The Fitzgerald Case

In July 1994, Mr. Justice Thackray of the B.C. Supreme Court issued a judgement that illustrates how the courts approach the review of correctional administrators' decisions and the difference in how judges evaluate what constitutes reliable and compelling evidence of security risk justifying transfer to maximum security. Gary Fitzgerald, a prisoner who had served eleven years of a life sentence for first-degree murder imposed in 1981, was transferred from William Head Institution to Kent in October 1992 based on information from a prison informant that Mr. Fitzgerald was planning to escape from William Head.

Because the 1992 transfer was an emergency one, Mr. Fitzgerald was given his notification of reasons for transfer after his arrival at Kent. He filed a petition in B.C. Supreme Court challenging the transfer, primarily on the basis that he had not received sufficient information about the alleged escape plan to enable him to make a full answer and defence. Mr. Justice Gow agreed that the information provided to Mr. Fitzgerald was insufficient and ordered warden of William Head to file a supplementary affidavit providing the full information. If warden felt the disclosure of information critical to his decision would imperil the safety of the informant, Mr. Justice Gow suggested he follow the Federal Court practice of filing a sealed envelope for the court's perusal, together with an explanation about why it could not be revealed to the prisoner. The Warden filed a supplementary affidavit to be shared with Mr. Fitzgerald, together with a sealed internal investigation report into the alleged escape plan. Mr. Justice Gow held that this constituted a sharing of information to the greatest extent possible and that Mr. Fitzgerald should be given an opportunity to respond to it. Mr. Fitzgerald, through his counsel, filed such a response, and warden at William Head upheld his initial recommendation to transfer the prisoner to Kent. His recommendation was approved by the Assistant Deputy Commissioner. That decision was challenged again in B.C. Supreme Court and was the subject of Mr. Justice Thackray's ruling on July 7, 1994.

His Lordship first addressed the appropriate standard for judicial review of a transfer decision. Mr. Fitzgerald's argument was that the transfer was made in violation of the common law duty to act fairly and of the principles of fundamental justice required by s. 7 of the Charter of Rights and Freedoms for any decision which affects the liberty of the subject. He argued that in the case of Demaria v. the Regional Transfer Board and Warden of Joyceville Institution ( [1988], 2 F.C. 480 ) Madam Justice Reed had expressed the view that both the Federal Court of Appeal and the Supreme Court of Canada had interpreted s. 7 of the Charter as requiring not only that there be procedural fairness, in the narrow sense, but also that decisions not be made in an unreasonable or arbitrary manner.

Mr. Justice Thackray held that the appropriate standard for judicial review was the "patently unreasonable test," which Mr. Justice Seaton of the B.C. Court of Appeal had expressed in this way: "Is this a decision that we can let stand?" Mr. Justice Thackray ruled that it was up to correctional authorities to establish, on a balance of probabilities, that the ultimate decision to transfer was not patently unreasonable. In applying this test, he reviewed a number of the judicial authorities which have addressed "the delicate balance to be maintained" in the review of correctional decisions:

I must keep in mind that the decision to transfer was made by authorities who know infinitely more about the incarceration and correction systems than does the court. The authorities should be secure to think that if they act in accordance with fundamental principles of justice within the legislative requirements, that their decisions will prevail . . . The court should stand poised to intervene only in those cases where either breaches of fundamental justice have occurred or there is such unreasonableness to a decision that it amounts to unfairness. The error should be egregious or equivalent to bad faith. ( Fitzgerald v. Trono [1994] B.C.J. No. 1534 at 19)

It was within these confines that Mr. Justice Thackray reviewed the facts in the Fitzgerald case. The reasons given by the Assistant Deputy Commissioner for approving Mr. Fitzgerald's transfer to Kent were these:

Mr. Fitzgerald was transferred on an emergency involuntary basis, to Kent Institution, based upon believed, reliable, detailed inmate informant information indicating that Mr. Fitzgerald was planning to escape from William Head Institution with other inmates. A brief summary of this information is as follows: the escape plan was reported to have involved Mr. Fitzgerald acquiring false identification, being picked up by boat from William Head Institution, travel to Vancouver and air travel to, eventually, Costa Rica. This informant information was reportedly supported by the discovery of correspondence from Mr. Fitzgerald to the consulates of various countries, including Costa Rica, inquiring about residency criteria. The inmate informant was not identified out of consideration for the individual's safety. The other inmates involved were not identified as it was believed that this information would cause the informant to be identified . . .

A summary of the information submitted on Mr. Fitzgerald's behalf is as follows: Mr. Fitzgerald denies any intent or plan to escape from William Head Institution; he references his positive behaviour over the last eight years; treatment at the Regional Psychiatric Centre; institutional support for transfer to minimum security; and family support. Mr. Fitzgerald's submissions, in addition to those of others, provide his explanation of letters to foreign consulates. Those individuals identified in the community who were reported to be of assistance to Mr. Fitzgerald in the escape plan have submitted statements denying knowledge of such a plan and willingness to participate. Mr. Fitzgerald, in his own submissions and in those prepared on his behalf, has addressed, in detail, the information presented in warden's supplementary affidavit.

While submissions presented by both Mr. Fitzgerald and his legal counsel do provide alternate explanations for much of the information and present the theory that the escape plan was a hoax, the informant information is considered credible, primarily due to the level of detail provided. Mr. Fitzgerald's escape attempt in 1984, and the discovered correspondence to foreign consulates does support the belief that Mr. Fitzgerald was planning to escape. I am 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. I am also concerned about the level of risk Mr. Fitzgerald would present to the community should he escape. ( Fitzgerald, at 16)

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