Ottawa, Ontario, January 19, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to Rule 301, Rules for Regulating the Practice and Procedure in the Federal Court of Appeal and the Federal Court, [SOR/98-106] (the Federal Court Rules), of the third level offender grievance decision, by Mr. L. Ménard, Correctional Service of Canada (CSC), dated September 27, 2005. The Applicant is a self-represented inmate, appearing in person with permission of the Court.
ISSUES
[2] The application raises the following issues:
a) Did the Respondent err in fact or law in arriving at its decision in the third level offender’s grievance?
b) Does this Court have jurisdiction to grant some of the remedies sought?
[3] For the following reasons, the application for judicial review shall be allowed in part.
BACKGROUND
[4] The Applicant is serving a life sentence at Montée St-François Institution, located in Laval, Quebec. He was on day parole at St-Leonard House.
[5] On September 29, 2003, the National Parole Board (NPB) suspended his day parole after a urine sample A107802 tested positive for Cocaine Metabolite benzoylecgonine. This test result was a breach of the special condition of his day parole to avoid intoxicants. The Applicant first explained that he was accidentally stabbed in the finger by a syringe. He later explained that the urinalysis, which was carried out by MAXXAM Analytics Laboratory (MAXXAM) had no validity, in that the screening protocol was not respected.
[6] On December 23, 2003, the Applicant contested the urinalysis test results at his first post-suspension hearing before the NPB. At his second NPB hearing on February 18, 2004, it was agreed that upon the Applicant’s suggestion, the sample A107802 would be retested. At the end of April, the Defendant suggested Gamma Dynacare laboratory for the restesting. An amount of $188 was taken out from the Applicant’s account and a cheque was issued to MAXXAM but was never cashed. An internal e-mail from the Defendant shows that the Applicant would make a complaint because he was made aware that Gamma Dynacare was a subcontractor to MAXXAM and lacked the necessary independence.
[7] The Applicant also believed that the medication he was taking just prior to the positive test sample contributed to his alleged false positive results. In April 2004, the Applicant was informed that the St-Leonard House log book containing medication reports was destroyed.
[8] On June 30, 2004, the Applicant and NPB were informed by the Applicant's parole officer that the sample was retested but Gamma Dynacare did not have the necessary technology to complete the testing appropriately. The evidence shows that the urine sample was never retested.
[9] On October 29, 2004, the NPB revoked the Applicant’s day parole, for several reasons including his positive urine test result and a charge for assault with a weapon. The latter charge was later stayed by the Criminal Court because the videotape evidence of the incident was destroyed and therefore unavailable to be produced in the case. The incident that led to this accusation occurred when the Applicant was arrested following the revocation of his day parole.
[10] The NPB found that the deterioration in his behaviour following the suspension of his day parole continued to pose an undue risk to the community. The Applicant appealed the revocation of his day parole but on April 19, 2005, the NPB Appeal Division found that he had not raised any grounds that would cause it to intervene and modify the Board’s decision. The Board did not believe the Applicant’s two explanations for his positive cocaine urine test results. The Appeal Division stated as follows:
To begin, it is important to understand that the Board does not have jurisdiction to conduct its own investigations and re-test urine samples. This is a matter within the jurisdiction of C.S.C. The Board’s mandate is to assess risk based on the information available at the time of the decision.
[11] On August 18, 2005, the Applicant received a letter from the Defendant indicating that the urine sample had been disposed of as the original sample results were from September 2003 and the laboratory only keeps presumptive positive samples for 12 months.
[12] On September 16, 2005, the NPB again refused to reinstate the Applicant’s day parole. The Applicant has not appealed this decision. However, the Applicant filed grievances with CSC regarding his urinalysis testing.
[13] As to the grievance process, the second level grievance was denied in part on March 30, 2005. CSC reimbursed the Applicant’s claim of $188 for the retesting fee. However, the decision denied the Applicant’s allegations about the validity of the testing results and stated as follows:
In light of the information obtained during the course of our exhaustive study, we have good reasons to believe that you consumed cocaine prior [to] providing a urine sample on September 23rd, 2003. While you mentioned to the Clinical Supervisor at the St-Leonard CRC that you did not take any medication at that time, you advised otherwise the collector, who indicated on the “Drug Testing Chain of Possession” form that you had taken “Docusate of Sodium” and “Emtec” in the last two weeks prior to the urinalysis. Anyhow, this mediation would have resulted as opiate, not cocaine in your urine. The Clinical Supervisor assured us that the urine sample collection was made in compliance with […] Commissionner’s [sic] Directive (CD) 566-11.
[14] On April 29, 2005, CSC received the Applicant’s grievance of this decision, in which the Applicant:
a) appealed the NPB’s decision to revoke his day parole;
b) stated that Gamma Dynacare is capable of testing a diluted sample;
c) contested the screening and confirmation process for cocaine used by MAXXAM Analytics;
d) questioned the clarity of the process that caused unnecessary delays in his case;
e) asked for the fees to be paid back with interests.
[15] On September 27, 2005, CSC upheld in part this third level grievance and found as follows:
a) the appeal from the NPB’s decision is denied since the decision to reinstate the Applicant’s incarceration is not within the CSC’s jurisdiction;
b) Gamma Dynacare is not capable of testing a diluted sample in accordance with CSC’s specific dilution protocol; as a result the Applicant’s assertions in this regard are denied;
c) even if the urine sample had been retested as per Commissioner’s Directive (CD) 566-11, Annex “B”, it would still have been positive because CD 566-10 and 566-11 indicate the proper screening and confirmation levels used by the laboratory; as a result, that portion of the Applicant’s grievance was resolved;
d) CSC upheld the Applicant’s allegation that unnecessary delays had occurred here and recommendations would be made that clarification be added to the two CDs in question; and
e) the fee for the retesting was reimbursed with interest.
[16] It is this decision that forms the basis of the present application for judicial review.
RELEVANT LEGISLATION
[17] Paragraph 4(g), along with sections 90 and 91 of the Corrections and Conditional Release Act, 1992, c. 20. (the Act), set out the requirements for an effective and accessible redress system for all offenders. These provisions state as follows:
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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
[. . .] (g) that correctional decisions be made in a forthright and fair manner, with access by the offender to an effective grievance procedure; [. . .]
Grievance procedure 90. There shall be a procedure for fairly and expeditiously resolving offenders’ grievances on matters within the jurisdiction of the Commissioner, and the procedure shall operate in accordance with the regulations made under paragraph 96(u).
Access to grievance procedure 91. Every offender shall have complete access to the offender grievance procedure without negative consequences. |
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 :
[. . .] g) ses décisions doivent être claires et équitables, les délinquants ayant accès à des mécanismes efficaces de règlement de griefs; [. . .]
Procédure de règlement 90. Est établie, conformément aux règlements d’application de l’alinéa 96u), une procédure de règlement juste et expéditif des griefs des délinquants sur des questions relevant du commissaire.
Accès à la procédure de règlement des griefs 91. Tout délinquant doit, sans crainte de représailles, avoir libre accès à la procédure de règlement des griefs.
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ANALYSIS
Standard of review
[18] In order to determine the appropriate standard of review in this case, I must first proceed with a pragmatic and functional analysis of the four factors established by the Supreme Court of Canada in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226:
a) Presence of a privative clause or right of appeal
[19] CSC is governed by the Act, which does not contain a privative clause. However, Sections 4, 90 and 91 require CSC to provide a redress system for inmates that is fair, quick and accessible to all offenders. In addition, CSC has policy guidelines including CDs that set out clear objectives for the procedures to follow with respect to grievances. In particular, CD81, entitled “Offender Complaints and Grievances” provides guidance to ensure that offender grievances are dealt with promptly and fairly. CD 566-11 deals with the protocol to follow during urinalysis testing in the community.
[20] Thus there are extensive internal review mechanisms through which inmates can pursue grievances, as was done in this case. However, the silence of the legislation renders this first factor neutral in the overall functional and pragmatic analysis and implies deference by the reviewing Court where the decision is fact based. In this instance, the Applicant alleges that there was some deviation from the drug testing protocol, a question that is essentially fact based.
b) Relative expertise of the tribunal vis-à-vis the Court
[21] The legislator has empowered those responsible for the management and maintenance of federal correctional institutions and their inmates with a high degree of training and expertise in such matters, which calls for an increased level of deference by the reviewing Court. Justice George Addy said it best in Re Cline (1981), Court No. T-894-81 (F.C.T.D.) as follows:
I would like to add that, except in clear and unequivocal cases of serious injustice coupled with mala fides or unfairness, judges, as a general rule, should avoid the temptation of using their ex officio wisdom in the solemn, dignified and calm atmosphere of the courtroom and substituting their own judgment for that of experienced prison administrators. The latter are truly in the firing- line and are charged by society with the extra-ordinarily difficult and unenviable task of maintaining order and discipline among hundreds of convicted criminals who, as a class, are not generally reputed to be the most disciplined or emotionally stable members of society and who, by the mere fact of incarceration, are being forcibly deprived of many of their most fundamental freedoms. Similarly, courts should avoid laying down any detailed rules of conduct for these administrators since courts have very little practical knowledge of the problems involved in maintaining prison security generally or of the specific tensions, pressures and dangers existing in any particular prison or in any given situation. Such detailed rules of conduct, if any, should be left to the legislators or better still, to those possessing the required expertise who might be charged by the legislators with the issuing of regulations pertaining to these matters.
c) The purpose of the statute
[22] Section 3 of the Act outlines the purpose of the federal correctional system, which has a dual aim: to protect the public and rehabilitate offenders. The imposition of conditions on inmates on parole is integral to the realization of this dual goal. In order to ensure that conditions such as the special condition placed on the Applicant are respected, urinalysis, for instance is used to obtain objective physical results to ensure the integrity of the parole system, the best interests of the offender without incurring undue risk to the community. This requires not only a careful review of facts but also relies on the appropriate application of various policies and guiding principles, including the Act, CDs and Standard Operating Practices. This third factor of the analysis, as noted Madam Justice McLaughlin in Dr. Q, above, “weighs in favour of increased deference”.
d) The nature of the question
[23] The nature of the question at issue demands a high degree of deference. Not only is the decision at the third level grievance largely fact specific, it is also based on an investigation of the procedures followed by MAXXAM in its urinalysis testing of sample A107802. Also, it involved an assessment of the ability of Gamma Dynacare to carry out retesting on the diluted sample A107802. Thus the nature of the question requires some technical expertise and more than a mere familiarity with the necessary screening technology.
[24] As a result of this review of the four factors in the pragmatic and functional analysis, I conclude that the standard of review to be applied in this judicial review is that of patent unreasonableness.
Issue I: Did the Respondent err in fact or law in arriving at its decision in the third level offender grievance?
[25] First, I agree with the Respondent that the ultimate decision resides with the NPD to revoke the Applicant’s day parole. The correct forum for appealing this decision is not the grievance process but rather the NPB Appeals Division even though the Respondent provides a portion of the evidence. The Applicant did not appeal the decision of September 16, 2005, and instead included it in his third level grievance. CSC is without jurisdiction to decide whether or not to continue the Applicant’s incarceration. I find nothing patently unreasonable in CSC's decision when it stated:
Since decisions rendered by the National Parole Board are not within the authority of the Correctional Service of Canada, and therefore is a non-grievable matter under the redress system of the CSC, this portion of your grievance is rejected.
[emphasis in the original]
[26] The second issue that CSC denied pertains to the Applicant’s claim that Gamma Dynacare is capable of testing a diluted sample in accordance with CSC’s dilution protocol. This decision is not only a specific finding of fact but it is based on CSC's developed specific dilution protocol. I therefore defer to CSC and its expertise in this matter. There is no evidence that Gamma Dynacare was capable to analyze re-tests in accordance with CSC's specific dilution protocol. The Applicant has not satisfied me that this portion of the decision was patently unreasonable.
[27] The third issue refers to “screening/confirmation levels”. MAXXAM Analytics was contacted and confirmed that if the laboratory had used the screening as noted in CD 566-11, Annex "B", the Applicant's urine sample would still have been positive. I find nothing patently unreasonable concerning CSC's response to the Applicant's portion of his grievance on this.
[28] The fourth issue refers to the “Retest procedures”. CSC's response is as follows:
OR [Offender Redress] reviewed the Commissioner’s Directives 566-10 &11 and notes that the process used for a retest is not clear, which could and in your case has provided unnecessary delays and hence may affect an offender's right to have his/her urine sample retested. OR will therefore make recommendations to the Security Branch that clarification be added to the two CDs in question. This portion of your grievance is therefore upheld.
[emphasis in the original]
[29] In view of the circumstances in this case, the Court is of the opinion that CSC should have gone a step further on this issue. It is CSC that provided the Applicant with a name of a laboratory to perform the retest. It is also the Applicant’s parole officer who informed the NPD that the urine sample was analyzed by another laboratory. The evidence shows that this was an incorrect statement. The Applicant was informed in August 2005 that his urine sample had been disposed of as the original sample results were from September 2003 and that the laboratory keeps presumptive positive samples for only 12 months. It would have been very easy for CSC to send an e-mail or a letter to the laboratory to indicate that the urine sample had to be kept until all issues had been resolved.
[30] The Court therefore finds appropriate to refer the matter back to the Analyst at the Third Level Grievance and strongly suggests that the answer on the issue of "Retest procedures" be amended to add the following:
a) A letter will be sent to the NPD requesting that a correction be made in their file to indicate that the statement “your urine sample was analyzed by another laboratory”, made by the parole officer in June 2004, is incorrect. The same letter will indicate that your urine sample was destroyed without your consent, and as a result, the retest that you requested could not be performed.
b) A copy of the letter to the NPD will be included in your file.
[31] The fifth issue is in relation with the fee for retest. This matter has been resolved as the Applicant was reimbursed for the monies that were removed from his account.
Issue II. Does this Court have jurisdiction to grant some of the remedies sought?
Standard of Review
[32] This question raises a question of jurisdiction of the Court which is a question of law. It is settled law that the applicable standard of review of questions of law is correctness. However, it is not necessary to apply the pragmatic and functional analysis (see Dr. Q, above), as some of the issues do not deal with the CSC’s decision. Rather, the Applicant seeks certain remedies, which the Respondent has a right to challenge. Some of the remedies sought are as follows:
a) information surrounding urine sample A107802 be removed from his file;
b) his day parole conditions be restored;
c) damages (although, at the hearing the Applicant stated that he was not seeking damages);
d) disciplinary sanctions against CSC’s agents.
[33] The Respondent argues that this Court is without jurisdiction to grant the remedies sought by the Applicant and draws the Court’s attention to subsection 18(3) and section 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7, which state as follows:
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Extraordinary remedies, federal tribunals 18. (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
[. . .]
Remedies to be obtained on application (3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.
Application for judicial review 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. [. . .]
Powers of Federal Court (3) On an application for judicial review, the Federal Court may (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
Grounds of review (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law.
Defect in form or technical irregularity (5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may (a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and (b) in the case of a defect in form or a technical irregularity in a decision or an order, make an order validating the decision or order, to have effect from any time and on any terms that it considers appropriate. |
Recours extraordinaires : offices fédéraux 18. (1) Sous réserve de l'article 28, la Cour fédérale a compétence exclusive, en première instance, pour : [. . .]
Exercice des recours
(3) Les recours prévus aux paragraphes (1) ou (2) sont exercés par présentation d’une demande de contrôle judiciaire.
Demande de contrôle judiciaire 18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l’objet de la demande. [. . .] Pouvoirs de la Cour fédérale (3) Sur présentation d'une demande de contrôle judiciaire, la Cour fédérale peut : a) ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable; b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu’elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l’office fédéral.
Motifs (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas : a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer;
b) n’a pas observé un principe de justice naturelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de respecter; c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages; f) a agi de toute autre façon contraire à la loi.
Vice de forme
(5) La Cour fédérale peut rejeter toute demande de contrôle judiciaire fondée uniquement sur un vice de forme si elle estime qu'en l'occurrence le vice n'entraîne aucun dommage important ni déni de justice et, le cas échéant, valider la décision ou l'ordonnance entachée du vice et donner effet à celle-ci selon les modalités de temps et autres qu'elle estime indiquées. |
[34] The Court determines that it does not have jurisdiction to entertain the remedies mentioned at paragraph 32. It is not within the expertise of the Court to dictate to CSC what should and should not be included in an inmate’s file, particularly where the testing results of the diluted samples have not been contradicted by a subsequent analysis. Also, as counsel for the Respondent correctly submits, a monetary award for damages is not available to this Court on a judicial review. Similarly, the sanction of alleged unprofessional conduct by CSC staff is governed by internal disciplinary guidelines.
[35] Therefore, the intervention of this Court is not warranted except for the issue of “Retest procedures” in the offender's grievance response at third level. The matter will be sent back to the analyst at third level grievance for re-determination in accordance with these reasons.
JUDGMENT
THIS COURT ADJUDGES that:
1. The application for judicial review is allowed in part. The matter is sent back to the analyst at third level grievance for re-determination on the issue of "Retest procedures" in accordance with these reasons.
2. There shall be no award as to costs.
“Michel Beaudry”
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-416-06
STYLE OF CAUSE: MICHAEL DANIEL MYMRYK
and ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 11, 2006
APPEARANCES:
Michael Daniel Mymryk FOR APPLICANT
(self-represented)
Dominique Guimond FOR RESPONDENT
SOLICITORS OF RECORD:
Michael Daniel Mymryk FOR APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General
Montréal, Quebec