Date: 20070208
Docket: T-735-06
Citation: 2007 FC 150
Vancouver, British Columbia, February
8, 2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
GENE
BENOIT
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
judicial review application challenges the third-level grievance decision of
the Assistant Commissioner of Corrections Canada dated February16, 2005. At the
hearing, I struck as a Respondent from the style of cause the Commissioner of
Corrections Canada on the basis of section 303 of the Federal Courts Rules,
1998.
[2]
This
judicial review application arises in the following context. In preparation for
Mr. Benoit's full parole review before the National Parole Board (the Board)
the Correctional Service of Canada (CSC) completed a psychological risk
assessment relating to the Applicant's likelihood to re-offend (the Risk
Assessment).
[3]
Mr.
Benoit was invited to participate in the preparation of the Risk Assessment but
declined to be interviewed. As a result, the Risk Assessment was completed
based on the information in his CSC file and collateral CSC staff reports as
authorized in paragraph 3 of the Commissioner's Directive 803.
[4]
Mr.
Benoit was incarcerated because in 1987 he was convicted of second degree
murder and sentenced to life in prison. The Court of Appeal of British
Columbia
dismissed his appeal.
[5]
In
1996, his Case Management Team recommended he participate in a program for
violent offenders but he refused to do so.
[6]
The
Risk Assessment does not diagnose Mr. Benoit with any mental disorder and did
not rely on the Revised Psychopathy Checklist (PCL-R).
[7]
Instead,
the Risk Assessment reviews his behaviour before and during his incarceration
and relies on risk assessment tools to evaluate the likelihood he will
re-offend.
[8]
Mr.
Benoit first complained on November 18, 2003, about the Risk Assessment. He
alleged the author of the Risk Assessment was not a registered health care
professional and his consent was needed for its preparation. His complaint was
dismissed on December 10, 2003, on the grounds a registered health care
professional supervised and reviewed the Risk Assessment and the CSC could
complete the Risk Assessment without his consent because it was entitled to
assess risk and did not make any medical diagnosis under the Commissioner's
Directive 803.
[9]
Mr.
Benoit carried the issue to levels 1 and 2 without success. His level 3
grievance was put on a somewhat different basis, namely subsection 803(3) of
the Commissioner's Directive was invalid because it would override section 88
of the Corrections and Conditional Release Act (the Act) where informed
consent is required for treatment.
[10]
The
Assistant Commissioner denied Mr. Benoit's third level grievance. It was stated
the CSC had certain statutory obligations with regards to the administration of
his sentence, namely protection of society be the paramount consideration in
the corrections process; his sentence be carried out having regard to all
relevant information; and any information about the offender it uses shall be
as accurate, up to date and complete as possible.
[11]
The
Assistant Commissioner concluded the purpose of the Risk Assessment was to
provide the Board with an assessment of his risk to re-offend. The Assistant
Commissioner stated the Risk Assessment Report did not relate to his medical
treatment but to the safe administration of his sentence.
[12]
I
agree with counsel for the Respondent, after examining the Applicant's
voluminous Applicant's Record in which he provides the history of his many
grievances, the Applicant fundamentally misconceives the Risk Assessment as
medical health care or treatment under section 85 of the Act. As mentioned
above, the Risk Assessment in question does not diagnose Mr. Benoit with any
mental disorder nor does it require him to undergo any form of health care
treatment for any disorder without his consent.
[13]
The
purpose of the Risk Assessment in question it to assess his risk to re-offend
violently and to recommend programs to reduce any such risk. Mr. Benoit cannot
be forced to take such programs. He must agree to participate in them.
[14]
This
was pointed out to Mr. Benoit by the Board when it refused his application for
full parole. This decision is dated November 30, 2005, and Mr. Benoit did not
seek judicial review of it. The Board (Applicant's Record, page 111) pointed
out the distinction between medical treatment for a medical disorder and a risk
assessment and programs to reduce the risk of re-offending. According to the
Board, a risk assessment provides critical information about an offender's
mental status and about his behavioural characteristics and other risk factors
on conditional release.
[15]
The
Board stated it found nothing which required him to follow a "medical
treatment" but agreed his failure to address criminogenic factors and to
access programs (which the CSC is required to provide under sections 76 and 102
of the Act to contribute to an offender's successful reintegration into society)
had a direct impact on the risk he represented to the public.
[16]
I
should add the Legal Services Society of British Columbia came to the same
conclusion the Assistant Commissioner did when it refused funding for Mr.
Benoit to challenge the Board decision, being of the view a risk assessment is
not treatment which he can be compelled to undergo.
[17]
I
agree with counsel for the Respondent the distinction drawn by the Assistant
Commissioner is recognized by this Court. I cite, in particular, Inmate
Welfare Committee William Head Institution v. Canada (A.G.), 2003 FC 870,
where Justice Tremblay-Lamer set out the arguments at paragraph 4 and 5 of her
decision and her findings at paragraphs 9 to 15 all of which I quote below:
… [4] The applicant argues that risk
assessments cannot be done without the offender's consent. The change to CD 803
strips away an inmate's consent rights, as they pertain to psychological
testing and assessments. The applicant submits that the amendment to section 3
is contrary to common law principles, and violates section 7 of the Charter
of Rights and Freedoms and subsection 1(a) of the Canadian Bill of
Rights. As such, it should be struck down.
[5] The respondent submits that CD
803 was amended to reflect the fact that employees of the Correctional Service
of Canada ("CSC") must undertake risk assessments, including
psychological assessments, regardless of an offender's consent, in order to
fulfill CSC's legislative mandate of protecting the public. It would not be
possible to fulfill this mandate if an offender's consent were required prior
to his or her risk being assessed as the consent could often be withheld.
…
[9] One of the ways to achieve
this objective is through risk assessments. Employees of CSC must assess the
risk that an offender poses while incarcerated and prior to release in order to
protect the public and to achieve the statutory objectives of the Act.
[10] There is an important
distinction that needs to be drawn between medical and psychological
assessments that are done for the benefit of the offender or to establish a
diagnosis (mental health procedures), and risk assessments that are done for
the protection of the public.
[11] On the one hand, CSC has an
obligation to administer health care for the benefit of inmates. This
obligation is found in sections 85 to 88 of the Act. Anything that CSC does pertaining
to health care, including psychological assessment, diagnosis, or treatment
that is done for the benefit of an inmate requires informed consent.
[12] On the other hand, CSC has a
legislative mandate to assess risk in order to protect the public. Risk
assessments do not require informed consent. Such a requirement would make it
impossible for CSC to fulfill its legislative mandate of protecting the public
as the consent could often be withheld.
[13] There are many examples in the
Act illustrating the necessity for employees of CSC to perform a risk
assessment in order to make a decision that affects the safety of the public.
These include decisions involving the authorization of unescorted temporary
absences in the community, the granting of work release, the conditional
release of offenders, and the granting of parole to offenders.
[14] Contrary to the applicant's
submissions, a risk assessment is not the same thing as a PCL-R (Psychological
Checklist-Revised) assessment. The PCL-R assessment was developed by Dr. Hare
and is used to assess psychopathic personality disorders in offenders. This
information can be used to predict recidivism which in turn, can be used to
measure the degree of risk that an offender poses to society. The PCL-R rating
is just one type of rating or scale which may be referred to in a risk
assessment. Risk assessments can encompass many other ratings or scales, and
need not contain any reference to a PCL-R rating.
[15] In summary, risk assessments by
CSC are not health care, treatment, or psychological assessments conducted in
order to establish a diagnosis or to ascertain whether an offender requires
health care or treatment. Risk assessments are a means to determine an
offender's likelihood of recidivism and potential danger to the offender, other
inmates, staff members and the public. It would be impossible to fulfill this
mandate if an offender's consent were required prior to his or her risk being
assessed as the consent could often be withheld….
[18]
This
case is clearly on point and accords with the statutory purpose of the federal
correctional system which is to assist in the rehabilitation of offenders and
their reintegration into the community.
[19]
As
for the Applicant's other arguments, they are without merit. They were: (1) the
use of the PCL-R in producing the Risk Assessment; (2) absence of a definition
of programs in section 76 of the Act; (3) a risk assessment being equivalent to
exposing him to experiments in behaviour alteration techniques which require
consent; (4) a retrospective application of the Act to his circumstances; and
(5) that risk assessments should be conducted by security personnel.
JUDGMENT
This judicial review
application must be dismissed.
"François
Lemieux"
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