Date : 20041015
Docket : T-2284-03
Citation : 2004 FC 1425
BETWEEN :
JAMES ANDREW DOHERTY
Applicant
AND :
ATTORNEY GENERAL OF CANADA
Respondent
ROULEAU, J.
[1] This is an application for judicial review of the decision of a Senior Deputy Commissioner of the Correctional Service of Canada, dated October 23, 2003, denying the applicant's third-level grievance concerning his 2003 security reclassification from medium to maximum and involuntary transfer from medium-security Mountain Institution to maximum-security Kent Institution. The applicant seeks an Order setting aside the decision and referring it back for redetermination.
[2] The applicant was born on March 29, 1965 and is a Canadian citizen. On January 11, 1994, he was sentenced to life imprisonment for two counts of first-degree murder. He received a period of parole ineligibility of twenty-five years from his date of arrest, which was May 30, 1992.
[3] Prior to his involuntary transfer to maximum-security Kent Institution ("Kent"), the applicant served the last six and one-half years of his sentence at the medium-security Mountain Institution ("Mountain"), arriving on November 10, 1996.
[4] On May 16, 2003, there was a disturbance at Mountain Institution. The applicant, through his legal advocate, and, in response to the involuntary transfer proceedings that were later initiated, provided this description of his actions during the disturbance:
"With regard to the events of May 16, 2003, Mr. Doherty describes his "involvement" as follows. At about 8:30 p.m. he was on the telephone. He heard a call over the PA system to lock up. He ended his telephone call and went to his cell. He was in his cell when officer Al Sadar (phonetic spelling) came to the door and said "in or out". Mr. Doherty states that when previous lock-ups had been called, prisoners has been given the option of locking in their cells or going out. On this occasion he asked Mr. Sadar "We can go out?" and Mr. Sadar replied in the affirmative. Mr. Doherty states that at this point he did not know why the lock-up was being called and though perhaps there was a staff shortage. He left his cell and went out into the compound. He saw a group of people in front of the kitchen, including 2 members of the Inmate Committee. He was then told that the reason for the lock-up was because a knife was missing. For about 20 minutes, he (as Chair of the Lifers) and the Inmate Committee members discussed presenting an option to the administration in which they would lock up after a couple of hours when they could take showers and call family members, in preparation for what could be at least 2 days of lockup without visits. The Committee members left. Unfortunately, others began to damage property. Mr. Doherty states that he wanted no part of this. When he saw a fire had been started in a box of cardboard in the road in front of the kitchen and he grew more upset as he knew this would escalate and undermine any efforts of the Committee to negotiate with the administration. He clearly voiced his objections and tried to put out the fire. When he saw the Library windows being broken, he returned to his cell. He states that Mr. Sadar saw him return. He stayed in his cell from that time onwards. Mr. Doherty asserts that he did not agree with any of the actions taken against the order to lock up that night and he did not incite or otherwise encourage anyone to act against it or to destroy or steal property."
[5] On May 22, 2003, following the disturbance at Mountain, the applicant was involuntarily transferred to Kent on an emergency basis, pursuant to section 29 of the Corrections and Conditional Release Act, S.C. 1992 c. 20 ("CCRA"), and section 13 of the Corrections and Conditional Release Regulations, SOR/92-620 ("Regulations"). His security classification was subsequently raised from medium to maximum and his involuntary transfer to Kent was approved.
[6] The applicant unsuccessfully grieved his security reclassification and involuntary transfer to the third and final level of the Correctional Service of Canada ("CSC") grievance procedure. He alleges that a number of internal memoranda and opinions which were the basis for the denial of his Third Level Grievance were not made available providing him with an opportunity to reply.
[7] The applicant alleges throughout that his account of his actions during the disturbance were never contradicted by any reliable information.
[8] On May 23, 2003, CSC issued a Notice of Involuntary Transfer, pursuant to section 29 of the CCRA. The stated reasons for the recommendations were a combination of the applicant's alleged problematic behaviour for several months and his participation in the disturbance:
Your institutional adjustment has been problematic for several months. You were provided with a Behavioural Expectation Agreement, on 2003/02/11, in order to maintain your medium security status, however, you have not displayed an improvement in your behaviour. On 2003/05/16 there was a serious incident involving the destruction of institutional property and disruptive behaviour among a large group of inmates. There is information that suggests that you were participant in this incident. This had resulted in your risk, as a medium security offender, being reviewed.
[9] On May 22, 2003, CSC provided a copy of the Annual Review of Offenders' Reclassification and the Assessment for Decision - Offender Security Reclassification and Involuntary Transfer to Kent Maximum Security Institution ("Assessment"). The classification was completed using the Security Reclassification Scale which produced a computed security classification of medium. However, the authors overrode that computed security classification with a security classification of maximum. The override "factor" and "comment" were as follows:
Override Factor: Participation in a disruption leading to confrontation or damage after a significant period of deteriorating behaviour.
Override Comment: Mr. Doherty's behaviour has been a progressive concern. He consistently challenges authority and undermines the authority of staff within the unit and the institution. He has been identified as being a participant in a serious security disturbance.
[10] Under the heading "Overall Assessment Regarding Transfer and Security Classification," the authors noted "Although there is no information to suggest Mr. Doherty participated in any of the physical destruction, there is reliable information which indicates that he was very much one of the instigators". The authors of the Assessment recommended that he be reclassified as maximum and involuntarily transferred to Kent.
[11] On June 10, 2001, the applicant's legal advocate submitted a Rebuttal to the Notice and Assessment. The Rebuttal challenged the description of the applicant's actions during the disturbance and the allegation that he had demonstrated a persistent history of deteriorating behaviour.
[12] The applicant was provided with an Addendum to the Assessment for Decision which supplied additional information concerning the transfer to which his counsel again filed arguments.
[13] It is submitted that the Senior Deputy Commissioner ("SDC") did not provide the applicant with copies of various observations and reports or summaries which were the basis for the Third Level Grievance decision issued on October 23, 2003 and, as a result, violated the applicant's statutory rights pursuant to subsections 27(1) and (2) of the CCRA and that the failure to provide such reports prior to rendering its final decision is a breach of the principles of fundamental justice.
[14] It is the respondent's position that the applicant was provided with the information supporting a recommendation transferring him to Kent. In a reply dated June 10, 2003 counsel for the applicant requested that the involuntary transfer be reviewed on the basis that there were insufficient grounds to support the transfer.
[15] On June 26, 2003 the applicant was further provided with an Addendum to Assessment for Decision which supplied additional information concerning the involuntary transfer. On July 10, 2003, the applicant's counsel filed further arguments in support of the applicant's objection to the involuntary transfer, once again suggesting that there were insufficient grounds to support the transfer.
[16] On July 29, 2003 the applicant's security classification was reviewed by the applicant's Case Management Team ("CMT"). The CMT determined that the applicant's classification is computed to be medium security but imposed an override and the Acting Warden of Mountain wrote:
"Mr. Doherty's behavior has been a progressive concern. He consistently challenges authority and undermines the authority of the staff within the unit and the institution. He has been identified as being a participant in a serious security disturbance. His Institutional Adjustment is HIGH; Escape Risk MODERATE; and Public Safety HIGH.
I agree with the CMT's recommendations. Mr. Doherty's Institutional Adjustment is HIGH. Over the past year, Mr. Doherty has been involved in numerous incidents, and has accumulated an extensive list of institutional observations of concern. Despite numerous attempts at intervention to manage his behavior, he has demonstrated a pattern of aggressive behavior and blatant disregard for institutional rules. On 2003-05-16, Mountain Institution had a major disturbance and Mr. Doherty was indicated as being one of the participants. Mr. Doherty's Escape Risk is MODERATE. Although there is no information to indicate Mr. Doherty is planning an escape, he does have a lengthy sentence remaining and has 5 Fail to Appear and Fail to Comply. This combined with his recent return to negative behavior suggests that if given the opportunity, Mr. Doherty has not yet addressed his issues with violence, and his persistent pattern of aggressive and belligerent behavior indicates he is a high risk to the public."
[17] On October 23, 2003 the SDC denied the applicant's Third Level Grievance. In summary the decision outlined the offender's deteriorating behaviour, violent history, high likelihood of violent recidivism, extremely limited program participation and seemingly inability to stay out of trouble, all of which supported the override. It is agreed that the SDC's Report issued October 9, 2003 was not shared with the applicant prior to the decision of the SDC on the Third Level Grievance.
[18] The respondent agrees that pursuant to section 12 of the Regulations Correctional Services Canada must inform the inmate by written notice of the proposed transfer including the reasons; the inmate is then provided with an opportunity to make representations which was complied with in these circumstances, even providing the inmate with an Addendum which supplied additional information to which further reply was submitted.
[19] Counsel for the respondent reminds the Court that it should be cognizant of the interests which are at stake including the security of the institution as well as the safety of staff and inmates.
[20] It is argued that the standard of review in the present case would be "patent unreasonableness", that the authorities did address the issue of procedural fairness and determined that the applicant was afforded adequate opportunity to respond to the recommendation to transfer.
[21] The applicant alleges that the SDC violated his right to procedural fairness in relying on an internal opinion that was not shared with him and to which he was not provided an opportunity to respond.
[22] In denying the applicant's Third Level Grievance, the SDC concluded:
Therefore, based on the information contained in CD 006 and the opinion provided by the Institutional Reintegration Operation Branch, we find that the override to increase your security requirement to maximum was properly applied. Consequently, your grievance is denied.
[23] The Officer's Statement/Observation Report included the following:
There are several suggestions that DOHERTY has been an instigator in institutional "incidents" where inmates have rebelled.
. . .
The offender's deteriorating behaviour, violent history, high likelihood of violent recidivism, extremely limited program participation, and seemingly inability to stay our of trouble all support the override approved to MAXIMUM on 22 May 2003.
[24] To summarize, it is argued that the SDC did not provide the applicant with all the material relied upon before or after the SDC made his Third Level Grievance Decision. In failing to do so, it is argued that the SDC violated the applicant's statutory rights pursuant to subsections 27(1) and (2) of the CCRA, his common law right to procedural fairness and his right to fundamental justice guaranteed by section 7 of the Charter.
[25] The relevant sections of the legislation are the following:
Corrections and Conditional Release Act, S.C. 1992. c. 20
27. (1) Where an offender is entitled by this Part or the regulations to make representations in relation to a decision to be taken by the Service about the offender, the person or body that is to take the decision shall, subject to subsection (3), give the offender, a reasonable period before the decision is to be taken, all the information to be considered in the taking of the decision or a summary of that information.
(2) Where an offender is entitled by this Part or the regulations to be given reasons for a decision taken by the Service about the offender, the person or body that takes the decision shall, subject to subsection (3), give the offender, forthwith after the decision is taken, all the information that was considered in the taking of the decision or a summary of that information.
28. Where a person is, or is to be, confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which the person is confined is one that provides the least restrictive environment for that person, taking into account
(a) the degree and kind of custody and control necessary for
(i) the safety of the public,
(ii) the safety of that person and other persons in the penitentiary, and
(iii) the security of the penitentiary;
(b) accessibility to
(i) the person's home community and family,
(ii) a compatible cultural environment, and
(iii) a compatible linguistic environment; and
(c) the availability of appropriate programs and services and the person's willingness to participate in those programs.
29. The Commissioner may authorize the transfer of a person who is sentenced, transferred or committed to a penitentiary to
(a) another penitentiary in accordance with the regulations made under paragraph 96(d), subject to section 28; or
(b) a provincial correctional facility or hospital in accordance with an agreement entered into under paragraph 16(1)(a) and any applicable regulations.
30. (1) The Service shall assign a security classification of maximum, medium or minimum to each inmate in accordance with the regulations made under paragraph 96(z.6).
(2) The Service shall give each inmate reasons, in writing, for assigning a particular security classification or for changing that classification.
Corrections and Conditional Release Regulations, SOR/92-620
12. Before the transfer of an inmate pursuant to section 29 of the Act, other than a transfer at the request of the inmate, an institutional head or a staff member designated by the institutional head shall
(a) give the inmate written notice of the proposed transfer, including the reasons for the proposed transfer and the proposed destination;
(b) after giving the inmate a reasonable opportunity to prepare representations with respect to the proposed transfer, meet with the inmate to explain the reasons for the proposed transfer and give the inmate an opportunity to make representations with respect to the proposed transfer in person or, if the inmate prefers, in writing;
(c) forward the inmate's representations to the Commissioner or to a staff member designated in accordance with paragraph 5(1)(b); and
(d) give the inmate written notice of the final decision respecting the transfer, and the reasons for the decision,
(i) at least two days before the transfer if the final decision is to transfer the inmate, unless the inmate consents to a shorter period; and
(ii) within five working days after the decision if the final decision is not to transfer the inmate.
17. The Service shall take the following factors into consideration in determining the security classification to be assigned to an inmate pursuant to section 30 of the Act:
(a) the seriousness of the offence committed by the inmate;
(b) any outstanding charges against the inmate;
(c) the inmate's performance and behaviour while under sentence;
(d) the inmate's social, criminal and, where available, young-offender history;
(e) any physical or mental illness or disorder suffered by the inmate;
(f) the inmate's potential for violent behaviour; and
(g) the inmate's continued involvement in criminal activities.
18. For the purposes of section 30 of the Act, an inmate shall be classified as
(a) maximum security where the inmate is assessed by the Service as
(i) presenting a high probability of escape and a high risk to the safety of the public in the event of escape, or
(ii) requiring a high degree of supervision and control within the penitentiary;
(b) medium security where the inmate is assessed by the Service as
(i) presenting a low to moderate probability of escape and a moderate risk to the safety of the public in the event of escape, or
(ii) requiring a moderate degree of supervision and control within the penitentiary...
80. (1) Where an offender is not satisfied with a decision of the institutional head or director of the parole district respecting the offender's grievance, the offender may appeal the decision to the head of the region.
(2) Where an offender is not satisfied with the decision of the head of the region respecting the offender's grievance, the offender may appeal the decision to the Commissioner.
(3) The head of the region or the Commissioner, as the case may be, shall give the offender a copy of the head of the region's or Commissioner's decision, including the reasons for the decision, as soon as practicable after the offender submits an appeal.
(My underlining)
[26] Essentially the Court is called upon to determine whether the decision to involuntarily transfer the applicant, considering all the circumstances of the case, was patently unreasonable. The Court must determine whether the applicant was afforded an adequate opportunity to respond to the recommendation to transfer. In order to make that determination the Court must address the issue as to whether the applicant had sufficient information to form a response.
[27] The applicant was initially provided with an Assessment for Decision to Transfer which was some nine pages long. From the outset it focussed on his deteriorating behaviour, culminating in a disturbance which would have occurred at the Mountain Institution on May 16, 2003. This document further indicates that the applicant had failed to pursue any further programs within the Institution since January, 2002 and that he refused to attend any further correctional motivational enhancement sessions. It outlines that his behaviour had become a progressive concern since he consistently challenged the authority of the Institution. It then particularizes 12 incidents summarizing the applicant's disrespect for institutional personnel, all arising during 2003.
[28] As the applicant points out, the Officer's Statement/Observation Report disagreed with his interpretation of the events of May 16, 2003 when he alleges that he returned to his cell after expressing his disagreement with the destruction of the Institution's property. This particular issue appears to be the basis for the applicant's challenge.
[29] Briefly I will outline the steps taken by the respondent and describe the documents containing the information relied upon to render the decision which were provided to the applicant:
A) Assessment for Decision dated May 22, 2003. This was the initial document which contained the appraisal for security reclassification and outlined some 12 behavioural offences attributed to the applicant
B) By letter dated July 10, 2003 counsel for the applicant replied to the initial Assessment
C) Addendum to the Assessment for Decision dated June 25, 2003
D) In a four and one-half pages letter dated July 10, 2003 counsel for the applicant replied to the Addendum
E) Internal recommendation dated August 1, 2003 concerning the transfer concluding that, though the applicant was given numerous opportunities, he failed to address his negative behaviour while in Mountain Institution and pointing out to him that though the escape risk was moderate the Institution authorities chose to exercise its discretion under Regulation 17 in determining that in the event of an escape he presented a high risk to the safety of the public (Regulation 18)
F) Internal recommendation prepared by the Warden in which he reviews the rebuttal submitted by counsel for the applicant and comments on his participation in the disturbance of May 16, 2003 indicating that this was not the sole basis for the involuntary transfer but resulted from a combination of negative behaviour
G) Rebuttal submitted by the applicant
H) Decision concerning the rejection of the applicant's Third Level Grievance and confirming his transfer
[30] The Court has thoroughly reviewed all those documents referred to in the Affidavit of the applicant sworn on January 16, 2004 which he asserts were not provided and were in violation of section 27 of the CCRA and in breach of the duty to act fairly:
A) A copy of the recommendation which was prepared prior to or after his Second Level Grievance. This document was prepared by Linda Stade.
B) A document prepared by Mary Ann Kane, Project Manager, Institution Re-Integration Organizational Branch analysing the override of the applicant's security classification
C) The Executive Summary prepared by Inmate Affairs forwarded to the Third Level Grievance decision-maker
[31] Having thoroughly reviewed each and every one of these documents, the Court is satisfied that they contain no information that was not disclosed to the applicant in previous communications, nor did they infer to any other conduct which could have negatively impacted the decision-maker.
[32] I am satisfied that the statutory obligation in subsection 27(1) of the CCRA, that the offender must be given all the information on which a decision is to be based and provided with reasonable time in which to reply, has been fully complied with. There was no obligation on the part of the authorities to provide further documents or summaries following the determination of the First Level Grievance since I have satisfied myself that none of these documents contained additional information which could have been prejudicial to the applicant and the eventual determination. They contained no new facts that had not been previously disclosed to the applicant.
[33] It should be remembered that a decision to reclassify and transfer a prisoner in an emergency is a purely administrative decision. The fact that throughout the various documents as well as internal memoranda, the authorities infer that the applicant participated in the disturbance on May 16, 2003 which he denies, they rejected his version of these events which is a discretionary decision; unless the Court can be satisfied that this determination is unreasonable, it should exercise self-restraint when asked to review.
[34] As Addy J. wrote in the case of Re Cline (1981), Court No. 894-81 (F.C.T.D.):
"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 court-room and substituting their own judgment for that of experienced prison administrators."
[35] In the present case the applicant was given all the information enabling him to respond and was provided with an opportunity to refute the case against him.
[36] The uncontradicted evidence before the decision-makers was to the effect that there was an ongoing deterioration of the applicant's conduct that brought about his reclassification and transfer. The Court sees no reason to contest the correctness of the opinions and the final decision.
[37] The applicant suggests that the decision to transfer was not made in accordance with the principles of fundamental justice and procedural fairness. This required that he be given proper notice and an opportunity to answer the allegations. I am satisfied that there was compliance with this obligation.
[38] 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."
[39] The application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
October 15, 2004
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKETS : T-2284-03
STYLE OF CAUSE : JAMES ANDREW DOHERTY v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 31st, 2004
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: October 15, 2004
APPEARANCES:
Garth Barriere FOR THE APPLICANT
Ed Brunet FOR THE RESPONDENT
SOLICITORS OF RECORD:
Garth Barriere
#129 - 1027 Davie St.
Vancouver, B.C.
V6E 4L2 FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General
of Canada
Ottawa, Ontario FOR THE RESPONDENT