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