2014 ONSC 2898, 2014 ONSC 2898

CITATION : Jordan v. Canada (Attorney General), 2014 ONSC 2898 COURT FILE NO.: 504/13 DATE: 2014 April 25 ONTARIO SUPERIOR COURT OF JUSTICE (East Region) B E T W E E N : RYAN JORDAN Applicant - and - ATTORNEY GENERAL OF CANADA and CURTIS JACKSON, WARDEN OF COLLINS BAY and FRONTENAC INSTITUTIONS Respondent APPLICATION FOR HABEAS CORPUS DECISION By The Honourable Mr. Justice G.W. Tranmer on the 25th day of April, 2014 at KINGSTON, Ontario APPEARANCES:

Mr. R. Jordon Self-represented Ms. K. McLaine Counsel for the respondents 1 Jordan v AG Decision FRIDAY 25 APRIL 2014 D E C I S I O N TRANMER, J (orally): This is a decision based on the three points addressed, to this stage, in Mr. Jordan's application for habeas corpus . Mr. Jordan seeks an order of habeas corpus with certiorari in aid thereof, quashing the decision by Correctional authorities for his reclassification and emergency involuntary transfer from Frontenac Institution, minimum security, to Collins Bay Institution, medium security, on September 26 th , 2013.

At this stage of the proceedings before me, Mr. Jordan has made submissions in respect of two of several issues which he raises in his application. These issues are, firstly, that he was unlawfully denied the information that was relied upon by Correctional authorities to reclassify and transfer him, thus preventing him from knowing the case he had to meet. He also submits that the decision-makers - namely his parole officer, Stephanie King-Saunders, and the Warden, Curtis Jackson - were biased against him, or their actions and roles gave rise to a reasonable apprehension of bias against him.

I asked the respondent to make her submissions in regard to these two issues, at this point. When the Khela decision was released by the 2 Jordan v AG Decision (THE COURT - continued)... Supreme Court of Canada, on March 27 th , 2014 - Mission Institution v. Khela , 2014 SCC 24 - I requested Crown counsel to also address the issue of the reasonableness of the transfer decision in accordance with the Khela principles. Background Mr. Jordan was incarcerated in the federal penitentiary system at the end of November, 2003.

He had been sentenced to life imprisonment for two convictions of attempted murder, which involved the shooting of two persons. A Security Reclassification Scale calculation was done on or about August 16 th , 2012, and an Assessment for Decision was done on or about August 28 th , 2012, which resulted in a reclassification, and the recommended transfer from medium-security to Frontenac Institution, a minimum-security institution. The transfer did not occur until January 17 th , 2013, five months later.

By way of contrast, another Security Reclassification Scale calculation was done on September 27 th , 2013, and an Assessment for Decision done on October 7 th , 2013, following the emergency involuntary transfer of Mr. Jordan on September 26 th , 2013 from Frontenac Institution to Collins Bay Institution, a medium-security institution. It is common ground that this reclassification and transfer was precipitated 3 Jordan v AG Decision (THE COURT - continued)... not because of any conduct on the part of Mr.

Jordan, but as a result of a memorandum from the Assistant Commissioner, Correctional Operations and Programs, dated September 20 th , 2013, entitled “Review of Minimum Security Cases”. This memorandum was written as a result of a minimum-security inmate in Québec going unlawfully at large from the institution, and being found dead a couple of days later. That incident had nothing whatsoever to do with, and was in no way connected with, Mr. Jordan. The memorandum was, at no relevant time, disclosed to Mr. Jordan.

The memorandum directed that the reviews include analysis in the following areas: OSL results, including over-ride analysis where appropriate; history of escapes; impact of recent PBC and/or CSC negative decisions, as appropriate; proximity of eligibility dates; impact of any change in personal relationship status; impact of any change in financial status; citizenship; and security intelligence analysis. On Thursday, September 26 th , 2013, at about 4:00 p.m., Mr. Jordan, without any notice, was transferred from minimum security, to medium- security Collins Bay Institution.

Within an hour of arriving at Collins Bay Institution, he was placed in the highest level of security. This contrasted starkly with the positions of trust, privileges and routines that he had earned, and enjoyed, at Frontenac Institution. 4 Jordan v AG Decision (THE COURT - continued)... It is agreed that the following comprises all of the documentation and information that Mr.

Jordan was provided with, concerning the decision to reclassify him and transfer him from minimum security to medium security: • Security Reclassification Scale (SRS) - date and time locked September 27 th , 2013 • Notice of Emergency Involuntary Transfer Recommendation (NOEITR) - date and time locked September 30 th , 2013 • Assessment for Decision (A4D) - dated and time locked October 7 th , 2013 • Addendum A4D - date and time locked October 3 rd , 2013

• Referral Decision Sheet for Institutional Transfer (Involuntary) - (RDSFIT)- date and time locked October 18 th , 2013. This is the final decision of the Warden confirming the transfer. It is also common ground that Mr. Jordan filed a written rebuttal to the transfer on or about September 30 th , 2013 and had an in-person hearing with the Warden on or about October 7 th , 2013. The Issues On this application, the parties agree that Mr. Jordan has established a deprivation of liberty as a result of the emergency involuntary 5 Jordan v AG Decision (THE COURT - continued)... transfer to higher security.

Therefore, the onus lies on the respondent to establish that the transfer was lawful. Failure to Disclose Sufficient Information Mr. Jordan points out that, on the SRS, there is reference to one minor disciplinary offence, as opposed to none in August of 2012 [Question 2], and two recorded incidents as opposed to none in August of 2012 [Question 3]. He requested the details of the information relied on by the author of that calculation - his parole office, Ms. King-Saunders - but was not provided with that information.

Thus he was unable to rebut, clarify or correct whatever details or information were relied upon by the author. Crown counsel agrees that the records were not disclosed, although requested by Mr. Jordan, but she submits that the

summary of incidents set out in the A4D is sufficient lawful disclosure. The NOEITR states that "an emergency involuntary transfer took place on 2013-09-26 as a result of extensive case-conferencing, which followed the direction to review minimum-security inmates who meet certain criteria". Mr. Jordan was not provided with any documents or records referenced during such case-conferencing, nor with notes arising from, or information arising from, such case- conferencing.

Relevant to the issue of failure to disclose 6 Jordan v AG Decision (THE COURT - continued)... sufficient information is the fact that the SRS done in August of 2012 resulted in a score of 19.5, but an over-ride was applied, resulting in a reclassification from medium to minimum. The SRS done on September 27 th , 2013 resulted in a score of 20; no over-ride was applied. This resulted in a reclassification, and transfer to medium security. Mr. Jordan was not provided with information explaining these differing results. The respondent has not adduced evidence to explain the calculations.

The A4D, dated October 7 th , 2013 also refers to extensive case-conferencing prior to the transfer, which included the warden, Mr. Jackson, the parole officers, and others. Mr. Jordan was given no documentation or records referred to in the course of that case- conferencing, nor was he provided with notes from, or information exchanged during that extensive case-conferencing.

As a result of an order of this court, made March 20 th , 2014, the respondent produced an exchange of e-mails that the parole officer, Ms. King-Saunders, had with the Toronto police, commencing October 10 th , 2013, in which she requested further information about serious charges against Mr. Jordan that were not proceeded with, arising from an incident in 2000, and about information that the Toronto police had with relation to his affiliation with gangs.

The Correctional authorities had been aware that 7 Jordan v AG Decision (THE COURT - continued)... such information may exist since in or about November of 2003, when Mr. Jordan first came into the federal system. The Toronto police replied, initially, that he was negative for gangs and that, prior to his incarceration, he was charged with assault and firearms offences. Ms. King-Saunders persisted in requesting further details.

She telephoned and wrote to Toronto police, "I am trying to solidify my recommendation that he be reclassified as a medium-security offender, specifically with significant public-safety and escape concerns. I am especially interested in the views/concerns of police involved in the investigation of this case with respect to these factors". She continued, in her letter to police, "I suspect the police would have significant concerns that Mr. Jordan was released or absconded from custody, and that the police view him as being dangerous, and having major potential for further violence ...

While he is not flagged on the gang 'system', as per confirmation from (police), any additional information regarding Mr. Jordan's case/any gang affiliation would also be helpful". She told the police that there was some urgency to her request, as Correctional authorities were meeting on October 17 th to finalize the decision for Mr. Jordan's case. She informed the police, "The Warden has directed that I obtain as much information as possible for that time, to assist in making these decisions". 8 Jordan v AG Decision (THE COURT - continued)...

It is to be noted that, in his cross-examination, Warden Jackson said that the inquiry was made, "not to justify your transfer". He said the inquiry was not made to support the decision to transfer, "but to clarify"; "I wanted clarification". I noted that Ms. King-Saunders, who says she was directed by the Warden to get this detail, states that she required that information "to solidify" her recommendation to reclassify. The Warded was asked specifically, in cross-examination, whether he gave Ms. King-Saunders directions to contact the police.

He evaded answering the question directly, responding, "I remember discussing that". The information delivered by the police is very incriminating and prejudicial to Mr. Jordan. There are strong assertions against him, both in respect to his propensity for violence, and his affiliation to gangs. The information contained unproven allegations, incriminating Mr. Jordan in other violent crimes, and in gang membership. At no other time in the ten years that he was in federal custody was such detailed information sought by Correctional authorities, even though references to such information had existed on his file.

It is shocking in the extreme that such information was not disclosed to Mr. Jordan before the final decision of the Warden, on October 18 th , 2013. The Warden's reasons for his decision of October 18 th , 2013, as set out 9 Jordan v AG Decision (THE COURT - continued)... in the RDSFIT, stating, "this writer believes that, based on his violent history, actuarial tools, and the escape-related indicators, he does not meet the security requirements of the minimum-security institution", surely engaged the Warden's knowledge of this recent information from the Toronto police. He directed Mr.

King-Saunders to obtain that information, and he participated in the case

conference on October 17 th , 2013, when it was discussed, as set out below. Equally remarkable is that, pursuant to my court Order of March 20 th , 2014, the respondent produced case conference notes dated 2013- 10-17. This is a case conference of which Mr. Jordan was wholly unaware, until production of these notes on March 26 th , as a result of my order. The respondent advises that the Warden, Mr. Jackson, and Ms. King-Saunders, among others, participated in this case conference. The details of the information of the Toronto police were discussed in that case conference, among those people.

Other detailed information, concerning immigration reports, comments on escape potential, comments on public-safety potential, inaccurate program completion comments, comments about errors in the decision to transfer to minimum security in the first place, and comments about a 2011 Parole Board decision, were all discussed. This information was vitally important to Mr. Jordan knowing the case he had 10 Jordan v AG Decision (THE COURT - continued)... to meet, in regard to addressing the emergency involuntary transfer. It is shocking that such information was not provided to him by the Correctional authorities.

I cannot accept that Warden Jackson's statement that the only document that he had before him, in making his decision, as set out on the Referral Decision Sheet for Institutional Transfer (involuntary), date and time locked October 18 th , 2013, was the A4D, is a fulsome and truthful statement. The e-mails concerning the communications with the Toronto police, and these case-conference notes, are included in Exhibit 1, regarding Motion Record number 2, dated March 27 th , 2014. Bias or the Apprehension of Bias Mr.

Jordan complains that the Warden must have been biased against him, because there are significant written attacks against Mr. Jackson's conduct as Warden at Millhaven Institution contained in a statement of claim filed by Mr. Jordan against the Attorney General. Mr. Jordan advises that a Statement of Defence has been filed in that action, which remains outstanding. In his cross- examination, and his affidavit filed in these proceedings, Mr. Jackson swears that he had no knowledge about that lawsuit until counsel for the respondent in these proceedings mentioned it to him, in January of 2014. Mr.

Jordan also complains that Ms. King- 11 Jordan v AG Decision (THE COURT - continued)... Saunders is prejudiced against him. She is the author of the reports recommending his reclassification to medium security. In the A4D, she writes, "Mr. Jordan and this writer, as assigned parole officer, have not developed a positive relationship, likely largely as this writer's views of this case have not been consistent with the assessments of his most recent former parole officer". In the case- conference notes to which I have referred above, the prior SRS was criticized as in error.

Furthermore, I have already noted, above, the concerted efforts of both Mr. Jackson and Ms. King-Saunders to gain further information relevant to the reclassification from the Toronto police, although, for ten years, CSC had been aware of the existence of that information but not interested in it. Mr. Jordan submits that, if he has not proven bias, he has certainly established a perception of bias on the part of these two persons critically involved in the decision-making to transfer him.

On March 20 th , 2014, I ordered the Crown to produce copies of all the records that the Warden had referred to, or relied on, in making his decision. The response, stated in Exhibit 1, is, "The Warden has confirmed that the only document he had before him, in making his decision, was the Assessment for Decision". As I have already noted, I cannot accept that

12 Jordan v AG Decision (THE COURT - continued)... that is a fulsome and truthful answer, in view of his participation in the "extensive case-conferencing" referred to, above, his involvement in securing further information from the Toronto police, and his participation in the case-conferencing of October 17 th , 2013, as noted in Exhibit 1. This answer supports the suggestion of bias, or a perception of bias. Ms.

King-Saunders using the words, "to solidity my recommendation", and the Warden's efforts to avoid the word "solidify", rather characterizing it as, "to clarify", reasonably support the argument of the perception of bias, if not proof of an outright bias. Warden Jackson's answer, during cross-examination, "I remember discussing that", when asked if he had directed Ms. King-Saunders to contact the Toronto police, given her indication to the police that the Warden had "directed" her to do so, is also an indication of bias, and certainly a basis for a reasonable apprehension of bias. Mr.

Jordan also notes that, in the A4D, Ms. King-Saunders indicates, under the heading "Escape Risk", that, "he has a strong desire to return to the United States at the earliest opportunity, and minimal to no ties in Canada ... He presents a definite potential to escape from an institution that has no enclosure". In contrast, in writing her opinion supporting a denial of full parole, in February of 2013, she 13 Jordan v AG Decision (THE COURT - continued)... writes, "It is believed that, if Mr.

Jordan were to be released to the United States, there is a strong likelihood that he will again return to Canada illegally, and that he would not advise authorities. Mr. Jackson fled back to Canada three times; he has been incarcerated since the current offences, and has only recently been residing inside an open perimeter". Mr. Jordan submits that this example of Ms. King- Saunders, tailoring her opinion against him to suit the audience, demonstrates bias, or at least a basis for a reasonable apprehension of bias, on her part against him.

Reasonableness of the Decision The facts relevant to this issue include the following. The Crown agrees, and the evidence bears out, that the only reason a reclassification of Mr. Jordan was undertaken is because a Québec inmate walked away from a minimum-security institution, and then killed himself. It is common ground that, but for this wholly unrelated event, Mr. Jordan would not have been reclassified, or transferred from minimum security on September 26 th , 2013. The memorandum from the Assistant Commissioner, calling for the national review of minimum-security cases, was not disclosed to Mr.

Jordan at the relevant time. Although the transfer from medium to 14 Jordan v AG Decision

(THE COURT - continued)... minimum security took five months for the authorities to act upon, it is common ground that in Mr. Jordan's case, the authorities executed a reclassification, and an emergency involuntary transfer from minimum to medium in one day. The necessary official paperwork was prepared after the transfer. It is also relevant that, according to Crown counsel, as a result of the release of the Khela decision, March 27 th , 2014, prison authorities have undertaken a review of Mr. Jordan's current classification.

I was advised by Crown counsel, on April 13 th , that that re-assessment was under way, and that therefore she was not in a position to make substantive submissions on that date - which had been set, for that purpose, by the court. I was further advised by Crown counsel, on April 23 rd , that the re-assessment was on-going, but still not completed. As I have already noted, the documents and records concerning the incidents, Questions 2 and 3, referred to in the SRS of September 27 th , 2013, were not disclosed to Mr. Jordan, although he specifically requested them. There is a

summary of incidents in the A4D. It is not clear, on the evidence before me, that those are the same incidents used in the SRS. On the evidence before me, Mr. Jordan did nothing during his incarceration in the minimum-security institution to precipitate a reclassification and transfer. 15 Jordan v AG Decision (THE COURT - continued)... Ms. King-Saunders writes in the A4D that Mr. Jordan's relationship with her is not positive, likely largely as a result of her views of his case being not consistent with the assessments of his most recent parole officer. Despite no adverse conduct on the part of Mr.

Jordan in the interim, Ms. King-Saunders scores his Escape Risk as moderate, whereas the 2012 score was low. Also relevant is the Warden's "direction" to Ms. King-Saunders to secure further information from the Toronto police, concerning unproven allegations and gang affiliation, to "solidify" the reclassification to medium decision. Given the Warden's testimony, that included his refusal to acknowledge that he directed this to occur, and his unwillingness to accept that it was to "solidify" the decision, the court is left with a concern as to the bona fides of the actions of Ms. King-Saunders and the Warden.

The failure to disclose the e-mails to Mr. Jordan is of great concern to the court. The tone of those e-mails, and the strong allegations that, although unproven, the allegations are fact, are more condemning of Mr. Jordan than the reference made to this information in the A4D. He was entitled to know that the decision-makers sought out that information, and the specific allegations made against him. In my view, he was entitled to see those e-mails, and entitled to an opportunity to address those allegations 16 Jordan v AG Decision (THE COURT - continued)... before the Warden's final decision was made. The

summary, buried in the A4D, was not sufficient disclosure of the information sought and received from the Toronto police for the purpose of justifying the transfer. I find that it is also of significance that the Warden is not specifically named in the definition of Case Management Team, or as a participant in a Case Conference, as defined in Commissioner's direction 710-2, yet Warden Jackson participated in both case- conferencing events concerning Mr. Jackson.

I find that it is also of significance that the reclassification and transfer were characterized by prison authorities as an emergency involuntary transfer. Crown counsel submitted that the evidence demonstrates that that form of transfer was necessary because of fears that Mr. Jordan would act out, if normal transfer procedures were utilized. She submits that that is the basis for the emergency involuntary transfer treatment of Mr. Jordan. An emergency transfer is defined in CD 710-2 as, "the transfer of an offender on an involuntary basis, where there is an immediate risk to

the public, staff or offenders that cannot be managed within the current site". Crown counsel's rationale for the emergency involuntary transfer seems, to me, not to explain an "immediate risk that cannot be managed", so as to require such a transfer. There was no 17 Jordan v AG Decision (THE COURT - continued)... suggestion that Mr. Jordan was involved in an incident of violence, or of contraband. Indeed, Crown counsel concedes that there was no such conduct on his part. Indeed, there is no evidence of it. The 2013 A4D states, "If Mr.

Jordan were to escape, he would be considered a risk for public safety, given his history. Access to weapons, and the use of such weapons, would be a significant concern to authorities in terms of arresting him. Although he is not a high-profile offender at this time, this case has the potential for significant 'attention' in the event of an escape and/or re-offence". The A4D further states, "Based on all available information, it is concluded that there are current indicators of escape potential, and that he presents a definite potential to escape from an institution that has no enclosure.

Thus escape risk is assessed as moderate at this time". In contrast, in the 2012 A4D, authored by his prior parole officer, it is reported, "The case management team re-assesses the escape risk rating as low, based on CD710-6 Low. The inmate, (

a) has no recent serious escape, and there are no current indicators of escape potential; (

b) has no significant history of breaches". Crown counsel agrees, and the evidence before me bears out that there are no negative facts that bear on this issue of escape risk that occurred in the intervening period 18 Jordan v AG Decision (THE COURT - continued)... between these two opinions. Analysis Failure to Disclose At paragraph [81] of the Khela decision, the Court reviews the applicable legislation in regard to inmate transfers.

The Court specifically states: ...if the Commissioner or a designated staff member determines that an inmate must be transferred immediately on an emergency and involuntary basis, the inmate is nonetheless entitled to make representations regarding the transfer. Section 27(1) of the CCRA provides that where an inmate is entitled by the regulations to make such repre- sentations, the decision-maker must

give him or her "all the information" to be considered in taking a final decision regarding the transfer, subject only to s. 27(3). Even inmates transferred on an emergency and invol- untary basis are therefore entitled to all the information considered in the Warden's decision-making process, or a

summary thereof, except where s. 27(3) applies. The requirement that the inmate be provided with "all the inform- ation" can be satisfied by providing him or her with a

summary of the inform- ation. Continuing at paragraph [82]: In order to guarantee fairness in the process leading up to a transfer decision, s. 27(1) provides that the inmate should be given all the inform- ation that was considered in the 19 Jordan v AG Decision (THE COURT - continued)... taking of the decision, or a

summary of that information. This disclosure must be made within a reasonable time before the final decision is made. The onus is on the decision-maker to show that s. 27(1) was complied with. The respondent in Mr. Jordan's case does not seek to justify non-disclosure of any information on the basis of sensitivity, under s. 27(3). I find that the Warden, in making the transfer decision, considered information that he did not disclose to Mr. Jordan. This consists of the items referenced in Questions 2 and 4 of the SRS, the e-mails to and from the Toronto police - which, in my view, required to be

seen, rather than summarized, given the persistence in requesting details, and the extremely negative, unproven allegations elicited. The respondent also failed to provide information to explain how or why an over-ride would apply to an SRS score of 19.5, but not one of 20. In addition, as in Khela , the respondent has failed to satisfy the onus on it, in failing to demonstrate that the scoring matrix for the SRS, used by Warden Jackson in his decision, was fully disclosed to Mr. Jordan. "Without access to the scoring matrix, and information on the methodology used to calculate the total score, (Mr.

Jackson) was not in a position to challenge the information relied upon for the calculation, or by the method by which the total score was arrived at, and therefore could not properly challenge the 20 Jordan v AG Decision (THE COURT - continued)... "override decision". Khela , paragraph [97] . I find that the Crown has not satisfied the onus upon it to establish that, insofar as the disclosure requirement is concerned, prison authorities acted lawfully. Bias or Apprehension of Bias In Laver v.

Swrjeski , ONCA 294, the Ontario Court of Appeal set out the legal framework for the assessment of bias, in quoting from Martin v. Sansome , 2014 ONCA 14 , as follows. Bias is a predisposition to decide an issue or cause in a certain way that does not leave the judicial mind open and impartial ... The burden of estab- lishing bias is on the party arguing that it exists. The test ... is long-established: What would an informed person, viewing the matter realistic- ally and practically, and having thought the matter through, conclude?

Would he think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly? The bias, or apprehension of bias, of concern in this case, is not whether the Warden knew about the Statement of Claim. He denies that, under oath. Of concern are the actions of Ms. King-Saunders and Warden Jackson to which I have already referred. There is clearly a reasonable apprehension of bias arising on the facts of this case, from the actions of these two Correctional personnel, the decision-makers, including: the words used 21 Jordan v AG Decision

(THE COURT - continued)... by Ms. King-Saunders in seeking information from the Toronto police, where she told the police how they felt about Mr. Jordan - as I have already quoted above, she said to the police, "I suspect the police would have significant concerns if Mr.

Jordan was released, or absconded from custody, and that the police view him as being dangerous, and having major potential for further violence"; the Warden's refusal to admit that he directed that inquiry, and his position that he sought such information only to clarify, not to solidify the decision to reclassify; the Warden's refusal to admit he directed Ms. King-Saunders to contact Toronto police - "I recall discussing that"; the withholding of the actual e-mails from Mr. Jordan, in the face of their obvious use in supporting the decision to reclassify; and Ms.

King-Saunders’ inconsistency as to whether the escape concern is that he will return to the United States or to Canada. Also of relevance is the fact that the voluntary transfer to minimum security inexplicably took five months to accomplish, whereas the transfer to medium was executed on an emergency, involuntary basis, based on nothing to do with Mr. Jordan, rather on the actions of an inmate in Québec. On this point, I find that a reasonable apprehension of bias, on the part of the parole officer and the Warden, has been established, on the evidence before me.

This is the second 22 Jordan v AG Decision (THE COURT - continued)... basis upon which to find that the transfer of Mr. Jordan was unlawful. R. v. Latham , [2000] OJ No. 3720 (SCJ) Reasonableness of the Decision At paragraph [52] of the Khela decision, the Supreme Court of Canada says: ...it is clear that a review for lawfulness will sometimes require an assessment of the decision's reasonableness. At paragraph [65], the Court says: Reasonableness should therefore be regarded as one element of lawful- ness.

At paragraph [72] the Court states: The above reasoning leads to the conclusion that an inmate may challenge the reasonableness of his or her deprivation of liberty by means of an application for habeas corpus . ... "Reasonableness" is therefore a "legitimate ground" upon which to question the legality of a deprivation of liberty in an

application for habeas corpus . Continuing at paragraph [74], the Court states: 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 possi- bility that it may also be unreasonable on other grounds. Deference will be 23 Jordan v AG Decision (THE COURT - continued)... shown to a determination that evidence is reliable, but the authorities will nonetheless have to explain that determination.

In paragraph [77], the Court states: Once the inmate has demonstrated that there was a deprivation of liberty, and casts doubt on the reasonableness of the deprivation, the onus shifts to the respondent authorities to prove that the transfer was reasonable, in light of all the circumstances. At paragraph [75] of the decision, the Supreme Court reminds judges of first instance that: A review to determine whether a decision was reasonable, and therefore lawful, necessarily requires deference. ... An involuntary transfer decision

is nonetheless an administrative decision made by a decision-maker with expertise in the environment of a par- ticular penitentiary. To apply any standard other than reasonableness in reviewing such a decision could well lead to the micro-management of prisons by the courts. I am also mindful, and have instructed myself on the cautions set out in paragraph [76] of the Khela decision. I have already set out, in these reasons, the facts that I find to be relevant to this issue of reasonableness of the decision.

I also find that the respondent has not demonstrated that the analysis directed by the memorandum mandated the decision in issue. Given the failure to disclose, particularly the e-mails, the reasonable apprehension of bias, 24 Jordan v AG Decision (THE COURT - continued)... and the facts I have found under the heading, "Reasonableness of the Decision", I have no hesitation in finding that the Crown has not met the onus upon it to prove that the decision was reasonable in light of all the circumstances. Ms.

King-Saunders and Warden Jackson sought out information thirteen years old, unproven - indeed, not pursued by the Crown, at the time - known to CSC for ten years, to justify an emergency involuntary transfer after the fact, when Mr. Jordan had done nothing to precipitate or warrant such an enquiry. They then did not disclose that they had done that. Result On the three bases that have been advanced, to this point, in Mr. Jordan's application, I find that the Crown has not satisfied the onus upon it to prove that the decision to transfer Mr. Jordan to medium security was lawful. Mr.

Jordan's application for habeas corpus is hereby granted. That decision, therefore, is null and void and is hereby quashed. I therefore order Mr. Jordan transferred to minimum security immediately. >>>>>>>>>> <<<<<<<<<< 25 Form 2 Certificate of Transcript Evidence Act , ss. 5(2)

I, Jodi Mullen, certify that this document is a true and accurate transcript of the recording of: Jordan v Attorney General et al heard in the Superior Court of Justice, held at 5 Court Street, Kingston, taken from recording no: 0911_COUOD_20140425_10_TRANMEG which has been certified in Form 1. __________________________________ Certified: 01 May 2014