Fischer v. Canada (Attorney General), 2013 FC 861

 

 

Date: 20130812

Docket: T-36-13

Citation: 2013 FC 861

Ottawa, Ontario, August 12, 2013

PRESENT:    The Honourable Mr. Justice Martineau

 

 

BETWEEN:

	PATRICK DANIEL FISCHER
		Applicant
	and
	ATTORNEY GENERAL OF CANADA
		Respondent

 

           REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review of a third-level grievance decision rendered (grievance number U80A00033079) on August 24, 2012 [the impugned decision] by the Senior Deputy Commissioner [SDC].

 

[2]               The self-represented applicant is a federally incarcerated inmate at the Mountain Medium Security Institution operated by the Correctional Service of Canada [CSC] in the town of Agassiz, District of Kent, British Columbia. The applicant is currently serving a life sentence for first degree murder. The applicant’s grievance was upheld in part but denied in relation to his request for a copy of the executive summary before the rendering of the decision and also denied in relation to the applicant’s request for “file corrections”. The SDC determined that this issue had already been addressed and subsequently denied during a previous third-level grievance process instigated by the applicant in 2006 (response to third-level grievance V80A00015682).

 

[3]               I pause to mention that the grievance procedure to resolve inmate complaints regarding actions or decisions made by CSC staff members is established in section 90 of the Corrections and Conditional Release Act, SC 1992, s 24(1),(2) [CCRA]. Sections 74 to 82 of the Corrections and Conditional Release Regulations, SOR/92-620 [Regulations] outline the four stages in the grievance procedure, which is intended to fairly and efficiently address inmate concerns. The first stage in the procedure involves an initial complaint; the second stage is what is known as the “first-level grievance”, which is presented by way of a written grievance to the head of the institution in question; the third stage is the “second-level grievance” and consists of an appeal to the head of the region; and the fourth stage is the “third-level grievance”, which is a further and final appeal that is made to the Commissioner. Finally, after the third-level grievance has been completed and the internal process has thus been exhausted, applications for judicial review may be brought.

 

[4]               The crux of the applicant’s attack today against this 2012 decision turns on the information contained within his correctional files that he alleges as being inaccurate, out-of-date, unsupported by evidence, and ultimately in violation of subsections 24(1) and 27(2) of the CCRA. It would appear that the alleged inaccurate information goes back as far as 2004. Another component of the applicant’s attack is an alleged lack of fairness in the grievance process which is too long, cumbersome and ineffective in practice. Indeed, three years have elapsed between the filing of the grievance in 2009 and making of the impugned decision in 2012.

 

[5]               For the reasons mentioned below, the present application must fail.

 

LEGAL FRAMEWORK

[6]               Sections 23, 24 and 27 of the CCRA deal with the collection and communication of relevant information:

 

 

[7]               Section 90 of the CCRA provides for the existence of a grievance procedure for fairly and expeditiously resolving offenders’ grievances:

 

 

[8]               More particularly, from a practical point of view, sections 74 to 82 of the Regulations establish the appropriate mechanisms and procedures to be followed to make and resolve offenders’ complaints and grievances:

 

 

[9]               With this legal framework in mind, let us now examine the relevant background in this case.

 

BACKGROUND

[10]           Upon incarceration, the applicant was allowed to possess a personal computer in addition to assorted software programs. Initially incarcerated in Kent Maximum Security Institution, the applicant was transferred to Mountain Medium Security Institution in August 2004. In September 2004, he was notified that his Windows 98 Software CD had not arrived at Mountain. Since he did not have the software CD, he was unable to prove ownership of the Windows 98 operating system software installed on his personal computer. At this point, the applicant initiated a complaint via the offender grievance system as well as a claim for the replacement of lost or damaged property for which CSC was responsible at the time of the alleged loss or damage of the Windows 98 software CD.

 

[11]           The complaint procedure progressed and at one point a memorandum was issued that stated that there were two pieces of software listed as unauthorized on the applicant’s computer in addition to several that required proof of ownership. In response, the applicant asserted that at least one software program had been mistakenly identified as unauthorized and that the other software identified in the memorandum was not actually installed on the applicant’s computer at the time. The applicant notes that he also provided proof of ownership for other software programs per the memorandum’s request. Ultimately, on or about May 10, 2005, the applicant was issued his personal computer for his possession in his cell, and on October 6, 2005, the applicant received a response to his third-level grievance regarding the lost or damaged software and property. The grievance was upheld and the applicant received monetary reimbursement. In addition, several items were replaced including his Windows 98 and Office 97 software.

 

[12]           On November 10, 2005, the applicant’s computer was seized for inspection and the next day, on November 11, 2005, he received a memorandum from the warden regarding the presence of unauthorized software on his computer. It originally appeared in the memorandum written by Bruce Anderson: “Acting Warden N. Wrenshall gave you the benefit of the doubt that the unauthorized software found on your computer may have been put there by someone else.” The applicant now states that the supporting evidence for the presence of unauthorized software included several statements of fact based on the previous issue that had occurred between September 2004 and May 10, 2005. On December 8, 2005, the applicant submitted Inmate Complaint #V80A00015682 contesting the reasons given for seizing his computer and the truth of the statements of fact relied upon regarding the prior proceedings related to his computer. The applicant now explains that the first- and second-level grievances in this matter were both denied, as was the third-level. The applicant received the response denying the third-level grievance on November 21, 2006. It was at this point that an additional statement of fact regarding the prior matter related to his computer was included in this response. The third-level grievance read: “Your computer was inspected again in 2005 and it was found that you were not in compliance with CD 090. The computer was sent to an outside source to be re-formatted at your expense.”

 

[13]           The applicant brought a second grievance in 2009 (grievance number V80A00027276). This grievance took issue with the statement that there was unauthorized material on his computer between his arrival at Mountain Institution in 2004 and the return of his computer in May 2005, and that his computer had been sent to an outside source for reformatting at the applicant’s expense. The applicant argued that both of these statements were incorrect. This challenge was forwarded through the inmate grievance process as file #V80A00027276. The applicant was unsuccessful with regard to the unauthorized material on his computer between 2004 and 2005 as it was determined that this issue had already been dealt with in the context of applicant’s first grievance. The applicant, however, was successful contesting the statement that his computer had been sent to an outside source for reformatting. No evidence existed to support this statement and his file was amended accordingly.

 

[14]           Then, in 2010, the applicant initiated another new grievance in order to contest the accuracy of the statements of fact that he still currently disputes. This new challenge again progressed through to the third-level and the applicant states he received this last final decision on September 24, 2012 (grievance number U80A00033079). During these procedures the applicant had additionally demanded that he receive the “executive summary” (the recommendation prior to the final decision) from both the second-level of the grievance process as well as from the third-level prior to the rendering of the third-level decision.

 

DECISION UNDER REVIEW

[15]           In coming to the third-level grievance decision, Senior Deputy Commissioner [SDC] Anne Kelly reviewed the applicant’s previous submissions; the responses to these submissions; pertinent policy and legislation; and the applicant’s correctional file (also known as his Offender Management System [OMS] file). As we will later see in these reasons, the applicant does not challenge the intelligibility nor the transparency of the impugned decision. However, he insists on the fact that in order to be reasonable, it must be based on accurate information supported by evidence on the record, which he submits is not the case. Regarding the newest grievance procedure, the respondent argues that no new information or evidence was introduced by the applicant. The respondent insists that the applicant only reargued matters that had been on the table in the previous grievances he had filed and for which final decisions had been rendered with no appeal by the applicant.

 

[16]           Regarding the applicant’s argument that he had not been provided a copy of the executive summary prior the rendering of the decision and that this was a breach of the duty to act fairly, the SDC stated that she was satisfied that no requirement existed under the CCRA or the Regulations for offenders to review and make representations on an analyst’s recommendations (the executive summary) before a decision is rendered. Regarding the applicant’s reference to “recent court decisions” that allegedly found in favour of the provision of executive summaries prior to the rendering of a decision, the SDC presumed the applicant was referring to Lewis v Canada (Correctional Services), 2011 FC 1233 [Lewis]. The SDC highlighted the CSC’s legal obligation per the CCRR to give an offender a copy of the grievance decision, including the reasons for the decision, as soon as practicable after the offender submits the grievance. The SDC additionally noted that subsection 27(2) of the CCRA states that justification for a correctional decision be given after the decision is made. The SDC then referred to subsection 27(1) of the CCRA in order to find that it did not apply as neither the CCRA nor the Regulations establish a right to make representations on a proposed grievance decision before the decision is finalized. The SDC thus denied this portion of the applicant’s grievance. The reasonableness of these findings was not challenged, at least in a direct manner, by the applicant who made no oral submissions on this latter issue when he was heard by the Court. However, the applicant generally questions the fairness of the whole grievance process.

 

[17]           The SDC then turned to the next issue submitted by the applicant pertaining to the contested statements of fact. Regarding the applicant’s argument that the content of his correctional file should be adjusted in order reflect accurate information and in order to meet the standards of subsection 24(1) of the CCRA. The SDC explained that no information had been changed by the applicant’s parole officer [PO] as the PO had found no specific reference to the issues the applicant raised while reviewing the applicant’s case management reports. However, the SDC does note that according to Commissioner’s Directive 701, Information Sharing at paragraph 13, “The staff member must ensure that reliable documents or other sources exist which support or contradict the information on file and/or the requested change to the information.” The SDC found that even though there were no case management reports regarding the issues raised by the applicant in his complaint on this point, there was also no indication that the PO had reviewed all the files to see if documents existed to support or contradict the allegations. As a result, the SDC upheld this part of the applicant’s grievance.

 

[18]           However, the SDC rejected the portion of the applicant’s grievance dealing with his assertion that erroneous allegations were made that affected him negatively regarding the findings of unauthorized material in his computer circa 2004-2006. The SDC reasoned that these same arguments had been forwarded by the applicant previously in his grievance V80A00015682 that had progressed to the third-level grievance and had been rejected upon the final decision rendered on November 21, 2006. But the SDC also found that, after reviewing the applicant’s correctional file and outlining the requested changes, the prior level had not included in its decision the initial request for a file correction, or the decision denying the request, or the reasons given for denying the request. As a result, the SDC held in favour of the applicant’s position for this portion of his grievance.

 

[19]           The SDC concluded by summarizing that the applicant’s grievance had been upheld in part and then outlined the corrective action to take place in order to remedy the portions of the applicant’s grievance that were upheld. Specifically, the SDC wrote on page 4 of the impugned decision that:

As corrective action, the IH of Kent Institution will remind staff of the importance of reviewing offenders’ files to determine whether or not reliable documents exist to support or contradict the contested information pursuant to CD 701, paragraph 13. In addition, the IH will direct the appropriate staff member to identify your initial request for a file correction, the decision to deny your request and the reasons for the denial in the MTF, locked 2011-07-25, in compliance with CD 701, Annex B, paragraph 20-23.

 

 

[20]           However, the applicant, who is still unsatisfied by the fact that no direct corrective actions have been taken with respect to the contested statements of fact, asks this Court to review the matter and grant this application.

 

THE PRESENT APPLICATION

[21]           In my opinion, the present application raises two different issues:

(1)   Was the CSC obliged to reconsider the accuracy of the contested statements of fact in relation to the alleged lack of evidence even though their accuracy has already been affirmed by the final stage of past grievance procedures?

 

(2)   Was the process followed by CSC to dispose of his last grievance unfair?

 

 

[22]           Issues of procedural fairness in the context of judicial review of decisions made in the course of the CSC offender grievance process, as well as issues dealing with the interpretation of legislation, are generally dealt with under the correctness standard of review: Kim v Canada (AG), 2012 FC 870 at para 32 [Kim]; Sweet v Canada (AG), 2005 FCA 51 at para 16; Khosa v Canada (MCI), 2009 SCC 12 at para 43; Tehrankari v Canada (AG), 2011 FC 628 at para 24 [Tehrankari]. However, findings of fact and mixed fact and law made in the course of the CSC offender grievance process and under the CCRA are reviewable under the standard of review of reasonableness: Yu v Canada (AG), 2012 FC 970 at para 15 [Yu]; Kim at para 33; Bonamy v Canada (AG), 2010 FC 153 at paras 46-47; Crawshaw v Canada (AG), 2011 FC 133 at paras 24-27; Tehrankari at para 24. In addition, CSC is owed a high degree of deference by the Court due to its expertise in inmate and institution management: Kim at para 59.

 

[23]           The applicant has originally sought in his notice of application an order setting aside the SDC’s decision and granting the issuance of a memorandum to the applicant, which would also be filed in his correctional file to amend the information contained therein in order to render it accurate. However, the respondent has contended that if the applicant were successful in this application, the appropriate remedy would be to simply quash the impugned decision and send it back for re-determination. At the hearing before this Court, the applicant confirmed that he was no longer seeking the other remedies originally sought in his notice of application.

 

ANALYSIS AND DETERMINATION

[24]           In the analysis and the determination that follows, I have taken account of all the arguments made by the parties in their memoranda of fact and law, as well as what the applicant and counsel for the respondent have specifically said about the relevant issues to be determined by the Court when they were heard in Vancouver.

 

[25]           The applicant argues at great length that the 2006 grievance decision was based on incorrect information, and thus flawed and unreasonable. As a result, the applicant asserts that the impugned decision is also flawed because it relies on the allegedly incorrect information in the 2006 decision. The applicant justifies his failure to make an application for judicial review against earlier decisions in his case by the fact that the library at Kent Institution was sparse, that he did not have the possibility at the time to make an application and that he only learned much later that inaccurate information had been used.

 

[26]           The applicant contrasts in his memorandum the SDC’s current refusal to review and correct the 2006 grievance with the SDC’s 2009 grievance decision that reviewed a portion of the 2006 grievance and determined that no evidence existed to support the statement that the applicant’s computer had been sent to an outside source for reformatting at the applicant’s expense. The applicant then asserts that it was unreasonable for his current requested corrections to be denied on the basis that a final decision had already been rendered – notably regarding the non-compliance of the programs on his computer during 2004-2005. Specifically, the applicant explains CSC only provided documentation to support the computer inspection that occurred on November 10, 2005.

 

[27]           Regarding the statement made by the acting warden (in the context of the first level proceedings in the 2006 grievance) that the applicant had been given the “benefit of the doubt” that unauthorized software could have been installed on his computer by someone else, the applicant again asserts that there is a lack of evidence to support this statement. The applicant also refers to evidence that contradicts the acting warden’s statement in order to demonstrate its inaccuracy. The applicant also contends that if the CSC had in fact found unauthorized software then, they would have removed his computer permanently and would not have allowed him to remove the software himself.

 

[28]           The applicant argues that the authorities did not act in accordance with CSC policy and contravened subsections 24(1) and 27(2) of the CCRA. The applicant asserts that Commissioner’s Directive 701 at paragraph 13 and subsection 24(1) of the CCRA require the CSC to ensure that reliable evidence exists to either support or contradict the information in an inmate’s file. The applicant argues that CSC did not adhere to these requirements as it ignored the evidence contradicting the statements while failing to provide supporting evidence. In particular, the applicant asserts that he was previously unaware of the casework log of Lisa Saether until he received it in the respondent’s Certified Tribunal Record. He argues that it is an extremely important piece of evidence as it supports his version of the events that took place with regard to his computer. He asserts that he should have had access to this document pursuant to subsection 27(2) of the CCRA, not only in the context of the third-level proceedings in the 2012 grievance, but also back in 2006.

 

[29]           In the respondent’s view, the applicant is simply seeking to undermine the finality of an administrative decision from 2006 that he never challenged on judicial review at the time. The respondent explains that now, years later, the applicant is indirectly appealing a final decision via a file correction request. To exemplify this argument, the respondent refers to the substantial portions of the applicant’s memorandum that challenge the legitimacy of the 2006 grievance decision. This is simply not permissible (Apotex Inc v Canada (Health), 2011 FC 1308 at paragraphs 19-20). Be that as it may, subsection 24(2) only deals with information to which an offender has been given access pursuant to subsection 23(2) and 23(1) rather than “any information about an offender which is subject to correction.” (Tehrankari v Canada (Correctional Services) (2001), 188 FTR 206 at paragraphs 52-53 [Tehrankari (2001)]). In addition, the respondent also contends that the record suggests that the information the applicant contests was not used to assess the applicant’s risk and behaviour as it did not appear in the applicant’s case management reports.

 

[30]           For example, the respondent refers to the correction sought by the applicant of the statement allegedly made by the acting warden at the first level of the 2006 grievance proceedings: “The acting Warden at that time gave you the benefit of the doubt that the unauthorized software found on your computer may have been put there by someone else.” While the applicant contests that there is no evidence to substantiate the statement that the warden gave him the “benefit of the doubt”, the respondent explains that the applicant should have sought recourse at the time by pursuing his grievance to the next level of the grievance process and eventually judicial review rather than now requesting a correction pursuant to section 24(2) of the CCRA. The respondent argues that since the applicant did not do this, he cannot now request that this final administrative decision be altered by way of section 24 of the CCRA or by way of the present judicial review. The respondent asserts the same argument in relation to all of the other statements for which the applicant seeks a file correction.

 

[31]           The arguments made by the respondent are persuasive. At base, I agree with the respondent’s assessment of the situation in the sense that the applicant is making a collateral attack. If the applicant were able to contest these statements of fact originating from prior final decisions, then this would compromise the certainty of a final decision. Even if the past decisions that led to the contested statements of fact that now appear in the applicant’s correctional file were not sufficiently based on verifiable evidence, at face value it is reasonable for the 2012 decision-maker to not have reconsidered the evidence that the prior 2006 and 2009 decisions were based on. This would constitute reopening final decisions that the applicant did not choose to appeal at the time. Much as in the context of a limitation period that has passed, whether or not the claims at issue are meritorious, the time has passed for the applicant to appeal the final decisions.

 

[32]           This conclusion is determinative of my decision to reject the applicant’s argument that the impugned decision is unreasonable and illegal. If the applicant wanted to challenge the legality of the 2006 and 2009 decisions, it was up to him to make an application for extension of time and provide a reasonable explanation for the long delay in this case. In passing, I am ready to accept that there may be some problem with how the CSC has treated this file, but in the end, I do not find it to be a determinative factor in this case. With respect to the particular statement of fact attributed to the acting warden – the “benefit of doubt”, in the present record, there does not appear to be any evidence to substantiate the statement. However, I am ready to accept the respondent’s explanation that it is normal that there appears to be no evidence supporting the statement in question since such evidence would be found in the record relating to the 2006 decision and would not have been included in the certified record which concerns the legality of the 2012 decision.

 

[33]           The remaining statements of fact contested by the applicant are those related to the presence of unauthorized material on the applicant’s computer and I note that the accessible record contains some evidence to support the presence of this material on the applicant’s computer during the relevant period. The first time the computer was seized, the various memoranda issued, as well as internal communications, clearly identified which programs constituted the identified unauthorized software. In addition, after the computer was again seized when the computer seals were found to have been tampered with, it is also clearly identified which computer programs were considered to be unauthorized. At the hearing before me, I was notably referred by respondent’s counsel to the two memoranda of 2005 (see pages 62 and 67 of the respondent’s record). This is enough to support the decision.

 

[34]           The applicant has not satisfied me either that there is a serious flaw in the reasoning of the SDC or that she has ignored relevant legal provisions. Her reasons are articulate and thorough. The SDC acknowledges that even though the third level reviewed the “material to file” and that it appropriately outlined the applicant’s requested changes, it did not “begin by identifying [the applicant’s] initial request for a file correction, the decision to deny [the applicant’s] request or the reasons for the denial.” The SDC refers again to the Commissioner’s Directive 701, Annex B at paragraphs 20-23 to note that the omission by the third level is inconsistent with Commissioner’s Directive 701. Thus, the applicant’s grievance was upheld on this matter as well.

 

[35]           With respect to the fairness of the grievance process, I have also considered the applicant’s statement that he was previously unaware of the casework log of Lisa Saether until he received a copy via the Certified Tribunal Record. The applicant submits that this evidence is “an extremely significant piece of evidence as it clearly supports a portion of [his] version of events that the CSC has disputed since 2006.” The applicant states that this should have been provided to him earlier pursuant to subsection 27(2) of the CCRA. Yet I do not find that access to this casework log would have been determinative since the applicant’s arguments on this matter appear to have been upheld by the SDC.

 

[36]           I venture to add that the same reasoning applies to the applicant’s arguments regarding the inaccurate “benefit of the doubt” statement allegedly made by the acting warden. The casework log of Lisa Saether reveals the following statement: “A/Warden Wrenshall concluded that documentation errors may have been made however the only way she will accept that Mr. Fischer has ownership of Windows 98 is to have the ID number on the Manual compared with the ID number on Mr. Fischer’s computer.” As the applicant asserts, there is no mention of the acting warden giving the applicant the “benefit of the doubt”. However, as mentioned above, the impugned decision appears to agree with the applicant’s argument as to the inaccuracy of the “benefit of the doubt” statement that appeared in the 2006 grievance decision.

 

[37]           As far as the general allegation goes that the grievance process is unfair, in this particular case, it is simply not supported by evidence in this case, and this last argument must also fail.

 

[38]           In conclusion, I am not satisfied that the impugned decision is unreasonable, or that the process was unfair or that there has been a breach of procedural fairness in this case. There is no reason to intervene in this case.

 

[39]           Despite the fact that the present application must be dismissed, in the exercise of my discretion, considering all relevant factors, including the particular situation of the applicant and the present reasons for judgment, there shall be no costs.

 

JUDGMENT

IT IS THE JUDGMENT OF THIS COURT that the present judicial review application be dismissed without costs.

 

“Luc Martineau”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                         T-36-13

 

STYLE OF CAUSE:                        PATRICK DANIEL FISCHER v ATTORNEY GENERAL OF CANADA

 

PLACE OF HEARING:                  Vancouver, British Columbia

 

DATE OF HEARING:                    July 31, 2013

 

REASONS FOR JUDGMENT:      MARTINEAU J.

 

DATED:                                            August 12, 2013

 

 

 

APPEARANCES:

 

Patrick Fischer	FOR THE APPLICANT (ON HIS OWN BEHALF)
Liliane Bantourakis	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Patrick Fischer Agassiz, British Columbia	FOR THE APPLICANT (ON HIS OWN BEHALF)
William F. Pentney, Deputy Attorney General of Canada Vancouver, British Columbia	FOR THE RESPONDENT