Pinkney v. Canada (Attorney General), docket T-1723-97

Date: 19980226

Docket: T-1723-97

BETWEEN:

     JOHN ROBERT PINKNEY

     Applicant

     - and -

     ATTORNEY GENERAL OF CANADA

     Respondent

     REASONS FOR ORDER

MacKAY, J.

[1]      This is an application for judicial review submitted in writing pursuant to Rule 324 by the applicant, an inmate at William Head Institution when his application was filed. He represented himself, by written submissions pursuant to Rule 324 of the Court's Rules. He seeks review and an order of certiorari, with supporting orders of mandamus, concerning a decision of the National Parole Board, dated July 9, 1997, which denied an application by Mr. Pinkney for day parole.

[2]      The basis of the applicant's claim for relief is his allegation that in the decision in question the Board relied "in part upon use of a diagnostic tool referred to herein as the PCL-R (Hare Psychopathy Checklist - Revised) without the applicant's consent conducted by [a] Registered Technologist ... employed by Correctional Service of Canada on or about October 20, 1995". The assessment so made, without consent or involvement of the applicant, is said to be contrary to the Commissioner's Directives, to Regional Instructions and to Canadian law. Moreover, when the assessing psychologist is said not to have been qualified to perform this test for purposes of diagnosis of the applicant.

[3]      The application raises two basic issues:

1)      Whether this Court should intervene by extraordinary relief in the nature of certiorari when the applicant has failed to pursue a statutory process for appeal of the decision in question; and

2)      if the answer to 1) is in the negative, whether, and if so what, comments should be made, albeit obiter, in the expectation that they will be considered by those responsible for oversight of the National Parole Board, and the Correctional Service and its institutions in Canada.

Background

[4]      At the time of his application, in August 1997, the applicant was serving aggregate sentences of more than 18 years imposed in relation to offenses committed in 1985, and subsequent offenses. Most of his adult life has been spent in prison institutions as a result of numerous convictions. On 11 occasions he has been granted conditional release and on all 11 of those occasions he has failed to meet conditions imposed and has been returned to custody, often with convictions for additional offenses committed while on conditional release.

[5]      The most recent conditional release, from a minimum security institution, was on June 23, 1995. Then, on violating conditions to abstain from alcohol, he was charged with, and later pleaded guilty to, impaired driving, and he was returned to prison on July 1, 1995, after only 8 days on release.

[6]      Some months after his return to prison, at Mission Institution in July 1995, the applicant applied for transfer again to a minimum security institution. His efforts to pursue this goal led to grievances and apparent friction between the applicant and those responsible for his case management. In the course of some ongoing differences between the applicant and his "managers", a registered psychologist, employed at the institution, without the prior knowledge of the applicant and without his consent or involvement, completed a Correctional Service Canada Psychological/Psychiatric Assessment Report concerning the applicant, based entirely on the psychologist's review of the applicant's case management and psychology files, which included prior psychological reports, combined with the reviewer's "prior interview impressions" of the applicant.

[7]      The review resulted in the psychologist's "ratings of Mr. Pinkney against the 20 items of the Hare Psychopathy Checklist" (known as PCL-R). The conclusion of the report in October 1996 was:

"... Mr. Pinkney's overall rating on the PCL would meet the cut-off score for a high rating on the factor of Psychopathy, and at 35 years of age, Mr. Pinkney still presents a poor prognosis for conditional release and a high risk to reoffend. ..."

[8]      There is no other evidence in the record of any prior assessment of the applicant as one with "a high rating on the factor of Psychopathy". The respondent's record does include an earlier report on the applicant, completed by Dr. D. Eaves, Psychiatrist, on November 24, 1987, which includes, as counsel for the respondent points out, the statement, "a diagnosis of psychopathy has been considered and he exhibits many characteristics which would qualify him for such a diagnosis ...". As I read Dr. Eaves' report, he did not in fact classify or diagnose the applicant as one subject to psychopathy. That early report may have been suggested by the respondent in part to support the reference in the Parole Board's written decision, dated July 14, 1997 confirming the decision rendered orally on July 9, that:

"Within this sentence you have been psychologically and psychiatrically assessed 11 times. You have been diagnosed as having anti-social personality disorder and two of those reports have diagnosed you as a psychopath."

[9]      With respect for the opinion of the Board on matters within their special ken, there simply is no evidence in the records of either the applicant or the respondent of even one proper diagnosis of the applicant as a psychopath.

[10]      Before considering the merits of the application I turn to a preliminary objection raised on behalf of the respondent. Counsel submits that failure of the applicant to exhaust his statutory right of appeal precludes the Court from reviewing the decision of the Board.

Extraordinary relief by the Court and a Statutory Appeal

[11]      Section 147 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the "Act"), provides an offender with the right to appeal from a National Parole Board decision to the Appeal Division of the National Parole Board, on grounds set out, as follows:

     147. (1) An offender may appeal a decision of the Board to the Appeal Division on the ground that the Board, in making its decision,

(a) failed to observe a principle of fundamental justice;

(b) made an error of law;

(c) breached or failed to apply a policy adopted pursuant to subsection 151(2);

(d) based its decision on erroneous or incomplete information; or

(e) acted without jurisdiction or beyond its jurisdiction, or failed to exercise its jurisdiction.

     147.(1) Le délinquant visé par une décision de la Commission peut interjeter appel auprès de la Section d'appel pour l'un ou plusieurs des motifs suivants:

(a) la Commission a violé un principe de justice fondamentale;

(b) elle a commis une erreur de droit en rendant sa décision;

(c) elle a contrevenu aux directives établies aux termes du paragraphe 151(2) ou ne les a pas appliquées;

(d) elle a fondé sa décision sur des renseignements erronés ou incomplets;

(e) ella a agi sans compétence, outrepassé celle-ci ou omis de l'exercer.

[12]      In previous decisions this Court has declined to intervene by judicial review or to award any of the extraordinary remedies, such as certiorari and mandamus which the applicant in this case seeks, prior to pursuit by the applicant of an appeal as provided by statute to the Appeal Division of the Board. (see Fragoso v. Canada (National Parole Board) (1995), 101 F.T.R. 131 (TD); Fehr v. National Parole Board (1995), 93 F.T.R. 161 (TD)).

[13]      In Fehr (supra), Mr. Justice McKeown commented:

"It is true that the existence of an appeal remedy does not automatically preclude certiorari, however, it is my view that in this case, the applicant should have pursued an appeal to the Appeal Division of the Board before coming to this Court, as the legislation provides an adequate alternative remedy to certiorari. Section 147 of the Act clearly sets out an appeal route, the provisions of which, in my view, almost mirror the provisions of s. 18.1(4) of the Federal Court Act.

... The purpose of having any appeal route is to avoid a multiplicity of proceedings before the court. As such, where an appeal route exists, it should, in general, be pursued to the extent that it may be, before seeking judicial review." [at 171]

[14]      Under subsection 147(3) of that same Act the time and manner for appeal of a decision of the Board to the Appeal Division is prescribed by regulations, and section 168 of the Corrections and Conditional Release Regulations, SOR/92-620 provides that written notice of an appeal, with material in support of its grounds, may be made within two months after the decision of the Board that is appealed. The applicant in this case may now be barred by elapse of time from appealing the decision that he here seeks to have reviewed. Nevertheless, in my opinion, even if that is the case this Court should not intervene by certiorari or mandamus unless there is clearly a grave injustice which may not be otherwise remedied. In my view, the latter is not the case, particularly if administrative action is now undertaken to ensure no further prejudice arises for the applicant. A review of processes here followed is suggested in later consideration of the merits of this application, in order to take reasonable precautions against prejudice to the applicant.

[15]      Thus, I dismiss the applicant's claim for relief by certiorari and by numerous orders in the nature of mandamus directing those concerned with operations of the National Parole Board and of the Correctional Service of Canada to undertake a variety of measures to review the applicant's situation and to avoid possible misuse of psychological testing undertaken without consent in his, and in any other, case. To grant relief, where there is not evidence of grave injustice that cries out for relief, in the circumstances of this case, would encourage applications for judicial review simply by delaying a statutory appeal beyond the time fixed by regulation. That would avoid the process which Parliament has clearly intended should be available as a simplified and speedy means for contesting a decision of the Board.

[16]      For these reasons, since the applicant did not appeal as provided under the statute, this Court dismisses the application for judicial review.

The merits of the applicant's claim

[17]      In the ordinary case, the Court has no interest and no authority to comment on the merits of a claim which it has declined to consider. Anything it does say is obiter, and is not binding upon any party. This case, however, invites comment in the interests of assisting the Correctional Service and the National Parole Board to discharge their important functions while avoiding any possible prejudice to the applicant, or to others in his position, that may arise from the processes followed in his case.

[18]      The applicant's principal concern arises from the reliance by both agencies upon the psychologist's assessment report about him, made in October 1996, which reliance he believes was improper, since the assessment was made without his consent or involvement, by a psychologist not properly trained for clinical diagnosis of psychopathy. The essential elements of the applicant's concern were not disputed by counsel for the named respondents. Rather, other arguments, based in part on the transcript from the Board's hearing, not directly commenting upon the merits, are advanced to support its conclusion.

[19]      "Psychopathy" is defined in the Compact Edition of the Shorter Oxford Dictionary, Vol. II, p. 2348, (Oxford University Press, 1987) as:

1.      Mental disease or disorder; 'mental disorder considered apart from cerebral disease'

2.      The treatment of disease by 'psychical' influence, e.g. by hypnotism

Obviously, the word as used in the record in this case refers to the first of those meanings. In Stedman's Medical Dictionary, p. 1459, (26th Ed., 1995, Williams and Wilkins, Baltimore) the word "psychopathy" is defined as:

"Obsolete and inexact term referring to a pattern of antisocial or manipulative behaviour engaged in by a psychopath."

"Psychopathology" is defined in the same work as:

1. The science concerned with the pathology of the mind and behavior;

2. The science of mental and behavioral disorders, including psychiatry and abnormal psychology.

Finally, in ITP Nelson Canadian Dictionary of the English Language, (1997, Thomson, Scarborough, Ontario) "psychopathy" is defined as:

Mental disorder, esp. when manifested by antisocial behaviour.

[20]      These definitions differ, but an essential element of each is the classification of a mental disorder. There can be no question but that diagnosis of an individual with such a condition requires skill, knowledge and training at a high level. It is not entirely clear that the assessment of PCL-R rating for the applicant completed on October 20, 1996 was intended to be a diagnosis of the applicant in medical terms, but it was too easily relied upon as though it was, apparently by the Correctional Service itself and certainly by the National Parole Board. This, despite efforts of the applicant through the internal grievance process to have the report discounted.

[21]      The respondents originally named as the National Parole Board (Pacific Region) and Correctional Services of Canada (Pacific Region), represented by counsel from the Department of Justice, do not dispute the applicant's claim that the assessment of him on October 20, 1996 was done without his consent or involvement. The record of the applicant contains a letter of May 16, 1997 from the Correctional Investigator, Canada confirming to the applicant that on review of his psychology file the investigator "did not see a signed consent for treatment or assessment relating to the Psychopathy Check List testing that was done in your case".

[22]      It seems clear that testing or assessing or diagnosing the applicant's mental condition without his consent contravenes Commissioner's Directive No. 803, s. 2 and 6 which directs that "there be the consent of the offender for a. all medical procedures, and b. all psychiatric and psychological assessment and treatment."

[23]      Moreover, simply on its face the Psychology/Psychiatric Assessment Report of October 20, 1996 which, inter alia, rated the applicant by the PCL-R scheme, ought not to have been intended, nor should it have been relied upon, as a diagnosis of the applicant's mental condition¹. It would be surprising if any qualified therapist with advanced training in clinical psychology or psychiatry, an essential qualification stated by Dr. Hare, the developer of the test, and by professional clinical standards, would purport to conclude a diagnosis in the manner this assessment was made, and the assessment may not have been intended as a diagnosis.

[24]      In my opinion, those responsible for direction of the National Parole Board and of the Correctional Service of Canada should give consideration to measures to avoid any possible prejudice to the applicant, at the very least by filing a copy of these Reasons with any records of the Board's hearing of this matter and with the applicant's psychological files. That would include in those records these Reasons which find no evidence on the record before the Court that the applicant was ever properly diagnosed as a psychopath. For their consideration of appropriate steps, these Reasons are directed to be sent by counsel for the respondent to the Chairman of the National Parole Board and to the Commissioner of the Correctional Service. They should give consideration to avoiding use of questionable psychological testing or assessments in future situations involving the applicant or other persons detained. A proper review by the Correctional Service may be particularly important.

[25]      In summary, there appears to be merit warranting further administrative review of the applicant's concerns arising from reliance by the National Parole Board, and earlier by the Correctional Service of Canada, upon questionable psychological assessing in his case by rating him in accord with the PCL-R scheme without his consent or involvement. Nevertheless, I am not persuaded that in this case grave injustice would result if the Court does not intervene, or that any future prejudice to the applicant cannot be avoided by appropriate administration management.

Conclusion

[26]      The Court declines to exercise jurisdiction to intervene and it dismisses the applicant's claim to relief, since he had opportunity, which he did not exercise, to appeal the decision that is the subject of these proceedings. The statutory process for appeal was intended by Parliament as the manner for contesting decisions of the Board. In the usual case, judicial review will not then lie unless a decision of the Appeal Division of the National Parole Board is said to raise concerns that warrant intervention by the Court.

[27]      The Order issued directs that the style of cause be amended, omitting the National Parole Board (Pacific Region) and the Correctional Service of Canada (Pacific Region) as respondents, since neither are legal entities, and since the appropriate representative of both services, on behalf of Her Majesty the Queen, is the Attorney General of Canada. By Order now issued, the style of cause includes the latter as the sole respondent.

[28]      The Order also directs that a copy of these Reasons be sent by counsel for the respondent to the Chairman of the National Parole Board and to the Commissioner of the Correctional Service.

                                     W. Andrew MacKay

    

                                         Judge

Ottawa, Ontario

February 26, 1998.

__________________

     ¹      In comments on use of the PCL-R testing Dr. Hare notes in The Hare Psychopathy Checklist - Revised (by Robert D. Hare, published by Multi-Health Systems, Inc., Toronto 1990, 1991) that in relation to Administration of the PCL-R, at p. 5:
                     Uses and Users          Clinical Settings              In clinical settings, the PCL-R is used for psychodiagnostic purposes. Because an individual's scores may have important consequences for his or her future, the absolute value is of critical importance. The potential for harm is considerable if the PCL-R is used incorrectly, or if the user is not familiar with the clinical and empirical literature pertaining to psychopathy. Clinicians should:              a. Possess an advanced degree in the social, medical, or behavioral sciences, such as a Ph.D., D.Ed. or M.D.              ...              e. Insure that they have adequate training and experience in the use of the PCL-R (see below). We further recommend that, wherever possible, the PCL-R scores of two independent raters should be averaged so as to increase the reliability of the assessment.
         Research Settings              In research settings individual PCL-R scores typically are kept confidential and are not made available to correctional or institutional staff, parole boards, and so forth. User qualifications are not as stringent as they are if the assessments have direct or indirect implications for inmates or patients.
             Researchers (or, if currently enrolled in a graduate training program or medical school, their supervisors) should:              a. Possess an advanced degree in social, medical, or behavioural sciences, such as M.A., M.Ed., Ph.D., D.Ed or M.D. degree.              ...
                     Assessment Procedure
             The PCL-R assessment procedure typically consists of an interview and a review of available collateral information...              ...