Date: 20040130
Docket: T-1260-02
Citation: 2004 FC 151
BETWEEN:
STÉPHANE MALLETTE
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
HARRINGTON J.
INTRODUCTION
[1] This is an application for judicial review by the applicant pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, regarding a decision dated June 19, 2002, by which the Inmate Grievance Committee (the committee) of Correctional Service Canada (CSC) dismissed his grievance. That grievance concerned the dismissal of his application for reconsideration of his security level and involuntary transfer to the Drummond Institution.
FACTS
[2] Stéphane Mallette is currently an inmate at the Drummond Institution, a medium security penitentiary.
[3] Since 1998, he has been serving a sentence of 8 years and 8 days for offences of robbery, disguising with intent, forcible confinement, conspiracy to commit robbery with a firearm, breaking and entering and conspiracy to commit breaking and entering.
[4] After obtaining a minimum security rating when he was imprisoned at the La Macaza Institution, he was transferred to the Montée St-François (MSF) Minimum Security Institution on October 31, 2000.
[5] While he was at the MSF Institution he showed certain relevant progress in terms of his correctional plan and consequently was able to benefit from temporary absences to encourage his return to society. In view of his conduct at that time, he also earned work releases.
[6] However, on September 28, 2001, his exterior placement was suspended because, following a urine test, he admitted taking drugs. The applicant explained his misconduct by a difficult situation he was going through at the time with his ex-spouse. The leave authorizations were also cancelled as a consequence.
[7] On November 16, 2001, Mr. Mallette was placed in administrative segregation because preventive security had obtained information that he was suspected of planning to escape. The prison authorities placed him in segregation.
[8] On November 22, 2001, pursuant to paragraph 21(2)(a) of the Corrections and Conditional Release Regulations (the Regulations), the applicant met with the Administrative Segregation Committee, where it was explained to him that the preventive security department had received information from four different sources, coded and considered trustworthy, linking him to very active participation in drug trafficking in the Institution. Further, according to this information on the eve of his placement in administrative segregation Mr. Mallette sought to obtain money from other inmates with a view to escaping.
[9] On December 5, 2001, Correctional Plan No. 7 Follow-Up was produced and discussed with the applicant on December 10, 2001. This Correctional Plan Follow-Up contained a summary of security information reports linking the applicant to the bringing of drugs into the institution and their sale and to the fact that he intended to escape. According to this Correctional Plan Follow-Up, Mr. Mallette was told by his case management team and by the preventive security officer (PSO) to cease his activities.
[10] On December 6, 2001, an Assessment for Decision was produced regarding Mr. Mallette's security rating and involuntary transfer. The content of that evaluation was disclosed to Mr. Mallette on December 12, 2001. In that Assessment for Decision, the applicant's case management team recommended his security rating be raised to medium and he be involuntarily transferred to a medium security institution.
[11] On December 12, 2001, pursuant to section 29 of the Corrections and Conditional Release Act (the CCRA, or the Act), he received a Notice of Involuntary Transfer Recommendation in which he was told that he could make comments on the recommendations regarding his security rating and transfer. He was further told that his comments would be taken into account at the time of the final recommendation and in the decision-making process.
[12] Accordingly, on several occasions in December 2001, he sent the warden of the MSF Institution comments opposing the proposed security rating and transfer. In particular, he mentioned the presence of persons hostile to him in certain institutions.
[13] At the same time, pursuant to subsection 21(2) and section 22 of the Regulations, the Administrative Segregation Committee ruled on the 5th, 30th and 60th days that keeping the applicant in involuntary administrative segregation was justified until the transfer process was complete.
[14] On December 24, 2001, the transfer of the applicant to the Drummond Institution, a medium security penitentiary, was approved by the warden of the MSF Institution and on January 23, 2002, the applicant was transferred to the Drummond Institution.
[15] He filed a grievance at the second level of the grievance procedure against the decision setting his security rating at medium and against his involuntary transfer to the Drummond Institution.
[16] On April 11, 2002, after an exhaustive study of the case, the regional deputy commissioner concluded that apart from sending the applicant's new case management team letters which his current [TRANSLATION] "girlfriend" had sent to the Senior Analyst, Inmates Affairs, for action considered necessary, no further steps were required at the regional level.
[17] On May 20, 2002, Mr. Mallette challenged this decision at the third level of the grievance procedure. On June 19, 2002, his grievance was rejected and it was stated that on June 4, 2002, a new assessment of his security rating had confirmed that it would remain at the medium level.
[18] On June 4, 2002, when the applicant's security rating was reviewed, it was maintained at the medium level. This rating was assigned to the applicant not only in light of the events that occurred at the MSF but also in view of his present situation. Thus, his case management team mentioned in the Assessment for Decision the following, inter alia: [TRANSLATION] "We also noted in the interview that the subject was having great difficulty controlling his impulsiveness and we feel he will have to increase his credibility".
[19] Additionally, in a memorandum dated May 6, 2002, the applicant's new case management team at the Drummond Institution said it agreed with the increase in security rating made at the MSF Institution.
[20] Mr. Mallette filed the application for judicial review at bar against the decision at the third level of the grievance procedure regarding an increase in his security rating and his penitentiary placement.
POINTS AT ISSUE
[21] The only point at issue is whether the decision by the third level of the grievance procedure on June 19, 2002, is one that would warrant this Court's intervention.
APPLICANT'S ARGUMENTS
[22] Mr. Mallette submitted that the Commission's decision was wrong since CSC did not provide sufficient information [to] him when reassessing his security rating from minimum to medium and the transfer that resulted.
[23] Specifically, he submitted that the information in support of the decision to raise the security rating did not meet the tests laid down in the Commissioner's directives and standard operating procedures and that the decision was made contrary to the elementary rules of fundamental justice, since it relied on unverifiable information against which he had no means of presenting a full and complete defence.
[24] In other words, he submitted that CSC was required to give him more information on the allegations of drug trafficking and intent to escape so he could submit a complete defence, and maintained that the information in the decision was too vague to enable him to present a complete and intelligent defence. In this regard, it seems advisable to set out part of the applicant's memorandum here:
[TRANSLATION]
42. . . . Did this source provide details on the proposed escape, giving information on means, time and place? Was the drug trafficking a plan or an observed fact? What drugs were in question? Bringing drugs into the institution is certainly a very serious act: what were the circumstances surrounding that act? What were the quantities involved? Was an organized network mentioned? Was the applicant supposed to be acting on his own account? Since he was not going outside, how could he obtain the said drugs? It is known that the search of his visitor Ms. Proulx (when Ms. Comeau was expected) proved negative and no document mentioned any suspicion concerning her. In that case, who else brought him these drugs? NOTHING - NO INFORMATION - was provided to the applicant giving even a minimal justification of the decision to segregate him and transfer him . . .
[25] Accordingly, he considered that this breach of the rule of natural justice deprived him of his constitutional rights protected by section 7 of the Canadian Charter of Rights and Freedoms.
RESPONDENT'S ARGUMENTS
[26] The respondent relied on the assignment of a new security rating to Mr. Mallette on June 4, 2002, as a basis for arguing that the application at bar is pointless. The respondent noted that in making that reassessment the applicant's case management team at the Drummond Institution did not rely just on the events that occurred at the MSF when they recommended that his medium rating be maintained. It also noted itself in the interview that the subject was still having great difficulty controlling his impulsiveness, and mentioned he would have to increase his credibility. Consequently, it was not until after there had been an exhaustive analysis of all the applicable criteria that it recommended a medium security rating.
[27] Accordingly, the respondent submitted that in view of this new security rating the application for judicial review at bar has for all practical purposes become moot. The respondent argued that if Mr. Mallette was dissatisfied with this new rating assigned to him on June 4, 2002, he should have challenged it at the proper time.
[28] Further, the respondent submitted that the quantity and quality of the information shared with Mr. Mallette when his security rating was raised was entirely sufficient and consistent with the rules of natural justice applicable in the circumstances, and consequently the decision at the third level of the grievance procedure was correct.
[29] The respondent maintained, relying on abundant precedent, that the standard of judicial review applicable to the grievance procedure established under the CCRA is that of the patently unreasonable decision, when as here the question is one of fact.
[30] Additionally, the respondent submitted that unless the impugned decision is shown to be a flagrant and clear contravention of the rules of natural justice applicable in the circumstances, this Court's intervention will not be necessary.
APPLICABLE PROVISIONS
Corrections and Conditional Release Act, 1992, c. 20, Loi sur le système correctionnel et la mise en liberté sous condition, S.C. 1992, c. 20
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Section 24:
(1) The Service shall take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible. |
Article 24 :
(1) Le Service est tenu de veiller, dans la mesure du possible, à ce que les renseignements qu'il utilise concernant les délinquants soient à jour, exacts et complets. |
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(2) Where an offender who has been given access to information by the Service pursuant to subsection 23(2) believes that there is an error or omission therein, (a) the offender may request the Service to correct that information; and (b) where the request is refused, the Service shall attach to the information a notation indicating that the offender has requested a correction and setting out the correction requested. |
(2) Le délinquant qui croit que les renseignements auxquels il a eu accès en vertu du paragraphe 23(2) sont erronés ou incomplets peut demander que le Service en effectue la correction; lorsque la demande est refusée, le Service doit faire mention des corrections qui ont été demandées mais non effectuées. |
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Section 27:
(1) Where an offender is entitled by this Part or the regulations to make representations in relation to a decision to be taken by the Service about the offender, the person or body that is to take the decision shall, subject to subsection (3), give the offender, a reasonable period before the decision is to be taken, all the information to be considered in the taking of the decision or a summary of that information. |
Article 27 :
(1) Sous réserve du paragraphe (3), la personne ou l'organisme chargé de rendre, au nom du Service, une décision au sujet d'un délinquant doit, lorsque celui-ci a le droit en vertu de la présente partie ou des règlements de présenter des observations, lui communiquer, dans un délai raisonnable avant la prise de décision, tous les renseignements entrant en ligne de compte dans celle-ci, ou un sommaire de ceux-ci. |
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(2) Where an offender is entitled by this Part or the regulations to be given reasons for a decision taken by the Service about the offender, the person or body that takes the decision shall, subject to subsection (3), give the offender, forthwith after the decision is taken, all the information that was considered in the taking of the decision or a summary of that information. |
(2) Sous réserve du paragraphe (3), cette personne ou cet organisme doit, dès que sa décision est rendue, faire connaître au délinquant qui y a droit au titre de la présente partie ou des règlements les renseignements pris en compte dans la décision, ou un sommaire de ceux-ci. |
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(3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosure of information under subsection (1) or (2) would jeopardize (a) the safety of any person, (b) the security of a penitentiary, or (c) the conduct of any lawful investigation, the Commissioner may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified in paragraph (a), (b) or (c). |
(3) Sauf dans le cas des infractions disciplinaires, le commissaire peut autoriser, dans la mesure jugée strictement nécessaire toutefois, le refus de communiquer des renseignements au délinquant s'il a des motifs raisonnables de croire que cette communication mettrait en danger la sécurité d'une personne ou du pénitencier ou compromettrait la tenue d'une enquête licite. |
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(4) An offender who does not have an adequate understanding of at least one of Canada's official languages is entitled to the assistance of an interpreter (a) at any hearing provided for by this Part or the regulations; and (b) for the purposes of understanding materials provided to the offender pursuant to this section. |
(4) Le délinquant qui ne comprend de façon satisfaisante aucune des deux langues officielles du Canada a droit à l'assistance d'un interprète pour toute audition prévue à la présente partie ou par ses règlements d'application et pour la compréhension des documents qui lui sont communiqués en vertu du présent article. |
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Section 28:
Where a person is, or is to be, confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which the person is confined is one that provides the least restrictive environment for that person, taking into account (a) the degree and kind of custody and control necessary for (i) the safety of the public, (ii) the safety of that person and other persons in the penitentiary, and (iii) the security of the penitentiary; |
Article 28 :
Le Service doit s'assurer, dans la mesure du possible, que le pénitencier dans lequel est incarcéré le détenu constitue le milieu le moins restrictif possible, compte tenu des éléments suivants : a) le degré de garde et de surveillance nécessaire à la sécurité du public, à celle du pénitencier, des personnes qui s'y trouvent et du détenu; |
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(b) accessibility to (i) the person's home community and family, (ii) a compatible cultural environment, and (iii) a compatible linguistic environment; and |
b) la facilité d'accès à la collectivité à laquelle il appartient, à sa famille et à un milieu culturel et linguistique compatible; |
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(c) the availability of appropriate programs and services and the person's willingness to participate in those programs. |
c) l'existence de programmes et services qui lui conviennent et sa volonté d'y participer. |
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Section 29:
The Commissioner may authorize the transfer of a person who is sentenced, transferred or committed to a penitentiary to (a) another penitentiary in accordance with the regulations made under paragraph 96(d), subject to section 28; or (b) a provincial correctional facility or hospital in accordance with an agreement entered into under paragraph 16(1)(a) and any applicable regulations. |
Article 29 :
Le commissaire peut autoriser le transfèrement d'une personne condamnée ou transférée au pénitencier, soit à un autre pénitencier, conformément aux règlements pris en vertu de l'alinéa 96d), mais sous réserve de l'article 28, soit à un établissement correctionnel provincial ou un hôpital dans le cadre d'un accord conclu au titre du paragraphe 16(1), conformément aux règlements applicables. |
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Section 30:
(1) The Service shall assign a security classification of maximum, medium or minimum to each inmate in accordance with the regulations made under paragraph 96(z.6). |
Article 30 :
(1) Le Service assigne une cote de sécurité selon les catégories dites maximale, moyenne et minimale à chaque détenu conformément aux règlements d'application de l'alinéa 96z.6). |
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(2) The Service shall give each inmate reasons, in writing, for assigning a particular security classification or for changing that classification. |
(2) Le Service doit donner, par écrit, à chaque détenu les motifs à l'appui de l'assignation d'une cote de sécurité ou du changement de celle-ci |
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Section 141:
(1) At least fifteen days before the day set for the review of the case of an offender, the Board shall provide or cause to be provided to the offender, in writing, in whichever of the two official languages of Canada is requested by the offender, the information that is to be considered in the review of the case or a summary of that information. |
Article 141 :
(1) Au moins quinze jours avant la date fixée pour l'examen de son cas, la Commission fait parvenir au délinquant, dans la langue officielle de son choix, les documents contenant l'information pertinente, ou un résumé de celle-ci. |
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(2) Where information referred to in subsection (1) comes into the possession of the Board after the time prescribed in that subsection, that information or a summary of it shall be provided to the offender as soon as is practicable thereafter. |
(2) La Commission fait parvenir le plus rapidement possible au délinquant l'information visée au paragraphe (1) qu'elle obtient dans les quinze jours qui précèdent l'examen, ou un résumé de celle-ci. |
Corrections and Conditional Release Regulations, SOR/92-620,Règlement sur le système correctionnel et la mise en liberté sous condition, DORS/92-620.
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Section 18:
For the purposes of section 30 of the Act, an inmate shall be classified as (a) maximum security where the inmate is assessed by the Service as (i) presenting a high probability of escape and a high risk to the safety of the public in the event of escape, or (ii) requiring a high degree of supervision and control within the penitentiary; |
Article 18 :
Pour l'application de l'article 30 de la Loi, le détenu reçoit, selon le cas a) la cote de sécurité maximale, si l'évaluation du Service montre que le détenu : (i) soit présente un risque élevé d'évasion et, en cas d'évasion, constituerait une grande menace pour la sécurité du public, (ii) soit exige un degré élevé de surveillance et de contrôle à l'intérieur du pénitencier; |
| (b) medium security where the inmate is assessed by the Service as (i) presenting a low to moderate probability of escape and a moderate risk to the safety of the public in the event of escape, or (ii) requiring a moderate degree of supervision and control within the penitentiary; and |
b) la cote de sécurité moyenne, si l'évaluation du Service montre que le détenu : (i) soit présente un risque d'évasion de faible à moyen et, en cas d'évasion, constituerait une menace moyenne pour la sécurité du public, (ii) soit exige un degré moyen de surveillance et de contrôle à l'intérieur du pénitencier; |
| (c) minimum security where the inmate is assessed by the Service as (i) presenting a low probability of escape and a low risk to the safety of the public in the event of escape, and (ii) requiring a low degree of supervision and control within the penitentiary. |
c) la cote de sécurité minimale, si l'évaluation du Service montre que le détenu : (i) soit présente un faible risque d'évasion et, en cas d'évasion, constituerait une faible menace pour la sécurité du public, (ii) soit exige un faible degré de surveillance et de contrôle à l'intérieur du pénitencier. |
ANALYSIS
[31] Before beginning the analysis, it is very important to note that the application for judicial review before this Court relates only to the committee's June 19, 2002 decision and does not in any way concern the decision to place the inmate in administrative segregation.
Applicable standard of review
[32] Since this is a judicial review proceeding the standard of review applicable to the impugned decision must first be established.
[33] In Légère v. Canada (1998), 133 F.T.R. 77 (F.C.T.D.), Pinard J. held that despite the fact that the decision to order the transfer of an inmate or to deny his application is a discretionary one, requiring the decision-maker to observe procedural fairness, the Court when hearing an application for judicial review of that decision cannot substitute its personal opinion for that of the administrative authority which made the decision. The Court cited Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2, at 7, to explain the approach taken by the Court in judicial review of discretionary decisions:
It is . . . a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility.
[34] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court, reiterating the "pragmatic and functional" approach taken in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, stated the four factors that should be taken into account in determining the applicable standard of review in the case of a discretionary decision. Those factors are the following: (1) the presence or absence of a privative clause; (2) the expertise of the decision-maker; (3) the purpose of the disputed provision and of the Act as a whole; (4) the nature of the questions to be decided and their impact on the conclusions of law and fact to be drawn.
[35] Although the Act contains no privative clause that would place decisions of the committee at the third level beyond the scope of judicial review, the Court must still exercise a high degree of restraint regarding questions affecting prison administration, in view of the expertise which the committee has in that area. The purpose of the Act, and in particular of section 24, was stated by Lemieux J. in Tehrankari v. Canada (Correctional Service), [2000] F.C.J. No. 495:
41. . . . In Parliament's view, the quality of the information prescribed by section 24 leads to better decisions about an offender's incarceration and . . . leads to the achievement of the purposes of the Act. Section 24 of the Act, however, is not concerned with the inferences or assessments drawn by the Service from file information. Section 24 cannot be used to second guess decisions by the CSC provided the information base on which those conclusions are drawn comply with this provision. Section 24 deals with primary facts . . .
. . . . .
44. . . . I would apply a correctness standard if the question involved is the proper interpretation of section 24 of the Act; however, I would apply the standard of reasonableness simpliciter if the question involved is either the application of proper legal principles to the facts or whether the refusal decision to correct information on the offender's file was proper. The patently unreasonable standard applies to pure findings of fact.
Natural justice . . . scope of reasons for a decision
[36] The decision whether to transfer an inmate is a purely administrative decision: see in particular Faulkner v. Canada (Solicitor General) et al. (1992), 62 F.T.R. 19, at 24. CSC must nevertheless observe the rules of procedural fairness and natural justice in arriving at such a decision: Camphaug v. Canada (1990), 34 F.T.R. 165.
[37] Natural justice or the duty to act fairly requires that inmates have a right to know the gist of allegations made against them so they can respond intelligently to such allegations.
[38] In Demaria v. Regional Classification Board, [1987] 1 F.C. 74 (F.C.A.) (Demaria), the Federal Court of Appeal had occasion to consider the scope of reasons regarded as insufficient in an involuntary transfer of an inmate. Per Hugessen J.A., the Court said this at 77-78:
There is, of course, no doubt that the authorities were entitled to protect confidential sources of information. A penitentiary is not a choir school and, if informers were involved (the record here does not reveal whether they were or not), it is important that they not be put at risk. But even if that were the case it should always be possible to give the substance of the information while protecting the identity of the informant. The burden is always on the authorities to demonstrate that they have withheld only such information as is strictly necessary for that purpose . . . In the final analysis, the test must be not whether there exist good grounds for withholding information but rather whether enough information has been revealed to allow the person concerned to answer the case against him.
[39] This rule of precedent has also been embodied by Parliament in section 27 of the Act. The first paragraph of section 27 of the Act provides that the applicant is entitled to receive, within a reasonable period before the decision to transfer is to be taken, relevant information leading to the decision or a summary thereof. Subsection 3 of that section provides for the non-disclosure of certain information when the Commissioner has reasonable grounds to believe that disclosure of the information would jeopardize the safety of a person or the security of the penitentiary.
[40] It is essential to bear in mind that procedural fairness is a concept with a variable configuration. As Pinard J. noted in Desjardins v. National Parole Board et al. (1989), 29 F.T.R. 38, at 41: "the rules of natural justice and of fairness are common law rules that are flexible in the sense that they have to be applied to the circumstances of the particular case".
[41] This flexibility has led the courts on several occasions, as the situations involve penitentiaries, to limit their intervention to cases of flagrant injustice. For example, in Kelly v. Canada (1993), 56 F.T.R. 166 (F.C.T.D.), Denault J. held that as the disputed discretionary decision was administrative in nature the Court should confine itself to reviewing the legality of the decision and accordingly should not get into a thoroughgoing review of the merits of the case, as the applicant wished. The Court explained the limits of its power of intervention by citing, at 169, the statements made by Addy J. in Cline v. Reynett (T-894-81, March 18, 1981, not reported - F.C.T.D.):
There is no "right" for a prisoner to be in one prison rather than another and the decision to transfer from a medium to a maximum security prison or vice versa is basically and essentially an administrative decision which must not be interfered with by the courts failing clear and unequivocal evidence that the decision was taken arbitrarily and in bad faith or in a capricious manner and in addition that the decision is quite unfair and works a serious injustice on the prisoner.
[42] Further, it is also important to consider the nature of the decision in the internal setting of the prison. As Marceau J.A. noted in Gallant v. Canada, [1989] 3 F.C. 329 (Gallant), all administrative decisions affecting inmates in prison institutions should not be dealt with in the same way. A decision on transfer is administrative in nature, taken to maintain good order in the penitentiary and ensure protection for the public. As such, procedural fairness does not require that the applicant have as many details as in the case of a disciplinary charge. At paragraph 28 of his judgment Marceau J.A. said the following:
In such a case [a case of transfer], there would be no basis for requiring that the inmate be given as many particulars of all the wrong doings of which he may be suspected. Indeed, in the former case, what has to be verified is the very commission of the offence and the person involved should be given the fullest opportunity to convince of his innocence; in the latter case, it is merely the reasonableness and the seriousness of the belief on which the decision would be based and the participation of the person involved has to be rendered meaningful for that but nothing more. In the situation we are dealing with here, guilt was not what had to be confirmed, it was whether the information received from six different sources was sufficient to raise a valid concern and warrant the transfer.
Application of law to facts of case at bar
[43] In order to decide the point at issue, therefore, it should be determined whether the third level decision contravened the rules of natural justice as developed by the courts and section 27 of the Act. To use the words of Nadon J. in Cartier v. Canada (Attorney General), [1998] F.C.J. No. 1211, it must be established whether the CSC gave the applicant "all the information 'to be considered in' the taking of the decision or a summary of that information".
[44] Analysis of the record leads the Court to conclude that in the case at bar CSC provided the applicant with sufficient information to allow him to understand why CSC wanted to transfer him. The information he was given enabled the applicant to make such comments as he considered appropriate.
[45] On November 16, 2001, the very evening of his placement in administrative segregation, Mr. Mallette was informed of the reasons which led the CSC authorities to place him in segregation. Preventive security had received information that the applicant was suspected of escaping.
[46] Then, on November 22, 2001, Mr. Mallette was met by the Segregation Committee, which explained to him that there was information with preventive security from four different sources, coded and considered trustworthy, which linked him to very active participation in drug trafficking in the institution. This information further disclosed that the applicant regularly used drugs with fellow inmates and that he was bringing drugs in through visits in association with a
fellow inmate and reselling them. The information also indicated that on the eve of his placement in administrative segregation the applicant had tried to get money from fellow inmates with a view to escaping. Reference was also made to problems with his former spouse and a dispute with a fellow inmate with whom a certain degree of tension existed.
[47] In the weeks that followed, in particular when assessing the decision on his security rating, the Correctional Service also gave Mr. Mallette all the information the Correctional Service would be taking into account in assessing his security rating.
[48] In this regard, in Normand v. Canada (National Parole Board), [1996] F.C.J. No. 1628 (F.C.T.D.), Marc Noël J. said:
Like the basic structure and function of the Parole Board, the language of the Board's enabling statutes makes it clear that the Board lacks the ability or jurisdiction to exclude relevant evidence. The language of the Corrections and Conditional Release Act confers on the Board a broad inclusionary mandate. Not only is it not bound to apply the traditional rules of evidence, but it is required to take into account "all available information that is relevant to a case". No mention is made of any power to apply exclusionary rules of evidence. Indeed, such a provision would conflict with its duty to consider "all available information that is relevant".
Section 141 of the CCRA provides that the relevant information does not have to be communicated in full: a summary is sufficient. This provision has been regularly applied by the decisions of this Court: see in particular Hudon v. Canada (Attorney General), [2001] F.C.J. No. 1836.
[49] In the case at bar, there was no breach of the duty to disclose relevant information before the hearing was held, as Mr. Mallette was in possession of a copy of the CSC report and so was well aware of what he had to answer.
[50] Mr. Mallette was therefore fully aware of the information which led the Correctional Service to place him in administrative segregation and then reassess his security rating upward. It was not necessary in the case at bar for the applicant to have more details in order to be able to present his point of view on his security rating and transfer, and in any case he did this on several occasions, when he submitted his comments to CSC.
[51] It should be borne in mind that this is not a decision by which a penalty or punishment is imposed following an offence, which would have required more details, as held in Demaria, to enable the applicant to defend himself against a specific allegation of an offence. Rather, this is a transfer made necessary for the smooth running of the institution. In the case at bar, as in Gallant, the disclosure of particulars of confidential information obtained regarding the escape plan or drug trafficking would put the safety of the other persons involved at risk.
[52] As the decision is one involving fact, and there is no shadow of an indication that it is unreasonable, and a fortiori patently unreasonable, I do not see how this Court could justify intervening.
[53] In view of the foregoing, there is no need to consider the respondent's argument that the application at bar is moot and pointless.
CONCLUSION
[54] For all these reasons, I dismiss this application for judicial review. The applicant did not submit any evidence on the basis of which it could be concluded that the committee acted contrary to the rules of procedural fairness or that it made an unreasonable decision, still less a patently unreasonable one.
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"Sean Harrington"
Judge |
Montréal, Quebec
January 30, 2004
Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1260-02
STYLE OF CAUSE: STÉPHANE MALLETTE
v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JANUARY 13, 2004
REASONS FOR ORDER BY: HARRINGTON J.
DATED: JANUARY 30, 2004
APPEARANCES:
Sylvie Bordelais FOR THE APPLICANT
Eric Lafrenière FOR THE RESPONDENT
SOLICITORS OF RECORD:
Sylvie Bordelais FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec