Docket: T-409-13
Citation:
2014 FC 565
Ottawa, Ontario, June 12, 2014
PRESENT: The
Honourable Madam Justice Heneghan
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Docket: T-409-13
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BETWEEN:
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EDWARD LAC
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Lac (the “Applicant”) seeks judicial review
of a second-level grievance decision made pursuant to the Corrections and
Conditional Release Act, S.C. 1992, c. 20 (the “Act”) and the Corrections
and Conditional Release Regulations, SOR/92-620 (“Regulations”). In that
decision, dated February 5, 2013, the Assistant Deputy Commissioner,
Institutional Operations (“Assistant Deputy Commissioner”) denied the
Applicant’s appeal of his first-level grievance in respect of the denial of his
request for a transfer from the medium security facility at Matsqui Institution
to a minimum security facility, that is, Ferndale Institution.
[2]
The Applicant seeks the following relief:
[a] an order to grant relieve of Applicant’s Charter
Rights and Freedoms sought under s.1, 2, 7, 9 and 10[c] from deprivation of
life, liberty and security in which review of evidences exemplifies continuance
of irreparable harm from legal custodial of Applicant.
[b] order a decision based on supported erroneous
findings of fact the previous decision maker failed to do or consider the
materials submitted previous by the applicant asserting the alleged acts of any
misconduct.
[c] order the federal board, a commissioner or
other tribunal, or agencies to do any act or thing it has unlawfully failed to
do or refused or has unreasonably delayed in doing.
[d] order to quash or set aside and refer back
for determination in accordance with such directions as this Court considers
appropriate that misconduct by law-making staff decision makers rendered unfair
or biased fettered decision to establish unreasonable delay and infringement of
the Applicant’s Charter.
[e] order to restore public confidence to
adhere and administer a proper interpretation of the statute or of the proper
relevant facts to be utilized for analysis and assessment for decision making;
to be executed fairly and taken with full accountability; to be with compliance
by the statute of the legislative body governed by it.
I.
Background
[3]
The following facts are taken from the affidavit
of the Applicant, dated April 2, 2014, and filed in support of his application,
as well as the Certified Tribunal Record.
[4]
The Applicant is serving time at Matsqui
Institution following a conviction on May 28, 2010, for the offences of
breaking and entering a dwelling house, extortion, assault with a weapon, and
aggravated assault. He was sentenced to a term of five and one-half years in
prison, after credit was given for time spent in pre-sentence custody. His
custodial sentence began in January 2010.
[5]
The Applicant unsuccessfully appealed his
convictions and an application for leave to appeal was dismissed by the Supreme
Court of Canada; see R v Lac, [2012] S.C.C.A. No. 90.
[6]
The Applicant began serving his sentence in
January 2010. In December 2010, he obtained employment in Matsqui Institution
as a kitchen worker. He has maintained employment in different positions since
that time and has received favourable performance reviews. He has not been
involved in any disciplinary incidents while incarcerated at Matsqui
Institution.
[7]
On June 6, 2012, the Applicant applied for a
transfer from Matsqui Institution, a medium-security facility, to Ferndale
Institution, a minimum-security facility. As part of the assessment of his
request, the Applicant’s security classification was reviewed by a case
management team. The team found that that a medium-security rating was
appropriate for the Applicant.
[8]
The Applicant’s transfer request was denied on
August 3, 2012, by the Assistant Warden. The Assistant Warden noted that the
Applicant had no discipline history and that there was no change to the
assessment of his risk of escape. The Assistant Warden also observed that the
Applicant had declined to appear at the Warden’s Board to discuss his case, refused
to work with his case management team, was unwilling to discuss his criminal
history and refused to accept responsibility for his offences.
[9]
Further, the Assistant Warden noted that the
Applicant appeared to have a heightened sense of entitlement, his offences
included significant violence, he is still rated a moderate risk to public
safety, and his transfer was opposed by Ferndale Institution. The Assistant
Warden concluded that the Applicant remained assessed as a medium-security
inmate and the request for a transfer was denied.
[10]
On August 22, 2012, the Applicant submitted an
appeal, that is, a second-level grievance, to the Regional Deputy Commissioner
of Correctional Services Canada. He was advised that a response could be
expected by September 26, 2012. On September 25, 2012, the Applicant was
advised that this timeframe would not be met and he was given a new date of
December 5, 2012, for a response. The Applicant wrote to Correctional Services
Canada on October 2, 2012, and asked whether there was anything further he
could do to facilitate the resolution of his grievance. He also enquired about
the legal deadline for a decision.
[11]
On October 24, 2012, the Applicant received a
reply from the analyst assigned to his grievance. The analyst noted that Commissioner’s
Directive 081 (“Offender Complaints and Grievances”) set out a timeframe for
the resolution of inmate grievances. The analyst wrote the Applicant again on
December 4, 2012, informing him that the anticipated timeline for the
resolution of his grievance would not be met and the new anticipated date for a
response was February 13, 2013.
[12]
By letter dated February 6, 2013, the Regional
Coordinator sent the Applicant a letter attaching the decision on his appeal.
The decision is dated February 5, 2013, and was issued by the Assistant Deputy
Commissioner.
[13]
The Assistant Deputy Commissioner reviewed the
criteria for classification of an inmate as appropriate for a medium or
minimum-security facility as set out in section 18 of the Regulations. The
Assistant Deputy Commissioner noted that in the Assistant Warden’s decision,
the Applicant was appropriately rated as moderate in institutional adjustment,
escape risk, and public safety concern. Accordingly, he did not meet the
criteria for placement in a minimum-security facility.
[14]
The Assistant Deputy Commissioner also addressed
the Applicant’s submissions that the Assistant Warden had not fully considered
the affidavit filed in support of his request. The Assistant Deputy
Commissioner found that the Assistant Warden stated in her reasons that she had
considered the Applicant’s submissions. The Assistant Warden noted concerns
about the Applicant’s unwillingness to work with his case management team and
that there was, consequently, a lack of information to support reducing the
Applicant’s security rating. As his security rating did not meet the criteria
for a minimum-security facility, the Applicant’s request was appropriately
refused.
II.
Issues
[15]
The Applicant does not identify any particular
issue but focuses throughout his written submissions upon the wrongfulness of
his conviction. In challenging the conviction, the Applicant raises issues of
procedural fairness. He also questions the merits of the second-level grievance
decision, again on the basis that he was wrongfully convicted.
[16]
The Respondent raises a preliminary issue about
the affidavit filed by the Applicant in this application for judicial review,
arguing that the affidavit contains material that was not before the
decision-maker and that such material should not be considered by the Court.
[17]
The Respondent proceeds to raise as a
substantive issue the prematurity of this application, submitting that since
the Applicant did not exhaust the available grievance process, the Court should
not exercise its discretion to hear this application.
[18]
Further, the Respondent addresses the
application on its merits and argues that it is trite law that the decision of
the Assistant Deputy Commissioner is reviewable on the standard of correctness
in respect of any breaches of procedural fairness. The Respondent submits that
any issues of fact are reviewable on the standard of reasonableness; see the
decision in Reda v Canada (Attorney General) (2012), 404 F.T.R. 85 at
paragraph 34.
III.
Discussion and Disposition
[19]
I will first address the matter of the
Applicant’s affidavit. This affidavit contains documents as exhibits. Some of
those documents, including those related to a request the Applicant made under
the Privacy Act, R.S.C. 1985, c. P-21, those providing information
regarding his performance, training and level of pay for his employment in
Matsqui Institution, and those concerning an attempt to receive reimbursement
for repairs to his glasses, are not found in the Certified Tribunal Record.
[20]
The general rule is that only the documentary
material before the decision-maker can be considered by a Court upon judicial
review. New material can be introduced in specific circumstances, for example
to address issues of procedural fairness or jurisdiction. In this regard, see
the decision in; Ontario Association of Architects v Association of
Architectural Technologists of Ontario (2002), 291 N.R. 61 at paragraph 30.
[21]
The “new” documents submitted by the Applicant
do not address either procedural fairness or the jurisdiction of the Court, and
they will not be considered.
[22]
I turn now to the issue of prematurity.
[23]
Section 90 of the Act sets out a grievance
process for the resolution of inmate complaints. This process consists of four
stages, as set out in sections 74 to 82 of the Regulations as follows:
1)
An initial complaint;
2)
Written grievance to the institutional head
(“first-level grievance”);
3)
An appeal to the Regional Head (“second-level
grievance”); and
4)
A further appeal to the Commissioner of
Corrections (“third-level grievance”).
[24]
The process set out in the Act and Regulations
is supplemented by a Commissioner’s Directive; in this case specifically
Commissioner’s Directive 081 (“Offender Complaints and Grievances”). This
directive sets out, among other things, timelines to be followed in pursuing
the grievance process.
[25]
It is well established that a Court has
discretion to refuse adjudication of an application for judicial review where
an adequate alternative remedy is available. In Giesbrecht v. Canada et al.
(1998), 148 F.T.R. 81 at paragraph 10, the Court said the following:
On its face, the legislative scheme providing
for grievances is an adequate alternative remedy to judicial review. Grievances
are to be handled expeditiously and time limits are provided in the
Commissioner's Directives. There is no suggestion that the process is costly.
If anything it is less costly than judicial review and more simple and
straightforward. Through the grievance procedure an inmate may appeal a
decision on the merits and an appeal tribunal may substitute its decision for
that of the tribunal appealed from. Judicial review does not deal with the
merits and a favourable result to an inmate would simply return the matter for
redetermination to the tribunal appealed from.
[26]
It is clear from the record that the Applicant
has not exhausted the grievance process. Subsection 80(1) of the Regulations in
force at the time of the Applicant’s grievance provides that where an offender
is not satisfied with the decision of an institutional head, an appeal can be
made to the head of the region.
[27]
The Applicant followed this course, appealing to
the Regional Deputy Commissioner of the Correctional Service of Canada.
[28]
Subsection 80(2) of the Regulations in force at
the relevant time provides that a further appeal from the head of the region lies
to the Commissioner of Corrections.
[29]
The Applicant did not present an appeal to the
Commissioner of Corrections. This failure is fatal.
[30]
In McMaster v. Canada (Attorney General)
(2008), 334 F.T.R. 240 at paragraph 27, the Court said that early recourse to
the Court may be appropriate where there are “urgent,
substantial, matters and an evident inadequacy in the grievance procedure”.
On the basis of the record here, I see no urgent matters. There is no “evident
inadequacy” in the grievance procedure.
[31]
I will touch briefly upon the broad arguments
raised by the Applicant about a breach of procedural fairness.
[32]
The basic characteristic of procedural fairness
is the ability of an affected party to present his or her case and to answer to
any responding arguments. On the basis of the record here, I am satisfied that
the Applicant had the opportunity to present his case. He chose to proceed to
the second-level grievance; he chose not to continue to the third level. There
was no interference with his right to present his case.
[33]
Similarly, I am satisfied, on the basis of the
record before me, that the Applicant had full disclosure of relevant
information. There is no evidence of “tampering” with the record, as alleged by
the Applicant. Likewise, while the delay in processing the Applicant’s
second-level grievance is a concern, the Applicant has failed to present any
evidence that he has suffered harm or prejudice from that delay, such that it
constitutes a breach of procedural fairness.
[34]
It follows that the application will be
dismissed, with costs. I would observe that even if he had been successful,
there is no basis to award damages, in any amount, to the Applicant. Damages,
as a remedy, are not available in an application for judicial review. In this
regard, I refer to the decision in Canada v. Tremblay, [2004] 4 F.C.R.
165 at paragraph 28.
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