Date:
20091022
Docket: T-1749-08
Citation: 2009 FC 1082
Vancouver, British Columbia, October
22, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
JOSEPHAKIS
CHARALAMBOUS
Applicant
and
THE ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 18.1 of the Federal
Courts Act of a third level offender grievance decision by the
Commissioner of the Correctional Service (Commissioner). The Applicant, a
federal inmate, seeks an order quashing that decision and an order for mandamus
to prevent the Correctional Service of Canada (CSC) from including high
intensity sex offender programming in his Correctional Treatment Plan (CTP).
[2]
Completion
of a CTP is important to the Applicant because non-completion limits the likelihood
that he will be granted day parole or be classified at a lower level of
security risk which would make him eligible for transfer to a lower level
security institution.
[3]
For
the reasons that follow, the application is dismissed.
BACKGROUND
[4]
Josephakis Charalambous is an
inmate at a medium security correctional institution operated by the CSC.
[5]
Mr. Charalambous was a
medical physician. He was convicted of first-degree murder and conspiracy to
commit murder for ordering the contract killing of a female patient who, together
with her sister, had filed a sexual misconduct complaint against him with the College of Physicians and Surgeons of British
Columbia. Mr. Charalambous was sentenced to life in prison and began his
sentence in 1994.
[6]
Mr.
Charalambous maintains his innocence. He unsuccessfully appealed his
conviction: R.
v. Charalambous (1997), 92 B.C.A.C. 1, leave to appeal to S.C.C. refused [1997] S.C.C.A. No.
365.
[7]
In 2005 Mr. Charalambous’ CTP was changed. The
relevant material change for the purposes of this application is that he was
referred to the High Intensity Sex Offender Program (Odyssey Program). He
initially agreed to attend this program but says he did so only in order to
complete his CTP to progress through the system with the hope of release.
[8]
Section
90 of the Corrections and Conditional Release Act, S.C. 1992, c. 20
establishes an offender grievance procedure to resolve all matters within the
jurisdiction of the Commissioner. This procedure is found in the Corrections
and Conditional Release Regulations, SOR/92-620. The grievance
procedure has three levels of complaint.
[9]
On
September 9, 2008, Mr. Charalambous filed a third level grievance after having
his grievance denied at the previous two steps. The most germane passage from
his listing of issues is the following: “My most disturbing concern is
that the most recent high intensity programs listed on my file are not germane
to my index offence.” As previously noted, only the Odyssey Program is at
issue.
[10]
He
included with the grievance a descriptive narrative of his objections relating
to the Odyssey Program in which he makes the following statements:
My index offence is for first-degree
murder and conspiracy to commit murder. I have no convictions for sexual
assault. Having said that, I acknowledge that there were allegations of sexual misconduct
and assault. … All charges brought forth were subsequently either dropped or
stayed with no further proceedings. There are no convictions in my criminal
record or file for sexual assault…. Therefore, I do not meet the criteria for
the ‘Odyssey’ high intensity sex offender program or any other sex offender
program. These programs have as one of their admission criteria that there must
be convictions for sexual assault.
[11]
The
relevant portion of the decision under review reads as follows:
Review of the information reveals that in
2005 your CTP was changed to adjust to new programming names and to adjust to
your needs. At that time you were referred to the Moderate Intensity Family
Violence Program and the High Intensity Sex Offender Program. In an Assessment
for Decision (A4D) regarding your Offender Security Level (OSL) dated
2008-01-18, it is noted that you were willing to attend these programs
when they are offered. In addition, a Correctional Plan Progress Report
(CPPR) dated 2005-12-13, indicates that after a thorough file review,
consultation with professionals, discussion with both the Unit Board and
Programs Board at Mission Institution, it was determined that your CTP needed
to be changed to a referral to the High Intensity Sex Offender Program followed
by completion of the Moderate Intensity Family Violence Program.
…
Based on the above information, it is
believed that you would benefit from participation in the Moderate
Intensity Family Violence Program and the High Intensity Sex Offender Program
as both programs would assist in addressing your risk to re-offend and assist
with your eventual reintegration and release to the community. As such,
this portion of your grievance is denied.
ISSUE
[12]
Only
one issue is raised by the Applicant in his Amended Application and Memorandum
of Fact and Law: “Did the Third Level decision-maker violate the rules of
procedural fairness by failing to provide adequate reasons for why the Odyssey
Program should be included on the Applicant’s correctional plan?”
ANALYSIS
[13]
It
is agreed that the standard of review of a question relating to the adequacy of
reasons is correctness as it is an issue of procedural fairness: Canada (Attorney
General) v. Sketchley, 2005 FCA 404.
[14]
Both
parties relied on the decision in Via Rail Canada Inc. v. National
Transportation Agency, [2001] 2 F.C. 25 (C.A.) as setting out the
principles when considering the adequacy of reasons.
[15]
The
Applicant focused on paragraphs 21 and 22 of Via Rail:
21 The duty to give reasons is only fulfilled if the reasons
provided are adequate. What constitutes adequate reasons is a matter to be
determined in light of the particular circumstances of each case. However,
as a general rule, adequate reasons are those that serve the functions for
which the duty to provide them was imposed. In the words of my learned
colleague Evans J.A., "[a]ny attempt to formulate a standard of adequacy
that must be met before a tribunal can be said to have discharged its duty to
give reasons must ultimately reflect the purposes served by a duty to give
reasons.”
22 The obligation to provide adequate reasons is not satisfied by
merely reciting the submissions and evidence of the parties and stating a
conclusion. Rather, the decision maker must set out its findings of fact and
the principal evidence upon which those findings were based. The reasons must
address the major points in issue. The reasoning process followed by the
decision maker must be set out and must reflect consideration of the main
relevant factors.
[Footnotes omitted]
[16]
The
Applicant submits that the reasons at issue failed to address one of the major
points in issue; namely that the Applicant was assigned to take the Odyssey
Program despite failing to meet one of its admission criteria – he was not an
offender “currently or formerly convicted of one or more sexual offences.”
[17]
The
Respondent prefers to focus on paragraph 19 of Via Rail where the Court
states:
19
[R]easons allow the parties to effectuate any right of appeal or judicial
review that they might have. They provide a basis for an assessment of possible
grounds for appeal or review. They allow the appellate or reviewing body to
determine whether the decision maker erred and thereby render him or her
accountable to that body. This is particularly important when the decision is
subject to a deferential standard of review.
[18]
The
Respondent submits that the reasons of the decision under review meet that
test.
[19]
The
Commissioner did more than merely recite evidence and submissions. The Commissioner
explained why the evidence led to the denial of the grievance. The Commissioner
explained why the Odyssey Program was included in the Applicant’s CTP. However,
the Applicant is correct in noting that the Commissioner failed to discuss the
criteria for inclusion in the Odyssey Program – criteria that the Applicant
raised as an issue in his grievance. While this failure was an error, I do not
find that it renders the Commissioner’s reasons inadequate.
[20]
The
reasons are adequate enough to allow a reviewing court to understand the
evidence that was considered, to ascertain whether each of the complaints was
touched upon, and to analyze the decision-maker’s reasoning. In the context of
the offender grievance procedure, this is all that the duty of fairness
required. The reasons are sufficient to allow the Applicant to attack the
decision on its merits. The failure of the Commissioner to address whether the
Applicant meets the criteria for the Odyssey Program, even if he has been
recommended to receive it, goes to the issue of the reasonableness of the
Commissioner’s decision, but that is not an issue before this Court in this
application.
[21]
Accordingly,
the application is dismissed. The Respondent asked for costs, which the
Applicant resists. In the circumstances, I exercise my discretion not to award
costs against Mr. Charalambous.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this application for
judicial review is dismissed, without costs.
“Russel
W. Zinn”
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