Patterson v. Gascon, 2004 FC 972

                                                                                                                                     Date: 20040708

                                                                                                                                   Docket: T-820-04

                                                                                                                            Citation: 2004 FC 972

Ottawa, Ontario, Thursday, this 8^th day of July 2004

PRESENT:      MADAM PROTHONOTARY MIREILLE TABIB

BETWEEN:

                                            GARY WAYNE GABRIEL PATTERSON

Applicant

- and -

THERESE GASCON, WARDEN OF BATH INSTITUTION

and CORRECTIONAL SERVICES OF CANADA

                                                                                                                                       Respondents

                                              REASONS FOR ORDER AND ORDER

TABIB P.

[1]                In the context of a notice of application for a writ of prohibition against the Respondents, I am seized of a request to rule on the Respondent Correctional Services of Canada's ("CSC") objections to the Applicant's request under Rule 317 of the Federal Court Rules, 1998.

[2]                By his application, the Applicant seeks a writ of prohibition precluding the Respondent from:

"i)    refusing to prepare an offender for release back into the community on the basis that the offender does not admit guilt and/or take responsibility for either alleged, acquitted or convicted offences; and

ii)    refusing to assist the successful reintegration of an offender into the community as a law abiding citizen on the basis that the offender does not admit guilt and/or take responsibility for either alleged, acquitted or convicted offences; and

iii)    relying on an offender remaining adamant about his innocence as a legitimate basis for decision-making on either entitlements or privileges set out in the CCRA;"

[3]                In essence, the Applicant alleges that the Respondent engages in a practice of imposing illegitimate conditions, or taking improper consideration of certain matters in taking decisions as to the administration of offenders' sentences. His application seeks to prohibit the Respondent from engaging in this practice in respect of any further decisions as to offenders' release, entitlements or privileges.

[4]                As part of his notice of application, the Applicant requests, pursuant to Rule 317, the Respondent Correctional Service of Canada to send a certified copy of the following material:

" a)     Copy of Applicant's Offender Security Level Decision Sheet, Decision #25 signed March 29, 2004 by Warden Therese Gascon.

b)     Copy of Applicant's Assessment for Decision on Institutional Voluntary Transfer, signed January 20, 2004 by Parole Officer Susanne Kellermann and Unit Manager Greg Ewing.

c)     Copy of Applicant's Memorandum to Unit Manager Scott Edwards dated February 24, 2004, that requested correction of inaccurate information contained in the Assessment for Decision on Institutional Voluntary Transfer signed January 20, 2004.

d)     Copies of every single one of the Applicant's grievances and Respondent's replies thereto, from each and every level of the grievance process, since the Applicant's date of incarceration.

e)     CSC and NPB statistics on both Recidivism and Parole Revocation rates from 1995 to the present."

[5]                Rule 317(1) reads as follows:

[6]                The Respondent's main ground for objection to the Applicant's request is the inapplicability of Rule 317 to any case where the application is not for judicial review of one particular decision of a tribunal. Here, without admitting that judicial review proceedings are appropriate in respect of the alleged practice of the Respondent, the Respondent argues that Rule 317 applies only to material in possession of a tribunal "whose order is the subject matter of the application", such that it is inapplicable where there is no order under review, but only a practice. Subsidiarily, the Respondent contends that the material sought is not relevant to the application, and in any event, is in the possession of the Applicant.

[7]                In response, the Applicant has filed an affidavit stating that while he may previously have had possession or access to the requested documents, they are not or no longer in his possession. He also asserts that the documents requested are relevant, and indeed necessary, to establishing the very existence of the alleged practice under review. As to the scope of Rule 317, the Applicant argues that Rule 317, rather than being a mechanism specifically tailored to judicial review of discrete orders or decisions, provides for a general mode of production of documents in any judicial review proceeding, the exercise of which is conditional only upon the following criteria being met:

(a) the request is addressed to a tribunal as defined in section 2 of the Federal Courts Act;

(b) that the material be relevant to the subject of the application;

(c) that the material be in relation to an "order" of a tribunal, as defined in Rule 2;

(d) that the material not be in possession of the Applicant.

[8]                The Applicant's interpretation of Rule 317, it can be noted, reprises the essential words of Rule 317, but in quite different relation to each other as the actual text of Rule 317 plainly suggests. Thus, the notions of tribunal and order are seen in isolation from each other and from the application, the order referred to need no longer to be the subject of the application and the material's relevance is no longer to the application itself but to its subject-matter.

[9]                This widening of Rule 317's interpretation, it is argued, reflects the "spirit" of Rule 317, as a means of facilitating the production of material held by tribunals so that a full and complete record be placed before the Court.

[10]            With respect, this Court has consistently held that applications for judicial review are meant to be summary in nature, such that disclosure and discovery are necessarily curtailed, and that Rule 317 is not intended to provide or facilitate discovery of all documents which may be in a tribunal's possession, however relevant to the underlying dispute. (See for example Canada (Attorney General v. Canada (Information Commissioner), [1998] 1 F.C. 337 and Canadian Arctic Resources Committee Inc. v. Diavik Diamond Mines Inc. (2000), 183 F.T.R. 267). The interpretation of Rule 317 urged by the Applicant is therefore neither reasonable in view of the clear wording of Rule 317 nor consistent with the spirit and intent of the Rules.

[11]            Because a tribunal's obligation to provide certified copies of materials in its possession arises only, under Rule 317, where one of its own orders is the subject of the judicial review application, Rule 317 is only applicable in this matter if the practice, which is the subject matter of this application, is assimilated to an "order" as contemplated by Rule 317. There can be no production under Rule 317 unless an order of the tribunal exists and is under review (Eli Lilly and Co. v. Nu-Pharm Inc. (C.A.), [1997] 1 F.C. 3).

[12]            It appears, from the Federal Court of Appeal's decision in Krause v. Canada (C.A.), [1999] 2. F.C. 476, that a practice or policy, while not a "decision or order" within the meaning of the Federal Courts Act or its rules of practice, may be the subject of judicial review proceedings; that a practice or policy may stem from an identifiable decision, which can itself be the subject of judicial review; and that despite the reviewability of an initial decision instituting the practice or policy, the practice itself can remain subject to judicial review long after the time where the initial decision ceases to be reviewable. By extension, and as was found in Sweet v. Canada, [1999] F.C.J. 1539 (F.C.A.), the policy or practice might remain subject to judicial review even where it is implemented in a specific decision or order which could individually be review.

[13]            Consequently, it is clear that a policy or practice is not an "order" of a tribunal, so as to trigger the application of Rule 317.

[14]            The material requested here are all the applications, requests and grievances made by the Applicant himself to the Respondent, the Respondent's actual decisions thereon and certain statistics on recidivism and parole revocation. The Applicant submits that these documents are relevant because they will serve to establish the existence of the policy complained of, and the Respondent's awareness of this practice when it rendered each decision.

[15]            As stated above, the individual decisions in respect of the Applicant are not the subject of this judicial review application. While the Applicant correctly notes that, with the exception of the statistical data, he would be entitled to production of all documents requested if his request had been made in the context of a judicial review of each decision, the fact is that this judicial review proceeding concerns the alleged practice, not the individual decisions.

[16]            While the decisions requested might be relevant to establishing the existence of the alleged practice, relevance, in and of itself, does not trigger the application of Rule 317.

[17]            In conclusion, while I am satisfied that the documents requested, with the exception of the statistical data, are sufficiently well-identified and focussed, that they might be relevant to establishing a practice, and that they are not currently in the possession of the Applicant, I find that Rule 317 does not apply to compel production of material in the possession of a tribunal where the subject matter of the judicial review is a practice and the material merely evidences the impugned practice, but did not form the basis of the tribunal's decision to adopt the said practice.

                                                                         ORDER

IT IS ORDERED THAT:

The objection of the Respondent to the Applicant's request under Rule 317 is sustained.

                                                                                                                                         "Mireille Tabib"           

                                                                                                                                             Prothonotary              

                                                                FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-820-04

STYLE OF CAUSE:                          Gary Wayne Gabriel Patterson

v. Therese Gascon, Warden of Bath Institution and Correctional Services of Canada

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:         Madam Prothonotary Mireille Tabib

DATED:                                             July 8, 2004

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: