Moazami v. Kent Institution (Warden)

2024 BCCA 71 Moazami v. Kent Institution (Warden)

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Moazami v. Kent Institution (Warden), 2024 BCCA 71 Date: 20240306 Docket: CA48836 Between: Reza Moazami Appellant (Applicant) And The Warden of Kent Institution, The Warden of Mission Institution, and His Majesty the King Respondents (Respondents) Before: The Honourable Madam Justice Bennett The Honourable Mr. Justice Voith The Honourable Madam Justice Horsman On appeal from: An order of the Supreme Court of British Columbia, dated January 10, 2023 (Moazami v. Kent Institution (Warden), 2023 BCSC 61, Vancouver Docket 33351). Counsel for the Appellant: C.M. Haghighi Counsel for the Respondents: S. Rapley R. Islam Place and Date of Hearing: Vancouver, British Columbia September 15, 2023 Place and Date of Judgment: Vancouver, British Columbia March 6, 2024 Written Reasons by: The Honourable Madam Justice Bennett Concurred in by: The Honourable Mr. Justice Voith The Honourable Madam Justice Horsman Summary: The appellant, an inmate, appeals from a decision of the chambers judge dismissing his application for habeas corpus with certiorari in aid after he was involuntarily transferred from a medium to maximum security facility. After the application was dismissed, he was transferred back to a medium security facility. Held: Appeal dismissed. The appeal is moot and the relevant factors do not weigh towards the Court exercising its

discretion to hear the case. Reasons for Judgment of the Honourable Madam Justice Bennett: [1] Reza Moazami, the appellant, is serving a 21-year penitentiary sentence for violent sexual offences. On 25 April 2022, he was involved in a security incident with a Correctional Service of Canada ("CSC") nurse. The respondent Warden authorized an involuntary transfer on an emergency basis that same day. As a result, he was transferred from the Mission Institution, a medium security facility, to the Kent Institution, a maximum security facility. He filed an application for habeas corpus with certiorari in aid. His application was dismissed on 10 January 2023 in reasons indexed at 2023 BCSC 61. He appeals that decision. He was transferred back to a medium security facility on 18 January 2023, raising a mootness issue. Background [2] On April 25, 2022, Mr. Moazami confronted a nurse by shouting, gesturing, and pointing at her. He then aggressively walked towards her. She told him to "back off", but he continued towards her until stopped by a correctional officer. The incident is captured visually on CCTV. According to Mr. Moazami, the incident occurred because the nurse failed to provide him with medication. [3] Mr. Moazami was interviewed by Nich Stefan, CSC's Assistant Manager of Assessment and Intervention. Despite his denial of aggressive conduct, Mr. Moazami was very agitated and

loud during the interview and spoke about the nurse in a derogatory manner. [4] Mr. Moazami was interviewed again by other CSC staff. He denied wrongdoing and said, "what are you going to do about it" in a confrontational manner. [5] A case conference was held pursuant to paragraph 32 of Guidelines 710-2-3: Inmate Transfer Processes (the "Guidelines"). Mr. Stefan recommended an emergency involuntary transfer, and the decision was made to transfer him without delay. The decision was based on both the incident that day and other past troublesome conduct by Mr. Moazami. [6] The next step was a meeting with Mr. Moazami. The process is set out succinctly in the chambers judge's reasons at para. 10: [10] Pursuant to paragraph 34 of the Guidelines, Mr. Stefan met with Mr. Moazami later that day. Mr. Stefan explained the reasons for the transfer, and advised him of his right to have a reasonable opportunity to retain and instruct counsel. However, it was explained to Mr. Moazami that the transfer being "without delay" meant immediately. Mr. Stefan explained to Mr. Moazami that he would be provided with the appropriate involuntary transfer documentation within two working days of his transfer. Mr. Moazami was provided with a memo explaining the reasons for his emergency transfer (the "Memo"). The Memo provides a chronology of the events leading up to the transfer. The Memo also reviews

the history of behavioural issues that Mr. Moazami had in the Mission Institution. The key paragraphs of the Memo are set out below: Pursuant to section 13 of the Corrections and Conditional Release Regulations (CCRR) and paragraph 32 of CD 710-2-3, I am authorizing an emergency involuntary transfer to Kent Institution, a Maximum Security facility. In accordance with the provisions of paragraph 33 of CD 710-2-3, prior to the transfer, the Institutional Head or designate of the sending institution will meet with the inmate to explain the reasons for the transfer. This Memo to file is a record of this meeting, and the following reasons have resulted in my decision recommend an Emergency Involuntary Transfer 2. At approximately 0830, after advising staff that you did not hear the medication announcements, you then took it upon yourself to leave your living unit unauthorized. A Staff member followed you and gave you an order to return to the living unit and you responded to the officer by telling them to 'fuck off'.

3. A review of CCT video shows you leaving your living unit and chasing after the nurse who you confront in the open walk way. The nurse reports she felt threatened for her safety by your mannerisms and conduct. The nurse is seen on CCT video walking away from you back toward the living unit. During this time a multi function Correctional Officer had been dispatched to intercept you as seen on CCT video. After a brief conversation with the intercepting officer you were taken to the holding cell.

7. Mr. MOAZAMI, you have had adjustment issues throughout most of your current sentence. You have a history of institutional incidents including disrespectful conduct, refusing staff direction, making suggestive gestures toward healthcare staff and multiple disciplinary problems.

8. It is noted Mr. MOAZAMI that you were placed on a Behaviour Management Plan on 2022-02-09 after refusing staff direction, refusing to move living units and challenging staff on the issue of wearing a mask. Your behaviour was noted as deteriorating over a number of days with multiple reports of you acting in a manner that was seen as belligerent, disrespectful, and inappropriate. Your current behaviour is a concern as it relates to your ability to be managed within Mission Institution's population, including, but not limited to your Escape Risk and Public Safety. In terms of Institutional Adjustment concerns, your behaviour, failure to follow the conditions of your Behavior Management Plan, not following staff direction an acting in an aggressive/intimidating and targeted manner toward healthcare staff poses a significant concern for the safety and security of the institution as a whole. As a result, your security classification is being reassessed. [7] The Warden signed a Transfer Warrant authorizing the transfer the same day and Mr. Moazami was quickly transferred to Kent Institution. [8] After the transfer, on 26 April 2022, Mr. Moazami's Security Reclassification Scale ("SRS") was increased to 24.5. Inmates within the range of 16.5-24.0 are considered medium security, and anything higher is considered a maximum-security score. The transfer process is regulated by the

Guidelines at paras. 31-37. On 27 April 2022, Mr. Moazami was provided with a Notice of Emergency Involuntary Transfer, Assessment for Decision, and his new SRS score, pursuant to the Guidelines at para. 34. [9] CSC provided Mr. Moazami with the opportunity to consult with counsel, and on 29 April 2022, CSC forwarded the transfer paperwork to Prisoners' Legal Services. [10] Mr. Moazami reviewed the CCTV footage once on 25 April 2022 and a second time on 11 May 2022, when he also took notes. [11] The next procedure, chronologically, was the Warden's Board Meeting on 17 May 2022, as set out in the judge's reasons at paras. 15-17: [15] On May 17, 2022, Mr. Moazami attended a Warden's Board by video conference and without counsel. The participants reviewed the Incident, Mr. Moazami's institutional history, and other relevant documentation. After the Warden's Board and upon review of the Memo of Involuntary Transfer, Notice of Involuntary Transfer, Assessment for Decision, the SRS score, and Mr. Moazami's submissions, the Warden of Mission Institution increased Mr. Moazami's security classification from "medium" to "maximum", and formally approved the transfer. [16] The Warden reviewed Mr. Moazami's position in the following paragraphs: Your written rebuttal indicates you were not provided medication the morning of the incident and that no steps were taken regarding your previous

complaints and grievances regarding this specific nurse. You deny any problematic or aggressive behavior and indicate you complied with staff direction. You indicate you were not provided with access to a legal call and that you were not shared video footage of the incident prior to your transfer. You indicated you did not believe your Security Reclassification Score was accurate. You requested to have access to all of the information utilized in making the decision to recommend your Emergency Involuntary Transfer. During your Warden's Board on 2022-05-17, we discussed how you could have handled the situation regarding your medication on 2022-04-25 better. You deflected blame to the nurse, indicating that she should have provided you with your medication. Despite attempts to redirect the conversation, you spoke over the Warden and were aggressive in your presentation. This was noted to you by the Warden in an attempt to have you reflect on your own behaviour. You agreed you could have come to the console earlier to receive your medication, but again returned to blaming the staff involved in the incident and dispute the video footage. You focused on your previous issues with this staff member, your perception of the incident, and that you did not receive your medication that morning as an explanation for your behaviour. You did not address the problematic and aggressive behavior

you displayed while in the holding cell. You demonstrated no insight into your behavior and did not provide any examples of how you would better manage your behavior if returned to a Medium security facility . The concerns with your behaviour are that you refused a direct order, were disrespectful towards staff, and displayed aggressive behavior towards a staff member. This speaks to a larger pattern of problematic and disrespectful institutional behavior. It is noted that your aggressive behavior on 2022-04-25 was not the first time you have required intervention regarding your behavior and that this incident is just one in a pattern of problematic institutional behavior Given the seriousness of your actions, alternatives such as mediation are not viable solutions to manage the risk you present. During your Warden's Board presentation, you continued to blame the staff member for your behavior, reaffirming that mediation is not an appropriate alternative to address your institutional behavior. [17] The new security rating was broken down as follows: a) Institutional adjustment: reassessed to High; b) Escape risk: maintained as Moderate; and c) Public safety risk: maintained as High. Reasons of the Chambers Judge [12] After outlining the facts, the judge summarized the regulatory framework and the law in relation to habeas corpus: paras. 20-29. He identified the standard of

review as correctness when concerning the duty of procedural fairness and reasonableness in relation to the decision itself: paras. 30-32. [13] The judge dismissed the application for habeas corpus, concluding that the decision confirming his transfer and security level was procedurally fair and reasonable. He concluded that the Warden was the proper person to make the decision to transfer, and was, in fact, the person who authorized the transfer by signing the transfer warrant: para. 34. [14] He found that there was no breach of procedural fairness, which must be assessed contextually: para.

64. He found that CSC is not required to provide an inmate who is transferred on an emergency involuntary basis with the opportunity to make submissions prior to the transfer: para. 39. [15] He further concluded that adequate disclosure had been made in a timely manner, including the CCTV video: para.

44. In addition, the judge concluded that even if there had been a breach of procedural fairness, the breach was technical, and the transfer was not rendered unlawful: para. 53. [16] The judge found that Mr. Moazami's right to counsel was not violated. He identified that Mr. Moazami was advised of his right to counsel, but not provided an opportunity to exercise that right until after the transfer was effected. He found that Mr. Moazami was provided with an opportunity to consult with counsel as soon as was reasonably possible, given the exigent circumstances of the emergency transfer. He found that the authorities operated with good faith, given that staff safety was an issue: para.

56. In summary, he found that there is no right to access counsel prior to an emergency transfer, only within a reasonable time, pursuant to Guideline paragraph 34(b): para. 60. [17] Finally, he concluded that the substantive decision to transfer Mr. Moazami was reasonable. After reviewing the evidence and the authorities, the judge concluded that there was a rational basis for the Warden's decision: para.

67. Issues on Appeal [18] Mr. Moazami raises four grounds of appeal, including that the chambers judge erred by: i) concluding that the Warden made the decision to transfer him; ii) concluding that procedural fairness does not require the inmate disclosure, notice of the transfer or the opportunity to make submissions prior to the transfer; iii) concluding that there is no right to counsel before an emergency transfer; and iv) failing to decide whether the decision was reasonable. [19] The respondent submits that the appeal is moot, as Mr. Moazami has been transferred back to a medium security institution. Standard of Review [20] Findings of fact and issues of mixed fact and law are reviewable on a palpable and overriding error standard. Pure legal questions are decided on the basis of correctness (see Housen v. Nikolaisen, 2002 SCC 33 at paras. 8, 10, 36). [21] The chambers judge applied the correct standard of reasonableness in upholding the lawfulness of the Warden's transfer decision: Mission Institution v. Khela, 2014 SCC 24 at paras. 19, 77, 79. He further applied the appropriate standard of correctness in determining whether the decision maker complied with a duty of procedural fairness: Khela at para. 79. [22] However, the standard of review in relation to habeas corpus appeals is unsettled in British Columbia law, as noted in Howdle v. Mission Medium Institution

(Warden), 2020 BCCA 334: [48] Surprisingly, the question of whether the appellate standard of review for a judge's decision in a habeas corpus application is the judicial review or the appellate standard is not clearly settled: see e.g., Earhart v. Canada (Attorney General), 2019 ONCA 980 at para. 30; R. v. Bishop, 2009 SKCA 117 at paras. 41-42 (applying the judicial review standard); compare R. v. Shoemaker, 2019 ABCA 266 at para. 6; R. v. Elliott, 2016 MBCA 70 at para. 7; Z.B. v. Provincial Director of Adults in Need of Protective Intervention, 2020 NLCA 17 at para. 32 (applying the appellate standard of review). [49] I have concluded that it is not necessary in this appeal to attempt to resolve the issue about the appropriate standard of review on an appeal from an application for habeas corpus. Whatever appellate standard of review applies, I am unable to discern any errors in the judge's analysis of the case that could support appellate interference. As I read the judgment, the judge identified the correct standard of review in respect of the issues she had to decide. She determined that the decisions to transfer were reasonable or complied with the Regulations. She found that Mr. Howdle was not denied procedural fairness. If we treat the matter as one in which we put ourselves in the shoes of the judge to assess whether the transfer decisions were reasonable, I am of the

view that those decisions were reasonable. I see no error in her findings about procedural fairness. If we were to apply the ordinary appellate review, I do not think she made any palpable and overriding errors of fact nor any error in respect of any extricable legal question. [23] As reflected in Howdle, the law is not settled as to the standard of review to be applied by this Court on appeal of a decision in a habeas corpus application. In my view, due to the mootness issue in the case it is unnecessary to decide the appropriate standard of review for the purposes of this proceeding. Further, Mr. Moazami did not argue on appeal that this Court should exercise its discretion to hear the appeal in spite of its mootness based on the lack of clarity regarding the standard of review. Due to the fact-specific nature of this case and lack of a sufficient evidentiary foundation, this is not the appropriate case to clarify the standard to apply on appellate review of a superior court's habeas corpus application decision. Mootness [24] At the time the appeal was heard, Mr. Moazami was in a medium security facility and therefore, no longer in a maximum security facility as a result of the emergency transfer in this case. [25] A court may decline to hear a case where the issue raised is hypothetical or an abstract question and will not have the effect of resolving a controversy: Mapara

v. Ferndale Institution (Warden), 2014 BCCA 49 at para. 16; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at 353, 1989 CanLII 123. [26] The approach is set out in the leading case of Borowski at 353: The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. [27] First, the factual foundation for Mr. Moazami's application for habeas corpus no longer exists and there is no remedy available to him. In other words, this appeal is moot. Neither party dispute that fact. [28] The Warden submits that the appeal should be dismissed without consideration of the merits, however, Mr. Moazami submits that the appeal should be heard regardless. [29] The three factors relevant to ascertaining whether a court should exercise its discretion to hear a moot case are defined in Borowski: i) Adversarial context -- the requirement of an adversarial context is fundamental and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome. Even if there is no direct interest in the outcome, there may be collateral consequences that will affect one or other party to the

litigation: Borowski at 358-360; Mapara at para. 24. ii) Judicial economy -- there is a need to protect scarce judicial resources, however, there may be special circumstances in a case that make it worthwhile to use scarce judicial resources to resolve it. Examples of such circumstances include if the decision: (1) will have some practical effect on the rights of the parties, despite not determining the issue that gave rise to the initial controversy; (2) raises reoccurring issues that are dealt with quickly and therefore seldom have an opportunity for review; and (3) is in the public interest or raises an issue of public importance: Borowski at 360-362; Mapara at para. 34. iii) The role of the Court -- the third underlying rationale of the mootness doctrine is the need for the Court to demonstrate a measure of awareness of its proper law-making function. The Court must be sensitive to its role as the adjudicative branch in our political framework. Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch: Borowski at 362; Mapara at para. 23. [30] Mr. Moazami submits that this Court should exercise its discretion to hear the appeal notwithstanding its mootness because this case raises significant issues of public importance which impact the rights of inmates, including concerns about

procedural fairness in the inmate emergency transfer context. He submits that there is need for appellate guidance on the principles governing procedural fairness in the context of emergency inmate transfers. Mr. Moazami argues that a decision from this Court is important as emergency transfers will become more frequent in the future due to the discontinued use of administrative segregation. He further asserts that the appeal raises issues of a recurring nature that will continue to evade review due to the short timeframes involved in inmate transfers. [31] The Warden argues that there are no collateral consequences affecting the parties to the litigation because the appellant has already been transferred back to a medium security facility. This Court's decision would have no practical effect on the rights of the parties. Further, a comprehensive legislative scheme, informed by judicial guidance already informs procedural fairness in the correctional context, and Mr. Moazami's grounds are not sufficiently important, in light of his circumstances, as to demand further clarity. Accordingly, there is no compelling reason for the Court to act outside of its adjudicative role. [32] Finally, the Warden submits that appellate intervention, in light of the appeal's fact-specific nature and deficient evidentiary record makes the present appeal an inappropriate test case for Mr.

Moazami's arguments, and risks judicial encroachment into the legislative realm. [33] In relation to the first Borowski factor, there is clearly an adversarial context, in that both parties have submitted full arguments on the issues raised in the appeal. However, there does not appear to be any adverse collateral consequences that would tip this Court into exercising its discretion to hear the appeal. [34] In terms of the second factor of judicial economy and the use of scarce resources; the Court heard the argument in the appeal and reserved its decision. These proceedings are analogous to the case in Mapara where this Court found at para. 37 that there is no practical effect on the appellant's circumstances arising from the appeal. [35] Finally, in terms of whether the public interest requires this Court to hear this moot appeal, in my view, the answer is no. There has been a judicial review in the superior court. There is no evidence to support Mr. Moazami's submission regarding the frequency of emergency transfers due to the discontinued use of administrative segregation. It is a matter of conjecture. This Court must be wary of its role as an adjudicator, and in circumstances where the decision would have no practical impact on the parties, a consideration of the issues at hand are better left for a case where there is a proper evidentiary foundation for the submissions. [36] In my view, the Borowski factors do not weigh in favour of this Court exercising its discretion to hear a moot appeal. [37] I would dismiss the appeal as moot. "The Honourable Madam Justice Bennett" I AGREE: "The Honourable Mr. Justice Voith" I AGREE: "The Honourable Madam Justice Horsman"