Storry v. Canada (Warden, William Head Institution), docket T-2381-96

Date: 19971216

Docket: T-2381-96

BETWEEN:

GEORGE EARL STORRY

Applicant

- and -

MICHAEL GALLAGHER, WARDEN OF WILLIAM HEAD INSTITUTION, DOUGLAS MACGREGOR, WARDEN OF MISSION INSTITUTION,

and DEPUTY COMMISSIONER, PACIFIC REGION,

CORRECTIONAL SERVICE OF CANADA

Respondents

     REASONS FOR ORDER

WETSTON J.

[1]      The applicant seeks judicial review of a recommendation made by Michael Gallagher, Warden of William Head Institution, on April 25, 1995, and, more particularly, the decision made by the Deputy Commissioner, Pacific Region, on December 18, 1995, whereby the applicant was involuntarily transferred from William Head Institution to Mission Institution.

[2]      The applicant is currently serving a life sentence for murder. This is his fourth term of imprisonment in federal institutions. In August 1993, the applicant was placed in William Head Institution, a medium security penitentiary on Vancouver Island. William Head Institution is surrounded by water on three sides, and is therefore somewhat less secure than other federal medium security institutions in British Columbia. The applicant's security rating did not change as a result of his transfer to Mission Institution. The applicant had previously been transferred to William Head Institution from Mission Institution on or about August 1993.

[3]      In late January 1995, Michael Gallagher and the Institutional Preventative Security Officer of William Head Institution (the "I.P.S.O.") received information from the Chilliwack detachment of the RCMP that the applicant and another inmate were planning an escape. The information had been provided to the RCMP by an informant whom the RCMP considered reliable. The applicant was served with a Progress Summary Appraisal, dated April 6, 1995, which alleged that he was involved in a plot to escape from William Head Institution, and that he was involved in jewellery and drug smuggling in that institution. He was served with a Notice of Involuntary Transfer Recommendation, dated April 18, 1995, which contained similar allegations. The applicant submitted a written response to those allegations, dated April 18, 1995.

[4]      Michael Gallagher recommended that the involuntary transfer proceed, and a Notice of Review of Recommendation relative to involuntary transfer containing that recommendation was served upon the applicant on April 25, 1995. The applicant made a further submission to the respondent Deputy Commissioner, dated April 30, 1995. Counsel for the applicant also made a written submission to the respondent, dated May 11, 1995. The Deputy Commissioner rendered a decision, dated May 31, 1995, in which the involuntary transfer of the applicant was approved. Further efforts were made under the corrections system procedures with respect to the involuntary transfe and the final decision was rendered on December 18, 1995, to involuntarily transfer Mr. Storry.

[5]      The applicant petitioned for relief in the nature of habeas corpus to the Supreme Court of British Columbia, to quash the involuntary transfer. The petition was heard by the Supreme Court of British Columbia on July 22, 1996, and was dismissed for lack of jurisdiction. Baker J. ruled that the Supreme Court of British Columbia lacked jurisdiction to grant habeas corpus with certiorari in aid because there had not been a deprivation of the applicant's residual liberty as required by the Supreme Court of Canada decision in Dumas v. Director of Leclerk Institution of Laval et al. (1986), 34 D.L.R. (4th.) 427 (BCSC). In other words, the transfer was between institutions that had the same security classification.

[6]      I shall now consider the facts in somewhat greater detail. The informant advised the RCMP that the applicant and another inmate were planning an escape from William Head Institution by water, and then intended to live with some Haida Indians in the United States. The informant also stated that the applicant's brothers, who were fishermen, would assist in the escape, and that the applicant was accumulating money to finance the escape by dealing drugs and smuggling jewellery. The informant also stated that the escape would occur when the weather was better, likely in the spring or early summer.

[7]      Although the informant was considered reliable by the RCMP, Michael Gallagher attempted to corroborate the information by reviewing reports received by the I.P.S.O. These reports indicated that at least two other independent and reliable sources had implicated the applicant in drug trafficking within the institution. Mr. Gallagher also asked Mary Ferneyhough, a corrections officer, to check the applicant's wife on her next visit to the institution to determine whether the applicant was smuggling jewellery out of the institution.

[8]      On February 2, 1995, Ms. Ferneyhough was on duty at the front gate specifically to check Marlon Storry upon her entrance and exit from the institution. Ms. Ferneyhough observed another corrections officer run a hand-held metal detector over Ms. Storry upon her entrance to the institution and noted that the detector was not activated. Ms. Ferneyhough also noted the jewellery which Ms. Storry was wearing as she entered the institution. Ms. Ferneyhough ran a hand-held metal detector over Ms. Storry upon her exit from the institution and the detector was activated. She then discovered a silver bracelet high on Ms. Storry's arm underneath her sleeve.

[9]      In early March, Michael Gallagher and the I.P.S.O. requested additional information from the RCMP and the name of the informant was disclosed to Mr. Gallagher by Cst. McCarl of the RCMP. This information was provided to Mr. Gallagher on condition that the name of the informant not be divulged, because the informant feared reprisals.

[10]      On March 21, 1995, Cst. McCarl of the RCMP informed Michael Gallagher and the I.P.S.O. that the informant had confirmed that the applicant was still planning an escape in the near future and that his brothers were arranging a vessel to be used in the escape. Cst. McCarl indicated that the source was reliable and had provided reliable information in the past. On April 26, 1995, Michael Gallagher recommended that the applicant be transferred to Matsqui Institution. Mr. Gallagher's decision was based on a consideration of, inter alia, the following.

[11]      With the exception of the names of the informants, the applicant was provided with the following information: the nature of the alleged escape attempt, the identities of the other persons allegedly involved, and the relationship between his alleged drug trafficking, jewellery smuggling and the escape attempt. The applicant was given an opportunity to respond at length to these allegations, both on his own behalf and through counsel.

[12]      In the Progress Summary Appraisal of April 6, 1995, the escape attempt was identified and that the attempt would be with the assistance of his brothers Wayne and Ross. This information was obtained from the reliable source who is not identified. No details of the allegations regarding drug and jewellery smuggling from the institution were provided. In the Notice of the Voluntary Transfer Recommendation, dated April 18, 1995, similar allegations were made to those in the Progress Summary Appraisal. Furthermore, it was identified that two unidentified sources informed the I.P.S.O. that the applicant was involved in trafficking in drugs. No details of those allegations were provided to the applicant nor were any details from which one could reasonably conclude on its face that these informers were reliable. At this time the only other new information provided to the applicant was that his wife had been searched upon entering and leaving William Head Institution on February 2, 1995, and found to be wearing a bracelet that she had not been wearing upon entering.

[13]      In summary, the case disclosed to the applicant that he was required to meet consisted of the following: a) two sources provided information that the applicant was involved in drug trafficking; b) a source deemed reliable by the RCMP provided information that the applicant was involved in an escape plot with another inmate and was financing the escape with proceeds from jewellery smuggling and drug trafficking; c) that the escape was to be assisted by the applicant's brothers who were to provide a boat; d) that the escape was to occur in warmer weather and that the applicant intended to flee to the United States; e) that the applicant was involved in jewellery smuggling from the institution; and f) that the applicant's wife was searched on one occasion entering and leaving the institution and was found to be in possession of a bracelet that had not been present when she was entering.

[14]      The applicant denied the allegation of the escape plot and stated that he believed that the information from the reliable source came from the ex-girlfriend of Frank Mooney, an inmate and his cousin with whom he was alleged to be plotting this escape. This position was subsequently borne out when the respondent, Michael Gallagher, decided that the information vis a viz Mr. Mooney was unreliable and the involuntary transfer of Mr. Mooney did not proceed. The applicant's brothers were never interviewed by the RCMP or other authorities concerning their role in this alleged plot. It is worthy to note that the author of the Progress Summary Appraisal concluded that his case management team, despite these allegations, did not support the proposed involuntary transfer. The applicant denied that was smuggling the bracelet out of the institution and he denied all allegations of drug trafficking. He offered to submit to personal and cell searches in order to support his position. With regard to the alleged escape plot, the applicant again noted that the reliable informant had been found to be unreliable insofar as Frank Mooney was concerned, and again offered to confirm his position by taking a polygraph examination.

[15]      In his recommendation, Michael Gallagher stated that he accepted, as reliable, the information received from three sources, concerning the applicant's alleged involvement in drug trafficking. However, he did not explain what information had been provided or why he found the information to be reliable. The applicant offered to submit to urine analysis testing, as well as personal and cell searches. These procedures were rejected as not rebutting the information provided by the sources.

[16]      Mr. Gallagher also found that the allegations of jewellery smuggling were well founded, despite the applicant's explanation for his wife being found in possession of a bracelet. Mr. Gallagher also accepted the allegations concerning the escape plot as reliable and credible.

[17]      Further submissions were made to the Deputy Commissioner of the Correctional Service of Canada. With respect to the alleged escape plot, the Deputy Commissioner stated that he was not persuaded that there was any reason to doubt the RCMP's determination of informant's reliability. He further noted that the information provided by the Chilliwack RCMP was reliable and a matter about which he must be reasonably concerned. This explanation was offered, despite the retraction made by the "reliable source" concerning Mr. Mooney's alleged involvement; the fact that one of the applicant's brothers would be incarcerated until July 1995; and the offer by the applicant and his brothers to undergo polygraph examinations.

[18]      With regard to the alleged jewellery smuggling, the Deputy Commissioner found that the applicant's wife did attempt to smuggle an item of jewellery out of the institution, despite the detailed explanation of the incident supplied by Mrs. Storry through Mr. Storry's counsel. This one incident, in addition to the reports of drug smuggling, was, in the opinion of the Deputy Commissioner, sufficient to corroborate the information provided by the RCMP about the alleged escape plan.

[19]      There are essentially two main issues in this judicial review application. First, was the applicant afforded an adequate opportunity to be heard? Stated somewhat differently, was Mr. Storry provided a reasonable, and genuine opportunity to respond to the allegations for the involuntary transfer. Second, if the requirements for procedural fairness have been met, was the decision nevertheless patently unreasonable?

[20]      First, I agree with the respondent that the decision to transfer the applicant from William Head Institution to Mission Institution did not result in a change to the applicant's security classification. As such, the applicant did not suffer a loss of residual liberty, and section 7 of the Charter was therefore not engaged. Mr. Storry was transferred from a medium security penitentiary to another medium security penitentiary. In dismissing the applicant's petition for relief in the nature of habeas corpus -- which arose from the same facts as this application for judicial review -- Baker J. in the British Columbia Supreme Court, held as follows:

Here the petitioner has suffered some hardship as a result of this move. That cannot be denied. However, the hardship primarily relates to factors personal to the inmate which potentially distinguish him in some respects from other inmates, but not by the nature of the detention itself. In my view, this is a case where there has been a reduction in some privileges resulting from the transfer and resulting from matters personal to the prisoner, but there has not been a deprivation of liberty.

[21]      While the matter before the British Columbia Supreme Court was determined on the basis of jurisdiction to issue a writ of habeas corpus, this Court does have jurisdiction, by way of certiorari, to determine whether the decision was patently unreasonable and/or whether it met the requirements of procedural fairness. I agree that this Court should be reluctant to interfere with the penitentiary authorities' administrative decisions to transfer inmates from one institution to another, and from one security setting to another. So long as those administrative decisions are not demonstrably unfair, they are properly to be left to those who have the heavy responsibility of preserving good order and discipline among the prison population: Re Hay and National Parole Board et al. (1985), 21 C.C.C. (3d) 408 at 415 (F.C.T.D.).

[22]      While in this case, section 7, in my opinion, is not engaged, there nonetheless exists, as a matter of common law -- a duty of procedural fairness lying on every public authority making an administrative decision. This duty is not of a legislative nature and affects the rights, privileges or interests of an individual. Procedural fairness requires that an inmate be informed of the reasons for an intended decision and be given an opportunity, however informal, to make representations concerning the reasons and the general question whether the intended decision is necessary or desirable for the maintenance of good order and discipline in the institution: Cardinal and Oswald v. Director of Kent Institution (1985), 23 C.C.C. (3d) 118 at 130-131 (S.C.C.).

[23]      Section 29 of the Corrections and Conditional Release Act, S.C. 1992, c. C-20 provides that the Commissioner may transfer an inmate from one penitentiary to another penitentiary in accordance with the regulations made under paragraph 96(d), subject to section 28. Section 12 of the Regulations, SOR/92-620, provides that for the transfer of an inmate pursuant to section 29 of the Act, the institutional head shall give the inmate written notice of the proposed transfer, including: (a) the reasons for the proposed transfer and the proposed destination; and (b), after having given the inmate a reasonable opportunity to prepare representations with respect to the proposed transfer, meet with the inmate to explain the reasons for the proposed transfer and give the inmate an opportunity to make representations with respect to the proposed transfer in person or if the inmate prefers, in writing.

[24]      The Regulations, in and of themselves, incorporate the doctrine of procedural fairness, by providing that an inmate is to be given a reasonable opportunity to prepare representations. The respondents note that since the transfer to the institution was at the same level of security and that the security classification was unchanged, the impugned decision was therefore of an even more routine administrative nature than a decision to increase an inmate's security classification and the applicant was therefore entitled to a correspondingly informal opportunity to respond. Therefore, as the applicant was given a notice of intended decision, the reasons therefore, and an opportunity to respond, the respondent argues that the obligation of procedural fairness was met.

[25]      The respondent also relies upon the secrecy rule regarding a police informer's identity, noting that it is subject only to the exception that, where it is necessary to demonstrate the innocence of an accused person, the informer's identity may be revealed. There are no exceptions in proceedings other than criminal. The secrecy rule places a duty on a police officer to maintain confidentiality of the informer's identity outside any judicial proceedings; Bisaillon v. Keable et al. (1983), 7 c.C.C. (3d) 385 at 408 to 414 (S.C.C.). It is contended that with the exception of the names of the informant, the applicant was provided with as much information as possible. The applicant was advised of the nature of the alleged escape attempt, the identities of the other persons allegedly involved, and the alleged relationship between his drug trafficking, jewellery smuggling and the escape attempt -- i.e. that the former was undertaken to fund the latter. It is argued that the applicant did respond, at length, both on his own behalf and through counsel, at every stage of the decision-making process.

[26]      Neither the statute nor the regulations distinguish between transfers among institutions with different security levels and transfers among institutions at the same level as a basis for suggesting that the obligation to provide procedural fairness vary. Nevertheless, the standard of procedural fairness is flexible. The decisions brought to my attention invariably involved transfers from a lower level of security to a higher level of security or from a lower level of institution to a higher level of institution. Such transfers obviously affect the rights, privileges, and interests of an individual, differently than a transfer between institutions of the same security level.

[27]      Nonetheless, since the transfer is involuntary, I am of the opinion that the requirement for an opportunity to be heard, i.e for procedural fairness to be observed, exists and must be meaningful. In Demaria v. Regional Classification Board and K. Payne, [1987] 1 F.C. 74, the inmate was transferred from a medium to a maximum security institution involuntarily. In that case Mr. Justice Hugessen stated as follows, at page 77:

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. a blanket claim, such as is made here, that "all preventive security information" is "confidential and (cannot) be released", quite apart from its inherent improbability, is simply too broad to be accepted by a court charged with the duty of protecting the subject's right to fair treatment. 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. But whichever way it be stated, the test is not met in the present case.

Earlier in the decision, Mr. Justice Hugessen notes as follows, at page 77:

The purpose of requiring that notice be given to a person against whose interests it is proposed to act is to allow him to respond to it intelligently. If the matter is contested, such response will normally consist of either or both of a denial of what is alleged and an allegation of other facts to complete the picture. 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 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.

ANALYSIS

[28]      My review of the Regulations suggests that whether an inmate is being transferred from a medium to a maximum security institution or whether he is being transferred from a medium to medium security institution that the requirements for procedural fairness are applicable. While virtually all of the decisions provided to the Court deal only with transfers between different security levels or institutions, I see no basis for interpreting the Regulations to require a lesser form of procedural fairness. While procedural fairness is a flexible doctrine, I am nonetheless of the opinion that the opportunity to respond to the Notice regarding the involuntary transfer must be meaningful. The respondent does not seriously disagree with this approach. Counsel states that the doctrine is flexible and less is required to satisfy the doctrine in this case. In others a meaningful opportunity to respond was provided.

[29]      As indicated previously, the respondent takes the position that, apart from the actual names of the sources, the applicant was given as much information as possible. He knew the nature of the escape attempt, the details of who else was allegedly involved, and the relationship between the jewellery smuggling and the escape attempt. (Para 20 of the affidavit of Michael Gallagher). In this concluding paragraph of his affidavit, Mr. Gallagher does not explicitly refer to the drug trafficking, but it would appear implicit that he had also considered the information with respect to such trafficking as part of his reason for the transfer recommendation.

[30]      I have reviewed the record carefully, particularly the affidavit of Mr. Gallagher, and have concluded that I cannot accept the respondent's position that sufficient information was provided to the applicant to justify the recommendation to transfer, for the reasons that follow.

[31]      The issue of just what information should be provided, where the confidentiality of an informant must be ensured, was addressed in Gallant v. Canada, [1989] 3 F.C. 331, where three judges of the Court of Appeal provided different reasons for their opinions in this matter (Justice Desjardin dissented and Justices Pratte and Marceau agreed, but for different reasons). The courts have often had to consider, or balance, the question of how much information should be provided where the confidentiality of informers is claimed: Gallant, supra, & Demaria v. Regional Classification Board, [1987] 1 F.C. 74. What must be provided is as much of the information at issue as is possible, subject only to the legitimate need to safeguard the identity of the informant.

[32]      In his affidavit, Mr. Gallagher states that the information provided to Cst. McCarl was provided subject to a proviso that the name of the source could not be divulged. The source was apparently fearful of reprisals, possibly violent. This person was later identified as the girlfriend of Mr. Mooney. Mr. Gallagher states, later in his affidavit, that the information concerning Mr. Storry's being involved in drug trafficking -- to finance the escape -- was supported by three independent sources of information who indicated that he was involved in dealing drugs in the institution. It is not clear whether any of these informants were inmates, but later, in paragraph 20 of his affidavit, Mr. Gallagher states that, in his opinion as head of the institution, the names of the sources could not be disclosed without jeopardizing their personal safety.

[33]      It is clear that the information regarding the escape attempt was determined by Mr. Gallagher to be reliable and independently corroborated. However, Mr. Gallagher provides absolute no information as to why this information was considered reliable, except for the fact that the RCMP also determined that it was reliable. Moreover, while it is clear that the names of the sources need not have been disclosed, as they are police informers, absolutely no information was provided with respect to any of the details associated with the crimes allegedly committed by Mr. Storry (that is, in particular, the drug trafficking). Other than the statement as to reliability, there was no evidence before the Court which demonstrated that the reliability had been in any way determined by an independent investigation or by any corroborating information from any independent sources.

[34]      The applicant also argues that the decision is patently unreasonable. The Warden's recommendation was based upon the fact that Mr. Storry was considered to be unsuitable for continued placement at William Head and that he required a more structured and secure environment of the Matsqui Institution. As indicated previously, Mr. Storry requested that he be placed at Mission instead of Matsqui. While the reasons provided for the transfer address the issues of jewellery smuggling and drug trafficking, the primary reason for the involuntary transfer appears to have been that there was a serious concern that Mr. Storry would escape from the William Head Institution.

[35]      In assessing whether the decision was patently unreasonable, the Court must consider the nature of the allegations made against the applicant and the nature and quality of the evidence supporting those allegations. In his affidavit, at paragraph 14, Mr. Gallagher states as follows:

On April 26, 1995, after a careful review of all of the material, including the response received from Mr. Storry, I made the decision to recommend Mr. Storry's transfer to Matsqui Institution. I took into account all of the material available. I knew at that time that the source had recanted the story with respect to Mr. Storry's cousin, Mr. Mooney. I knew as well that the RCMP had been contacted again, because of the change in the story, and confirmed that notwithstanding the change in the story that the R.C.M.P. continued to view this informant as completely reliable. In my view, the change of the story to exclude Mr. Mooney did not effect the reliability of the information.

[36]      Absolutely no explanation was provided by Mr. Gallagher as to why a person who clearly changed her evidence, primarily because it would appear that she had a personal vendetta with respect to Mr. Mooney, would remain a reliable informant: Gallant v. Canada, supra, page 351 (in dissent). The sole informant who provided evidence of an escape plot was the ex-girlfriend of Frank Mooney. She recanted her allegations as far as Mr. Mooney was concerned, and yet, as indicated above, she was found by the respondents to still be a reliable informant insofar as the applicant was concerned. Her information that the applicant's brothers were to assist in the escape by providing a boat was contradicted by the information supplied by the brothers. One of the brothers who was to assist was actually incarcerated during the period in question and could not have assisted, at least until after July 1985.. Neither brother was interviewed by the RCMP, nor the institutional authorities, despite their offers to do so. Escape from a federal institution is certainly a serious matter. Given the fact that the informant recanted her story, it would not have been unreasonable to expect that some further independent investigation of the facts would have been undertaken to validate her story.

[37]      As mentioned previously, the decision to transfer the applicant from the William Head Institution to the Mission Institution was based upon, inter alia, information provided to the RCMP from Mr. Mooney's girlfriend, whom they considered reliable. This reliability was maintained without explanation despite the fact that, as indicated previously, she appeared to have a personal vendetta with respect to Mr. Mooney, and was found to have altered her story. The affidavit of Mr. Gallagher, does not appear to support a contention that the RCMP had any independent evidence to corroborate the alleged escape plan. One piece of jewellery was found in the possession of Mr. Storry's wife, upon her leaving the institution, and at least two informants confirmed that Mr. Storry was involved in dealing drugs in the institution. However, there is insufficient evidence to rationally connect these activities with an escape plot -- only Mr. Gallagher's belief, based upon the evidence of Mr. Mooney's girlfriend, that any funds obtained from such activities may have been used to finance it.

[38]      On the basis of the above considerations, it is my conclusion that the recommendation of Mr. Gallagher upon which the decision of the Deputy Commissioner, Pacific Region, was based was patently unreasonable.

[39]      Habeas corpus is not an appropriate remedy for this Court to grant. However, the decision of the Deputy Commissioner, Pacific Region, dated December 18, 1995, shall be set aside, and referred back for re-consideration, in accordance with these reasons.

                                     Howard I. Wetston

    

                                     Judge

Ottawa, Ontario

December 16, 1997