Federal Court Decisions

 

                                                                                           

 

 

Date: 20060530

 

Docket: T-1376-05

 

Citation: 2006 FC 653

 

Montréal, Quebec, May 30, 2006

 

PRESENT:     THE HONOURABLE MR. JUSTICE BLAIS

 

 

BETWEEN:

 

SÉBASTIEN CÔTÉ-SAVARD

 

Applicant

 

and

 

 

ATTORNEY GENERAL OF CANADA

 

Respondent

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

 

[1]        The Court has before it an application for judicial review of a decision, dated June 17, 2005, by which a Senior Deputy Commissioner of the Correctional Service of Canada (the Commissioner) dismissed the third level grievance filed by Mr. Sébastien Côté-Savard (the applicant) in regard to the reassessment of his security classification, which was increased from medium to maximum, and his involuntary transfer from the Cowansville medium-security institution to the Donnacona maximum-security institution.

 

RELEVANT FACTS

[2]        The applicant is serving a federal sentence of 10 years, 1 month and 23 days for the offences of robbery, use of a firearm, pointing a weapon, careless use of a weapon, dangerous driving, failure to comply with an undertaking, using an imitation firearm, possession of a firearm knowing its possession is unauthorized, theft under $5,000, assaults and for a highway safety code offence.

 

[3]        At the time of the events that are the subject matter of this application for judicial review, the applicant had a “medium” security classification and was incarcerated in the Cowansville institution.

 

[4]        On December 8, 2004, some officers searched the applicant’s cell. They seized a contraband object, a bladed weapon (a pick). The applicant was placed in administrative segregation. The institution’s internal investigation revealed that the “pick” belonged to the applicant.

 

[5]        On December 17, 2004, the applicant’s parole officer and unit manager signed an assessment for decision on the applicant’s security classification and involuntary transfer to the Donnacona institution. The applicant’s security classification was therefore assessed at “maximum” and his transfer to the Donnacona institution was recommended. On January 4, 2005, the institutional head signed a decision to that effect.

 

[6]        A disciplinary report was also issued in regard to the events of December 8, 2004. On January 13, 2005, the independent chairperson of the institution’s disciplinary court ordered a stay of proceedings owing to the excessive delay in processing this report.

 

[7]        The applicant unsuccessfully filed a grievance to the third and final level of the grievance procedure of the Correctional Service of Canada (CSC), challenging the reassessment of his security classification and his involuntary transfer.

 

ISSUE

[8]        Is the decision at the third level of the grievance procedure, which confirmed the applicant’s security classification at the “maximum” level, patently unreasonable?

 

ANALYSIS

[9]        All penitentiary inmates are assigned a security classification, which is reviewed annually. Sections 17 and 18 of the Corrections and Conditional Release Regulations, SOR/92‑620, 29 October, 1992 (the Regulations) spell out the factors to be considered in establishing this classification:

 

[10]      As the Federal Court of Appeal stated, at paragraph 16 of Canada (Attorney General) v. Boucher, 2005 FCA 77, [2005] F.C.J. No. 352, the application of these criteria is a question of fact and the applicable standard of review is therefore that of patent unreasonableness:

Paragraph 18(a) of the Regulations, dealing with maximum security, refers to a high probability of escape, risk to the safety of the public and need for a high degree of supervision and control within the penitentiary. These are essentially questions of fact to be determined by corrections officials. These determinations, as can be seen in this case, draw on the experience and expertise of security and behaviour assessment professionals. On judicial review, the appropriate standard of review of the determination of these questions of fact is patent unreasonableness, i.e., in the words of Iacobucci J. in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paragraph 52, the decision must be “clearly irrational or evidently not in accordance with reason”, or a decision “so flawed that no amount of curial deference can justify letting it stand”: ibid.

 

[11]      The applicant contends that the reassessment of his security classification and the institutional transfer were made in a cruel and unusual way. These changes are based on the fact that the authorities found a weapon in his cell. However, the applicant submits that there is no evidence to show that the weapon belonged to him. Moreover, the charge that the weapon belonged to him was the subject matter of a stay of proceedings in the disciplinary court.

 

[12]      The Commissioner reached the following conclusion concerning the weapon found in the applicant’s cell:

[translation]

On December 8, 2004, a home-made weapon was seized in your cell. You were issued a serious disciplinary report following this incident. However, this disciplinary report was rejected by the Independent Chairperson on January 13, 2005 because he ordered a stay of proceedings, considering that the processing of this report had taken too long.

 

You state, in the present grievance, that you have been acquitted of this offence, while the facts show instead that the disciplinary report was withdrawn. Mr. Côté-Savard, even if this report was withdrawn, this does not mean that you were innocent of the alleged acts. The Independent Chairperson has not acquitted you of this offence but instead has withdrawn the report owing to the excessive delays in processing.

 

(Reply to offender’s grievance (third level), at p.1, tab 28, respondent’s record)

 

[13]      I agree with the above remarks of the Commissioner. The applicant has not in fact been acquitted of the offence cited in the disciplinary report concerning the events of December 8, 2004; instead, the proceedings in his case have been stayed owing to the excessive delay in processing his file. Moreover, even if the applicant had been acquitted, the authorities could still refer to the discovery of a bladed weapon in the applicant’s cell as justification for raising his security classification. As the applicant mentioned, the burden of proof in disciplinary matters requires that the chairperson of the disciplinary tribunal be persuaded beyond a reasonable doubt  of the commission of the offence, which is not the case in the context of such administrative measures as the review of a security classification or an involuntary transfer.

 

[14]      The Commissioner also stated that the increase in the security classification was based on a number of factors, which were interpreted in the context of paragraph 18(a) of the Regulations, and not only the disciplinary report:

[translation]

The three risk factors were assessed as follows: Adaptation to institution – high, probability of escape – moderate, and risk to safety of the public – high

 

. . .

 

The increase in your security classification was not based only on a disciplinary report, which in fact did not clear you, as you claim, but rather on the accumulation of a series of incidents that have occurred during your stay in Cowansville institution.

 

(Reply to offender’s grievance (third level), at pp.2 and 3, tab 28, respondent’s record)

 

[15]      The Commissioner considered some factors related to the high probability of escape, the threat to the safety of the public and the need for a high degree of supervision and control within the penitentiary and found that an increase in the applicant’s security classification was warranted. Applying the standard of the patently unreasonable error to the Commissioner’s decision, I am unable to find that it is clearly irrational or evidently not in accordance with reason.

 

[16]      The applicant argues that the decision to keep him in segregation after the chairperson of the disciplinary court had ordered a stay in proceedings, on January 13, 2005, is arbitrary and contravenes sections 7 and 9 of the Charter. The Commissioner had ruled on the applicant’s maintenance in segregation:

[translation]

On the same date, December 8, 2004, you were placed involuntarily in administrative segregation so that light could be shed on this incident and the risk that you represented could be assessed.

 

(Reply to offender’s grievance (third level), at p.1, tab 28, respondent’s record)

 

[17]      I accept the respondent’s submissions concerning the involuntary placement in administrative segregation. In fact, keeping the applicant in segregation is warranted by the investigation concerning the weapon found in his cell and by the increase in his security classification. Since the applicant could no longer remain in a medium-security institution, the authorities had to keep him in segregation pending his transfer to a maximum security institution.

 

[18]      In Doherty v. Canada (Attorney General), 2004 FC 1429, [2004] F.C.J. No. 1725, Rouleau J. discussed the decision to order a transfer and the principles of fundamental justice and procedural fairness:

With respect to his challenge under section 7 of the Charter of Rights and Freedoms may I refer to the headnote in Trono (Deputy Commissioner, Pacific Region, Correctional Service Canada) v. Gallant, 68 C.R. (3d) 173 with which I totally agree and which states as follows:

 

“The decision to transfer the prisoner was not made in accordance with the principles of fundamental justice, since he was not given a real opportunity to answer the allegation against him. With respect to s. 1 of the Charter, the Penitentiary Act gives the Commissioner and his delegates discretionary power to transfer a prisoner. In a free and democratic society, it is reasonable and perhaps even necessary to confer such a wide discretion on penitentiary authorities. Hence the transfer decision was saved by s. 1.”

 

[19]      The applicant argues that he is a victim of discriminatory policies toward visible minorities in the Cowansville institution. The Commissioner had this to say about the allegation of racism:

[translation]

Your PO noted, inter alia, that since your arrival at Cowansville institution (July 2003), you had adopted an attitude of superiority and condescending conduct characterized by aggressiveness, arrogance, sarcasm and hostility. Your PO also mentioned that you cried racism whenever officials failed to comply immediately with your demands or you were given a negative response.

 

Moreover, in the content of your third-level grievance, you say you have been discriminated against without citing the reasons for these allegations.

 

(Reply to offender’s grievance (third level), at p.2, tab 28, respondent’s record)

 

[20]      I agree with the Commissioner and I conclude that the allegations of racism submitted by the applicant in this case are unfounded.

 

[21]      Although technically the respondent correctly states in his submissions that the abandonment of the disciplinary proceedings in no way prevents the applicant from proceeding to a new analysis of his security classification, I realize nevertheless that the famous “pick” found in the applicant’s cell was a major element in the decision to reassess the applicant’s status.

 

[22]      The applicant had appeared to be relatively stable for at least a period of more than eight months, and he had just started an anger management program several weeks earlier, and there are good reasons to think that the prison authorities would not have undertaken a reassessment of his security classification had it not been for the discovery of the famous “home-made pick”.

 

[23]      The consequences are substantial for the applicant, with on the one hand the disciplinary measures being set aside without his being able to be tried, and on the other hand the administrative measures going ahead, while the decision-makers make a point of recalling at each step, and particularly at the third level that is the subject matter of this application, that the applicant was not acquitted but that there is still some doubt as to his liability for the presence of the “pick” in his cell.

 

[24]      It is undeniable that the applicant has paid heavily for a presumed fault for which he was unable to completely defend himself; he was placed in administrative segregation for more than a month, during the Christmas and New Year’s period, and he was transferred to a maximum‑security penitentiary.

 

[25]      Indeed, this small cloud will continue to hover over his head, and at each of the stages to come.

 

[26]      I find, therefore, albeit regretfully, that I am unable to find, from all of the circumstances in this case, that the decision-maker has committed a patently unreasonable error.

 

[27]      However, I must say that the respondent’s attitude, in the circumstances, is highly questionable and that the prison authorities should think further before proceeding in similar fashion in the future with respect to an inmate in analogous circumstances. I would hope that the authorities in question will take into consideration all of the circumstances of this event, including the present reasons, when they come to review his record, for example, for possible conditional release.

 

[28]      As to the applicant’s claim that he be awarded one million dollars in damages, I have already notified the applicant that he could not make such a claim in the context of an application for judicial review.

 

[29]      As to the restoration of his temporary absence eligibility, that is another story and the applicant will have to apply to the appropriate authorities, that is, the Correctional Service of Canada or the Parole Board, as the case may be.

 

 

JUDGMENT

 

            1.  The application for judicial review is dismissed;

            2.  Without costs.

 

 

 

 

 

“Pierre Blais”

 

 

 

 

Certified true translation

François Brunet, LLB, BCL

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          T-1376-05      

 

STYLE OF CAUSE:                          SÉBASTIEN CÔTÉ-SAVARD v. ATTORNEY GENERAL OF CANADA

 

 

PLACE OF HEARING:                    Heard by videoconference at Montréal 

 

DATE OF HEARING:                      May 3, 2006

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          The Honourable Mr. Justice Blais

 

DATE OF REASONS:                      May 30, 2006

 

 

APPEARANCES:

 

Sébastien Côté-Savard                                                  THE APPLICANT, representing himself

 

Michelle Lavergne                                                         FOR THE RESPONDENT

                       

 

SOLICITORS OF RECORD:

 

Sébastien Côté-Savard                                                  THE APPLICANT, representing himself

Montréal, Quebec                                                        

 

John H. Sims, Q.C.                                                       FOR THE RESPONDENT

Deputy Attorney General of Canada