Date: 20000413
Docket: T-1662-98
BETWEEN:
ALLEN TEHRANKARI
Applicant
- and -
CORRECTIONAL SERVICE OF CANADA
Respondent
REASONS FOR ORDER
LEMIEUX J.:
A. BACKGROUND
[1] The central questions in this judicial review application, pursuant to section 18.1 of the Federal Court Act, by Allen Tehrankari (the "applicant"), an inmate in Kingston Penitentiary, a maximum security prison operated by the Correction Service of Canada ("CSC" or "Service"), is the scope of the obligation contained in section 24 of the Corrections and Conditional Release Act, 40-41 Elizabeth II, C. 20, assented to on June 18, 1992 (the "Act"), as it relates to the CSC and in what circumstances can this Court intervene when a request for correction is refused. Section 24 of the Act reads:
| 24. (1) The Service shall take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible.
(2) Where an offender who has been given access to information by the Service pursuant to subsection 23(2) believes that there is an error or omission therein,
| (a) the offender may request the Service to correct that information; and |
| (b ) where the request is refused, the Service shall attach to the information a notation indicating that the offender has requested a correction and setting out the correction requested. |
[emphasis mine]
|
24. (1) Le Service est tenu de veiller, dans la mesure du possible, à ce que les renseignements qu'il utilise concernant les délinquants soient à jour, exacts et complets.
(2) Le délinquant qui croit que les renseignements auxquels il a eu accès en vertu du paragraphe 23(2) sont erronés ou incomplets peut demander que le Service en effectue la correction; lorsque la demande est refusée, le Service doit faire mention des corrections qui ont été demandées mais non effectuées.
|
[2] The decision sought to be reviewed was made by the Commissioner of the CSC on July 23, 1998 at the final grievance level prescribed by section 90 of the Act and sections 74 to 80 of the Corrections and Conditional Release Regulations, SOR/92-620.
[3] The applicant, when he first filed his complaint on July 30, 1997, focussed on the March 12, 1996 altercation with another inmate where reports prepared by penitentiary case management officials ("CMO") say he assaulted another inmate and references in those reports concerning "recent attempted escapes" and "escapes". The applicant says this information is false.
B. THE FACTS
[4] The applicant was born in Iran in 1968 and in 1985 was conscripted into the Iranian Army, suffered injuries and was imprisoned and tortured for refusing to return to the fighting in the Iran/Iraq war. He escaped from prison, fled to Turkey and came to Canada in 1988. The record does not reveal under what status he was admitted in Canada.
[5] On March 11, 1992, the applicant was arrested in Canada and convicted of robbery, use of a firearm during the commission of an offence, use of a firearm during flight, aggravated assault and forceable confinement. During the robbery, he attempted to escape capture from the police. He was sentenced on September 21, 1992 to serve 12 years. Pending his trial and sentence, he was placed in the Ottawa-Carleton Detention Centre until September 30, 1992, and then transferred to the Millhaven Assessment Unit and to Kingston Penitentiary.
[6] In the penitentiary documentation, a reference is made to a July 22, 1993 deportation order issued against the applicant to be executed after completion of his sentence and to the dismissal of appeals in 1995 from that deportation order.
[7] By March 1995, the applicant had obtained the classification of a medium security offender. He was transferred on October 12, 1995 from Kingston Penitentiary to Warkworth Institution, a medium security prison.
[8] His status was changed from moderate to maximum when he was in Warkworth (progress report dated November 24, 1995). On December 1, 1995, his CMO at Warkworth, supported by a case management supervisor, recommended his involuntary transfer back to Kingston Penitentiary "it having been determined that he probably should not have been transferred to Warkworth in the first place and on the basis of information received that he may be contemplating or planning to escape" [my emphasis] (progress summary report, December 1, 1995, applicant's record, page 74). He was involuntarily transferred to Kingston Penitentiary in January 1996.
[9] What triggered the applicant's concern was the following statement contained in his Offender Security Level Referral Decision Sheet ("OSLRDS") of May 1997 (A.R. page 86) which reads:
| CMT recommends maintenance of Maximum Security ruling with the following attributes identified: Institutional Adjustment Concerns - High, noting the assault on another inmate this past year, ongoing preventative security concerns re escape potential and ongoing concerns about emotional stability; Escape Risk High, noting past escape from Iran (self reported) and alleged attempted escapes plus deportation status which, in his view, is unthinkable as he escaped from Iran; Public Safety concerns - High, noting the violence of the index offences, use of firearms, plus no easy determination that there has been meaningful intervention to reduce the risk level in this case. UMB recommends maintain maximum security. [emphasis mine] |
[10] The applicant's record contains other reports prepared by penitentiary officials including: (1) the OSLRDS referred to above dealing with the applicant's security level; (2) progress summary reports and recommendations which deal with a variety of matters such as changes in the applicant's security classification from moderate to maximum (report dated November 24, 1995; applicant's record, p. 77), recommendations for involuntary transfer from Warkworth Institution to Kingston Penitentiary (report dated December 1, 1995; applicant's record, p. 74) and annual security classification reviews (report dated August 5, 1998; applicant's record p. 91); (3) Criminal Profile Reports assessing the applicant's behavioral pattern (applicant's record pages 83 and 89); and (4) the statements made by the prison guards who witnessed the March 12, 1996 altercation in the prison yard at Kingston Penitentiary (applicant's record, pages 54 to 66).
[11] As to the March 12th incident, the applicant says the information which concludes he assaulted the other inmate is wrong; it was the other inmate who assaulted him. He adds he was not charged with assault and was found not guilty after a hearing, by the Discipline Court at Kingston Penitentiary, when none of the prison guards who had submitted reports appeared as witnesses. The applicant says he acted only in self defence. He is concerned with the use of that information and says it is being used in a manner prejudicial to him. He cites in his original complaint the belief held by his CMO the applicant had gone beyond self defence.
[12] The applicant argues the mention of "attempted escapes and recent or attempted escapes" in his files is also wrong.
[13] Specifically, the applicant points to a December 1, 1995 report recommending the applicant's involuntary transfer from Warkworth Institution back to Kingston Penitentiary. This report is set out at page 74 of the applicant's application record where he is reported to have successfully escaped from prison in Iran and is reported to have attempted escape from the Ottawa-Carleton Regional Detention Centre ("OCRDC") after his 1992 conviction for robbery. This 1995 report refers to the 1992 incident at the OCRDC reporting he "was caught with hacksaw blades and was accused of trying to escape by cutting through the window bars". He complains about a third allegation, based on "reliable sources", he was planning to escape from Warkworth Institution.
[14] He, once again, wants the record corrected. He denies ever having attempted to escape from the OCRDC in 1992. He was never charged with such attempt and the allegation was never proven. He admits escaping from prison in Iran but says he did so because he was being tortured. In so far as Warkworth is concerned, he says his planning an escape is a complete fabrication; he was never charged nor was it proven.
[15] Again, he is concerned with the prejudicial use of this information. This inaccurate information, he says, was the basis for his involuntary transfer back to Kingston Penitentiary.
C. THE COMPLAINT AND GRIEVANCE DECISIONS
(1) Dismissal of complaint
[16] The applicant's complaint of July 30, 1997 was dismissed by CMO Wheeler on October 16, 1997 in these terms:
| This complaint is denied in that there is no foundation to Mr. Tehrankari's request. It is documented that Mr. Tehrankari escaped from Iran, that he attempted during the commission of the indexed offence to evade capture from police, and there is ample reliable preventive security information implicating him in an attempt to escape from Warkworth Institution. Second, the information accusing Mr. Tehrankari of assault is sound. Officer observation reports clearly observe him assaulting .... Accordingly, no correction can be made because they are not justified or supported by the evidence. |
(2) The first level grievance
[17] On October 23, 1997, the applicant filed a first-level grievance. The applicant argued that Mr. Wheeler's reply was baseless because there is no evidence he assaulted another convict and no evidence to support the allegation of multiple escapes and attempted escapes, adding once again he was never charged nor found guilty of these incidents.
[18] On October 30, 1997, his first level grievance was upheld in part in the following terms:
| Your complaint and grievance pertain to the correction of information on your case management files. It has been explained to you at the complaint stage by Mr. Wheeler that the corrections you are requesting are not justified. The Corrections and Conditional Release Act, section 24(2)(a) and (b), specifies the method for correcting information on your file. The Coordinator Case Management advises that your concerns about inaccuracies on your file have been noted and placed on your case management file in accordance with the action section of the Corrections and Conditional Release Act. Your grievance is upheld in part in that your correspondence for file corrections has been noted and placed on your case management file. [emphasis mine] |
(3) The recommendation of the Citizen's Advisory Committee
[19] On November 5, 1997, the applicant requested an outside review by the Citizens' Advisory Committee and focussed on that part of the first level grievance where it was mentioned Mr. Wheeler had found the corrections he was requesting were not justified. The applicant wrote:
| I am totally in disagreement in that my request for correction of wrong information is" in this particular case" unjustified. Section 24(1) of the CCRA (Conditional and Correctional Release Act) states: "The Service shall take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible." |
| Not only there has not been adequate effort, by the CSC staff, to establish the accuracy of information in my file(s), but also the subject matter of the information has been greatly exaggerated and misleading. Given that the alleged "reliable information" from the Warkworth IPSO in my file(s) is purely fabricated, and there is absolutely no foundation in regard to the OCRDC allegation against me " as it is a pure speculation " Officer Wheeler's answer to my initial Complaint is not justified. |
[20] He argues that while his request for file correction has been noted this provides no remedy in terms of correcting wrong information.
[21] On January 6, 1998, the Citizen's Advisory Committee (CAC) reported to the Warden at Kingston Penitentiary as follows:
| This Committee also notes that the offender was found not guilty of assaulting another offender .... The Committee recommends that this assault information be removed or purged from the offender's file. |
| The Committee also recommends that Mr. B. Wheeler, CCM meet with Mr. Tehrankari to provide some evidence and explanation with respect to the reliability of the attempt escape information from Warkworth Institution. |
(4) The Warden's decision on the CAC recommendation
[22] On March 25, 1998, the Warden at Kingston Penitentiary reviewed the applicant's comments and the CAC recommendation. He concluded:
| I have reviewed your comments as well as those of the Outside Review Committee concerning allegations (ineligible) in your case management files. Your concerns related to the escape information has been discussed with you in an interview with the Security analyst on 98.02.20 (see attached summary). No further action is required. Your grievance is denied on this point. Your grievance related to the assault allegation was investigated. Staff observation reports related the series of events witnessed by them at the time of the incident. The institutional offence report was dismissed for a technical reason of failure of a witness to appear for court. You provided your explanation of this incident and this has been placed on your file. We are unable to further evaluate your level of involvement in this incident with the information available to us. No further action. |
[23] The Warden's decision refers to the security analyst's summary given to the applicant. That summary reads:
| Inmate TEHRANKARI was interviewed by the Security Analyst at 1350 hours, 20 February 1998. |
| Inmate TEHRANKARI was informed that the information referencing "escape" on his preventive security file (SIR dated 95/12/29, Warkworth Institution) would not be removed. He was provided with a gist of the information, i.e. that the report makes reference to TEHRANKARI being overheard saying to another inmate that there are several ways someone could escape from WI and it would be easy for him. There is no information contained in this particular report to indicate that he was planning to or attempted to escape. |
| Inmate TEHRANKARI would like a statement in his response to make reference to the fact that he presents no current preventive security concerns, which was verified by the IPSO, B. Isaacs in discussion with TEHRANKARI's CMO J. Corrigal who is currently drafting a proposal for transfer to medium security (Bath). [emphasis mine] |
(5) Second level grievance to the Commissioner of Ontario prisons
[24] The applicant's original intent in launching his grievance was to have certain information which he believed inaccurate removed from his files. After receiving the Warden's decision he decided to refute it point by point at this level. He challenged the Warden's conclusion that the charge he faced for the March 12, 1996 incident was dismissed for technical reasons for failure of a witness; he pointed out there were other prison guards who witnessed the incident and he asked for a thorough explanation why the prison guards missed the discipline court hearing date and why the prison guard observation reports were not given to the O.P.P. who investigated the matter.
[25] As to the planning escape allegation from Warkworth, the applicant raised a new issue concerning his administrative segregation (a gap between his segregation date and his Security Information Report ("SIR") which came 34 days later). He also requested details of who provided the information and what information led the CSC to conclude he was conspiring to escape from Warkworth.
[26] On April 12, 1998, the Deputy Commissioner for the Ontario Region dismissed the applicant's second level grievance and did so by addressing each of the issues raised by the applicant:
| (a) On the point of why the witnessing officers were absent from the institutional disciplinary hearing, the Deputy Commissioner said "[A]n officer's absence from work is information not normally shared. It may be that they were not scheduled to work or they were away for personal reasons". |
| (b) On the point of providing the O.P.P. with penitentiary officer observation reports, the Deputy Commissioner said "the institutional authorities cooperated with that investigation. Normally cooperation with such an investigation would include providing all pertinent information". |
| (c) On the point why the observation reports were not presented to the disciplinary hearing, the Deputy Commissioner said "[A]s there were witnesses unable to attend the hearing and the hearing was cut short, there would not have been any opportunity for all information to be presented as would be the case in a full hearing". |
| (d) The Deputy Commissioner denied the applicant's request for evidence about his alleged planned escape from Warkworth because of section 27(3) of the Act, i.e. information may be withheld if the release of that information may jeopardize the safety of any person, the security of the penitentiary or the conduct of a lawful investigation. The Deputy Commissioner also said the information could not be removed from his preventative security file but that his opposition to its inclusion had been noted per section 24 of the Act. |
(6) The third level decision
[27] The applicant's arguments on third level appeal were similar to the ones previously put forward and his appeal was dismissed by the Commissioner on July 23, 1998 in these terms:
| 1. The issue of availability of witnesses, or the provision of documents is not relevant to your case. I acknowledge that you were found "not guilty". I should point out, however, that the information contained in the preventive security reports is still relevant for administrative decision-making even though there was insufficient evidence to register a conviction in disciplinary court. |
| 2. You were notified of the reasons for your placement in segregation. Segregation reviews were conducted at the appropriate intervals. I regret the delay in preparing the Security Information Report, however, I find no evidence to indicate that you suffered any hardship as a result of this delay. |
| 3. You were found "not guilty" and no sanction was imposed. The Service exercised the option of increasing your security level based on a number of factors including your history of violent offences, your record of escape, and an evaluation of information identifying you as an escape risk. |
| 4. You have been provided with the gist of the information contained in the SIR. The release of any further information might jeopardize the safety of other individuals. In accordance with Section 27(3) of the Corrections and Conditional Release Act, no further details will be provided to you. |
| 5. The Preventive Security information is considered valid and will remain on your file. Please be assured that your opposition to its inclusion in your file has been recorded, as required in Section 24 of the CCRA. |
| I find that the responses that were provided to you at the previous levels were fair and thorough. Your grievance is denied. |
D. ANALYSIS
(1) Preliminary Observations
(a) The relief sought
[28] This proceeding as well as the grievances below were handled by the applicant personally, without legal counsel's assistance. New and different issues arose throughout the grievance proceedings which changed the course of the applicant's original purpose to obtain file corrections on information in the CSC files he believed contained errors and omissions. For example, at the level two grievance stage, the applicant sought the identity of the person who provided information that led his CMO to conclude he was planning to escape from Warkworth. Another example is his second level grievance demand for an explanation why the prison guards missed the Discipline Court hearing and why the guard observation reports were not given to the O.P.P.
[29] This sidetracking of the applicant's original purpose is also evidenced by the relief the applicant seeks in this judicial review application which are:
| (1) an order of mandamus that the CSC provide the information which led to his transfer back to Kingston; |
| (2) an order for mandamus that CSC accept the responsibility for being negligent in respect of providing reports about the March 12, 1996 assault and yet having no witnesses at the Disciplinary Hearing. |
| (3) an order for mandamus that CSC was arbitrary in deciding to raise his security level. |
[30] The applicant could not, in this judicial review proceeding, challenge decisions which relate back to 1995 and 1996 and, in particular, decisions involving involuntary transfer, the raising of his security level and administrative segregation which could have been challenged at the appropriate time where he would have been entitled, subject to some exceptions, to the information which CSC was relying on to make those decisions (see sections 28 to 45 of the Act). The applicant cannot, through a review from the Commissioner's decision in this matter, make a collateral attack on past decisions which he had an opportunity to challenge directly at the appropriate time subject to the time limits prescribed under section 18 of the Federal Court Act.
[31] However, at the hearing, the applicant refocussed the issue properly on the interpretation of section 24 of the Act and counsel for the respondent joined issue on this point. In the circumstances, I will proceed on a limited basis and limit any remedies to the application of the section.
(2) The prison context
[32] Any remedy flowing from this proceeding must take into account the prison context is a special one. For example, in Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, Le Dain J. pointed out the minimal or essential requirements of procedural fairness in the circumstances must be "fully compatible with the concern that the process of prison administration, because of its special nature and exigencies, should not be unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedural requirements. There is nothing to suggest that the requirement of notice and hearing by the Director, where he does not intend to act in accordance with a recommendation by the Segregation Review Board for the release of an inmate from segregation, would impose an undue burden on prison administration or create a risk to security" (see page 660). My colleague Nadon J. in Cartier v. Canada (Attorney General), [1998] 165 F.T.R. 209 (F.C.T.D.) expressed the same caution about the special prison context when interpreting the scope of subsection 27(3) of the Act which provides for certain information not to be disclosed where the Commissioner has reasonable grounds to believe that disclosure of the information would jeopardize the safety of any person or the security of the penitentiary.
(3) Standard of Review
[33] A word needs to be said about the standard of review applicable in this case keeping in mind the type of decision made and the decision-maker (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. In Baker, supra, L'Heureux-Dubé J. pointed out it was held in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1988] 1 S.C.R. 982, a decision which related to the determination of a question of law in that case, (the interpretation of the exclusion provisions in section 2 of the Immigration Act as they relate to the definition of Convention refugee) made by the Immigration and Refugee Board, was subject to a standard of review of correctness but on other questions, the standard of review varied.
[34] In Baker, supra, the Supreme Court of Canada enumerated the four factors to be examined to assess the standard of review on these questions.
[35] The first factor to be examined is the presence or absence of a privative clause in the Act. There is no privative clause contained in the Act insulating the decisions of the Commissioner taken in the grievance process.
[36] The second factor is the expertise of the decision-maker. The decision-maker here is the Commissioner of the Correction Service or his or her delegate. There can be no doubt, that in matters related to prison administration, the Commissioner has expertise relative to the Courts which leads to substantial deference in decisions taken by the Commissioner in matters of internal prison management.
[37] The third factor is the purpose of the provision, in particular, and the Act as a whole. Parliament in sections 3 and 4 of the Act, has said what the purpose of the Federal Correction Service is and what are the applicable principles which shall guide it in achieving that purpose. Section 3 provides:
| 3. The purpose of the federal correction system is to contribute to the maintenance of the just, peaceful and safe society
| (a) carrying out sentences imposed by the Courts through the safe and humane custody and the supervision of offenders and |
| (b) 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. |
|
3. Le système correctionnel vise à contribuer au maintien d'une société juste, vivant en paix et en sécurité, d'une part, en assurant l'exécution des peines par des mesures de garde et de surveillance sécuritaires et humaines, et d'autre part, en aidant au moyen de programmes appropriés dans les pénitenciers ou dans la collectivité, à la réadaptation des délinquants et à leur réinsertion sociale à titre de citoyens respectueux des lois.
|
[38] In terms of the principles that guide the service, section 4 provides:
| 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, . . . 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; |
| (e) that offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence; |
| (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, . . . des renseignements obtenus au cours du procès ou dans la détermination de la peine ou fournis par les victimes et les ... |
| 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; |
| e) le délinquant continue à jouir des droits et privilèges reconnus à tout citoyen, sauf de ceux dont la suppression ou restriction est une conséquence nécessaire de la peine qui lui est infligée; |
| g) ses décisions doivent être claires et équitables, les délinquants ayant accès à des mécanismes efficaces de règlement de griefs; |
|
[39] The particular provision involved is section 24 which mandates the Service to take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up-to-date and complete as possible conditioned by a provision which says that where an offender believes there is an error or omission in the information, the offender may request the Service to correct that information and, if the request is refused, the Service must attach to the information a notation indicating the offender has requested a correction and setting out the correction requested.
[40] As I view it, section 24 of the Act is 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.
[41] The signal given by Parliament in section 24, in the form of a statutory duty imposed on the Service, is that the "information banks" reflected in various reports maintained about offenders should contain the best information possible: exact, correct information without relevant omissions and data not burdened by past stereotyping or archaisms related to the offender. In Parliament's view, the quality of the information prescribed by section 24 leads to better decisions about an offender's incarceration and, in this manner, leads to the achievement of the purposes of the Act. Section 24 of the Act, however, is not concerned with the inferences or assessments drawn by the Service from file information. Section 24 cannot be used to second guess decisions by the CSC provided the information base on which those conclusions are drawn comply with this provision. Section 24 deals with primary facts; this point will be expanded on later.
[42] The precise decision which section 24 gives rise to is the decision by the Service whether or not to rectify the record of an offender who believes the information about him/her is inaccurate. Such a decision, limited to primary facts, does not involve considerable choices by the CSC and turns on the application of proper legal principles and involves the rights and interests of an offender.
[43] The fourth factor is the nature of the problem in question especially whether it relates to the determination of law or facts. The decision whether to correct the record involves an appreciation of the facts in an offender's files but must be based on a correct interpretation of what the law requires.
[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.)
(4) Statutory Construction
(a) Principles
[45] I take as a point of departure in interpreting section 24 of the Act what Iacobucci J. said on behalf of the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 as to the principles of statutory interpretation at pages 40-41:
| Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: |
| Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. |
| I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act "shall be deemed to be remedial" and directs that every Act shall "receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit". |
| Although the Court of Appeal looked to the plain meaning of the specific provisions in question in the present case, with respect, I believe that the court did not pay sufficient attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized. I now turn to a discussion of these issues. |
(b) Ordinary meaning
[46] Subsection 24(1) creates a statutory duty on the CSC to take "all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible". The ordinary meaning of the words accurate, up to date and complete in both official languages are:
(i) accurate
| " exact or correct (New Shorter Oxford Dictionary ("Oxford")) |
| " confirming exactly to the fact; errorless (Canadian Dictionary ("CD")) |
(ii) complete
| " entire, full, total (Oxford ) |
| " entire, total absolute (CD ) |
| " full, entire; including every item or element of the thing spoken; without omissions or deference (Black's Law Dictionary ) |
(iii) up to date
| " right up to the present time, contemporary (Oxford ). |
(iv) exact
| " conforme à la règle ou à la vérité (Petit Larousse ) |
| " qui est entièrement conforme à la réalité, à la vérité, correct, juste, réel, véridique, vrai (Petit Robert ) |
(v) complet
| " sans rien qui manque; en totalité (Petit Larousse ) |
| " entier, total, auquel ne manque aucun des éléments qui doivent le constituer (Petit Robert ) |
(vi) à jour
| " en conformité avec le moment présent (Petit Larousse ) |
(c) Context
[47] Section 24 is contained in Part I of the Act dealing with the CSC; Part II of the Act concerns the National Parole Board and Part III concerns the Correctional Investigator. More specifically, section 24 resides in a series of sections of the Act headed "Information" the most relevant being: (1) section 23 which imposes a duty on the CSC to obtain certain information about an offender when that person is sentenced, committed or transferred to a penitentiary and I note the reference in this section to disclosure analogous to that contained in the Privacy Act; (2) section 25 which requires the CSC to give the National Parole Board, provincial governments, provincial parole boards, police and any body authorized by the CSC to supervise, all information under its control that is relevant to release decision-making or to the supervision or surveillance of offenders; (3) section 26 which deals with disclosure of information to victims; and (4) section 27 which speaks to information to be given to offenders. I reproduce sections 23 and 27 as most relevant to an appreciation of the context.
| 23. (1) When a person is sentenced, committed or transferred to penitentiary, the Service shall take all reasonable steps to obtain, as soon as is practicable,
| (a) relevant information about the offence; |
| (b) relevant information about the person's personal history, including the person's social, economic, criminal and young-offender history; |
| (c) any reasons and recommendations relating to the sentencing or committal that are given or made by |
| (i) the court that convicts, sentences or commits the person, and |
| (ii) any court that hears an appeal from the conviction, sentence or committal; |
| (d) any reports relevant to the conviction, sentence or committal that are submitted to a court mentioned in subparagraph (c)(i) or (ii); and |
| (e) any other information relevant to administering the sentence or committal, including existing information from the victim, the victim impact statement and the transcript of any comments made by the sentencing judge regarding parole eligibility. |
(2) Where access to the information obtained by the Service pursuant to subsection (1) is requested by the offender in writing, the offender shall be provided with access in the prescribed manner to such information as would be disclosed under the Privacy Act and the Access to Information Act.
(3) No provision in the Privacy Act or the Access to Information Act shall operate so as to limit or prevent the Service from obtaining any information referred to in paragraphs (1)(a) to (e).
27. (1) Where an offender is entitled by this Part or the regulations to make representations in relation to a decision to be taken by the Service about the offender, the person or body that is to take the decision shall, subject to subsection (3), give the offender, a reasonable period before the decision is to be taken, all the information to be considered in the taking of the decision or a summary of that information.
(2) Where an offender is entitled by this Part or the regulations to be given reasons for a decision taken by the Service about the offender, the person or body that takes the decision shall, subject to subsection (3), give the offender, forthwith after the decision is taken, all the information that was considered in the taking of the decision or a summary of that information.
(3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosure of information under subsection (1) or (2) would jeopardize
| (a ) the safety of any person, |
| (b ) the security of a penitentiary, or |
| (c ) the conduct of any lawful investigation, |
the Commissioner may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified in paragraph (a), (b) or (c).
(4) An offender who does not have an adequate understanding of at least one of Canada's official languages is entitled to the assistance of an interpreter
| (a) at any hearing provided for by this Part or the regulations; and |
| (b) for the purposes of understanding materials provided to the offender pursuant to this section. |
[emphasis mine]
|
23. (1) Le Service doit, dans les meilleurs délais après la condamnation ou le transfèrement d'une personne au pénitencier, prendre toutes mesures possibles pour obtenir_:
| a) les renseignements pertinents concernant l'infraction en cause; |
| b) les renseignements personnels pertinents, notamment les antécédents sociaux, économiques et criminels, y compris comme jeune contrevenant; |
| c) les motifs donnés par le tribunal ayant prononcé la condamnation, infligé la peine ou ordonné la détention " ou par le tribunal d'appel " en ce qui touche la peine ou la détention, ainsi que les recommandations afférentes en l'espèce; |
| d) les rapports remis au tribunal concernant la condamnation, la peine ou l'incarcération; |
| e) tous autres renseignements concernant l'exécution de la peine ou de la détention, notamment les renseignements obtenus de la victime, la déclaration de la victime quant aux conséquences de l'infraction et la transcription des observations du juge qui a prononcé la peine relativement à l'admissibilité à la libération conditionnelle. |
(2) Le délinquant qui demande par écrit que les renseignements visés au paragraphe (1) lui soient communiqués a accès, conformément au règlement, aux renseignements qui, en vertu de la Loi sur la protection des renseignements personnels et de la Loi sur l'accès à l'information, lui seraient communiqués.
(3) Aucune disposition de la Loi sur la protection des renseignements personnels ou de la Loi sur l'accès à l'information n'a pour effet d'empêcher ou de limiter l'obtention par le Service des renseignements visés aux alinéas (1)a) à e).
27. (1) Sous réserve du paragraphe (3), la personne ou l'organisme chargé de rendre, au nom du Service, une décision au sujet d'un délinquant doit, lorsque celui-ci a le droit en vertu de la présente partie ou des règlements de présenter des observations, lui communiquer, dans un délai raisonnable avant la prise de décision, tous les renseignements entrant en ligne de compte dans celle-ci, ou un sommaire de ceux-ci.
(2) Sous réserve du paragraphe (3), cette personne ou cet organisme doit, dès que sa décision est rendue, faire connaître au délinquant qui y a droit au titre de la présente partie ou des règlements les renseignements pris en compte dans la décision, ou un sommaire de ceux-ci.
(3) Sauf dans le cas des infractions disciplinaires, le commissaire peut autoriser, dans la mesure jugée strictement nécessaire toutefois, le refus de communiquer des renseignements au délinquant s'il a des motifs raisonnables de croire que cette communication mettrait en danger la sécurité d'une personne ou du pénitencier ou compromettrait la tenue d'une enquête licite.
(4) Le délinquant qui ne comprend de façon satisfaisante aucune des deux langues officielles du Canada a droit à l'assistance d'un interprète pour toute audition prévue à la présente partie ou par ses règlements d'application et pour la compréhension des documents qui lui sont communiqués en vertu du présent article.
.
|
[48] Section 28 to 45 of the Act provide a further context to the interpretation which must be given to section 24 of the Act which I summarize:
| (1) Sections 28 and 29 concern placement to and transfer between penitentiaries and establish the governing criteria. |
| (2) Section 30 requires the CSC to assign a security classification maximum, medium or minimum to each inmate and requires the CSC to give each inmate the reasons for doing so. |
| (3) Sections 31 to 36 authorize the head of a penitentiary to order an inmate to administrative segregation, establishes the grounds for doing so, requires a hearing and provides for representations by an inmate. |
| (4) Sections 38 to 45 cover matters of discipline, defines disciplinary offences, requires a hearing in some circumstances according to a prescribed procedure. |
(d) Purpose
[49] I have already set out in these reasons the purpose of the Act and section 24 in particular.
E. APPLICATION AND CONCLUSIONS OF ANALYSIS TO THIS CASE
| (1) Scope of section 24 of the Act |
[50] There are two separate components to section 24 of the Act. First, the legal obligation in subsection (1) concerning the accuracy, completeness and currency of any information about an offender the Service uses and the reasonableness of the steps taken to ensure this is so. Second, the provisions in subsection (2) where an offender believes certain information contains an error or omission and requests a correction which is refused.
[51] The purpose of subsection 24(1) seems clear. Parliament has said in plain words that reliance on erroneous and faulty information is contrary to proper prison administration, incarceration and rehabilitation. Counsel for the respondent focussed on the limitation in the subsection " the information must be used by the Service. If the information is simply on file and not used it has no consequence, he argues. This proposition finds support in a recent decision by my colleague Reed J. in Wright v. Canada (Attorney General), [1999] F.C.J. 1304. I note, however, the provision she was examining was not section 24 but section 26 dealing with disclosure to victims. This is not an access case and there can be no question here the information the applicant complains of is used by the Service; the Commissioner acknowledged so in his reasons at the third level grievance when he said "the information contained in the preventive security reports is still relevant for administrative decision-making...".
[52] Subsection 24(2) raises different issues because it is not any information about an offender which is subject to correction in the manner contemplated by the subsection. Subsection 24(2) only covers information which the offender has been given access to pursuant to subsection 23(2) which in turn relates back to information obtained by the Service under subsection 23(1). The structure of section 23 and 24 of the Act signal the type of information contemplated for correction. It is profile information from which the Service can use to predict an offender's likely behaviour. The Commissioner acknowledged this DNA type information as at the root of the Service exercising "the option of increasing your security level based on a number of your history of violent offences, your record of escape and an evaluation of information identifying you as an escape risk".
[53] This type of basic behavioral predictor type information has nothing to do with information the Service obtains on what an offender actually does or did inside the prison walls. Parliament, through other provisions of the Act, selected other methods of testing the accuracy of an offender's actions while incarcerated or otherwise. A review of sections 27 through 45 of the Act makes this evident. For example, in terms of disclosure, an opportunity is provided to make representations and discipline court hearings are mandated with appropriate limitations both statutory and at common law to reflect the realities of the prison context and to ensure discipline is applied in an expeditious and effective manner. (See R. v. Shubley, [1990] 1 S.C.R. 3; Cardinal v. Kent Institution, supra and Neil v. Canada (Correction Service, Regional Transfer Board), [1994] F.C.J. 86.
[54] I am satisfied that the type of information the applicant seeks correction of is of the nature and kind contemplated by subsection 24(2) of the Act and fits within the provisions of paragraph 23(1)(e) "any other information relevant to administering the sentence or committal" which must be read ejusdem generis with the previous paragraphs.
(2) Was the information accurate, complete and up-to-date?
(a) The March 12, 1996 incident
[55] The OSLRDS report said the applicant assaulted another inmate. He denies it. The applicant was charged and found not guilty. It matters little the prison guard witnesses did not show up. In the circumstances, it is not accurate to assert, as a fact, he assaulted the other inmate particularly when regard is had to the reports of the prison guards who witnessed the incident. At best, as the matter stands today, he was suspected of assaulting another inmate. The Citizens' Advisory Committee recommended that this assault information be removed from his file.
(b) Escapes and recent or attempted escapes
[56] The OSLRDS of May 1997 noted his escape risk as high: a past prison escape from Iran and alleged attempted prison escapes while in Ontario penitentiaries.
[57] I agree with the applicant, the reference to escape from Iran is without more misleading because it is not complete. The record shows he escaped from prison in Iran because he was tortured for not wanting to fight in the Iran/Iraq war.
[58] To assert as a fact as some file reports do, the applicant attempted to escape from OCRDC in 1992, was caught with hacksaw blades and was accused of trying to escape by cutting through the window bars is, on the evidence in the record, also not accurate; he was never charged with such an attempt. At best, the authorities may have suspected the applicant would attempt an escape.
[59] His CMO said there is reliable preventive information in 1995 implicating him in an attempt to escape from Warkworth Institution. Yet, the security analyst's summary given to him in 1998 at the recommendation of the Citizens' Advisory Committee said that in his preventive security file "[T]here is no information contained in this particular report to indicate that he was planning to or attempted to escape". How, in those circumstances, can the preventive security information on file be valid when there is this internal contraction.
[60] I find the applicant has made out his case on the balance of probabilities; the information he complained of in his files did not meet the standards required by section 24.
(3) On what basis can the refusal to correct be reviewed?
[61] Paragraph 24(2)(b) provides "where the request is refused, the Service shall attach to the information a notation...". Do these words preclude this Court reviewing the CSC's decision not to correct because the only remedy provided by the Act in such a case is a notation to be attached to the offender's file?
[62] Properly construed, these words enable the CSC to correct or refuse to correct the information " because there is this choice, the CSC exercises a discretion when making the decision to correct or not. (See Baker v. Canada, (M.C.I.), supra , at paragraph 52.) If so, such a discretion is reviewable on proper principles governing the review of discretionary decisions such as bad faith, improper purpose, irrelevant consideration and error of law. (See [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2 at pp. 7-8.)
F. CONCLUSION
[63] Under section 24 of the Act, the CSC must take reasonable steps to ensure that any information in an offender's files is as accurate, up-to-date and complete. For reasons given, I have found the specific information in the applicant's files which the applicant complained of do not comply with the standards of the section. The applicant requested correction but the CSC refused the request.
[64] I find the Commissioner, in exercising his discretion to refuse to correct the information requested, committed a number of reviewable errors.
[65] First, he did not properly interpret the scope of the CSC's obligations in terms of the accuracy, completeness and up-to-date nature of the information. This misinterpretation led him to conclude some of the information on file was valid or justified. Second, he failed to appreciate the nature and limits of the discretion inherent in a decision to refuse to correct information. Parliament simply did not intend inaccurate information remain on file counterbalanced only by an offender's correction request noted on file. The CSC, in the circumstances, was obligated to consider why a correction was not appropriate. Third, whatever appreciation the Commissioner had on the scope of the discretion to refuse a correction, such refusal had to be based on proper considerations which were lacking in this case. To refuse to correct misinformation on the grounds the Service exercised its option to increase the applicant's security level or to justify inaction to correct on the basis the information was still relevant for administrative purposes amount to, in my view, improper considerations.
[66] I conclude the applicant succeeds in this judicial review application. The question remains as to the appropriate remedy.
[67] I am sensitive to the fact the information the applicant sought to have corrected in his files is dated in 1997 and that the CSC has a continuous process of reevaluating offenders. Indeed, a file correction relating to one item the applicant complained of here was made in the applicant's OSLRD file (see page 85 of the applicant's record) but this information does not seem to have been reflected in other files (see applicant's record, page 86).
[68] I am also sensitive to what was said by Le Dain J. in Cardinal, supra, regarding imposing burdens on the CSC. As I see it, the case management officer is the point person with the offender. The application record reveals the CMO interfaces on a daily basis with an offender.
[69] In the circumstances, the CMO is required to review the offender's current files and determine whether they should be corrected in accordance with these reasons. What should be reviewed is limited to those matters in the applicant's original complaint. The applicant is to be advised of the results of the CMO's review and proposed action.
G. DISPOSITION
[70] For all these reasons, this judicial review is allowed, the decision of the Commissioner is set aside, and the matter remitted for reconsideration on the basis of these reasons.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
APRIL 13, 2000
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