Lately I’ve represented prisoners on a number of habeas corpus cases. Habeas Corpus is a writ that can be issued by the Superior Courts of the various Provinces and Territories, overturning correctional decisions to raise the security level of prisoners ( usually through segregation or involuntary transfers to maximum). Essentially, based on two major Supreme Court of Canada Judgments – May v. Ferndale Institution,  3 S.C.R. 809, 2005 SCC 82 and Mission Institution v. Khela, 2014 SCC 24,  1 S.C.R. 502 – it has become more possible to argue that Segregation or transfer decisions can be overturned where Wardens fail to provide offenders with sufficient information for them to contest proposed decisions in an informed fashion.
The cases were based on s. 27 of the Corrections and conditional Release Act, S.C. 1992, c.20, the pertinent portions of which are: [ I have emphasized the most relevant phrases]
Information to be given to offenders
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.
(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).
On the one hand the provisions provide offenders with all relevant information to be considered, or that was considered, in taking adverse decisions.
On the other hand ss. 27(3) limits the information that may be withheld from this relevant information to that which is strictly necessary of safety, security or investigatory purposes. In my view, this means that the Warden can’t just remove all information that falls under one of these heads. He/she must demonstrate that there is a real necessity to remove the information, and must base deletions on the facts and circumstances of the matter at hand ( i.e. no gloss exemptions)
My sense is that the Supreme Court decisions have produced good results for habeas corpus applicants. Administrative decisions involving faulty or insufficient information have been overturned or, frequently, the Attorney General has settled cases before they come to a hearing. There is some movement, as well, toward Warden’s providing more details to prisoners and more explanation on why information is being deleted, prior to the prisoners making their rebuttal of proposed decisions.
Despite this trend the government, as it has in the past, has begun to find ways around these pesky judgments.
First, since it often takes a lot of time to get cases before the Courts, they have waited until the case was about to be heard and then offered a settlement. This has a number of tactical advantages:
a) with a settlement the matter is moot and will not be decided by the Superior Court because there is no longer an increased restrictive custody to be challenged and the Crown will not risk the justification or the fairness of decisions being quashed.
b) absent a settlement, the Crown can go before the Court and argue that the case should be considered moot as the prisoner is about to be sent back to lower security or, in the case of segregation, to the general population of the institution.
c) absent a settlement, the prisoner has to take the risk of arguing the case before a Judge. The possibility of losing the case is always there, for a number of reasons, and so he is usually advised to take the settlement.
d) once the matter is settled, the reasons for the transfer will remain on the prisoner’s record, albeit with less impact in view of the Governments retreat via the settlement. Nevertheless, adverse information, even if de-valued, can be used to make adverse decisions down the line, such as on transfers to minimum institutions or parole. The means of correcting the record are cumbersome to say the least.
Second , a recent trend, the Correctional Service has begun purporting to provide more detailed information to prisoners as part of s.27- regarding both what is actually shared and what is exempted under ss.27(3). Within this purported sharing, the Service actually provides little information of any value to somebody who might want to contest a decision, and deletes great swaths of information based on broad policy provisions. This is obviously not what the framers of s.27 intended, but it presumably provides “better ammunition” to defend against cases based on May and Kehla.
Certainly it is fair ball to settle matters as required or to marshall effective legal arguments in a dispute. The problem arises:
a) if the underlying objective of transfers or segregation is to restrict custody in circumstances where the Service knows, or ought to, that this is not justified at law or
b) if the Service is failing to provide required information where it knows, or ought to, that withholding certain information is contary to the law – i.e. is not strictly necessary
c) if restrictive custody is used as a means of isolating or punishing prisoners for as long as possible, without reasonable belief in its necessity.
These circumstances permit potentially gross intrusions on fundamental freedoms. Prisoners may languish unnecessarily in segregation or maximum security for long periods for reasons other than those permitted by law. Then they may be left with adverse information on file that will be difficult, if not impossible, to erase.
The harm caused by this is obvious – potential adverse decisions affecting liberty and the fact of long, unnecessary stays in higher security.
I have been considering some options for prisoners who find themselves “winning the battle but losing the war” .
The principal possibility might be a civil action for declaratory relief and damages for negligence, malfeasance in public office and unlawful confinement. It is worth examining whether relief might lie where it can be shown that the Service left people in restrictive custody without regard to their duties under the Act where they know, or ought to have known, or are wilfully blind to their custodial duties and to the effect of unlawful decisions.
As well, the matter of file correction could be raised via the Privacy Commissioner, and if necessary, the Federal Court in order to get some clarity on the legality of leaving incorrect information on file after successful habeas corpus applications.
Worth considering indeed.