Date: 20090929
Docket: T-266-07
Citation: 2009 FC 979
Toronto, Ontario, September 29,
2009
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
PETER
COLLINS
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review brought by Peter Collins, an inmate of a
federal penitentiary now eligible for parole. He is a self-represented
litigant without formal legal training and has prepared and argued his case
without apparent legal assistance. In such circumstances the Court is prepared
to grant some procedural leniency but it cannot grant relief beyond that in
respect it has jurisdiction to grant, nor grant relief in respect of matters
that have already been redressed. For the reasons that follow I find in the
circumstances of this case that the application is dismissed without costs.
[2]
In
his Notice of Application filed in this proceeding the Applicant requests that
the Court provide the following relief:
1.
The
appeal be allowed;
2.
The
Decision of the Correctional Services of Canada Third Level Decision of January 8, 2007
be set aside, and
3.
This
Honourable Court direct the Correctional Services of Canada to prepare a
comprehensive report for the Bath Federal Prison Psychology Department that
contains the relevant and factual information that the CSC prevented the
applicant from photocopying and sharing with the Prison Psychologist performing
the required National Parole Board Risk assessment for a parole application.
4.
This
Honourable Court direct the Correctional Services of Canada to prepare a
comprehensive report for the National Parole Board that contains the relevant
and factual information that the CSC failed to allow the applicant to photocopy
and share with the National Parole Board.
5.
An
order directing a comprehensive psychological risk assessment from a
psychologist independent of the Correctional Services of Canada.
6.
An
order that the new psychological risk assessment includes a thorough analysis
of the applicant’s release plan and other supporting documentation that was not
properly reviewed.
7.
Any
such other order as this honourable Court may permit.
[3]
In
respect of the first request, this proceeding is not an appeal, it is an
application, however that misnomer will be overlooked. As to the last request,
for such other order, it cannot be construed as an open invitation to the
Applicant or this Court to seek or make whatever different order that may seem
expedient as the matter progresses or as argument arises, it is necessarily incidental
to the other specific relief sought. Further, Rule 302 of the Federal
Courts Rules requires that an application for judicial review shall be
limited to a single order in respect of which relief is sought. On occasion,
particularly with respect to a person in Mr. Collins’ circumstances the Court
permits relief in respect of more than one matter, however it is usually when
the matters are closely related, it does not constitute an invitation to claim broad
ranging relief in respect of multiple matters.
[4]
At
this point I turn to the Applicant’s Memorandum in which at paragraph 140 he
asked for the following Order:
140.
The
Applicant therefore respectfully requests the following:
1. An Order quashing the decision
of the Correctional Services
of Canada to prevent the Applicant from
photocopying submissions to Federal Tribunals under the legal photocopying
program.
2. An Order requiring
the Respondent to ensure all missing information is acquired and filed on the
Applicant’s files.
3. An Order requiring
the Respondent to correct erroneous information on the Applicant’s files.
4. An Order requiring
the Respondent place all the Applicant’s Release Plan information on his CSC
files.
5. An Order requiring
the Respondent to resubmit the Applicant’s case for Psychological Risk
Assessment as soon as the Applicant’s file information has been corrected
brought up to date.
6. An Order requiring
the Respondent reschedule the Applicant’s case to the National Parole Board for
rehearing with CSC recommendations and assessments based upon complete files
and a psychological risk assessment completed with all available information.
7. An Order requiring
the Service re-conduct all case assessments and decisions made since April 20,
2006.
8. An Order requiring
the Service to cease profiting from the legal photocopying program.
9. Costs associated
with all aspects related to post, copying, legal material and community members
providing services that should have been available.
10. Punitive costs in
the amount of $25,000.00.
11. Costs of this application.
[5]
The
Memorandum of Argument cannot be used to expand upon the relief sought in the
Notice of Application. Further, the request made at paragraphs 8 and 9 are
beyond the jurisdiction of this Court on a judicial review application as well
as being clearly outside the relief as sought in the original Notice of
Application.
[6]
The
relief requested by the Applicant is most appropriately reviewed against the
background of the facts of this case. The Applicant has been incarcerated in a
federal penitentiary for a considerable period of time and recently has become
eligible for parole. Prior to consideration as to parole by the Parole Board
the Applicant was required to undergo psychological examination with a report
to be prepared by the examiner and presented to the Board. The Applicant, in
preparation for his examination and subsequent submissions to the Board,
prepared a large number of documents which he believed would be of assistance
in support of his application for parole. Those documents were submitted to
the person conducting the psychological examination, that person requested that
the documents be left with him. The Applicant declined that request since he
had no copies of the documents and did not wish to relinquish possession of his
only set of the documents.
[7]
The
Applicant sought permission from the authorities in the institution in which he
was incarcerated to copy the documents. That request was denied. The
Applicant filed a grievance which went through three levels. At all three
levels the grievance was declined on the basis that the materials which the
Applicant sought to have copied did not constitute what the decision makers
defined as “legal materials”. Further, it was determined on the first
grievance that, even if the material were to be copied, there would be a charge
of 15¢ per page, a charge that was later reduced to 5¢ per page. There is no
evidence that the Applicant could not pay for the cost of photocopying at either
charge per page, just that he believed that the charge was too high.
[8]
It
appears, however, from the evidence that both the person conducting the
psychological assessment and subsequently the Board did have access to the
documents. In his report the psychologist wrote:
He presented a large binder which
included his release plans as well as numerous letters, documents, certificates
and pictures he said he plans to provide to the National Parole Board for his
hearing …
The large binder he presented with
evidence of his many positive accomplishments seemed to include a comprehensive
strategy for parole … His initial plan for residency at the Keele CCC in Toronto is apparently supported by
considerable documentation in the binder.
[9]
Further,
it is apparent that the Board also had the documents available to it a few days
prior to the hearing of the application for parole as the Board’s Review Officer
stated in a letter to the Applicant dated July 7, 2006:
As indicated to you in my letter dated
June 20, 2006, this binder of information was received by the National Parole
Board (Kingston office) on 13 June 2006, prior to your hearing, and was
available to the Board Members involved with the review of your case prior to
your hearing on 22 June 2006.
[10]
At
the hearing the Applicant confirmed that the documents had been photocopied and
copies given to the Board about three working days before the Board heard the
matter. Thus the Board had the material prior to the hearing and during its
deliberations afterward. Thus both the psychologist and the Board had access
to the documents that the Applicant says they should have in arriving at their
determinations.
[11]
Turning
to the complaint and grievance process, the Applicant submitted a complaint in
writing with the institution dated April 25, 2006 that he was denied access to
photocopy and that the charge of 15¢ per page was too high. The corrective
action requested by the Applicant was:
CORRECTIVE ACTION
Advise me in writing how information
going before a Federal Tribunal (National Parole Board) and the decision makers
(IPO, Psychologist) does not fall within the parameters of the legal material
photocopying service?
Explain why the charge for photocopying
is so high (15 cents per page)
Provide direction in writing to the
records department and the inmate committee and myself exactly what papers
constitute legal material.
[12]
The
Inmate Grievance Committee provided a written response dated June 12, 2006
which addressed both issues. It stated:
I have reviewed you (sic) complaint dated
May 23, 2006 in which you complain that you were not allowed to photocopy
personal documents you intended to share with a psychologist. You offer since
this was to assist the psychologist in the completion of a risk assessment for
a (sic) upcoming NPB review. You offer that since the NPB is part of the
criminal justice system, the requirement for your photocopying to conform for
legal purposes was met. You were interviewed by A/Unit Manager G. Gillis
concerning your issues on June 6, 2006. I offer the following as a response.
Photocopying is provided to Bath Institution inmates to
conform with paragraph 19 of CD 084, Inmates Access to Legal Assistance and the
Police. This speaks to a very specific purpose and such purpose was not met in
your specific set of circumstances. It is to provide documentation to a legal
representative. As our Institutional Operating Procedures were complied with
in regards to the decision that was taken, your grievance is denied. Although
your grievance is denied, one of your stated corrective action requests was for
an explanation regarding why the cost per page is $.15. This was based on cost
of paper, toner, administrative costs and labour costs. It should be noted
that while in the community there is variance in costs for similar services,
the cost passed on to each inmate continues to be in keeping with community
standards.
[13]
The
Applicant was not satisfied with this response and sought the same Corrective
Action at the next grievance level together with a request for an apology and a
list of examples of the impact of certain decisions. There appears to have
been some administrative fumbling with the Applicant’s request at first level
however, ultimately a written response at the second level was provided, dated
August 27, 2006. It referenced policies respecting charges for photocopying.
The grievance was denied, stating, in part:
It is believed that prior to the
completion of the report on 2006-04-25, you had an opportunity to share and
review the information you collected with Dr. Cheston. Furthermore, a week
prior to your hearing before the National Parole Board, you requested that your
Parole Officer at the time, photocopy your binder and share it with the NPB.
It is believed that this was the same information you shared with the
psychologist as it was letters of support and other inmate solicited documents
of a similar nature.
…
You were advised that you could arrange
to have your documentation photocopied in the community, returned and forwarded
to the NPB or provide the documents to your assistant to forward on your
behalf. As noted above in the psychologist’s report you indicated that it was
your intent to provide all of this information to the National Parole Board for
your hearing.
Your file has been reviewed in its
entirety and there is no indication either by you or the Grievance Coordinator
that your complaint was intended to be processed as a sensitive complaint.
However, the response from Mr. Edwards incorrectly refers to the complaint as
being submitted as sensitive and rejected on this basis. It is believed that
this was done in error and we apologize for this.
This grievance is denied.
[14]
Again
there seems to have been administrative fumbling as this second level decision
was not transmitted to the Applicant in a timely manner and was only provided
following the Applicant’s inquiries as to the status of the matter.
[15]
The
Applicant remained dissatisfied and proceeded to a third level grievance. A
decision bearing a date of December 21, 2006 was made denying that third level
grievance. This is the decision under review. The decision stated, in part:
At each stage of this process, Mr.
Collins has not provided any information detailing the exact nature of the
material he wished to have photocopied nor the amount of material. The only
description is provided by the Psychologist in the report dated 2006-03-15. It
states, “He presented a large binder which included his release plans as well
as numerous letters, documents, certificates and pictures he said he plans to
provide to the National Parole Board for his hearing. Mr. Collins explained
that he was providing the NPB with all of these materials because his
impression is that the file information which is available to the Parole Board
would not likely include evidence of the many positive things he has
accomplished during his incarceration.” (Tab D)
Mr. Collins has not provided any new or
additional information for consideration with the submission of his third-level
grievance.
The references cited in the second-level
response regarding the CCRA sections 23 and 25 are correct. Bath Institution’s policies with
regard to the requirement for providing photocopying for legal purposes are in
compliance with CD 084.
The only description of the material Mr.
Collins wanted to have photocopied was indirectly provided by the Psychologist,
as described earlier. That description led this Analyst to conclude that the
material Mr. Collins presented for photocopying does not meet the definition of
legal materials, as stated in CD 084.
The determination of the cost for a
photocopy was provided to Mr. Collins by Bath Institution in the first-level response.
[16]
Thus
it appears that:
·
The
Psychologist who examined the Applicant had access to the documents in question
·
The
Parole Board considering the Applicant’s case had photocopies of the documents
available to it before the hearing and during its deliberations
·
Explanations
as to the cost of photocopying were provided to the Applicant
[17]
Therefore,
in respect of any relief that may properly be sought by the Applicant in this
Court namely, provision of his documents to the Psychologist and the Parole
Board and explanations to the cost of photocopying, those matters have already
been addressed. There is nothing left for this Court to decide. In legal
terms the matter is moot.
[18]
Therefore,
there is no longer a live controversy for the Court to address. The
application is dismissed. The Respondent did not ask for costs and none will
be given.
JUDGMENT
For the
reasons provided:
THIS COURT
ORDERS AND ADJUDGES that:
1. The
application is dismissed;
2. No order as to costs.
“Roger
T. Hughes”
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