Docket: T-1147-11
Citation: 2012 FC 57
Toronto, Ontario, January 16,
2012
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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KARL WILSON
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Karl Wilson seeks judicial
review of a decision of Assistant Commissioner Ian McCowan of the Correctional
Service Canada [CSC] denying Mr. Wilson’s third level grievance.
[2]
For the
reasons that follow, I have concluded that Mr. Wilson was treated fairly in the
process relating to the adjudication of the grievance at issue in this
application, and that Mr. McCowan’s decision was reasonable. As a result, the
application will be dismissed.
Background
[3]
Mr. Wilson
has long been trying to have the reasons of his sentencing judge added to his
institutional files and to have other, allegedly inaccurate, information
removed from his files. This information relates to events leading up to Mr.
Wilson’s conviction for manslaughter, and his alleged involvement in the drug
trade in Springhill Institution. According to Mr. Wilson, this inaccurate information
played a role in the decision of the National Parole Board to deny him day
parole on two occasions.
[4]
Mr. Wilson
raised his concerns with his parole officer in 2008, and his request to have
information added to or removed from his files was denied. Mr. Wilson did not
challenge that decision through the grievance process.
[5]
On August
3, 2010, Mr. Wilson filed a complaint (not a grievance) alleging that the CSC
had failed to transfer a proper information package to community residential
centres for their consideration, contrary to the policy set out in a
Commissioner’s Directive (Complaint #21016). In particular, Mr. Wilson complains
that the package did not contain a psychological assessment, but did include
misleading information.
[6]
In a
decision dated August 25, 2010, Mr. Wilson’s complaint was upheld, in part. The
CSC accepted that Mr. Wilson’s community assessment had been concluded prior to
the completion of the psychological assessment and that the CSC had failed to
follow the proper procedure in this regard. However, the CSC also held that the
absence of the psychological assessment was not material, as the psychological
assessment did not support his request for release. Mr. Wilson did not grieve
this decision.
[7]
In the
meantime, on August 9, 2010, Mr. Wilson filed a first level grievance
(Grievance #21120). This grievance led to the third level decision at issue in
this application for judicial review. In Grievance #21120, Mr. Wilson requested
that Complaint #21016, and a second complaint relating to a reduction in his
pay (Complaint #21015), be combined and addressed together as a first level
grievance, rather than as complaints, as they both involved allegations of
harassment and discrimination.
[8]
The
Institutional Head denied Grievance #21120 at the first level on August 25,
2010, holding that the acts complained of did not meet the definitions of
harassment and discrimination. As a result, it was decided that the matters should
proceed as complaints.
[9]
Mr. Wilson
appealed the first level decision in Grievance #21120 to the second level of
the grievance process. He reiterated his allegation that the conduct identified
in his two earlier complaints constituted harassment and discrimination, noting
that the issue in Complaint #21016 was the sharing of information by the CSC
and inaccurate information in his institutional files.
[10]
On September
6, 2010, prior to receiving a decision in relation to his second level
grievance, Mr. Wilson submitted a formal request for the correction of his
institutional files to the Privacy Division of the CSC. By letter dated
September 17, 2010 Mr. Wilson was advised that the Privacy Division did not
have jurisdiction over the correction of his files, and that his request was
being forwarded to Mr. Wilson’s parole officer for follow-up. Unfortunately,
the parole officer did not receive the request at that time.
[11]
After a
delay in processing, an Assistant Deputy Commissioner denied Mr. Wilson’s
grievance at the second level on November 25, 2010. The Assistant Deputy
Commissioner found that the allegations in Mr. Wilson’s earlier complaints did
not constitute allegations of harassment or discrimination. The Assistant
Deputy Commissioner further concluded that the appropriate route to address
errors in Mr. Wilson’s file was for Mr. Wilson to file a Request for Correction
with his parole officer. Alternatively, Mr. Wilson could request a
reconsideration of the community assessment through his Case Management Team.
[12]
Mr. Wilson
then appealed this second level decision. It is the decision at the third level
of the grievance process that underlies this application for judicial review.
The Third Level Decision in
Grievance #21120
[13]
Mr.
Wilson’s third level grievance submissions focussed on his concerns regarding
the contents of his institutional files.
[14]
Assistant
Commissioner McCowan determined that no further action was necessary in
response to Mr. Wilson’s grievance. He noted that Mr. Wilson had not repeated
the substantive issue raised by his original grievance, namely, whether his two
earlier complaints should be combined and treated as harassment or
discrimination grievances. Assistant Commissioner McCowan understood this to
mean that Mr. Wilson was satisfied with the response he had received in this regard
at the second level of the grievance process.
[15]
Assistant
Commissioner McCowan further advised Mr. Wilson that he could not deal with the
complaints regarding the correction of Mr. Wilson’s file, as this was a new
allegation and needed to be dealt with at the lowest level possible, in
accordance with Commissioner’s Directive 081 dealing with Offender Complaints
and Grievances. This Commissioner’s Directive provides that complaints and
grievances should be addressed “at the lowest possible level in a manner that
is consistent with the law”.
Was Mr. Wilson Treated Fairly in the
Grievance Process?
[16]
Mr. Wilson
has made a number of allegations of unfair treatment on the part of the CSC.
These include the alleged unfairness of the inclusion of hearsay evidence in
his institutional file, and the claim that the errors in his file rendered Mr.
Wilson’s two parole hearings unfair. It is important, however, to keep in mind
that what is relevant in this application for judicial review is the fairness
of the process that was followed in relation to the processing of Grievance
#21120.
[17]
In
determining whether Mr. Wilson was treated fairly in this regard, the task for the Court is to determine
whether the process followed by the decision-maker satisfied the level of
fairness required in all of the circumstances: see Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 43.
[18]
While the
delays associated with the processing of Mr. Wilson’s grievance are
regrettable, Mr. Wilson has not persuaded me that there was any procedural
unfairness in the way that the CSC dealt with Grievance #21120. He had a full
opportunity to access the grievance process, and his submissions were
considered and addressed at each stage of the process. Whether the decision at
the third level was reasonable is a separate issue, which will be addressed
next.
Was the Assistant Commissioner’s Decision
Reasonable?
[19]
I
understand the parties to agree that the substance of Assistant Commissioner
McCowan’s decision is reviewable on the standard of reasonableness.
[20]
In reviewing
a decision against the reasonableness standard, the Court must consider the
justification, transparency and intelligibility of the decision-making process,
and whether the decision falls within a range of possible acceptable outcomes
which are defensible in light of the facts and the law: see Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190
at para. 47, and Khosa, above, at para. 59.
[21]
In
determining whether Assistant Commissioner McCowan committed a reviewable
error, the Court must examine the reasonableness of the decision in light of
the record that was before him. Both Mr. Wilson’s application record and his
supplementary affidavit include a significant amount of documentary evidence
that was not before Assistant Commissioner McCowan when he made his third level
decision. Accordingly, while I have reviewed the information carefully, it
will be given little weight.
[22]
Mr. Wilson
relies on the decision in Lewis v. Canada (Correctional Service), 2011
FC 1233, [2011] F.C.J. No. 1517 (QL), to argue that Assistant
Commissioner McCowan should have considered the file correction issue at the
third level, even though it had not been raised in Mr. Wilson’s original
grievance.
[23]
I do not
read Lewis to say that a third level decision-maker in the CSC grievance
process must consider new issues not raised by the initial grievance,
only that it may be open to the decision-maker to do so where the issue is
related to the substantive issue raised by the original grievance.
[24]
In this
case, the record before Assistant Commissioner McCowan indicated that Mr.
Wilson had made a formal Request for Correction of his file, and that the request
had been sent to Mr. Wilson’s parole officer for a decision. The inmate’s
parole officer is the individual authorized to deal with correction requests
under Commissioner’s Directive 701.
[25]
There was
nothing in the record that was before Assistant Commissioner McCowan at the
time that he made the decision under review to indicate that the parole officer
had not received the Request for Correction or that Mr. Wilson had not received
a decision in this regard.
[26]
In the
circumstances, Mr. Wilson has not persuaded me that Assistant Commissioner
McCowan’s decision to defer to the Request for Correction process was
unreasonable.
[27]
Moreover,
the harassment and discrimination issues raised by Mr. Wilson’s original
grievance were not pursued at the third level. Assistant Commissioner McCowan’s
conclusion that Mr. Wilson must have been satisfied with the response that he
had received in this regard at the second level was one that was reasonably
open to the Assistant Commissioner on the record before him.
A Final Observation
[28]
Mr. Wilson
clearly feels that his efforts over the last several years to correct his
institutional record have been thwarted by the CSC at every turn. While I
understand and sympathize with his frustration, his inability to have the issue
finally addressed is, to some extent, the result of his failure to follow the
appropriate procedures.
[29]
That said,
the failure of the CSC to deal with Mr. Wilson’s Request for Correction between
September of 2010 and December of 2011 is the result of problems within the
CSC’s internal communications systems and is not Mr. Wilson’s fault. While it
is open to Mr. Wilson to grieve the decision of his parole officer refusing his
request to correct his file, his fast-approaching statutory release date means
that the grievance process may not realistically afford him with a meaningful
remedy.
[30]
This
situation is of particular concern, in light of the CSC’s Regional Grievance
Coordinator’s suggestion that Mr. Wilson “has a credible beef”.
[31]
I note
that section 10(c) of Commissioner’s Directive 081 reflects a commitment on the
part of the CSC to try to resolve disputes on an informal basis. Given the
circumstances noted above, the CSC is strongly encouraged to meet with Mr.
Wilson as soon as possible in order to see if his concerns with respect to the
information in his institutional files can be addressed through an informal
dispute resolution process.
Conclusion
[32]
For these reasons,
the application for judicial review is dismissed.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed.
“Anne Mactavish”
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