Hiebert v. Canada (Acting/assistant Commisioner, Corporate Development, Correctional Service), docket T-559-98

        

     Date: 19991215

     Docket: T-559-98

Ottawa, Ontario, the 15^th day of December, 1999

Present: The Honourable Mr. Justice Pelletier

BETWEEN :

     KURT ALEXANDER HIEBERT

     Applicant

     - and -

     JOE PRICE, in his capacity as

     ACTING/ASSISTANT COMMISSIONER,

     CORPORATE DEVELOPMENT,

     CORRECTIONAL SERVICE OF CANADA and

     OLE INGSTRUP, in his capacity as

     COMMISSIONER OF CORRECTIONS

     Respondents

     REASONS FOR ORDER and ORDER

[1]      At age 17, Kurt Hiebert heard the doors of a federal penitentiary close behind him as he began his sentence. Today, 23 years later, he is still in a federal institution where he could remain for the rest of his life as a result of convictions for 2^nd degree murder (1987) and manslaughter (1991), convictions arising from the death of two other inmates. He has gone from the general prison population to the ultra secure Special Handling Unit to the Mental Health Unit of the Millhaven Institution, where he was at the date of this application. His Case Management Team believes that he has made considerable progress and would benefit from some of the programs which are available in the Pacific Region, where his wife now resides. However, his request for a transfer to Mountain Institution was denied on the basis of the presence of "incompatibles" in the population of that facility. Incompatibles are persons who cannot, in the judgment of the corrections authorities, be housed in the same facility because of animosities between them which may lead to violence. Mr. Hiebert grieved the refusal of his request for a transfer. He disputes that there are insurmountable problems with incompatibles. His grievance was denied and he now brings an application for judicial review. In the course of that application, disclosure of documents has become an issue.

[2]      In a significant departure from the normal practice, Mr. Hiebert was told the names of some of the persons who are said to be incompatible with him. In his affidavit, he explains his relationships with these individuals and shows why he believes there are no incompatibility problems between them. Some of these men have even written to say that they do not have any difficulty in being housed in the same institution as him. As part of his application for judicial review, Mr. Hiebert has requested disclosure of information which is described in his Originating Notice of Motion as follows:

...the list of incompatibles of the applicant, the reasons for their current status as incompatibles and the dates and methods whereby the status of their incompatibility was reviewed or, in the alternative, as much of the above information as is possible, withholding only as much information as is strictly necessary in order to protect the safety of any person.

[3]      The Respondent officials of Corrections Canada have filed the Affidavit of Kevin Shaun Crawford in reply, setting out certain facts in relation to Mr. Hiebert and nature of incompatibles. This affidavit suggests that the documents requested by Mr. Hiebert do not exist. The respondents have also filed a certificate by Yvan Joseph Denis Thibault under the Canada Evidence Act invoking the provisions of s. 37 of the Canada Evidence Act R.S.C. 1985 c. C-5 and subsections 27 (3) a) and b) of the Corrections and Conditional Release Act R.S.C. c.C-44.6 which, taken together, allow documents to be withheld from production if their release would jeopardize the safety of any individual or the security of any penitentiary. The documents in question are documents created for the purpose of disposing of Mr. Hiebert"s grievance. The Court therefore has before it a request for the production of documents which likely do not exist in the form in which they are requested and were not put before the decision maker, together with a refusal to produce documents which do exist and which were before the decision maker.

[4]      Mr. Hiebert"s application was launched prior to the introduction of the Federal Court Rules 1998 . However, Rule 501 provides that the "new" Rules apply to proceedings already underway¹ so that this matter is governed by Rules 317 and 318 which provide as follows:

317. (1) A party may request material relevant to an application that is in the possession of a tribunal whose order is the subject of the application and not in the possession of the party by serving on the tribunal and filing a written request, identifying the material requested.

317. (1) Une partie peut demander que des documents ou éléments matériels pertinents à la demande qui sont en la possession de l"office fédéral dont l"ordonnance fait l"objet de la demande lui soient transmis en signifiant à l"office fédéral et en déposant une demande de transmission de documents qui indique de façon précise les documents ou éléments matériels demandés.

(2) An applicant may include a request under subsection (1) in its notice of application.	(2) Un demandeur peut inclure sa demande de transmission de documents dans son avis de demande.
318. (1) Within 20 days after service of a request under rule 3 1 7 , the tribunal shall transmit	318. (1) Dans les 20 jours suivant la signification de la demande de transmission visée à la règle 3 1 7 , l"office fédéral transmet :
(a) a certified copy of the requested material to the Registry and to the party making the request;or	a) au greffe et à la partie qui en a fait la demande une copie certifiée conforme des documents en cause;
(b) where the material cannot be reproduced, the original material to the Registry.	b) au greffe les documents qui ne se prêtent pas à la reproduction et les éléments matériels en cause
(2) Where a tribunal or party objects to a request under rule 3 1 7 , the tribunal or the party shall inform all parties and the Administrator, in writing, of the reasons for the objection.	(2) Si l"office fédéral ou une partie s"opposent à la demande de transmission, ils informent par écrit toutes les parties et l"administrateur des motifs de leur opposition.
(3) The Court may give directions to the parties and to a tribunal as to the procedure for making submissions with respect to an objection under subsection (2).	(3) La Cour peut donner aux parties et à l"office fédéral des directives sur la façon de procéder pour présenter des observations au sujet d"une opposition à la demande de transmission.
(4) The Court may, after hearing submissions with respect to an objection under subsection (2),order that a certified copy, or the original, of all or part of the material requested be forwarded to the Registry	(4) La Cour peut, après avoir entendu les observations sur l"opposition, ordonner qu"une copie certifiée conforme ou l"original des documents ou que les éléments matériels soient transmis, en totalité ou en partie, au greffe.

[5]      In this case, an order was made pursuant to Rule 318 setting down for hearing before a judge the question of the production of documents.

[6]      With respect to the request for production of documents contained in Mr. Hiebert"s Originating Notice of Motion, there is no evidence that such documents exist in the form in which they are described in the originating document, and there is evidence in the Affidavit of Kevin Shaun Crawford that no such document was put before the decision-maker, Mr. Price.

[7]      The bulk of case authority dealing with production of documents in judicial review applications is clear that only documents which were actually before the decision maker are subject to production. A contrary opinion was expressed by Muldoon J. in Friends of the West Country Association v. Canada (Minister of Fisheries and Oceans) (1997), 130 F.T.R. 206 at p. 218 where the following appears:

Neither Quebec Ports2 nor Pathak3 stands for the proposition that a relevant document is one which was "considered" or "relied upon". Pathak clearly states that the test for relevancy is how the document relates to the grounds in the originating notice of motion and the supporting affidavit.

In coming to this conclusion, Muldoon J. distinguished the case before him from the situation which applied in Pathak, supra, where Mcguigan J.A. said

Only the report of the investigator and the representations of the parties are necessary matter for the Commission's decision. Anything else is in the discretion of the Commission. If the Commission, therefore, elects not to call for some document, that document cannot be said to be before it in its decision-making phase, as opposed to its investigative phase. It is therefore not subject to production as a document relied upon by the Commission in its decision, although it may well have been relied upon by the investigator in his report. These are two different moments of the Commission's life, distinct moments not to be obliterated by a legal fiction.

[8]      The basis of the distinction drawn by Muldoon J. was that, under the terms of the Canadian Environmental Assessment Act R.S.C. c. C-37, the Minister had a supervisory function with respect to the assessment which meant that there was no distinct investigation and decision-making stages as there is in proceeding before the Human Rights Commission.

[9]      On the other hand, Nadon J. reviewed the jurisprudence on this issue in 1185740 Ontario Limited v. Canada (Minister of National Revenue) (1998), 150 F.T.R. 60 and came to the conclusion that only documents which were before the decision-maker were subject to production, a position consistent with that articulated by McGuigan J.A. in Pathak:

In Sovereign Life Insurance Co. v. Canada (1995), 100 F.T.R. 81, I had to consider former Rule 1305 which was the equivalent Rule 1612 in the context of statutory appeals. That rule provided that the tribunal whose decision was the subject of the appeal had to send to the Registry of this Court all papers relevant to the matter before it and which were in its possession or control. In reaching a conclusion in that case, I considered a number of Federal Court decisions including the decision of the Federal Court of Appeal in Trans Quebec & Maritimes Pipeline Inc. v. National Energy Board, [1984] 2 F.C. 432. At 93 of Sovereign, I concluded:

        

In addition to being relevant to the issue before the Tribunal, the documents sought must, in my view, have been presented or made available to the Tribunal. On this point, I wish to emphasize that part of the Thurlow, C.J.'s comments, cited hereinabove in Trans Quebec & Maritimes Pipeline Inc. where he states that "The Tribunal will know what it has or has had that is relevant, what use has been made of it and why it is relevant to the decision ...". In Pacific Press Ltd. et al. v. Minister of Employment and Immigration et al. (1990), 127 N.R. 323, the Federal Court of Appeal had to decide whether material should be added to the case in a s. 28 application. At p. 324, Heald, J., stated that:

"By this motion, the court is being asked to add material to the case that was not before the adjudicator when he made his decision and couldn't have been before him because it did not exist at that time. This court has declined to make such an order in such circumstances."

    

[10]      The position taken by Nadon J. was approved by the Federal Court of Appeal in 1185740 v. Canada (Minister of National Revenue) (1998), 150 F.T.R. 60. I therefore find that documents are not subject to production unless they were before the decision-maker at the time the decision was made.

[11]      Be that as it may, the documents sought to be produced here were not only not before the decision maker, but there is no evidence that they exist in the form requested. This is what Decarie J.A. had to say about such a circumstance in Quebec Port Terminals Inc. v. Canada (Labour Relations Board) (1993), 164 N.R. 60:

In short, Rules 1612 and 1613 do not permit a party to ask the tribunal to prepare new documents or to do research in existing documents, any more than they permit a party to obtain existing documents from the tribunal which are in no way related to the impugned decision.

[12]      Either ground is therefore sufficient to dispose of the request for production found in Mr. Hiebert"s Originating Notice of Motion. In the absence of evidence that such documents exist, and in the presence of evidence to the effect that no such documents were put before the decision-maker, there is no basis to make the order requested.

[13]      When one reads Mr. Hiebert"s affidavit, one discerns that the information requested is a function of a concern that the refusal of his transfer is the result of bad faith on the part of one or more corrections officials. At paragraph 51 of his affidavit, he quotes a hearsay statement from a corrections official to the effect that "Mountain [institution] just did not want to take me". I have reviewed the confidential documents attached to the Certificate of Yvan Joseph Denis Thibault. It appears from those documents that there is a rational basis for the position being taken by the Respondent. It is not simply capricious and arbitrary.

[14]      I turn now to the second leg of the argument, the Respondent"s refusal to produce certain documents which were before the decision maker, but whose production is resisted on the ground that production would endanger the safety of individuals and the security of a penitentiary.

[15]      Some of the documents are described in the Affidavit of Kevin Shaun Crawford, a senior Corrections official, as follows:

a)      a portion of a letter from Dennis Corrigan dated October 27, 1997 containing sensitive information.

b)      an executive summary of information, both oral and written, received from officials at Mountain Institution and Pacific Region dealing with some inmates who are not prepared to resolve or mediate their concerns for the applicant

[16]      There are, in addition, other documents which are not identified in the Affidavit and the Certificate. These include internal communications and records of communications with inmates.

[17]      The reason for refusing disclosure is, in all cases, that it would "jeopardize the safety of inmates and the security of penitentiaries". No detail is given as to how this might come to pass.

[18]      The test for disclosure of information in a correctional setting has been expressed in various ways. In Demaria v. Regional Classification Board, [1987] 1 F.C. 84, an inmate was transferred involuntarily after he was accused of smuggling cyanide into the prison. No cyanide was ever found. The inmate was never told the basis of the correctional officer"s suspicions. Mr. Justice Hugessen, writing for the Court of Appeal commented on the absence of detail as follows:

The appellant is told that there are reasonable grounds for believing him to have brought in cyanide. He is given no hint of what those grounds are. The allegations against him are devoid of every significant detail. When? Where? How? Whence came the poison? How was it obtained? For what purpose? How much? The allegation is said to be based on information obtained by the Millhaven staff and the Ontario Provincial Police. What information comes from which source? Is there an informer involved? If so, how much of the substance of his statement can be revealed while protecting his identity? Have the police pursued their enquiries? Have they made any arrests? The list of questions is almost endless.

[19]      The learned judge then went on to comment on the need to withhold some information while still providing the inmate as much information as possible:

There is, of course, no doubt that the authorities were entitled to protect confidential sources of information. A penitentiary is not a choir school and, if informers were involved (the record here does not reveal whether they were or not), it is important that they not be put at risk. But even if that were the case it should always be possible to give the substance of the information while protecting the identity of the informant. The burden is always on the authorities to demonstrate that they have withheld only such information as is strictly necessary for that purpose. ...

In the final analysis, the test must be not whether there exist good grounds for withholding information but rather whether enough information has been revealed to allow the person concerned to answer the case against him.

[20]      Another formulation of the test for adequate disclosure is found in Cadieux v. Mountain Institution, [1985] 1 F.C. 378. An inmate"s Unescorted Temporary Absence program was cancelled. The inmate was simply told that the Correctional Service had reason to believe that he was at risk of breaching his terms of release. He brought an application for judicial review seeking to reinstate his Unescorted Temporary Absence entitlement. Reed J. commented on the fact that in some instances an inmate might only be entitled to the gist of the information against him, as for example where disclosure would automatically lead to the identification of informers:

I think it will be rare that an inmate cannot be told at least the gist of the reasons against him. This would especially be so if the alleged conduct took place outside the institution when the inmate was at large. I can, however, more easily envisage some situations when it might be necessary to refuse to disclose even the gist of the case against him when the information relates to conduct occurring within the institution. This might be necessary if the content of the information was such that its disclosure would automatically lead to the identity of the informer becoming known. It is trite law that the identity of informers is protected from disclosure. ...In the context of the prison situation, safety and order within the prison may particularly require the non-disclosure of the identity of informers. Non- disclosure might also be necessary if such disclosure would automatically lead to the revealing of information collection methods and thus substantially undermine the future functioning of the Board. In circumstances such as these, I do not think the Board should be denied the right to rely on and use information which comes to its knowledge even though it does not pass the gist of that information on to the inmate. The public interests in preventing repeat offences while the inmate is at large, in maintaining security and order in the penal institution, and in preserving the Parole Board's ability to function effectively may outweigh the normal rule that a person is entitled to know the gist of the case against him. But, the occasions on which this is justified must be rare. There must be an element of necessity; mere convenience for the functioning of the Board is not enough.

[21]      The significance of designation of an inmate as incompatible with another is set out in paragraphs 12, 15, 16, 17 and 18 of the Certificate of Yvan Joseph Denis Thibault which are reproduced below:

12.      An inmate may not be able to integrate into an open prison population because he has one or more "incompatibles in that population. An "incompatible" is another inmate or security officer whose presence in the same institution poses a risk to the safety of that inmate or staff member or to the security of the institution. These risks include the risk of violent assault and murder. One inmate may be incompatible with another for a variety of reasons, of which the following are typical:

(a) an inmate may have generated debts in prison which his creditors may seek to enforce by violence;

(b) an inmate may have provided information about another inmate to a security officer, which information was used by the Correctional Service to the detriment of the other inmate;

(c) An inmate may have provided information about another inmate to a security officer, which information was used by the Correctional Service to the detriment of the other inmate;

(d) an inmate may have stolen items from another inmate and the other inmate may wish to obtain the return of that item or to extract revenge;

(e) an inmate may have been convicted of sexual assault or some other crime for which other inmates will seek to punish that inmate;

(f) an inmate or a staff member may have been taken hostage or assaulted by another inmate, and,

(g) an inmate may belong to a gang or other social or criminal organization and be the target of recrimination from inmates belonging to rival gangs or organizations.

15.      In my experience, the behaviour of prison inmates is influenced by a code of conduct which is based on status and reputation. These qualities are affected by such factors as the nature of the offence an inmate has committed, his associations before and during incarceration and his past prison behaviour. For example, inmates who have committed sexual offences or inmates who provide information to security officers about others are regarded with contempt by other inmates and may be subject to attack if placed in an open prison population. In addition, inmates tend not to overlook or forget past incidents and insults and will often seek to redress "wrongs" done to them years earlier when the opportunity arises. Inmates also tend to react more strongly to perceived wrongs than members of the general population because of the competitive nature of the prison population, the proximity of other inmates, and an environment where their status is under constant scrutiny. For these reasons, inmates can become frustrated and resort to violence as a means of resolving conflicts. Even minor incidents, such as a cigarette debt, can have major consequences, ranging from assault to murder.

16.      On several occasions, I have witnessed violent incidents when inmates are inadvertently introduced to incompatible inmates. The consequences have included beatings, assaults and murders. These violent incidents have occasionally led to riots involving many prisoners and posed a threat to the security of institutions.

17.      The separation of incompatible inmates is an important factor in maintaining safety and security at federal penal institutions. Communication to one inmate of the identities of inmates classified as incompatible with him or her, exposes those "incompatibles" to risks of reprisal by, or at the instance of, that inmate. Incompatibles have been identified as "targets" and subjected to physical attacks by other inmates. Inmates have been beaten and killed for debts, for alerting the authorities about the behaviour of another inmate and for providing evidence against another.

18.      For these reasons, inmates are often reluctant to be identified as incompatibles and may deny incompatibility with others. Such denials are considered by correctional staff but cannot be determinative of the issue of incompatibility. Correctional staff must make their own assessments of the incompatibility of inmates.

[22]      The issue in this case is the status of certain individuals as incompatibles vis-à-vis Mr. Hiebert. It is no small thing to be considered an incompatible of an individual who has been convicted of killing two other inmates. It would be particularly uncomfortable to be identified as the person whose incompatibility prevented Mr. Hiebert from achieving his objective of returning to the Pacific region. Whatever the Corrections staff think of Mr. Hiebert"s emotional growth, inmates could well have a different view of his adjustment. The potential for fear and panic, on the one hand, and a thirst for revenge on the other, is a dangerous combination in a closed system such as a penitentiary.

[23]      The fact which distinguishes this case from the usual prison disclosure case is that the object of disclosure is the names of the incompatibles themselves, unlike the usual case where the names of informers or incompatibles might be accidentally raised in the course of disclosure of other information. A comparable situation would be a case in which the request for disclosure was with respect to the names of informers. In such a case, it would not take long to decide how much information could be given without disclosing their identity. Any information about the informers would be too much. In the same way, there is no way to discuss incompatibles without endangering the incompatibles. No matter what one says about them, it conveys more than those who would do them harm need to know. This is a case where Mr. Hiebert has been given the gist (and more) of the case against his transfer. To say more is to get into a discussion about specific incompatibles, which exposes them to risk of harm.

[24]      To put this discussion in the context of the s. 37 application, the leading case on the approach to such cases in Goguen and Albert v. Gibson, [1983] 2 F.C. 463. There the Court adopted a two stage approach to the resolution of claims for non-disclosure. In the first stage, the Court considers the competing claims for disclosure and non-disclosure on the basis of the affidavit evidence before it, but without reviewing the documents themselves. Only if the Court cannot resolve the issue at that stage does the Court advance to the second stage which is the review of the documents.

That, in, the case of a request for disclosure of information in respect of which an objection has been raised under Sections 36.1 and 36.2 of the Act the court must proceed by way of a potential two-stage determination of the application is to me quite clear. Authority to inspect the documents is vested in the court, but no duty is imposed on it to do so; and it seems to me that an authority of that kind would be abused if it were exercised unreservedly, uselessly and for any other reason than because it is required to arrive at a conclusion. This observation, to me, not only confirms the inevitability of the two-stage approach but, at the same time, indicates the nature of the so-called test that is implied in it. The court will proceed to the second stage and examine the documents if, and only if, it is persuaded that it must do so to arrive at a conclusion or, put another way, if, and only if, on the sole basis of the material before it, it cannot say whether or not it will grant or refuse the application.

[25]      I would have, in this case, come to the conclusion which I did without examining the documents since my decision is based upon the nature of the inquiry itself i.e. an inquiry into the identity of incompatibles. However, I did examine the documents for the purpose of dealing with the issue of bad faith raised in Mr. Hiebert"s affidavit, even if it is not explicitly pleaded. I did so because I believe it important to balance the very broad protection from disclosure in such cases with some objective assessment that the power thereby conferred upon Corrections officials is exercised for its intended purpose. This involves nothing more than an assessment of whether there is a rational basis for the position taken by the Corrections authorities. It is not for this Court to attempt to make risk assessments. If the material has a rational connection to the stated objective, then no more need or should be done. If the material lacks a rational connection to the stated objective, then the Court would have to consider the remedies available to it, having regard that the application before it is one dealing with disclosure, and not the merits of the claim. In this case, the material discloses a rational connection to the stated objective, and as a consequence, nothing further need be said.

     ORDER

     Having read the Affidavits of Kurt Hiebert and Kevin Shaun Crawford as well as the Certificate filed by Yvan Joseph Denis Thibault; and

     Having considered the interest of the Applicant in the disclosure of the information requested in his Originating Notice of Motion; and

     Having weighed the interests of the parties and the public in the disclosure of certain confidential information attached to the Certificate against the protection of individuals and maintaining the security of penitentiaries;

     NOW THEREFORE, IT IS HEREBY ORDERED that:

1-      the request for disclosure contained in the Applicant"s Originating Notice of Motion is hereby dismissed.

2-      the objection to disclosure of the confidential documents attached to the Certificate is hereby sustained.

3-      there will be no order as to costs.

     "J.D. Denis Pelletier"

     Judge

__________________

¹

501. (1) Subject to subsection (2), these Rules apply to all proceedings, including further steps taken in proceedings that were commenced before the coming into force of these Rules.

501. (1) Sous réserve du paragraphe (2), les présentes règles s"appliquent à toutes les instances, y compris les procédures engagées après leur entrée en vigueur dans le cadre d"instances introduites avant ce moment.

    

²      Quebec Ports Terminals Inc v. Canada (Labour Relations Board) (1994) 164 N.R. 60 (F.C.A.).

³      Pathak v. Canada (Human Rights Commission) [1995] 2 F.C. 455.