Date: 20031016
Docket: T-840-02
OTTAWA, Ontario, this 16th day of October, 2003
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
ERIN MICHAEL WALSH
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application under section 18.1 of the Federal Court Act, R.S.C. 1985, c.F-7, for judicial review of the May 16, 2002 decision of the Assistant Commissioner of the Correctional Service of Canada, Cheryl Fraser, denying the applicant's grievance requesting that the Correctional Service of Canada ("CSC") remove certain prejudicial information from his correctional file.
FACTS
[2] The applicant is a prisoner at the Frontenac Institution ("FI") which is a minimum security penitentiary institution operated by the CSC at Kingston, Ontario. On October 15, 1999, and while being held in close custody at the FI, the applicant allegedly threatened another inmate while in possession of a knife ("knife incident"). The applicant disputed the allegation and requested a formal hearing. There was no formal hearing held, but an internal investigation occurred in which other inmates were interviewed and the applicant was allowed to respond.
[3] After the internal investigation the applicant was made subject to an involuntary transfer procedure to a medium security institution, on or about November 29, 1999. The effect of the transfer on the applicant was the loss of minimum security inmate status and accompanying privileges including Escorted Temporary Absences (ETAs). The knife incident also became part of the applicant's correctional file.
[4] The applicant brought an application to the Ontario Superior Court for judicial review of the transfer decision and for relief by way of habeas corpus, with certiorari in aid, filed on March 30, 2000.
[5] On August 10, 2000 Mr. Justice Belch of the Ontario Superior Court rendered a decision (unreported) quashing the involuntary transfer and directing the applicant's return to a minimum security prison setting; Belch J. found that:
Had the applicant faced this charge in Warden's court, he is confident he would not have lost his security rating and been transferred from a minimum to a medium institution. He points out that now it is too late, as the other inmate, the complainant, has been released from prison.
The applicant's liberty has been affected. The Supreme Court of Canada suggests credibility requires an oral hearing, and the Federal Court has also hinted at the necessity for oral hearings in some circumstances, in Murray, supra.
[...] Holding a hearing would not have caused an undue hardship or have created a risk to security, the latter being assumed as the officials did not exercise available emergency transfer provisions ... This, coupled with admitted errors and the possibility officials reading the applicant's file may have been influenced by incorrect information, is sufficient to conclude the hearing was unfair.
The decision to transfer is quashed. The applicant is to be returned to a minimum security institution, not necessarily his previous setting.
[6] Pursuant to Belch J.'s decision the applicant was transferred back to FI on or about August 18, 2000, but his minimum security status and accompanying privileges were not reinstated. He remained a medium security inmate, in a minimum security institution.
[7] On October 10, 2000 the applicant challenged the above decision by filing a 2nd level grievance as required under the Corrections and Conditional Release Regulations, SOR/92-620 ("Regulations"). The grievance was denied in written reasons dated February 7, 2001. Shortly thereafter the applicant received a second written decision, dated February 19, 2001 and labelled "3rd level". The second decision upheld the applicant's grievance in part by reinstating his minimum security inmate status, but without the privilege of ETAs.
[8] The applicant brought a motion on February 13, 2001 in the Ontario Superior Court of Justice for an order holding the Warden of FI in contempt of Court, and another motion on May 8, 2001 for an order clarifying Belch J.'s August 10, 2000 decision, and requiring a disciplinary hearing be held to clear the applicant of the knife incident allegation. Both motions were denied.
[9] In January, 2002 the knife incident allegation was in issue again when the applicant's case was due to be considered by the National Parole Board. The applicant's Progress Summary to be used for conditional release acknowledged the documented progress the applicant had made over the nine years since his 1992 violent recidivism, but also took the knife incident into account.
[10] On or about January 6, 2002 the applicant filed a new grievance pursuant to the Regulations with respect to the continued prejudicial use of the knife incident allegation, and requesting the removal of that information from his correctional file. That grievance was denied in written reasons dated February 7, 2001. A final (3rd level) grievance filed February 22, 2001 was rejected since the CSC determined that it was duplicative of prior grievances which had already been denied. This is the decision dated May 16, 2002 which is the subject of this application for judicial review.
THE CSC'S DECISION
[11] The May 16, 2002 CSC decision, which is the basis of this judicial review, concluded that the Ontario Superior Court only determined that there was procedural unfairness with respect to the involuntary transfer process, but the ruling did not find that the information concerning the event that led to the involuntary transfer was incorrect. It also concluded that the applicant's concerns had already been addressed in responses to all of his prior grievances. It referred the applicant to previous decisions in which the CSC concluded that his return to FI had been due to a finding of procedural error, namely the failure to provide an oral hearing, but not because the reason for the transfer (the knife incident) was incorrect.
THE ISSUES
[12] The applicant raises the following issues:
(1) Is the applicant entitled to removal all entries with respect to the alleged knife incident, from his correctional files?
(2) In refusing to make the requested corrections did the CSC fail to apply proper legal principles, having regard to the habeas corpus application and the August 10, 2000 order of Justice Belch?
(3) Did the CSC fail to properly interpret and apply its common law and statutory obligations to maintain the accuracy, completeness and up-to-date- nature of information in the applicant's files?
THE RELEVANT LEGISLATION
[13] The relevant sections of the Corrections and Conditional Release Act, S.C. 1992, c.20 ("Act") are sections 3, 4, 24 and 25.
[14] Sections 3 and 4 provide:
| Purpose of correctional system
3. The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and (b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.
Principles that guide the Service
4. The principles that shall guide the Service in achieving the purpose referred to in section 3 are (a) that the protection of society be the paramount consideration in the corrections process; [...](g) that correctional decisions be made in a forthright and fair manner, with access by the offender to an effective grievance procedure;
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But du système correctionnel 3. Le système correctionnel vise à contribuer au maintien d'une société juste, vivant en paix et en sécurité, d'une part, en assurant l'exécution des peines par des mesures de garde et de surveillance sécuritaires et humaines, et d'autre part, en aidant au moyen de programmes appropriés dans les pénitenciers ou dans la collectivité, à la réadaptation des délinquants et à leur réinsertion sociale à titre de citoyens respectueux des lois.
Principes de fonctionnement
4. Le Service est guidé, dans l'exécution de ce mandat, par les principes qui suivent_: a) la protection de la société est le critère prépondérant lors de l'application du processus correctionnel; [...]
g) ses décisions doivent être claires et équitables, les délinquants ayant accès à des mécanismes efficaces de règlement de griefs; |
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[15] Sections 24 and 25 of the Act provide:
| Accuracy, etc., of information
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.
Correction of information
(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. 1992, c. 20, s. 24; 1995, c. 42, s. 9(F).
Service to give information to parole boards, etc. 25. (1) The Service shall give, at the appropriate times, to the National Parole Board, provincial governments, provincial parole boards, police, and any body authorized by the Service to supervise offenders, all information under its control that is relevant to release decision-making or to the supervision or surveillance of offenders.
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Exactitude des renseignements 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.
Correction des renseignements
(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. 1992, ch. 20, art. 24; 1995, ch. 42, art. 9(F).
Communication de renseignements
25. (1) Aux moments opportuns, le Service est tenu de communiquer à la Commission nationale des libérations conditionnelles, aux gouvernements provinciaux, aux commissions provinciales de libération conditionnelle, à la police et à tout organisme agréé par le Service en matière de surveillance de délinquants les renseignements pertinents dont il dispose soit pour prendre la décision de les mettre en liberté soit pour leur surveillance.
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THE STANDARD OF REVIEW
[16] This case involves a review of a discretionary decision of the CSC. In Tehrankari v. Canada (Correctional Service) (2000), 188 F.T.R. 206 (F.C.T.D.), which is a case similar to the one at bar, Lemieux J. provides a very useful analysis of the applicable standard of review at paras. 34 -37:
In Baker, supra, the Supreme Court of Canada enumerated the four factors to be examined to assess the standard of review on these questions.
The first factor to be examined is the presence or absence of a privative clause in the Act. There is no privative clause contained in the Act insulating the decisions of the Commissioner taken in the grievance process.
The second factor is the expertise of the decision-maker. The decision-maker here is the Commissioner of the Correction Service or his or her delegate. There can be no doubt, that in matters related to prison administration, the Commissioner has expertise relative to the Courts which leads to substantial deference in decisions taken by the Commissioner in matters of internal prison management.
The third factor is the purpose of the provision, in particular, and the Act as a whole. Parliament in sections 3 and 4 of the Act, has said what the purpose of the Federal Correction Service is and what are the applicable principles which shall guide it in achieving that purpose.
and at paras. 42 - 44:
The precise decision which section 24 gives rise to is the decision by the Service whether or not to rectify the record of an offender who believes the information about him/her is inaccurate. Such a decision, limited to primary facts, does not involve considerable choices by the CSC and turns on the application of proper legal principles and involves the rights and interests of an offender.
The fourth factor is the nature of the problem in question especially whether it relates to the determination of law or facts. The decision whether to correct the record involves an appreciation of the facts in an offender's files but must be based on a correct interpretation of what the law requires.
To conclude on this point, 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.
[17] The Court agrees with Justice Lemieux that the standard of review in this type of case is reasonableness simpliciter since 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 APPLICANT'S POSITION
[18] The applicant submits that the removal of all entries that rely on prejudicial and unproven assertions is a required conclusion from the provisions of the Act. The applicant further submits that the duty of fairness mandates that he be provided with an oral hearing in Disciplinary Court to be able to test and answer the charge against him, particularly in this instance where the circumstances are clearly in dispute and the complainants are known. The applicant contends that the only reasonable conclusion to be drawn from the August 10, 2000 order of Justice Belch is that the credibility of the allegation, absent an oral hearing in the full sense, cannot be sustained, and that being so, it follows that the allegation cannot be treated as having occurred. The applicant relies on this Court's decision in Tehrankari in support of his position.
THE RESPONDENT'S POSITION
[19] The respondent submits that the August 10, 2000 order of Justice Belch cannot be read to mean that all references to the knife incident must be removed from the applicant's correctional files, and that the Act requires such a course of action. The respondent further submits that the applicant received a full and fair remedy for the failure to hold an oral administrative hearing when he was ordered returned to a minimum security setting, despite "overwhelming evidence that the applicant shouted derogatory remarks at another inmate while in possession of a knife."
ANALYSIS
[20] The CSC decision dated May 16, 2002, the subject of this application, states in part:
The judge determined only that there was a "procedural unfairness toward your oral hearing" with respect to the involuntary transfer process. He did not find that the information concerning the event that lead to the involuntary transfer was incorrect.
A reasonable probing shows that this decision is premised on a false understanding of the habeas corpus decision of Ontario Superior Court Justice Belch. The decision of Justice Belch did not find the CSC's information about the knife incident to be correct or incorrect. Rather, he said that a
proper hearing would be necessary to test the credibility of the witnesses. The implication is that the truthfulness of the knife incident could not be determined without a hearing. The CSC decision also misunderstands that the judge limited his decision to a "procedural error" which did not affect the underlying substance of the factual issue in dispute. Justice Belch decided that the failure to conduct a proper hearing meant that the truth of the alleged knife incident could not be determined for the purpose of the involuntary transfer process. Accordingly, I conclude that the CSC decision is unreasonable with respect to the Ontario Superior Court decision.
[21] The applicant seeks an order removing from his correctional files all entries with respect to the knife incident. Under subsection 24(2) of the Act the applicant requested that the CSC correct the information on his record and the CSC refused. Since the protection of society is a paramount consideration for the CSC, it is reasonable that there be reference to the alleged knife incident on the applicant's record. However, the record should be corrected to state:
(i) that the offender has repeatedly requested a correction deleting the reference to the knife incident because it is untrue; and,
(ii) that the Superior Court Justice implicitly held that the credibility of this knife incident required an oral hearing, and that it is unjust to transfer the applicant on the basis of the alleged knife incident until the truth of the incident could be determined at an oral hearing.
[22] The CSC is not required to conduct a hearing every time there is an incident involving an inmate. The CSC has the power to investigate without a hearing and make conclusions. However, in the applicant's case, the matter was brought before a superior court which upheld the application for a writ of habeas corpus on the basis that the applicant was entitled to a proper hearing to assess, inter alia, the truth about the knife incident. In view of this finding from a superior court, it is unreasonable for the CSC to maintain on the applicant's record, as a matter or fact, that he threatened another inmate with a knife without the qualification as discussed above.
[23] For these reasons, this application is allowed in part. In view of the divided success there will be no order as to costs.
ORDER
THIS COURT HEREBY ORDERS THAT:
This application be allowed in part, and the matter referred back to the CSC with the direction that the applicant's record be corrected as stated in paragraph [21] herein.
"Michael A. Kelen" ________________________________
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-840-02
STYLE OF CAUSE: ERIN MICHAEL WALSH v. A.G.C.
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: OCTOBER 14, 2003
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE KELEN
DATED: OCTOBER 16, 2003
APPEARANCES:
MR. RONALD R. PRICE, Q.C.
FOR THE APPLICANT
MR. RICHARD CASANOVA
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Ronald R. Price, Q.C.
c/o Faculty of Law
Queen's University
Kingston, ON K7L 3N6
Tel: 613-544-3492
Fax: 613-533-6509
FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20031016
Docket: T-840-02
BETWEEN:
ERIN MICHAELWALSH
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
AND ORDER