Date: 20070119
Docket: T-416-06
Citation: 2007 FC 32
Ottawa,
Ontario, January 19, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
MICHAEL
DANIEL MYMRYK
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to Rule 301, Rules for
Regulating the Practice and Procedure in the Federal Court of Appeal and the
Federal Court, [SOR/98-106] (the Federal Court Rules), of the third level
offender grievance decision, by Mr. L. Ménard, Correctional Service of Canada (CSC),
dated September 27, 2005. The Applicant is a self-represented inmate, appearing
in person with permission of the Court.
ISSUES
[2]
The
application raises the following issues:
a) Did the
Respondent err in fact or law in arriving at its decision in the third level
offender’s grievance?
b) Does this Court
have jurisdiction to grant some of the remedies sought?
[3]
For
the following reasons, the application for judicial review shall be allowed in
part.
BACKGROUND
[4]
The
Applicant is serving a life sentence at Montée St-François Institution, located
in Laval,
Quebec. He was on
day parole at St-Leonard House.
[5]
On
September 29, 2003, the National Parole Board (NPB) suspended his day parole
after a urine sample A107802 tested positive for Cocaine Metabolite
benzoylecgonine. This test result was a breach of the special condition of his
day parole to avoid intoxicants. The Applicant first explained that he was
accidentally stabbed in the finger by a syringe. He later explained that the
urinalysis, which was carried out by MAXXAM Analytics Laboratory (MAXXAM) had
no validity, in that the screening protocol was not respected.
[6]
On
December 23, 2003, the Applicant contested the urinalysis test results at his
first post-suspension hearing before the NPB. At his second NPB hearing on
February 18, 2004, it was agreed that upon the Applicant’s suggestion, the
sample A107802 would be retested. At the end of April, the Defendant suggested
Gamma Dynacare laboratory for the restesting. An amount of $188 was taken out
from the Applicant’s account and a cheque was issued to MAXXAM but was never
cashed. An internal e-mail from the Defendant shows that the Applicant would
make a complaint because he was made aware that Gamma Dynacare was a subcontractor
to MAXXAM and lacked the necessary independence.
[7]
The
Applicant also believed that the medication he was taking just prior to the
positive test sample contributed to his alleged false positive results. In
April 2004, the Applicant was informed that the St-Leonard House log book
containing medication reports was destroyed.
[8]
On
June 30, 2004, the Applicant and NPB were informed by the Applicant's parole
officer that the sample was retested but Gamma Dynacare did not have the
necessary technology to complete the testing appropriately. The evidence
shows that the urine sample was never retested.
[9]
On
October 29, 2004, the NPB revoked the Applicant’s day parole, for several
reasons including his positive urine test result and a charge for assault with
a weapon. The latter charge was later stayed by the Criminal Court because the
videotape evidence of the incident was destroyed and therefore unavailable to
be produced in the case. The incident that led to this accusation occurred when
the Applicant was arrested following the revocation of his day parole.
[10]
The
NPB found that the deterioration in his behaviour following the suspension of
his day parole continued to pose an undue risk to the community. The Applicant
appealed the revocation of his day parole but on April 19, 2005, the NPB Appeal
Division found that he had not raised any grounds that would cause it to
intervene and modify the Board’s decision. The Board did not believe the
Applicant’s two explanations for his positive cocaine urine test results. The
Appeal Division stated as follows:
To begin, it is important to understand
that the Board does not have jurisdiction to conduct its own investigations and
re-test urine samples. This is a matter within the jurisdiction of C.S.C. The
Board’s mandate is to assess risk based on the information available at the
time of the decision.
[11]
On
August 18, 2005, the Applicant received a letter from the Defendant indicating
that the urine sample had been disposed of as the original sample results were
from September 2003 and the laboratory only keeps presumptive positive samples
for 12 months.
[12]
On
September 16, 2005, the NPB again refused to reinstate the Applicant’s day parole.
The Applicant has not appealed this decision. However, the Applicant filed
grievances with CSC regarding his urinalysis testing.
[13]
As
to the grievance process, the second level grievance was denied in part on
March 30, 2005. CSC reimbursed the Applicant’s claim of $188 for the retesting
fee. However, the decision denied the Applicant’s allegations about the
validity of the testing results and stated as follows:
In light of the information obtained
during the course of our exhaustive study, we have good reasons to believe that
you consumed cocaine prior [to] providing a urine sample on September 23rd,
2003. While you mentioned to the Clinical Supervisor at the St-Leonard CRC that
you did not take any medication at that time, you advised otherwise the
collector, who indicated on the “Drug Testing Chain of Possession” form
that you had taken “Docusate of Sodium” and “Emtec” in the last
two weeks prior to the urinalysis. Anyhow, this mediation would have resulted
as opiate, not cocaine in your urine. The Clinical Supervisor assured us that
the urine sample collection was made in compliance with […] Commissionner’s [sic]
Directive (CD) 566-11.
[14]
On
April 29, 2005, CSC received the Applicant’s grievance of this decision, in
which the Applicant:
a) appealed the
NPB’s decision to revoke his day parole;
b) stated that
Gamma Dynacare is capable of testing a diluted sample;
c) contested the
screening and confirmation process for cocaine used by MAXXAM Analytics;
d) questioned
the clarity of the process that caused unnecessary delays in his case;
e) asked for the
fees to be paid back with interests.
[15]
On
September 27, 2005, CSC upheld in part this third level grievance and found as
follows:
a) the appeal
from the NPB’s decision is denied since the decision to reinstate the
Applicant’s incarceration is not within the CSC’s jurisdiction;
b) Gamma
Dynacare is not capable of testing a diluted sample in accordance with CSC’s
specific dilution protocol; as a result the Applicant’s assertions in this
regard are denied;
c) even if the
urine sample had been retested as per Commissioner’s Directive (CD) 566-11, Annex
“B”, it would still have been positive because CD 566-10 and 566-11 indicate
the proper screening and confirmation levels used by the laboratory; as a result,
that portion of the Applicant’s grievance was resolved;
d) CSC upheld
the Applicant’s allegation that unnecessary delays had occurred here and
recommendations would be made that clarification be added to the two CDs in
question; and
e) the fee for
the retesting was reimbursed with interest.
[16]
It
is this decision that forms the basis of the present application for judicial
review.
RELEVANT LEGISLATION
[17]
Paragraph
4(g), along with sections 90 and 91 of the Corrections and
Conditional Release Act, 1992, c. 20. (the Act), set out the requirements
for an effective and accessible redress system for all offenders. These
provisions state as follows:
|
Purpose
of correctional system
3.
The purpose
of the federal correctional system is to contribute to the maintenance of a
just, peaceful and safe society by
(a)
carrying out sentences imposed by courts through the safe and humane custody
and supervision of offenders; and
(b)
assisting the rehabilitation of offenders and their reintegration into the
community as law-abiding citizens through the provision of programs in
penitentiaries and in the community.
Principles
that guide the Service
4.
The principles
that shall guide the Service in achieving the purpose referred to in section
3 are
[.
. .]
(g)
that correctional decisions be made in a forthright and fair manner, with
access by the offender to an effective grievance procedure;
[.
. .]
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).
Access
to grievance procedure
91.
Every
offender shall have complete access to the offender grievance procedure
without negative consequences.
|
But
du système correctionnel
3.
Le système
correctionnel vise à contribuer au maintien d’une société juste, vivant en
paix et en sécurité, d’une part, en assurant l’exécution des peines par des
mesures de garde et de surveillance sécuritaires et humaines, et d’autre
part, en aidant au moyen de programmes appropriés dans les pénitenciers ou
dans la collectivité, à la réadaptation des délinquants et à leur réinsertion
sociale à titre de citoyens respectueux des lois.
Principes
de fonctionnement
4.
Le Service
est guidé, dans l’exécution de ce mandat, par les principes qui suivent :
[.
. .]
g) ses décisions doivent
être claires et équitables, les délinquants ayant accès à des mécanismes
efficaces de règlement de griefs;
[.
. .]
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.
Accès
à la procédure de règlement des griefs
91.
Tout
délinquant doit, sans crainte de représailles, avoir libre accès à la
procédure de règlement des griefs.
|
ANALYSIS
Standard of review
[18]
In
order to determine the appropriate standard of review in this case, I must
first proceed with a pragmatic and functional analysis of the four factors
established by the Supreme Court of Canada in Dr. Q v. College of Physicians
and Surgeons of British Columbia, [2003] 1 S.C.R. 226:
a) Presence
of a privative clause or right of appeal
[19]
CSC
is governed by the Act, which does not contain a privative clause. However,
Sections 4, 90 and 91 require CSC to provide a redress system for inmates that
is fair, quick and accessible to all offenders. In addition, CSC has policy
guidelines including CDs that set out clear objectives for the procedures to
follow with respect to grievances. In particular, CD81, entitled “Offender
Complaints and Grievances” provides guidance to ensure that offender grievances
are dealt with promptly and fairly. CD 566-11 deals with the protocol to follow
during urinalysis testing in the community.
[20]
Thus
there are extensive internal review mechanisms through which inmates can pursue
grievances, as was done in this case. However, the silence of the legislation
renders this first factor neutral in the overall functional and pragmatic
analysis and implies deference by the reviewing Court where the decision is
fact based. In this instance, the Applicant alleges that there was some
deviation from the drug testing protocol, a question that is essentially fact
based.
b) Relative
expertise of the tribunal vis-à-vis the Court
[21]
The
legislator has empowered those responsible for the management and maintenance
of federal correctional institutions and their inmates with a high degree of
training and expertise in such matters, which calls for an increased level of
deference by the reviewing Court. Justice George Addy said it best in Re Cline
(1981), Court No. T-894-81 (F.C.T.D.) as follows:
I would like to add that, except in clear
and unequivocal cases of serious injustice coupled with mala fides or
unfairness, judges, as a general rule, should avoid the temptation of using
their ex officio wisdom in the solemn, dignified and calm atmosphere of
the courtroom and substituting their own judgment for that of experienced
prison administrators. The latter are truly in the firing- line and are
charged by society with the extra-ordinarily difficult and unenviable task of
maintaining order and discipline among hundreds of convicted criminals who, as
a class, are not generally reputed to be the most disciplined or emotionally
stable members of society and who, by the mere fact of incarceration, are being
forcibly deprived of many of their most fundamental freedoms. Similarly,
courts should avoid laying down any detailed rules of conduct for these
administrators since courts have very little practical knowledge of the
problems involved in maintaining prison security generally or of the specific
tensions, pressures and dangers existing in any particular prison or in any
given situation. Such detailed rules of conduct, if any, should be left to the
legislators or better still, to those possessing the required expertise who
might be charged by the legislators with the issuing of regulations pertaining
to these matters.
c) The
purpose of the statute
[22]
Section
3 of the Act outlines the purpose of the federal correctional system, which has
a dual aim: to protect the public and rehabilitate offenders. The imposition
of conditions on inmates on parole is integral to the realization of this dual
goal. In order to ensure that conditions such as the special condition placed
on the Applicant are respected, urinalysis, for instance is used to obtain
objective physical results to ensure the integrity of the parole system, the
best interests of the offender without incurring undue risk to the community.
This requires not only a careful review of facts but also relies on the
appropriate application of various policies and guiding principles, including
the Act, CDs and Standard Operating Practices. This third factor of the
analysis, as noted Madam Justice McLaughlin in Dr. Q, above, “weighs in
favour of increased deference”.
d) The
nature of the question
[23]
The
nature of the question at issue demands a high degree of deference. Not only is
the decision at the third level grievance largely fact specific, it is also
based on an investigation of the procedures followed by MAXXAM in its
urinalysis testing of sample A107802. Also, it involved an assessment of the
ability of Gamma Dynacare to carry out retesting on the diluted sample A107802.
Thus the nature of the question requires some technical expertise and more than
a mere familiarity with the necessary screening technology.
[24]
As
a result of this review of the four factors in the pragmatic and functional
analysis, I conclude that the standard of review to be applied in this judicial
review is that of patent unreasonableness.
Issue I: Did the
Respondent err in fact or law in arriving at its decision in the third level offender
grievance?
[25]
First,
I agree with the Respondent that the ultimate decision resides with the NPD to
revoke the Applicant’s day parole. The correct forum for appealing this
decision is not the grievance process but rather the NPB Appeals Division even
though the Respondent provides a portion of the evidence. The Applicant did not
appeal the decision of September 16, 2005, and instead included it in his third
level grievance. CSC is without jurisdiction to decide whether or not to
continue the Applicant’s incarceration. I find nothing patently unreasonable in
CSC's decision when it stated:
Since decisions rendered by the National
Parole Board are not within the authority of the Correctional Service of
Canada, and therefore is a non-grievable matter under the redress system of the
CSC, this portion of your grievance is rejected.
[emphasis
in the original]
[26]
The
second issue that CSC denied pertains to the Applicant’s claim that Gamma
Dynacare is capable of testing a diluted sample in accordance with CSC’s
dilution protocol. This decision is not only a specific finding of fact but it
is based on CSC's developed specific dilution protocol. I therefore defer to
CSC and its expertise in this matter. There is no evidence that Gamma Dynacare
was capable to analyze re-tests in accordance with CSC's specific dilution
protocol. The Applicant has not satisfied me that this portion of the decision
was patently unreasonable.
[27]
The
third issue refers to “screening/confirmation levels”. MAXXAM Analytics was
contacted and confirmed that if the laboratory had used the screening as noted
in CD 566-11, Annex "B", the Applicant's urine sample would still
have been positive. I find nothing patently unreasonable concerning CSC's
response to the Applicant's portion of his grievance on this.
[28]
The
fourth issue refers to the “Retest procedures”. CSC's response is as follows:
OR [Offender Redress] reviewed the
Commissioner’s Directives 566-10 &11 and notes that the process used for a
retest is not clear, which could and in your case has provided unnecessary
delays and hence may affect an offender's right to have his/her urine sample
retested. OR will therefore make recommendations to the Security Branch that
clarification be added to the two CDs in question. This portion of your
grievance is therefore upheld.
[emphasis
in the original]
[29]
In
view of the circumstances in this case, the Court is of the opinion that CSC
should have gone a step further on this issue. It is CSC
that provided the Applicant with a name of a laboratory to perform the retest. It
is also the Applicant’s parole officer who informed the NPD that the urine
sample was analyzed by another laboratory. The evidence shows that this was an
incorrect statement. The Applicant was informed in August 2005 that his urine
sample had been disposed of as the original sample results were from September
2003 and that the laboratory keeps presumptive positive samples for only 12 months.
It would have been very easy for CSC to send an e-mail or a letter to the
laboratory to indicate that the urine sample had to be kept until all issues
had been resolved.
[30]
The
Court therefore finds appropriate to refer the matter back to the Analyst at
the Third Level Grievance and strongly suggests that the answer on the issue of
"Retest procedures" be amended to add the following:
a) A
letter will be sent to the NPD requesting that a correction be made in their
file to indicate that the statement “your urine sample was analyzed by another
laboratory”, made by the parole officer in June 2004, is incorrect. The same letter
will indicate that your urine sample was destroyed without your consent, and as
a result, the retest that you requested could not be performed.
b) A
copy of the letter to the NPD will be included in your file.
[31]
The
fifth issue is in relation with the fee for retest. This matter has been resolved
as the Applicant was reimbursed for the monies that were removed from his
account.
Issue II. Does this Court
have jurisdiction to grant some of the remedies sought?
Standard of Review
[32]
This
question raises a question of jurisdiction of the Court which is a question of
law. It is settled law that the applicable standard of review of questions of law
is correctness. However, it is not necessary to apply the pragmatic and
functional analysis (see Dr. Q, above), as some of the issues do not
deal with the CSC’s decision. Rather, the Applicant seeks certain remedies,
which the Respondent has a right to challenge. Some of the remedies sought are
as follows:
a) information
surrounding urine sample A107802 be removed from his file;
b) his day
parole conditions be restored;
c) damages (although, at
the hearing the Applicant stated that he was not seeking damages);
d) disciplinary
sanctions against CSC’s agents.
[33]
The
Respondent argues that this Court is without jurisdiction to grant the remedies
sought by the Applicant and draws the Court’s attention to subsection 18(3) and
section 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7, which
state as follows:
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Extraordinary
remedies, federal tribunals
18.
(1) Subject to section 28, the Federal Court has exclusive original
jurisdiction
[. . .]
Remedies
to be obtained on application
(3)
The remedies provided for in subsections (1) and (2) may be obtained only on
an application for judicial review made under section 18.1.
Application
for judicial review
18.1
(1) An application for judicial review may be made by the Attorney General of
Canada or by anyone directly affected by the matter in respect of which
relief is sought.
[.
. .]
Powers
of Federal Court
(3)
On an application for judicial review, the Federal Court may
(a)
order a federal board, commission or other tribunal to do any act or thing it
has unlawfully failed or refused to
do
or has unreasonably delayed in doing; or
(b)
declare invalid or unlawful, or quash, set aside or set aside and refer back
for determination in accordance with such directions as it considers to be
appropriate, prohibit or restrain, a decision, order, act or proceeding of a
federal board, commission or other tribunal.
Grounds
of review
(4)
The Federal Court may grant relief under subsection (3) if it is satisfied
that the federal board, commission or other tribunal
(a)
acted without jurisdiction, acted beyond its jurisdiction or refused to
exercise its jurisdiction;
(b)
failed to observe a principle of natural justice, procedural fairness or
other procedure that it was required by law to observe;
(c)
erred in law in making a decision or an order, whether or not the error
appears on the face of the record;
(d)
based its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it;
(e)
acted, or failed to act, by reason of fraud or perjured evidence; or
(f)
acted in any other way that was contrary to law.
Defect
in form or technical irregularity
(5)
If the sole ground for relief established on an application for judicial
review is a defect in form or a technical irregularity, the Federal Court may
(a)
refuse the relief if it finds that no substantial wrong or miscarriage of
justice has occurred; and
(b)
in the case of a defect in form or a technical irregularity in a decision or
an order, make an order validating the decision or order, to have effect from
any time and on any terms that it considers appropriate.
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Recours
extraordinaires : offices fédéraux
18.
(1) Sous réserve de l'article 28, la Cour fédérale a compétence exclusive, en
première instance, pour :
[.
. .]
Exercice
des recours
(3)
Les recours prévus aux paragraphes (1) ou (2) sont exercés par présentation
d’une demande de contrôle judiciaire.
Demande
de contrôle judiciaire
18.1
(1) Une demande de contrôle judiciaire peut être présentée par le procureur
général du Canada ou par quiconque est directement touché par l’objet de la
demande.
[.
. .]
Pouvoirs
de la Cour fédérale
(3)
Sur présentation d'une demande de contrôle judiciaire, la Cour fédérale peut
:
a) ordonner à l’office
fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou refusé
d’accomplir ou dont il a retardé l’exécution de manière déraisonnable;
b) déclarer nul ou illégal,
ou annuler, ou infirmer et renvoyer pour jugement conformément aux
instructions qu’elle estime appropriées, ou prohiber ou encore restreindre
toute décision, ordonnance, procédure ou tout autre acte de l’office fédéral.
Motifs
(4)
Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est
convaincue que l'office fédéral, selon le cas :
a) a agi sans compétence,
outrepassé celle-ci ou refusé de l’exercer;
b) n’a pas observé un
principe de justice naturelle ou d’équité procédurale ou toute autre
procédure qu’il était légalement tenu de respecter;
c) a rendu une décision ou
une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou
non au vu du dossier;
d) a rendu une décision ou
une ordonnance fondée sur une conclusion de fait erronée, tirée de façon
abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
e) a agi ou omis d’agir en
raison d’une fraude ou de faux témoignages;
f) a agi de toute autre façon
contraire à la loi.
Vice
de forme
(5)
La Cour fédérale peut rejeter toute demande de contrôle judiciaire fondée
uniquement sur un vice de forme si elle estime qu'en l'occurrence le vice
n'entraîne aucun dommage important ni déni de justice et, le cas échéant,
valider la décision ou l'ordonnance entachée du vice et donner effet à
celle-ci selon les modalités de temps et autres qu'elle estime indiquées.
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[34]
The
Court determines that it does not have jurisdiction to entertain the remedies
mentioned at paragraph 32. It is not within the expertise of the Court to
dictate to CSC what should and should not be included in an inmate’s file,
particularly where the testing results of the diluted samples have not been
contradicted by a subsequent analysis. Also, as counsel for the Respondent
correctly submits, a monetary award for damages is not available to this Court
on a judicial review. Similarly, the sanction of alleged unprofessional
conduct by CSC staff is governed by internal disciplinary guidelines.
[35]
Therefore,
the intervention of this Court is not warranted except for the issue of “Retest
procedures” in the offender's grievance response at third level. The matter will
be sent back to the analyst at third level grievance for re-determination in
accordance with these reasons.
JUDGMENT
THIS COURT ADJUDGES that:
1.
The application
for judicial review is allowed in part. The matter is sent back
to the analyst at third level grievance for re-determination on the issue of
"Retest procedures" in accordance with these reasons.
2.
There
shall be no award as to costs.
“Michel Beaudry”
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