Date: 20091218
Docket: T-458-09
Citation: 2009 FC 1293
Ottawa, Ontario, December 18, 2009
PRESENT: The Honourable Mr. Justice
Harrington
BETWEEN:
BENOIT COLLIN
Applicant
and
LECLERC INSTITUTION
Respondent
REASONS
FOR ORDER AND ORDER
[1]
As we might expect, prison life is highly regimented. Inmates are subject
to the Corrections and Conditional Release Act, the Corrections and
Conditional Release Regulations, and a number of Commissioner’s directives.
[2]
One of the Commissioner of Correctional Service’s directives is Directive No. 730
entitled Inmate Program Assignment and Payments. The purpose of this directive
is to encourage inmates to participate in programs identified in their
correctional plans that allow them to receive some remuneration for work
accomplished, which is normally based on daily rates from $5.25 to $6.90.
[3]
Mr. Collin was registered in this program and started working as a
chapel cleaner at the Leclerc Institution in 2003.
[4]
In 2008, along with a number of other inmates, he filed a grievance against
the secular use of the chapel on Valentine’s Day. Some weeks later, Mr. Collin
was suspended from his cleaning duties. Section 38 of the Directive states:
The
program supervisor may suspend an inmate who leaves a program assignment
without authorization or whose actions demonstrate a refusal to participate in
a program assignment. This includes any negative behaviour or action that
necessitates the removal of the inmate from the program assignment.
[5]
The following reason was given for his suspension:
[translation]
[Mr. Collin] challenges
the chaplain’s authority (and interferes with the management of activities at
the chapel.[)]
There were a number of
meetings with Mr. Collin to reframe his role at the chapel. Unfortunately,
these meetings resulted in interminable arguments, and his behaviour in recent
weeks does not show any improvement in his relationship with the chaplains or instructions.
[6]
Mr. Collin was offered other positions, including a position at the
bakery, but he refused all of them. He became voluntarily unemployed for
purposes of the Directive.
[7]
Mr. Collin disputed his suspension but was unsuccessful. He availed
himself of the grievance process, a three‑level process in which each
level is a hearing de novo. He failed at each level and seeks
judicial review of the third‑level decision.
[8]
At the beginning of the hearing, the respondent brought a motion to
dismiss the application on the ground that it is moot because Mr. Collin has
been released from prison, and reinstating him in his duties is no longer an
option. I refused because there seems to be a live issue between the parties
and because Mr. Collin is claiming damages. As noted in the
Federal Court of Appeal decision in Canada v. Grenier,
2005 FCA 348, [2006] 2 F.C.J. 287, an application for judicial
review must be commenced before bringing an action in damages arising from a
decision by a federal board or tribunal.
[9]
Mr. Collin, who is representing himself, but who has an impressive
knowledge not only of the various rules that govern prison life but also of the
Federal Courts Act, immediately requested that his application for
judicial review be converted to an action under section 18.4 of the Act. I
refused on the grounds that the request was made at the last minute and that it
is unnecessary for the applicant to commence an action to determine whether the
third‑level decision should be set aside.
ISSUES FOR
REVIEW
[10]
Although Mr. Collin summarized much of his prison life, which had
nothing to do with his suspension or the three grievance levels, the following
issues can be extracted:
a.
Was his suspension a reprisal for the complaint that he and the others
filed about the secular use of the chapel on Valentine’s Day in 2008? If so,
the decision would be a breach of section 91 which states that “Every offender shall have complete access to the offender
grievance procedure without negative consequences.”
b.
Was one of the decision‑makers in a conflict of interest because he
was also the decision‑maker in the Valentine’s Day incident?
c.
Was the third‑level hearing procedurally unfair because he was accused
of intimidation, which took him by surprise and gave him no opportunity to
respond?
d.
Were the findings of fact unreasonable?
e.
Were his rights under the the Charter of Rights and Freedoms infringed?
STANDARD OF
JUDICIAL REVIEW
[11]
The standard of review with respect to fairness and conflict of interest
is correctness. The Court does not have to show deference. However, the Court
will not change the decision with respect to the findings of fact unless they
are unreasonable (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190).
REPRISAL
[12]
Although one might suspect that it was not a coincidence that Mr. Collin
was suspended only a few weeks after his complaint about the Valentine’s Day
incident, there is nothing in the record that justifies Mr. Collin’s
suspicions. He had already been suspended once, and although he was suspended
from his duties in the chapel, he was offered other positions, such as in the
bakery, that he refused.
[13]
In Canada (Department of Employment and
Citizenship) v. Satiacum, [1989] F.C.J. No. 505 (F.C.A.), Mr. Justice MacGuigan
said:
The common law has long recognized the difference between
reasonable inference and pure conjecture. Lord Macmillan put the
distinction this way in Jones v. Great Western Railway Co. (1930),
47 T.L.R. 39 at 45, 144 L.T. 194 at 202 (H.L.):
·
The dividing line between conjecture and inference is often
a very difficult one to draw. A conjecture may be plausible but it is of no
legal value, for its essence is that it is a mere guess. An inference in the
legal sense, on the other hand, is a deduction from the evidence, and if it is
a reasonable deduction it may have the validity of legal proof. The attribution
of an occurrence to a cause is, I take it, always a matter of inference.
CONFLICT OF INTEREST
[14]
The record shows that, objectively, regardless of what Mr. Collin
thinks, the Valentine’s Day incident was the subject of a separate
grievance, which was ultimately denied. The fact that a Correctional Service
employee was involved in that process did not prevent her from participating in
Mr. Collin’s grievances.
INTIMIDATION
[15]
Mr. Collin notes that the term “intimidation” is a
technical expression and that, had he been intimidated by anyone, a report
would have been written to that effect, which is not the case. The respondent
says that, in context, the language was only a dramatic way to identify Mr. Collin’s
negative behaviour, which is the term used in section 38 of Directive No. 730.
The record supports the respondent’s position.
FINDINGS OF FACT
[16]
Mr. Collin denies that he refused to participate in a reasonable
program assignment or that he exhibited negative behaviour. It is true there
were personality conflicts, but they arose from the chaplain’s lack of
confidence.
[17]
He disputes the following five findings:
(a)
that he increasingly disputed decisions about the use of
the chapel;
(b) that he had received a number of warnings;
(c)
that the officers met with him a number of times to “reframe”
his tasks. He said he met with them only once, on March 3, 2008;
(d) that, despite the alleged meetings, his behaviour did not change;
(e)
that he continued to interfere with the management of
activities at the chapel.
[18]
Mr. Collin’s argument is very convoluted but can be
summarized as differences of opinion with respect to the contents, the time and
the importance of the various discussions and meetings. The third‑level
decision‑maker did not act in a capricious manner by preferring the
testimony of the staff at the Leclerc Institution or by denying Mr. Collin’s
grievance.
[19]
In Canada (Director of Investigation and Research) v.
Southam Inc., [1997] 1 S.C.R. 748, Mr. Justice Iacobucci noted
at paragraph 80 that the reviewer on a judicial review must resist the
temptation to “find some way to intervene when the reviewer him-
or herself would have come to a conclusion opposite to the tribunal’s” and
called for restraint. In the circumstances, the
application for judicial review must be dismissed.
CHARTER
[20]
Mr. Collin’s freedom was restricted because of his
criminal activities. He did not have the right to “pursue the gaining of a
livelihood” (6(2)(b)) in prison. The decisions against him did not
result from criminal or penal matters under section 11. This really was an
administrative issue. His treatment was not cruel or unusual within the meaning
of section 12, and he is not entitled to a remedy, including damages,
under section 24. He did not suffer any damages because he himself decided
to refuse a transfer to the bakery. Although he subsequently asked to work in
the library and was not selected, that decision is not before this Court.
ORDER
FOR THE ABOVE-NOTED REASONS;
THE COURT ORDERS that the application is dismissed
with costs.
“Sean Harrington”
Certified true translation
Mary Jo Egan, LLB
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