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In one of the affidavits submitted on Mr. Fitzgerald's behalf, Mr. Fitzgerald said that he intended to renounce Canadian citizenship and to this end had written to the consulates of several countries, including Costa Rica. He also noted that he had been scheduled to see the transfer board from Ferndale minimum security institution four days after his transfer to Kent, and that he had the full support of his case management team at William Head for the transfer to minimum security. Given the realistic prospect of his being transferred to a prison with no fence, situated a hundred yards from a public road, why would he be planning a highly risky escape by sea from William Head? Mr. Fitzgerald's affidavit was supplemented by one from the William Head chaplain, who acknowledged that Mr. Fitzgerald had discussed with him his plans to seek citizenship in another country.

In determining "whether the reasons given for Mr. Fitzgerald's transfer were patently unreasonable," Mr. Justice Thackray cited first the transfer summary prepared by the case management team supporting Mr. Fitzgerald's transfer to Ferndale minimum security. This, he said, "makes it difficult to understand the basis for the conclusion of the Assistant Deputy Commissioner which suggests some significant level of risk to the public from Mr. Fitzgerald." Because the criteria for minimum security require an assessment that the prisoner presents a "low risk to the safety of the public in the event of escape," the recommendation that Mr. Fitzgerald be transferred to minimum security negated a finding that he represented a "significant level of risk to the public."

Next, Mr. Justice Thackray had this to say about the Assistant Deputy Commissioner's finding that an "escape plot was very real":

The plan is so inept as to put its existence into doubt. The petitioner was to be picked up in a small boat off the shore of William Head Institution. The likelihood of this event being observed seemed significant. Mr. Fitzgerald was then to make his way to Nanaimo and then, by way of B.C. ferries, to Vancouver. He would then, accompanied by his wife, depart on an international flight with the ultimate destination being Costa Rica.

Mr. Dennis [the acting warden] found that the "explanation in relation to correspondence with various countries as to residency is simply unbelievable, at best naive." There is, in my opinion, a vast difference in the context of this case between "unbelievable" and "naive." If it is unbelievable, then Mr. Denis would be justified in concluding that it was part of an escape plot. However, if it was simply naive, then it can have no bearing on the authenticity of the alleged plot.

The Assistant Deputy Commissioner then concluded that he is "not convinced that the escape plot was a fabrication by the informant. Information that would indicate the informant's motivation to provide false information has not been presented." It would be more convincing if he had concluded that the plot was a fabrication. Furthermore, in that the authorities could not provide the name of the informer, it was hardly open to the petitioner to provide information that would indicate the informant's motivation to provide false information.

There is also the problem created by the fact that much "material" is contained in a sealed envelope. I am not suggesting that the contents should be revealed to the petitioner. In any event, Mr. Justice Gow held that information has been shared with the petitioner to the greatest extent possible. However, that does not change the situation created by the concealment of information. There can be no doubt but that the petitioner is in a disabled position to respond fully to the concerns of the authorities. This, in my opinion, puts more of an onus on the authorities to ensure that the procedures followed are in keeping with the regulations and the procedures set forward. Further, that the reasons given for decisions are sound, and as revealing as possible as to the foundations therefor. In this case, I am unable to conclude that the reasons properly reflect the evidence, including what is contained in the sealed envelope.

While the authorities chose to find the informant reliable, and this is a subjective judgement, I cannot uncover any basis for this. Nothing in the informant's background suggests to me that he is a person to be relied upon. ( Fitzgerald, at 22)

Significantly, Mr. Justice Thackray's Reasons for Judgement concluded with an acknowledgement of the climate within which contemporary courts must adjudicate issues of prisoners' rights:

The climate today is against a "soft" attitude towards prisoners' rights. This is understandable in view of the crimes apparently committed by persons on parole or who have escaped from corrections institutions. However, I cannot allow this atmosphere to govern the outcome of this petition.

It appears to me, in keeping with the submissions of counsel for the petitioner, that the decisions to transfer have been extremely arbitrary and, as such, unfair to the petitioner. The reasons and decisions do not conform to the principle of natural justice which, after all, is only "fair play in action."

The decision to transfer is not, to again return to the words of Mr. Justice Seaton, "a decision that we can let stand." I am of the opinion that it has not been demonstrated that the decision was arrived at fairly. It is therefore "patently unreasonable." ( Fitzgerald, at 24)

The court ordered that Mr. Fitzgerald be returned to William Head Institution.

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