Date: 20090928
Docket: T-1266-08
Citation: 2009 FC 971
Ottawa, Ontario, September 28,
2009
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
JEFF EWERT
Applicant
and
THE ATTORNEY GENERAL OF CANADA AND
THE COMMISSIONER OF THE CORRECTIONAL
SERVICE OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
By
order dated May 28, 2009, pursuant to Rule 220 of the Federal Courts
Rules, I set down for hearing and determination, in this judicial review
application, two preliminary questions of law namely:
1) Does the
decision denying the Proposal make the Applicant’s judicial review application
moot?; and
2) If the
Applicant’s judicial review application is not moot, does the grievance
procedure established by the Corrections and Conditional Release Act and
Regulations constitute an adequate alternative remedy leading the Court to
exercise its discretionary authority to decline to exercise its judicial review
jurisdiction?
[2]
Jeff
Ewert (the Applicant) is an inmate at the Kent Penitentiary (Kent), a maximum
security prison, and at the relevant times, Chairman of its Unit 2 Prisoner’s
Committee. He is the Applicant in this judicial review application in which he
seeks a number of remedies against the Respondent, Correctional Service of
Canada (CSC), in connection with what he describes as CSC’s “final decision,
dated May 14, 2008, to deny federal serving prisoners to purchase movies
that are available for purchase on DVD by the free and general public for
showing within the penitentiary setting, contrary to law and the Canadian
Radio-Television and Telecommunications Commission (CRTC) Regulations.”
Facts
[3]
On
March 8, 2008, the Applicant, in his capacity as Chairman of the Unit 2
Prisoner’s Committee at Kent, wrote a lengthy letter to the Commissioner of the
CSC (the Commissioner) in which he raised several issues. One issue was the
dropping of Movie Central 1 and Movie Central 2 from the then current Shaw
Cable contract for which the inmates are charged and replacing those two
channels with two closed-circuit DVD undertakings (the Proposal). He indicated Kent’s Unit 1
Prison Committee also supported the Proposal.
[4]
In
his letter to the Commissioner, Mr. Ewert stated CSC’s Regional Headquarters
for the Pacific (RHQ Pacific) was under the erroneous impression there were
copyright issues which would preclude the implementation of the Proposal. As a
result, Kent should not
be adhering to the 1998 policy enunciated by P.H. de Vink, the Deputy
Commissioner (Pacific) not to allow the rental or viewing of videos in the
penitentiaries in the Pacific Region.
[5]
Mr.
Ewert stated the DVD undertakings being proposed are perfectly legal pointing
to CRTC Public Notice 2000-10, which are the final revisions to certain CRTC
exemption orders. He focussed on that part of the Public Notice which
specifically applied to closed-circuit video programming undertakings enabling
them to provide a programming service, whether for a separate fee or not, to temporary
residents of hotels, motels, hospitals and/or the inmates of prisons only
(my emphasis). The CRTC public notice went on to explain the programming
consists only of feature motion pictures intended for theatrical release, video
games programming services and information or news.
[6]
In
his March 8, 2008 letter, Mr. Ewert stated the CRTC Public Notice
2000-10 made it clear there is no copyright issue “so long as we do not profit
from the showing of DVDs on our closed-circuit channels.”
[7]
On
May 14, 2008, Elizabeth Van Allen, then Executive Director in the
Executive Secretariat at the CSC responded to Mr. Ewert’s May 8, 2008 letter.
She swore an affidavit in this judicial review application. She was not
cross-examined. In that affidavit, she explains that part of her duties as
Executive Director was to respond to correspondence received in the Office of
the Commissioner. She stated she had no delegated or other decision-making
authority with respect to inmate complaints or grievances including whether
inmates may purchase DVDs or the use of closed-circuit television at Kent. (My emphasis.)
At paragraph 7 of her affidavit, she writes: “In mentioning those issues in
my letter I was simply conveying information I had received from Kent Institution.” (My
emphasis.)
[8]
She
wrote the following to Mr. Ewert about the Proposal:
Your request to replace current movie
channels with DVDs to be played over closed-circuit television cannot be
approved since this would be a violation of copyright laws. Furthermore, the
institution does not have the capacity for a stand-alone closed-circuit
television channel.
Since the other issues raised in your
correspondence were addressed in previous responses, I will not comment further
on them.
In closing, I would like to reiterate
that inmates may write to the Commissioner without any fear of reprisals by
institutional authorities, and to encourage you to use the offender redress
system to address concerns that cannot be resolved though discussions with the
institutional management.
(My emphasis.)
[9]
Mr.
Ewert’s application record contains his affidavit and several exhibits. He was
not cross-examined. Mr. Ewert traced some of the history behind the evolution
of the efforts by the various prisoner units at Kent to obtain approval
for DVD showings. He referred to his letter of July 24, 2006, in which he
forwarded a Proposal for consideration by management at Kent. He also
enclosed, with that letter, documentation he had obtained from the CRTC a few
weeks earlier. He argued the legal concerns of violating copyright which led to
the discontinuance of the video rental program were no longer applicable having
been overtaken by the CRTC’s Public Notice 2000-10-1 on closed circuit video programming.
In his view, the Proposal was copyright clear.
[10]
In
his affidavit, Mr. Ewert states that on August 17, 2006, the then Warden
at Kent rejected the
Proposal; but did not mention copyright was the reason. At paragraph 8, Mr.
Ewert says, at subsequent warden meetings, Warden Lubimiv told him the viewing
of feature full-length motion pictures on a closed-circuit DVD undertaking
constituted a violation of copyright law.
[11]
His
affidavit relates that on September 22, 2006, he sent a revised
suggestion to allay the Warden’s concerns. He again referred to the CRTC public
notice stating: “nor is there a copyright issue whatsoever when we purchase the
DVDs as the film company royalties are included in the price of the DVDs.”
[12]
Of
this revised Proposal, Mr. Ewert states at paragraph 10 of his affidavit:
10. The proposal sat in limbo for some
time, neither being formally denied nor approved, but nothing came of it. Kent senior management said they were waiting
for a legal opinion.
[13]
Mr.
Ewert’s application record was also supported by a number of other affidavits
including that of James Doherty, an inmate at Kent since 1994
who deposed at that time there existed a close-circuit undertaking through
which Video Cassette Recordings (VCR) of popular feature length movies were
available for viewing in each prisoner’s cell on channel 10. These VCR movie
rentals were the same movies that were available at movie rental outlets
serving the general public. Mr. Doherty provided other details on the
functioning of the VCR viewing system at Kent. Another
affidavit is that of Robert Johnstone who had been held at the provincial Wilkinson
Road
jail in Victoria, B.C. He
states he owned a Playstation 2 and numerous feature length DVD movies he
purchased with his own funds. David Poirier also deposed an affidavit in which
he talked about the availability of DVD movies at the Fraser Regional
Correctional Remand Centre. He said the DVD’s were shown by a closed-circuit
undertaking connected to the cable outlets in each cell.
[14]
What
precipitated subsequent events connected to Mr. Ewert’s challenge of Elizabeth
Van Allen’s May 14, 2008 “decision”, was spawn in the affidavit of Gordon
Mattson, sworn on October 21, 2008. He is the Assistant Warden, Management
Services at Kent. In his
affidavit, upon which he was not cross-examined, he deposed to the following:
·
The
Applicant has proposed inmates at Kent be authorized to
purchase movies for broadcast on closed-circuit television to inmates at Kent.
·
Before
May 6, 2008, the management at Kent understood
the Proposal could not be considered because it would violate copyright laws.
·
On
May 6, 2008, he had a meeting with members of management at Kent and
representatives of the Unit 2 Committee where the Proposal was discussed and
where the CRTC public notice was referred to by the Applicant.
[15]
Paragraphs
6, 7 and 8 of his affidavit read:
6.
At that
meeting Heidi Wall, Procurement Contracting Specialist,
Regional Supply Depot with the CSC
advised the Applicant that the issue of whether the Applicant’s proposal
would result in a violation of copyright would be referred for further
consideration and consultation within the CSC. To my knowledge the copyright
issue is still being canvassed by the CSC.
7.
If it is
concluded that the Applicant’s Proposal would not result
in a violation of copyright, then
additional issues flowing from the Proposal will need to be considered. These
additional issues include the capacity to and cost associated with implementing
a closed circuit broadcast system within Kent Institution (including electrical infrastructure
requirements) and the degree of support for the Applicant’s Proposal
within the inmate population.
8.
If the
Applicant is dissatisfied with the response Kent Institution
provides to his Proposal, he will be
able to challenge it by way of the offender redress process. (My emphasis.)
[16]
When
this matter came before me in Vancouver, on February 6, 2009, I was informed
the long-awaited CSC’s view on whether the Proposal violated Canada’s Copyright
laws “had been prepared in draft form but had been placed in abeyance
pending the outcome of this judicial review application”. I then expressed the
view the release of CSC’s opinion should be finalized and issued before the
judicial review application proceeded. With the agreement of the parties, Mr.
Ewert’s judicial review application was adjourned.
[17]
On
February 27, 2009, Heidi Wall wrote to the Warden at Kent Institution
and commented on the Proposal. That same day, the Warden wrote to the Unit 2
Committee stating he had “reviewed your Proposal submitted in February 2008 … to
remove two cable movie channels from the current Shaw cable contract and
replace them with purchased DVDs to be played over Kent Institution’s closed
circuit television system.” She enclosed a copy of the memorandum of Heidi Wall
had sent to her and said she was in agreement with Ms. Wall’s assessment and
“adopted her reasoning as my own”. Warden Diane Knopf concluded:
Accordingly, your Proposal to replace
movie channels with purchased DVDs to be played over institutional closed
circuit television is denied.
If you are dissatisfied with this
decision, you may grieve it to the Regional Deputy Commissioner, second level,
in accordance with Commissioner’s Directive 081. (My emphasis.)
[18]
I
summarize Heidi Wall’s findings which are based on “her research and
consultations with CSC.”
1. She referred
to the definition of copyright in section 3 of the Copyright Act as
including the sole right to “publicly present the work as a
cinematographic work” and “to communicate the work to the public by
telecommunication.” Based on her research and consultations, she concluded the
playing of DVD’s over Kent’s institution closed circuit television to multiple
inmate cells are covered by section 3 of the Copyright Act. She added:
Therefore, to ensure that CSC is not in
violation of section 27 of the Act, it would have to enter into separate
licensing arrangements with studio film distributors before DVDs could be
purchased and broadcast over closed circuit television systems. It is for this
reason that, prior to the introduction of cable/satellite services inside
penitentiaries, CSC held licensing agreements with several Canadian film
distribution companies so as to permit the showing of VHS films to inmate cells
via closed circuit systems.
2. She commented
on the point raised by the Unit 2 Committee no copyright issue arose because a
portion of the DVD purchase price is directed towards copyright licensing fees.
She stated:
It is my understanding that any licensing
fees that may be included in the purchase price of a DVD apply only to private
viewings such as the showing of a movie in a domestic residence and do not
include royalties for telecommunication to the public.
and concluded on this
issue:
Therefore, any fees paid as part of the
DVD purchase price would not overcome the copyright concerns raised by the
Inmate Committee’s Proposal and a separate agreement with film distribution
companies would be required in order to ensure compliance with the Copyright
Act.
The above circumstances should be
distinguished from the distribution of video signals (including movie channels
from cable/satellite service providers) in prisons as royalties for the
distribution of movies are paid by the service providers. Therefore, in the
case of cable/satellite services, royalties for telecommunication to the public
are subsumed in the cost of the subscription.
3. She then
tackled another issue raised by Mr. Ewert’s Unit 2 Committee, namely, the
inmates would derive no profit from the showing of the DVDs nor would they sell
advertisements as part of their Proposal. She wrote:
This position is untenable in law because
the rights under section 3 of the Copyright Act are stand-alone.
In her view, this
section applies whether a third party profits from the public presentation or
telecommunication of a cinematic work.
4. She then
discussed one of the main points raised by the Unit 2 Committee: the contention
the CRTC Public Notice in 2000 permitting the broadcast on closed circuit
televisions in prisons creates an exemption to the application of Canadian
copyright laws. She stated:
I have reviewed the notice and its
predecessors and, based on my research and consultations, can advise that the
CRTC Notice has no bearing on the copyright issues raised above. The CRTC
Notice provides an exemption to Part II of the Broadcasting Act, which
deals generally with the powers of the CRTC to regulate and supervise the Canadian
broadcasting system. In summary, the exemption makes it unnecessary for a
licence to be obtained from the CRTC to broadcast certain television programs
in limited situations. However, the notice applies only to potential issues
raised under the Broadcasting Act and does not resolve any possible
violations under the Copyright Act. As discussed above, these latter
issues must be addressed through appropriate licensing arrangements.
5. Heidi Wall
also addressed operational considerations expressing the issue in these terms:
In view of the fact that additional
contracts would be required to address the copyright issues raised by the
Inmate Committee’s Proposal, I consulted with National Headquarters as to
whether CSC would consider entering into similar agreements once again
(contracts of this nature would require national approval). In summary, National
Headquarters is not supportive of this approach mainly for the policy
reasons that prompted CSC to end their previous agreements in 1998 – notably
the high costs involved in maintaining such licences and the fact that
cable/satellite services provide a broad range of programming, including
movies, in a more cost-effective, flexible and operationally feasible manner at
the current time.
The Supplementary
records
[19]
Both
parties took advantage of the opportunity I provided to them to file
supplementary records.
[20]
Mr.
Ewert filed the following:
1) The
affidavit of Donald Rivoire, current Chairman of the Unit 2 Inmate Committee at
Kent who deposed
about discussions with senior management on the possibility of reopening the
Shaw cable contract;
2)
A supplementary memorandum of fact and law; and,
3) Additional
authorities.
[21]
Counsel
for the Respondent filed the following:
1) The
affidavit of Ruth Paterson, an administrative assistant at Kent. She deposed
Mr. Ewert had not grieved the Warden’s decision, dated February 27, 2009
denying the Proposal;
2) The
affidavit of Linda Stade, Regional Chief (Pacific Region), Inmate Affairs at
the CSC. She advised the Court Mr. Ewert would be granted an extension of time
to file a second level grievance on the Warden’s decision denying the Proposal
if he did so within 20 days from the date of any order of the Federal Court
dismissing his judicial review application on account of an adequate,
alternative remedy;
3) Additional
materials; and,
4) A
supplementary memorandum of argument.
Analysis
(a) The Mootness issue
[22]
I
need not resolve this issue. Counsel for the CSC continued to press the point
Elizabeth Van Allen’s letter was not a decision and, if it was, it had been
overtaken by Warden Knopf’s decision to deny Unit 2’s Proposal. I informed
counsel for CSC, if such was the case, the interests of justice would dictate a
remedy to this procedural objection which would be to permit, with such
additional changes to the filed affidavits as may be required, an amendment to
Mr. Ewert’s judicial review application to enable the substitution of the May
14, 2008 purported decision with Warden Knopf’s February 27, 2009
decision which denied the Proposal. Counsel for CSC agreed such amendments
would cure the mootness issue subject to the available adequate alternative
remedy argument.
(b) The adequate alternative remedy
issue
(i) The legislation and the regulations
[23]
I
set out in an Annex to these reasons, section 90 of the Corrections
and Conditional Release Act (CCRA) and sections 74 to 82 of the Corrections
and Conditional Release Regulations (CCRR) which establish the grievance
procedure mandated there under (the grievance procedure).
[24]
In
addition, the provisions of the CCRA and the CCRR on offender complaints have
been supplemented by the Commissioner’s Directive 081, put into place to support
the resolution of offender complaints and grievances promptly and fairly. These
Directives, amongst other matter, classifies grievances for priority treatment
and attaches short time frames for treatment in accordance to priority.
(ii) Mr. Ewert’s arguments
[25]
Mr.
Ewert advanced a number of arguments why the grievance procedure mandated by
the CCRA and the CCRR did not provide an adequate alternative remedy to
judicial review of the decision denying the Proposal. I summarize his arguments.
[26]
First,
he argued the Supreme Court of Canada in May v. Ferndale Institution, [2005]
3 S.C.R. 809 (May v. Ferndale) had already determined the inmate
grievance system provided in the CCRA, the CCRR and the Commissioner’s
Directives not to be an adequate alternative remedy to judicial review.
[27]
Second,
he submits he has already exhausted the internal grievance process because, in
effect, his March 8, 2008 letter to the Commissioner, responded to by Ms. Van
Allen on May 14, 2008, was equivalent to a third level grievance complaint and
the decision on it could be appealed to this Court by way of judicial
review. He relies on Markevich
v. Canada, [1999] 3 F.C.
28, at paragraphs 10 to 13.
[28]
Third,
he references Deputy Commissioner de Vink’s 1998 memorandum to CSC wardens and
executive directors in the Pacific Region labelled “No Renewal of Criterion
Contract – No showing/renting/purchasing videos.” Mr. Ewert argues a plain
reading shows the rejection of the DVD Proposal was an issue of national CSC
policy decided at the highest levels of the service. In his view, it is a
foregone conclusion his grievance will fail because he would be appealing to
the same people who made the national policy decision, citing Caruana v. Canada (Attorney General), 2006 FC 1355, at paragraph 36.
[29]
Fourth, the dominant
issue separating the parties is a legal issue which has been decided against
him. The Federal Court is a better place to decide such issue.
[30]
Fifth,
the grievance procedure is not apt or appropriate to challenge national
policies. It does not provide an effective remedy. He cited the grievance at
page 105 of his application record dealing with adding sports gloves to the
CSC’s National List of Personal Property. That grievance was upheld at third
level on January 28, 2008 but corrective action has yet to be taken. He gave
another example of the inadequacy of the grievance process in terms of delay.
He referred to a case he was involved in which challenged CSC’s use of certain
risk assessment tools (see Ewert
v. Canada (Attorney General), 2007 FC 13). It took 5 years for his
case to be processed through the inmate grievance system, citing Caruana,
at paragraph 45.
Conclusions
[31]
I
cannot accept Mr. Ewert’s submissions that the grievance procedure available to
him does not provide him with an adequate alternative remedy. I do so for the
following reasons which were substantially submitted to the Court by counsel
for the Respondent.
[32]
It
has been well established by this Court and by the Federal Court of Appeal that
through the CCRA and the CCRR, Parliament and the Governor-in-Council have
established a comprehensive scheme to deal with grievance by inmates lodged in
federal prisons and such grievance system constitutes an adequate alternative
remedy to judicial review which would generally lead the Federal Court to
decline its judicial review jurisdiction until inmates have exhausted those
procedures (see Condo v. Canada (Attorney General), [2003] F.C.J. No.
310; Giesbrecht v. Canada, [1998] F.C.J. No. 621 (Giesbrecht);
Marek v. Canada (Attorney General), 2003 FCT 224; Collin v. Canada
(Attorney General), [2006] F.C.J. No. 729; McMaster v. Canada (Attorney
General), 2008 FC 647 (McMaster)). The alternative remedy need not
be perfect; it must be adequate (see Froom v. Canada (Minister of Justice), 2004 FCA 352).
[33]
Mr. Ewert argues May
v. Ferndale has overtaken this jurisprudence. I do not agree and neither do
my colleagues. In particular, I cite the analysis of my colleague Justice
Dawson in McMaster, above at paragraphs 29 and 32:
29 In
my view, counsel's reliance upon the May decision is misplaced. There,
the issue was the availability of the remedy of habeas corpus from
provincial superior courts when there was an existing right to seek judicial
review in the Federal Court. The majority of the Supreme Court found that
inmates may choose to challenge the legality of a decision affecting their
residual liberty either in a provincial superior court by way of habeas
corpus or in the Federal Court by way of judicial review. In so finding,
the Supreme Court relied, at least in part, on the fact that historically, the
writ of habeas corpus has never been a discretionary remedy. Unlike
other prerogative relief, and declaratory relief, the writ of habeas corpus
issues as of right. The May decision does not, in my view, alter the
obligation of an inmate to pursue the internal grievance procedure before
seeking discretionary declaratory relief on judicial review.
[…]
32 Subsection
81(1) operates to stay the grievance procedure while an inmate pursues an
alternate remedy. That regulatory stay cannot operate to take away or limit the
Court's discretion on judicial review. Similarly, the Supreme Court did nothing
more than recognize that the existence of the grievance procedure did not
preclude an inmate from pursuing a legal remedy. The Court did not alter
existing jurisprudence concerning how a reviewing court would treat an
application for judicial review where existing grievance procedures were not
followed.
[34]
That
is not to say, that in certain circumstances, a judge of this Court may be
persuaded not to decline judicial review jurisdiction: urgency and evident
inadequacy in the grievance procedure.
[35]
I
cannot subscribe to Mr. Ewert’s argument Ms. Van Allen’s May 14, 2008 response
was a decision on the merits of the DVD Proposal taken at the highest level at
National Headquarters and, as such, it would be futile for him to engage the
grievance procedure. The evidence before me establishes Ms. Van Allen had no
authority to make decisions on grievances or complaints and was only reiterating
the views expressed to her at Kent without the benefit of the Warden’s
February 2009 decision. There has yet to be a review of Warden Knopf’s February
decision denying the Proposal. Mr. Ewert suggests to me policies made by the
Commissioner or national policies promulgated are not compatible to grievance
review. In May v. Ferndale, at paragraph 63, the
Supreme Court of Canada briefly touched on this point. In the case before me, I
am not satisfied an open and impartial review of the denial of the Proposal
will not be accorded to Mr. Ewert. Moreover, counsel for the Respondent, during
the hearing, provided me with several examples where national policies have
been the subject of grievance review. Schaefler
v. Canada (Solicitor General), 2004 FC 517 (Schaefler) is an
example and coincidently may have some relevance factually and legally to the
issues in this case.
[36]
I reflected on Mr.
Ewert’s argument the nature of the issue involved in his Proposal is purely a
legal one. That is not so. As Heidi Wall pointed out in her recommendations to
Warden Knopf, there are operational issues involved in the Proposal as there
were in Schaefler. Both the legal issue of copyright and the operational
issues raised by Heidi Wall should be addressed together as a package in the
grievance process. Mr. Ewert should be briefed on the concerns National
Headquarters, which were mentioned by Heidi Wall, so that he may be in a
position to adequately respond during the grievance process.
[37]
I agree with counsel
for the Respondent, the grievance process has many advantages as compared to
judicial review. Justice Rothstein, then a member of this Court, mentioned some
of the advantages in Giesbrecht, at paragraph 10:
10 On
its face, the legislative scheme providing for grievances is an adequate
alternative remedy to judicial review. Grievances are to be handled
expeditiously and time limits are provided in the Commissioner's Directives.
There is no suggestion that the process is costly. If anything it is less
costly than judicial review and more simple and straightforward. Through the
grievance procedure an inmate may appeal a decision on the merits and an appeal
tribunal may substitute its decision for that of the tribunal appealed from.
Judicial review does not deal with the merits and a favourable result to an
inmate would simply return the matter for redetermination to the tribunal
appealed from.
[38]
I
add that in this case, Mr. Ewert knows the legal basis for Ms. Wall’s
conclusions on the DVD copyright issue; he can respond to those conclusions
after seeking legal advice and he can put in additional information at each
level of the grievance process. He can also research the basis of the
provincial experience with DVDs in prisons deposed to by David Poirier.
[39]
I
touch on one last point, Mr. Ewert said the grievance process is slow and that
would be the case in the review of the Proposal. He cites Caruana, at paragraphs 40 to 45. As pointed out by counsel for the
Respondent whether the grievance system has been reasonably responsive from a
timing perspective depends on the facts and circumstances of each particular
case. There may well be contributing factors complicating the decision making
process. I agree with the Respondent, the CSC inmate system on the evidence
before me cannot be found presumptively flawed on account of undue delay in
processing grievances. In addition, he has yet to engage the grievance process
on its denial by the Warden at Kent.
[40]
In
conclusion, this judicial review application is dismissed on the basis of the
existence of an adequate alternative remedy, namely the prescribed Offender
Grievance Procedure contained in the CCRA and the CCRR. No costs are awarded.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial
review application is dismissed. No costs are awarded.
“François
Lemieux”
_____________________________
Judge
ANNEX
|
Corrections and Conditional Release Act
1992, c. 20
Grievance
procedure
90. There shall be a procedure for fairly
and expeditiously resolving offenders’ grievances on matters within the
jurisdiction of the Commissioner, and the procedure shall operate in
accordance with the regulations made under paragraph 96(u).
|
|
Loi
sur le système correctionnel et la mise en liberté sous condition 1992, ch. 20
Procédure
de règlement
90.
Est établie, conformément aux règlements d’application de l’alinéa 96u), une
procédure de règlement juste et expéditif des griefs des délinquants sur des
questions relevant du commissaire.
|
|
Corrections
and Conditional Release Regulations
(SOR/92-620)
Offender Grievance Procedure
74. (1) Where
an offender is dissatisfied with an action or a decision by a staff member,
the offender may submit a written complaint, preferably in the form provided
by the Service, to the supervisor of that staff member
(2) Where a
complaint is submitted pursuant to subsection (1), every effort shall be made
by staff members and the offender to resolve the matter informally through
discussion.
(3) Subject to
subsections (4) and (5), a supervisor shall review a complaint and give the
offender a copy of the supervisor's decision as soon as practicable after the
offender submits the complaint.
(4) A
supervisor may refuse to review a complaint submitted pursuant to subsection
(1) where, in the opinion of the supervisor, the complaint is frivolous or
vexatious or is not made in good faith.
(5) Where a
supervisor refuses to review a complaint pursuant to subsection (4), the
supervisor shall give the offender a copy of the supervisor's decision,
including the reasons for the decision, as soon as practicable after the
offender submits the complaint.
75. Where a
supervisor refuses to review a complaint pursuant to subsection 74(4) or
where an offender is not satisfied with the decision of a supervisor referred
to in subsection 74(3), the offender may submit a written grievance,
preferably in the form provided by the Service,
(a) to the
institutional head or to the director of the parole district, as the case may
be; or
(b) where the
institutional head or director is the subject of the grievance, to the head
of the region.
76. (1) The
institutional head, director of the parole district or head of the region, as
the case may be, shall review a grievance to determine whether the
subject-matter of the grievance falls within the jurisdiction of the Service.
(2) Where the
subject-matter of a grievance does not fall within the jurisdiction of the
Service, the person who is reviewing the grievance pursuant to subsection (1)
shall advise the offender in writing and inform the offender of any other
means of redress available.
77. (1) In the
case of an inmate's grievance, where there is an inmate grievance committee
in the penitentiary, the institutional head may refer the grievance to that
committee.
(2) An inmate
grievance committee shall submit its recommendations respecting an inmate's
grievance to the institutional head as soon as practicable after the
grievance is referred to the committee.
(3) The
institutional head shall give the inmate a copy of the institutional head's
decision as soon as practicable after receiving the recommendations of the
inmate grievance committee.
78. The person
who is reviewing a grievance pursuant to section 75 shall give the offender a
copy of the person's decision as soon as practicable after the offender
submits the grievance.
79. (1) Where
the institutional head makes a decision respecting an inmate's grievance, the
inmate may request that the institutional head refer the inmate's grievance
to an outside review board, and the institutional head shall refer the
grievance to an outside review board.
(2) The
outside review board shall submit its recommendations to the institutional
head as soon as practicable after the grievance is referred to the board.
(3) The
institutional head shall give the inmate a copy of the institutional head's
decision as soon as practicable after receiving the recommendations of the
outside review board.
80. (1) Where
an offender is not satisfied with a decision of the institutional head or
director of the parole district respecting the offender's grievance, the
offender may appeal the decision to the head of the region.
(2) Where an
offender is not satisfied with the decision of the head of the region
respecting the offender's grievance, the offender may appeal the decision to
the Commissioner.
(3) The head
of the region or the Commissioner, as the case may be, shall give the
offender a copy of the head of the region's or Commissioner's decision,
including the reasons for the decision, as soon as practicable after the offender
submits an appeal.
81. (1) Where
an offender decides to pursue a legal remedy for the offender's complaint or
grievance in addition to the complaint and grievance procedure referred to in
these Regulations, the review of the complaint or grievance pursuant to these
Regulations shall be deferred until a decision on the alternate remedy is
rendered or the offender decides to abandon the alternate remedy.
(2) Where the
review of a complaint or grievance is deferred pursuant to subsection (1),
the person who is reviewing the complaint or grievance shall give the
offender written notice of the decision to defer the review.
82. In
reviewing an offender's complaint or grievance, the person reviewing the
complaint or grievance shall take into consideration
(a) any
efforts made by staff members and the offender to resolve the complaint or
grievance, and any recommendations resulting therefrom;
(b) any
recommendations made by an inmate grievance committee or outside review
board; and
(c) any
decision made respecting an alternate remedy referred to in subsection 81(1).
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Règlement
sur le système correctionnel et la mise en liberté sous condition (DORS/92-620)
Procédure
de règlement de griefs des délinquants
74.
(1) Lorsqu'il est insatisfait d'une action ou d'une décision de l'agent, le
délinquant peut présenter une plainte au supérieur de cet agent, par écrit et
de préférence sur une formule fournie par le Service.
(2)
Les agents et le délinquant qui a présenté une plainte conformément au
paragraphe (1) doivent prendre toutes les mesures utiles pour régler la
question de façon informelle.
(3)
Sous réserve des paragraphes (4) et (5), le supérieur doit examiner la
plainte et fournir copie de sa décision au délinquant aussitôt que possible
après que celui-ci a présenté sa plainte.
(4)
Le supérieur peut refuser d'examiner une plainte présentée conformément au
paragraphe (1) si, à son avis, la plainte est futile ou vexatoire ou n'est
pas faite de bonne foi.
(5)
Lorsque, conformément au paragraphe (4), le supérieur refuse d'examiner une
plainte, il doit fournir au délinquant une copie de sa décision motivée
aussitôt que possible après que celui-ci a présenté sa plainte.
75.
Lorsque, conformément au paragraphe 74(4), le supérieur refuse d'examiner la
plainte ou que la décision visée au paragraphe 74(3) ne satisfait pas le
délinquant, celui-ci peut présenter un grief, par écrit et de préférence sur
une formule fournie par le Service :
a)
soit au directeur du pénitencier ou au directeur de district des libérations
conditionnelles, selon le cas;
b)
soit, si c'est le directeur du pénitencier ou le directeur de district des
libérations conditionnelles qui est mis en cause, au responsable de la région
76.
(1) Le directeur du pénitencier, le directeur de district des libérations
conditionnelles ou le responsable de la région, selon le cas, doit examiner
le grief afin de déterminer s'il relève de la compétence du Service.
(2)
Lorsque le grief porte sur un sujet qui ne relève pas de la compétence du
Service, la personne qui a examiné le grief conformément au paragraphe (1)
doit en informer le délinquant par écrit et lui indiquer les autres recours
possibles.
77.
(1) Dans le cas d'un grief présenté par le détenu, lorsqu'il existe un comité
d'examen des griefs des détenus dans le pénitencier, le directeur du
pénitencier peut transmettre le grief à ce comité.
(2)
Le comité d'examen des griefs des détenus doit présenter au directeur ses
recommandations au sujet du grief du détenu aussitôt que possible après en
avoir été saisi.
(3)
Le directeur du pénitencier doit remettre au détenu une copie de sa décision
aussitôt que possible après avoir reçu les recommandations du comité d'examen
des griefs des détenus.
78.
La personne qui examine un grief selon l'article 75 doit remettre copie de sa
décision au délinquant aussitôt que possible après que le détenu a présenté
le grief.
79.
(1) Lorsque le directeur du pénitencier rend une décision concernant le grief
du détenu, celui-ci peut demander que le directeur transmette son grief à un
comité externe d'examen des griefs, et le directeur doit accéder à cette
demande.
(2)
Le comité externe d'examen des griefs doit présenter au directeur du
pénitencier ses recommandations au sujet du grief du détenu aussitôt que
possible après en avoir été saisi.
(3)
Le directeur du pénitencier doit remettre au détenu une copie de sa décision
aussitôt que possible après avoir reçu les recommandations du comité externe
d'examen des griefs.
80.
(1) Lorsque le délinquant est insatisfait de la décision rendue au sujet de
son grief par le directeur du pénitencier ou par le directeur de district des
libérations conditionnelles, il peut en appeler au responsable de la région.
(2)
Lorsque le délinquant est insatisfait de la décision rendue au sujet de son
grief par le responsable de la région, il peut en appeler au commissaire.
(3)
Le responsable de la région ou le commissaire, selon le cas, doit transmettre
au délinquant copie de sa décision motivée aussitôt que possible après que le
délinquant a interjeté appel.
81.
(1) Lorsque le délinquant décide de prendre un recours judiciaire concernant
sa plainte ou son grief, en plus de présenter une plainte ou un grief selon
la procédure prévue dans le présent règlement, l'examen de la plainte ou du
grief conformément au présent règlement est suspendu jusqu'à ce qu'une
décision ait été rendue dans le recours judiciaire ou que le détenu s'en
désiste.
(2)
Lorsque l'examen de la plainte ou au grief est suspendu conformément au
paragraphe (1), la personne chargée de cet examen doit en informer le
délinquant par écrit.
82.
Lors de l'examen de la plainte ou du grief, la personne chargée de cet examen
doit tenir compte :
a)
des mesures prises par les agents et le délinquant pour régler la question
sur laquelle porte la plainte ou le grief et des recommandations en
découlant;
b)
des recommandations faites par le comité d'examen des griefs des détenus et
par le comité externe d'examen des griefs;
c)
de toute décision rendue dans le recours judiciaire visé au paragraphe 81(1).
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