2020 QCCA 632, 2020 QCCA 632

Paul c. Lalande (Archambault Establishment) 2020 QCCA 632 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007168-196 (500-36-009352-199) DATE: MAY 8, 2020 CORAM: THE HONOURABLE MARK SCHRAGER, J.A. PATRICK HEALY, J.A. LUCIE FOURNIER, J.A. ROBERT ANTHONY PAUL APPELLANT – Applicant v.

STÉPHANE LALANDE, in his capacity as director of the Archambault establishment and GENEVIÈVE THIBAULT, in her capacity as director of the Federal Training Center-minimum RESPONDENTS – Respondents and ATTORNEY GENERAL OF CANADA IMPLEADED PARTY – Impleaded Party JUDGMENT [ 1 ] This is an appeal from a judgment of the Superior Court that denied the appellant’s application for habeas corpus with certiorari in aid. [1] The application was brought following a decision of the Correctional Service of Canada to increase the appellant’s security classification from minimum to medium and to transfer him to a medium-security institution.

He claims that these decisions followed a breach of procedural fairness and consequently that they were unreasonable. [ 2 ] Section 27(1) of the Corrections and Conditional Release Act [2] obliges the Service to disclose relevant information to an inmate:

(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.

(1) Sous réserve du paragraphe (3), la personne ou l’organisme chargé de rendre, au nom du Service, une décision au sujet d’un délinquant doit, lorsque celui-ci a le droit en vertu de la présente

partie ou des règlements de présenter des observations, lui communiquer, dans un délai raisonnable avant la prise de décision, tous les renseignements entrant en ligne de compte dans celle-ci, ou un

sommaire de ceux-ci. [ 3 ] Section 27(3) provides an exception that allows the Service to withhold otherwise relevant information:

(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).

(3) Sauf dans le cas des infractions disciplinaires, le commissaire peut autoriser, dans la mesure jugée strictement nécessaire toutefois, le refus de communiquer des renseignements au délinquant s’il a des motifs raisonnables de croire que cette communication mettrait en danger la sécurité d’une personne ou du pénitencier ou compromettrait la tenue d’une enquête licite.

Procedural fairness [ 4 ] The appellant claims that the Service failed to meet its obligation under section 27(1) of the Act, thus constituting a breach of procedural fairness, with the consequence that his detention in a medium-security was unlawful. The respondent claims that it withheld a limited amount of information within the terms of section 27(3) and thus that the restriction of the appellant’s residual liberty was lawful. [3] [ 5 ] The respondent received information from six sources that implicated the appellant in disciplinary offences within a minimum- security institution.

The offences included possession of alcohol, theft of food and possession of other contraband. The information provided by the sources was confirmed and as a result the appellant was transferred to a medium-security institution. [ 6 ] The respondent submits that it disclosed to the appellant a

summary of the information on which it based the decision to reclassify the appellant’s security status and to transfer him to a medium-security institution. [ 7 ] The evidence in the Superior Court disclosed that under section 27(3) the respondent withheld information concerning the quantity of alcohol, the duration of the investigation, the value of the contraband and the fact that two of the six sources corroborated each other concerning the theft of food.

The respondent filed a sealed affidavit that explained what information was withheld under section 27(3) and two sealed reports concerning internal security. [ 8 ] The Superior Court compared the information that was disclosed to the appellant with the respondent’s evidence concerning information that was withheld. The court concluded that there was no breach of procedural fairness in withholding material under section 27(3) of the Act because the information disclosed pursuant to section 27(1) in the form of a

summary provided ample grounds for the appellant to know the basis for the respondent’s decisions concerning his classification and transfer. In particular, the court concluded that the information disclosed to the appellant allowed him to understand the allegations of theft of food and trafficking in contraband, which allegations he denied. Thus the court concluded that the respondent acted within terms of the Act and in accordance with the standards stated by the Supreme Court in Mission Institution v. Khela [4] . There was no breach of procedural fairness.

Further, that certain additional information was disclosed to the appellant for the first time during the hearing in the Superior Court does not lead necessarily to the conclusion that he was denied procedural fairness. [5] [ 9 ] Section 27(1) of the Act specifically provides that a

summary of the pertinent information be disclosed to the offender. The appellant’s argument would require a degree of disclosure that exceeds a reasonable definition of a “summary” and would require disclosure of details that would jeopardise the interests and concerns identified in section 27(3) of the Act. The disclosure required by

section 27 “is not tantamount to the disclosure required” in the prosecution of criminal matters. [6] [ 10 ] The Court is unable to find any error in these conclusions of the Superior Court. Reasonableness [ 11 ] The Superior Court then considered the reasonableness of the respondent’s decision with reference to the principles stated in Khela : [73] A transfer decision that does not fall within the “range of possible, acceptable outcomes which are defensible in respect of the facts and law” will be unlawful (Dunsmuir, at para. 47).

Similarly, a decision that lacks “justification, transparency and intelligibility” will be unlawful (ibid.). For it to be lawful, the reasons for and record of the decision must “in fact or in principle support the conclusion reached” (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 , [2011] 3 S.C.R. 708 , at para. 12 , quoting with approval D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M.

Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304). [74] As things stand, a decision will be unreasonable, and therefore unlawful, if an inmate’s liberty interests are sacrificed absent any evidence or on the basis of unreliable or irrelevant evidence, or evidence that cannot support the conclusion, although I do not foreclose the possibility that it may also be unreasonable on other grounds.

Deference will be shown to a determination that evidence is reliable, but the authorities will nonetheless have to explain that determination. [75] A review to determine whether a decision was reasonable, and therefore lawful, necessarily requires deference (Dunsmuir, at para. 47; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 , [2009] 1 S.C.R. 339 , at para. 59 ; Newfoundland and Labrador Nurses’ Union, at paras. 11-12). An involuntary transfer decision is nonetheless an administrative decision made by a decision maker

with expertise in the environment of a particular penitentiary. To apply any standard other than reasonableness in reviewing such a decision could well lead to the micromanagement of prisons by the courts. [ 12 ] The Superior Court reviewed the decision of the respondent and concluded that it was based upon a thorough review of reliable and persuasive information. The respondent examined the information provided to the appellant, the sealed reports and representations made by the appellant.

On this basis the respondent decided to proceed with the reassessment of the appellant’s security classification and his transfer to a medium-security institution. [ 13 ] The Superior Court concluded that the respondent’s decision was reasonable under the standards set out in Khela . [ 14 ] This court is unable to find any error or unreasonableness in the conclusion of the Superior Court. It should be added that our conclusion is in no way altered by the Vavilov trilogy [7] and indeed it is entirely consistent with those decisions.

The decision of the respondent benefits from a presumption of reasonableness and the decision of the Superior Court amply confirms that the respondent’s decision not only conformed to standards of procedural fairness but was, in the process and the result, reasonable. The Superior Court, even without the benefit of the Vavilov trilogy, effectively concluded that the respondent’s decision was internally coherent and consistent with the applicable statutory and regulatory norms.

Procedure [ 15 ] In his notice of appeal the appellant affirms that the appeal is brought to this court under section 784(1) of the Criminal Code . [8] This requires clarification. [ 16 ] Decisions by the respondent relating to the classification, transfer and placement of inmates are administrative in nature and thus proceedings concerning habeas corpus on these issues in the Superior Court and the Court of Appeal are governed by the Code of Civil Procedure . [9] FOR THESE REASONS, THE COURT : [ 17 ] DISMISSES the appeal. MARK SCHRAGER, J.A. PATRICK HEALY, J.A. LUCIE FOURNIER, J.A.

Mtre Marie-Claude Lacroix SIMAO LACROIX For the Appellant Mtre Toni Abi Nasr Mtre Julien Dubé-Senécal JUSTICE CANADA For the Respondents and the Impleaded Party Date of hearing: March 13, 2020