Date: 20001023
Dockets: T-1894-99 and T-1895-99
BETWEEN:
DANIEL HARMS
Applicant
AND:
PIETER DEVINK, DEPUTY COMMISSIONER
OF THE PACIFIC REGION OF THE
CORRECTIONAL SERVICE OF CANADA
HEATHER BERGEN, ASSISTANT DEPUTY COMMISSIONER
OF THE PACIFIC REGION OF THE
CORRECTIONAL SERVICE OF CANADA
Respondents
AND BETWEEN:
MORGAN GVAPO PETROVIC
AND:
PIETER DEVINK, DEPUTY COMMISSIONER
OF THE PACIFIC REGION OF THE
CORRECTIONAL SERVICE OF CANADA
HEATHER BERGEN, ASSISTANT DEPUTY COMMISSIONER
OF THE PACIFIC REGION OF THE
CORRECTIONAL SERVICE OF CANADA
Respondents
REASONS FOR ORDER
ROULEAU, J.
[1] These applications are for judicial review of two decisions by Heather Bergen, Assistant Deputy Commissioner (the Respondent Bergen), approving an involuntary transfer of inmates Daniel Harms and Morgan Gvapo Petrovic (the applicants) from Kent Instutition to the Special Handling Unit in Quebec. The present decision will deal with both applications since the factual backgrounds and the impugned decisions are virtually identical.
[2] The applicant Daniel Harms is serving a sentence of seven years for his conviction in June 1995 for manslaughter. His warrant of committal expires June 15, 2002. The applicant Morgan Petrovic is serving a life sentence for his conviction in October of 1997 for second-degree murder. In early April 1999, both applicants were incarcerated at Mission Institution, a medium security federal penitentiary.
[3] On April 4, 1999, Corey Bertrand, an inmate at Mission Institution, was found murdered within Mission Institution. During the course of their investigation, the RCMP identified both applicants as suspects in this murder. Both applicants had their security classification changed from medium to maximum and were transferred involuntarily, on an emergency basis, to Kent institution, a maximum security federal institution. A final decision was made on April 26, 1999, approving the decision to involuntarily transfer the applicants from Mission Institution to Kent Institution. The applicants challenged the validity of this transfer by way of an application in the nature of habeas corpus. Josephson, J., of the Supreme Court of British Columbia, found that the transfer was unlawful and ordered the return of the applicants to a medium security institution. He wrote:
| "... While it may well be that the other considerations in s. 27(3) prevent disclosure of any information whatsoever of the circumstances surrounding the alleged offence, the bare bones assertion that this is so leaves me completely unable to assess the reasonableness of that belief, as was the case in Demaria. |
| Having failed to meet the burden placed on it, the petitioners are entitled to succeed. However, I do note the comment of Mr. Justice Gow in Fitzgerald at p. 11 to the effect that even if the transfer is quashed, there is nothing to prevent the Commissioner from commencing transfer proceedings based upon the same grounds. I would add that nothing prevents him from doing the same based upon grounds that arose after the incident in question, even if the incident occurred in the institution following the transfer which I find to have been unlawful." |
[4] On May 7, 1999, a riot occurred at Kent Institution. During the riot, the applicants were kept locked in their cell. However, during the riots, the applicants were both observed to have incited other inmates to create disturbances, thrown items on fire out of their cells, further fueled the fires by throwing institutional property on the fires, and attempted to obstruct firefighting efforts by the staff by placing slippery liquid on the floors.
[5] The applicants were notified of the intentions of the Correctional Service of Canada to transfer them from Kent Institution to the Special Handling Unit in Quebec. They were provided with an opportunity to respond to the Notices of Involuntary Transfer, but never responded. On August 30, 1999, the respondent Brenda Marshall recommended that the applicants be transferred to the Special Handling Unit in Quebec. On September 24, 1999, the respondent Bergen approved the involuntary transfer. The applicants were transferred on October 7, 1999.
[6] The issues are whether the decision of the respondent Bergen was patently unreasonable -- and whether the respondents met their obligation to provide the applicants with a fair hearing.
[7] The applicants submit that the hearing granted to them in respect of the transfer was unfair. The unfairness arises from the failure of the respondents to meet the main procedural obligations imposed on them by the provisions of theCorrections and Conditional Release Act (the "CCRA"). S.C. 1992, c. 20, and further by their failure to observe and respect the constitutional rights of the applicants. The denial of a fair hearing must always render a decision invalid. The applicants submit that the question to be asked is whether the respondent Bergen, prior to making her decision, had ensured that the applicants had received all the information that was to be considered in the taking of the decision. According to the applicants, she did not. It is submitted that the transfer was based on the allegation that the applicants were responsible for the murder of a fellow prisoner at Mission Institution, and the respondents provided virtually no disclosure of the facts that underlay that allegation. They have accordingly not met the onus on them of showing that enough information has been revealed to the applicants to allow them to answer the case against them. The respondents have provided no basis upon which to argue that s. 27(3) can be relied on.
[8] The applicants submit that it was unreasonable for the respondent Bergen to affirm the transfer based on the allegation that they were involved in the murder of the inmate in light of the inadequate disclosure in this case. It cannot be demonstrated that it was a decision arrived at fairly because the factual underpinnings of that allegation have not been revealed. The applicants also submit that the decisions are unreasonable because the respondent suggests that the transfer was based on the applicants' behaviour while at Kent Institution; many of the findings of the respondent Bergen are either not supported by the evidence or are not accurate. The applicants also submit that even if all the allegations made about them in respect of the events of May 1999 are true, they do not, in light of the "convict code" justify the decision of the respondent Bergen to confirm the transfer. The applicants were afraid for their physical safety when the riot was underway and in the days that followed. To avoid being harmed they took part in events to the limited extent that they could within their cell.
[9] The respondent believes that the decision was not patently unreasonable. There was significant evidence before the Assistant Deputy Commissioner contained in the Correctional Progress Report dated May 18, 1999, and the Assessment for Decision dated May 21, 1999, about the high degree of risk posed by the two applicants. They chose not to respond to the proposed transfer. The respondent, based on the information in the reports before her, formed the opinion that the applicants' behaviour seriously jeopardized the safety of others, and that the applicants could no longer be managed at Kent Institution. In reviewing decision of Corrections officials, the Court ought to be cognizant of the difficult context in which these decisions are made, and the balancing of interests that is necessary.
[10] There was enough information disclosed to the applicants about the concerns of the Correctional Services regarding the applicants' involvement in the riot at Kent Institution, each applicant's other disciplinary and criminal charges, the concern on the part of the officials that the applicants may create further disturbances at Kent and, in general, the belief that the applicants' risk could not be properly managed at Kent. There was adequate and ample detail to be able to make representations that the decision to transfer them was an unreasonable one.
[11] The decision challenged in the previous habeas corpus decision is different from the one challenged in the case at bar. In the present case, there were sufficient grounds arising after the unlawful transfer to Kent Institution to justify the transfer to the Special Handling Unit. The disclosure of the information regarding the grounds for the transfer was sufficient to satisfy the respondent's obligations pursuant to s. 27 of the CCRA and the Respondent's duty to provide the applicants with a fair hearing.
[12] The standard of review in the context of decisions made by the Correctional Service of Canada officials is, on the balance of probabilities, whether the decision was patently unreasonable (see: Fitzgerald v. Trono, Vancouver Registry No. CC931084, July 7, 1994 (B.C.S.C.).
[13] Section 27 of the CCRA imposes disclosure of information obligations on the Correctional Service of Canada:
| 27. (1) Where an offender is entitled by the 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 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.
(3) Except in relation to decision son 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 the 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).
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| 27.(1) Sous réserve du paragraphe (3), la personne ou l'organisme chargé de rendre, au nom du Service, une décision au sujet d'un délinquant doit, lorsque celui-ci a le droit en vertu de la présente partie ou des règlements de présenter des observations, lui communiquer, dans un délai raisonnable avant la prise de décision, tous les renseignements, tous les renseignements entrant en ligne de compte dans celle-ci, ou un sommaire de ceux-ci.
(2) Sous réserve du paragraphe (3), cette personne ou cet organisme doit, dès que sa décision est rendue, faire connaître au délinquant qui y a droit au titre de la présente partie ou des règlements les renseignements pris en compte dans la décision, ou un sommaire de ceux-ci.
(3) Sauf dans le cas des infractions disciplinaires, le commissaire peut autoriser, dans la mesure jugée strictement nécessaire toutefois, le refus de communiquer des renseignements au délinquant s'il a des motifs raisonnables de croire que cette communication mettrait en danger la sécurité d'une personne ou du pénitencier ou compromettrait la tenue d'une enquête licite.
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[14] In Gallant v. Canada (Deputy Commissioner, Correctional Service of Canada), [1989] 3 F.C. 329, Marceau J.A., while reviewing the case of an involuntary transfer decision, stated the following:
| "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." (at pp. 242-243) |
(Emphasis added)
[15] In the present case, the Correctional Service of Canada notified the applicants of their intention to transfer them to the Special Handling Unit in Quebec by serving on them Notices of Involuntary Transfer Recommendations dated July 30, 1999, Correctional Plan Progress Reports dated May 18, 1999, and Assessments for Decisions dated May 21, 1999. The applicants were provided with an opportunity to respond to the Notices of Involuntary Transfer. A final response was never received. The applicants never asked for additional information regarding the allegations that formed the basis of the recommendation for transfer and never complained about the impossibility to respond due to lack of information.
[16] The applicants rely heavily on the fact that their previous transfer (from Mission Institution to Kent institution) has been declared unlawful. In that instance, the sole reason for their transfer was apparently the fact that they were prime suspects in the murder investigation. The applicants had asked for additional information pertaining to the allegation that they were implicated in the murder of another inmate. The officials had refused to provide any further information than that which was already disclosed. The applicants challenged the validity of the transfer by way of an application in the nature of habeas corpus. Josephson, J., of the Supreme Court of British Columbia, found that the transfer was unlawful and ordered the return of the applicants to a medium security institution. The relevant portion of his decision reads as follows:
| "In this case, we have an ongoing criminal investigation of the murder of an inmate. The petitioners are suspects in that investigation. It takes no great leap of faith to accept that revealing any aspect of the information collected in the course of the investigation has the potential to adversely effect the safety of any informants involved and to adversely effect the investigation. However, the affidavit evidence falls short of meeting the burden placed on the respondents. The affidavit was prepared in apparent haste on the day of the hearing. There was no effort to provide me with information by way of affidavit material in a sealed envelope, as was done in Fitzgerald. There is no evidence that the police investigators, for example, believe the release of any information whatsoever regarding the alleged murder would compromise their investigation, nor does the deponent say that he was so informed. How the Deputy Commissioner came to that conclusion is not revealed. |
| While it may well be that the other considerations in s. 27 (3) prevent disclosure of any information whatsoever of the circumstances surrounding the alleged offence, the bare bones assertion that this is so leaves me completely unable to assess the reasonableness of that belief, as was the case in Demaria. |
| Having failed to meet the burden placed on it, the petitioners are entitled to succeed. However, I do note the comment of Mr. Justice Gow in Fitzgerald at p. 11 to the effect that even if the transfer is quashed, there is nothing to prevent the Commissioner from commencing transfer proceedings based upon the same grounds. I would add that nothing prevents him from doing the same based upon grounds that arose after the incident in question, even if the incident occurred in the institution following the transfer which I find to have been unlawful." (Petrovic and Harms v.; Marshall et al., September 30, 1999, New Westminster Registry No. X055361/X055360) |
[17] In my view, the applicants cannot rely on this previous decision as the circumstances are entirely different. The impugned decision in the present case is the one pertaining to their transfer from Kent Institution to the Special Handling Unit in Quebec because of other conduct unrelated to the suspicion of murder. Only the circumstances which relate to this subsequent transfer can now be considered.
[18] The main consideration for confirming the recommendation for transfer appears to have been the applicants' behaviour during their stay at Kent Institution. The respondent Bergen's decision clearly shows this:
| "Behavioural indices at Kent, apart from the descriptions above [the events that occurred during the riot], have been set via minor offence charges. Presently, there are seven outstanding minor offences for refusing to stand to for count and one serious offence for Crea./Partic. on 99.05.11. Mr. Petrovic was convicted of 113 minor offences at Kent for failing to stand to for count or refusing a direct order. On 99.06.30, Mr. Petrovic was convicted of Fights/Assaults/Threatens for his acting out toward staff on the segregation range. Within a 13 month period at Mission Institution, from 1998/99, Mr. Petrovic had three minor disciplinary convictions for Disobey Order on 99.02.05, for which he received a $3.00 fine; Poss. Unauthorized Item on 99.01.12, for a $2.00 fine; and Disobeys Written Rule on 98.11.19, where he was warned and counseled. Mr. Petrovic has also received serious disciplinary convictions at Mission for Poss./Deals In Contraband on 98.12.17 when 5 gallons of brew were found in his cell, resulting in punitive dissociation for 10 days and a $10 fine. Mr. Petrovic continues to be under investigation for Murder at Mission, as well as having additional criminal charges set against for his behaviour during the riot. |
| Mr. Petrovic's security classification has been reviewed and confirmed 99.04.20 to an overall rating of Maximum security. Mr. Petrovic did not respond to his Notice of Involuntary Transfer dated 1999.07.30. Despite ample time being given, Kent institution did not receive a final response from Mr. Petrovic. On 1999.09.10, the Warden of Kent Institution, B. Marshall, found no grounds to alter the original recommendation for involuntary transfer. |
| The Correctional Service of Canada has the responsibility to assure the health and safety of our federally sentenced offenders and to exercise reasonable caution when an offender's behaviour jeopardizes safety within a prison environment. Kent Institution reasonably believes Mr. Petrovic's continued presence within a Maximum security setting will continue to jeopardize the safety of others and the safe operation of this institution. |
| I am satisfied the Warden of Kent Institution considered all of the factors in Mr. Petrovic's case prior to making her final recommendation. In view of his : potential threat to create further disturbances upon return to Maximum security living units; history of disruptive, violent behaviour in open population while in segregation; the extensive property damage Mr. Petrovic contributed to while at Kent Institution; serious outstanding charges for criminal offences related to this incident and another incident; established pattern of unpredictable, aggressive behaviour toward staff; role in inciting other offenders to become involved in this incident, Mr. Petrovic can no longer be managed at Kent Institution. I consider him dangerous as his behaviour is such that is has caused serious harm and seriously jeopardises the safety of others. |
| I approve involuntary transfer for assessment to the Special Handling Unit in Quebec." |
[19] The decision regarding the applicant Harms is virtually identical. Upon careful reading, it appears that the fact that the applicants were suspects in an ongoing murder investigation was merely one of the numerous factors considered by the respondents. In fact, one could very well consider that the fact that they were murder suspects was merely incidental to the decision, in light of the events that occurred at Kent Institution.
[20] I do not believe the respondents were compelled to deliver any further information to the applicants. The documents that were sent along with the Notice of Involuntary Transfer clearly and fully set out the situations of both applicants. The Correctional Plan Progress Report contains information as to each applicant's progress in areas such as personal and emotional orientation, attitude, marital and family relationships, associates and social interaction, community functioning, substance abuse. The Assessment for Decision document lays out the factors related to the proposed involuntary transfer. It is essentially a list of more than 25 separate incidents in which the applicants were involved and which constituted inappropriate behaviour. The murder investigation is but one incident among the others. In my view, considering the circumstances and the overwhelming evidence of misconduct, it would be wholly unreasonable to expect the authorities to provide detailed or extensive information on each of these separate incidents.
[21] Again, in the words of Marceau, J.A., in this case, what has to be verified "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". The applicants were offered an opportunity to answer to the allegations made against them, but chose not to do so. In their memorandum of fact and law, they now attempt to explain the findings made by the respondent Bergen in her decision to confirm the recommendation for transfer. In my opinion, most of these explanations could have been provided much earlier, before the actual decision was made. The applicants should not be allowed to "make their case" before this Court, on judicial review, if they chose not to make it at the appropriate time. It was suggested by counsel that Gallant, supra, was decided before the amendments to subsection 27(3). A review of the material submitted more than meets the exigencies of the section.
[22] In my view, the submission that, in light of "the convict code", these applicants feared for their physical safety when the riot was under way, is also untenable. The riot took place in the gymnasium. They were both under lock at the time that the riot occurred and to suggest that they had an obligation to conduct themselves as they did in order to show support for the balance of the prison population is ludicrous. As the reports indicate, observations of the two applicants confirmed that they set fires in the area of their cell, they tore the sink from the wall, splashed slippery liquid in the hallways where the prison officials were attempting to put out the fire, all this in order to hinder the authorities' attempts to bring the situation under control, cannot be said to justify their conduct under the so-called "convict code". During the riot in the gymnasium, they were away from the area, under lock-up, and they could amply justify the fact that they did not participate because of the circumstances in which they were held.
[23] The applications are dismissed.
JUDGE
OTTAWA, Ontario
October 23, 2000
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