IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Lyons v. Mission Institution (Warden), |
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2012 BCSC 694 |
Date: 20120514
Docket: 26028
Registry: Vancouver
Between:
Donald Lyons
Applicant
And
Warden of Mission Institution
Respondent
Before: The Honourable Mr. Justice Butler
Reasons for Judgment
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Counsel for the Applicant: |
Donna M. Turko |
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Counsel for the Respondent: |
Banafsheh Sokhansanj |
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Place and Date of Hearing: |
Vancouver, B.C. |
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Place and Date of Judgment: |
Vancouver, B.C. |
[1] Mr. Lyons applies for an order in the nature of habeas corpus to challenge his involuntary transfer from the Ferndale Institution, a minimum security prison, to the medium security Mission Institution. In Mr. Lyons’ submission, his current detention in a more restrictive setting is unlawful due to a failure by the prison authorities to comply with the principles of procedural fairness and the statutory requirements of their jurisdiction regarding involuntary transfers. His principal complaint is that the administrators of Ferndale Institution failed to provide adequate disclosure of the grounds for the transfer as required by s. 27 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA).
[2] Mr. Lyons seeks an order directing that he be returned to a minimum security penitentiary. Alternatively, he seeks an order directing disclosure of the grounds for the transfer.
[3] In these reasons I set out the background to the application and identify the legal issues arising on these facts. My analysis follows a summary of the parties’ positions. I have concluded that the decision to reclassify and transfer Mr. Lyons was within the Warden’s jurisdiction, and made in a manner consistent with the principles of procedural fairness and the Warden’s statutory duties. I further conclude that the decision was a reasonable one. Accordingly, Mr. Lyons’ application is dismissed.
[4] Two elements are considered in an application for habeas corpus: i) there must be a deprivation of liberty; and ii) the deprivation must be unlawful. The onus of establishing the deprivation of liberty rests with the applicant. If the applicant is successful, the onus shifts to the detaining authority to establish the lawfulness of that deprivation. A deprivation of liberty will only be lawful if it occurred in a manner consistent with the Charter, the common law duty of procedural fairness, and the administrative decision-maker’s statutory jurisdiction: May v. Ferndale Institution, 2005 SCC 82 at paras. 74-77.
[5] In principle, habeas corpus is not a discretionary remedy. Rather, it issues as of right upon proper grounds being shown – i.e., if the deprivation of liberty is found to be unlawful. The court may only properly refuse relief if there is no legal basis for the application: May at para. 33.
[6] Until recently, there was some uncertainty as to whether, on an application for habeas corpus, it was open to this Court to consider the reasonableness of the subject decision or whether such an inquiry was within the exclusive statutory jurisdiction of the Federal Court. The Court of Appeal addressed the issue in Khela v. Mission Institution (Warden), 2011 BCCA 450, leave to appeal to SCC requested, wherein it rejected the proposition that the nature and scope of habeas corpus does not engage the reasonableness of the subject decision. Following an extensive review of the case law and relevant academic literature, Chiasson J.A. concluded that a court may consider the reasonableness of a reclassification and transfer decision in determining whether the resulting deprivation of liberty was unlawful. He stated at para. 93:
On an application for habeas corpus a court may consider the reasonableness of a decision in determining whether a deprivation of liberty was lawful, applying the approach articulated by the Supreme Court of Canada in Dunsmuir, recognizing that decisions of the administrators of penal institutions are entitled to considerable deference. Courts, in determining the scope of such considerations, should take into account the deference afforded to the decisions of those charged with the administration of penal institution and the parallel jurisdiction of the Federal Court to review and quash such decisions.
[7] There is now ample support in the case law for the conclusion that this Court’s jurisdiction is broad enough to inquire into the reasonableness of the decision to determine whether the deprivation of Mr. Lyons’ residual liberty was unlawful: see, for example, Mapara v. Ferndale Institution (Warden), 2007 BCSC 100; Cooper v. Ferndale Institution (Warden), 2009 BCSC 1894; Caouette v. Mission Institution, 2010 BCSC 769; and Khela v. Mission Institution (Warden), 2011 BCSC 577 (Khela No. 2).
[8] Mr. Lyons is currently serving a six-year aggregate sentence for various offences relating to drug trafficking and possession of prohibited or restricted weapons. These offences arose from his involvement as a high-ranking and trusted member of the “Independent Soldiers”, a criminal organization based in the Kelowna area.
[9] On January 12, 2012, Mr. Lyons was involuntarily transferred to Mission Institution and placed in administrative segregation. The transfer was ordered by the Warden of Ferndale Institution after the RCMP informed the Correctional Service of Canada (“CSC”) of an imminent threat to the safety of Mr. Lyons. According to the RCMP, the threat was serious and extended to those in Mr. Lyons’ company, were he to be released. The RCMP considered the threat to be credible and advised the CSC to take immediate action. They also advised that the nature of the threat was sufficient to trigger the RCMP’s common law duty to warn Mr. Lyons directly. Accordingly, on January 26, 2012, two members of the RCMP attended Mission Institution and met with Mr. Lyons privately to explain the nature of the threat. Their discussion lasted approximately 30 minutes.
[10] On February 6, 2012, Mr. Lyons’ case management team (CMT) reviewed his current security requirements and produced a report (the “Assessment for Decision”) recommending that his security classification be raised to “medium” and that he be involuntarily transferred to a medium security institution. The CMT concluded that in light of the present threat to Mr. Lyons’ safety and those around him, his “public safety” factor should be elevated from “low” to “moderate” and that he could no longer be safely managed at Ferndale Institution. The CMT explained its conclusions as follows:
Mr. Lyons is recognized for his positive progress in achieving the objectives of his Correctional Plan while incarcerated. Unfortunately, the receipt of security intelligence information indicating there is a current extreme threat to his safety presents significant barriers to his risk management within a minimum security facility. Alternative options for managing Mr. Lyons’ risk within a minimum security facility have been exhausted. Due to the serious nature of the present threat, Mr. Lyons’ risk cannot be safely managed within a minimum security facility. Ferndale Institution is an open perimeter facility with accessibility to the public. Consultation with William Head Institution also indicates Mr. Lyons’ risk cannot be safely managed due to similar concerns. Mr. Lyons is currently in administrative segregation at Mission Institution and a transfer to a medium security facility is the least restrictive measure to manage the risk he currently presents to public safety. Mr. Lyons does not have any known incompatibility concerns at Mission Institution.
The CMT believes it is preferable for Mr. Lyons to reside at a minimum security institution to enhance his eventual reintegration; however, public safety remains the mandate of the Correctional Service of Canada. Due to the current concerns surrounding Mr. Lyons’ risk to public safety, he can no longer be managed at Ferndale Institution. A transfer to a medium security institution is the only available option to provide the degree and kind of custody and control necessary to respond to the risk that Mr. Lyons currently presents.
[11] Following this recommendation, Mr. Lyons received a Notice of Involuntary Transfer Recommendation along with copies of the Assessment for Decision and a Security Reclassification Scale (SRS). On February 7, 2012, Mr. Lyons’ counsel submitted a written response to the Notice of Involuntary Transfer Recommendation. In the response, Mr. Lyons expressed doubts regarding the validity of the threat and requested further information about the “informant”. Mr. Lyons stated that he was certain he did not have any enemies inside or outside the prison, and he did not have any outstanding debts.
[12] On February 14, 2012, a Warden’s Board was convened to discuss the reclassification and involuntary transfer recommendations regarding Mr. Lyons. On February 15, the Warden of Ferndale Institution reclassified Mr. Lyons to medium security and approved his transfer to Mission Institution. The material portions of her decision state as follows:
In summary, on 2012-01-12 information was received from a completely reliable source indicating an external threat towards Mr. LYONS safety. The threat was considered imminent and involved anyone to be in his company. Since the initial information was shared with Mr. LYONS members of both RCMP and Gang Task Force completed the “Duty to Warn” process. As a result of this information Mr. LYONS was placed in Segregation and has remained there.
The rebuttal received on 2012-02-07 indicated concerns with the information that was shared with Mr. LYONS. Specifically it states that authorities must disclose as much information to Mr. LYONS without identifying the informant; a bald allegation is inadequate for Mr. LYONS to provide a meaningful response. The rebuttal outlines a number of questions that need to be answered in regards to the information, risk towards other persons, and threat towards placement at minimum security. Noted within the rebuttal is Mr. LYONS’ own doubt about the validity of the threat. The rebuttal concludes once proper disclosure is received, further submissions on this matter will be provided.
In response to the rebuttal I note that CSC has provided Mr. LYONS [with] all the information we currently have. Should Mr. LYONS require further information he needs to contact the RCMP.
...
In regards to the rating of moderate in Public Safety I concur. Mr. LYONS is a high ranking member of the Independent Soldiers (IS) Security Threat Group (STG). Although he has vocalized his disaffiliation with this STG, the extent of his involvement cannot be underestimated. The community dynamics surrounding this STG and other affiliated groups has become a safety issue for the Lower Mainland; the threat towards Mr. LYONS is consistent with recent community incidents. I recognize Mr. LYONS has made progress against his Correctional Plan and managed a transfer to minimum security. That being said the protection of public is CSC’s priority. Given Mr. LYONS’ history, reliability of the information provided to CSC, and current STG violence within the community I believe a rating of moderate is appropriate in the area of Public Safety.
Although Mr. LYONS and his counsel have requested further information, I am satisfied that the information that I have to make my decision is reliable and persuasive. In [the] interest of public safety, and in consideration of all the available information I am satisfied that Mr. LYONS’ continued placement at minimum security is no longer appropriate.
As such, and given the serious consequences to both the safety of the institution and the public in general, I am approving the involuntary transfer to Mission Institution. I concur with the recommendations of the CMT with respect to the medium security rating. ...
Commissioner’s Directive (CD) 706 gives clear instruction as to what the objective of minimum security is. Minimum-security Institution should contain those inmates who pose limited risk to the safety of the community by minimally restricting their freedom of movement, association and privileges. It is my opinion that Mr. LYONS does not meet these criteria and therefore I am approving the involuntary transfer to Mission Institution and increasing his overall security classification to medium security. In this decision I have considered the state of health and health care needs of this inmate.
[13] On March 19, 2012, Mr. Lyons filed this application for relief in the nature of habeas corpus with or without certiorari-in-aid.
[14] The respondent concedes that the decision to transfer Mr. Lyons to a more restrictive institutional setting resulted in a deprivation of his residual liberty. Accordingly, the issue on this application is whether that deprivation was lawful. The parties’ submissions raise three issues relating to the question of lawfulness:
a) Was the decision to reclassify Mr. Lyons to medium security and transfer him to Mission Institution within the Warden’s jurisdiction?
b) Was the decision made in a manner consistent with the principles of procedural fairness and the Warden’s statutory duties? and
c) Was the decision reasonable?
[15] I will address each of these issues in turn, after setting out the relevant legislative framework.
[16] The jurisdiction to authorize the transfer of inmates between penitentiaries arises from s. 29 of the CCRA:
29. The Commissioner may authorize the transfer of a person who is sentenced, transferred or committed to a penitentiary to
(a) another penitentiary in accordance with the regulations made under paragraph 96(d), subject to section 28 ...
[17] Section 5(1)(b) of the Corrections and Conditional Release Regulations, SOR/92-620 (CCRA Regulations), provides that designated CSC staff members – such as the Warden – may exercise the powers, perform the duties or carry out the functions that are assigned to the Commissioner under s. 29 of the CCRA.
[18] Section 28 sets out the criteria applicable to the selection of penitentiaries for the purposes of a transfer. That section provides:
28. Where a person is, or is to be, confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which the person is confined is one that provides the least restrictive environment for that person, taking into account
(a) the degree and kind of custody and control necessary for
(i) the safety of the public,
(ii) the safety of that person and other persons in the penitentiary, and
(iii) the security of the penitentiary;
(b) accessibility to
(i) the person’s home community and family ...
[19] The jurisdiction to authorize a transfer is also subject to a significant disclosure obligation under s. 27:
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 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.
(2) Where an offender is entitled by this Part or the regulations to be given reasons for a decision taken by the Service about the offender, the person or body that takes the decision shall, subject to subsection (3), give the offender, forthwith after the decision is taken, all the information that was considered in the taking of the decision or a summary of that information.
[20] Section 27(3) creates a limited exception to this disclosure obligation in the following circumstances:
(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).
[21] Section 30 requires the CSC to assign each inmate a security classification of maximum, medium or minimum in accordance with the CCRA Regulations. Sections 17 and 18 of the CCRA Regulations set out the governing criteria for each of these classifications and the factors to be taken into consideration in determining an inmate’s security classification:
17. The Service shall take the following factors into consideration in determining the security classification to be assigned to an inmate pursuant to section 30 of the Act:
(a) the seriousness of the offence committed by the inmate;
(b) any outstanding charges against the inmate;
(c) the inmate’s performance and behaviour while under sentence;
(d) the inmate’s social, criminal and, if available, young-offender history and any dangerous offender designation under the Criminal Code;
(e) any physical or mental illness or disorder suffered by the inmate;
(f) the inmate’s potential for violent behaviour; and
(g) the inmate’s continued involvement in criminal activities.
18. For the purposes of section 30 of the Act, an inmate shall be classified as
...
(b) medium security where the inmate is assessed by the Service as
...
(ii) requiring a moderate degree of supervision and control within the penitentiary; and
(c) minimum security where the inmate is assessed by the Service as
...
(ii) requiring a low degree of supervision and control within the penitentiary.
[22] In addition to the criteria described in the CCRA Regulations, the CSC has issued Commissioner’s Directives (CDs) explaining the distinctions between the various levels of institutions. CD 706 states as follows regarding minimum and medium security institutions:
MINIMUM SECURITY INSTITUTIONS
Objectives
8. The minimum security institution will:
a. contain those inmates who pose limited risk to the safety of the community by minimally restricting their freedom of movement, association and privileges; ...
...
Security
10. The perimeter of a minimum security institution will be defined but not directly controlled. Inmate movement and association will be regulated but with little or no staff supervision. Arms will not be retained in the institution.
MEDIUM SECURITY INSTITUTIONS
Objectives
11. The medium security institution will:
a. contain those inmates who pose a risk to the safety of the community in an environment which promotes and tests responsible, socially-acceptable behaviour through moderately restricted freedom of movement, association and privileges; ...
...
Security
13. The perimeter of a medium security institution will be well-defined, secure and controlled. Inmate movement will be regulated and generally supervised. Although arms will be retained in the institution, they will not normally be deployed within the perimeter.
[23] Further, CD 566-8 explains that in contrast to medium and maximum security institutions, where all visitors are subject to routine searches, visitors to minimum security institutions are only searched periodically.
[24] The principles that guide the CSC in performing its statutory mandate are set out in s. 4 of the CCRA. The paramount consideration is the protection of society. Pursuant to s. 4(d), the CSC is required to “use the least restrictive measures consistent with the protection of the public, staff members and offenders”.
[25] Mr. Lyons submits that the Warden’s decision approving his reclassification to medium security and involuntary transfer to Mission Institution was made without his consent and “without cause under law”. While the basis for this submission is unclear, Mr. Lyons appears to suggest that the Warden acted without jurisdiction.
[26] I reject the argument insofar as it is directed at the narrow issue of whether the Warden had the statutory authority to make the decision; there is no question that she did. Section 29 of the CCRA confers jurisdiction upon the Commissioner and designated CSC staff to authorize the transfer of inmates between penitentiaries. Under s. 30, the Warden is required to assign a security classification to Mr. Lyons in accordance with the criteria stipulated in the CCRA Regulations.
[27] The relevant provisions in the CCRA clearly establish that the protection of society is the paramount consideration for the CSC with respect to correctional decisions (s. 4(a)). The receipt of information pertaining to an imminent and extreme threat to the safety of an inmate and those around him directly engages the Warden’s statutory mandate to ensure the protection of the public, staff members and offenders. Moreover, upon her receipt of this information, the Warden was required by s. 28 to take all reasonable steps to ensure that Ferndale Institution provided the degree and kind of custody and control necessary for the safety of the public, the safety of Mr. Lyons and other persons in the penitentiary, and the security of the penitentiary. It follows that if the Warden concluded that Mr. Lyons could no longer be safely managed at Ferndale Institution, it was open to her to exercise her express statutory jurisdiction under s. 29 to authorize his reclassification and transfer to another institution that could provide the requisite protections.
[28] Mr. Lyons’ principal contention is that the Warden failed to provide adequate disclosure of the grounds for his reclassification and transfer, such that he was unable to provide a meaningful response. He submits that a significant amount of information has been withheld in this case, either by the CSC or the RCMP. In either case, Mr. Lyons argues that the Warden’s failure to provide him with this information constituted a denial of procedural fairness and a breach of the requirements of her statutory authority. In his submission, if the Warden was not in possession of the additional information that he requested, she was obliged to seek and provide this information to him before proceeding to approve his reclassification and transfer. Her failure to do so, he argues, was inconsistent with the high standard of disclosure applicable to such decisions.
[29] The respondent submits that the applicable disclosure requirements were met, as the Warden gave Mr. Lyons all of the information that she used in making her decision. To the extent that any information was withheld, the respondent says that such information was not pertinent to the Warden’s decision.
[30] The respondent argues that Mr. Lyons’ position misconceives the circumstances of the case by comparing it to those in which the CSC withheld information provided by confidential prison informants. Here, the Warden relied on information provided by the RCMP and relayed all of this information to Mr. Lyons. Moreover, if Mr. Lyons required additional information, he had the opportunity to make this request to the RCMP himself when they met with him pursuant to their duty to warn him of the threat. Further, the respondent submits that the Warden could not have obtained additional information, as the RCMP advised that further disclosure would jeopardize an ongoing criminal investigation. Even if she could have obtained such information, the respondent says that such information would obviously fall squarely within the exception to the Warden’s disclosure obligation set out in s. 27(3)(c) of the CCRA.
[31] Both the CCRA and the common law duty of procedural fairness require disclosure of the information upon which a decision to reclassify and transfer an inmate is to be made so that the inmate has an adequate opportunity to respond. The non-disclosure of such information can result in a loss of jurisdiction for the decision-maker, thereby rendering the deprivation of the inmate’s liberty unlawful.
[32] The Supreme Court of Canada addressed the extent of disclosure required for an involuntary transfer in May. Justices LeBel and Fish, writing for the majority, stated as follows at para. 92:
In the administrative context, the duty of procedural fairness generally requires that the decision-maker discloses the information he or she relied upon. The requirement is that the individual must know the case he or she has to meet. If the decision-maker fails to provide sufficient information, his or her decision is void for lack of jurisdiction. As Arbour J. held in Ruby, at para. 40:
As a general rule, a fair hearing must include an opportunity for the parties to know the opposing party’s case so that they may address evidence prejudicial to their case and bring evidence to prove their position ...
[33] While the Court held that the standard of disclosure required in the administrative context is less than that required for a criminal proceeding, the majority nonetheless described the disclosure required by s. 27(1) as being “onerous” and “extensive” (paras. 95-96).
[34] Since May was decided, a number of cases in British Columbia have considered the standard of disclosure required for involuntary transfers. In Khela, the court noted that “the law in this province appears not to be settled with respect to the scope of the Warden’s disclosure obligations...” (para. 31). Nevertheless, the general principles regarding a Warden’s disclosure obligation as set out in May and subsequent cases provide sufficient guidance to dispose of the issue in this case. Those principles include:
a) Although the requirements of s. 27(1) are onerous and extensive, “they do not in every circumstance require the disclosure of every item of information which grounds the allegation”. This follows from the fact that s. 27(3) allows for the disclosure of a “summary of the information” as an alternative to disclosure of “all the information to be considered in the taking of the decision”: Kinnear v. Kent Institution (9 October 2008), Vancouver 24711 (B.C.S.C.).
b) Where only a summary of the information was provided pursuant to s. 27(3), the applicable test to determine if the disclosure was sufficient is whether there was enough information provided to enable the applicant to rebut the allegations against him: Athwal v. Ferndale Institution, 2006 BCSC 1386.
c) It is not every instance of non-disclosure that results in the loss of a Warden’s jurisdiction. The question is whether the information that was provided is sufficient for the inmate to know the case he has to meet: Lising v. Kent Institution, 2007 BCSC 248, appeal dismissed on other grounds 2008 BCCA 10.
d) There is a distinction between information regarding the substance and details of events, and information relied upon in arriving at a decision. The onerous and extensive duty of disclosure only applies to the latter. In Khela, at para. 43, Chiasson J.A. explained the distinction:
The Warden asserts that the judge erred in stating that to meet the onus of justifying the transfer as lawful, the Warden "must establish that [she] provided Mr. Khela, to the greatest extent possible, the substance and details of the events and the information that led to the decision" (para. 46). I tend to agree with the Warden that the statement that she was obliged to provide the substance and details of the events to the greatest extent possible overstates her obligation. The common law requirement was that she provide only sufficient information to allow Mr. Khela to know the case he had to meet, but I do not think the judge erred in concluding that the Warden was obliged to provide to the greatest extent possible the information that she considered in reaching her decision.
e) A Warden is entitled to rely on information provided to her and obliged to hear and consider the inmate’s position. However, a Warden is not required to undertake an independent investigation into a contested incident: Foster v. Mission Institution (Warden), 2011 BCCA 451 at para. 14, leave to appeal to SCC requested.
f) A court may receive in evidence and review a confidential affidavit submitted by the institution for the purpose of comparing the extent of the disclosure to the inmate with the information that was available for disclosure. The affidavit remains sealed and is not available for viewing by the applicant or his counsel: Lising at paras. 30-31; and Athwal.
[35] I conclude on the principles discussed above that the decision in the instant case was taken in compliance with the principles of procedural fairness and the Warden’s statutory duties. Here, the Warden disclosed all of the information that she considered in arriving at her decision.
[36] Section 27(1) plainly requires disclosure of “all the information to be considered in the taking of the decision or a summary of that information” so that the inmate will have an opportunity to respond to the recommendation for reclassification and transfer. In this case, the record indicates that the Warden’s decision was based solely on the information contained in the Assessment for Decision, including the information provided by the RCMP.
[37] As I have already noted, Mr. Lyons was provided with the Notice of Involuntary Transfer Recommendation on the day the recommendation was issued, along with copies of the Assessment for Decision and a Security Reclassification Scale. Following the practice described in Athwal and Lising, the respondent provided the Court with a confidential affidavit setting out the information that the CSC received from the RCMP so that the Court can compare what was disclosed to Mr. Lyons with what was available to be disclosed. I have reviewed the affidavit and note that there is no significant discrepancy between the information contained in the confidential affidavit and the information that was disclosed to Mr. Lyons. The unusual feature of this case is that the CSC received very little information from the RCMP. No relevant information received from the RCMP was withheld from Mr. Lyons.
[38] As the Supreme Court of Canada stated in May, the basic test is whether the applicant received sufficient disclosure to know the case he or she has to meet. Here, the case against Mr. Lyons related to the increased security risk that he presented as a result of the extreme threat to his safety and to those in his company. Therefore, the question is whether the information provided to Mr. Lyons was sufficiently detailed to allow him to rebut the allegation that he posed an increased security risk: Athwal.
[39] Mr. Lyons relies on Paul v. Canada (Attorney General), 2012 FC 64; and Bryk v. Attorney General of Canada (11 February 2009), Toronto T-1325-08 (FC, Prothonotary) in support of his assertion that the information provided to him fell short of the standard for adequate disclosure. The inmates in both of these cases were alleged to have participated in schemes relating to the importation and sale of prohibited substances within their respective correctional institutions. In both cases, as in Khela and Foster, the information regarding the inmates’ involvement in these activities came from confidential informants.
[40] In Paul, the applicant claimed he received no information other than the allegation that, on two occasions, he supposedly organized the smuggling of tobacco into the institution with the help of a CSC staff member. As a result of this limited disclosure, he argued, he was unable to defend himself against the allegation beyond simply denying his involvement. The Court concluded that the lack of detail in the notice of involuntary transfer resulted in a breach of procedural fairness and cited the decision of the Federal Court of Appeal in Demaria v. Regional Classification Board, [1987] 1 F.C. 74, [1986] F.C.J. No. 493 at para. 9 (C.A.):
In the absence of anything more than the bald allegation ... the appellant was reduced to a simple denial, by itself almost always less convincing than a positive affirmation, and futile speculation as to what the case against him really was.
[41] The Court found that the lack of information regarding the dates, places or circumstances of the incidents, or the parties involved, constituted a “major deficiency” in the notice (para. 49).
[42] In Bryk, the decision to reclassify and transfer the applicant was based on a Security Intelligence Report linking him to the financing, importation and sale of drugs within the subject institution. The conclusions in the Report were based on what the respondent submitted was reliable confidential information from within the institution. Bryk was provided with a summary of the allegations against him, which outlined the substance of the allegations and the dates that the information was received. The summary did not indicate the source of the allegations, nor did it provide any details regarding the alleged transactions or the dates when they were supposed to have taken place. The Prothonotary concluded that the CSC failed to observe the principles of procedural fairness because of the inadequacy of the information in the summary. In doing so, she commented on the difficulty in striking the delicate balance between the CSC’s responsibility to protect confidential informants and an inmate’s right to procedural fairness regarding a reclassification and transfer decision.
[43] Of course, the present case is distinguishable from cases like Khela, Foster, Paul and Bryk, where the recommendations for reclassification and transfer are based on information provided by confidential prison informants concerning the applicants’ alleged involvement in illicit activities within the subject institutions. Here, the information giving rise to the recommendation was provided by the RCMP, an external law enforcement agency. The information concerned an imminent, external threat to the safety of the inmate and those around him. The case against Mr. Lyons arises from his prior involvement in organized crime in British Columbia, as opposed to any allegations of misbehaviour or wrongdoing during his incarceration. As such, the risk to public safety is different from, and broader than the risk that arises within the institution as between informants and others.
[44] While this case appears to have some similarity to the cases concerning prison informants, it is fundamentally different because of the nature of the investigation and the source of the information which triggered the decision to transfer Mr. Lyons. The investigation that uncovered the allegations was conducted by the RCMP, rather than the CSC. Further, the informants and the information giving rise to the extreme threat are unknown to the CSC. However, as far as the CSC was concerned, its source, the RCMP, was known and highly reliable.
[45] Although the information in the Notice of Involuntary Transfer is limited, I find that the case against Mr. Lyons was clearly communicated to him. The substance of the case was that the CSC was advised by the RCMP of a current and extreme threat to the safety of Mr. Lyons and those around him, which gave rise to significant concerns regarding the CSC’s ability to manage this risk within a minimum security facility. I have no hesitation in concluding that the Warden was entitled to rely on the information provided by the RCMP. The fact that the information was assessed by the RCMP and considered to be reliable is sufficient for the Warden’s purposes in determining whether to rely on it in making her decision. Given the RCMP’s indication that additional details regarding the alleged threat could not be provided, the Warden, short of conducting her own investigation, had no choice but to make her decision on the basis of limited information.
[46] Moreover, Mr. Lyons had the opportunity to speak directly with the RCMP himself when they attended Mission Institution in accordance with their duty to warn him of the threat. It was open to him to request additional information from the RCMP during that discussion. Quite simply, Mr. Lyons had all of the information provided to the CSC as well as an opportunity to question the RCMP. Accordingly, he had sufficient information to question whether the decision to reclassify and transfer him to another institution was based upon a reasonable and serious concern: Gallant v. Canada (Deputy Commissioner, Correctional Service Canada), [1989] 3 F.C. 329 at para. 28 (C.A.); Athwal at para. 36; and Caouette at para. 75.
[47] In the circumstances here, Mr. Lyons’ real complaint appears to be that the RCMP did not provide him with sufficient information, or that he does not accept the RCMP’s assessment of the information they obtained. Mr. Lyons attempts to lay the blame for those issues with the Warden. He argues that, if all information available to the CSC was provided to him, the Warden was obliged to obtain further information pursuant to her statutory and common law duties of disclosure. On its face, this argument appears misguided. He provides no authority for this position. Mr. Lyons has not attempted in these proceedings to indicate what information was provided to him by the RCMP, and yet he asserts that the Warden should have obtained further information.
[48] In Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, the Court determined that the principles of procedural fairness do not require corrections officials to make an independent inquiry into a contested incident (para. 21). Rather, corrections officials are entitled to rely on information provided to them in making decisions pursuant to their statutory authority; the duty to act fairly simply requires that they hear and consider the position of the inmate: Foster at para. 14.
[49] In Caouette, at para. 89, Willcock J. emphasized that a Warden has no duty to investigate on behalf of an inmate:
The Warden need not act as investigating officer on behalf of the applicant. Either the Warden has sufficient grounds for ordering a transfer or the Warden does not. There is no basis for a review of the Warden’s decision on the grounds that further investigation ought to have been conducted.
[50] In the present circumstances, there are no grounds for suggesting that the Warden should have undertaken further investigation. The Warden would be placed in an impossible situation if she was required to go behind the representations of the RCMP. What information could she demand and what steps could she take to pursue those demands? Quite simply, if a Warden is not required to make an independent inquiry into contested incidents within her own institution, she could not be required to do so outside of the institution.
[51] In summary, I find that Mr. Lyons was provided with all of the information the Warden used in deciding to approve his reclassification and transfer. Accordingly, the Warden did not lose jurisdiction by failing to comply with the principles of procedural fairness or her statutory duties.
[52] As I indicated earlier, the weight of authority supports the position that it is open to the court on a habeas corpus application to assess the reasonableness of decisions affecting the residual liberty of prison inmates for the purpose of determining whether the resulting deprivation was unlawful.
[53] The basic principles regarding judicial review on the standard of reasonableness derive from the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9. The key passages that frame the analysis are set out at paras. 47-48. A court conducting a review for reasonableness examines both the process followed by the adjudicative body and the substantive outcome of the decision. A decision is reasonable if it falls within a range of acceptable outcomes which are defensible in respect of the facts and law. The deference required on judicial review includes respect for the decision-making process of adjudicative bodies with regard to both the facts and law.
[54] In the specific context of corrections and prison administration, the courts have established that a warden’s classification and transfer decisions should receive a high degree of deference from reviewing judges. In Bachynski v. William Head Institution, [1995] B.C.J. No. 1715 (S.C.), Bouck J. discussed the inherent complexities of prison administration and emphasized the need for judicial deference toward the decisions of corrections officials on account of the difficult administrative challenges they face on a day-to-day basis. Justice Brown expressed a similar view regarding the scope of review applicable to classification and transfer decisions in Thilson v. Mountain Institution, 2011 BCSC 874. At para. 50, he held:
... All decisions reviewed on the standard of reasonableness are presumptively entitled to a degree of deference. But the complex balancing of factors a warden must consider when making security classification and transfer decisions, and the sometimes emergent situations in which the decisions must be made, call for a high degree of deference.
[55] Justice Brown observed that wardens have considerable expertise in this area of decision-making, as well as extensive knowledge of institutional resources and the circumstances of each of the inmates affected by their decisions (para. 54). At the same time, he noted that the courts have a responsibility to ensure that an inmate’s Charter-protected rights are respected in the taking of such decisions. Accordingly, Brown J. concluded that it is for the judge hearing the habeas corpus application to decide, based on the nature of the liberty and other interests at stake, in light of circumstances deemed relevant in the individual case, the degree of deference warranted with respect to a particular decision (para. 55).
[56] In the instant case, the issue facing the Warden upon her receipt of the information from the RCMP was whether Mr. Lyons’ present security classification and placement at Ferndale Institution were adequate for the purpose of enabling the CSC to provide for his safety and the safety of others in the institution. As I have already indicated, in making this determination the Warden was entitled to rely on the information provided to her by the RCMP, as well as the RCMP’s assessment of its reliability. As Cullen J. (as he then was) aptly stated in Khela No. 2, at para. 58:
... it must be recognized that the administration of institutions housing inmates who have committed serious offences and who are serving lengthy sentences requires those in authority to be able to act decisively when issues involving the safety of those under their charge or in their employ are raised by plausible sources of information.
[57] Accordingly, I reject Mr. Lyons’ submission that the Warden acted “without cause under law”. This is not a case such as Tschritter v. Mountain Institution, 2009 BCSC 1565, where the decision was made in the absence of any factual or evidentiary foundation. Rather, the Warden was advised of a present security concern by a law enforcement agency and took immediate steps to address the risk.
[58] The record establishes that the Warden turned her mind to all of the relevant considerations in deciding to authorize Mr. Lyons’ reclassification to medium security and involuntary transfer to Mission Institution. In her decision, she described the nature of the threat and noted Mr. Lyons’ doubts regarding its validity. She recognized that the threat is to Mr. Lyons and those in his company “were he to be released into the community.” Her reasons indicate that the decision to reclassify Mr. Lyons to medium security was based on the unanimous recommendation from his CMT in the Assessment for Decision, his current SRS score, and the relevant statutory provisions and directives which govern her authority in this area. Specifically, she noted that the protection of the public is CSC’s priority in circumstances such as these. While she credited Mr. Lyons for his progress to date on his Correctional Plan – including the fact that he managed a transfer to minimum security – she concluded that given his history, the reliability of the information provided to the CSC, and current events involving his Security Threat Group in the community, that his continued placement at minimum security was no longer appropriate. In reaching this conclusion, she referred to the direction in CD 706 that minimum security institutions should contain those inmates who pose a limited risk to the safety of the community by minimally restricting their freedom of movement, association and privileges, and determined that Mr. Lyons did not meet these criteria.
[59] The Assessment for Decision reveals that in recommending Mr. Lyons’ reclassification to medium security, the CMT canvassed all of the factors set out in the CCRA Regulations regarding the classification of inmates.
[60] The Assessment for Decision indicates that alternative options for managing Mr. Lyons’ risk within a minimum security institution were considered, but were determined to be inadequate. Due to the serious nature of the present threat to his safety and those around him, the CMT concluded that a transfer to a medium security institution was “the only available option to provide the degree and kind of custody and control necessary to respond to the risk that Mr. Lyons currently presents”. As this determination directly engages the Warden’s statutory mandate, her decision to accept the CMT’s assessment of this matter is entitled to deference on review.
[61] With respect to the Warden’s decision to authorize Mr. Lyons’ transfer to Mission Institution, the record shows that the CMT’s recommendation took into account the criteria mandated by s. 28 regarding the selection of penitentiaries. Among the reasons for their recommendation, the CMT noted that Ferndale Institution’s open perimeter and accessibility to the public were unsuitable to manage the risk presented by the current security concerns regarding Mr. Lyons. Similar considerations applied with respect to William Head Institution. As Mr. Lyons was currently in administrative segregation at Mission Institution and there were no known incompatibility concerns regarding that facility, the CMT determined that Mission Institution was a suitable choice to provide Mr. Lyons with a secure environment to address his current public safety concerns.
[62] Mr. Lyons complains that the decision was unreasonable in part because he does not believe there is a serious, imminent threat on his life. While his submission must be given due consideration, the interests the Warden has to take into account are far broader than the interests that Mr. Lyons would consider. He also argues that the decision was unreasonable because the threat is said to be effective only when he is released into the community. However, given the serious nature of the threat, the perimeter security concerns and the risk to other inmates, corrections officials and members of the public at a minimum security facility, I am satisfied the transfer recommendation falls within the range of acceptable outcomes. Quite simply, in all the circumstances, the Warden’s decision to accept the recommendation was reasonable.
[63] In summary on this issue, I conclude that the Warden’s decision to authorize Mr. Lyons’ reclassification to medium security and involuntary transfer to Mission Institution meets the standard of reasonableness articulated in Dunsmuir. The reasons provided to Mr. Lyons were intelligible, transparent, and justifiable in light of the information set out in the Assessment for Decision and the statutory provisions and directives governing the exercise of the Warden’s authority. Further, I am satisfied that the decision to reclassify and transfer Mr. Lyons fell within the “range of possible, acceptable outcomes which are defensible in respect of the facts and law”.
[64] For the reasons discussed above, I conclude that the respondent has established the lawfulness of the deprivation of Mr. Lyons’ residual liberty. The decision to reclassify Mr. Lyons to medium security and transfer him to Mission Institution was within the Warden’s jurisdiction, and was taken in a manner consistent with the principles of procedural fairness and the Warden’s statutory duties. The decision was also reasonable in the circumstances. Accordingly, I would dismiss the petition.
“Butler J.”