Date: 20090622
Docket: T-1227-08
Citation: 2009 FC 652
Ottawa, Ontario, June 22,
2009
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
JERROD
BYARD
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Jerrod Byard applied for a transfer from a
medium to a minimum security institution. The Correctional Service of Canada
(CSC) turned him down primarily on the basis that he is still considered a
“person of interest” in respect of an outstanding murder investigation dating
back to 2005, when he was on parole. His parole was later revoked for
involvement in drug trafficking.
[2]
Mr. Byard argues that the CSC’s reliance on
information obtained from the RCMP was unlawful. He asks me to overturn the
CSC’s decision and order a reconsideration of his request for a transfer.
[3]
I can find no basis for overturning the CSC’s
decision and must, therefore, dismiss this application for judicial review. Originally,
Mr. Byard’s submissions included allegations that his rights under s. 7 of the Charter
were violated, as well as provisions of the Privacy Act, R.S.C. 1985, c.
P-21. These arguments were not pressed at the hearing. Accordingly, the sole
issue before me is whether the CSC’s consideration of information provided by
the RCMP was lawful.
I.
Factual Background
[4]
In 1998, Mr. Byard was convicted of murder. He
was granted day parole in August 2005. In November 2005, Mr. Jody Elliott was
murdered. Informants told police that Mr. Byard was present at the time of the killing
but was not actively involved. In January 2006, Mr. Byard’s parole was revoked
after police searched his apartment and found evidence of drug trafficking.
[5]
Police still view Mr. Byard as a person of
interest in respect of the 2005 murder. Other persons have been charged, but
have not yet been tried. Because of his alleged association with that crime,
Mr. Byard’s request for transfer to a minimum security institution was turned
down, as were his efforts to grieve that decision.
[6]
When questioned about the murder, Mr. Byard
invoked his right to counsel and chose to remain silent. Originally, the CSC
drew an adverse inference from Mr. Byard’s conduct. However, at his third level
grievance, the decision-maker concluded that the CSC had wrongly taken Mr.
Byard’s silence into account when it denied his request for a transfer.
I.
Was the CSC’s Conduct Lawful?
[7]
Mr. Byard argues that the information relied on
by the CSC does not fall within the factors that must be taken into account in
determining an inmate’s security classification according to s. 17 of the Corrections
and Conditional Release Regulations, SOR/92-620 (enactments cited are set
out in Annex A). Further, he suggests that, by relying on the RCMP’s
information, the CSC has effectively fettered its discretion in relation to
decisions about security classifications and delegated its responsibility to
the RCMP.
[8]
Section 17 of the Regulations states that the CSC
must take into account the following factors, among others:
• any outstanding charges against the inmate;
• the inmate’s performance and behaviour while under
sentence;
• the inmate’s social, criminal and, if available,
young-offender history;
• the inmate’s potential for violent behaviour; and
• the inmate’s continued involvement in criminal
activities.
[9]
Mr. Byard maintains that, since he was never
charged in relation to the 2005 murder, there are no outstanding charges
against him and, therefore, that the CSC cannot take into account the fact that
the RCMP still considers him a person of interest. However, it is clear that
the RCMP’s concerns fall within other factors that the CSC is required to
consider, including behaviour while under sentence, criminal history, potential
for violence and continued involvement in crime. Further, I note that s. 17
sets out the factors that the CSC must consider. It does prevent the CSC
from considering others that may be relevant.
[10]
The CSC had a duty to “take all reasonable steps
to ensure that any information about an offender that it uses is as accurate,
up to date and complete as possible” (s. 24(1) of the Corrections and
Conditional Release Act, 1992 c. 20). In that sense, the CSC has a duty to
include information about inmates that is relevant to decisions that have to be
taken in the correctional setting. However, there will certainly come a point
when information of the sort in issue here will become stale and of little
value or relevance in making decisions about security classifications. As
mentioned, the persons charged in relation to the 2005 murder have not yet come
to trial. Once the evidence is in, both the RCMP and, in turn, the CSC are
likely to have all the information they will ever acquire about Mr. Byard’s
involvement or lack of involvement in that crime. If all that remains at that
point is the lingering and vague suggestion that Mr. Byard is a person of
interest, I would expect the CSC to give that information very little weight in
assessing Mr. Byard’s security classification. Whether it might be relevant for
other purposes is an open question (see: Brown v. Canada (Attorney General), 2006 FC 463, at para. 36).
III.
Conclusion and Disposition
[11]
In my view, the
information relied on by the CSC falls within s. 17 of the Regulations. By
relying on it, the CSC did not fetter its discretion or delegate its
decision-making responsibility to the RCMP. The application for judicial review
is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT IS
that :
1.
The
application for judicial review is dismissed.
“James
W. O’Reilly”
Annex “A”
|
Corrections
and Conditional Release Regulations, SOR/92-620
Security
Classification
17. The Service shall take the following factors into consideration
in determining the security classification to be assigned to an inmate
pursuant to section 30 of the Act:
(a) the seriousness of the offence committed by
the inmate;
(b) any outstanding charges against the inmate;
(c) the inmate's performance and behaviour while
under sentence;
(d) the inmate’s social, criminal and, if
available, young-offender history and any dangerous offender designation
under the Criminal Code;
(e) any physical or mental illness or disorder
suffered by the inmate;
(f) the inmate's potential for violent behaviour;
and
(g) the inmate's continued involvement in criminal
activities.
Corrections and Conditional Release Act, 1992, c. 20
Accuracy, etc., of information
24. (1) The Service
shall take all reasonable steps to ensure that any information about an
offender that it uses is as accurate, up to date and complete as possible.
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Règlement sur le système
correctionnel et la mise en liberté sous condition, DORS/92-620
Cote de sécurité
17. Le
Service détermine la cote de sécurité à assigner à chaque détenu conformément
à l'article 30 de la Loi en tenant compte des facteurs suivants :
a) la
gravité de l'infraction commise par le détenu;
b) toute
accusation en instance contre lui;
c) son
rendement et sa conduite pendant qu'il purge sa peine;
d) ses
antécédents sociaux et criminels, y compris ses antécédents comme jeune contrevenant
s’ils sont disponibles et le fait qu’il a été déclaré délinquant dangereux en
application du Code criminel;
e) toute
maladie physique ou mentale ou tout trouble mental dont il souffre;
f) sa
propension à la violence;
g) son
implication continue dans des activités criminelles.
Loi
sur le système correctionnel et la mise en liberté sous condition, 1992, ch. 20
Exactitude des
renseignements
24. (1) Le
Service est tenu de veiller, dans la mesure du possible, à ce que les
renseignements qu’il utilise concernant les délinquants soient à jour, exacts
et complets.
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