Date: 19990204
Docket: T-2376-97
BETWEEN:
ALLEN TEHRANKARI
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
LUTFY J.:
Background
[1] The officials of the Correctional Service of Canada encountered some difficulty in enforcing the non-smoking policy in the area where the Kingston Penitentiary school program is operated. The applicant"s complaints in 1993 and 1995 concerning the failure to enforce the non-smoking policy resulted in security threats against him from other inmates. In light of this conflict between the applicant and his fellow inmates and apparently motivated by concern for his well-being, prison officials suspended the applicant from the school program in 1993 and 1995. Subsequent to his second suspension in July 1995, the applicant was allowed to pursue his studies towards the Ontario Secondary School Diploma from his cell unit.
[2] As the result of his second suspension from the school program, the applicant was excluded from work for six weeks and placed on unemployed status and zero pay. The applicant"s grievance of this suspension was upheld, at least concerning the pay issue, in these terms:
| The AWCP has offered a solution to the pay issue in that the grievor has been offered backpay and reinstatement to pay level #5. The grievor requested that suspension documentation be removed from his file. AWCP advises that this is not possible. |
| The Grievance Committee Board recommends that perhaps a notation can be placed on the offender"s employment file with the respect to the suspension. The Grievance Committee Board recommends to UPHOLD the grievance. |
[3] In May 1996, the applicant sought to re-enter the school program. His request was refused. His contestation of this refusal at the first, second and third grievance levels were also denied. The third level grievance denial, signed by "R. Rouleau, Analyst, N.H.Q." and by the Senior Deputy Commissioner, states:
| Your grievance #141601001380 regarding your removal from the Kingston Penitentiary school has been reviewed at the third level. |
| I acknowledge that rules and regulations should be adhered to, and it is my understanding that the school instructors do enforce the no-smoking policy to the best of their ability. However, despite your contention that your problems at the school are the result of the staff"s unwillingness to enforce no-smoking regulations, information on file indicates your own behaviour caused or contributed to tensions between yourself and other students. This attitude jeopardized your own safety and the security of the institution as a whole and could not be allowed to continue. |
| I note you were removed from the school twice; once for smoking-related problems and a second time because of your suspected assault of another inmate which was unrelated to the smoking issue. It would appear therefore that your inability to interact with other inmates in an appropriate manner has negatively impacted on your participation in the school programs, not the actions of school staff. |
| You have been provided with access to a TV/VCR to accommodate your cell studies and are nearing completion of your OSSD. The music class mentioned in this grievance is not required for the Ontario diploma. Every effort has been made, and will continue to be made, to provide you with access to educational programming outside of the school environment. |
| Accordingly, this grievance is denied. [Emphasis added.] |
[4] Judicial review of this decision was not sought.
[5] However, the applicant strongly objected to the statement in the decision that he was suspended "... a second time because of your suspected assault of another inmate which was unrelated to the smoking issue". In his view, both suspensions were related only to the smoking issue and the suspected assault was never a factor in the second suspension. He challenged both the veracity of the allegation concerning his assault of another inmate and, equally vigorously, the causal link between the allegation and his suspension from school. The applicant felt that this erroneous information could detrimentally affect his efforts to contest the deportation order which he faces upon release from prison. The applicant brought his complaint to the attention of the Correctional Investigator.
[6] In his letter of February 19, 1997, the Correctional Investigator confirmed the applicant"s position that the information concerning the suspected assault incident was not communicated to him until the third level decision of October 21, 1996. She did not indicate any further agreement with the applicant"s position.
[7] The applicant pursued the matter further with the Correctional Investigator in a letter of March 9, 1997, written on his behalf by his spouse:
| Allen was interviewed by Judy Davis-Young, Ken Price, Bill Isaacs and another individual whose name I cannot recall, concerning this suspected assault (on May 4 or 5 of 1995). Their conclusion was that Allen had nothing to do with the assault. Allen was at the medium security section of Kingston Penitentiary at the time (Unit C-7). He remained there and was not charged. Why does the incident remain on his file? |
...
| ... Allen was interviewed about the incident on May 4 or 5 of 1995 and was told who the alleged victim was, at that time. It is interesting to note that this alleged "victim" has been sent to the Special Handling Unit twice since then, for assaulting an officer. |
While the language of the letter is somewhat ambiguous, it would appear that the suspected incident allegedly occurred on or about May 4-5, 1995. This was some ten weeks prior to the applicant"s second suspension from the school program. However, it was only subsequent to the third level grievance decision of October 21, 1996 that the applicant was interviewed concerning his alleged involvement in an inmate assault. The record is clear on this point. The incident was not brought to the applicant"s attention when he was suspended in 1995 and was not mentioned by the prison officials in the contemporary documents they created to explain the circumstances of that suspension. These officials refer only to the smoking issue and their concern for the applicant"s security.
[8] The Correctional Investigator further considered the applicant"s complaint and reported to him on April 30, 1997 in part as follows:
| I have discussed your concerns with Ms. Rita Rouleau, analyst at Inmate Affairs, National Headquarters in Ottawa, She acknowledges that the final decision to deny your grievance was based wholly on the first [sic] paragraph of the 3rd level grievance. |
| The paragraph reads as follows: |
| "I acknowledge that rules and regulations should be adhered to and it is my understanding that the school instructors do enforce the no-smoking policy to the best of their ability. However, despite your contention that your problems at the school are the result of the staff"s unwillingness to enforce no-smoking regulations, information on file indicates your own behaviour caused or contributed to tensions between yourself and other students. This attitude jeopardised your own safety and the security of the institution as a whole and could not be allowed to continue." |
| Where she mentions, on the second [sic] paragraph, that you were removed twice, the analyst states they were factors that just corroborated that you had some difficulties to interact with other inmates in an appropriate manner. [Emphasis added.] |
The mention of "Ms. Rita Rouleau, analyst at Inmate Affairs" appears to refer to the same person who signed the third level grievance decision, supra paragraph 3.
[9] The applicant remained unsatisfied. On May 24, 1997, he wrote to Mr. Mike Johnston, Director of Inmate Affairs at the national headquarters of the Correctional Service of Canada. His request was specific:
| My request from your office is to acknowledge that the National Head Quarters (as represented by Ms. Rouleau) made an untrue statement when they said I was removed from the School because of a "suspicion of assault." |
The applicant was not seeking to re-open the third level grievance decision. His simple request was that the Service acknowledge having made "an untrue statement".
[10] Mr. Johnston replied to the applicant on October 1, 1997. After apologizing for the delay in responding, Mr. Johnston stated in part:
| Your letter contends that your grievance #141601001380 contains an inaccurate statement with respect to your removal from the Kingston Penitentiary school because of a suspected assault of another inmate who was also a student. I have reviewed all the documentation provided by your wife and can find no evidence to support your claim. |
| ... staff at the institution confirmed to her that you were in fact removed from the school because of the perceived danger to your own safety due to the antagonism that had been mounting against you. The information concerning your suspected assault on another inmate came to light during the course of the grievance investigation carried out by NHQ. This gave rise to further concerns for your own safety as well as the safety of other inmates. The security information was subsequently documented and is contained on your preventive security file. |
| It appears that you had no prior knowledge of this until you received the third level response, and it is of course unfortunate that you were not officially notified by the school staff at the time it happened. [Emphasis added.] |
[11] The applicant seeks judicial review of Mr. Johnston"s reply.
Analysis
[12] The applicant argues that Mr. Johnston"s refusal to acknowledge that the Correctional Service of Canada made an untrue statement, in linking the suspected inmate assault with the second suspension, constitutes a reviewable error. Here, the applicant refers to Mr. Johnston"s statement: "I have reviewed all the documentation ... and can find no evidence to support your claim." For the applicant, this is a decision by Mr. Johnston, made without regard for the material before him.
[13] The respondent"s position is that Mr. Johnston"s letter is not a "decision" of a "federal board, commission or other tribunal" within the meaning of section 2 and subsection 18.1(2) of the Federal Court Act.1 Counsel for the respondent concedes that the impugned statement of Mr. Johnston, supra paragraph 12, is at least partially incorrect. However, the respondent submits that judicial review is not warranted, even if the letter in issue were a "decision". Firstly, the Correctional Investigator"s letter of April 30, 1997, supra paragraph 8, makes clear that the Service acknowledges that the third level grievance decision was based "wholly" on factors unrelated to the suspicion of an inmate assault. Secondly, it would be inappropriate for the Service to delete any reference to this "suspicion", even if it were subsequently determined to be unfounded.
[14] It is not possible to conclude, on the basis of the record before me, that Mr. Johnston, in responding to the applicant"s letter of May 24, 1997, was "exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament".2 The record does not disclose Mr. Johnston"s functions as Director of Inmate Affairs. While the applicant may have been requesting that "[t]he Service ... take all reasonable steps to ensure that any information about an offender ... is as accurate, up to date and complete as possible", pursuant to subsection 24(1) of the Corrections and Conditional Release Act,3 there is no evidence that Mr. Johnston would be the appropriate official to exercise jurisdiction under this statutory provision.
[15] Even if Mr. Johnston were purporting to exercise jurisdiction under subsection 24(1) of the Corrections and Conditional Release Act, I would decline to exercise this Court"s discretionary power of judicial review in the circumstances of this case.4 The applicant"s record discloses beyond any doubt that his second suspension from the school program was unrelated to any suspicion of his assault on another inmate. The reasons documented by prison officials for the suspension make no reference to this suspicion. The statement attributed to Ms. Rita Rouleau, an analyst of Inmate Affairs, can only mean that the third level grievance decision was based "wholly" on the problems relating to the applicant"s attitude concerning the failure to enforce the non-smoking policy and the consequent concern for his safety and the security of the institution. Finally, Mr. Johnston, the Director of Inmate Affairs and presumably Ms. Rouleau"s supervisor, stated that the "... suspected assault on another inmate came to light during the course of the grievance investigation ...". Again, this can only mean that the Service did not have this information when the applicant was suspended in July 1995 and the suspected assault could not have been the reason for this suspension.
[16] The record is clear. The applicant was never suspended from the school program because of a suspicion of an assault on another inmate. It is unfortunate that Mr. Johnston"s letter could not have stated more directly that the reference to the suspected assault as a reason for the suspension was totally erroneous. The applicant deserved a direct admission that an "untrue statement" had been made in the third level grievance decision. It would have been a simple matter for Mr. Johnston, on behalf of the Correctional Service of Canada, to admit the error unequivocally. This would likely have avoided a frustrating situation for the applicant and this unnecessary litigation.
[17] In summary, I am not satisfied that Mr. Johnston was acting as "a federal board, commission or other tribunal" when he responded to the applicant on October 1, 1997. Even if he were, I would decline to exercise this Court"s discretionary power of judicial review. The reasons for both suspensions related only to the smoking issue. The record can only be read as meaning that the applicant was not suspended because of a "suspicion of assault". Accordingly, this application for judicial review will be dismissed.
Judge
Ottawa, Ontario
February 4, 1999
__________________2 These words are from the definition of "federal board, commission or other tribunal" in section 2 of the Federal Court Act.
3 S.C. 1992, c. 20. The French text of subsection 24(1) states: "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." A parallel provision concerning the accuracy of personal information is found in subsection 6(2) of the Privacy Act , R.S.C. 1985, c. P-21:
| A government institution shall take all reasonable steps to ensure that personal information that is used for an administrative purpose by the institution is as accurate, up-to-date and complete as possible. | Une institution fédérale est tenue de veiller, dans la mesure du possible, à ce que les renseignements personnels qu'elle utilise à des fins administratives soient à jour, exacts et complets. |
4 The discretionary nature of the Court"s power of judicial review is seen in subsection 18.1(3) of the Federal Court Act which states: "[o]n an application for judicial review, the Trial Division may ..." grant a remedy. In Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3 at 28-29, one reads:
There is a long standing principle that the relief which a court may grant by way of judicial review is, in essence, discretionary. This principle flows from the fact that prerogative writs are extraordinary remedies. The extraordinary and discretionary nature of the prerogative writs has been subsumed within the provisions for judicial review set out in s. 18.1 of the Federal Court act. In particular s. 18.1(3) of the Act ...