Federal Court of Appeal Decisions

                                                                                                                                  Date: 20051027

                                                                                                                               Docket: A-596-04

Citation: 2005 FCA 348

CORAM:        DÉCARY J.A.

LÉTOURNEAU J.A.

NOËL J.A.

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

and

DANIEL GRENIER

Respondent

Hearing held at Québec, Quebec, on October 18, 2005.

Judgment delivered at Ottawa, Ontario, on October 27, 2005.

REASONS FOR JUDGMENT                                                                            LÉTOURNEAU J.A.

CONCURRING:                                                                                                            DÉCARY J.A.

                                                                                                                                           NOËL J.A.

Date: 20051027

                                                                                                                               Docket: A-596-04

Citation: 2005 FCA 348

CORAM:        DÉCARY J.A.

LÉTOURNEAU J.A.

NOËL J.A.

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

and

DANIEL GRENIER

Respondent

REASONS FOR JUDGMENT

LÉTOURNEAU J.A.

[1]         Should an inmate directly challenge an institutional head's decision affecting him by way of judicial review, or may the inmate choose to disregard that procedure and attack it collaterally by means of an action in damages?

[2]         As we will see in the course of these reasons, the question is important, albeit not new. It has been posed more than once. The replies it has been given were sometimes hesitant, sometimes divergent, sometimes deferred. In Her Majesty The Queen in the Right of Canada, B.S. Warna and D.A. Hall v. Budisukma Puncak Sendirian Berhad, Maritime Consortium Management Sendirian Berhad, [2005] F.C.A. 267, at paragraph 59 (Berhad), this Court stated that the question was not definitively resolved and remained open for determination in a subsequent case. The time has now come to answer it, and positively.

Context in which the question is raised in this case

[3]         The respondent is an inmate in the Donnacona maximum security penitentiary. This institution is administered by the Correctional Service of Canada under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act) and the Regulations Respecting Corrections and the Conditional Release and Detention of Offenders, SOR/92-620 (the Regulations).

[4]         On May 29, 1998, he was involved in an incident in which he threw the forms he was holding in his hand at a correctional officer. The action was perceived as a threat and an attempt to strike the officer. Some of the officer's co-workers intervened immediately and the respondent was returned to his cell.

[5]         Considering the circumstances of time, place, and manner, the institutional head felt the incident was serious. He concluded it was necessary to place the respondent in administrative segregation for a period of 14 days.

[6]         A disciplinary offence report was written up. A charge of [translation] "creating a disturbance or any other activity that is likely to jeopardize the security of the penitentiary" was laid against the inmate under paragraph 40(m) of the Act. He was found guilty and sentenced to disciplinary segregation for 14 days. This decision of the disciplinary court was challenged by way of judicial review. The Federal Court was to invalidate it on June 11, 1998.

[7]         Having said this, I hasten to explain that the present appeal is not addressed to this disciplinary aspect of the incident, although it remains a relevant fact in understanding and analyzing the reasonableness of the decision of the institutional head to place the inmate in administrative segregation in the hour following the incident. It is the latter decision of the institutional head, which the inmate has collaterally attacked by means of an action in damages, that is the central issue here.

[8]         In fact, the inmate did not challenge the institutional head's decision by way of judicial review within 30 days after the decision was first communicated to him, as stated by sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7. Instead, he brought an action in damages against the appellant under section 17 some three years after that decision. His claim covered both the administrative segregation of May 29, 1998, and the disciplinary segregation of June 25, 1998. It was for a total of $37,000, broken down as $12,000 for the periods of segregation and $25,000 in exemplary punitive damages. Concerning the administrative segregation, the respondent alleged that the decision was unlawful because it was oppressive and arbitrary.

[9]         The action was allowed in part by the prothonotary on January 28, 2004. The appellant was then ordered to pay the respondent $3,000 in compensatory damages and $2,000 in exemplary damages.

[10]       The respondent's success was partial because the prothonotary found no fault in the appellant's decision-making in relation to the disciplinary segregation. However, concerning the administrative segregation, he found that the institutional head's decision was arbitrary and that the appellant was therefore liable. Hence, the award of damages.

[11]       On appeal to the Federal Court, the Court upheld the prothonotary's jurisdiction to decide, in the context of a simplified action, the issue of the actionable fault. Moreover, the Court said that in its opinion the prothonotary's decision was justified by the evidence adduced and was free of any overriding error.

[12]       This contextualization leads me to discuss whether or not it was necessary for the respondent to attack the administrative segregation decision of the institutional head by way of judicial review before bringing an action in damages.

Should the respondent have applied for judicial review of the decision of the institutional head instead of bringing an action in damages?

[13]       This question was raised in the Federal Court, where the parties took opposite positions. The appellant cited the judgment in Tremblay v. Canada, (2004), 244 D.L.R. (4th) 422 (F.C.A.) (leave to appeal to the Supreme Court of Canada denied with costs on December 16, 2004, [2004] S.C.C.A. No. 307), to argue that the respondent could not elect between two procedures and had to use the judicial review procedure. I will say more about that decision later.

[14]       The respondent, for his part, argued that the facts concerning him enabled him to cite Zarzour v. Canada, [2000] F.C.J. No. 2070 (F.C.A.) in support of his choice of proceedings. In that case, I wrote at paragraph 48 that it is necessary, in relation to this question, to adopt an utilitarian approach and to favour the proceeding that can be used to eliminate or repair the harm resulting from the decision that was rendered. For example, I said there may be no use in requiring that an inmate who has already served his segregation period seek to have the decision that forced this on him set aside by way of judicial review. Implicit in this statement was the idea that the decision was then no longer operative or effective. It is understandable, therefore, that the respondent would use that decision.

[15]       The Federal Court applied the Zarzour principle to the facts in this case, and it cannot be criticized for doing so. At paragraph 8 of his decision, the judge hearing the appeal summarized his perception of the law on the issue as follows:

It appears from the precedents applicable in this matter that, in cases in which the decision giving rise to the harm is still operative at the time the remedy is sought, the aggrieved party cannot make use of an action but must proceed by way of judicial review: Sweet v. Canada, [1999] F.C.J. No. 1539, on line: QL; Zarzour, supra; Tremblay, supra. Conversely, where the decision which gave rise to the alleged harm is no longer effective at the time, it is possible for the applicant to bring an action claiming damages: Creed v. Canada (Solicitor General), [1998] F.C.J. No. 199, on line: QL; Shaw v. Canada, [1999] F.C.J. No. 657, on line: QL.

[16]       In retrospect, I think the choice of the example given in obiter in Zarzour was unfortunate, since, in terms of material and legal effects, a decision ordering administrative segregation continues to be effective long after the period of detention in segregation has been served.

[17]       In fact, in the case at bar, the respondent bases a part of his claim in damages on the fact that the decision of the institutional head remained in his prison record, jeopardized the pursuit of his correctional plan, compromised his return to a medium security penitentiary and reduced, if not eliminated altogether, his chances of conditional release: see paragraphs 43 to 48 of the respondent's affidavit, appeal book, volume 1, page 169.

[18]       Moreover, a decision of a federal agency continues to be legally effective so long as it has not been invalidated. As this Court said in the Berhad case, supra, at paragraph 60, it provides a legal basis for the action of those whose task it is to implement it or who use coercive measures to enforce it. It legally justifies the committal and expenditures of the public funds required for its implementation.

[19]       In short, a decision of a federal agency, such as the one by the institutional head in this case, retains its legal force and authority, and remains juridically operative and legally effective as long as it has not been invalidated.

Reconsolidation of federal administrative law

[20]       For the reasons expressed below, I think the conclusion our colleague, Madam Justice Desjardins, arrived at in Tremblay, supra, is the right one in that it is the conclusion sought by Parliament and mandated by the Federal Courts Act. She held that a litigant who seeks to impugn a federal agency's decision is not free to choose between a judicial review proceeding and an action in damages; he must proceed by judicial review in order to have the decision invalidated.

[21]       Under section 17 of the Federal Courts Act, the Federal Court has concurrent jurisdiction with the courts of the provinces to try a claim for damages under the Crown Liability and Proceedings Act. Section 17 is reproduced in part:

[Emphasis added]

[22]       However, Parliament thought it was appropriate to grant and reserve the Federal Court exclusive jurisdiction to review the lawfulness of the decisions made by any federal board, commission or other tribunal:

    [Emphasis added.]

[23]       In Canada v. Capobianco, [2005] J.Q. No. 1155, 2005 QCCA 209, the Quebec Court of Appeal acknowledged this exclusive jurisdiction and held that the action for damages brought in the Superior Court of Québec was premature since the plaintiff's claim was essentially based on the premise that the decisions made in relation to him by the federal tribunals from which his damage resulted were illegal: only the Federal Court had jurisdiction to condemn this illegality which, under subsection 18(3), is exercised through the judicial review procedure provided by Parliament.

[24]       In creating the Federal Court and in enacting section 18, Parliament sought to put an end to the existing division in the review of the lawfulness of the decisions made by federal agencies. At the time, this review was performed by the courts of the provinces: see Patrice Garant, Droit administratif, 4th ed., vol. 2 (Les Éditions Yvon Blais Inc., 1996), at pages 11 to 15. Harmonization of disparities in judicial decisions had to be achieved at the level of the Supreme Court of Canada. In the interests of justice, equity and efficiency, subject to the exceptions in section 28, Parliament assigned the exercise of reviewing the lawfulness of the decisions of federal agencies to a single court, the Federal Court. This review must be exercised under section 18, and only by filing an application for judicial review. The Federal Court of Appeal is the court assigned to ensure harmonization in the case of conflicting decisions, thereby relieving the Supreme Court of Canada of a substantial volume of work, while reserving it the option to intervene in those cases that it considers of national interest.

[25]       To accept that the lawfulness of the decisions of federal agencies can be reviewed through an action in damages is to allow a remedy under section 17. Allowing, for that purpose, a remedy under section 17 would, in the first place, disregard or deny the intention clearly expressed by Parliament in subsection 18(3) that the remedy must be exercised only by way of an application for judicial review. The English version of subsection 18(3) emphasizes on the latter point by the use of the word "only" in the expression "may be obtained only on an application for judicial review".

[26]       It would also judicially reintroduce the division of jurisdictions between the Federal Court and the provincial courts. It would revive in fact an old problem that Parliament remedied through the enactment of section 18 and the granting of exclusive jurisdiction to the Federal Court and, in the section 28 cases, the Federal Court of Appeal. It is precisely this legislative intention that the Quebec Court of Appeal recognized in the Capobianco case, supra, in order to preclude the action in damages filed in the Superior Court of Québec attacking the lawfulness of the decisions of federal boards, commissions or other tribunals from leading, in fact and in law, to a dysfunctional dismemberment of federal administrative law.

Compromising of legal security

[27]       To allow a proceeding under section 17, whether in the Federal Court or in the provincial courts, in order to have decisions of federal agencies declared invalid, is also to allow an infringement of the principle of finality of decisions and the legal security that this entails.

[28]       I need not expound at length on the importance of the principles of res judicata and the finality of decisions. Similarly, I need not say much about the abundant case law that recognizes and promotes these principles. I will confine myself to saying that these principles exist in the public interest and that Parliament's intention to protect that interest is illustrated by the short time limit allowed for challenging an administrative decision.

[29]       Parliament has provided, in subsection 18.1(2), that the time for filing an application for judicial review is 30 days from the time the impugned decision of the federal agency was communicated to the applicant (subject to any extension of the periods allowed by the Court). Concerning this time limit, this Court writes in Berhad, supra, at paragraph 60:

In my view, the most important reason why a shipowner who is aggrieved by the result of a ship safety inspection ought to exhaust the statutory remedies before asserting a tort claim is the public interest in the finality of inspection decisions. The importance of that public interest is reflected in the relatively short time limits for the commencement of challenges to administrative decisions - within 30 days from the date on which the decision is communicated, or such further time as the Court may allow on a motion for an extension of time. That time limit is not whimsical. It exists in the public interest, in order to bring finality to administrative decisions so as to ensure their effective implementation without delay and to provide security to those who comply with the decision or enforce compliance with it, often at considerable expense. In this case, the decision of the Chairman was not challenged until, a year and a half after it was made, the respondents filed their claim for damages.

[30]       In the present case, I note that the claim for damages was brought about three years to the day after the impugned decision was rendered. Apart from the fact that the respondent, without explanation or justification, overlooks the time limit provided in subsection 18.1(3), the proceeding he used creates inappropriate and detrimental legal uncertainty as to the finality of the decision and its execution.

Promotion of indirect challenges

[31]       The principle of the finality of decisions likewise requires that in the public interest, the possibilities for indirect challenges of an administrative decision be limited and circumscribed, especially when Parliament has opted for a procedure for direct challenge of the decision within defined parameters.

[32]       In Berhad, supra, the owners of a vessel were suing the Crown following an administrative decision by two inspectors to order the seizure of their vessel. This Court restated, at paragraphs 61, 62, 65 and 66, the applicable principle in such matters:

[61]          There is also a public interest in precluding the use of tort claims to engage in collateral attacks on decisions that are, or should be, final. The case of R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706, is instructive because, not unlike the present instance, it relates to a collateral attack on an order requiring that certain measures be taken to protect the environment while direct review proceedings were available under the Environmental Protection Act. In our case, the detention order requiring that certain repairs be done was not only aimed at protecting the marine environment, but also at ensuring the safety of human lives.

[62]          In Maybrun, the Supreme Court undertook a review of the statute and of the legislative intent behind it and concluded that persons charged with failing to comply with an order under that statute "cannot attack the validity of the order by way of defence after failing to avail themselves of the appeal mechanisms available under the [statute]": ibidem, at paragraph 65. In the Court's view, to permit such a collateral attack would encourage conduct contrary to the statute's objectives and would tend to undermine its effectiveness: ibidem, at paragraph 60. Although the circumstances of that case differ slightly from those in the case at bar, the conclusions reached by the Supreme Court are nevertheless relevant to the present issue. If an accused, who has a right to full answer and defence, is not permitted in a penal proceeding to use as a shield a collateral challenge to the administrative order that is the basis for the charge that he faces, it seems to me that, in similar circumstances, a party should be discouraged from employing a collateral attack as a sword in a civil proceeding of the kind that the respondents initiated.

...

[65]          The Supreme Court has clearly indicated that review of all administrative decision-making by a court, whether by way of judicial review or by appeal, requires the determination of the appropriate standard of review by means of a pragmatic and functional analysis. It is the fact that the decision under review originates with an administrative body that is determinative of the approach required, not the procedure by which the decision is attacked and reviewed by the courts. Any doubt on this issue was dispelled by the Supreme Court in its reasons in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, where McLachlin C.J., writing for the Court, indicated at paragraphs 21 and 25:

The term "judicial review" embraces review of administrative decisions by way of both application for judicial review and statutory rights of appeal. In every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach.

[...]

Review of the conclusions of an administrative decision-maker must begin by applying the pragmatic and functional approach.

[66]             In my view, the same principle applies when the attack on the decision, as in this instance, takes the form of an action for damages flowing from the decision rather than an application for judicial review of the decision. To suggest otherwise would be to increase the likelihood of attempted collateral attacks as a means of circumventing the deference which often results from a pragmatic and functional analysis. Such a result would run directly counter to Parliament's intent and to the message sent by the Supreme Court in Dr. Q, supra, which was to bring a more nuanced and contextual approach to the issue of curial deference towards administrative decision-making. While the courts must maintain the rule of law, their reviewing power should not be employed unnecessarily: see Dr. Q, supra, at paragraphs 21 and 26. ...

[Emphasis added.]

[33]       It is especially important not to allow a section 17 proceeding as a mechanism for reviewing the lawfulness of a federal agency's decision when this indirect challenge to the decision is used to obviate the mandatory provisions of subsection 18(3) of the Federal Courts Act.

Lack of jurisdiction of the prothonotary to hear an application for judicial review

[34]       To find the appellant liable as a result of the order of administrative segregation, the prothonotary had to review the lawfulness of the institutional head's decision ordering it and set it aside. But if the respondent had proceeded directly by an application for judicial review, as required by subsection 18(3), the prothonotary would have had no jurisdiction to carry out such a review: see rules 50 and 300 et seq. of the Federal Court Rules (the Rules). The collateral attack undertaken by the respondent therefore enabled the prothonotary to assume and exercise a jurisdiction reserved to a Federal Court judge - in short, to do indirectly what the Federal Courts Act and the Rules do not allow him to do directly.

[35]       In conclusion, the respondent could not indirectly challenge the lawfulness of the decision, by way of an action for damages under section 17, of the institutional head ordering on May 29, 1998, that he be placed in administrative segregation. In accordance with section 18, he had to apply directly to have this decision nullified or invalidated by way of judicial review.

[36]       The conclusion I have reached would suffice to dispose of the appeal. However, given the wavering and uncertainty that has surrounded the question of the proceeding allowed in these circumstances, I think it is in the interests of justice and of the parties to examine the merits of the decision rendered by the prothonotary and upheld by the Federal Court.

Standard of review applicable to the decision of the Federal Court

[37]       On appeal, this Court will not interfere with the findings of fact made by the Federal Court judge or with his findings of mixed fact and law unless they are tainted by a palpable and overriding error. In respect to questions of law, the correctness standard applies, as it does for questions of mixed fact and law where the question of law may easily be separated from the questions of fact: see Housen v. Nicolaisen, [2002] 2 S.C.R. 235, at paragraphs 8 and 10; Berhad, supra, at paragraph 21.

Standard of review applicable to the impugned administrative decision

[38]       The prothonotary was the first judicial authority confronted with the respondent's claim for damages against the appellant. To succeed, this action first had to seek and obtain a declaration that the decision of the institutional head was unlawful. The prothonotary acquiesced in the respondent's claim and characterized the institutional head's decision ordering administrative segregation as arbitrary.

[39]       In judicial review matters, subsection 18.1(4) of the Federal Courts Act, and more particularly paragraphs (c) and (d), state that the reviewing judge may declare invalid or unlawful a decision that erred in law or, inter alia, a decision based on an erroneous finding of fact made in a perverse or capricious manner. Subsections 18.1(1) to (4) are reproduced:

18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.

18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l'objet de la demande.

(2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.

(2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Cour fédérale peut, avant ou après l'expiration de ces trente jours, fixer ou accorder.

(3) On an application for judicial review, the Federal Court may (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

(3) Sur présentation d'une demande de contrôle judiciaire, la Cour fédérale peut : a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou dont il a retardé l'exécution de manière déraisonnable; b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral.

(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law.

(4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas : a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer; b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter; c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages; f) a agi de toute autre façon contraire à la loi.

[40]       It is not clear from the reasons for his decision whether the prothonotary concluded that the decision was arbitrary because it failed to comply with the requirements of the Act or because the facts relied on in support of the administrative segregation did not justify such a measure. I think it is something of a mixture of the two: see paragraphs 79 to 85 of his decision, appeal book, at pages 45 to 48. Whatever the case, subsection 18.1(4) identifies the grounds that would make it possible to review and set aside an administrative decision.

[41]       A decision like that made by the institutional head concerns the security of the penitentiary he is responsible for administering, the safety of the inmate population and staff under his management, and, finally, the security of the community in general. Subsection 4(a) of the Act reiterates that "the protection of society [is] the paramount consideration in the corrections process". That is one of the principles guiding the Correctional Service of Canada in the execution of its mandate. In a maximum security penitentiary in which tensions are high, the offenders are extremely dangerous and the situation more potentially explosive, security questions are particularly important, serious and sensitive. Security is a constant concern.

[42]       In the present case, the respondent's action was a matter of particular concern security-wise in that it was taken in the presence of other inmates and penitentiary staff. In the opinion of the prison authorities, it was a public challenge to authority and an equally public denigration of the role and duties of the penitentiary staff.

[43]       The administration and management of a maximum security penitentiary require specialized skills, tact and expertise. A decision that keeping an inmate within the general prison population following a disciplinary incident is at that point an excessive risk is a decision of a polycentric nature. It is a decision made in consultation with numerous parties, including the correctional investigator, the correctional officers involved in the incident, the parole officer assigned to the case under review, not to mention the assistance of criminologists, psychologists and psychiatrists. The decision that is made takes into account the history of the inmate's behaviour - both the behaviour that brought him to the penitentiary and the behaviour he has displayed over the years in the institution, in particular his disciplinary record: see the affidavit of Mr. Guérette, a correctional supervisor in the Donnacona maximum security penitentiary, appeal book, at pages 184 to 188.

[44]       In the case at bar, the respondent's administrative segregation was reviewed by the Segregation Review Board which recommended, on June 4, 1998, that it be maintained: see the affidavit of Mr. Lemieux, the then deputy head of the Donnacona penitentiary, appeal book, page 178, paragraph 11.

[45]       Furthermore, the incident of May 29, 1998, which led the respondent to administrative segregation also resulted in an offence report that was maintained by the Managers Committee responsible for reviewing it. This committee is composed of the institutional head, the deputy head and all the penitentiary's unit managers and correctional supervisors: see the affidavit of Mr. Guérette, appeal book, page 185, at pages 12 to 20.

[46]       To order the respondent's temporary administrative segregation, as he did, the institutional head had to be satisfied that there was no reasonable alternative and to believe on reasonable grounds that the respondent "ha[d] acted, ha[d] attempted to act or intend[ed] to act in a manner that jeopardize[d] the security of the penitentiary or the safety of any person". Paragraph 31(3)(a) of the Act are reproduced:

Administrative Segregation 31. (1) The purpose of administrative segregation is to keep an inmate from associating with the general inmate population.	Isolement préventif 31. (1) L'isolement préventif a pour but d'empêcher un détenu d'entretenir des rapports avec l'ensemble des autres détenus.
(2) Where an inmate is in administrative segregation in a penitentiary, the Service shall endeavour to return the inmate to the general inmate population, either of that penitentiary or of another penitentiary, at the earliest appropriate time.	(2) Le détenu en isolement préventif doit être replacé le plus tôt possible parmi les autres détenus du pénitencier où il est incarcéré ou d'un autre pénitencier.

(3) The institutional head may order that an inmate be confined in administrative segregation if the institutional head believes on reasonable grounds (a) that (i) the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person, and ¼ and the institutional head is satisfied that there is no reasonable alternative to administrative segregation.

(3) Le directeur du pénitencier peut, s'il est convaincu qu'il n'existe aucune autre solution valable, ordonner l'isolement préventif d'un détenu lorsqu'il a des motifs raisonnables de croire, selon le cas : a) que celui-ci a agi, tenté d'agir ou a l'intention d'agir d'une manière compromettant la sécurité d'une personne ou du pénitencier et que son maintien parmi les autres détenus mettrait en danger cette sécurité; [¼]

[Emphasis added]

I note that Parliament refers in English to "reasonable alternative" and that the word "reasonable" was improperly rendered in French by the word "valable" [valid]. The assessment of what is reasonable compared with what is valid does not necessarily compel the same considerations and does not necessarily produce the same result. An alternative may be reasonable without being valid and vice versa.

[47]       The decision of the institutional head, which the various prison officials took part in and supported, as it were, is at the core of these professionals' expertise and compels deference on the part of the courts. The very language of paragraph 31(3)(a) of the Act highlights this necessity.

[48]       In the first place, the prison authorities are closely acquainted with the respondent and handle his surveillance from a security and social rehabilitation perspective. They are aware of his activities in detention, his relationships, his receptiveness to the institutional programs, his disciplinary breaches, etc. They know the impact that a public challenge to their authority can have with respect to security in a maximum security penitentiary. While not giving them free rein, it must be recognized that they have a clear advantage when it comes to determining whether, in view of all these factors, including the nature of the disciplinary offence that was committed, there is some reasonable alternative that would temporarily ensure the security of the penitentiary and the safety of individuals. I prefer to use the word "reasonable", which corresponds more closely to the intention Parliament has expressed in this provision and takes greater consideration of the imponderability that this kind of situation entails, in such a way that the choice of the appropriate measure must be situated within the limits of what is reasonable.

[49]       Secondly, the prison authorities must have "reasonable" grounds to believe that the respondent has acted in a manner that jeopardizes the security of the penitentiary or the safety of any person and that his continued presence among the other inmates would jeopardize that security. Parliament has expressly chosen the test of reasonableness to guide and gauge the action taken by the institutional head under paragraph 31(3)(a). Reasonable grounds and reasonable alternative are the two chosen qualifiers.

[50]       On judicial review, the judge must ask himself whether the institutional head had reasonable grounds to fear for the safety of the officer who was threatened or of other persons, or for the security of the penitentiary, and whether he had such grounds to believe that keeping the inmate among the other inmates would jeopardize that security. The judge must also ask himself whether the institutional head was satisfied that there was no reasonable alternative to administrative segregation. The judge may not substitute his personal opinion for that of the institutional head on either of these issues. In other words, it is of little moment that the judge does not think the safety of any persons or the security of the penitentiary were or would be jeopardized if, in the opinion of the institutional head, there were reasonable grounds to believe that such was the case. Moreover, even if he thinks there was a reasonable alternative, he cannot intervene if the evidence establishes that the institutional head was satisfied at the time he made the decision that temporary administrative segregation was the only reasonable solution in the circumstances. It is the institutional head, not the judge, who is given the authority to assess and choose the reasonable measure that is warranted by the situation contemplated by paragraph 31(3)(a) of the Act.

[51]       Having established these parameters for intervention, let us now turn to the prothonotary's analysis of the decision of the institutional head and the Federal Court's analysis of the prothonotary's decision.

Analysis of the prothonotary's decision

[52]       With respect, I think the prothonotary did not apply the standard of review laid down by paragraph 31(3)(a) of the Act to the institutional head's decision. Although in paragraph 84 of his decision he said he was "prepared to recognize that the penal authorities are entitled to a high degree of deference in their assessment of the situation", he did in fact substitute his opinion concerning the assessment of the danger and the need for administrative segregation for that of the institutional head.

[53]       Paragraphs 76 and 81 to 85 of his decision, reproduced below, clearly indicate the state of mind in which he approached the question and the exercise in which he engaged:

[76]          I am prepared to find that Ms. Lafontaine's perception of the plaintiff's gesture as well as Mr. Lemieux's perception of the gravity and the seriousness of this gesture were perceptions or conclusions that these persons could draw.

...

[81]          Although we can understand from the evidence that the plaintiff's act jeopardized the security of the penitentiary, the explanations provided by Mr. Lemieux and Mr. Guérette show that this danger arose at the very moment of the act, namely that the other inmates would then act inappropriately and that they would revolt. This did not happen, however, and the plaintiff was even able to get back to his cell among the institution's general population on his own.

[82]          In fact, it was only after an hour that the plaintiff was transferred to administrative segregation. If the plaintiff had to be kept from associating with the rest of the general inmate population within the meaning of subsection 31(1) of the Act, I do not think the plaintiff would have been allowed to go back to his cell for almost an hour.

[83]          In the same vein, it has not been justified to me, in accordance with subsection 31(3) of the Act, that keeping the plaintiff in the general inmate population, after this hour, was likely to jeopardize this security. There is no evidence to show that the plaintiff's gesture was anything more than an isolated act and that keeping him in the general inmate population would again compromise the security of the institution.

[84]          On the other hand, subsection 31(2) of the Act provides that the inmate in administrative segregation must be returned to the general inmate population at the earliest appropriate time. Here again, I do not believe that the authorities have justified their position. From my assessment of the evidence, it appears that it is essentially because of the fact that the plaintiff maintained his version of events that he was kept in administrative segregation. This position of the plaintiff, apart from the fact that it is logical, does not in any way justify, in my opinion, keeping him in administrative segregation. It was raised in the evidence by the defendant that this attitude of the plaintiff indicated that he was at risk of recidivism. Even though I am prepared to recognize that the penal authorities are entitled to a high degree of deference in their assessment of the situation, I do not think that this statement is warranted and supported in this case.

[85]          For these reasons, I agree with the Court in Brandon, supra, paragraph 69 and the Court in Saint-Jacques v. Canada (Solicitor General) (1991), 45 F.T.R. 1, that the defendant did not discharge her burden to persuade the Court that, from May 29 to June 11, 1998, the plaintiff's administrative segregation was warranted. So, for this period, my finding is that the plaintiff was arbitrarily imprisoned. The plaintiff is therefore entitled to compensatory and exemplary damages in this respect.

[Emphasis added]

[54]       It is not the prothonotary's task to engage in a personal assessment of the evidence in order to determine that the danger for the person who was threatened and for the security of the penitentiary existed only at the very moment the action was taken.

[55]       Similarly, he is mistaken in thinking that the fact the respondent was allowed to go back to his cell for almost one hour indicated that it was not necessary to prevent him from associating with the general inmate population. The record indicates that confinement to cell was necessary in order to contact the institutional head, inform him of the incident and enable him to seek advice before resorting to the appropriate measure in the circumstances. This temporary confinement in a cell must be seen as reflecting not a lack of danger but the penal authorities' concern to comply with the Act and respect the respondent's rights while adhering to the procedure prescribed by Parliament in such situations.

[56]       During the hour the respondent was kept in his cell, the danger was temporarily brought under control. As is apparent from the record and the steps that were taken, the prison authorities asked themselves the following question: How to protect the correctional officer and ensure the security of the staff and the penitentiary against the danger that, in the following days, the respondent might repeat his act of defiance towards authority, confident as he necessarily would be if his act remained unpunished or was trivialized? Clearly, the institutional head, the correctional investigator, the Segregation Review Board, the Managers Committee responsible for reviewing the offence report and the correctional officers involved, to name only a few, were all of the opinion that the danger did not stop when the incident occurred and necessitated some preventive action.

[57]       Subsection 31(2) of the Act stipulates that where an inmate is in administrative segregation, the Service shall endeavour to return the inmate to the general inmate population at the earliest appropriate time. Obviously, the "earliest appropriate time" criterion is satisfied when the threat to security is under control or has dissipated or when some other reasonable solution can be implemented, such as a transfer to another penitentiary.

[58]       In the case at bar, the prothonotary engaged in an assessment of the evidence, concluding finally that the respondent was kept in administrative segregation because he was maintaining his exculpatory version of the facts. In the prison authorities' view, the respondent's refusal to acknowledge the threatening implications of his act, perceived as an act of defiance against authority, aggravated the situation and increased the risks of a repeat offence and accordingly the risks to security.

[59]       With respect, I think the prison authorities were in a much better position than the prothonotary to assess the risk of recidivism and the issue of the respondent's return to the general prison population. Section 33 of the Act provides for a periodic review of involuntary administrative segregation. The review includes a hearing in the presence of the inmate, but for exceptions pertaining to the safety of the persons present at the hearing, the inmate's refusal to participate, or serious disruption of the hearing. The Board must subsequently make a recommendation to the institutional head as to whether the inmate should be released from administrative segregation. This process was followed in the present case and, as mentioned previously, on June 4, 1998, the Board recommended that the respondent continue to be confined in administrative segregation.

[60]       Section 32 of the Act provides that the Board's review is based on the considerations set out in section 31, namely, that the purpose of administrative segregation is to prevent an inmate from associating with the general inmate population, that it is ordered for reasons of security of the penitentiary or the safety of any person, that there is no reasonable alternative, and that it must end at the earliest appropriate time. The Board applied these criteria and, on the strength of the evidence that was put before it, concluded that the administrative segregation should be continued. I do not think it can be said that, in the circumstances, its decision based on the grounds in subsection 31(3) of the Act was unreasonable.

[61]       Given that the administrative segregation was allowed by the Act, was justified in the circumstances and, was consequently lawful, to repeat the words of my colleague Mr. Justice Noël in Cervinus Inc. v. Canada (Minister of Agriculture), [2002] F.C.J. No. 1461, 2002 FCA 398, at paragraph 15 (leave to appeal to the Supreme Court of Canada denied on April 17, 2003) this in itself "forecloses a finding of negligence". I would add that even if the institutional head's decision were to be declared invalid or unlawful, that in itself does not necessarily lead to a finding of fault or negligence and does not necessarily entail a finding of liability. To repeat the colourful expression of the appellant's counsel, [translation] "it is not because an application for judicial review is allowed that the government signs or must sign blank cheques."

[62]       On appeal, when delivering its decision, the Federal Court, like the prothonotary, did not have the benefit of this Court's decision in Berhad, supra, in which it was held at paragraphs 65 and 66 that the principles applicable to the review of an administrative decision apply, whether the review of that decision is made by an application for judicial review, by appeal or by a collateral attack such as an action in damages. Had the Federal Court applied the administrative law principles that the prothonotary ought to have applied to the decision of the institutional head and of the Segregation Review Committee, it would have concluded that the administrative decisions ordering and maintaining the respondent's administrative segregation were based on evidence which, in the circumstances, could not be found to be unreasonable.

Conclusion

[63]       For these reasons, I would allow the appeal, without costs in the circumstances, and I would set aside the decision of the Federal Court dated October 18, 2004. Proceeding to make the decision that should have been made, I would set aside the decision of the prothonotary and dismiss the action of the respondent/plaintiff with costs, which I will fix at $2,000.

                      "Gilles Létourneau"

                                 J.A.

"I concur

Robert Décary J.A."

"I concur

Marc Noël J.A."

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKET:                                           A-596-04        

STYLE:                                                HER MAJESTY THE QUEEN v.

DANIEL GRENIER

PLACE OF HEARING:                     Québec, Quebec

DATE OF HEARING:                        October 18, 2005

REASONS FOR JUDGMENT:       LÉTOURNEAU J.A.

CONCURRING:                               DÉCARY J.A.

NOËL J.A.

DATE OF REASONS:                        October 27, 2005

APPEARANCES:

Dominique Guimond                              FOR THE APPELLANT

Michelle Lavergne

Julie Gagné                                            FOR THE RESPONDENT

SOLICITORS OF RECORD:

LABRECQUE, ROBITAILLE,

ROBERGE & ASSELIN                       FOR THE APPELLANT

Québec, Quebec

JOHN H. SIMS, Q.C.                          FOR THE RESPONDENT

Deputy Attorney General

of Canada

Montréal, Quebec