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The applicant H challenged a decision of the Assistant Deputy Commissioner approving his transfer from Kent Institution to the SHU. H arrived at Kent from the medium security Mission Institution by way of an emergency involuntary transfer on the basis of his implication in a murder at Mission. H was successful in having the transfer from Mission to Kent declared unlawful in a habeas corpus application before the Supreme Court of B.C. While at Kent, and prior to the Court decision regarding the emergency transfer from Mission to Kent, H took part in a riot. Specifically, H was observed to have incited other inmates to create disturbances, thrown items on fire out of his cell, further fuelled the fires by throwing institutional property on the fires, and attempted to obstruct firefighting efforts by the staff by placing slippery liquid on the floors. H was then notified of an intention to transfer him involuntarily to the SHU, and was provided with an opportunity to respond to the Notice of Involuntary Transfer but never did. At issue: Was the decision to transfer H from Kent to the SHU patently unreasonable, and did prison officials meet their obligation to provide the applicant with a fair hearing?
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Citing Fitzgerald v. William Head Institution, [1994] B.C.J. No.1534 (B.C.S.C.), Rouleau J. set out that the standard of review in the context of decisions made by CSC officials is, on the balance of probabilities, whether the decision was patently unreasonable. Rouleau J. found that there was enough information disclosed to the applicant. The information contained adequate detail regarding H’s involvement in the riot at Kent, other disciplinary and criminal charges, the concern on the part of officials that H may create further disturbances at Kent, and in general, the belief that H’s risk could not be properly managed at Kent, in order for H to be able to make representations. Moreover, Rouleau J. noted that H was provided with an opportunity to respond to the Notice of Involuntary Transfer but chose to give no response. Nor did H ask for additional information regarding the allegations that formed the basis of the recommendation for transfer or complain about the impossibility to respond due to lack of information. As for the argument that the grounds for transfer were unreasonable, H relied heavily on the fact that his previous transfer from Mission to Kent had been declared unlawful. Rouleau J. responded by stating that only the circumstances that relate to the subsequent transfer should be considered. Since the CSC’s documentation indicates that the main consideration for confirming the recommendation for transfer was H’s behavior during his stay at Kent, H could not succeed by simply relying on the fact that his original transfer to Kent was unlawful. H also submitted that even if all the allegations made about him in respect to his conduct during the riot at Kent were true, they do not, in light of the “conduct code,” justify the decision to confirm the transfer to the SHU. H’s argued that he feared for his physical safety during the riot and in the days that followed. To avoid being harmed he took part in events to the limited extent that he could within his cell. Rouleau J. held this submission to be untenable. The riot took place in the gymnasium and H was locked in his cell during the time. According to Rouleau J., for H to claim that he had an obligation to conduct himself as he did in order to show support for the balance of the prison population was ludicrous. Application for judicial review was dismissed.
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