Date: 20010102
Docket: T-787-00
OTTAWA, ONTARIO, THE 2ND DAY OF JANUARY 2001
PRESENT: THE HONOURABLE MR. JUSTICE J.E. DUBÉ
BETWEEN:
GILLES AYOTTE
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
The application for judicial review is dismissed.
J.E. Dubé
J.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20010102
Docket: T-787-00
BETWEEN:
GILLES AYOTTE
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] This is an application for judicial review of a decision rendered against the applicant on March 21, 2000, on behalf of the Commissioner of the Correctional Service of Canada, that the applicant's security classification was being raised from medium to high and that he was being transferred from Cowansville Institution, a medium-security institution, to Donnacona Institution, a high security institution.
1. Facts
[2] The applicant has been serving a sentence of life imprisonment since 1979 for second degree murder, breaking and entering and possession of burglary tools. Since the commencement of his sentence, he has had four day paroles that ended in failure. In 1992, the applicant was sentenced again to eight years in the wake of a conviction for a murder committed when he was unlawfully at large.
[3] On March 12, 1999, the applicant escaped during an escorted temporary absence ("ETA") and was arrested 67 days later. He is now charged with robbery with a loaded weapon committed during a period when he was unlawfully at large.
[4] On September 22, 1999, the applicant was placed in administrative segregation during an investigation following the receipt of information to the effect that he intended to escape. On September 29, 1999, during the review of the applicant's segregation, the information was confirmed by the police and the source was held to be very reliable by the authorities.
[5] The applicant filed a grievance at the three levels and his grievances were dismissed. It is the decision at the third level that is the subject matter of his application for judicial review.
2. Issue
[6] The issue is whether the impugned decision is well founded in the sense that the information disclosed to the applicant was sufficient for him to make representations for the purpose of refuting the allegations made against him.
3. Applicant's submissions
[7] The applicant alleges that the information pertaining to the escape project was much too general and superficial for him to be able to present his observations. The only information disclosed in this regard is the following:
[Translation]
On 1999-09-14, we received information from a police source (SPCUM) that Gilles Ayotte was planning to escape. The source is considered very reliable.
(Exhibit GA-2, Applicant's Record, pp. 13-14)
[8] Commissioner's Directive 540 concerning Transfer of Offenders is explicit concerning the duty to act fairly and to disclose all of the relevant information:
12. The principles of the duty to act fairly and of fundamental justice to provide an offender the opportunity to respond in an informed manner to the notice of transfer must be strictly adhered to. The test must be whether enough information has been revealed to allow the person concerned to answer the case against him or her, not whether there exists good grounds to withhold information.
14. The offender shall be provided with all the information to be considered in making the decision. This shall include confidential and preventive security information to the fullest extent possible when it impacts on an application for a voluntary transfer or is to be considered in an involuntary transfer recommendation. This shall be based on a balance between the offender's right to know the case against him or her, and the protection of the sources of confidential information. Where the confidential nature of the information requires that only the "gist" of the information be provided to the offender, the decision-maker should be satisfied that no other details could be provided without revealing security or informant information....
[Emphasis added]
[9] Similarly, Standard Operating Practice 700-01 concerning Information Sharing and Disclosure, stipulates in article 12 that:
The information shared must provide the offender with sufficient details to enable him/her to respond meaningfully to the allegations being made against him/her. It is not enough merely to assert a fact in general terms, such as: "You are being transferred because of your suspected involvement in bringing drugs into the institution". It is necessary to provide a "gist" of the information in which significant details are given as to the grounds for the allegation. The gist must furnish the relevant facts, including:
a) the dates and places of specific incidents;
b) the manner in which these became known to the authorities; and
c) any other evidence supporting the inference of the offender's guilt;
[10] The applicant relies on a decision of the Federal Court of Appeal in Demaria v. Regional Classification Board.[1] The appellant in that case was transferred from a medium security to a maximum security institution for having brought cyanide into a prison. The particulars of the allegations concerning him were not conveyed to him on the ground that all the information in question was confidential. The Court of Appeal held that the appellant had been treated unfairly. Although the authorities are justified in not disclosing some sources of confidential information, it should be possible to give the substance of the information while protecting the identity of the informant. The following paragraph from the judgment of Hugessen J.A. accurately reflects the Court's thinking, at pages 76-77:
There is, in my view, simply no doubt that the appellant was not treated with the fairness to which he was entitled. ... Where, as here, it is not intended to hold a hearing or otherwise give the person concerned a right to confront the evidence against him directly, it is particularly important that the notice contain as much detail as possible, else the right to answer becomes wholly illusory. Indeed the present case is an excellent example of the right to answer being frustrated and denied by the inadequacy of the notice. 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 list of questions is almost endless.
4. Respondent's submissions
[11] The respondent submits that the correctional authorities assessed all of the factors found in section 17 of the Corrections and Conditional Release Regulations[2] pertaining to the increase in his security classification, which in this case required a high degree of surveillance and control within the penitentiary.
[12] In the case at bar, the applicant's case management team had completed a document entitled "Assessment for Decision", in which the raising of his security classification from medium to high and his transfer to a high security institution were recommended. The overall evaluation reads:
[Translation]
Gilles Ayotte has a long institutional and criminal record. We are talking about more than one victim who died several years apart, involvement in drug consumption and trafficking in the institution at various periods during his incarceration, being unlawfully at large in 1989 (from Prosper Boulanger CRC), breaches of day parole, a recent escape in 1999 and an outstanding charge of robbery which allegedly occurred while he was unlawfully at large.
He has been involved in various institutional programs and although he earned a minimum classification and remained in Minimum for close to seventeen months, the decisions he made following his hearing in January 1999 demonstrate to us that he has not yet integrated the things he has learned and it appears that the risk of violent behaviour is still present. The recent information in relation to his escape plans leads us to recommend a higher security institution, as the risk he represents for a moderate security institution is no longer acceptable. His security classification has been reviewed and it is assessed at maximum with the overriding factor of the planned escape. We are therefore recommending a transfer to a higher security institution, Donnacona. His list of antagonists was checked and there are none at that institution.
[13] The correctional service then sent the applicant some Notices of Involuntary Transfer Recommendation reporting the suspicions as to his intentions to escape. The applicant replied to each of these notices. It is important to note that the "Assessment for Decision" document was attached to these notices, so the applicant was aware not only of the escape suspicions but also of the overall weight of his prison record. The applicant is wrong, therefore, to claim that he was unable to make adequate representations.
[14] As to the lack of particulars pertaining to the information obtained about the planned escape, the respondent points out that Demaria was addressed to a disciplinary decision and not a transfer decision and that the two cases should not be treated in the same way.
[15] In a decision subsequent to the Demaria case, the Federal Court of Appeal in Gallant v. Canada[3] reviewed a trial division judgment (mine) quashing the respondent's transfer from a maximum security to a high maximum security institution on the ground that the notice of reasons for the transfer was too vague to enable the respondent to answer. The majority decision of the Court of Appeal is to the effect that the Penitentiary Act[4] gives the Commissioner and his delegates the discretion to transfer an inmate from one institution to another. There is no reason to require that the inmate be given the same quantity of particulars as that required in the case of a decision imposing a punishment for an offence. The following passage of Marceau J.A. accurately summarizes his thinking on this, at pages 342-43:
It seems to me that, to appreciate the practical requirements of the audi alteram partem principle, it is wrong to put on the same level all administrative decisions involving inmates in penitentiaries, be they decisions of the National Parole Board respecting the revocation of parole, or decisions of disciplinary boards dealing with disciplinary offences for which various types of punishments, up to administrative segregation, can be imposed, or decisions, such as the one here involved, of prison authorities approving the transfer of inmates from one institution to another for administrative and good order reasons. Not only do these various decisions differ as to the individual's rights, privileges or interests they may affect, which may lead to different standards of procedural safeguards; they also differ, and even more significantly, as to their purposes and justifications, something which cannot but influence the content of the information that the individual needs to be provided with, in order to render his participation, in the making of the decision, wholly meaningful. In the case of a decision aimed at imposing a sanction or a punishment for the commission of an offence, fairness dictates that the person charged be given all available particulars of the offence. Not so in the case of a decision to transfer made for the sake of the orderly and proper administration of the institution and based on a belief that the inmate should, because of concerns raised as to his behaviour, not remain where he is. In such a case, there would be no basis for requiring that the inmate be given as many particulars of all the wrong doings of which he may be suspected. Indeed, in the former case, what has to be verified is the very commission of the offence and the person involved should be given the fullest opportunity to convince of his innocence; in the latter case, it is merely the reasonableness and the seriousness of the belief on which the decision would be based and the participation of the person involved has to be rendered meaningful for that but nothing more. In the situation we are dealing with here, guilt was not what had to be confirmed, it was whether the information received from six different sources was sufficient to raise a valid concern and warrant the transfer.
[16] Marceau J.A. went on to identify the essential differences in the circumstances that had motivated Hugessen J.A. in Demaria and those in the Gallant case, at pages 343-44:
a) In Demaria, the ground for transfer was the belief that the inmate had brought cyanide into the prison; it was then an act, an operation which had taken place and was not likely to be repeated. In our case, the ground is the belief that the inmate was involved in a system of extortion, which could very well be still going on or reactivated.
b) In Demaria, there was no direct reason to believe that the safety of fellow prisoners was involved; there were no obvious victims of the alleged misconduct. Here, on the contrary, extortion through threat of violence, by its very nature, implicates victims and spells danger for the safety of others.
c) In Demaria, there was independent evidence obtained by the police. Here, the entire body of evidence was obtained from informants who had obvious objective and realistic fears of reprisals at the hands of the alleged extortionists.
d) In Demaria, the withholding of information was almost complete and merely justified by a blanket claim, as characterized by Hugessen J. [at page 78], that "'all preventive security information' is confidential and (cannot) be released". Here, on the one hand, the information given is definitely more substantial -- including the inmate's Progress Summary Report in its entirety, the extent of the concern of the Warden, and cogent reasons for non-disclosure of further particulars. On the other hand, we have the unequivocal sworn statement of the prison authorities that no further information could be safely released, notably the statement of the Warden who, as the Trial Judge so rightly proclaims [at pages 271 C.R.; 153 F.T.R.], "is more familiar with prison conditions than the court and is in a position to give a more realistic appraisal of what the inmate population is able to deduce from any given information."
4. Analysis
[17] The procedural fairness rules vary according to the circumstances. In the case at bar, the notice was based not only on a planned escape but on the whole criminal record of the applicant, his progress in prison, his failures on day parole, the unlawful at-larges and the pending charges.
[18] The applicant already had all the available information as to his overall record. His transfer was no doubt triggered by the recent information about his escape plan. But it must be kept in mind that this was not a decision contemplating a sanction or punishment as a result of an offence, which would have necessitated further particulars, as Demaria held, to enable the applicant to defend himself against a specific offence allegation. Rather, it was a transfer that was necessary for the proper functioning of the institution. In this case, as in the Gallant case, the disclosure of particulars as to confidential information obtained about the planned escape would jeopardize the security of the other persons involved.
[19] In a relatively recent decision of the Supreme Court of Canada, R. v. Leipert,[5] the appellant Leipert argued that he was entitled to a document relating the information disclosed by the informant owing to his right to a full answer and defence, as guaranteed by the Canadian Charter of Rights and Freedoms. The Court held that the rule of informer privilege is of such fundamental importance to the workings of a criminal justice system that it cannot be balanced against other interests relating to the administration of justice. The informer privilege is subject only to the "innocence at stake" exception.
[20] In her reasons, Madam Justice McLachlin (now Chief Justice) referred back to the following principle laid down in Bisaillon v. Keable:[6] "... information regarding police informers' identity will be, because of its content, a class of information which it is in the public interest to keep secret, and that this interest will prevail over the need to ensure the highest possible standard of justice."
[21] As Marceau J.A. wrote in Gallant, it is wrong to put on the same level all administrative decisions involving inmates in penitentiaries. A decision to transfer is administrative in nature, made in order to maintain order in the penitentiary and to ensure the protection of the public. As such, procedural fairness does not require that the applicant have as many particulars as in the case of a disciplinary charge. In the case at bar, the reasonableness and seriousness of the reasons on which the decision is based, taken as a whole, have sufficiently demonstrated that the applicant's transfer was justified.
[22] Accordingly, the application for judicial review is dismissed.
J.
OTTAWA, Ontario
January 2, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-787-00
STYLE: Gilles Ayotte v. Attorney General of Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 11, 2000
REASONS FOR ORDER OF DUBÉ J.
DATED: January 2, 2001
APPEARANCES:
Pierre Tabah
Daniel Royer FOR THE APPLICANT
Éric Bernatchez FOR THE RESPONDENT
SOLICITORS OF RECORD:
Labelle, Boudrault, Côté et Associés
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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