) ) PATRICK SEVERIN Applicant – v. –, 2011 ONSC 37

CITATION : Severin v. AG (Canada), 2011 ONSC 37 COURT FILE NO.: 387/09 Kingston DATE: 2011Jan07 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) PATRICK SEVERIN Applicant – and – THE ATTORNEY GENERAL OF CANADA Respondent ) ) ) ) ) ) ) ) ) Brian A. Callendar, for the Applicant J.

Bruce MacNaughton, for the Respondent ) ) ) HEARD: December 20, 2010 TRANMER, j Habeas Corpus DECISION NATURE OF THE APPLICATION [ 1 ] Patrick Severin seeks an Order granting relief in the nature of a Writ of Habeas Corpus ad Subjiciendum with Certiorari in Aid thereof, if required, directing the Respondent to transfer him from maximum security Millhaven Institution (MI) to medium security Joyceville Institution (JI) from where he was first transferred in June 2008. BACKGROUND [ 2 ] Mr.

Severin was born June 4, 1985. [ 3 ] On December 7, 2007, he was convicted of robbery involving a firearm and a number of other offences. He was sentenced to a total term of 9 years, 8 months in custody after credit for 40 months prior to trial custody. [ 4 ] He was admitted to federal custody on January 6, 2006. [ 5 ] In the month of April 2008, he was an inmate at JI, a medium security institution. [ 6 ] On April 28, 2008, he was handcuffed and taken to segregation at JI. [ 7 ] On May 30, 2008, Mr. Severin was given a copy of Notice of Involuntary Transfer Recommendation.

That Correctional Service Canada (CSC) document read in part: ...the Security Intelligence Office (SIO) has made an investigation into the matters indicated below. ...they believe that the information provided is accurate. CMT concurs with the information that has been provided. On Sunday, April 27, 2008, the SIO has concluded, undeniably, that you were the aggressor in the stabbing of another inmate at Joyceville Institution. Reliable sources indicate that you attacked the victim from behind stabbing the victim in the head and chest area.

A puncture wound was later confirmed on the left chest area and slash marks in the right bicep. The SIO has concluded this was a

serious stabbing incident however it does not meet the criteria for serious bodily injury. The investigation concludes the situation stems from a provincial custody issue and while certain inmate groups, including the inmate committee, advocate your return to Joyceville’s open population, the SIO is supportive of your being involuntarily transferred to maximum security. The victim has not been compliant or forthcoming with regards to the investigation and therefore, it is not likely that outside criminal charges would be pending.

You have been segregated since April 28, 2008 pending a decision. ... ...Your institutional custody, as evidenced by the conclusions above, and your history of assaultive behaviour, clearly suggests that you require a greater degree of custody and control then can be afforded in a MEDIUM security institution, and your actions clearly and definitively indicate that you pose a threat to the safety of other individuals and to the security of the penitentiary. [ 8 ] The action proposed was transfer to maximum security at MI. [ 9 ] Mr. Severin prepared a written Rebuttal which is dated May 27, 2008.

It reads in part: ... However, in this case it turns out that the individual that I am being accused of assaulting clearly stated to one of the Investigators that I had nothing to do with this altercation which I still do not have any knowledge of.

Furthermore, there were massive searches conducted in which there was not one piece of evidence to corroborate with the “reliable informant.” I was told by the Investigating officer that the victim who I don’t even know, said that I had nothing to do with this assault. [ 10 ] He challenged the reliability and motivation of the “reliable sources” relied on CSC as to his involvement in the stabbing incident. [ 11 ] Mr. Severin made a verbal rebuttal on June 3, 2008. He challenged the reliability of the sources who alleged he was involved. [ 12 ] The Warden made the decision to transfer on June 4, 2008. [ 13 ] Mr.

Severin was transferred to MI on June 9, 2008. POSITION OF THE PARTIES [ 14 ] The parties agree that an involuntary transfer to a more secure facility within the prison constitutes a deprivation of liberty that may be reviewed by this Court. [ 15 ] The Applicant, having established a deprivation of liberty, the onus then shifts to the Respondent to demonstrate that the deprivation was lawful. It is this aspect of the application that is in dispute. The Applicant [ 16 ] Mr.

Severin submits that the Respondent exceeded its jurisdiction contrary to the common law and to statutory law in failing to disclose to him: a. Details as to the incident; who the victim was; where the incident occurred; what weapon was used, etc. b. Details as to why the “reliable sources” were reliable; the source of their information, proof of their reliability, etc. [ 17 ] The Applicant relies on the British Columbia Superior Court decision in Khela v. Mission Institution (Warden), 2010 BCSC 721 .

The Respondent [ 18 ] It is submitted that particularly within the prison system, protection must be afforded to confidential informants. [ 19 ] In Camphaug v. Canada, (1990) 34 F.T.R. 165 , Strayer J. of the Federal Court of Canada – Trial Division said: ...fairness in the making of such a decision does not require that the inmate be given all of the particulars of all alleged wrong doings; it is sufficient if he can make representations to demonstrate that the recommendation that he be moved is an unreasonable one.

[20] The Respondent also relies on caselaw from the Superior Court of Justice of Ontario which holds that transfer decisionswithin an institution are not like a criminal trial. Innocence is not at stake. A decision is made in an administrative context and thestatute authorizes the withholding of information to protect the safety of any person, the security of a penitentiary or the conduct of anylawful investigation. (Luke v. Canada (Correctional Service), (ON S.C.). [21] In Skinner v. Warkworth Institution (Warden), Ont. S.C.J., Court file CR-08-22 – June 3, 2009, this Court noted that thestatute allows for a

summary of the information considered in the making of the decision. To identify informants in a prison settingwould result in almost certain injury or the death of those persons. Within the context of a prison setting, non-disclosure of the identityof informants does not necessarily result in the breach of procedural fairness. The question is whether the Applicant had sufficientinformation to know the case he had to meet. [22] In Beriault v. Collins Bay Institution (Warden), [2009] O.J.

No. 3560 at para. 20, this Court recognized that an applicantinmate often cannot test the reliability of source information. [23] The Respondent submits that the issue is was the Applicant aware of the case against him and was he given an opportunity tobe heard and to answer. [24] The Respondent notes that Khela, supra and two other British Columbia Superior Court cases which decide the issuesimilarly, are under appeal. [25] On the issue before me in Mr. Severin’s case, the Respondent referred me to the decision of the Ontario Superior Court ofJustice in Judge v. AG (Canada), 2010 ONSC 4811.

In that case as I read it, the learned application judge, on the disclosure issue didnot address the apparent differing viewpoint of the Khela decision in concluding that Mr. Judge “was aware of the case he had to meetand his transfer was lawful” (para.20). ANALYSIS [26] The governing statutory provision as set in

section 27 of The Corrections and Conditional Release Act, S.C. 1992, c.2(CCRA). 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 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. ... Exceptions

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

b) or (c). [27] It is important, in my view, to review the relevant caselaw referred to by Counsel from the perspective of what informationwas provided to the Applicant in each case and the decision of the court based on those facts. [28] In Luke, supra, allegations were made that he was involved in the drug subculture. The allegations were based on informationreceived from reliable, confidential informants. There were also telephone intercepts by the authorities of the Applicant’s conversations

and intercepts of other offenders’ telephone conversations. There was also information received from the O.P.P. There was directevidence that the Applicant made disrespectful comments about CSC staff. The Applicant argued that the information provided to himwas in the nature of the gist of the confidential information that was so vague that his only response could be of general denial. [29] The Respondent in that case argued that it could not give the Applicant the information he sought because that would revealthe informants.

The Unit Manager noted on the record that he had reviewed all of the information upon which the gist was based and itwas his opinion that in accordance with s.27(2) of the CCRA, that no additional information can be provided without jeopardizing thesafety and security of the institution or a person. [30] The Court concluded that Mr. Luke had received information sufficient to know the case he had to meet and he was affordedthe opportunity to respond which he did. The application for habeas corpus was denied. [31] In Thompson v. Canada (AG), [2007] O.J. No. 1545 (Ont.

S.C.J.), the Applicant was informed that there had been repeatedcomplaints from staff of disrespectful behaviour and loud music. A majority of inmates on the range had requested that he betransferred. Further, there were suspicions he indirectly incited other inmates to complain. A search revealed a shank in the Applicant’scell. There was also information received by the CSC from a reliable source which, when considered with phone surveillance, allowedthe authorities to form a reasonable and probable belief the Applicant was involved in the introduction and sale of narcotics withinJoyceville.

There was further information that he had formed a prison-type gang and displayed gangster-type mannerisms. [32] In that case, the Applicant denied the allegations and submitted that the authorities relied upon erroneous information incoming to their conclusion. He submitted that the authorities should be required to prove, under oath, that the information they reliedupon was reliable. That court disagreed and noted it was open to the Applicant to provide affidavit evidence from other inmates insupport of his denial.

The Application for habeas corpus was dismissed. [33] In Skinner, supra, the authorities decided to involuntary transfer the Applicant based on a report from a reliable source that theApplicant had made inappropriate sexual remarks concerning a female staff member. He denied making remarks of sexual natureconcerning any female staff member.

The Applicant argued that the transfer decision violated fundamental justice primarily because hewas denied his request to learn the identity of the informant. [34] The Court stated the issue in that case to be: Has the respondent’s failure to reveal the identity of the informant(

s) violated the principles of fundamental justice and denied him theopportunity to make full answer and defence? [35] The Ontario Superior Court of Justice reviewed the caselaw dealing with confidential informant privilege. In particular, theCourt relied upon the decision of the Supreme Court of Canada in May v.

Ferndale Institution, 2005 SCC 82 , [2005] SCJ No.84 at para. 19 of the decision, the court quoted from the Supreme Court of Canada decision in May, para. 99 where the court referred tothe CSC Directive concerning transfer of offenders which reads: The Notice of Involuntary Transfer Recommendation ... must contain enough information to allow the offender to know the case againsthim or her. The offender must be in a position to be able to respond to the recommendation for an involuntary transfer. To meet thisstandard, the details of the incident(

s) which prompted the transfer recommendation must be provided to the greatest extent possible.This may include providing the offender with the following information regarding the incident(s): where it occurred, when it occurred,against whom it occurred, the extent of injury or damage which resulted, the evidence or proof of its occurrence, and any further relevantinformation which may elaborate on the incident(s).

In cases where sensitive information exists which cannot fully be shared, theoffender shall be provided with a gist. [36] In Skinner, supra, Belch J. noted that the prison environment has a unique context that shapes procedure. He noted that theCCRA provided for this and that the Supreme Court of Canada had recognized this and he noted that decisions to involuntarily transferoften involve the security and safety of the person and institution. He noted that the statute allows for a

summary of the informationconsidered in the making of the decision. He concluded that the non-disclosure of identity would not result in a breach of proceduralfairness in that context. In that case, the court found that the applicant had sufficient information to know the case he had to meet. TheApplication for habeas corpus was denied. [37] In Beriault, supra, it was alleged that the applicant maintained direct links to the Hell’s Angels and there was reliableinformation that the applicant was directly involved in the trafficking of cocaine into the inmate population.

In that case, the court notedthat a concerned person often cannot test the reliability of such information. It is held that the disclosure to the applicant pursuant to s.27 of the CCRA was lawful and his application for habeas corpus was dismissed. [38] In Khela, supra, one of the bases for the application was that the respondents had failed to make sufficient disclosure to permithim to respond to the allegations relied upon. The information that was provided to Mr. Khela is set out at para[13] of the decision.

Itwas alleged based on information received by the SIO that the applicant was responsible for contracting two other inmates to assault aninmate within the institution on a stated date. The report indicated the victim was stabbed a number of times and transported to outsidehospital for medical attention. It was asserted that the contract was as a means of retaliation against the victim because the victim hadpreviously coordinated an assault upon the applicant. There was also information that he had negotiated a payment of 3 grams of herointo the assailants.

Also relied upon by the CSC was information contained in two kites which are anonymous tips about inmates receivedby persons in authority within the prison system.

[ 39 ] The applicant challenged the decision in part on the basis that the source information was not reliable and that there was no reasons given why CSC would consider the source information as reliable. [ 40 ] That court noted at para[46]: ...to satisfy the onus upon them to justify the transfer decision as lawful, the respondents must establish that they provided Mr.

Khela, to the greatest extent possible, the substance and details of the events and the information that led to the decision. [ 41 ] That court also noted at para[47]: A key element of disclosure is both the reliability of the sources who provide information leading to a transfer decision and the content of what was said by the sources. Neither the Notice provided to Mr. Khela nor the Assessment identified what was said by the sources or what justified the respondents’ conclusion that the source information was reliable. [ 42 ] In particular, the court noted at para[49] that the respondent’s position that Mr.

Khela was given sufficient information to permit him to respond to the allegations that led to his transfer would have some merit, had the stabbing incident been just “one of many equivalent incidents in Mr. Khela’s prison record, this is clearly not the case.” The court noted that the investigation of the stabbing incident and the fact of the assault triggered the review and the transfer decision. The court held that the stabbing incident was of primary importance to the decision and as such, should have been the subject of full disclosure as contemplated by s. 27(1) of the CCRA.

That court noted at para[50]: I note that in providing disclosure to Mr. Khela, the respondents did not invoke the authority in s. 27(3) to withhold information based on a risk to the safety of any person, the institution, or to an ongoing investigation. [ 43 ] That court found in that case, on those facts, the respondents did not satisfy their onus of proof that they had provided Mr. Khela with sufficient information to permit him a meaningful opportunity to rebut the allegations against him. [ 44 ] The decision in Khela , supra was brought to the attention of this court in Judge v.

AG 2010 ONSC 4811 . [ 45 ] In Judge , supra, the applicant had been transferred from minimum security to medium security based upon information of suspected involvement in the introduction of tobacco and drugs into the medium security institution along with allegations of muscling and threatening other inmates. The information came from “a believed, reliable source.” The source was not disclosed to the Applicant. His complaint was that he had been told nothing about the believed reliable informant.

The Applicant challenged the motivation of the informant and whether an incentive or benefit had been given to the informant and the basis of the alleged knowledge of the informant. In regard to Khela, the Respondent in that case submitted that it should not be followed in that it had limited precedential value and there were serious doubts as to its correctness. It was noted that that case and two other B.C. cases which follow it are under appeal. [ 46 ] The court noted that the applicant in that case took issue with the disclosure he received.

The court reviewed s. 27(3) of the CCRA which authorizes the Commissioner not to disclose information that would jeopardize the safety of any person, the security of a penitentiary or the conduct of any lawful investigation. The court noted that officials are to provide a gist of the information which is to provide as much information as possible. At para[14], the court reviewed Cartier v. Canada (Attorney General) 1998 CarswellNat 2976 where Nadon J. wrote as follows: ...

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 wrongdoings 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. ... [ 47 ] The court also referred to Camphaug to which I have referred. [ 48 ] In Gaudet v.

Marchard 1994 CarswellQue 260 , at para.35, Rothman J.A. wrote: In my respectful opinion, the authorities had no duty to provide appellant with copies of the statements given by informers, nor to afford appellant an opportunity to cross-examine these witnesses or the penitentiary authorities themselves. ...

[ 49 ] In Bachynski v. William Head Institution 1995 CarswellBC 2338 , Bouck J. of the British Columbia Superior Court stated at para. 36: Prison authorities must act on the best information available. Sometimes it is unreliable and an individual inmate is wrongly charged or wrongly transferred. But given the nature of the inmate population and the necessity of preserving order there is often no other alternative.

If a dangerous person is allowed to remain in the general prison population of a medium security institution, it is the other prisoners and staff who suffer the consequences because they have no place else to go. [ 50 ] The court referred to the Supreme Court of Canada in May , supra and noted that that court did not find the Stinchombe rules of disclosure applicable and that the requirements of procedural fairness must be assessed contextually so that the individual knows the case he or she has to meet. [ 51 ] In Judge , supra, the court concluded that the applicant was aware of the case he had to meet and the court concluded that his transfer was therefore lawful.

The application for habeas corpus was dismissed. [ 52 ] The foregoing decisions are decisions at the trial level and while instructive, they are not strictly binding upon this court in regard to Mr. Severin’s application. [ 53 ] The decisions, in my view, are driven by the facts of each case being considered. [ 54 ] In Mr. Severin’s case, he knew when the incident occurred, that the incident was a stabbing of another inmate at JI, that he was alleged to be the aggressor, that the stabbing was from behind and into the victim’s head and chest, and further, that the situation arose from a provincial custody issue.

On this latter point, the CSC record indicates that the SIO did not research, in detail, if there were any recorded incidents that took place at provincial between these inmates. Mr. Severin was also told apparently that the victim said he was not involved and further, that the victim was not compliant or forthcoming with regard to the incident. [ 55 ] Mr. Severin complains he was not told who the victim was, nor where or when the incident occurred.

He complains he was not given any information as to the reliability or motivation of the “reliable sources.” [ 56 ] On the facts of this application, I am satisfied that the Respondent disclosed to Mr. Severin all of the information that it was required to and that he had sufficient information to know the case against him and to respond to it.

I am satisfied that the Respondent has met the onus in this application and that the transfer was lawful. [ 57 ] I would note that with regard to the non-disclosed information, and whether that is in compliance with s. 27(3) of the CCRA, the Respondent did not provide affidavit evidence as to why the Commissioner had reasonable grounds to believe that disclosure of such information would jeopardize the safety of the person, the security of a penitentiary or the conduct of any lawful investigation.

Rather, the Respondent relied on the caselaw, to which I have referred, which holds that it is important and necessary to protect confidential informants. In view of the decision of the British Columbia Superior Court in Khela and in particular, at para[51], I would suggest that the Respondent should consider, in future cases, addressing that point specifically in the evidence that it puts before the court on such applications. [ 58 ] In any event, for the purposes of Mr.

Severin’s case, I am satisfied as I have indicated that the Respondent met its lawful obligation of disclosure. [ 59 ] The application for habeas corpus is dismissed. Tranmer, J Released: January 7, 2011 CITATION : Severin v. AG (Canada), 2011 ONSC 37 COURT FILE NO.: 387/09 Kingston DATE: 2011Jan07

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: PATRICK SEVERIN Applicant – and – THE ATTORNEY GENERAL OF CANADA Respondent HABEAS CORPUS DECISION Tranmer, J Released: January 7, 2011