Date: 20110530
Docket: T-907-10
Citation: 2011 FC 601
Ottawa, Ontario, this 30th day of May
2011
Present: The Honourable Mr. Justice
Pinard
BETWEEN:
MICHAEL AARON SPIDEL
Applicant
and
CANADA (ATTORNEY GENERAL)
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Commissioner of the Correctional
Service of Canada (“CSC”) bought pursuant to section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7, by Michael Aaron Spidel (the “applicant”).
The decision was in respect of a third-level grievance presented by the
applicant.
* * * * * * *
*
[2]
The
applicant is a prisoner in the custody of CSC at the Ferndale Minimum-Security
Institution in Mission, British Columbia. He
is serving a life sentence with minimum parole eligibility set at ten years. He
has been incarcerated since October 2006.
[3]
In
June 2009 the applicant, who was a member of the Inmate Committee, had some
photos taken in order to form part of a line of exhibits for a civil proceeding
being considered by the Committee against the administration of Ferndale
Institution. The photos were of files and cabinets belonging to the Inmate
Committee. The photos were issued to the Social Programs Officer, the staff member
responsible for delivering them. The Manager of Operations seized the photos.
[4]
The
applicant commenced the internal grievance process by filing a complaint. After
receiving a negative response, he filed a first-level grievance and was
interviewed by the same individual as at the complaint stage. During their
interview the photographs were returned to the applicant. The grievance itself
was classified as requiring no further action on the basis that the photos had
already been returned.
[5]
The
institution subsequently changed its rules governing photographic media and
added some restrictions to the Inmate Photographer job description. The
applicant submitted a second-level grievance, taking issue with these changes
and citing issues of procedural fairness in the underlying decisions. The
second-level grievance was denied.
[6]
The
applicant grieved this decision to the third level. The negative decision was
rendered on May 20, 2010 and received by the applicant on June 4, 2010.
The applicant is asking for judicial review of the third-level grievance
decision.
* * * * * * * *
[7]
The
issues raised in this application are as follows:
a.
Should the
applicant’s affidavit evidence be struck as it was not before the decision
maker?
b.
Can additional
grounds for review not pled in the Notice of Application be considered by this
Court?
c.
Has the applicant
demonstrated that the Commissioner acted without jurisdiction, beyond his
jurisdiction, or refused to exercise his jurisdiction?
d.
Has the applicant
demonstrated that a breach of procedural fairness occurred?
e.
Has the applicant
demonstrated that the Commissioner based his decision on an erroneous finding
of fact?
[8]
The
question of procedural fairness must be reviewed on the standard of correctness
(Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at para 59; Bonamy v. Attorney General,
2010 FC 153 at para 45). The reasonableness standard applies to any findings of
fact and to any issues of mixed fact and law (Dunsmuir at para 53; Bonamy
at para 47).
* * * * * * * *
A. Affidavit evidence
[9]
The
respondent objects to several portions of the applicant’s affidavit as
containing information that was not before the Commissioner at the time of the
decision. The respondent in fact objects to almost the entirety of the affidavit,
with the exception of Exhibits G, I (pages 1-3 and 5), J (page 2), K (except
page 1), L, N, O (pages 2-5), P, Q, R, and S. The respondent submits that all
paragraphs of the affidavit itself, as well as Exhibits A, B, C, D, E, F, H, I
(page 4), J (page 1), K (page 1), M, and O (page 1) were not before the
Commissioner and should be struck.
[10]
It
is settled law that the reviewing court may only take into account evidence
that was before the decision maker when reviewing the decision, so as not to
transform the review into an appeal by way of trial de novo (Abbott
Laboratories Ltd. v. Attorney General, 2008 FCA 354, [2009] 3 F.C.R. 547, at
paras 35-38). Additional evidence may be permitted where it is relevant to an
issue concerning the hearing procedure or to an allegation of bias (Abbott
at para 38), but it is submitted that the evidence in this case does not fit
within these exceptions. The respondent contends that only paragraph 36 of the
applicant’s affidavit concerns a potential breach of procedural fairness, as it
discusses the fact that Assistant Warden Intervention (“AWI”) Hammond responded
to the complaint and also conducted the first-level interview. As this was
already the subject of a finding of fact within the decision it therefore does
not fit within an exception to the rule that additional evidence should not be
led on judicial review.
[11]
In Attorney
General v. Quadrini, 2010 FCA 47, the Federal Court of Appeal noted that
“the purpose of an affidavit is to adduce facts relevant to the dispute without
gloss or explanation. The Court may strike affidavits, or portions of them,
where they are abusive or clearly irrelevant, [or] where they contain opinion,
argument or legal conclusions” (para 18). In Armstrong v. Attorney General,
2005 FC 1013, Justice François Lemieux held that “applications to strike
affidavits or portions of affidavits in judicial review applications is a
discretion which should be exercised sparingly and be granted only in cases
where it is in the interest of justice to do so, for example or in cases where
a party would be materially prejudiced” (para 40). He also noted that “parts of
an affidavit which provides general background information which may assist the
judge should not be struck”.
[12]
In
my view, much of the applicant’s affidavit constitutes “general background
information” that does not in any way prejudice the respondent, and I do not
see any reason for the entire affidavit to be struck. I accept that Exhibits B,
D, E, F, J (page 1), K (page 1), O (page 1) were not before the decision maker
and accordingly they are struck. I note that the pages to which the respondent
takes issue in Exhibits J, K and O are merely cover letters that were sent to
the applicant; I do not see that their inclusion provides any additional
evidence nor causes any prejudice to the respondent but I accept that they are
not present in the tribunal record. Exhibits C and M are copies of the policies
and documents specifically referred to by the Commissioner in his decision; it
is therefore clear that the Commissioner had access to these documents and I
see no reason for them to be struck. Exhibit A was explicitly before the
Commissioner; it is contained within the Certified Tribunal Record at page
JR57. As for Exhibits H and I (page 4) (these are the same document), I note
that a version of this document is found at page JR25 of the Certified Tribunal
Record, with additional comments written on it. The applicant’s version
appears to be an earlier copy of the same document; the portion of this
document contained in the exhibits was clearly before the tribunal at page
JR25.
[13]
In
the affidavit itself, I accept that paragraphs 18, 21, 22, 24 to 31, 36 and 37
are not general background information and do constitute statements and
evidence that were not before the Commissioner. These paragraphs are,
therefore, struck.
B. Grounds raised in the Notice of
Application
[14]
In
his Notice of Application, the applicant lists the grounds for his application
as follows:
i.
Pursuant to the Federal
Courts Act, s. 18.1(4)(a): that the Commissioner and the
Correctional Service of Canada have acted without jurisdiction, acted beyond
their jurisdiction, or refused to exercise their jurisdiction by failing to
apply the “least restrictive” measures consistent with clear and
demonstrably justifiable limitations and by placing unjustifiable restrictions
on the inmates’ employ of photographic media; and
ii.
Pursuant to the Federal
Courts Act, s. 18.1(4)(b): that the Correctional Service of Canada
failed to observe a principal of natural justice, procedural fairness or other
procedure it was required by law to observe by failing to maintain the
impartiality of the decision-maker during the course of the grievance process
and by failing to respect the integrity of the decision-making process by improperly
substituting the appropriate finding for an erroneous finding; and
iii.
Pursuant to the Federal
Courts Act, s. 18.1(4)(d): that the Commissioner made its decision
on an erroneous finding of fact that was made in a perverse of capricious
manner or without regard for the material before it by failing to take into
account the nature of the environment in which certain photographic media was
sought and by placing unreasonable and capricious limitations on the personal,
legal and recreational activities and pursuits of prisoners involving
photographic media; or
iv.
Such and further
grounds as the Applicant may advise and this Honourable Court may consider.
[15]
The
respondent notes that much of the applicant’s Memorandum of Fact and Law is
devoted to challenging policy changes made by the Institutional Head on the
basis that they are allegedly inconsistent with the Corrections and
Conditional Release Act, S.C. 1992, c. 20. The respondent submits that
there is no merit to these arguments as they are directed at establishing an
error of law, which was not a ground for review pled and is therefore not
properly before this Court. I agree.
[16]
The
Notice of Application submitted by the applicant did not plead a challenge to
the decision based on an error of law. Rule 301(e) of the Federal
Courts Rules, SOR/98-106, holds that a Notice of Application shall set out
“a complete and concise statement of the grounds intended to be argued,
including a reference to any statutory provision or rule to be relied on”. This
is mandatory language and as the ground of ‘error of law’ was not set out in
the Notice, the applicant is not permitted to raise it for the first time in
his Memorandum (AstraZeneca AB v. Apotex Inc., 2006 FC 7 at paras 17-22
(aff’d 2007 FCA 327); Williamson v. Attorney General, 2005 FC 954 at
para 9; Arora v. Canada (Minister of Citizenship and Immigration),
[2001] F.C.J. No. 24 at para 9; Air Canada v. Toronto Port Authority,
2010 FC 774 at paras 77-85). In Arora, Justice Frederick Gibson set out
the justification for such a rule as follows:
[9] .
. . If, as here, the applicant were able to invoke new grounds of review in his
memorandum of argument, the respondent would conceivably be prejudiced through
failure to have an opportunity to address the new ground in her affidavit or,
once again as here, to at least consider filing an affidavit to address the new
issue. . . .
[17]
In
my view, in light of the above jurisprudence and the mandatory language of Rule
301, the applicant’s arguments on this ground cannot be dealt with by the Court
as they were not raised in the Notice of Application. Rule 75 provides the
applicant with the opportunity to amend the Notice of Application but he did
not do so.
C. Jurisdiction
[18]
At
the hearing, the applicant submitted that the Commissioner failed to exercise
his jurisdiction by omitting to deal with the issues that were before him,
namely whether the changes to the policy regarding security limitations on
photographs were the least restrictive measures possible. The applicant submits
that at each level of the grievance process, the decision maker should have
reviewed the issues de novo; he alleges that this was not done. The
applicant also appears to be submitting that the Institutional Head lacked the
jurisdiction to make the changes to the policy that he made, considering they
were not, the applicant argues, the least restrictive possible measures; the
Institutional Head would therefore have acted outside of the jurisdiction
allocated to him by the Corrections and Conditional Release Act.
[19]
The
respondent submits, rightly in my view, that the jurisdiction of the
Institutional Head is not properly before the Court in this application for
judicial review. The respondent argues that the applicant did not challenge the
jurisdiction of the Institutional Head at the third-level grievance; in the
third-level decision it is noted that the applicant had acknowledged that the
Institutional Head “is authorized to amend the policy” (Decision, page 3, para
1). At the third-level grievance, the applicant appears to have been
challenging not the jurisdiction of the Institutional Head but the
reasonableness of the changes to the policy. I will deal with the arguments on
this subject under the issue of erroneous findings of fact. I do not see any
merit to the applicant’s argument relating to the jurisdiction of the
Institutional Head.
[20]
As
for the jurisdiction of the Commissioner, I find that he did deal with the
issue as it was placed before him, namely whether the Ferndale Institution Standing
Order was consistent with the National Specifications regarding photographs and
whether the Institutional Head had the authority to make changes; the applicant
had acknowledged that the Institutional Head had such authority. The
Commissioner did not fail to exercise his jurisdiction or to deal with the
issues that were placed before him. I also find that he did exercise his
jurisdiction to deal with the issues de novo; there is no indication
that he was simply reviewing the lower decisions rather than coming to his own
decision.
D. Procedural fairness at the
first-level stage
[21]
The
applicant submits that procedural fairness was breached when his first-level
grievance was investigated by the same person, AWI Hammond, who had been the
decision maker at the complaint stage. The applicant claims that this double
role compromised the AWI’s impartiality and thereby breached the duty to act
fairly, which is an integral part of the grievance process.
[22]
The
respondent argues that the first-level grievance is not at issue in this judicial
review, and that the applicant is thereby prohibited from raising procedural
fairness issues at this stage. I disagree; the decision under review in this
application dealt explicitly with the question of procedural fairness at the
first-level stage of the proceedings and the Commissioner came to a decision on
that subject. I see no reason why the applicant is prevented from having this
portion of the decision reviewed simply because the alleged breach occurred at
an earlier stage of the process. For the same reason I see no merit to the
respondent’s argument that the applicant is prevented from bringing this
argument because he did not raise it at the first stage of the grievance
process. The applicant clearly raised it during the grievance process since it
was explicitly dealt with by the Commissioner in the decision which is now
under review.
[23]
That
said, I do agree with the respondent that the applicant has not shown any
actual breach of procedural fairness. As the Commissioner noted, the decision
at the first-level stage was not taken by AWI Hammond, but by the Institutional
Head (see Exhibit L of the applicant’s affidavit). Commissioner’s Directive
(“CD”) 700, paragraph 77, cited by the Commissioner, shows that the duty to act
fairly in this process involves giving the offender the right to be heard and
ensuring that the decision authority is impartial. There is no indication that
the applicant was deprived of his right to be heard, and the decision maker was
in fact a different person than the decision maker at the initial complaint
stage. I do not find any evidence that shows that the Institutional Head was
not impartial in coming to his decision. In Committee for Justice and Liberty et al. v. National
Energy Board et al.,
[1978] 1 S.C.R. 369, the Supreme Court of Canada discussed the test for a reasonable
apprehension of bias as follows:
[30] This
Court in fixing on the test of reasonable apprehension of bias, as in Ghirardosi
v. Minister of Highways for British Columbia ([1996] S.C.R. 367), and again
in Blanchette v. C.I.S. Ltd. ([1973] S.C.R. 833), (where Pigeon J. said
at p. 842-43, that “a reasonable apprehension that the judge might not act in
an entirely impartial manner is ground for disqualification”) was merely
restating what Rand J. said in Szilard v. Szasz ([1955] S.C.R. 3), at
pp. 6-7 in speaking of the “probability or reasoned suspicion of biased
appraisal and judgment, unintended though it be”. This test is grounded in a
firm concern that there be no lack of public confidence in the impartiality of
adjudicative agencies, . . .
In my view the decision-making process in the
present case does not raise such a suspicion. The reviewing decision was
clearly taken by a different individual.
[24]
The
applicant also argues that his grievance should have been upheld at the
first-level stage, according to the CSC Grievance Manual, and that the failure
to do so violates procedural fairness. The respondent submits that a simple
assertion of this kind does not meet the onus of establishing a breach of procedural
fairness.
[25]
In
the CSC Grievance Manual cited by the applicant (found at Appendix A, page 38
of his Memorandum), a grievance is to be labeled “No further action required”
when “it is deemed that the action taken at previous level(s) was done in accordance
with law and policy and the issue is therefore ‘resolved’. Though the action
may not be to the offender’s satisfaction, however, it is deemed resolved with
no further action.” The first-level grievance decision itself states that the
photos were held while it was determined whether they constituted a security
risk; they were subsequently lost. When found during the complaint process,
they were reviewed and then returned to the applicant when it was determined
that they were not a security risk. I do not see any error in the decision that
no further action was required. The applicant has not pointed to any error made
with regards to law or policy in the course of the process. In my view the
Commissioner was correct in finding that no breach of procedural fairness
occurred.
E. Erroneous findings of fact and
reasonableness of the decision
[26]
The
applicant argued at the hearing that in coming to his decision regarding the
changes made to the policy on photographs, the Commissioner made erroneous or
perverse findings of fact, namely by failing to take into account the nature of
the institutional environment (being minimum security) in finding that the
Institutional Head had the authority to make changes to the policy. The
Commissioner would therefore have acted unreasonably.
[27]
The
applicant in essence challenges the reasonableness of the new Standing Order
for not being the “least restrictive” possible measure. The respondent argues
that the applicant had put no evidence before the Commissioner at the third-level
stage showing that the changes are not related to security concerns and that
they are not the least restrictive possible measures.
[28]
I
note that the Commissioner specifically addressed the applicant’s contention
that it was inappropriate to incorporate the restrictions imposed at
maximum-security institutions into minimum-security institutions, but found
that the Institutional Head had the authority to determine what restrictions,
with respect to photographs, are considered necessary to maintain institutional
security. While the applicant is dissatisfied with the Institutional Head’s
decision on this point, it does not appear to me that the applicant had
provided evidence to the Commissioner tending to show that the changes do not
properly relate to security concerns; it is therefore unclear in what way the
Commissioner’s decision was based on an erroneous or perverse finding of fact.
I find the Commissioner’s decision on the stated issue to be reasonable; he
clearly lays out the reasoning process by which he found that the Standing
Order is consistent with the National Specifications and that the Institutional
Head has the authority and discretion to specify additional security
installations where required. I do not see any error in this reasoning process,
or any erroneous finding of fact.
[29]
In
my view the applicant is attempting to challenge not the third-level decision
itself, but the changes made to the policy by the Institutional Head. At issue
in the third-level decision was simply whether the Institutional Head had the
authority to make changes, and whether those changes were consistent with the
National Specifications. While the applicant is clearly suspicious of the
underlying motives for the changes, in my view these motives are not properly
before the Court, as they were not properly before the third-level decision
maker. As discussed above, this would relate to a question of law regarding the
legality of the policy itself; this issue is not part of this application for
judicial review.
* * * * * * * *
[30]
For
the above mentioned reasons, the application for judicial review is dismissed,
with costs in favour of the respondent.
JUDGMENT
The application for judicial
review is dismissed, with costs in favour of the respondent.
“Yvon
Pinard”
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