respondent's address; his approximate age; and that he had been arrestedbut not convicted in relation to the possession of stolen property. Police confirmation of these details, as in R. v.

Caissey, 2007 ABCA380, 227 C.C.C. (3d) 322, at para. 25, aff'd 2008 SCC 65, [2008] 3 S.C.R. 451, tends to substantiate the reliability of the informants'information. 41 Not only was there corroboration of personal characteristics, there was some indication that the criminal activity alleged was indeedoccurring. As this court stated in R. v.

Lewis (1998), (ON CA), 38 O.R. (3d) 540, at pp. 547-548, there is no need toconfirm the very criminality of the information given by the tipster, but there must be more than corroboration of innocent orcommonplace conduct when the police are relying on an untested informant. 42 Here, there were three brief meetings within one hour, all of which occurred outside the respondent's residence in various cars. Thisbehaviour must be considered in light of the knowledge and experience that Constable Whitlock brought to the investigation.

ConstableWhitlock's experience and conclusions about these meetings helps inform the inferences that can be drawn when assessing the objectivereasonableness of the grounds to arrest. 43 He testified that these meetings were consistent with drug transactions in that they were very brief, took place outside of publicview but not inside a residence, and were numerous and within quick succession of each other.

His observation of the respondent's handbeing cupped as he left his residence and entered the black Ford increased his suspicion and the inference that a drug transaction ensuedin the vehicle. 44 Further, the sequence of events conformed sufficiently to the pattern predicted by C.I. 2 and C.I. 3 as to remove the possibility ofinnocent coincidences: see Debot, at p. 1172; R. v. Whyte, 2011 ONCA 24, 266 C.C.C. (3d) 5, at paras. 30-31.

Again, three briefmeetings took place in the cars of those who showed up at the respondent's residence while the vehicles were either parked in thedriveway or directly outside the residence, or within a brief time, drove away. This corroborated the confidential informant informationof C.I. 3, in particular on the manner in which the respondent engaged in drug transactions. 45 In the totality of the circumstances, regardless of the information about the arrest of the third party Nissan driver, the police hadsubjectively and objectively justifiable reasonable and probable grounds to arrest the respondent.

Accordingly, there was no violation ofthe respondent's rights under s. 9 of the Charter. D. CONCLUSION 46 I would therefore allow the appeal and set aside the acquittals. [77] As Dhillon illustrates, perfect credibility and perfect reliability of informants is not, and has never been, the law.Nevertheless, when the liberty of a subject is going to be restricted, care must be taken in weighing the evidence provided by cis. [78] The Canada Correction Service itself recognizes that the information given by informants must be tested.

It provides thefollowing definition of “completely reliable” information: . . . refers to information which is substantiated or confirmed by one or more independent sources; the information is logical andconsistent with other information on the same subject. [79] Here, we have no information about whether the informants on whom the institution relies had a history of giving reliableinformation or whether they were paid for the information they gave on this occasion. The institution does not explain whether some of

the information it received was contradicted by the informant and, if so, why it has chosen to rely on one version rather than another. The institution did not indicate whether it told its cis that they would be subject to criminal or institutional charges if they didn’t tell the truth.

The institution did not provide evidence of follow-up of the type outlined in Dhillon by police investigation; given the fact that inmates have virtually no privacy within the institution, the institution presumably has evidence of the movement of the applicants within the institution, and of their conversations, amongst themselves and with outsiders.

None of this type of information was provided; this gap is especially important given Hamm’s assertion that, in the days leading up to June 28, he remained in his cell, feverishly working on his original habeas corpus application. [ 80 ] It must also be noted that the institution is in a difficult position in relation to the inmate on whose written statements the applicants rely. That inmate confided to the applicants that he was a confidential informant, but he was recanting his statement to the prison authorities.

The prison authorities cannot, because of their obligations confirm or deny that the inmate in question was one of their confidential informants. The most the institution could do would be to make submissions about what a court should do with respect to this type of evidence.

That problem, in this particular case, is solved – albeit not perfectly – by having the court examine the sealed affidavit which allows the court to inform the applicants that they have received the gist of the information in the sealed packet. [ 81 ] In the totality of the evidence on this application, I am unable to conclude that the institution had available reliable and credible information that these applicants were planning a serious assault on three identified guards. [ 82 ] Mr.

Hamm, in particular, argues that this is a situation in which the identity of confidential informants should not be protected since his “innocence is at stake”; the other applicants support his position on this issue. The institution responds that Mr. Hamm is already a convict and that his innocence is not at stake. While it’s true that Mr. Hamm has been lawfully convicted of Criminal Code crimes and lawfully sentenced, in relation to the allegation of conspiracy to commit bodily injury to correctional officers – which has resulted in a further deprivation of his liberty – Mr.

Hamm, and the other applicants, have, in a more limited way, their innocence at stake. [ 83 ] Nonetheless, after considering the public policy underlying the protection of the confidentiality of informants and the other means available to Mr. Hamm to make full answer and defence to the institution’s claims, I have concluded that this is not a situation in which the identity of the confidential informants should be disclosed. In coming to this conclusion, I have relied on case law explaining the “innocence at stake” exception to the confidential informant privilege.

This case law is accurately summarized in the recent decision in Osborne : 16 In R. v. Yakubu, [2006] O.J. No. 4864 (S.C.J.) at para. 20 , Corbett J. summarized the test in McClure as it applies to confidential informers:

A) The Threshold Test To satisfy the threshold test, the accused must establish that: 1) the information he seeks from the [confidential informant] communication is not available from any other source; and 2) he is otherwise unable to raise a reasonable doubt.

B) The Innocence at Stake Test: Stage 1: The accused seeking production of the [confidential informant] communication has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt. Stage 2: If such an evidentiary basis exists, the trial judge should examine the communication to determine whether, in fact, it is likely to raise a reasonable doubt as to the guilt of the accused. It is important to distinguish that the burden in the second stage of the innocence at stake test (likel

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