Federal Court Decisions

Date: 20010426

Docket: T-553-00

                                                                                                         Neural Citation: 2001 FCT 403

BETWEEN:

                                              PETER VICTOR JOHN METCALFE

                                                                                                                                            Applicant

                                                                         - and -

                                                     THE ATTORNEY GENERAL

                                                                   OF CANADA

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

CAMPBELL J.:

[1]         The Applicant is an inmate in the custody of the Correctional Service of Canada. The present judicial review concerns the exact quality of a June 1995 response given by a Corrections psychologist to the Applicant's case manager respecting a proposed involuntary transfer of the Applicant between custodial institutions. The case manager's request of the psychologist was for a "consult"on the issue of the Applicant's risk of violence.

[2]         At the present time, the Applicant objects to the inclusion of the 1995 response on his Correctional file as it was completed without his consent. In January 2000, this

grievance was rejected by Assistant Commissioner of Corrections, Michel Roy.^[1] The Assistant Commissioner decided that since the response was a "basic risk assessment", a "consent for health services" was not required for its completion.

[3]         It is agreed that the Assistant Commissioner made an error in fact because, on the only evidence available on the record as to the quality of the 1995 response, its maker states it to be a "memo," "not to be construed as a psychological assessment", and that the "consult memo did not constitute a basic risk assessment".^[2]

[4]         The heart of the Applicant's objection is that the 1995 response, and, indeed, all such "risk" evaluations, are of a quality which require prior consent of the person being evaluated. The source of this argument is the Commissioner's Directive 850 entitled "Mental Health Services" which states in paragraph 5 as follows:

5.          The informed consent of the inmate is required for any assessment, procedures and treatment provided by the Service. For exceptions to this policy, refer to Commissioner's Directive 803 entitled "Consent to Health Service Assessment, Treatment and Release of Information".^[3] [Emphasis added]

[5]         With respect to the quality of an evaluation caught within paragraph 5 of Commissioner's Directive 850, the Applicant argues that a type of evaluation known as a "Psychopathy Checklist-Revised (PCL-R) is, indeed, caught. While in the present case, the psychologist that produced the 1995 response states that he was completing a PCL-R, he, in effect, also concludes that it is not of a quality to trigger the consent requirement under paragraph 5 of the Commissioner's Directive 850.

[6]         No objection was raised by the Respondent to the Applicant's evidence that the 1995 response was completed as a PCL-R without his consent or knowledge. There is also no objection to the Applicant's statement that a PCL-R is:

...a psychological assessment that assesses whether a person has psychopathic personality. The psychologist or psychiatrist administering the PCL-R assesses the person on a number of behavioral and psychological factors including 1) Glibness/Superficial Charm, 2) Grandiose Sense of Self Worth, 3) need for Stimulation/Proneness to Boredom, 4) Pathological lying, 5) Conning/Manipulative, 6) Lack of Remorse or Guilt; 7) Shallow Affect, 8) Callous/lack of Empathy, 9) Parasitic Lifestyle; 10) Poor Behavioral Controls; 11) Promiscuous Sexual Behavior, 12) Early Behavioral Problems, 13) Lack of Realistic, Long-term Goals, 14) Impulsivity, 15) Irresponsibility, 16) Failure to Accept responsibility for Own Actions, 17) Many Short-term Marital Relationships, 18) Juvenile delinquency, 19) Revocation of Conditional Release, and Criminal Versatility.^[4]

[7]         In addition, no objection was raised to the following statement of the formulator of the PCL-R technique as follows:

Still, other researchers and clinicians were never certain about just how we made our diagnoses. Therefore, my students and I spent more than ten years improving and refining our procedures for ferreting the psychopaths out of the general prison population. The result was a highly reliable diagnostic tool that any clinician or researcher could use and that yielded a richly detailed profile of the personality disorder called psychopathy. We named this instrument the Psychopathy Checklist. For the first time, a generally accepted, scientifically sound means of measuring and diagnosing psychopathy became available. The Psychopathy Checklist is now used worldwide to help clinicians and researchers distinguish with reasonable certainty true psychopaths from those who merely break the rules.^[5]

[8]         A serious defect exists in the evidence produced on this judicial review in that the actual 1995 response is not included in the record. Indeed, the Respondent's counsel objects to its production on confidentiality grounds. I have not been asked to rectify this defect.

[9]         However, given the psychological features of the PCL-R as quoted, I understand the Applicant's concern to obtain an answer to the question of whether the 1995 response is, in fact and in law, an "assessment" within the meaning of Commissioner's Directive 850 and, therefore, requires consent. While I find I cannot give the answer on the defective evidence presented, I find it is fair and just to act on the Assistant Commissioner's error in fact to facilitate the answer.

                                                                                   

                                                                      ORDER:

[10]       I find that the error in fact made by the Assistant Commissioner in the present case constitutes a reviewable error. Accordingly, I set aside the Assistant Commissioner's decision and refer this matter back to him for redetermination. In order to provide a decision which gives clarity and certainty in response to the Applicant's grievance, on the redetermination I direct the Assistant Commissioner to do the following:

1.                   State whether the 1995 response provided is a PCL-R, and give the reasons for the conclusion reached;

2.                   If the 1995 response is, or is not, concluded to be a PCL-R, state whether the 1995 response is an "assessment" within the meaning of paragraph 5 of Commissioner's Directive 850, and give the reasons for the conclusion reached.

[11]       Should the Assistant Commissioner's decision on the redetermination result in a subsequent judicial review application, in order to reach a fair and just determination on the exact facts, I strongly suggest that the 1995 response be produced for examination by the judge hearing that judicial review, on such confidentiality terms as a judge of this Court might direct.

[12]       As he is successful in the present application, I award costs to the Applicant in the sum of $200.00 to cover disbursements incurred.

(Sgd.) "Douglas R. Campbell"

Judge

Vancouver, British Columbia

April 26, 2001

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