Storry v. Canada ( Warden, William Head Institution )
T-2381-96
Wetston J.
16/12/96
18 pp.
Transfers-Application for judicial review of William Head Institution Warden's recommendation and decision of Deputy Commissioner, Pacific Region, of Correctional Service of Canada to transfer applicant to Mission Institution, both in British Columbia, without changing applicant's security rating-Decision based on information applicant and another inmate planning escape, and involved in jewellery and drug smuggling to finance escape-Institution authorities discovered silver bracelet on applicant's wife upon exit from institution-Applicant provided with following information: nature of alleged escape attempt, identities of other persons allegedly involved, and relationship between alleged drug trafficking, jewellery smuggling and escape attempt-Applicant given opportunity to respond-Application allowed-Two main issues: whether applicant given reasonable, genuine opportunity to respond to allegations for involuntary transfer; if requirements for procedural fairness have been met, whether decision nevertheless patently unreasonable-Charter, s. 7 not engaged as no loss of residual liberty-Although courts should be reluctant to interfere with penitentiary authorities' administrative decisions to transfer inmates from one institution to another, and from one security setting to another, duty of procedural fairness to inform inmate of reasons for intended decisions and to give him opportunity to make representations concerning reasons and general question of whether intended decision necessary or desirable for maintenance of good order and discipline in institution-Neither statute nor regulations distinguish between transfers among institutions with different security levels and transfers among institutions at same level as basis for suggesting obligation to provide procedural fairness vary-Since transfer involuntary, requirement for opportunity to be heard exists and must be meaningful-Burden always on authorities to demonstrate they have withheld only such information as strictly necessary for purpose of protecting identity of informant-In final analysis, test not whether grounds exist for withholding information but rather whether enough information has been revealed to allow person concerned to answer case against him-In instant case, insufficient information provided to applicant to justify recommendation to transfer-Warden provided absolutely no information as to why information considered reliable, except for fact RCMP also determined information reliable-No information provided with respect to any of details associated with crimes allegedly committed, in particular drug trafficking-No evidence demonstrating reliability had been in any way determined by independent investigation or by any corroborating information from any independent sources-Absolutely no explanation provided by Warden as to why informant who had changed her evidence with respect to applicant's alleged accomplice, primarily because she had personal vendetta against him, would remain reliable informant with respect to applicant-Her information applicant's brothers to assist in escape by providing boat contradicted by information supplied by brothers-One of brothers actually incarcerated during period in question-Neither brother interviewed by RCMP, nor institutional authorities-On evidence, Warden's decision patently unreasonable-While habeas corpus not appropriate remedy, decision set aside and referred back for reconsideration.