Date: 20030417
Docket: T-667-02
Neutral citation: 2003 FCT 461
BETWEEN:
DAVID ENNIS
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
[1] David Ennis (the "applicant") is an inmate at the Mission Institution ("Mission"), a medium security prison in British Columbia, operated by the Correctional Service of Canada ("CSC"). He is a first-time federal offender serving a life sentence for second degree murder (X 6), his sentence having commenced on November 19, 1983.
[2] In this judicial review application, which he conducted as a self-represented litigant, Mr. Ennis seeks to set aside the March 12, 2001 decision of the Assistant Commissioner of the CSC (the "tribunal"), a decision made at the third level of the grievance process provided for in the Corrections and Conditional Release Act (the "Act") and Regulations made thereunder. He asks the Court to refer the matter back to the Commissioner for re-determination in accordance with such directions as the Court considers to be appropriate.
[3] In its March 12, 2001 decision, the tribunal upheld first and second grievance level decisions in which Mr. Ennis grieved to obtain entry into the Intensive Treatment Program for Sex Offenders ("ITPSO") conducted at the Regional Health Centre, Abottsford, B.C., ("RHC").
[4] The third level grievance reads:
Your third level grievance concerning program availability has been reviewed. You have also alleged that there is a double standard in the Service which allows other offenders to be fast tracked through the system. You contend that they received programs before you.
I have also reviewed the responses provided to you by the previous levels of this process. I find the information supplied to be complete and appropriate. As well, I agree with the decisions reached.
I would suggest that you re-read the information previously provided as I believe that you will find the answers you seek within them. As well, be assured that all offenders are assessed in the same manner with regard to program participation.
Therefore, as there is no information in support of your allegations of a double standard and you have been provided appropriate responses by the previous levels, your grievance is denied.
BACKGROUND
[5] The applicant has completed two ITPSO's. The first was completed at the Regional Psychiatric Centre in Saskatoon in 1995 and the second one at the RHC in Abbotsford, B.C., in 1999. He married in 1994.
[6] When he was taking his ITPSO at the RHC in 1999, his multi-disciplinary treatment team final review dated March 30, 1999, included the following discharge recommendations:
(a) he be transferred to Mission;
(b) he complete a further ITPSO at RHC not sooner than one year from discharge from the present ITPSO he is attending;
(c) he attend relapse prevention at Mission.
[7] Mr. Ennis attended the low intensity "Maintenance Program" for sex offenders at Mission until such time as it was discontinued in the fall of 2000.
[8] On April 21, 2000, his case management team ("CMT") completed a correctional plan progress report on him which included the following CMT action plan:
The case management team will continue to encourage Mr. Ennis in his progress towards participating in the next available Intensive Sex Offender Program being offered at RHC. [emphasis mine]
[9] Mr. Ennis made, before and after that recommendation, several requests for admission into the ITPSO at the RHC (one in March 2000 and three during 2001).
[10] After being interviewed by the RHC Interview Team his requests were denied. For example, on May 16, 2001, he was advised by the RHC Program Therapist as follows:
In compliance with your desire to complete another ITPSO with the hope of transferring to a minimum, and preparing for release, you will be considered for admission closer to your FPE 2008-11-19. [full day parole] [emphasis mine]
[11] It is in respect of the May 16, 2001 refusal that Mr. Ennis made a complaint which then triggered the grievance process.
[12] On August 9, 2001, his complaint was dismissed by Acting Senior Psychologist Lyne Piché who wrote:
Mr. Ennis was met by the treatment team on May 16, 2001. He was unable to spontaneously identify treatment goals and areas that required behavioural change. In addition, he wished to complete programming in order to prepare for the end of his sentence and move to a minimum security institution. Given that his goals regarding change were vague and that he wished to use his treatment in order to prepare for release (FPE 2008) Mr. Ennis was deemed a lower priority when compared to other offenders on the waiting list at this time. Mr. Ennis does have access to programming. He is currently on our waiting list and will be considered for future programs. [emphasis mine]
[13] His first level grievance was denied by the Director of RHC on September 13, 2001. The Director concurred with Lyne Piché's assessment and the determination made by the treatment team "that your request was deemed to be a lower priority when compared to other offenders on the waiting list". The Director indicated to Mr. Ennis that he had access to programming at Mission "and I urge you to participate in this. In the meantime, you will remain on RHC's waiting list and your request will be considered for future programs".
[14] His second level grievance was also dismissed on November 21, 2001, by the Regional Deputy Commissioner. The material part of that decision reads:
Mr. Ennis, prior to being accepted for the Intensive Sex Offender Program at Regional Health Centre, there are several considerations.. These include the recommendations from the initial interview as well as consideration of eligibility dates and a security check for possible incompatibles. Due to your eligibility dates and the interview determinations, you were not considered a priority candidate for this program at this time.
Your motivation to complete programs is recognized. While you are not presently considered a priority candidate for this specific program, I do wish to encourage you to discuss other program options with your Case Management Team.
As the Regional Health Centre Treatment Team determined that you are not a high priority candidate for the Sex Offender Program at this time, your grievance is denied. [emphasis mine]
[15] As noted, his third level grievance was also denied for reasons previously identified.
[16] As further background, I set out Mr. Ennis' eligibility dates:
Escorted Temporary Absences [ETA's] 1984
Minimum Security Institution 1984
Judicial Review (s. 745.6, Criminal Code) 1998/11/19
Unescorted Temporary Absences [UTA's] 2005/11/19
Day Parole 2005/11/19
Full Parole 2008/11/19
ANALYSIS
(a) The standard of review
[17] In Allen Tehrankari v. Canada (Correctional Service), [2000] F.C.J. No. 495, I had an opportunity to consider the standard of review which should be accorded a third level grievance process decision by the Commissioner of the CSC in a judicial review challenge by an inmate at the Kingston Penitentiary who, pursuant to section 24 of the Act, wanted the CSC to correct some information about him recorded in its records.
[18] Applying the four factors identified by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, I noted the Act contained no privative clause insulating the decisions of the Commissioner taken in the grievance process. I recognized that in matters related to prison administration, the Commissioner has expertise relative to the Court which leads to substantial deference in decisions taken by the Commissioners in matters related to prison management. As to the third factor, the purpose of the provision and the Act as a whole, I observed what was involved in that case was the application of section 24 of the Act which I considered to be part of an offender's "rights package" established by Parliament in 1992 when the Act was passed to modernize previous legislation, i.e., the Penitentiaries Act and the Parole Act, a modernization which was compelled by decisions of the Supreme Court of Canada and lower courts on prisoners' rights. As to the fourth factor, I found the nature of the problem in question turned on an analysis whether it related to the determination of law or facts.
[19] The conclusion which I reached was as follows:
¶ 44 To conclude on this point, I would apply a correctness standard if the question involved is the proper interpretation of section 24 of the Act; however, I would apply the standard of reasonableness simpliciter if the question involved is either the application of proper legal principles to the facts or whether the refusal decision to correct information on the offender's file was proper. The patently unreasonable standard applies to pure findings of fact. (Subsection 18.2(4) of the Federal Court Act, R.S.C. 1985, c. F-7.)
[20] It is interesting to note the Supreme Court of Canada very recently in Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), [2003] S.C.C. 8, applied the standard of correctness in respect of a decision by the Commissioner of the R.C.M.P. which basically turned on a question of law - the interpretation to be given to the words "personal information" as defined in section 3 of the Privacy Act in the context of whether there was an available exemption from disclosure pursuant to section 19(1) of the Access to Information Act.
[21] In this case, I am of the view the tribunal's decision should be reviewed against the reasonableness standard because it was obliged to make a decision in the context of various statutory and regulatory provisions against particular facts as determined by the tribunal.
(b) Relevant statutory and regulatory provisions
[22] The purpose of the federal correctional system is set out in section 3 of the Act and is stated to be "to contribute to the maintenance of a just, peaceful and safe society by, inter alia, 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". Section 4 of the Act speaks to the principles which shall guide CSC. Included as a principle is one which says offenders are expected to "actively participate in programs designed to promote their rehabilitation and reintegration". Section 5 of the Act states the CSC "shall be responsible for, inter alia, the provision of programs that contribute to the rehabilitation of offenders and to their successful reintegration into the community and the preparation of inmates for release".
[23] Section 76 of the Act mandates CSC "shall provide a range of programs designed to address the needs of offenders and contribute to their successful reintegration into the community" while section 86 states the CSC "shall provide every inmate with, inter alia, reasonable access to non-essential mental health care that will contribute to the inmate's rehabilitation and successful reintegration into the community".
(c) What this case does not engage
[24] This case is not about the CSC failing to discharge a statutory duty to provide a specific program such as the ITPSO. That program is functioning and is available at the RHC.
[25] This case does not turn on the notion that an inmate's access to programming is a privilege and therefore who gets into a specific program is within the unfettered discretion of the CSC. Inmates in facilities operated by the CSC have rights to programming which the CSC has a duty to provide and, in particular, in terms of paragraph 86(1)(b) of the Act where Parliament has stated the Service shall provide every inmate with reasonable access to non-essential mental health care that will contribute to the inmate's rehabilitation and successful reintegration into the community.
[26] This case is not about the CSC deciding Mr. Ennis should no longer have further access to a ITPSO at the RHC, a program which his review team recommended he must take but not sooner than one year from discharge from the ITPSO he was currently attending on March 30, 1999.
(d) What this case is about
[27] What this case involves is simply a decision by the CSC to prioritize Mr. Ennis' access to the ITPSO at the RHC. The CSC decided he should be placed on a waiting list for access to that program but assigned his access a lower priority compared to other offenders on the waiting list.
[28] A decision of this type which involves the internal management of the penitentiary system will not likely be interfered with by this Court as was decided by Justice Joyal in Beaulieu v. Leclerc Institution, [1987] F.C.J. No. 1122, because of the deference accorded by the courts to the CSC.
[29] In Beaulieu, supra, the CSC had cancelled the inmate's access to three rehabilitation programs as a result of a finding he was guilty of three counts of offences against certain disciplinary rules. Justice Joyal noted this type of decision was subject to review adding:
However, the court does not have the powers of a court of appeal allowing it to reverse the decision and to substitute its own. The court is subject to limitations which have been stated several times in earlier cases. Unless there are formal defects, a breach of natural justice, an excess of jurisdiction or a finding of fact made in an irrational or vexatious manner, an administrative decision is not open to question even though the court may not agree with it. [emphasis mine]
[30] Justice Joyal concluded his reasons for judgment by writing the following:
The law gives the authorities in our penal institutions a measure of discretion to ensure that those institutions operate effectively and at the same time to make it possible for inmates to benefit from certain readjustment or rehabilitation programs. To do this the authorities must be guided by a wide range of intellectual disciplines, each containing information essential to the best possible exercise of their discretion. The task imposed on them by law is not always an easy one. It may well be that throughout this experience certain decisions are not as good as others or that, on the facts, someone else would have arrived at different conclusions or imposed lighter penalties. However, an observer outside the applicant's environment does not have the responsibility of making all these decisions. That responsibility also does not belong to a court, which must refrain from any judicial intervention that would lead it to assume a discretionary power conferred by law on others.
CONCLUSIONS
[31] The applicant has been unable to persuade me that the tribunal's decision should be overturned. It is to be recalled the tribunal based his decision on two grounds: first, because in its view, the applicant had not provided any information that the CSC had applied a double standard which the applicant complained about, that is, some offenders, regardless of their crime or how many offences they have committed, are being fast tracked through the system and end up in minimum security many years prior to their eligibility dates and second, because it agreed with the responses provided to the applicant at previous levels in the grievance process.
[32] Mr. Ennis, in his argument before me, did not press his double standard allegation. In any event, there is nothing in the record which I can see would in any way substantiates that allegation.
[33] Mr. Ennis faulted the tribunal's decision not to accord him immediate access to the ITPSO because the lower level grievance decisions which he relied on contained errors.
[34] First, he argued he did not have access to any sexual offender rehabilitation program at Mission because that program had been terminated. I am not convinced the termination of that program was material to the decisions objected to.
[35] Second, he stated nowhere did the lower level grievance decisions take into account his correction plan as required by section 102 of the Corrections and Conditional Release Regulations.
[36] Third, he complained of a breach of section 27 of the Act which stipulates where an offender is entitled to make representations in relation to a decision to be taken by the Service about the offender, the inmate is entitled to have access to all information within a reasonable period before the decision is taken. He pointed to the program interview sheet dated August 24, 2001, and said it was given to him late.
[37] Fourth, he stated the lower level grievance decisions took into account an irrelevant consideration. He referred to the Intensive Sex Offender Program, pointed to the admission criteria and argued the ability to articulate treatment goals was not an identified admission criteria.
[38] In my view, all of Mr. Ennis' arguments miss the mark. His arguments may have had some merit if he had been denied further access to ITPSO programming but that is not the case.
[39] Mr. Ennis, in my view, did not really come to grips with the basis upon which his grievance was refused. He is on the waiting list for a ITPSO but, at the time the decisions were made, he had a lower priority than other offenders waiting to embark upon the program.
[40] I recognize Mr. Ennis has been waiting since 1999 to take his required ITPSO and this may seem to him to be a long time. However, the CSC is entitled to prioritize access to programming and it has not been demonstrated to my satisfaction that the CSC is acting in bad faith by preferring others or holding him back for ulterior motives such as denying access so that he won't complete his correction plan and thereby miss his eligibility dates.
[41] Specifically, he is at liberty to ask for an ETA or a transfer to a minimum security prison and can grieve a refusal. As to judicial review under the Criminal Code, he is not eligible because of the multiple murders committed.
[42] For all of these reasons, this judicial review application is dismissed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
APRIL 17, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-667-02
STYLE OF CAUSE: DAVID ENNIS v. THE ATTORNEY GENERAL OF
CANADA
PLACE OF HEARING: VANCOUVER
DATE OF HEARING: FEBRUARY 20, 2003
REASONS FOR ORDER : LEMIEUX, J.
DATED: APRIL 17, 2003
APPEARANCES:
DAVID ENNIS FOR THE APPLICANT
ON HIS OWN BEHALF
MARYANN BARKER FOR THE RESPONDENT
SOLICITORS OF RECORD:
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA