Date: 20090916
Docket: T-686-08
Citation: 2009 FC 921
Ottawa, Ontario, September 16,
2009
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
ALLAN
MacDONALD
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for a Declaration pursuant to subsection 18(1) of the Federal
Courts Act that the Warden of Joyceville Institution as represented by the
Defendant is in breach of the Order of this Honourable Court.
BACKGROUND
[2]
Allan
MacDonald is an inmate at Warkworth Institution. He is serving a life sentence
for first-degree murder of an off-duty police officer.
[3]
On September 10, 2004 Mr. MacDonald was
convicted of a minor disciplinary offence at Joyceville Institution. He had
been charged under subsection 40(f) of the Corrections Conditional Release Act
(CCRA) of being disrespectful towards a CSC staff member. The only evidence
was the written report of the charging officer. Mr. MacDonald applied for
judicial review of his conviction. On July 31, 2007, Justice Simpson concluded
the written charge did not include enough information to justify a conviction
and set aside the disciplinary conviction: Macdonald v. Canada (Attorney General), 2007 FC 798. Justice Simpson ordered that the all records of the
conviction be removed from the CSC files:
This Court
orders that, for reasons given above, this application for judicial review is
allowed and the Conviction is hereby set aside and all records thereof are to
be removed from the Respondent’s files relating to the Applicant.
[4]
In
2008 Mr. MacDonald was accused of becoming abusive and
was segregated as a result. In the course of review at that time, Mr. MacDonald
became aware that CSC written reports in his files contained references to the
2004 incident. The references in question are the portions in capitals set out
as:
** AS PER CD 701, ANNEX A, A FILE
REVIEW TOOK PLACE IN REGARDS TO THE FEDERAL COURT RULING (2007.07.31) IN FAVOUR
OF OFFENDER MACDONALD “QUASHING” THE INSTITUTIONAL DISCPLINARY COURT CONVICTION
WHICH WAS BASED ON SUBSECTION 40(F) OF THE CORRECTIONS AND CONDITIONAL RELEASE
ACT WHICH INDICATES: “40. AN INMATE COMMITS A DISCIPLINARY OFFENCE WHO (F) IS
DISRESPECTFUL OR ABUSIVE TOWARD A STAFF MEMBER IN A MANNER THAT COULD UNDERMINE
A STAFF MEMBER’S AUTHORITY.” ON MAY 13, 2008 THIS REPORT WAS UNLOCKED AND HAS
BEEN AMENDED TO INCLUDE THE CHANGES. THE ORIGINAL DATE OF THE REPORT IS
2005.06.20 AND WAS AUTHORED BY PAROLE OFFICER W. COOK. CHANGES WERE MADE BY
ACTING PAROLE OFFICER ANDREW VANHORN UNDER THE AUTHORITY OF CCRA SECTION 24 AND
MANAGER OF ASSESSMENT AND INTERVENTION ELISABETH HOEDICKS AT JOYCEVILLE INSTITTUTION.
CHANGES ARE MADE BELOW UNDERNEATH THE ORIGINAL INFORMATION. **
…
… On 04/09/08 he received a minor
charge for being disrespectful to staff in connection with an incident where he
laughed at an officer in a way that undermined their authority on the way back
to his cell. As a result of this incident he served 4 days in segregation.
** THE RELIABLE INFORMATION PROVIDED
BY THE CHARGING CORRECTIONAL OFFICER INDICATES THE INCIDENT DID OCCUR.
HOWEVER, IN QUESTION, AND FOUND IN FAVOUR OF THE OFFENDER MACDONALD, WAS
WHETHER THE INCIDENT UNDERMINED THE OFFICER’S AUTHORITY. FEDERAL COURT RULED
THAT THE INCIDENT DID NOT UNDERMINE THE OFFICERS AUTHORITY AND THE
INSTITUTIONAL DISCIPLINARY COURT CONVICITION WAS “QUASHED”. AFTER A FILE
REVIEW ANY REFERENCE TO THIS “QUASHED” CONVICTION HAS BEEN DULY NOTED AND WILL
NOT BE TAKEN INTO CONSIDERATION WITH REGARDS TO ANY DECISION MAKING. OFFENDER
MACDONALD WAS ORIGINALLY CONVICTED IN DISCPLINARY COURT ON SEPTEMBER 10, 2004.
THE FEDERAL COURT RULING IN HIS FAVOUR IS DATED JULY 31, 2007 AND JUDGEMENT
GIVEN BY SANDRA J. SIMPSON. **
[5]
The
Applicant seeks a declaration that the Respondent has breached the order of
this Court, and that his files be reviewed and any reference to the 2004
incident be expunged.
ISSUE
[6]
I
am of the view that the issue is simply did the CSC comply with the order of
Justice Simpson?
STANDARD OF REVIEW
[7]
In
Dunsmuir v. New Brunswick, 2008 SCC 9,
the Supreme Court of Canada found that an exhaustive analysis to
determine the standard of review is not necessary in every case. Rather, if
there is jurisprudence that has determined the standard of review in prior
cases, it is sufficient determination of the standard of review.
[8]
The
Applicant submits that the duty to act fairly is triggered by section 24 of the
Corrections and Conditional Release Act, S.C. 1992 c.20. The Applicant
submits that the standard is correctness based on the duty of prison officials
to act fairly: De Maria v. Regional Classification Board, [1986] F.C.J.
No. 171; and McInroy v. Canada, [1985] F.C.J. No. 448. These decisions
are mainly prison transfer cases and are not directly on point with respect to
the issue at hand.
[9]
The
Respondent submits that the proper standard of review is reasonableness. In Brown
v. Canada, 2006 FC 463, Justice Mactavish found that the standard of review
in matters of this sort was reasonableness. Brown was a judicial review
regarding a decision refusing to remove information relating to allegations of
an assault from the applicant’s record. In Brown, Justice Mactavish affirmed Justice Lemieux’s pragmatic and
functional analysis in Tehrankari v. Canada, [2000] F.C.J. No. 495 where
Justice Lemieux concluded that:
I would apply the standard of
reasonableness simpliciter if the question involved is either the
application of proper legal principles to the facts or whether the refusal
decision to correct information on the offender’s files was proper.
[10]
I
agree with the analysis in Brown and Tehrankari. The standard of review
when applying the statutory requirements of section 24, CCRA to the facts the
standard of reasonableness is appropriate.
LEGISLATION
[11]
Section
24 of the CCRA states:
|
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.
Correction of
information
(2) Where an offender who has been given access to information by the
Service pursuant to subsection 23(2) believes that there is an error or
omission therein,
(a) the offender may request the Service to correct that
information; and
(b) where
the request is refused, the Service shall attach to the information a
notation indicating that the offender has requested a correction and setting
out the correction requested.
|
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.
Correction des renseignements
(2) Le délinquant qui croit que les renseignements auxquels il a eu
accès en vertu du paragraphe 23(2) sont erronés ou incomplets peut demander
que le Service en effectue la correction; lorsque la demande est refusée, le
Service doit faire mention des corrections qui ont été demandées mais non
effectuées.
|
ANALYSIS
[12]
The
Applicant submits that he was segregated in 2008 on the basis that he was
acting in a similar manner as the 2004 incident which he had denied. This
conviction was set aside by Court Order. He submits the CSC was in breach of
Justice Simpson’s Order because the CSC records continue to contain information
regarding the Applicant’s conduct in the 2004 incident.
[13]
The
Respondent submits that they have complied with the Court Order. The reports
in issue were amended by inserting the information that the minor charge had
been quashed by the Federal Court, along with a notation that the quashed
conviction was not to be taken into consideration for decision making
purposes.
[14]
In
the CPPR report there is reference to the initial incident giving rise to the
grievance and that the minor charge occurred. Any mention of the conviction
had been removed from the CPPR report. The Respondent submits that the current
CSC policy is that Incident Reports and Notification of Charge forms are not
removed from the offender’s file. Rather, all relevant documents are amended
to indicate that he was found not guilty.
[15]
In
Brown, at para. 25, Justice Mactavish noted that there is a difference
between allegation of an incident and an assertion that the event took place.
I agree with the reasoning in Brown that there are valid reasons why the
CSC should keep a record of allegations made against an inmate if only as a
record of interactions between an inmate and a CSC officer.
[16]
The
July 31, 2007 Court Order sets aside “the Conviction”
and directs “all references thereof are to be removed from the
Respondent’s files relating to the Applicant.” (emphasis added) The wording
of the Order clearly refers to the conviction. As such the Order does not
include references to the fact that the allegation was made.
[17]
Regretfully, that is not the end of the matter.
The CSC insertion editorializes on the Court decision. The CSC official’s
assertion that “The reliable information provided by the charging officer
indicates the incident did occur” coupled with the use of the word “quashed” in
quotations (a term not used in the Court order) is disingenuous and is not in
compliance with the clear direction of the Court Order. If CSC was uncertain
about the Court Order’s intent, it could seek clarification from the Court. It
is not open for CSC officials to assert the equivalent of a conviction by
adding editorial comment.
[18]
The
application for judicial review is granted in part. The offending reference
will be removed and replaced by:
**ON JUDICIAL REVIEW FEDERAL COURT
RULED THAT THE EVIDENCE WAS INSUFFICIENT FOR A CONVICTION OF UNDERMINING THE
OFFICER’S AUTHORITY AND THE INSTITUTIONAL DISCIPLINARY COURT CONVICTION WAS SET
ASIDE. AFTER A FILE REVIEW ANY REFERENCE TO THIS CONVICTION WILL NOT BE TAKEN
INTO CONSIDERATION WITH REGARDS TO ANY DECISION MAKING. OFFENDER MACDONALD WAS
ORIGINALLY CONVICTED IN DISCIPLINARY COURT ON SEPTEMBER 10, 2004. THE FEDERAL
COURT RULING IN HIS FAVOUR IS DATED JULY 31, 2007 AND JUDGMENT GIVEN BY SANDRA
J. SIMPSON.**
[19]
Having
regards to the divided success in this matter, I make no order for costs.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The application for judicial review is granted
in part.
2.
The offending reference will be removed and
replaced by:
**ON JUDICIAL REVIEW FEDERAL COURT
RULED THAT THE EVIDENCE WAS INSUFFICIENT FOR A CONVICTION ON UNDERMINING THE
OFFICER’S AUTHORITY AND THE INSTITUTIONAL DISCIPLINARY COURT CONVICTION WAS SET
ASIDE. AFTER A FILE REVIEW ANY REFERENCE TO THIS CONVICTION WILL NOT BE TAKEN
INTO CONSIDERATION WITH REGARDS TO ANY DECISION MAKING. OFFENDER MACDONALD WAS
ORIGINALLY CONVICTED IN DISCPLINARY COURT ON SEPTEMBER 10, 2004. THE FEDERAL
COURT RULING IN HIS FAVOUR IS DATED JULY 31, 2007 AND JUDGMENT GIVEN BY SANDRA
J. SIMPSON. **
3. No order is made for costs.
“Leonard
S. Mandamin”
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