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:
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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:
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17.
Le Service détermine la cote de sécurité à assigner à chaque détenu conformément
à l’article 30 de la Loi en tenant compte des facteurs suivants :
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(a) the seriousness of the offence committed
by the inmate;
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a)
la gravité de l’infraction commise par le détenu;
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(b) any outstanding charges against the
inmate;
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b)
toute accusation en instance contre lui;
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(c) the inmate’s performance and behaviour
while under sentence;
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c)
son rendement et sa conduite pendant qu’il purge sa peine;
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(d) the inmate’s social, criminal and, where
available, young-offender history;
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d)
ses antécédents sociaux et criminels, y compris ses antécédents comme jeune
contrevenant s’ils sont disponibles;
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(e) any
physical or mental illness or disorder suffered by the inmate;
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e) toute maladie physique ou mentale ou
tout trouble mental dont il souffre;
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(f) the inmate’s
potential for violent behaviour; and
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f) sa propension à la violence;
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(g) the
inmate’s continued involvement in criminal activities.
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g) son implication continue dans des
activités criminelles.
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18. For the purposes of section 30 of
the Act, an inmate shall be classified as
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18. Pour l’application de l’article 30
de la Loi, le détenu reçoit, selon le cas :
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(a)
maximum security where the inmate is assessed by the Service as
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a) la cote de sécurité maximale, si
l’évaluation du Service montre que le détenu :
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(i) presenting a
high probability of escape and a high risk to the safety of the public in the
event of escape, or
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(i) soit
présente un risque élevé d’évasion et, en cas d’évasion, constituerait une
grande menace pour la sécurité du public,
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(ii) requiring a
high degree of supervision and control within the penitentiary;
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(ii) soit exige
un degré élevé de surveillance et de contrôle à l’intérieur du pénitencier;
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(b)
medium security where the inmate is assessed by the Service as
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b) la cote de sécurité moyenne, si
l’évaluation du Service montre que le détenu :
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(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
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(i) soit
présente un risque d’évasion de faible à moyen et, en cas d’évasion,
constituerait une menace moyenne pour la sécurité du public,
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(ii) requiring a
moderate degree of supervision and control within the penitentiary; and
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(ii) soit exige
un degré moyen de surveillance et de contrôle à l’intérieur du pénitencier;
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(c)
minimum security where the inmate is assessed by the Service as
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c) la cote de sécurité minimale, si
l’évaluation du Service montre que le détenu :
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(i) presenting a
low probability of escape and a low risk to the safety of the public in the
event of escape, and
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(i) soit
présente un faible risque d’évasion et, en cas d’évasion, constituerait une
faible menace pour la sécurité du public,
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(ii) requiring a
low degree of supervision and control within the penitentiary.
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(ii) soit exige
un faible degré de surveillance et de contrôle à l’intérieur du pénitencier.
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[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
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