Gerry Joseph Leiding Applicant v. The Warden of Mission Institution, 2017 BCSC 1701

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Leiding v. Mission Institution (Warden), 2017 BCSC 1701 Date: 20170726 Docket: 66301-1 Registry: Chilliwack In the Matter of a Petition for Relief in the Nature of Habeas Corpus with Certiorari in Aid, if required, and In the Matter of Gerry Joseph Leiding currently being detained at Mission Medium Institution, in the City of Mission, British Columbia, a Penitentiary operated by the Correctional Service of Canada Between: Gerry Joseph Leiding Applicant And The Warden of Mission Institution Respondent Before: The Honourable Mr.

Justice Macintosh Oral Reasons for Judgment Re Habeas Corpus Application Crown Counsel (Respondent): P.J.P. Alma Counsel for the Applicant: C.R. Terepocki Place and Date of Hearing: Chilliwack, B.C. July 24, 2017 Place and Date of Judgment: Chilliwack, B.C. July 26, 2017 [ 1 ] THE COURT: In his application filed May 12, 2017, Mr. Leiding seeks an order in the nature of habeas corpus releasing him from incarceration at Mission Medium Security Institution (“Mission”) and placing him instead at William Head Institution, a minimum security prison on Vancouver Island which I am advised is near Mr.

Leiding’s home. [ 2 ] In 1999, Mr. Leiding stabbed a security guard to death and cut his throat. He stabbed the guard 19 times. He was in the midst of stealing a vehicle. The guard had tried to apprehend him. This Court sentenced Mr. Leiding to life in prison with parole eligibility at 15 years. [ 3 ] I believe Mr. Leiding began serving his sentence at Mission. He was transferred at some point to minimum security at William Head. However, he was moved back to Mission in December of 2015 on an emergency basis. His inability or unwillingness to manage his emotions had resulted in numerous staff interventions.

Correctional staff had found unauthorized items in his room, probably taken from the workshop, leading to his being suspended from the workshop. He became agitated on one occasion to the extent that his work supervisor pressed an alarm to summon correctional staff for help, leaving her shaken. Mr. Leiding was also found in possession of a homemade weapon during his time at William Head. His security level was increased from minimum to medium when he was returned to Mission in December 2015. [ 4 ] In September of 2016, Mr. Leiding applied for a transfer again from Mission to William Head.

In October 2016, following a security review by the correctional staff, he was rated as a medium security inmate based on his Security Reclassification Scale, which is used by the Correctional Service of Canada to assess an offender’s security risk. Despite this, his case management team was supportive of his transfer request and recommended that he be classified as a minimum security inmate. On November 18, 2016, the warden of Mission agreed with Mr. Leiding’s case management team, decreased his security level to minimum security, and approved his transfer to William Head. Mr.

Leiding’s transfer was likely going to take place on November 23 or November 24, 2016. However, it was stopped on November 23. [ 5 ] Mr. Leiding learned he was being investigated for an assault, using an X-Acto blade, on another inmate at Mission. In light of the alleged slashing with the X-Acto blade, Mr. Leiding would not be transferred without a hearing before the warden at Mission. She

would determine his security classification through that process. Mr. Leiding was able to consult his lawyer. His lawyer submitted awritten submission on his behalf. The subsequent hearing before the warden was, I believe, on January 4, 2017. Mr. Leiding spoke thatday on his own behalf. The warden issued a five page decision addressing his security classification. Page 4 of the decision shows that itwas made and was effective on January 4, 2017. It was signed by the warden on January 11. The warden determined that Mr. Leiding’ssecurity classification would be maintained at medium. [6] Mr.

Leiding complains that he was denied procedural fairness, as that principle has evolved in this context, in cases includingMay v. Ferndale Institution, 2005 SCC 82 , [2005] 3 S.C.R. 809, and Mission Institution v. Khela, 2014 SCC 24 ,[2014] 1 S.C.R. 502.

He says that prior to the hearing before the warden, he did not receive all the information he should have receivedin accordance with s. 27(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which provides: 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 theService about the offender, the person or body that is to take the decision shall, subject to subsection (3), give the offender, a reasonableperiod before the decision is to be taken, all the information to be considered in the taking of the decision or a

summary of thatinformation. [7] Mr. Leiding says he was not told the when and where of the alleged slashing, was not told whether a party identified asSource A saw anything, and did not receive any corroborative evidence. (He concedes he is not entitled to have Source A identified.) Thewarden responds that Mr. Leiding received all the relevant available information except the identity of Source A, and refers the Court tos. 27(3) of the Act, which provides:

(3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosureof 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 theinterest identified in paragraph (a), (

b) or (c). [8] In my view, despite the able submission of Mr. Terepocki on Mr. Leiding’s behalf, Mr. Leiding’s application cannot succeed. All the information relied upon by the warden in reaching her decision was provided to Mr. Leiding prior to the hearing. He had beentold of the alleged slashing and who the alleged victim was. He was told that there was a Source A. He was given two documents,Addendum 1 and Addendum 2, respectively, to the Assessment for Decision and he was given the Assessment for Decision itself.

Thislatter document, prepared by staff at Mission, set out the case for maintaining his classification as medium. Addendum 1 explained whatthe source said and how the complaint was corroborated. Addendum 2 explained why Source A could not be identified. Both addendacontained further information, as well. They also referred to the fact that the victim of Mr. Leiding’s alleged slashing had recanted hiscomplaint against Mr. Leiding. [9] Paragraphs 84-89 in Khela, cited above, address the employment of a sealed affidavit for me, as the reviewing judge, to showwhat information was kept from Mr.

Leiding prior to the warden’s hearing and why disclosure of that information might jeopardizesomeone’s safety. I received such an affidavit and ordered it sealed on July 24. I have reviewed it.

I am satisfied that it meets theconcerns expressed in Khela, first, that s. 27(3) of the Act be employed sparingly, and not so as to preclude a fair hearing for theapplicant seeking reclassification, and second, why evidence from, in this case, Source A is considered to be reliable. [10] The warden, in reaching her decision, was entitled to draw upon her judgment and experience, obtained from her work, inmaintaining a classification of medium risk for Mr. Leiding. She had to weigh the evidence she had, of the slashing having occurred onthe victim who first named Mr.

Leiding as the perpetrator, but who later recanted that accusation. The evidence included that which wasgiven by Source A and, in addition, evidence that correctional staff saw the injuries on the victim’s abdomen. The warden was within herjurisdiction to make the decision she did, and was not unreasonable in reaching the conclusion she did. Mr.

Leiding was not denied hisright to information under the requirements of s. 27(1) and 27(3) of the Act as those sections have been considered in the authorities Ihave cited above, and the other authorities argued before me. [11] In conclusion, the application is dismissed. “Macintosh J.”