Date: 20010926
Docket: T-1835-00
Neutral Citation: 2001 FCT 1053
BETWEEN:
JOHN R. PINKNEY
Applicant
- and -
ATTORNEY GENERAL (CANADA)
(Correctional Service Canada et al.)
(No. 2)
Respondents
[1] This application authorized to be in writing by prothonotary John A. Hargrave under Rule 369 of the Federal Court Rules, 1998 ("the Rules") by order dated August 1, 2001, seeks an order in the nature of certiorari to quash the document "Criminal Profile 1996" that influenced the decision of the Correctional Service of Canada dated September 5, 2000. The applicant also seeks an order of mandamus ordering the Correctional Service of Canada and the National Parole Board to expunge all references to the PCL-R testing and psychopath label in his case files. Thirdly, he applies for an order of mandamus ordering, pursuant to subsection 18.4(2) of the Federal Court Act ("the Act"), that the instant judicial review application be proceeded with as an action against the Attorney General of Canada.
1. Facts
[2] The applicant is currently serving an aggregate sentence of more than 18 years imposed in relation to offences committed in 1985, and subsequent offences. His sentence will be completed on December 10, 2003. On numerous occasions he has been granted conditional release and, on most of those occasions, he has failed to meet the conditions imposed. Each time he has been returned to custody, often with convictions for additional offences committed while on conditional release. In February of 1999 and on September 5, 2001, his parole has been suspended six times with four suspensions being cancelled.
[3] On October 20, 1995, the Correctional Service of Canada, through their psychologist, Terry Gardy, utilized a diagnostic tool referred to as a PCL-R, Hare psychopathy Checklist - Revised to perform a risk of assessment on the applicant.
[4] On June 12, 1996, the Correctional Service of Canada completed a Criminal Profile Report concluding a summary of the risk assessment by psychologist Terry Gardy indicating that the applicant was a "psychopath" and that "at 35 years of age, Mr. Pinkney still presents a poor prognosis for conditional release and a high risk to re-offend".
[5] The Criminal Profile Report also summarizes an assessment of the applicant by psychiatrist Dr. Eves from November 24, 1997, to the effect that a diagnosis of psychopath has been considered and that he exhibits many characteristics which would qualify for such a diagnosis.
[6] The applicant filed internal grievances at the regional and national levels attempting to quash the PCL-R test scores but his grievances were dismissed.
[7] Following a decision of the National Parole Board on July 9, 1997, denying the applicant's day parole, the latter sought judicial review of that decision along with supporting orders of mandamus and certiorari with respect to the PCL-R testing and the references to him as a "psychopath" in the Criminal Profile Report of June 12, 1996.
[8] MacKay J. dismissed the application on the ground that the applicant was barred by a lapse of time from appealing the decision that he seeks to have reviewed. The learned judge added an obiter dictum to the effect that "assessing or diagnosing the applicant's mental condition without his consent contravenes Commissioner's Directive No. 803, s. 2 and 6", and that consideration should be given "to avoiding use of questionable psychological testing or assessments in future situations involving the applicant or other persons detained".
[9] In August of 2000, the Correctional Service of Canada completed an assessment for a decision updating information about the applicant and recommending that his day parole be revoked, noting that between February of 1999 and September 5, 2001, his parole has been suspended six times, with four suspensions cancelled.
[10] On September 5, 2000, the Correctional Service of Canada completed a Community Assessment Report, which provided information about a decision of the Miracle Valley Screening Committee ("the Screening Committee") with respect to admitting the applicant for residency. The Screening Committee noted that the comments contained in the Criminal Profile Report dated June 14, 1996, was of major concern to them.
[11] However, the Screening Committee felt that comments contained in the assessment for decision from August of 2000 (which does not contain any reference to the "psychopathy" or the PCL-R rating) suggests that the applicant still does not accept responsibility for his re-offending and, therefore, would not benefit from conventional programming. The Screening Committee then concluded that they had nothing to offer the applicant at Miracle Valley Treatment Centre, which is an addiction and rehabilitation centre run by the Salvation Army, independently from the Correctional Service of Canada.
2. Issues
[12] Firstly, does the Federal Court have jurisdiction to review the decision in question; secondly, should the applicant's application be dismissed as he has failed to pursue the grievance procedures provided in the Corrections and Conditional Release Act ("the CCRA"); thirdly, should the applicant's application for relief in the nature of mandamus and certiorari in regard to references to his PCL-R rating and the "psychopath" label be dismissed as res judicata; fourthly, should this Court order that the instant judicial review application be proceeded with as an action against the Attorney General of Canada.
3. Jurisdiction
[13] Clearly, the Federal Court does not have jurisdiction to judicially review a decision made by a non-federal government entity. Under subsection 18.1(2) of the Act, an application for judicial review may be launched in respect of a decision or order of a federal board, commission or other tribunal within thirty days after the decision was first communicated to the party directly affected. Similarly, extraordinary remedies such as certiorari or mandamus may be obtained only on an application for judicial review made under section 18.1 of the Act.
[14] The Screening Committee is a private body falling under the direction of the Salvation Army, which is a private corporation. Obviously, decisions emanating from that Screening Committee may not be challenged by way of judicial review in the Federal Court. However, this Court has the jurisdiction to review decisions of the Correctional Service of Canada and the National Parole Board.
[15] This Court may order these two tribunals to expunge all references to the "psychopath" label when the use of the offending label is without justification. In his February 26, 1998 decision above referred to, my brother MacKay dealt precisely with the National Parole Board's use of the assessment of the "psychopath" label. He refrained to prohibit the use of that assessment by the National Parole Board because the applicant did not appeal the National Parole Board's decision. But, as mentioned earlier, he released a strong obiter dictum asking the relevant parties to consider avoiding the use of questionable psychological testing or assessments in future situations involving the applicant. He added that "a proper review by the Correctional Service may be particularly important".
[16] The applicant represents himself in these proceedings and has assembled a considerable and surprisingly knowledgeable Applicant's Record. He has raised a large number of facts, issues and arguments, some of which that are irrelevant to the judicial review, with the result that it is not absolutely clear what decision he is attacking. Obviously, if the decision under attack dates back to more than 30 days, he is outside the time-limit for judicial review. If he is limiting his request to an application for an order restraining all present and future references to the PCL-R testing and "psychopath" label condemned by MacKay J. is his obiter dictum, I am prepared to grant such an order.
4. Should the Application be Dismissed for Failure to Pursue the Grievance Procedures Provided in the CCRA ?
[17] If the applicant takes issue with the provision of information by the Correctional Service of Canada and its Parole Officer to the Screening Committee, then by law he must use the grievance procedure provided in the CCRA and Regulations that set out an adequate alternative remedy that must be pursued prior to seeking judicial review.
[18] Section 90 of the CCRA provides as follows:
90. There shall be a procedure for fairly and expeditiously resolving offenders' grievances on matters within the jurisdiction of the Commissioner, and the procedure shall operate in accordance with the regulations made under paragraph 96(u).
[19] On that score, as in previous decisions of this Court on such issues, the applicant, once again, has failed to avail himself of the adequate alternative remedies and, consequently, this prong of his application must be dismissed.
5. Res Judicata
[20] Should the applicant's application for relief in the nature of mandamus and certiorari in regard to references to his PCL-R rating and the "psychopath" label be dismissed as res judicata? Indeed, once a final decision has been pronounced, the subject matter of that litigation cannot be litigated again. As mentioned earlier, the applicant sought judicial review in 1997 of a decision of the National Parole Board in respect of the PCL-R rating and reference to the applicant as "psychopath" in the Criminal Profile Report of June 12, 1996 and other Correctional Service of Canada documents. He cannot seek the same relief in the instant application. A new issue is the recent provision of that same information to the Screening Committee. The respondents ought not to have continued with the use of the "psychopath" labels based on an earlier questionable assessment.
[21] In all fairness to the applicant, the respondents cannot be allowed to continue using the offending label.
6. Should the Applicant be Allowed to Proceed with an Action against the Attorney General of Canada ?
[22] I agree with the respondents in their Record filed June 11, 2001, that "the issues raised in these proceedings can be satisfactorily dealt with by way of Judicial Review without the need for viva voce evidence to establish the credibility of witnesses or to allow the court to fully grasp the evidence".
[23] However, if the applicant intends to pursue an action against the government in tort it is not appropriate, in my view, to convert the instant judicial review application into an action under subsection 18.4(2) of the Act. The Applicant's Record is not sufficiently focussed to be used as an acceptable document to serve as a basis for an action. An action must proceed by way of a statement of claim containing concise statements of the material facts on which the plaintiff relies and follow the precise procedure established under Part 4 of the Federal Court Rules.
7. Disposition
[24] The respondents are hereby ordered to refrain from further using the "psychopath" label with reference to the applicant arising from the PCL-R testing of the June 12, 1996 assessment by psychologist Terry Gardy and described as questionable by MacKay J. in his decision of February 26, 1998. Of course, this order does not apply to further use of the label resulting from an unquestionable assessment.
OTTAWA, Ontario
September 26, 2001
Judge