



COURT OF APPEAL FOR ONTARIO

CITATION: Earhart v. Canada (Attorney General), 2019 ONCA 980

DATE: 20191213

DOCKET: C66491

Hourigan, Brown and Paciocco JJ.A.

BETWEEN

Donald Earhart

Applicant (Appellant)

and

The Attorney General of Canada

Respondent (Respondent)

Ian B. Kasper, for the appellant

Derek Edwards, for the respondent

Heard: September 20, 2019

Appeal for the order
    of Justice Kenneth G. Hood of the Superior Court of Justice dated November 29,
    2018, with reasons reported at 2018 ONSC 7160.

Brown J.A.:

I.

OVERVIEW

[1]

In late May 2018, the appellant, Donald Earhart, was serving a life
    sentence for first degree murder at the Bath Institution (the Institution), a
    medium security prison. Two fellow inmates complained that Earhart assaulted
    them on May 25 and 26, 2018.

[2]

As a result, on May 28, 2018 Earhart was transferred on an emergency
    basis to Millhaven Institution, a maximum security institution, pursuant to s.
    29 of the
Corrections and Conditional Release Act
, S.C. 1992, c. 20
    (the 
CCRA
) and s. 13 of the
CCRA Regulations
, SOR/92-620.
    Earhart was also given notice that a recommendation had been made to raise his
    security classification from medium to maximum security.

[3]

Earhart was then given the opportunity to make representations regarding
    his involuntary transfer, as required by the
CCRA
legislative regime:
CCRA
    Regulations
, s. 13.

[4]

On July 10, 2018 the Warden of the Institution rendered two decisions:
    one increased Earharts security classification from medium to maximum security;
    the other approved his emergency involuntary transfer to Millhaven Institution.

[5]

On September 11, 2018, Earhart commenced an application for
habeas
    corpus
, with
certiorari
in aid, seeking an order that he be
    returned to a medium security prison. The application judge dismissed Earharts
    application.

[6]

Earhart appeals. He argues that the application judge committed two
    reversible errors: (i) in respect of Earharts claims that the Institution
    acted unfairly by breaching the
CCRA
s information disclosure
    requirements, the application judge applied the wrong legal test and failed to
    rule on some of the Institutions privilege claims; and (ii) the application
    judge erred in concluding that the Wardens reclassification decision was
    reasonable.

[7]

For the reasons set out below, I would dismiss the appeal.

II.

THE EVENTS AT THE BATH INSTITUTION

[8]

The application judges reasons provide a succinct and accurate summary
    of events. I shall draw on them, inserting at points an explanation of elements
    of the
CCRA
statutory regime that guided the process leading up to the
    Wardens decisions.

[9]

As described by the application judge at para. 12, in late May 2018 the
    staff of the Institution were advised that Earhart had assaulted two other
    inmates:

On May 27, 2018 an inmate at Bath Institution [hereafter
    Inmate 1] contacted security staff advising that he had been assaulted by Mr.
    Earhart on May 25, 2018. Mr. Earhart was placed in voluntary lockup while [the
    Correctional Service of Canada (CSC)] investigated. During the course of
    CSCs initial investigation into the first assault a second inmate [hereafter
    Inmate 2] said that he had been assaulted by Mr. Earhart on May 26, 2018.

[10]

An
    investigation into the allegations was launched. The initial stages involved
    the following events, described at paras. 13-16:

CSC determined during the course of this initial investigation
    that there were reasonable grounds to conclude Mr. Earhart had committed these
    two assaults, his security classification should be increased to maximum and
    that as a result he be transferred to Millhaven Institution, the only viable
    maximum security institution in Ontario.

On May 29, 2018 Security Intelligence Officer Stratford
    conducted an investigation and prepared a summary of this investigation or gist
    to CSC which gist was included in the Assessment for Decision dated May 29,
    2018 whereby Mr. Earharts security classification was increased to
    maximum. As part of the process, Mr. Earhart was interviewed by his parole
    officer. He denied committing any assaults.

Also, as disclosed in the Assessment for Decision, not only
    were the two alleged assaults considered, Mr. Earharts criminal history,
    institutional adjustment and history at various institutions including his
    interaction with staff and other inmates, and his involvement in various
    programs were also considered. The Assessment for Decision is detailed and
    consists of 25 pages of text, along with a four page addendum.

The Assessment for Decision was provided to Mr. Earhart on May
    30, 2018 along with a Notice of Involuntary transfer [dated May 30, 2018] which
    in effect provided a synopsis of the Assessment for Decision and the steps
    taken by CSC in concluding that Mr. Earharts security classification should be
    increased.

[11]

The
    Assessment for Decision included a summary of the allegations of assault made
    by the two inmates, Earharts Aboriginal social history, a risk assessment
    analysis, and a lengthy inmate security level review that canvassed his
    behaviour and program activities while detained at various federal
    penitentiaries across the country. The Assessment for Decision recommended
    increasing Earharts Institutional Adjustment score from moderate to high,
    indicating that he requires a high degree of supervision and control within the
    penitentiary. The Assessment left unchanged his scores for Escape Risk
    (moderate) and Public Safety (high). The Assessment stated:

EARHART requires a high degree of supervision and control
    within an institutional setting and has demonstrated difficulties in the area
    of institutional adjustment. Due to his problematic and violent behaviour which
    is suggestive that he is currently engaged in his offence cycle, the open
    egress, responsibility based environment at Bath Institution does not offer the
    highly structured environment that EARHART requires. Maximum security inmates
    are expected to interact effectively and responsibly while subject to constant
    and direct supervision and demonstrate a minimum interest in participating in
    their Correctional Plan. An emergency involuntary transfer to Millhaven
    Institution for the purpose of ensuring the institutional security is being
    recommended at this juncture and Millhaven Institution is the only viable
    maximum security institution in Ontario.

[12]

The
    Notice of Involuntary Transfer summarized the circumstances of the assaults
    alleged by the two other inmates and the recommendation of the Institutions
    Case Management Team to increase Earharts security classification to maximum.

[13]

Section
    13(2) of the
CCRA Regulations
establishes a process by which an inmate
    transferred on an emergency basis to a higher-security prison can make
    after-the-fact representations about his transfer. It provides:

13(2)
Where the Commissioner or a staff member
    designated in accordance with paragraph 5(1)(b) determines that it is necessary
    to immediately transfer an inmate for the reasons set out in subsection (1),
    the institutional head of the penitentiary to which the inmate is transferred
    or a staff member designated by that institutional head shall

(a)
meet with the inmate not more than two
    working days after the transfer to explain the reasons for the transfer and
    give the inmate an opportunity to make representations with respect to the
    transfer in person or, if the inmate prefers, in writing;

(b)
forward the inmates representations to
    the Commissioner or to a staff member designated in accordance with paragraph
    5(1)(b); and

(c)
give the inmate, within five working
    days after the final decision, written notice of the final decision respecting
    the transfer and the reasons for the decision.

[14]

For
    any process in which an inmate is entitled to make representations, such as a
    transfer to a higher-security prison,
CCRA
s. 27 creates information
    disclosure requirements. Whether the Institution complied with those
    requirements lies at the heart of Earharts claim of procedural unfairness. Sections
    27(1) and (2) state:

27(1)
Where an offender is entitled by this
    Part or the regulations to make representations in relation to a decision to be
    taken by the Service about the offender, the person or body that is to take the
    decision shall, subject to subsection (3), give the offender, a reasonable
    period before the decision is to be taken, all the information to be considered
    in the taking of the decision or a summary of that information.

(2)
Where an offender is entitled by this Part
    or the regulations to be given reasons for a decision taken by the Service
    about the offender, the person or body that takes the decision shall, subject
    to subsection (3), give the offender, forthwith after the decision is taken,
    all the information that was considered in the taking of the decision or a
    summary of that information.

[15]

Earhart
    provided a 21-page handwritten rebuttal on June 4, 2018, and on June 10, 2018,
    his counsel provided a five-page opinion letter to Legal Aid Ontario concluding
    that the increase to Earharts security classification was unlawful. Earhart
    included this letter as part of his ongoing rebuttal.

[16]

In
    his rebuttal, Earhart: (i) denied hitting Inmate 1; (ii) admitted striking
    Inmate 2 but stated it was done in self-defence; (iii) stated that CCTV video
    footage would corroborate his story; and (iv) identified a number of other
    inmates whom Institution staff should interview as they would support Earharts
    version of events. Earhart also complained that the Assessment for Decision did
    not include reliability indicators, or codes, for the information obtained
    during the investigation.

[17]

On
    June 20, 2018, a Security Intelligence Officer at the Institution, Charles Stratford,
    prepared Memo #21, which was 13 pages in length. Memo #21 repeated the
    information obtained from Inmates 1 and 2 (whom it named), set out the
    information obtained from the interviews conducted with inmates identified by
    Earhart in his rebuttal, together with the writers assessment as to whether
    the information from the other inmates supported Earharts version of events,
    and provided a summary of Stratfords review of CCTV footage. Memo #21 also
    assigned to the information obtained from all inmates one of the four
    reliability codes set out in Commissioners Directive 568-2, Recording and
    Sharing of Security Information and Intelligence: Unknown Reliability;
    Doubtful Reliability; Believed Reliable; and Completely Reliable. I will return
    to this Directive later in these reasons. Memo #21 was given to Earhart.

[18]

In
    Memo #21, SIO Stratford stated that: [T]he offenders that EARHART requested
    statements from, provided no supporting evidence to his claim of innocence.
    Additionally, the statements offender EARHART made within his written rebuttal,
    contradict his original statement of events.

[19]

The
    final steps in the process leading up to the Wardens final decision were
    described as follows by the application judge, at paras. 18 and 19:

On June 28, 2018 Mr. Earhart provided a second rebuttal. This
    one was again handwritten and consisted of 12 pages. In it Mr. Earhart, among
    other things, complained of the CSC investigation and the information provided
    to him. He suggested others to be interviewed, commented on the lack of
    appropriate exculpatory CCTV footage and critiqued the stories given by others.
    On June 28, 2018 the warden had a meeting with Mr. Earhart where he provided a
    verbal rebuttal to his increased security classification and transfer.

On July 5, 2018 SIO Stratford prepared Memo #22, which was 2½
    pages in length and responded to some of the matters raised in Mr. Earharts
    second rebuttal.

[20]

Memo
    #22 contained a description and explanation of the reliability codes set out in
    the Commissioners Directive 568-2.

III.

THE WARDENS DECISIONS

[21]

On
    July 9, 2018 the Warden issued two decisions. In her Offender Security Level (or
    security reclassification) decision, the Warden was satisfied that the evidence
    demonstrated Earhart had physically assaulted the two inmates. Although the
    security assessment test suggested a medium security classification, the Warden
    approved maximum security given case specifics with ratings of High
    Institutional Adjustment, Moderate Escape Risk and High Risk to Public Safety.
    She concluded:

[T]here are no reasonable alternatives to transfer to maximum
    security at this juncture. EARHART has physically assaulted two offenders in a
    responsibility-based, small-group living environment where the behavioural
    expectations [are] the capacity to manage responsibility for their own
    behaviour with minimal staff.

[22]

The
    Wardens decision regarding Earharts involuntary transfer to Millhaven
    Institution considered the same information set out in her security
    reclassification decision, albeit in more detail. The Warden was satisfied the
    evidence demonstrated that Earhart had physically assaulted the two inmates.
    She continued:

This conduct does not meet the behavioural norms expected of
    inmates at medium security. His reassessed security requirements indicate that
    he requires an institutional environment which is highly structured in which
    individual or group interaction is subject to constant and direct supervision.

Therefore, I am approving the emergency involuntary transfer to
    Millhaven Institution. Emergency Involuntary Transfer is Approved.

[23]

I
    will consider the decisions in more detail during the analysis of Earharts
    specific grounds of appeal.

IV.

THE
CCRA
REGIME FOR WITHHOLDING INFORMATION FROM AN INMATE

[24]

One
    final piece of background information is required to provide the context for
    some of Earharts grounds of appeal.

[25]

The
    decisions of the Warden, as well as Memos #21 and 22, state that some
    information was withheld from Earhart pursuant to
CCRA
s. 27(3), which
    forms part of the statutory regime dealing with the information to be provided
    to offenders. That sub-section states:

27(3)
Except in relation to decisions on
    disciplinary offences, where the Commissioner has reasonable grounds to believe
    that disclosure of information under subsection (1) or (2) would jeopardize

(a)
the safety of any person,

(b)
the security of a penitentiary, or

(c)
the conduct of any lawful
    investigation,

the Commissioner may authorize the withholding from the
    offender of as much information as is strictly necessary in order to protect
    the interest identified in paragraph (a), (b) or (c).

[26]

In
Mission Institution v. Khela
, 2014 SCC 24, [2014] 1 S.C.R. 502, the
    Supreme Court observed that if a prison chooses to withhold from an inmate information
    upon which it relies in making a decision, the onus is on the decision-maker to
    invoke
CCRA
s. 27(3) and justify its invocation: at para. 86. If it
    fails to do so, and the decision-maker relies on withheld information without
    justifying its non-disclosure under s. 27(3), the decision likely will be procedurally
    unfair and unlawful: at paras. 89, 92.

V.

ISSUES ON APPEAL

[27]

Earhart
    submits that the Wardens decisions were based on key information kept secret
    from him. Although the Institution made sweeping, non-specific privilege claims
    on virtually every piece of evidence, it never offered case-specific reasons
    for withholding the information. As a result, it was impossible for Earhart to
    challenge the claims made against him or discern how the Warden came to accept
    that the assaults occurred, rendering her decisions unfair and unreasonable.

[28]

More
    specifically, Earhart contends that the application judge erred by:

(i)

applying an incorrect legal test for determining whether a breach of the
    statutory disclosure obligation under
CCRA
s. 27 had occurred;

(ii)

failing
    to analyze or rule on whether the Institution had proven that its claims of
    privilege under s. 27(3) of the
CCRA
were justified; and

(iii)

concluding
    that the reclassification decision was reasonable as he misapprehended the
    evidence on the Wardens reasons for decision.

[29]

As
    the first two grounds of appeal concern the adequacy of the Institutions
    disclosure under
CCRA
s. 27, I will deal with them together.

VI.

STANDARD OF REVIEW

[30]

The
    question for this court to decide is whether the application judge identified
    the appropriate standard of review and applied it properly. This court, in
    effect, steps into the shoes of the lower court to focus on the administrative
    decision:
Agraira v. Canada (Public Safety and Emergency Preparedness)
,
    2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-47.

[31]

In
    the context of an application for
habeas corpus
, once the inmate has
    demonstrated that there was a deprivation of liberty and casts doubt on the
    reasonableness of the deprivation, the onus shifts to the respondent
    authorities to prove that the transfer was reasonable given all the
    circumstances:
Khela
, at para. 77. The standard for determining
    whether the decision-maker complied with the duty of procedural fairness is
    correctness:
Khela
, at para. 79.

VII.

FIRST ISSUE: DID THE INSTITUTION COMPLY WITH THE DISCLOSURE REQUIREMENTS
    OF
CCRA
s. 27?

A.

The governing principles

[32]

An
    unlawful deprivation of liberty for purposes of habeas corpus may result if
    there has been a breach of procedural fairness leading to the decision to
    transfer the inmate to a higher security prison or if the decision is not
    reasonable:
Khela
, at paras. 52 and 65. To ensure that such a transfer
    decision is procedurally fair, the correctional authorities must meet the
    statutory disclosure requirements: at para. 98.

[33]

CCRA
s. 27(1) provides that where an inmate is entitled by regulations to make
    representations, as Earhart was entitled to do in this case, the decision-maker
    must give him all the information to be considered in taking a final decision
    regarding the transfer, subject only to s. 27(3):
Khela
, at para. 81.
    Section 27 guides the decision maker and elaborates on the resulting
    procedural rights: at para. 82.
Khela
highlights three distinctive
    characteristics of the
CCRA
s. 27 disclosure regime:

(i)

CCRA
s. 27 disclosure is not tantamount to the disclosure
    required by
R. v. Stinchcombe
, [1991] 3 S.C.R. 326. The section does
    not require correctional authorities to produce evidence in their possession
    that was not taken into account in the transfer decision, only the evidence
    that was considered: at para. 83; see also
May v. Ferndale Institution
,
    2005 SCC 82, [2005] 3 S.C.R. 809, at para. 91;

(ii)

The requirement that the inmate be provided with all the information
    can be satisfied by providing him with a summary of that information, as
    provided by
CCRA
s. 27(1): at paras. 81 and 83; and

(iii)

If
    the warden withholds information from the inmate on the basis of s. 27(3), the
    onus is on the decision-maker to invoke the provision and prove that there were
    reasonable grounds to believe that disclosure of the information would
    jeopardize the security of the prison, the safety of any person, or the conduct
    of an investigation. Where s. 27(3) is invoked, the warden is in the best
    position to determine whether such a risk could in fact materialize and, as a
    result, is entitled to a margin of deference on this point:
Khela
, at
    paras. 86 and 89.

[34]

If
    correctional authorities fail to comply with the s. 27 regime, a reviewing
    court may find that the transfer decision was procedurally unfair, and the
    deprivation of the inmates liberty will not be lawful: at para. 85. This is a
    legitimate ground upon which an inmate may apply for
habeas corpus
:
Khela
,
    at para. 85. Nevertheless, not all breaches of the
CCRA
or its
    regulations will be unfair: at para. 90. It will be up to the reviewing
    judge to determine whether a given breach has resulted in procedural unfairness:
    at para. 90. For instance, if s. 27(3) has been invoked erroneously or if there
    was a strictly technical breach of the statute, the reviewing judge must
    determine whether that error or that technicality rendered the decision
    procedurally unfair: at para. 90.

[35]

Earharts
    submissions concerning procedural unfairness must be assessed in the light of
    these principles.

B.

Application of the gOVERNING principles

Earharts first argument: The application judge applied the
    wrong legal test

[36]

Earhart
    first argues that the application judge used the wrong legal test to assess his
    complaint about the inadequacy of the Institutions disclosure of information
    to him. Instead of considering whether the Institution breached
CCRA
s. 27s disclosure requirements, the application judge only considered whether
    Earhart had received sufficient information to respond to the case the prison
    chose to tell him about. According to Earhart, that was an error of law.

[37]

I
    am not persuaded by this submission. It is true that at para. 7 of his reasons,
    the application judge wrote: If the decision-maker fails to provide
    information sufficient to allow an offender to know the case they have to meet
    to challenge a deprivation of liberty, the decision will be void for lack of
    jurisdiction. In support of that proposition, the application judge cited
May
,
    in which the Supreme Court stated, at para. 92:

In the administrative context, the duty of procedural fairness
    generally requires that the decision-maker discloses the information he or she
    relied upon. The requirement is that the individual must know the case he or
    she has to meet. If the decision-maker fails to provide sufficient information,
    his or her decision is void for lack of jurisdiction.

[38]

While
    the application judges reason did not incorporate the first sentence of para.
    92 in
May
,
that
    omission does not lead to the conclusion that the application judge employed
    the wrong legal test in his review exercise. When his reasons are read as a
    whole, it is clear they were written to address Earharts key argument 
    namely, that the process was procedurally unfair because the Institution
    withheld information considered by the Warden in her decisions without meeting the
    test in
CCRA
s. 27(3) for justifying the withholding of such
    information. Accordingly, I am not persuaded that the application judges
    analysis rested on incorrect legal principles.

[39]

Moreover,
    by acknowledging that Earhart had received adequate information to respond to
    the case against him, the application judge was not importing an erroneous
    principle into his decision. One goal of procedural fairness is to ensure that that
    an individual knows the case he must meet:
May
, at para. 92;
Khela
,
    at para. 94.

Earharts second argument: The disclosure of reliability assessments

[40]

The
    Assessment for Decision contained information obtained from Inmates 1 and 2.
    Memo #21 also included such information, together with information from the
    inmates whom Earhart asked the Institution to interview. The Assessment did not
    assign any reliability codes to the information; Memo #21 did.

[41]

Earhart
    contends that the Institution failed to provide him with sufficient information
    to challenge the reliability assessments made by the Institution with respect
    to the information relied upon by the Warden, thereby breaching the informational
    disclosure requirements of
CCRA
s. 27.

[42]

The
CCRA
s. 27 disclosure regime includes an information reliability
    assessment scheme. Commissioners Directive 568-2 creates standards and codes
    for the evaluation of information in a security intelligence report, such as
    Memo #21 authored by SIO Stratford. The Directive provides that the evaluation
    of information for intelligence purposes consists of a process whereby the
    reliability of information is examined on the basis of the credibility of the
    source and the validity of the information: at Annex B, para. 1. As well,
    [i]n addition to assessing the reliability of the information, an assessment
    of the reliability of each source will be made utilizing the codes outlined
    below, namely: Unknown Reliability; Doubtful Reliability; Believed Reliable;
    and Completely Reliable: at Annex B, para. 4.

[43]

Directive
    568-2 explains the standard, or basis, underlying the assignment of a
    particular code to specific information, at Annex B, para. 5:

The reliability standards and the codes to be used on the
    Security Intelligence Reports are as follows:

a. Unknown Reliability (Court) U/R or U/R/C

The Security Intelligence Officer, at the time of recording
    the information, is unable to assess the reliability of the information
    received.

b. Doubtful Reliability (Court) D/R or D/R/C

Refers to information which is believed unlikely at the
    time, although the element of possibility is not excluded.

c. Believed Reliable (Court) B/R or B/R/C

Refers to information that gives every indication that it is
    accurate, but has not been confirmed. The information somewhat agrees with the
    general body of intelligence, is reasonable and consistent with other
    information on the same subject.

d. Completely Reliable (Court) C/R or C/R/C

Refers to information that is substantiated or confirmed by
    one or more independent sources. The information is logical and consistent with
    other corroborated information on the same subject.

[44]

As
    noted, Memo #21 assigned reliability codes to the information disclosed, and
    Memo #22 reproduced the explanation of the reliability codes set out in
    Commissioners Directive 568-2. Both were given to Earhart. As a result, with
    the exception of information withheld pursuant to
CCRA
s. 27(3), Earhart was provided with the information
    obtained from inmates during the investigation, or summaries thereof, together with
    the reliability code assigned to the information.

[45]

Nevertheless,
    Earhart contends that that level of disclosure did not meet the requirements of
    the
CCRA
s. 27 regime because he was entitled to know on what basis a
    reliability code was assigned to specific information.

[46]

In
    fact, Earhart was provided with such information. Commissioners Directive
    568-2 explains the basis, or standard, upon which a particular reliability
    code is assigned to specific information. Memo #22 provided Earhart with
    complete information about those standards. Disclosure of the reliability code
    assigned to specific information, as was done in Memo #21, enables an inmate to
    challenge the reasonableness of a decision based, in part, on the reliability
    codes assigned to the various pieces of information the decision-maker relied
    upon. Earhart was aware of the reliability codes assigned to the information
    obtained from the inmates and, in his rebuttals, he disputed the reliability of
    much of their information.

[47]

Earhart
    advances a second argument, which is a specific instance of the first: the
    Institution failed to provide him with the evidence and reasons supporting the
    Believed Reliable reliability code assigned to some of Inmate 1s
    information. Since the Wardens decision to believe Inmate 1s version of
    events over Earharts played a central role in her ultimate decisions, Earhart
    submits that procedural fairness required disclosure to him of the basis for
    the reliability assessment assigned to Inmate 1s information. In addition,
    Earhart argues that the Institution failed to justify under
CCRA
s.
    27(3) the withholding of information about how the reliability code for Inmate
    1s statement was determined.

[48]

I
    am not persuaded by these submissions. My first reason repeats the one just
    given: Commissioners Directive 568-2 explains the standard, or basis, for the
    assignment of a particular reliability code to specific information from an
    inmate.

[49]

However,
    Earhart accurately points out that Memo #21 invokes s. 27(3) in respect of the
    reliability code assigned to some information from Inmate 1. To put the issue
    in context, Memo #21 provides the most comprehensive record of the information obtained
    from Inmate 1. The memo assigned a reliability code of Unknown Reliability to
    information provided by Inmate 1 about the assault during the two interviews
    conducted with him on May 27, 2018. In respect of that information, Memo #21
    states:

Some of the information that was shared during this interview
    is being withheld as per subsection 27(3) of the CCRA, Commissioner[]s
    Directive (C.C) 701 and Policy Bulletin 451 because there are reasonable
    grounds to believe that disclosure of that information would jeopardize the
    safety of one or more persons and the security of the institution.

[50]

A
    third interview of Inmate 1 was conducted by SIO Stratford on May 28, 2018. The
    information provided by Inmate 1 at that time was assigned a reliability code
    of Believed Reliable. Section 27(3) was again invoked, but in different
    terms:

Some of the information shared during this interview and the
    process in determining the Reliability Code of [Inmate 1s] statement, is being
    withheld as per subsection 27(3) of the CCRA, Commissioner[]s Directive (C.C)
    701 and Policy Bulletin 451 because there are reasonable grounds to believe
    that disclosure of that information would jeopardize the safety of one or more
    persons and the security of the institution.

[51]

Earhart
    argues that the application judge failed to determine whether the Institution
    had justified its invocation of s. 27(3) in accordance with the process set out
    in
Khela
, at paras. 86 to 89.

[52]

I
    disagree.

[53]

In
    accordance with the procedure directed in
Khela
at para. 87, the
    respondent filed with the application judge a confidential affidavit from Gail
    Shkwarek, an SIO at the Institution who had supervised the work of SIO
    Stratford. Her affidavit identified information withheld pursuant to
CCRA
s. 27(3). The withheld information was contained in Statement/Observation
    2018-423-182 prepared by SIO Stratford and referred to by the Warden in her
    decisions. Most of the withheld information identified in the confidential
    affidavit concerned information obtained by SIO Stratford in his interviews
    with Inmates 1 and 2, as well as his review of some CCTV footage.

[54]

The
    application judge reviewed the confidential affidavit and the withheld
    information, and wrote, at para. 21:

While some specific information was withheld from Mr. Earhart,
    such as the CCTV footage itself and specifics of some of SIO Stratfords
    investigations this was done pursuant to s. 27(3) of the [
CCRA
] (the Act).
    Under s. 27(3) of the Act the Commissioner, or his or her representative, may
    withhold information if they have reasonable grounds to believe that disclosure
    of information would jeopardize the safety of any person or the security of a
    penitentiary. They are in the best position to determine whether a risk could
    in fact materialize to the security of the prison or to any person through the
    release of information. As a result the warden is entitled to a margin of
    deference on this:
Khela
, ibid, at para. 89.

[55]

Contrary
    to the submissions of Earhart, I read this portion of the application judges
    reasons as directly considering and accepting the Institutions invocation and
    proof of the information exceptions contained in
CCRA
s. 27(3). Having
    reviewed the confidential affidavit, I see no reversible error in the
    application judges analysis.

[56]

That
    said, the confidential affidavit of SIO Shkwarek could have been better
    drafted. As
Khela
explains, for the Institution to rely on
CCRA
s. 27(3), it must invoke the section  which was done in this case  and prove
    that the withholding of any information related to concerns arising from the
    interests protected by s. 27(3), in this case that there were reasonable
    grounds to believe that disclosure of the information would jeopardize the
    safety of one or more persons and the security of the institution. A
    confidential affidavit filed on a
habeas corpus
application to justify
    an institutions invocation of
CCRA
s. 27(3) should identify the piece
    or group of withheld information, followed immediately by the evidence justifying
    its non-disclosure, instead of separating the withheld information from the
    justificatory evidence, as was done in this case.

[57]

Commissioners
    Directive 701 provides, in Annex C, that an institution may only withhold as
    much information as is strictly necessary to protect the interests identified
    in
CCRA
s. 27(3): at para. 3. Where information is withheld, an inmate
    should be provided a gist of the withheld information: at paras. 1-2, 4. The
    Directive states, at para. 2:

A gist conveys the essence of the information to be considered
    by decision makers and provides sufficient detail to allow the offender to know
    what the information is about. It must give as much of the information as
    possible without disclosing information which can legitimately be withheld under
    the specified criteria for non-disclosure.

[58]

The
    application judge specifically considered whether the Institution had provided
    Earhart with an adequate gist of the withheld information. He concluded, at
    para. 22, that it had:

In any event, Mr. Earhart was provided with a gist in Memo #21
    of what was withheld so as to enable him to respond. He was also provided with
    a gist of the other concerns with his prison behavior based upon his security
    file history as set out in Memo #21 at pages 12 and 13. I have reviewed the
    confidential affidavit of Ms. Shkwarek and Exhibits B and E to J inclusive upon
    which the gist of the two altercations was based and the gist of this prison
    behavior was based. The gists given are in my view more than adequate in order
    to allow Mr. Earhart to know what was alleged against him and for him to
    respond.

[59]

I
    agree with the application judge that the gists of the withheld information contained
    in Memo #21 were more than adequate to allow Earhart to know what was alleged
    against him and to respond. I would also observe that the substance of much of
    the withheld information in fact was disclosed in the latter part of Memo #21,
    albeit originating from sources other than Inmates 1 and 2.

[60]

The
    present case differs markedly from the quality of the disclosure at issue in
Khela
,
    which the Supreme Court described as [v]ague statements regarding source
    information and corroboration: at para. 94. Here, the disclosure made to
    Earhart identified who made which statements, together with the reliability
    codes assigned to the information.

[61]

As
    a result, I am satisfied that the Institution met its statutory disclosure
    obligations regarding the information obtained from inmates and the reliability
    it attributed to that information.

The CCTV footage and photographs

[62]

In
    Memo #21, SIO Stratford reported that [a]fter viewing the CCTV footage in
    relation to [Inmate 1s] statement of an assault occurring in the Unit 1
    entrance, it was found that there was no CCTV footage of that area. As to the
    location where Inmate 2 said he was assaulted, SIO Stratford wrote:

[T]he writer was able to verify that EARHART and [Inmate 2]
    were in the kitchen/washroom area on North A range at the same time between
    1230 hrs. and 1330 hrs. [Inmate 2] can be seen entering this area fully clothed,
    then a brief time later, exited with his shirt and belt now in his left hand
    with his facial area visibly red. [Inmate 2] then turned around and entered the
    kitchen/bathroom area again, where he then exited approximately 30 seconds
    later and proceeded to his cell.

[63]

Memo
    #21 went on to state that some of the CCTV footage information about the
    reported incidents was being withheld pursuant to
CCRA
s. 27(3) as
    there are reasonable grounds to believe that disclosure of that information
    would jeopardize the security of the institution.

[64]

Earhart
    submits that the summary of the contents of the CCTV footage breached the
    disclosure requirements of s. 27 because no case-specific reason was given for
    withholding the videos, nor did the prison summarize the entirety of the video
    footage available.

[65]

The
    application judge rejected Earharts submission, holding at para. 23:

I have also reviewed the CCTV footage which was withheld from
    Mr. Earhart for general prison security reasons, namely, the position of the
    CCTV blind spots. While it appeared to me that [Inmate 2] carried his
    shirt and belt in his right hand as opposed to his left, the balance of the
    description as contained in Memo #21 at page 5 and summarized in the wardens
    decision is reasonable when compared against the CCTV footage. Mr. Earhart,
    despite not seeing the actual video, was able to respond to it.

[66]

Having
    reviewed the CCTV footage filed with the respondents confidential affidavit, I
    agree with the application judges assessment of the adequacy of the gist of
    the CCTV footage provided to Earhart. As well, the justification offered by the
    respondent in Memo #22 and its public affidavit for withholding CCTV footage
    was a reasonable one  i.e., disclosure would reveal camera blindspots that
    would pose a risk to the institutional security as inmates with knowledge of
    the blind spots could act away from the supervision of Institution staff. The
    reasonableness of that justification was underlined by Earharts sketch of the
    Unit 1 vestibule area that he included in his first rebuttal. In his sketch,
    Earhart noted that he did not know if there were cameras pointed in certain
    directions, underscoring the point made in the confidential affidavit that
    inmates are often keen to collect information about the camera system. I see no
    reversible error in the application judges finding that the respondent made
    out its
CCRA
s. 27(3) justification in respect of the CCTV footage.

[67]

Dealing
    with the photographs taken of Inmates 1 and 2, the Assessment for Decision
    states that when the inmates were interviewed by Institution staff, they had
    visible signs of an assault and pictures were taken for the incident file. In
    her security reclassification decision, the Warden noted that SIO Stratford
    observed injuries on the two victims when taking their official statements
    regarding the assaults and that he took photos. A similar statement can be
    found in her Institutional Transfer decision, as well as a statement that a
    staff member had observed Inmate 2 had a black eye.

[68]

As
    part of his broader submissions before the application judge that it was unfair
    he was provided with only summaries of much of the evidence, Earhart observed that
    the pictures of the injuries were only described. However,
CCRA
s.
    27(1) permits disclosure to be made by way of a summary of information.
Khela
holds that a summary suffices for purposes of assessing the procedural adequacy
    of disclosure: at para. 83. Given the statutory availability of providing a
    summary of information in the photographs, I see no breach of the
CCRA
s. 27(1) duty of disclosure. I would also note that in the case of Inmate 2,
    reliance was placed on how Inmate 2 looked on the CCTV footage. As I have
    stated, I agree with the application judge that the gist of that information
    was adequate.

Information obtained from Earhart and inmates other than
    Inmates 1 and 2

[69]

Earhart
    advances one additional submission concerning the inadequacy of the
    Institutions information disclosure. Memo #21 records that some information
    obtained during interviews with Earhart and several of the other inmates whom
    he asked the Institution to interview was being withheld pursuant to
CCRA
s. 27(3)(a) and (b). Earhart submits it was wrong to withhold from him
    information disclosed during his interview, as obviously he is aware of the
    information. As well, the other inmates were told that their information would
    be shared with Earhart, so the Institution could not invoke
CCRA
s.
    27(3) to withhold it.

[70]

In
    her confidential affidavit, Ms. Shkwarek does not set out any information
    obtained from Earhart or the other inmates interviewed at his request that the
    Institution was withholding pursuant to
CCRA
s. 27(3). That leads me
    to query whether the insertion in Memo #21 of references to
CCRA
27(3)
    at the end of the sections setting out information from other interviewed
    inmates was boilerplate, not references to information actually withheld. In
    the result, I am satisfied that nothing turns on this point. The Warden did not
    indicate that she was relying on any such information in making her decisions.
    Given that state of the record, I am not persuaded that any procedural
    unfairness resulted in practice from the
CCRA
s. 27(3) references
    included in Memo #21 on this point.

Conclusion

[71]

For
    the reasons set out above, I do not accept Earharts submission that the
    application judge erred in concluding that the decision was reached in a
    procedurally fair manner: at para. 30.

VIII.

SECOND
    ISSUE: DID THE APPLICATION JUDGE ERR BY CONCLUDING THAT THE WARDENS RECLASSIFICATION
    DECISION WAS REASONABLE?

A.

The issue stated

[72]

On
    this second ground of appeal, Earhart advances two arguments.

[73]

First,
    he contends that the application judge misapprehended the Wardens reasons.

[74]

Second,
    Earhart submits that the Wardens reclassification decision was unreasonable
    because she failed to explain why she preferred the information given by
    Inmates 1 and 2 about the assaults over his explanation of events. Since the
    Warden had described the two assaults as lying [a]t the root of the decision
    to remove Earhart from the Institution, her failure to explain her credibility
    assessment in respect of the assaults fatally taints her decisions.

[75]

Although
    Earharts appeal challenges the reasonableness of only the reclassification
    decision, that decision and the transfer decision inform one another and draw
    upon the same evidentiary foundation. Some further description of both
    decisions is required.

B.

The Wardens decisions

[76]

In
    her security reclassification decision, the Warden noted that [a]t the root of
    the decision to remove EARHART from Bath is whether he physically assaulted two
    inmates during the weekend of May 25. In considering that issue, the Warden
    relied on: the statements of the Inmates 1 and 2; the observations of SIO
    Stratford, who saw injuries on the two victims when he interviewed them and
    took photos of the injuries; Earharts denial of any assault on Inmate 1 but
    his admission that he struck Inmate 2 in self-defence, after initially denying
    that he struck Inmate 2 at all; a security risk assessment test that produced a
    score suggestive of medium security; written submissions from Earhart and his
    lawyer; SIO Stratfords two memos (Memos #21 and #22), which included
    information from interviews with several inmates whom Earhart had asked be
    interviewed; the absence of CCTV footage of the vestibule area where the
    alleged assault of Inmate 1 took place; what the CCTV footage showed of Inmate
    2 leaving the kitchen/bathroom area after the second alleged assault; the
    failure of the broader interview process to locate any other inmate who
    witnessed either assault; and an in-person discussion the Warden held with
    Earhart. The Warden noted that the interviews with other inmates confirmed that
    Earhart had been inciting [Inmate 1] on Friday evening.

[77]

The
    Warden then set out her analysis, credibility assessments, and conclusion:

In review of information available, I am satisfied that the
    evidence has demonstrated that EARHART physically assaulted two offenders as
    noted above. I have relied on the statements of the two victims who both reported
    that EARHART assaulted them. I note that the A/SIO observed injuries on the two
    victims when taking their official statements regarding the assaults and that
    he took photos. I note that some information has been withheld from EARHART due
    to the belief that the disclosure of that information would jeopardize the
    safety of any person as per CCRA section 27(3)(a). EARHART has denied
    assaulting [Inmate 1] and indicates that his physical assault of [Inmate 2] was
    done in self-defence. EARHART has attempted to offer a very intricate and
    convoluted explanation as to how he could not have possibly assaulted [Inmate 1].
    This is typical of his pattern of behaviour where he usually minimizes, denies
    and rationalizes his negative actions. This conduct does not meet the
    behavioral norms expected of inmates at medium security. His reassessed
    security requirements indicate that he requires an institutional environment
    which is highly structured in which individual or group interaction is subject
    to constant and direct supervision. Institutional Adjustment is now clearly
    High.

[78]

Although
    the security assessment test suggested a medium security classification, the
    Warden approved maximum security given case specifics with ratings of High
    Institutional Adjustment, Moderate Escape Risk and High Risk to Public Safety.
    She referred to the Aboriginal history of Earharts family. The Warden then concluded:

These circumstances are noted but unfortunately, there are no
    reasonable alternatives to transfer to maximum security at this juncture. EARHART
    has physically assaulted two offenders in a responsibility-based, small-group
    living environment where the behavioural expectations [are] the capacity to manage
    responsibility for their own behaviour with minimal staff.

[79]

The
    Wardens decision regarding Earharts involuntary transfer to Millhaven
    Institution considered the same information referenced in her security
    reclassification decision, albeit in more detail. The Warden was satisfied the
    evidence demonstrated that Earhart had physically assaulted the two inmates.
    She continued:

This conduct does not meet the behavioural norms expected of
    inmates at medium security. His reassessed security requirements indicate that
    he requires an institutional environment which is highly structured in which
    individual or group interaction is subject to constant and direct supervision.

Therefore, I am approving the emergency involuntary transfer to
    Millhaven Institution. Emergency Involuntary Transfer is Approved.

C.

Analysis

First argument: The application judge misapprehended the
    Wardens reasons

[80]

Earhart
    submits that the application judge misapprehended the Wardens reasons for
    reclassifying his security level by ignoring her statement that the assaults
    were at the root of the decision to remove Earhart.

[81]

I
    see no merit in this submission. It ignores the plain language of the
    application judges reasons. The application judge commenced his reasonableness
    review by addressing, at paras. 25 to 27, how the Warden dealt with the issue
    of the assaults. He did not misapprehend her reasons.

Second argument: The Wardens decisions were unreasonable

[82]

The
    deferential reasonableness standard applies to a review of the Wardens
    decisions because security reclassification and involuntary transfer decisions
    are administrative decisions made by a decision-maker with expertise in the
    environment of a particular penitentiary. To apply any standard other than
    reasonableness in reviewing such administrative decisions could well lead,
    inappropriately, to the micromanagement of prisons by the courts:
Khela
,
    at para. 75.

[83]

Given
    that deferential standard of review, I am not persuaded by Earharts second
    argument that the Wardens explanation about why she concluded that Earhart had
    assaulted Inmates 1 and 2 did not meet the reasonableness requirements of
    justification, transparency, and intelligibility.

[84]

The
    application judge directly addressed this argument at paras. 26 and 27 of his
    reasons, where he wrote, in part:

The wardens decision does not rely solely on the information
    categorized as Believed Reliability. Memo #21, which the warden reviewed in
    coming to her decision, sets out what is considered reliable and the level of
    reliability. Not everything is categorized. Not all of the information is
    either of Unknown or Doubtful Reliability. The warden in her decision set out
    what evidence she relied upon in coming to her decision. Mr. Earhart was unable
    to show any authority to support the proposition that she was restricted to
    considering only information of Believed Reliability. Even if he had such
    authority the information of Believed Reliability, as set out in Memo #21,
    supported the first assault and, as acknowledged by Mr. Earhart in argument before
    me, a finding that Mr. Earhart committed the first assault was enough for his
    increased security classification even if the second assault was rejected by
    the warden. It is for the warden to weigh all the evidence in the exercise of
    her discretion. The warden is entitled to deference on the issue of determining
    whether a given source is reliable:
Khela
, ibid, para[.] 89.

Mr. Earhart makes a similar argument in saying that the
    wardens decision is unreasonable because there was no logical reasoning chain
    in how she came to the conclusion that Mr. Earhart assaulted two inmates. However,
    she did state how she reached this conclusion. She relied on the statements
    from the two victims, the fact they both had injuries and Mr. Earharts
    intricate and convoluted explanation with respect to [Inmate 1] and Mr.
    Earharts changing story with respect to [Inmate 2].

[85]

The
    application judges reasons incorporate
Khela
s
recognition of the comparative
    expertise of courts and wardens on the issue of whether an inmate poses a
    threat to the security of the penitentiary or of the individuals who live and
    work within it. On this point, wardens possess greater knowledge and practical
    experience than courts because they have intimate knowledge of that
    penitentiarys culture and of the behaviour of the individuals inside its
    walls: at para. 76. As well, the reasons apply
Khela
s
recognition that a warden is in the
    best position to determine whether a given source is reliable and some
    deference is owed on this point: at para. 89.

[86]

While
    at the end of the day a warden must explain her determination that results in a
    restriction of an inmates residual liberty interest, I agree with the
    application judge that the Warden did so and that her reasons met the
    justification, transparency, and intelligibility requirements of the
    reasonableness standard. Could the Warden have written better sets of reasons?
    Perhaps. But the legal standard is not perfect reasons, but reasonable ones. As
    well, when reviewing the way in which the Warden expressed her reasoning, it
    must be recalled that administrative decision-making is only one of several
    operational tasks that the Warden is called upon to perform as part of her daily
    job. Unlike members of administrative tribunals, the Warden is not a full-time adjudicator.
    Accordingly, I see no basis for appellate interference with the application
    judges conclusion that Wardens decisions were reasonable.

IX.

DISPOSITION

[87]

For
    the reasons set out above, I would dismiss the appeal.

Released: DB DEC 13 2019

David Brown J.A.

I agree. C.W. Hourigan
    J.A.

I agree. David M.
    Paciocco J.A.


