Mission Institution v. Khela  1 SCR 502, which built on May v. Ferndale Institution  3 SCR 89, was greeted by prisoner advocates and the corrections bar as a significant advance in protecting inmates who are subjected to unlawful deprivations of liberty by the Correctional Service of Canada (CSC) – e.g. involuntary transfers to higher security and segregation
In the May/ Khela progression, the Supreme Court of Canada provided a number of important tools for combatting such decisions.
First, challenges to transfer and segregation decisions could be heard as Habeas Corpus applications in provincial superior courts, and not the Federal Court, which has a reputation of being more “deferential” to CSC decisions in such matters.
Second, direct access to superior courts relieved inmates from being required to exhaust the internal grievance procedure, which can take many months, before going to Court
Third, the procedural fairness of CSC decisions, whether they afforded the inmate an opportunity to respond to all information considered by CSC, wouldhenceforth be decided by Courts on the basis of a strict reading ( a “standard of correctness”) of s. 27 of the Corrections and Conditional Release Act, S.C. 1992, c.20:
Information to be given to offenders
- 27 (1) Where an offender is entitled by this Part or the regulations to make representations in there 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. (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,
- S.27 incorporates previous Supreme Court constitutional decisions into the CCRA. It requires:
- 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).
- (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.
- That, before taking an adverse decision, CSC share with the prisoner in question all information to be considered by CSC in taking the decision, or a summary of that information
- That the prisoner be given a reasonable time to review the shared information and to make representations to CSC, which will be considered in taking the decision
- That the exception to the obligation to share is that CSC may withhold information where this is strictly necessary in order to prevent harm to any person, to preserve the security of the institution or to preserve the integrity of an investigation
Khela ruled that fairness is to be judged simply on whether the terms of s.27 were followed – without any “benefit of the doubt” to prison officials. Any lack of compliance with the terms of s.27 , with minor exceptions, would be considered an unlawful decision and would result in the transfer/segregation decision being overturned.
This correctness standard is different from the judicial standard to be applied in reviewing other CSC decisions – in particular the justification ( versus the fairness) of decisions.
Justification for a decision entails whether a decision has a sufficient informational and analytical basis, as opposed to whether information was properly shared and prisoner representations considered (fairness)
Justification will be judged on a standard of reasonableness – i.e such decisions will be overturned only if they were clearly unsupported by the facts. Herein the courts, as in the past, will defer to the expertise of CSC staff in taking decisions – they will not overturn the CSC decision only because they might have decided differently.
Clearly these new judicial rules have assisted prisoners in combatting unfairly taken decisions. Clearly CSC has been put on notice to ensure that the information sharing ( and excluding) provisions of s.27 are observed.
All this is to the good, but, as is the case with many other judicial improvements, damage control quickly kicked in to minimize the effect of the case law. Moreover, huge gaps remain in how effectively prisoners can successfully litigate adverse decisions.
The Courts have generally greeted the enhanced access to Habeas Corpus under Khela quite conservatively. Three possible bases for this are:
- That the Courts understandably envisioned a flood of new Habeas Corpus applications based on Khela, some of which might be frivolous or might try to inappropriately expand the Khela principles
- That the Courts, especially at the trial level, are very deferential to the decisions of administrative “experts” such a CSC officials and will second- guess prison officials only where this is clearly warranted
- That the Courts see their role as adjudicating legality rather than managing correctional institutions.
Accordingly, we have seen a number of trends in the case law.
Strict interpretation of “restriction of liberty”
The Courts have been reluctant to accept Habeas Corpus applications other than for straight-forward upward transfers or segregation placements. They have generally interpreted the requirement for “restriction of liberty” in Habeas Corpus cases to mean a movement to a physical setting involving actual restriction of movements and enhanced supervision/control of inmates.
Thus, a transfer from one maximum security institution to another has not been considered a “restriction” even where this involves distancing from needed community resources and family support or where the new institution has a more restrictive regime (e.g. times inmates permitted out of cells or ranges).
As well, as can be expected, the Courts will readily consider a case “moot” if a person has been moved away from the restrictive placement on which they based the Habeas Corpus application – e.g. by the time the hearing takes place the inmate has been removed from segregation or has been moved to another institution.
Deference to decisions not to share information.
Ss.27(3) provides rather strict rules on what must be shared.
If the sub-section is not invoked by CSC then the exclusion will not be permitted by the Court. Moreover, if CSC does not adequately indicate to the prisoner the reason for any exclusion of information, then ss.27(3) will be considered breached.
The devil is in the details, however.
The normal approach of CSC over the last several months has been:
- To announce in documents shared with the prisoner that certain, very substantial, portions of the information to be considered by the decision-maker can’t be shared because they would endanger interests provided in ss. 27(3) – safety of individuals, institutional security or the integrity of an investigation.
- To indicate belief in the reliability of informants’ statements based simply on categories set out in policy, without indicating how these categories were identified.
- To provide information to the prisoner that does not contain enough detail for them to contest the allegations against them.
In the most frequent cases, where the information relates to informers’ statements about the prisoner, the statements, CSC will inform an inmate that he has been observed carrying out inappropriate activities in general terms, without citing specifics that may assist the prisoner’s representations. For example, “observed bringing contraband into the institution after a temporary absence and leaving the contraband for another inmate to retrieve”.
- CSC will make broad conclusions that the information withheld, usually the brunt of informants’ statements, must be withheld because revealing any of it could reasonably result in identifying the informant
- No information is provided about any specific dates or locations that might permit the prisoner, if innocent of the allegations, to demonstrate that they could not have committed the misbehavior.
- No attempt is made to de-personalize the information or to separate out portions that could be shared without identifying informers.
- Informants whose statements are used will normally be characterized as “believed reliable” or, in rare cases, as “completely reliable”. These are terms used in Commissioner’s Directive 568-2, Annex B:
- 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.
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.
Little or no information will be provided, for example, on how the information coincides with other information or on whether any informant has a motive to lie, through interaction with the prisoner under review.
At the end of the day the prisoner is usually faced with a kind of “precis” shared under s.27- statement of information that does little to help them make their case, based on assumptions about the reliability of informant information that cannot be contested.
In further support of their non-disclosure of information, CSC often argues that what they have shared constitutes a “summary”, as permitted in ss.27(1).
My perception has been that the purported summary does not meet the test provide in the Khela judgment , that the inmate should have sufficient information “to know the case against him”.
Moreover the summary seems to fall short of what is required even under CSC policy on sharing “gists” (summaries) of information with offenders. The characteristics of a valid gist are set out in Commissioner’s Directive 701:
HOW TO PREPARE A GIST FOR PROTECTED INFORMATION
Gist for Protected Information
- An offender is normally entitled to know the substance of the information which is being used in making a decision about his/her case. The substance of the information and/or significant details are shared with the offender in a “gist”. This is the “duty to act fairly”.
- 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.
- Only as much information as is strictly necessary to protect the interests identified in subsection 27(3) of the CCRA may be withheld.
- A gist is only to be used in exceptional circumstances as normally all information will be shared with offenders. If information cannot be shared with the offender in a gist form, then the information should not be used in the decision making. (For exceptions, see “Withholding a Gist”.)
- Where the protected information is intelligence-related, the Security Intelligence Officer will prepare a gist in a separate document and provide it to the Parole Officer.
- In all other circumstances, the Parole Officer will normally prepare the gist.
Preparing a Gist
- The information shared must provide the offender with sufficient details to enable him/her to respond meaningfully to the assertions being made.
- The gist must provide the relevant facts, including:
- the dates and places of specific incidents
- the manner in which these became known to the authorities
- any other evidence supporting the intelligence information.
- The name of the source is not relevant information.
- The disclosure of information to an offender does not necessarily mean that he/she has a right to:
- know the identity of the source of the information, or details and circumstances which could reveal the identity of a source of information
- a copy of the actual documents, or
- all of the details of the case against him/her.
Withholding a Gist
- In order to justify withholding a gist, it will have to be demonstrated that the information meets one of the injury tests outlined in subsection 27(3) of the CCRA.
- In some cases, the information is time-sensitive and must be withheld from the offender until the injury test no longer applies. The Parole Officer, in consultation with the Security Intelligence Officer will share the gist of the information when there is no imminent risk to the source.
- In rare cases, there may be circumstances which preclude even the gist from being disclosed to the offender without compromising the security of the institution or endangering life. The reasons for the full exemption of the file will be prepared and provided to the PBC.
- Where relevant information is of such a highly sensitive nature that a gist cannot be provided to the offender, the PBC must be informed and the following statement appended to the decision-making report:
“In accordance with subsection 27(3) of the CCRA, the information contained in certain reports cannot be shared with you at this time since it is considered that disclosing this information to you would be injurious to a public interest which outweighs your right to receive the information.”
- In order to support the rationale not to disclose under subsection 27(3) of the CCRA, the following points should be noted:
- when information has already been made public, the offender will already know the names of the victims and the details of the alleged crime thereby rendering it unlikely not to be able to share information
- fear that disclosure would threaten the safety of sources or informants requires evidence of this allegation.
I have highlighted the most relevant requirements in the policy.
Suffice to say that it requires CSC to disclose sufficient information in a gist for the prisoner to know the case against them and to respond.
Suffice to say that exceptions from sharing regarding informants must be supported by “evidence” – information that has probative value and is relevant.
In my view much of what is currently shared with prisoners does not meet these tests.
Why, then, is CSC seemingly permitted to breach these rules or guidelines?
I think the answer lies in Khela’s ruling that choices about what to consider in taking decisions and how to assess the reliability of this information are within CSC’s mandate and expertise. As such the Courts have deferred to CSC (under a standard of reasonableness) in decisions as to what to include and what to rely upon in taking decisions.
Khela held that, in order to assess information withheld from prisoners , the Attorney General would be required to place all unshared information in a confidential envelope. This would be reviewed by the Court but not shared with the prisoner or their lawyer.
Prisoners’ lawyers normally take pains to say that the Court should review the information in order to
- determine, based on a correctness standard, whether all information considered by CSC was shared
- determine whether it had been properly evaluated for its reliability
- determine whether it was strictly necessary to withhold all information that was not shared
The Court will also review this concealed information to decide with the transfer/segregation etc was justified, whether it was reasonably necessary to place the inmate in this level of custody, as opposed to any, less restrictive alternatives.
The prisoner and their counsel have no input to these determinations, which places them, of course, at a severe disadvantage.
I have seen few judgments that make specific comments on how the Court reviewed the hidden information, other than statements that the the information supports CSC’s decision.
I do not argue, of course, that the Courts are being dishonest or biased in their analysis.
Rather I wonder whether the courts might provide a more cogent analysis if somehow they could have access to both sides of the issues – to somebody knowledgeable of the correctional system and to Habeas Corpus law, who could provide that specific expertise to the Court, without disclosure to other party.
I have made the suggestion on one occasion that it might be appropriate for the Court to appoint an amicus curiae, an independent expert in law and prisons, who could review the information to decide what should have been shared and the probative value of what wasn’t shared.
This idea was rejected by the Court. I have to wonder if it should be raised again.
The bottom line
As a matter of litigation tactics, CSC has learned the minimum information that they must share under Khela and s.27 and argued before the Court, either in open court or in confidence.
Although the Khela judgment has enhanced the ability of prisoners to access the courts and to argue unfairness in CSC decisions, the seemingly open door has been closing.