Docket: T‑101‑11
Citation: 2012 FC 212
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 14, 2012
PRESENT: The Honourable Mr. Justice
Harrington
BETWEEN:
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RICHARD FORGET
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Applicant
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and
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ATTORNEY GENERAL
OF CANADA
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
Since 1978,
Richard Forget has been serving a life sentence for second degree murder, theft
with threats of violence, breaking and entering, fraud, personation with
intent, and harbouring. In November 2010, while he was incarcerated at Saint‑Anne‑des‑Plaines
Institution (SAPI), a minimum‑security federal penitentiary in Quebec, he
was placed in administrative segregation to avoid disruption of the
investigation being conducted into tobacco trafficking at SAPI.
[2]
Following
this investigation, Mr. Forget was identified as being the head of this
major tobacco trafficking ring at the institution. In view of that and for the
penitentiary’s internal security, the Correctional Service of Canada (CSC) decided
to raise Mr. Forget’s security classification from minimum to medium and
to transfer him from SAPI to the Leclerc Institution, a medium‑security
penitentiary.
[3]
The
decision was made by the Warden of SAPI. Mr. Forget was
dissatisfied with that decision and could have lodged a grievance directly with
the Regional Deputy Commissioner, as provided by the grievance procedure
established under section 90 of the Corrections and Conditional Release
Act. Instead, he chose to file an
application for judicial review under section 81 of the Corrections and
Conditional Release Regulations.
[4]
Section 81
provides as follows:
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(1) Where an offender decides to pursue a
legal remedy for the offender’s complaint or grievance in addition to the
complaint and grievance procedure referred to in these Regulations, the
review of the complaint or grievance pursuant to these Regulations shall be
deferred until a decision on the alternate remedy is rendered or the offender
decides to abandon the alternate remedy.
(2) Where the review of a complaint or
grievance is deferred pursuant to subsection (1), the person who is reviewing
the complaint or grievance shall give the offender written notice of the
decision to defer the review.
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(1) Lorsque le délinquant décide de
prendre un recours judiciaire concernant sa plainte ou son grief, en plus de
présenter une plainte ou un grief selon la procédure prévue dans le présent
règlement, l’examen de la plainte ou du grief conformément au présent
règlement est suspendu jusqu’à ce qu’une décision ait été rendue dans le
recours judiciaire ou que le détenu s’en désiste.
(2) Lorsque l’examen de la plainte ou au
grief est suspendu conformément au paragraphe (1), la personne chargée de cet
examen doit en informer le délinquant par écrit.
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[5]
Essentially,
Mr. Forget contends that he was not sufficiently informed of the
allegations made against him and not given a fair opportunity to respond to
them. If
that is so, it is indeed a denial of the principles of natural justice, and
this Court is duty‑bound to intervene. Mr. Forget
also contends that the CSC failed to provide reasons establishing that its
decision of involuntary transfer is the least restrictive measure in the
circumstances, in accordance with the principles that guide the Service which
are set out at section 4 of the Act.
[6]
For his
part, the Minister points out that, considering the very specific prison
context, the information with which Mr. Forget was provided was sufficient. He submits that
Mr. Forget received all of the documents prepared for his transfer and that
this was done within the time limits set out in the Act and the Regulations.
Furthermore, the Minister is of the opinion that the Warden’s
decision is adequately reasoned and that it takes into account the assessments
and recommendations regarding Mr. Forget’s situation. Last, he submits that the decision is reasonable and that
the relevant factors were properly weighed, including institutional adjustment,
escape risk and public safety.
[7]
On
January 10, 2012, that is, one day before the hearing date for the
application for judicial review, the Minister filed further submissions contending
that the Court should not hear the application because Mr. Forget has
failed to exhaust all of the possible remedies provided by the administrative
process. He relied on the recent decisions in Rose v Canada
(Attorney General), 2011 FC 1495, [2011] FCJ No 1821 (QL), and Marleau v
Canada (Attorney General), 2011 FC 1149, [2011] FCJ No 1417 (QL).
[8]
Therefore,
at the beginning of the hearing, I asked Mr. Forget whether he was ready
to proceed. His counsel objected to the Minister’s additional
submissions given that they were filed so close to the hearing date. Consequently, I postponed the hearing until
January 31, 2012, and gave the parties leave to file supplementary
memoranda on the point raised by the Minister.
[9]
Each of the
two parties filed a supplementary memorandum. Furthermore, two recent
decisions were brought to the Court’s attention: Reda v Canada (Attorney
General), 2012 FC 79, [2012] FCJ No 82 (QL), and Paul v Canada
(Attorney General), 2012 FC 64, [2012] FCJ No 73 (QL).
[10]
At the
hearing, on January 31, 2012, the parties added little to their
supplementary memoranda. Mr. Forget submits that I must hear the application
for judicial review on its merits. As well, if
I exercise my discretion not to hear the application, as did Madam Justice
Bédard in Reda, above, I must still rule on the merits in the event that
I am wrong on this issue.
[11]
I heard the
application on the merits, while reserving my discretion to refuse to rule on
it.
[12]
In fact, it
is the seriousness of both parties’ submissions that leads me not only to refuse
to rule on the application, but also to abstain from expressing my opinion on
its value. As a result, the next step for Mr. Forget is to lodge
a grievance with the Regional Deputy Commissioner. The decisions of administrative tribunals are subject to
review by this Court. The idea that my obiter
dicta may be reviewed by a lower court does not appeal to me in the
slightest.
[13]
It is clear
that the Court may exercise its discretion not to hear an application for
judicial review filed with it directly if other adequate alternative remedies
have not been exhausted. In Reda, Madam Justice Bédard conducted a brief overview
of the case law to that effect, so there is no need for me to examine the issue
in greater detail. In my opinion, it is
sufficient to state that, at this stage in the case, there are no exceptional
circumstances that would warrant this Court’s hearing the application for judicial
review of the Warden’s decision.
[14]
Having
decided that she should not decide the application for judicial review, Madam
Justice Bédard nonetheless went on, in obiter, to address the merits of
the application, for two reasons. First, it is the Court itself, rather than the
applicant, that had raised the issue regarding its exercise of jurisdiction.
Second, in the event that the Federal Court of Appeal
set aside this aspect of her decision, she would have at least stated the
reasons for her opinion that the application should be dismissed.
[15]
In this
case, this issue was raised by the Minister, if belatedly. I am much more
concerned with how the Regional Deputy Commissioner will deal with the Warden’s
decision than with how the Federal Court of Appeal will deal with my own.
In this regard, I refer to the Supreme Court’s
decision in Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC
54, [2003] 2 S.C.R. 504. Although the facts are
different from those in this case, the Supreme Court’s remarks apply with equal
relevance here. As explained at paragraph 56
of the judgment, courts may benefit from a complete record and from the opinion
of the appellate administrative tribunals.
[16]
Although in
Paul, above, Mr. Justice Scott ruled on the merits of an
application for judicial review similar to this one, nothing in his reasons
suggests that this particular issue was disputed by the parties. Therefore, it
cannot be said that this decision supports the proposition that this Court
automatically review decisions on involuntary transfers.
[17]
In any
event, I would not have been inclined to grant the relief sought, that is, to
set aside the decision. Instead, I would have referred the matter back to another
decision‑maker for reconsideration.
ORDER
FOR THE REASONS GIVEN ABOVE,
THE COURT ORDERS that
1.
The application for
judicial review of the decision made by the Warden of SAPI on December 23,
2010, be dismissed.
2.
There will be no order
as to costs in this case.
“Sean Harrington”
Certified true
translation
Sarah Burns
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