Docket: T-484-12
Citation: 2012 FC 1226
Ottawa, Ontario, October 19, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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CLAIR DANIEL WILSON
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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
JUDGMENT AND JUDGMENT
[1]
Mr.
Wilson is an inmate at Springhill Penitentiary in Nova Scotia. His driver’s
license from the Province of New Brunswick expired on April 29, 2011. Prior to
its expiration, he learned that he would have to personally attend at the motor
licensing bureau in New Brunswick to renew his license. He sought an escorted
temporary absence (ETA) from the institution in order to attend and renew his
license.
[2]
His
first request for an ETA was made in early 2010 but he was asked to withdraw it
and re-apply in a year’s time. He agreed and later submitted the ETA request
on January 19, 2011. On March 4, 2011, the Warden denied the request for an
ETA. The Warden’s written reason reads: “Administrative ETA NOT APPROVED as
licence cannot be automatically renewed” [capitalization in original].
[3]
Mr.
Wilson grieved this decision and asked that it be dealt with on an urgent basis
because the need for an ETA would become moot after the expiry of his license
on April 29, 2011. A response denying the grievance was received on August 19,
2011. Mr. Wilson advanced his grievance to the next level and received a
response on January 20, 2012, from the Senior Deputy Commissioner who upheld
the grievance.
[4]
The
Senior Deputy Commissioner determined that the only rationale provided by the
Warden in denying the ETA request was that Mr. Wilson’s licence could not
automatically be renewed; however, it was noted that the Warden failed to
consider the criteria in the Corrections and Conditional Release Act, SC
1992, c 20, s 17(1), which reads as follows:
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17.
(1) Where, in the opinion of the institutional head,
(a)
an inmate will not, by reoffending, present an undue risk to society during
an absence authorized under this section,
(b)
it is desirable for the inmate to be absent from penitentiary, escorted by a
staff member or other person authorized by the institutional head, for
medical, administrative, community service, family contact, personal
development for
rehabilitative
purposes, or compassionate reasons, including parental responsibilities,
(c)
the inmate’s behaviour while under sentence does not preclude authorizing the
absence, and
(d)
a structured plan for the absence has been prepared,
the
absence may, subject to section 746.1 of the Criminal Code, subsection 140.3 of the National
Defence Act and subsection 15(2) of the Crimes Against Humanity and
War Crimes Act, be authorized by the institutional head
(e) for
an unlimited period for medical reasons, or
(f) for
reasons other than medical,
(i) for a period not
exceeding five days, or
(ii) with the
Commissioner’s approval, for a period exceeding five days but not exceeding
fifteen days.
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17.
(1) Sous réserve de l’article 746.1 du Code criminel, du paragraphe 140.3(2)
de la Loi sur la défense nationale et du paragraphe 15(2) de la Loi sur les
crimes contre l’humanité et les crimes de guerre, le directeur du pénitencier
peut autoriser un délinquant à sortir si celui-ci est escorté d’une personne
— agent ou autre — habilitée à cet effet par lui lorsque, à son avis :
a)
une récidive du délinquant pendant la sortie ne présentera pas un risque
inacceptable pour la société;
b)
il l’estime souhaitable pour des raisons médicales, administratives, de
compassion ou en vue d’un service à la collectivité, ou du perfectionnement
personnel lié à la réadapta- tion du délinquant, ou pour lui permettre
d’établir ou d’entretenir des rapports familiaux notamment en ce qui touche
ses responsabilités parentales;
c)
la conduite du détenu pendant la détention ne justifie pas un refus;
d)
un projet structuré de sortie a été établi.
La
permission est accordée soit pour une période maximale de cinq jours ou, avec
l’autorisation du commissaire, de quinze jours, soit pour une période
indéterminée s’il s’agit de raisons médicales.
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[5]
The
Senior Deputy Commissioner further held that in failing to properly consider
the criteria in subsection 17(1) of the Corrections and Conditional Release
Act, the Warden had failed to provide sufficient reasons for the decision,
contrary to the Duty
to Act Fairly in the Commissioner’s Directive 700, at paragraph 77, which, at
that time, provided that Correctional Services Canada was obliged to “ensure
that offenders receive complete information, particularly concerning decisions
and the supporting reasons, before or after the decision.”
[6]
The
Senior Deputy Commissioner required, as the appropriate corrective action, that
the Warden review his earlier decision “and provide a rationale in
consideration of subsection 17(1) of the CCRA.”
[7]
In
his memorandum of argument, Mr. Wilson raised whether his application to review
the decision of the Senior Deputy Commissioner was moot as the time within
which he could renew his license had passed. I informed the parties at the
commencement of the hearing that I intended to hear this application on its
merits. My reasons for so doing were three-fold. First, depending on the
outcome of this application, it is not at all certain that this matter is
moot. Second, the respondent made no submissions as to whether the application
is moot. Third, if the Court were to refuse to hear the application due to the
passage of time then, in some perverse manner, the respondent would have
benefited from its significant delay in responding to the applicant’s request
for an ETA and in responding to his grievance.
[8]
The
sole issue on the merits is whether the
remedy required by the Senior Deputy Commissioner in her grievance response is
reasonable. Mr. Wilson submits that it is not reasonable because the Warden
cannot provide additional reasons for his decision because it is no longer a
live issue. The respondent submits that although the record could support
the Warden’s decision not to provide an ETA to renew Mr. Wilson’s driver’s
licence, it was found that the reasons given were insufficient and breached the
stated requirements of procedural fairness. The remedy ordered, it is
submitted, reasonably responded to these concerns.
[9]
Mr.
Wilson raised concerns regarding the time it has taken to deal with his request
and grievance; however, those are not issues before me. He also raised what he
sees as the “punitive” nature of the Warden’s refusal to grant him an ETA; that
is not an issue before me. The only issue before the Court in this application
is whether the remedy that was provided by the decision-maker is reasonable.
Mr. Wilson says that “[the Warden] cannot make a new decision he has to reside
with the original one with all [its] warts and the acknowledgement that he
failed in his duty to act fairly.”
[10]
I
am unable to agree with Mr. Wilson. When it has been found that a
decision-maker failed to consider relevant criteria or failed to provide
procedural fairness, then the typical remedy is to refer the question back to
that decision-maker with instructions to make the decision properly. That is
what was done in this case.
[11]
As
was pointed out by the Senior
Deputy Commissioner in her response, there was no guarantee that the same
result, a denial of an ETA, would result. In fact, the result was the same,
but for reasons different that those first given. In my view, the decision on remedy was
justified on the basis of the governing legislation and policy which required
the Warden to provide complete reasons dealing with the factors set out in the
legislation. I fail to see how any other remedy would have been appropriate or
within the jurisdiction of the Senior
Deputy Commissioner.
[12]
Given
the time it took for the CSC to move the process forward and address the
grievances at all the stages of review, I understand and appreciate Mr.
Wilson’s frustration in dealing with the delays to obtain responses to the ETA
request and to his grievance. He eloquently expressed the significance to him
of having a driver’s license when he is released from prison. I suspect that
it was not seen by the prison officials to be as important as he saw it.
Nonetheless, I cannot end without observing, as this Court has on many
occasions, that the delays in responding to what appears to be relatively small
issue is very troubling.
[13]
No
costs are ordered.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application is dismissed, without costs.
"Russel W.
Zinn"
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