Date: 20040813
Docket: T-2006-02
Citation: 2004 FC 1132
Ottawa, Ontario, August 13, 2004
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
PIERRE-PAUL POULIN
Applicant
and
THE ATTORNEY GENERAL OF CANADA AND
COMMISSIONER OF PENITENTIARIES
(CORRECTIONAL SERVICE OF CANADA)
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Assistant Commissioner of the Correctional Service of Canada following a grievance filed by the applicant, an inmate in a Federal penitentiary. In her decision, the Assistant Commissioner confirmed that the applicant must complete an intensive program for violent offenders and confirmed this requirement in the applicant's correctional plan.
[2] The applicant is an inmate in a Federal penitentiary, the Mission Institution, in British Columbia. His case management team required that he complete a program to learn to manage his propensity for violence. The Correctional Service offered the program only in English in British Columbia but the applicant, who is francophone, wanted to take it in French. He refused to be transferred to a penitentiary where the institution offered that program because he feared for his safety.
FACTS
[3] The Correctional Service considers the applicant a violent offender. His criminal record confirms his propensity for violence. He had been found guilty on four counts of murder in the first degree (for which he is now serving a 25-year sentence), one count of murder in the second degree and several other crimes. Further, according to a psychiatric assessment, he is at high risk for recidivism and for committing other violent crimes.
[4] Under these circumstances, his case management team overseeing his rehabilitation recommended that he participate in an intensive treatment program designed for violent offenders, i.e. the "Intensive Violent Offenders Treatment Program" (ITVOP) to learn to manage his propensity for violence. The ITVOP is a program offered by Pacific Region Health Services, a psychiatric centre managed by the Correctional Service. This program was designed for inmates who have been repeatedly convicted of violent crimes and who are serving long-term or life sentences. The ITVOP is offered only in English at Pacific Region Health Services, but according to the evidence, it is available in other centres in the country.
[5] The management team's recommendation is part of the applicant's correctional plan. The case management team clearly stated that it refused to recommended that the applicant's security classification be reduced (now assessed at medium) or that he be transferred to a minimum security penitentiary before he has completed the ITVOP.
[6] The applicant wanted to participate in the ITVOP but wanted to do so in French. He filed a complaint whereby he objected primarily to completing the treatment in English because he was francophone. His complaint was dismissed.
[7] The applicant then filed a grievance that was dismissed at the First and Second Levels.
[8] At the Third Level, the applicant once again raised the fact that he could not complete the ITVOP because he had not mastered English sufficiently. He pointed out at that time that he was francophone and that his English, assessed at level four, was inadequate for him to participate in the course. Furthermore, he said that his eyesight problems hindered him from reading and writing, skills necessary for his participation in the ITVOP.
[9] After reviewing the grievance, Cheryl Fraser, Assistant Commissioner of the Correctional Service, dismissed it.
IMPUGNED DECISION
[10] For public safety reasons, in her decision dated November 15, 2002, the Assistant Commissioner refused to withdraw from the applicant's correctional plan the condition that he complete an intensive program for violent offenders. However, she did try to find a solution to the applicant's language and eyesight problems. She was prepared to resolve the eyesight problems by obtaining the course material electronically, compatible with the software for people with visual disabilities used by the applicant. The language problems were more difficult to resolve. First, the applicant refused to move to a penitentiary offering the program in French since he claimed he was in danger in those penitentiaries. Second, he did not qualify for the other program offered at the Mission Institution for violent offenders because he did not have the appropriate security classification to participate in that program. The Assistant Commissioner therefore proposed that the applicant try to improve his level of English by taking courses in English as a second language.
ISSUES
[11] I will respond to the issues submitted by the respondents because they encompass those proposed by the applicant. The issues are as follows:
1. Did the Assistant Commissioner exceed her jurisdiction by making a decision which violates section 15 of the Canadian Charter of Rights and Freedoms (Charter) and which cannot be justified under section 1 of the Charter?
2. Did the Assistant Commissioner exceed her decision by making a decision which violates section 16 of the Charter and which cannot be justified under section 1 of the Charter?
3. Did the Assistant Commissioner err in failing to consider that the fact that the ITVOP is not offered in French at Pacific Region Health Services violates the applicant's rights under the Canadian Human Rights Act?
4. Did the Assistant Commissioner err in failing to consider that requiring the applicant, who has eyesight problems, to complete the ITVOP amounts to discrimination based on a disability within the meaning of the Canadian Human Rights Act?
5. Did the Assistant Commissioner err in failing to consider that the fact that the ITVOP is not offered in French at Pacific Region Health Services violates the applicant's rights under section 22 of the Official Languages Act?
6. Did the Assistant Commissioner err in failing to consider that the fact that the ITVOP is not offered in French at Pacific Region Health Services violates the Standard Operating Practices of the Commissioner of Corrections with respect to official languages?
[12] For the following reasons, I answer all of these questions in the negative and I would therefore dismiss this application for judicial review.
ANALYSIS
Subsection 15(1) of the Charter
[13] Subsection 15(1) of the Charter guarantees individuals the right to "equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." I agree with the respondents that the applicant cannot invoke subsection 15(1) of the Charter to ask the Court to set aside the Assistant Commissioner's decision. Here the applicant is not disputing a law deemed to be discriminatory but rather the decision of the Assistant Commissioner (R. v. S.(S.), [1990] 2 S.C.R. 254). The Correctional Service offers the program to francophone inmates in French in other institutions and the Assistant Commissioner gave the applicant the opportunity to transfer to one of those penitentiaries to complete it in French. However, it is the applicant who refuses to be transferred on the grounds that his life would be in danger. The Assistant Commissioner therefore did not treat the applicant differently than other inmates.
Subsection 16(1) of the Charter
[14] Subsection 16(1) of the Charter provides that: "English and French are the official languages of Canada" and that these two languages "have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada". The Assistant Commissioner's decision does not breach subsection 16(1) of the Charter. The applicant argues that the decision deprives him of receiving French services from the Federal government. Subsection 16(1) only applies to the use of the official languages inside institutions of Parliament and the government of Canada, which is not the case here.
Canadian Human Rights Act
[15] The applicant contends that he cannot participate in the ITVOP because the authorities of the Correctional Service and of Pacific Region Health Services cannot provide him with the linguistic opportunities and/or guarantee him the tools/accessories needed to participate in this program. The Court disagrees with that proposition. In fact, the documentation in the record indicates that the respondents were willing to transfer the applicant to another institution giving a French program equivalent to the ITVOP but the applicant refused because of an issue of incompatibility with other inmates in those institutions (e-mail dated October 28, 2002, tab 11, and Third Level decision, tab 12, respondents' record). In any case, if the applicant wants to raise other grounds of violation of the Canadian Human Rights Act, he can refer to the Human Rights Commission, which would be a much more appropriate forum at this stage.
Official Languages Act
[16] On this issue and after considering the applicant's arguments and those of the respondents, the Court agrees with the reasoning and the principles stated in paragraphs 39, 40, 41 and 42 of the respondents' memorandum of fact and law. At paragraph 39, the respondents state the following:
[TRANSLATION]
Section 22 of the Official Languages Act requires "Federal institutions", including Federal departments such as the Correctional Service of Canada to offer services in French at its central office, as well as in the offices located in the National Capital Region and in areas where there is a significant demand for French:
| 22. Every federal institution has the duty to ensure that any member of the public can communicate with and obtain available services from its head or central office in either official language, and has the same duty with respect to any of its other offices or facilities
(a) within the National Capital Region; or (b) in Canada or elsewhere, where there is significant demand for communications with and services from that office or facility in that language.
Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.), ss. 3(1) ("federal institutions"), 22
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22. Il incombe aux institutions fédérales de veiller à ce que le public puisse communiquer avec leur siège ou leur administration centrale, et en recevoir les services, dans l'une ou l'autre des langues officielles. Cette obligation vaut également pour leurs bureaux - auxquels sont assimilés, pour l'application de la présente partie, tous autres lieux où ces institutions offrent des services - situés soit dans la région de la capitale nationale, soit là où, au Canada comme à l'étranger, l'emploi de cette langue fait l'objet d'une demande importante.
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[17] At paragraph 40, the respondents state the following:
[TRANSLATION]
The applicant alleges that the Correctional Service has an obligation under section 22 of the Official Languages Act to ensure that the ITVOP be offered to him in French at the regional treatment centre in British Columbia. He alleges in essence that the Assistant Commissioner, by requiring that he complete the ITVOP in English, made a decision that does not take into account the legal obligation of the Correctional Service imposed by the Official Languages Act.
[18] The respondents contend that the applicant cannot before this Court reopen the debate, which was already raised in a complaint and on which a final decision has already been made by the Office of the Commissioner of Official Languages. In fact, as stated in paragraph 41 of the respondents' memorandum, the applicant filed a complaint before the Commissioner of Official Languages about the Correctional Service's alleged failure to give him the ITVOP in French, contrary to the Official Languages Act. After investigating, the Commissioner refused to respond to the complaint on the grounds that the Correctional Service did not have the obligation to offer the ITVOP in French to the applicant since there was no "significant demand" for French at the Mission penitentiary. The reasons of the Commissioner of Official Languages read as follows:
[TRANSLATION]
As you know, the Mission Institute is not obliged to provide services to inmates in both official languages, because the number of inmates who want their services in French does not reach the required five percent of the total population of the Institution which, according to the Official Languages Regulations, constitutes significant demand. It would appear that only two of 270 inmates (i.e. 0.74 percent) indicated that French was their language of preference in that location.
(Letter from the Commissioner of Official Languages dated August 16, 2000 to Pierre-Paul Poulin, applicant's record, pages 56 and 57)
It is important to note the second paragraph of this letter:
[TRANSLATION]
I contacted the regional office of the Correctional Service in Abbotsford in light of the Commissioner of the Correctional Service of Canada's Standard Operating Practices 087, Official Languages and Services Provided to Offenders and the General Public, which states at section [11] that the regions must "organize, where feasible, the provision in the minority official language of a reasonable range of treatment programs assessed as being an important component of parole considerations . . ." According to Correctional Service Canada, the course which interests you, Intensive Treatment for Violent Offenders, is not offered in French in view of the very small number of inmates who need it in the Pacific region. However, there are other programs in French whose goal is to help advance toward parole. . . . [Emphasis in original.]
[19] The Court agrees with the statement at paragraph 42 of the respondents' memorandum:
[TRANSLATION]
The applicant did not contest the findings of the Commissioner of Official Languages by availing himself of the legal recourse available under section 77 of the Official Languages Act, i.e. applying to the Federal Court of Canada regarding the Commissioner's decision within 60 days after the decision was reported. The Commissioner's decision is therefore final with respect to the issue of whether the Correctional Service contravened its obligations under the Official Languages Act. . . .
I therefore consider that this issue cannot be examined in this application for judicial review.
Standard Operating Practices of the Commissioner of Corrections with respect to official languages
[20] The Correctional Service aims to meet the Federal government's official language obligations with Commissioner's Directive No. 087, entitled Standard Operating Practices on Official Languages (tab 16, Respondents' Book).
[21] In that Directive, there are "comprehensive" obligations and "basic" obligations. The Service must provide services in the preferred language of inmates at institutions outside Quebec where 5% or more of the inmates have indicated that French was their official language. As for institutions where operational units have basic obligations, the Service has a much lesser obligation, i.e. the obligation to make a reasonable effort.
[22] The institution where the applicant is incarcerated was not classified as having "comprehensive obligations" because less than five percent of the inmates indicated that French was their preferred official language. In fact, the evidence shows that only .0074 percent of inmates indicated that French was their preferred language (letter from the Commissioner of Official Languages, August 16, 2000).
[23] It is in that context that the Assistant Commissioner had to decide the applicant's fate. With the reports that she had in hand, she had no choice but to confirm the correctional plan established for the applicant. The requirement that the applicant complete an intensive program for violent offenders was entirely justified in his situation. On the other hand, as Pacific Region Health Services does not provide the program in French, offering to transfer the applicant to another institution offering the program in French was reasonable. The applicant refused for safety reasons. Under those circumstances, he could not require the Institution where he was incarcerated to provide the program in question as an exception. When the applicant refused, the option proposed by the Assistant Commissioner to the effect that he continue his second language course (English) and have some new computer "tools" for blind persons installed was not unreasonable.
[24] Finally, the applicant alleges that under the Corrections and Conditional Release Act, S.C. 1992, c. 20, the Correctional Service has the obligation to ensure that he receives the programs necessary to his rehabilitation and that the fact that the Correctional Service cannot offer him the ITVOP in French in British Columbia is such that the Service has breached its duty. The Correctional Service has not breached its duty. It offered the applicant the possibility to take the course needed for his rehabilitation. It was the applicant who refused to move in order to take it. The Correctional Service cannot eliminate this requirement from the applicant's correctional plan since the Service also has a statutory duty to ensure that society is protected. Accordingly, the Assistant Commissioner's decision complies with the Corrections and Conditional Release Act.
[25] On the morning of the hearing, the applicant filed two pages of a memorandum in the case of Metcalfe v. Canada (Attorney General), 2001 CFPI 403, [2001] F.C.J. No. 753 (F.C.T.D.)(QL), to establish that the ITVOP was a health care service and that as a result, the Correctional Service had to respect section 11 of Standard Operating Practice 087 with respect to official languages and provide him the service in French. The Court reviewed Campbell J.'s reasons in that case dated April 26, 2001, and there was no decision to that effect. In any event, I have already determined that the Official Languages Act was not violated.
CONCLUSION
[26] This application for judicial review is dismissed without costs.
ORDER
THE COURT ORDERS THAT this application for judicial review is dismissed without costs.
"Michel Beaudry"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2006-02
STYLE OF CAUSE: PIERRE-PAUL POULIN v.
ATTORNEY GENERAL OF CANADA AND COMMISSIONER OF PENITENTIARIES (CORRECTIONAL SERVICE OF CANADA)
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 14, 2004
REASONS FOR ORDER
AND ORDER: Beaudry J.
DATE OF REASONS AND ORDER: August 13, 2004
APPEARANCES:
Pierre-Paul Poulin FOR THE APPLICANT
(representing himself)
Marie Crowley FOR THE RESPONDENT
SOLICITORS OF RECORD:
Pierre-Paul Poulin FOR THE APPLICANT
(representing himself)
Mission, British Columbia
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario