Date: 19990105
Docket: T-1566-97
BETWEEN:
ROBERT A. GRATTON
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA,
AND THE UNIT BOARD, UNIT 5
OF WARKWORTH INSTITUTION
Respondents
REASONS FOR ORDER
EVANS J.:
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act R.S.C. 1985, c. F-7 [as amended] by the applicant, Robert Gratton, an inmate of Warkworth Institution. In this application he challenges a decision made in October, 1996 by the Unit Board, Unit 5, of the Institution restricting certain of his privileges as an administrative measure, and seeks various form of relief, including an order quashing the decision and remitting the matter to a differently constituted Board, and an order declaring the decision to be patently unreasonable and thus in excess of the Board"s jurisdiction.
[2] In its notice of decision dated October 30, 1996, the Board informed the applicant that "there was sufficient evidence to suspect you of introducing drugs into the institution", and that as a result he was restricted to closed visits, private family visits were suspended and he was precluded from participating in events involving community contact. The notice also advised him that his case would be reviewed by the Board on receipt of a positive progress report from his case management team, which seems to have included a requirement that the applicant supply on a "voluntary" basis three consecutive monthly negative urinalysis samples.
[3] The applicant was given no prior notice that the Board was contemplating a decision, and he was given no opportunity to produce evidence or to make submissions before the Board rendered its decision. In a memorandum dated November 29, 1996, the Acting Unit Manager, Ms. Aitchison, responded to the applicant"s complaints about the unfairness of the Unit Board"s decision by stating that the Board based its decision on the fact that on or about October 6, 1996 his mother had been found in possession of an illegal drug in Warkworth while on her way to visit the applicant, and that "there are suspicions that you may be involved in the drug sub-culture at Warkworth." Ms. Aitchison also said that "no hearing was conducted [by the Unit Board] and therefore no notice would be given to you in order to prepare your case."
[4] Dissatisfied with this response, the applicant complained to the Warden of Warkworth; the matter was investigated and the Warden concluded that, with one minor exception, there was nothing wrong with the Board"s decision on either procedural or substantive grounds. The applicant had been given an opportunity to make written representations to the Unit Board, but had not done so.
[5] The applicant met with the Unit Board in February 1997 to consider his case. In March 1997, the applicant"s privileges were restored with the exception of visits from his mother. He and his mother have been informed that they can request the restoration of her visiting privileges after the criminal charge against her arising from her apprehension with an illegal drug in Warkworth has been heard and determined.
[6] The applicant challenges the Unit Board"s decision to restrict his privileges on the ground that it was made in breach of the duty of fairness because he was given no prior notice and had no opportunity to make any representations before the decision was made. He also alleges that the decision was unreasonable because it was based upon the conduct of his mother, for which he was not responsible.
[7] For the respondents, Ms. Kirewskie conceded that the applicant ought to have been informed that his mother had been found to have a drug in her possession when visiting him and that no administrative measures should have been imposed on him before he was given a reasonable opportunity to answer the case against him in accordance with the duty of fairness. However, she also contended that the Court should not decide the application on its merits because the proceeding became moot when nearly all of the applicant"s privileges were restored in March 1997. In the alternative, she argued that any breach of the duty of fairness committed before the Unit Board suspended the applicant"s privileges was subsequently cured by both his meeting with the Unit Board in February 1997, and the opportunity that he had previously been given to make submissions to the Board in writing.
[8] I shall consider first the arguments that the issue in this proceeding is now moot. Although articulated in the context of a constitutional challenge, the principles governing mootness established in Borowski v. Canada (Attorney General) [1989] 1 S.C.R. 342 are equally applicable to challenges to the exercise of public power made on administrative law grounds.
[9] In Borowski, Sopinka J. stated that, when considering an argument that a proceeding is moot, a court should first decide whether there is a "live controversy" before it. If the answer to this question is in the negative, the court must then consider whether to exercise its discretion to decide the case by examining the following factors: the extent to which the case was fully argued; the need to promote judicial economy; and the public interest in addressing the issues "in order to settle the state of the law" (at p. 364).
[10] Applying these principles, I have concluded that, since the applicant"s mother"s visiting privileges have not been restored, the controversy is not moot. Insofar as the applicant"s complaint concerns the restriction of other privileges, it is moot, and this is not an appropriate case for the exercise of my discretion to hear and determine the challenge on its merits. I shall therefore decide this application for judicial review only to the extent that it is based upon the Unit Board"s decision to suspend visits to the applicant by his mother.
[11] As I have already indicated, the principal ground on which the applicant relies is that the Unit Board"s decision was made in breach of the duty of fairness. Given the concession by counsel for the respondents, which in my view she was correct to make, that the applicant ought to have been given prior notice and an opportunity to make representations before the Unit Board suspended his privileges, the question is whether the procedures afforded the applicant after the decision was made were sufficient to cure the original defect.
[12] It is trite law that questions of procedural fairness must be considered within the context of the impugned decision. In my opinion, it is particularly relevant in this case to observe that the visiting privileges were restricted in the interest of the good administration of the prison, and not as a punishment for a breach of the discipline code (Gallant v. Canada (Deputy Commissioner, Correctional Service), [1989] 3 F.C. 329 (F.C.A.)), and that the suspension of the applicant"s visits from his mother was a relatively minor restriction. Moreover, the uncontroverted fact that the applicant"s mother was apprehended with drugs in her possession while visiting the applicant made it virtually inevitable that she would not be permitted to visit him until the criminal charges against her had been heard.
[13] It is also relevant to observe that, in recognition of the difficult task facing prison administrators, courts have generally declined to intervene on procedural grounds in decisions made in the interests of security and good administration in the absence of evidence of manifest unfairness or "serious injustice": [1980] 1 S.C.R. 602">Martineau v. Matsqui Institution , [1980] 1 S.C.R. 602.
[14] In view of these considerations, I have concluded that the opportunities afforded to the applicant after the Unit Board revoked his mother"s visiting privileges cured any initial breach of duty of fairness. Nor do that I think that the decision to suspend these visits until the criminal charge has been dealt with can be characterized as a patently unreasonable exercise of discretion.
[15] For these reasons the application for judicial review is dismissed.
OTTAWA, ONTARIO John M. Evans
January 5, 1999. J.F.C.C.
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