I have now represented clients on many habeas corpus applications and other proceedings where the crux of the matter comes down to Security Intelligence Officer (“SIO”) information against the prisoner.
Normally this involves information from informants about the prisoner, which purports to show that they are too dangerous to remain at their current level of custody ( minimum, medium or maximum) or that they must be segregated for the same reason.
The Corrections and Conditional Release Act, S.C. 1992, c.20 (“the CCRA”) and related regulations provide a system where institutions must share adverse information with prisoners, who then have the opportunity to respond to the information before a decision is made to involuntarily transfer the inmate to higher security, including the Special Handling Unit or to maintain them in segregation (hereinafter a ”decision”).
The problem arises where the institution states that some or all of the adverse information cannot be shared with the prisoner because revealing it might endanger the safety of informers, the security of the institution or the conduct of current investigations. Herein the standard under ss.27(3) of the CCRA is:
- 3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosure of information ………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).
When this is alleged, according to the Supreme Court of Canada in Mission Institution v Khela  the information that the institution has considered, but not shared, is to be included a confidential record (hereafter “the envelope”) and given to the Judge.
The Court will then consider this concealed information in taking its final decision along with the “public” information also provided by the parties.
The Court has three functions in considering the envelope:
- Whether the institution was right to conceal the information from the prisoner for safety, security or investigative reasons
- Whether the institution properly addressed ss.27(3) in concealing any or all of the information in the envelope.
3. Whether the information supports the institution’s case
1. Security considerations
In reviewing whether the information was necessarily concealed, per paragraphs a, b and c of ss.27(3),above, the Court will defer to the correctional, security and related expertise of the institutional staff – i.e. it will overturn any decision to withhold information only if it believes this was clearly unreasonable even given the knowledge and experience of institutional authoritie
2. Other compliance with s.27
Aside from this “security” analysis, however, the Court will consider whether the envelope contains any information that was considered by the institution but unnecessarily withheld under ss.27(3), the Court. Under the Khela reasons, the Court can simply decide that certain information was not shared according to the wording of the statute and overturn the institution’s decision. No defference will be given to the institutional staff’s expertise.
3. The justification for the decision under review
In reviewing, the merits of the institutional decision,– i.e. the weight that must be given to the secret information, its relevance and its credibility – the Court is to conduct its analysis based on the same standards as those used with respect to the “public” materials provided by the Parties. Again, this means whether, given the presumed expertise of the institutional staff, there is a reasonable belief that the information justifies the transfer, segregation etc.
In short, with respect to the decisions that information was properly withheld and that the institution’s ultimate decision was justified, the Courts defer greatly to the expertise of prison authorities.
The result is often bad for the prisoner, usually based on the Court’s finding that the information was properly concealed under ss.27(3) and that the concealed information supports the transfer, segregation etc.
I do not say, that the Courts are being unfair or are not competently analyzing the information, here.
The problem is that the testing of the information for accuracy, relevance and reliability is bound to be limited by the process and the standards applied to the confidential envelope.
As I said above, in a minority of cases the Courts sometimes do find that information should have been shared with the prisoner, based on CCRA s.27, and do overturn the decisions at issue. In these cases, the Court, under the Khela judgment, have simply considered, without any deference to the expertise of the institutional staff, whether the information was sufficiently shared in strict compliance with the wording of s.27.
To come to these determinations there is little or no need for the prisoner or their lawyer to actually see the concealed information or make arguments about it. The Court can canvass what is on file and decide what was considered by the institution and what should have been shared with the prisoner.
Beyond this, however, the system does not favour the prisoner. This is because there is no effective procedure for permitting prisoners to effectively contest the information in the envelope.
The Courts look at the information in the envelope and in the other documents of the parties. In virtually every case, the Courts determine the matter based on these documents, without making any inquiries of the Crown about the information in the envelope.
I and other prisoners’ lawyers have tried a number of tactics to promote informed evaluation of the envelope. We have:
a) Made written and oral submissions to the Court about what it should consider in its analysis of the concealed information – questions, for example:
i) about the credibility of informants ( their motives, the analysis leading to the rating of their reliability)
ii) about the time and place of alleged misconduct
iii) about discrepancies among the staff and inmate reports that were considered
iv) about the analysis of representations made by the prisoner in the s.27 process
v) about whether other material information should have been considered
vi) about the logic and consistency of security analysis
b) Suggested that the Court make similar inquiries to the Respondents and their witnesses (institutional staff etc)
c) Cross-examined institutional staff on their affidavits in order to reveal new public information or to provide new information to include in the envelope for consideration by the Court
d) Move for the appointment of a friend of the Court to represent the prisoner in reviewing the envelope – an independent person with expertise in corrections who could address the issues without sharing information with the prisoner
I am not aware of any of these approaches being especially successful.
For the most part the Courts are content to deal with what they have in front of them, without making further inquiries or seeking help from independent counsel
Moreover, even if the Court does consider input from the prisoner, this input is provided ”blind” and may not identify crucial issues in the envelope.
Beyond the evidentiary problems, there are real issues in terms of the use of the Court system for any measures to address the secrecy of the envelope.
Judicial examination of respondent witnesses, cross-examinations of witness by the prisoner’s counsel and the appointment of an “amicus curiae” all impose time constraints on an already packed Court system.
This will result in even longer delays than those already in place in the Court system.
Moreover, the Courts have begun accept Crown recommendations to order costs against unsuccessful prisoner applicants and these can reach very substantial levels if new procedures are added on.
A possible solution
This is not a game.
Something has to be done to permit prisoners to contest unlawful increases in custody without one hand tied behind their back.
There are real consequences to being consigned to segregation or shipped up to higher security, and these consequences are more severe if the prisoner has to sit in the increased custody while waiting for a judicial outcome.
Not being able to know the case against them and to challenge adverse evidence makes the matter all the more perilous.
Certainly habeas corpus before the Superior Courts is a vital tool, long awaited until Khela.
That said, the Court system is a clumsy tool for issues that essentially form part of the administrative process leading to transfer and segregation decisions.
It recently occurred to me that this situation is quite akin to what occurred in the 1990’s when there was a review of administrative segregation after Madam Justice Arbour’s (Prison for Women) Inquiry.
Professor Michael Jackson, a giant in corrections law, concluded at the time that it would help if there were an independent review of segregation decisions. While Professoer Jackson suggested that a Superior Court judge could fulfill this function, others, including Arbour J., believed that an independent lawyer, along the model of the Independent Chairperson who adjudicates disciplinary offences, could fulfill the role.
The Government has never bought into the independent review model because they wanted to maintain “managerial accountability” for segregation decisions.
This issue would not apply to an independent participant in decisions based on the contents of the envelope. There would be no reason to interfere with management preprogatives.
My suggestion would be that persons, probably lawyers with corrections knowledge, be appointed by Cabinet to review information withheld under ss.27(3).
These persons would review what was withheld by institutions before the prisoner were given the opportunity to rebut the information. Herein they would have the opportunity to make inquiries with staff, inmates and the prisoner at issue, if these inquiries were permitted by the Security Intelligence Officer.
They could then make provide a report and make recommendations to the institution based on their review of s.27 issues and their view of whether the proposed transfer/segregation etc was justified. Their report and recommendations would be shared with the prisoner unless the SIO prohibited the sharing of any aspect of these.
The institution would maintain its role in deciding, subject to Court review, what should be withheld form the inmate. An independent reviewer could simply serve to evaluate the institution’s secret evidence.
The independent person need not have any power to order compliance with their findings.
This might assist the institution in deciding whether to provide with decisions.
As well, it might assist prisoners in deciding whether to proceed with a habeas corpus application.
Should the matter go to Court, the independent person’s complete report would be shared with the court in the confidential envelope. The report would provide an account of all the in dependent person’s interactions with staff, inmates the prisoner in question or others, It would include any decisions taken by the SIO in the course of the investigation.
The Court would be free to consult the independent person if it wished.
I believe this system could create efficiencies and provide accurate, reliable information for the transfer/segregation process.
It would also relieve the courts, and the Crown of ill advised litigation.
Most important, it would permit prisoners to have trustworthy and timely review of their rights, leading to timely, effective reintegration into the community.
  1 SCR 502