R v Elliott, 2016 MBCA 70

Citation: R v Elliott, 2016 MBCA 70 Date: 20160622 Docket: AR16-30-08562 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) S. J. Elliott ) on his own behalf Respondent ) ) M. B.

Tait ) for the Respondent - and - ) ) Appeal heard: ) June 16, 2016 SIMON JAMES ELLIOTT ) ) Judgment delivered: (Accused) Appellant ) June 22, 2016 MONNIN JA [ 1 ] This is an appeal from the dismissal of the appellant’s habeas corpus application. [ 2 ] The appellant was an inmate of Warkworth Institution, a federal, medium-security penitentiary in Ontario, when in June of 2015, the warden of that institution made a decision to reclassify the appellant’s security level from medium security to maximum security.

As a result of that reclassification, the appellant was ordered to be transferred from Warkworth to Millhaven Institution, a maximum security penitentiary. [ 3 ] The warden’s decision was based primarily on the appellant’s institutional behaviour and his need for a high degree of supervision and control within the penitentiary. [ 4 ] The judge who heard the appellant’s application for habeas corpus found that the deprivation of the appellant’s residual liberty was lawful.

He held that the warden’s security level and transfer decisions, based on the appellant’s need for a high degree of supervision and control within the penitentiary, were reasonable. In addition, he found that the process followed was procedurally fair. [ 5 ] This appeal raises a question of law, and a question of mixed fact and law. The issue of whether procedural fairness requirements were met is a question of law, reviewable on a standard of correctness.

The issue of whether the application judge properly considered the evidence in determining that the decisions of the warden were reasonable is a question of mixed fact and law, and is to be reviewed on a standard of palpable and overriding error. [ 6 ] There is no issue that Correctional Service Canada’s conduct in the process was procedurally fair. It fulfilled its disclosure obligations by providing the appellant with all of the information necessary for him to know the case he had to meet. The appellant was provided with the opportunity to respond both verbally and in writing.

The warden’s reasons were adequate. There was no error in law in the application judge’s finding with respect to this issue. [ 7 ] The application judge further found, on the basis of the principles set out in Mission Institute v Khela , 2014 SCC 24 , [2014] 1 SCR 502 , that the warden’s decision was reasonable. He identified the correct standard of review of the warden’s decision and applied it properly. He committed no palpable or overriding error in arriving at that conclusion. [ 8 ] There is no merit to the appellant’s appeal and it is accordingly dismissed. JA

I agree: JA I agree: JA