Hiebert v. Canada (Correctional Service of Canada), 2005 FC 1719

                                                                                                                                   Date: 20051221

                                                                                                                                Docket: T-138-05

                                                                                                                        Citation: 2005 FC 1719

BETWEEN:

                                                               KURT HIEBERT

                                                                                                                                            Applicant

                                                                         - and -

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

PINARD J.:

[1]         This is an application for judicial review of a decision of the Commissioner of the Correctional Service of Canada ("CSC") to uphold the earlier decision to transfer the applicant from Warkworth Institution ("Warkworth"), a medium security Penitentiary, to Kingston Penitentiary ("Kingston"), a maximum security facility.

Facts

[2]         Kurt Hiebert ("the applicant"), who is currently located at Kingston Penitentiary, is a federal offender serving a life sentence.

[3]         On October 30, 2003, the applicant, housed at Warkworth, was segregated for allegedly being involved in the institutional drug subculture. It was also alleged that the applicant had a prison shank in the institution and was threatening inmates.

[4]         Security Intelligence Officer ("SIO") Simpson and Parole Officer Kerr met with the applicant in segregation and the applicant admitted to having drug problems and using morphine. The applicant asked that his medium-security status be maintained and that he be processed for transfer to medium-security Matsqui or Mountain Institutions in the Pacific Region. The applicant also indicated that he would like to be admitted to the Methadone Maintenance Treatment Program ("MMTP"). The applicant asked to remain in segregation on a voluntary basis until he was either admitted to the MMTP or transferred to the Pacific Region.

[5]         It was agreed among the applicant's parole officer, SIO Simpson, and the applicant that the applicant could remain in segregation at Warkworth Institution and maintain his medium-security status to await his transfer to another medium-security institution in the Pacific Region and/or to await his admission into the MMTP. It was agreed that the applicant's parole officer would prepare a behavioural contract for the applicant to sign prior to his being released back into population at Warkworth.

[6]         On November 6, 2003, the warden signed off on the decision to change the applicant's segregation status from involuntary to voluntary.

[7]         On December 1^st, the warden reviewed the applicant's request for return to open population and determined that a behavioural contract was not a viable option for the applicant. The warden found that there was sufficient information past and present to warrant consideration of higher security. The applicant's segregated status was changed from voluntary to involuntary.

[8]         An Assessment for Decision was generated on December 17, 2003 in which it was determined that the applicant's security classification was maximum.

[9]         As a result of the change in the applicant's security classification, he was no longer being supported for transfer to medium-security Matsqui or Mountain Institutions. Instead, the applicant was given a Notice of Involuntary Transfer to Kingston.

[10]       On January 15, 2004, the applicant was involuntarily transferred to Kingston.

[11]       On February 3, 2004, the applicant submitted a second level grievance of the transfer to Kingston to the Kingston Penitentiary Inmate Grievance Co-ordinator that was received by Regional Headquarters on May 5, 2004.

[12]       On May 12, 2004, Louis Beausoleil, Regional Transfer Officer, recommended that the applicant's involuntary transfer be found to not be in compliance with the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the "CCRA"), the Corrections and Conditional Release Regulations, SOR/92-620 (the "Regulations") or the Standard Operating Practices. Although Mr. Beausoleil found the Notice generic and found no references to Protected Information Reports ("PIRs"), Security Intelligence Reports ("SIRs") or observation reports, he expressed the view that "the gist of this information was disclosed to the inmate at the time of the serving." He recommended however that the applicant's grievance be upheld and that the applicant be returned to Warkworth.

[13]       In the second-level grievance response, dated July 8, 2004, the applicant's grievance was upheld in part (however, the copy of this decision that the applicant received was illegible). It was determined that the transfer was not in compliance with the Regulations, section 13 (the Notice was generic and did not provide the applicant with adequate information about the case against him). However, it was determined that the applicant could be re-served with an amended Notice.

[14]       On August 25, 2004, CSC re-served the applicant with an amended Notice of Involuntary Transfer and Assessment for Decision in which PIRs, SIRs, and incident numbers were provided for the allegations against him.

[15]       On August 30, 2004, the applicant was provided with a legible copy of the second-level grievance response.

[16]       On September 6, 2004, the applicant chose to submit a third level grievance.

[17]       On December 29, 2004, the applicant received a response to his third level grievance from Madeline Lévesque (for the Commissioner) which, for the most part, denied the third level grievance, although it was noted that the Assessment for Decision dated December 12, 2003 required some corrections for clarification.

[18]       The response upheld the substantive decision to increase the applicant's security classification and to transfer him. The response also upheld the decision of the second level grievance that the defects in the first Notice of Transfer could be remedied by re-serving an amended Notice which included the information that was missing in the first Notice. In that regard, Ms. Lévesque noted the following:

As part of your second-level grievance response, the regional authorities (Ontario) requested that you be re-served your involuntary transfer from Warkworth Institution to Kingston Penitentiary.

We confirmed that an Assessment for Decision in this regard was completed on August 17, 2004. We also confirmed that the Unit Management Board reviewed your case again on August 20, 2004.

On the same day, Warden Kelly approved your transfer to Kingston Penitentiary and indicated that he had reviewed the Notice of Involuntary Transfer and observed that you were advised of your right to retain counsel and your right to submit a rebuttal to the Involuntary Transfer.

We confirmed this information. We also noted that you have not submitted a rebuttal to this transfer and that you refused to accept a copy of the Assessment for Decision of August 17, 2004, and that you refused to sign the said document.

(My emphasis.)

[19]       The decision also acknowledges the basis of the original decision to involuntarily transfer the applicant to Kingston, which was:

-           the applicant's security level had been increased from medium to maximum;

-           there were several sources of reliable information indicating that he was involved in the drug subculture (i.e., using, trafficking and dealing with money in relation to drugs);

-           his admission that his drug habit is "out of control";

-           his past record; and

-           reliable information indicating he had made threats of violence against other inmates while brandishing a "shank".

Issues

1.        Was the Commissioner's substantive decision to uphold the earlier decision to transfer the applicant to Kingston patently unreasonable?

2.        Did the Correctional Service of Canada breach the applicant's right to procedural fairness?

Analysis

Pertinent Legislation

[20]       The relevant provisions of the CCRA are as follows:

   4. The principles that shall guide the Service in achieving the purpose referred to in section 3 are

(a) that the protection of society be the paramount consideration in the corrections process;

(b) that the sentence be carried out having regard to all relevant available information, including the stated reasons and recommendations of the sentencing judge, other information from the trial or sentencing process, the release policies of, and any comments from, the National Parole Board, and information obtained from victims and offenders;

(c) that the Service enhance its effectiveness and openness through the timely exchange of relevant information with other components of the criminal justice system, and through communication about its correctional policies and programs to offenders, victims and the public;

(d) that the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders;

[. . .]

(g) that correctional decisions be made in a forthright and fair manner, with access by the offender to an effective grievance procedure;

   4. Le Service est guidé, dans l'exécution de ce mandat, par les principes qui suivent :

a) la protection de la société est le critère prépondérant lors de l'application du processus correctionnel;

b) l'exécution de la peine tient compte de toute information pertinente dont le Service dispose, notamment des motifs et recommandations donnés par le juge qui l'a prononcée, des renseignements obtenus au cours du procès ou dans la détermination de la peine ou fournis par les victimes et les délinquants, ainsi que des directives ou observations de la Commission nationale des libérations conditionnelles en ce qui touche la libération;

c) il accroît son efficacité et sa transparence par l'échange, au moment opportun, de renseignements utiles avec les autres éléments du système de justice pénale ainsi que par la communication de ses directives d'orientation générale et programmes correctionnels tant aux délinquants et aux victimes qu'au grand public;

d) les mesures nécessaires à la protection du public, des agents et des délinquants doivent être le moins restrictives possible;

[. . .]

g) ses décisions doivent être claires et équitables, les délinquants ayant accès à des mécanismes efficaces de règlement de griefs;

   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 environ-ment; and

(iii) a compatible linguistic environ-ment; and

(c) the availability of appropriate programs and services and the person's willingness to participate in those programs.

   28. Le Service doit s'assurer, dans la mesure du possible, que le pénitencier dans lequel est incarcéré le détenu constitue le milieu le moins restrictif possible, compte tenu des éléments suivants :

a) le degré de garde et de surveillance nécessaire à la sécurité du public, à celle du pénitencier, des personnes qui s'y trouvent et du détenu;

b) la facilité d'accès à la collectivité à laquelle il appartient, à sa famille et à un milieu culturel et linguistique compatible;

c) l'existence de programmes et services qui lui conviennent et sa volonté d'y participer.

   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.

   90. There shall be a procedure for fairly and expeditiously resolving offenders' grievances on matters within the jurisdiction of the Commissioner, and the procedure shall operate in accordance with the regulations made under paragraph 96(u).

   29. Le commissaire peut autoriser le transfèrement d'une personne condamnée ou transférée au pénitencier, soit à un autre pénitencier, conformément aux règlements pris en vertu de l'alinéa 96d), mais sous réserve de l'article 28, soit à un établissement correctionnel provincial ou un hôpital dans le cadre d'un accord conclu au titre du paragraphe 16(1), conformément aux règlements applicables.

   30. (1) Le Service assigne une cote de sécurité selon les catégories dites maximale, moyenne et minimale à chaque détenu conformément aux règlements d'application de l'alinéa 96z.6).

   (2) Le Service doit donner, par écrit, à chaque détenu les motifs à l'appui de l'assignation d'une cote de sécurité ou du changement de celle-ci.

   90. Est établie, conformément aux règlements d'application de l'alinéa 96u), une procédure de règlement juste et expéditif des griefs des délinquants sur des questions relevant du commissaire.

Preliminary Matter

[21]       The applicant submits that the Affidavit of Brian Trainor is irrelevant to this application as Mr. Trainor was not involved in the decision to transfer the applicant to Kingston.

[22]       To the extent that this affidavit refers to evidence which was not before those involved in the decision to transfer the applicant to Kingston, it will not be used by this Court with regard to the judicial review at hand.

Substantive Decision

[23]       The substantive decision to transfer an inmate or increase his security classification involves a question of fact as to the applicant's security risk and appropriate Penitentiary placement, and therefore is subject to the patently unreasonable standard (Sweet v. Attorney General, 2005 FCA 51, [2005] F.C.J. No. 216 (C.A.) (QL), at paragraphs 14 and 17 citing with approval the principles established in Tehrankari v. Correctional Service of Canada (2000), 188 F.T.R. 206 at paragraph 44).

[24]       Ordinarily, the courts are reluctant to interfere with the penitentiary authorities' administrative decisions to transfer inmates from one institution or security setting to another. "So long as those administrative decisions are not demonstrably unfair, they ought properly to be left to those who have the heavy responsibility of preserving good order and discipline among the prison population" (Re Hay and National Parole Board et al., 21 C.C.C. (3d) 408 at 415).

[25]       The applicant contests a substantive element of the decision in submitting that the allegations against him concerning drug involvement and violence cannot be viewed as credible since the prison authorities were initially content to maintain his medium-security status.

[26]       I do not find that it was patently unreasonable for the Commissioner at the third level of the grievance to uphold the factual findings of the decision-makers below. There was much evidence which suggested that the applicant had been involved with drugs and violence, and the decision-makers below were entitled to make these factual findings.

Procedural Fairness

[27]       The question whether a breach of the duty of fairness has been committed is to be reviewed against a standard of correctness (Coscia v. Attorney General, 2005 FCA 132, [2005] F.C.J. No. 607 (C.A.) (QL), at paragraph 33).

[28]       The applicant submits that neither the decision to transfer the applicant to Kingston nor the decision to re-serve him after his second-level grievance was upheld were forthright nor fair as is required by paragraph 4(g) of the CCRA.

[29]       The applicant submits that to increase his security classification merely because the applicant requested to be released from segregation is unfair and arbitrary as no new information was generated against the applicant subsequent to October 30, 2003.

[30]       Though no new information was generated subsequent to October 30, 2003, there was significant information regarding drug involvement and violence upon which the original decision to transfer the applicant was made. Since the decision to increase an applicant's security level and transfer him to a more suitable institution was based upon a reasonable belief in the administrative need for such a transfer, the detention cannot be considered arbitrary.

[31]       The applicant asserts that he had a right to know the case against him, and that as he was not provided with adequate information in the initial Notice of Involuntary Transfer, he was denied procedural fairness.

[32]       It is true that as the transfer of an inmate from an institution with a lower security level to one with a higher security level constitutes a punishment (Collin v. Lussier, [1993] 1 F.C. 218 at 229), it was imperative that he be provided sufficient information to know the case against him. It is sufficient that he be provided with a reasonably detailed summary of the reasons for transfer and the substance of what the authorities have been told which caused the decision to be made (Gaudet v. Marchand, [1994] A.Q. No. 375 (C.A.) (QL)).

[33]       It is also true that the second level grievance determined that the applicant had not been provided with all of the information that he was required to have been provided under the Regulations, section 13.

[34]       It is my opinion, however, that the applicant is incorrect in the assertion that he was denied procedural fairness. The applicant was provided with the specific details when he was re-served with the Notice of Transfer and Assessment for Decision in August 2004, and he was subsequently advised of his right to retain counsel and of his right to submit a rebuttal to this re-served notice of his involuntary transfer to Kingston. The applicant was therefore given the opportunity to make meaningful representations in response to the proposed decision to transfer him to Kingston.

[35]       The applicant further submits that once his second level grievance was upheld, fundamental justice demanded that he be returned to Warkworth, and that to permit the authorities to merely amend the Notice of Involuntary Transfer and re-serve the applicant is to deprive the grievance process of any meaning at all in the context of an involuntary transfer.

[36]       As explained above, however, it is my opinion that the applicant did not suffer a deprivation of fundamental justice. Therefore, no remedy is required. The grievance process is a matter completely separate from fundamental justice, and I find nothing unjust with result of the process being that the applicant was re-served with an amended Notice of Involuntary Transfer which provided him with the information to which he was entitled under the CCRA.

[37]       Even if it were found that there was a breach of fundamental justice in this situation, an inmate's right to liberty is substantially reduced and, in fact, must be weighed against the needs of Institutional safety and security (see, for example, Cunningham v. Canada, [1993] 2 S.C.R. 143 at 151-154).

[38]       As stated in [1980] 1 S.C.R. 602">Martineau v. Matsqui Disciplinary Board, [1980] 1 S.C.R. 602, at page 630:

. . . It should be emphasized that it is not every breach of prison rules of procedure which will bring intervention by the courts. . . . The question is not whether there has been a breach of the prison rules, but whether there has been a breach of the duty to act fairly in all the circumstances. The rules are of some importance in determining this latter question, as an indication of the views of prison authorities as to the degree of procedural protection to be extended to inmates.

[39]       The applicant highlights that a stated principle of the CCRA is the "timely exchange of relevant information" and that the Commissioner's Directive 081 ("Offender Complaints and Grievances") provides CSC with a time-limit of 25 working days from receipt of a grievance within which to respond. The applicant does not assert that the delay in itself is a denial of fundamental justice, but that in these circumstances, where it took seven months to respond to the applicant's grievance, that to merely re-serve him is to provide no remedy at all and is therefore unfair. However, as stated above, there was no breach of fundamental justice in this situation.

Charter Arguments

[40]       The applicant's section 7 right to life, liberty and security of the person, while engaged by a transfer to a higher security level, was not breached in that he received all of the procedural fairness/fundamental justice required to substantiate the transfer. Additionally, the fact that the applicant disagreed with the information upon which the transfer was based does not and cannot equate to a breach of natural justice.

[41]       As the Commissioner's decision to increase the applicant's security level and transfer him to a more suitable institution is based upon a reasonable belief in the administrative need for such a transfer, there is no arbitrary detention. Consequently, section 9 of the Charter is not engaged.

Conclusion

[42]       I do not find that the Commissioner's decision to uphold the earlier decision to transfer the applicant to Kingston was patently unreasonable. Also, I do not find that the applicant's right to procedural fairness was breached. Therefore, the application for judicial review is dismissed.

       JUDGE

OTTAWA, ONTARIO

December 21, 2005

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       T-138-05

STYLE OF CAUSE:                                      KURT HIEBERT v. ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                  Ottawa, Ontario

DATE OF HEARING:                                    November 29, 2005

REASONS FOR ORDER:                            The Honourable Mr. Justice Pinard

DATED:                                                          December 21, 2005

APPEARANCES:

John Dillon                                                      FOR THE APPLICANT

Jeff Anderson                                                             FOR THE RESPONDENT

SOLICITORS OF RECORD:

John Dillon                                                      FOR THE APPLICANT

Barrister & Solicitor

Kingston, Ontario

John H. Sims, Q.C.                                        FOR THE RESPONDENT

Deputy Attorney General of Canada

                                                                                                                                Date: 20051221

                                                                                                                              Docket: T-138-05

Ottawa, Ontario, this 21^st day of December 2005

PRESENT: THE HONOURABLE MR. JUSTICE PINARD

BETWEEN:

                                                               KURT HIEBERT

                                                                                                                                          Applicant

                                                                        - and -

                                            ATTORNEY GENERAL OF CANADA

                                                                                                                                     Respondent

                                                                       ORDER

The application for judicial review is dismissed, with costs.

       JUDGE