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The applicant F was involuntarily transferred on an emergency basis from
a medium security facility, William Head Institution, to a maximum-security
penitentiary. The involuntary transfer was executed because the CSC received
information from a confidential informant they believed to be reliable
indicating that F was planning to escape from William Head Institution.
In the initial petition challenging this decision, F argued that the CSC
had failed in its duty to provide him with sufficient information regarding
the alleged escape plan. Gow J. of the B.C. Supreme Court agreed with
F and ordered that the warden fulfill his duty to disclose to F (see Fitzgerald v. William Head Institution (1993), 15 Admin.
L.R. (2d) 101, [1993] B.C.J. No.102 (B.C.S.C.)). Subsequent
to Gow J.’s order, F was provided with the requisite level of information
and made a response to the allegations made against him. Nevertheless,
F was issued a Notice of Transfer Decision indicating that both the warden
and Assistant Deputy Commissioner re-approved the involuntary transfer.
F now challenged the transfer decision on the grounds that it was patently
unreasonable and a violation of his s7 Charter rights. |
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Thackray J. began the analysis by considering the appropriate standard of review. The Court held that the government carried the onus of establishing that the ultimate decision to transfer was, on a balance of probabilities, not patently unreasonable. Citing Mr. Justice Seaton, Thackray J. suggested that a definition for “patently unreasonable” may be grounded in the question: Is this a decision that we can let stand? In approaching the question of whether the transfer decision in this case was patently unreasonable, Thackray J. reviewed the respective positions of F and the CSC in relation to the substance of the evidence. Several aspects of the transfer decision gave Thackray J. reason for concern. To begin with, the court found it troubling that the Assistant Deputy Commissioner would be concerned about the level of risk F would pose to the community should he escape when it was well documented that F’s Case Management Team clearly believed that he merited a transfer to a minimum security facility. Secondly, while the Assistant Deputy Commissioner claimed that the “escape plot was very real,” Thackray J.’s review of the alleged details of the plot led the Court to conclude that the plan was so inept as to put its existence into doubt. Thirdly, it was not disputed that F had communicated with various foreign countries inquiring about residency. This fact was seen by the CSC as corroborating the escape plan, yet the Court was not convinced that the Assistant Deputy Commissioner was justified in summarily dismissing F’s explanation for that correspondence. Finally, the CSC asserted that the informant and the information provided by that informant were reliable. Moreover, the Assistant Deputy Commissioner took into consideration the fact that F failed to present evidence that would indicate that the informant had a motive to provide false information. In response, Thackray J. held that nothing in the informant’s background suggested to the Court that he was a person to be relied upon. Furthermore, given that the CSC would not provide the name of the informant to F and withheld a certain amount of information, the Court found that it was hardly open to F to provide evidence that would indicate the informant’s motivation to lie. Such circumstances, Thackray J. suggested, puts more of an onus on the CSC to ensure that the procedures are properly followed and that the reasons given for a decision are sound and as revealing as possible as to the foundations therefore. In this case, the Court was unable to conclude that the reasons for the transfer decision properly reflected the evidence. In light of all the above reasons, Thackray J. held that the decision was patently unreasonable. The petition was allowed and F was ordered returned to William Head Institution.
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