Date:
20130904
Docket:
T-5-13
Citation:
2013 FC 933
Ottawa, Ontario,
September 4, 2013
PRESENT: THE
CHIEF JUSTICE
BETWEEN:
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GEORGE HALL
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by the Commissioner of the
Correctional Service of Canada [Commissioner] to refuse the Applicant’s request
for a reduction in his security classification and a transfer to a minimum
security facility.
[2]
The
Applicant, Mr. Hall, submits that the Commissioner erred by:
a. Failing
to conduct an independent and de novo assessment of his grievance;
b. Rendering
an unreasonable decision; and
c. Making
a decision in bad faith.
[3]
In
addition, Mr. Hall seeks a declaration that the grievance process in this case
was not fair or effective due to unjustified delays by the Commissioner in
reaching his decision and delivering it to Mr. Hall.
[4]
For
the reasons that follow, I agree that the Commissioner did not in fact conduct
an independent and de novo assessment of Mr. Hall’s grievance. The
Commissioner’s decision will therefore be set aside and remitted to him for a
new assessment, in accordance with these reasons.
[5]
For
the reasons set forth in Part V.B. of this judgment, the declaration sought by
Mr. Hall will not be granted.
I. Background
[6]
Mr.
Hall is 49 years of age. He is serving an indeterminate sentence in the federal
correctional system. He is currently housed at the Regional Treatment Center, a medium security prison located in Abbotsford, British Columbia.
[7]
In
1995, he was declared and sentenced as a “dangerous offender,” following
convictions for offences including sexual assault and kidnapping.
[8]
The
following year, after serving a period of time in a maximum security
institution, his security classification was downgraded to “medium
security” and he was transferred to a medium security institution.
[9]
In
2005, his security classification was downgraded again and he was transferred
to a minimum security institution in British Columbia.
[10]
However,
in 2008, as a result of a federal policy change that was enacted in respect of all
dangerous offenders in minimum security institutions, Mr. Hall was transferred
back to a medium security institution. It appears to be common ground between
the parties that this transfer occurred solely because of the policy change,
and may not otherwise have occurred. Among other things, Mr. Hall’s
reclassification to that of “medium security” was principally based on the fact
that he was assessed as needing to (i) take a “more flexible approach to
treatment” and (ii) better address his family violence issues and daily logs.
[11]
In
early 2009, Mr. Hall applied to be transferred back to a minimum security
institution. However, in August 2009, his application was refused on the ground
that he was due to be referred to the High Intensity Family Violence
Programming.
[12]
In
2011, he made another application to be transferred to a minimum security
institution. When that application was rejected, he filed what is known as a
“first level” grievance with the Warden, also known as the Executive Director,
of the institution where he is incarcerated.
[13]
In
November, 2011, the Warden, sitting together with the Offender Management
Review Board [OMRB], recommended the approval of Mr. Hall’s request for a
transfer to William Head Institution, a minimum security institution, as well
as the lowering of his security rating to “minimum.”
[14]
In
accordance with the Commissioner’s Directive 710-6, and in particular
the provisions therein regarding the transfer of dangerous offenders to a
minimum security institution, the Warden forwarded the recommendation of the
OMRB to the Regional Deputy Commission [RDC]. The RDC did not agree with the
OMRB’s recommendation. In brief, although he agreed with the recommendation
that Mr. Hall be considered as presenting a low escape risk, he assessed his
public safety risk (in the event of an escape) to be moderate. Based on that
conclusion, he recommended that the reclassification of Mr. Hall’s security
risk from medium to minimum not be approved.
[15]
After
reviewing the RDC’s recommendation, the Warden concurred with it and decided to
maintain Mr. Hall’s security risk at the level of “medium.” He therefore
declined to approve Mr. Hall’s request to be transferred to a minimum
security institution.
[16]
Pursuant
to s. 80(1) of the Corrections and Conditional Release Regulations,
SOR/92-620 [Regulations], where an offender is not satisfied with a decision of
the institutional head respecting the offender’s grievance, the offender may
appeal the decision to the head of the region. This is also known as a “second
level” grievance. Given the involvement of the RDC in Mr. Hall’s first level
grievance, it was agreed that Mr. Hall would be permitted to appeal the
Warden’s decision directly to the Commissioner, pursuant to s. 80(2). Such
appeals are also known as “third level” grievances.
II.
The Decision Under Review
[17]
The
Commissioner began by noting that Mr. Hall had raised concerns regarding the
RDC’s recommendation not to approve his request to transfer to a minimum
security institution. He then proceeded to summarize a positive assessment of
Mr. Hall that had been conducted in September 2011. This was followed by a
brief summary of the initial recommendation that had been made by the OMRB.
[18]
The
Commissioner then provided a detailed summary of the RDC’s recommendation and
the reasons supporting that recommendation.
[19]
After
noting that the Warden concurred with the RDC’s recommendation and therefore
declined to approve Mr. Hall’s transfer request, the Commissioner reiterated
that the recommendations of his Case Management Team [CMT] and the RDC “were,
in fact, considered.” He concluded by stating:
After careful consideration of all available
information, it was determined that you would be most appropriately classified
as a Moderate Public Safety Risk with an overall [Offender Security Level] of
Medium security. Although the RDC provides a recommendation, the Institutional
Head is considered the final decision maker in accordance with CD 710-6,
paragraphs 5 & 19, which state …
In light of the above, it was found that the final
decision by the [Warden] was made in accordance with policy and in
consideration of all available information. Your grievance is, therefore,
denied.
III.
Issues
[20]
This
application raises the following issues:
a. Did
the Commissioner err by failing to conduct an independent and de novo
assessment of Mr. Hall’s grievance?
b. Did
the Commissioner render an unreasonable decision?
c. Did
the Commissioner make a decision in bad faith?
d. Was
the grievance procedure in this case unfair and ineffective, due to unjustified
delays?
IV. Standard
of Review
[21]
The
first issue raised concerns the Commissioner’s interpretation of his mandate
pursuant to s. 80(2) of the Regulations. Where an administrative decision-maker
is interpreting his or her own statute, or a statute closely connected to the
decision-maker’s function, with which he or she has particular familiarity,
deference will usually result.
This principle applies unless the interpretation of the statute falls into one
of the categories of questions to which the correctness standard continues to
apply, i.e., (i) constitutional questions, (ii) questions of law that are of
central importance to the legal system as a whole and that are outside the
adjudicator’s expertise, (iii) questions regarding the jurisdictional
lines between two or more competing specialized tribunals, and (iv) true
questions of jurisdiction or vires (Alberta (Information
and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011]
3 SCR 654 [Alberta Teachers], at para 30).
[22]
It
is readily apparent that the Commissioner’s interpretation of his mandate
pursuant to s. 80(2) of the Regulations does not involve a constitutional
question, a question of central importance to the legal system as a whole, or a
question regarding the jurisdictional lines between two or more competing
specialized tribunals. In my view, the Commissioner’s interpretation of his
mandate also is not one of the exceptional instances of statutory
interpretation that may reasonably be characterized as involving a true
question of jurisdiction or vires (Alberta Teachers, above, at
paras 33-43). This is particularly so given the absence of any demonstration of
why this Court should not review this issue on the deferential standard of
reasonableness (Alberta Teachers, above, at para 39).
[23]
The
second issue raised in this proceeding, concerning the reasonableness of the
Commissioner’s decision, is reviewable on a standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir],
at paras 51–53).
[24]
The third and
fourth issues raised in this proceeding, concerning bias and fairness, are
reviewable on a standard of correctness (Dunsmuir, above, at paras 55, 79; Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009]
1 SCR 339, at para 43).
V. Analysis
A.
Did the Commissioner fail to conduct an independent and de novo review?
[25]
Mr.
Hall submits that the Commissioner erred by failing to conduct a de novo
review of his request for a transfer to a minimum security institution and by
asking himself the wrong question. Mr. Hall maintains that, instead of
personally assessing his request de novo, the Commissioner simply asked himself
whether the Warden’s decision was “in accordance with policy and in
consideration of all available information.” I agree.
[26]
The
Respondent submits that the Commissioner reviewed all of the evidence, detailed
the key issues, addressed relevant new arguments, set out the Warden’s decision
and satisfied himself that the Warden’s decision was correct.
[27]
The
Commissioner did indeed review much of the evidence. He also detailed some of
the key issues and addressed one of the new arguments made by Mr. Hall, namely,
his submission that Correctional Service Canada [CSC] has a duty to ensure that
offenders are housed in the least restrictive environment. In this latter
regard, the Commissioner stated that section 4(c) of the Corrections and
Conditional Release Act, SC 1992, c 20 [CCRA] had been modified to provide
that the CSC use “measures that are consistent with the protection of society
and that are necessary and proportionate to attain the purposes of this Act.”
Based on that amendment, the Commissioner observed that the “least restrictive
measure” is no longer considered to be the appropriate test.
[28]
However,
apart from addressing that one single new argument made by Mr. Hall, there is
virtually nothing in the Commissioner’s decision which might reasonably reflect
that he personally assessed the issues raised by Mr. Hall in his grievance and
supplementary submissions, and that he reached his own conclusion regarding their
merits (Spidel v Canada (Attorney General), 2012 FC 958, at paras 70-73,
82).
[29]
It
is clear that the Commissioner concluded that the Warden’s decision was made in
accordance with policy and in consideration of all available evidence. But that
was not the question before him. The question before him was whether he, the
Commissioner, considered that Mr. Hall’s request for a transfer should be
approved or denied, based on his own assessment of the record.
[30]
After
reviewing the findings of the RDC and the final decision reached by the Warden,
the Commissioner concluded the “decision” under review by simply referring
again to positions taken by those two individuals. He did so in four sentences,
before then stating: “Your grievance is, therefore, denied.”
[31]
In
the first of those sentences, the Commissioner stated: “In conclusion and
reiteration of what was noted in the final decision by the [Warden], recommendations
from both your CMT and the RDC were, in fact, considered.” In my view, the
words “in fact” make it clear that the Commissioner was referring to the
Warden’s decision. He was simply reiterating that the recommendations of the
CMT and the RDC were considered by the Warden.
[32]
In
the second of the four sentences, the Commissioner stated: “After careful
consideration of all available information, it was determined that you would be
most appropriately classified as a Moderate Public Safety Risk with an overall
[Offender Security Level] of Medium security.” Again, this appears to refer to
the Warden’s decision. This interpretation is supported by the following
sentence, i.e., the third of the four sentences in question, in which the
Commissioner stated: “Although the RDC provides a recommendation, the
Institutional Head is considered the final decision maker in accordance with CD
710-6, paragraphs 5 & 19, which state …”
[33]
In
the fourth of the sentences in his conclusion, the Commissioner stated: “In
light of the above, it was found that the final decision by the [Warden] was
made in accordance with policy and in consideration of all available
information.” As noted above, this was not the decision that the Commissioner
was called upon to make.
[34]
Section
80(2) of the Regulations provide offenders with a right to “appeal” the
decision of the RDC to the Commissioner, where the offender “is not satisfied
with the decision of the [RDC] respecting the offender’s grievance.” As
previously noted, given that the RDC had already been involved in the matter,
when he provided his recommendation to the Warden, it was agreed that Mr. Hall
could appeal directly to the Commissioner without first appealing to the RDC.
[35]
This
right of appeal entitled Mr. Hall to a de novo review of his grievance
by the Commissioner (Rose v Canada (Attorney General), 2011 FC 1495, at
para 45; Riley v Canada (Attorney General), 2011 FC 1226, at para 21; Tyrrell
v Canada (Attorney General), 2008 FC 42, at paras 37-38). In other words,
Mr. Hall was entitled to have his grievance heard afresh, and to present new
arguments and evidence that had not been presented to the Warden and the RDC (Tyrrell,
above).
[36]
Unfortunately
for everyone involved, the Commissioner conducted no such de novo review
or fresh and independent assessment of Mr. Hall’s grievance. Had he done so, I
acknowledge that the record is such that he may well have reasonably reached
the same decision as that which was reached by the Warden and the RDC. However,
he did not. I am therefore unable to give respectful attention to his
assessment because he independently conducted no such assessment (Alberta
Teachers, above, at para 52).
[37]
If
the Commissioner had even given some meaningful indication that he had
personally engaged in his own, independent, assessment of the pith and
substance of Mr. Hall’s grievance, it would not have been difficult for the
Court to supplement those reasons, from the fulsome record that was before the
Commissioner (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011]
3 SCR 708,
at paras 12-15). However, he did not.
[38]
It
is therefore appropriate to set aside the Commissioner’s decision and remit the
matter to him for the purpose of providing his own fresh, de novo, assessment
of Mr. Hall’s grievance and reasons which reflect that assessment (Alberta
Teachers, above, at para 55).
[39]
It
is unnecessary to consider the second and third issues raised by the Applicant.
B.
Was the grievance procedure in this case ineffective, due to unjustified
delays?
[40]
Mr.
Hall seeks a declaration that the grievance process in his case was not fair or
effective due to unjustified and undue delay. I disagree.
[41]
Section
90 of the CCRA states as follows:
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).
[42]
Mr.
Hall emphasizes that the delay in this case was particularly glaring because
the subject of the grievance, that he remain in a more restrictive setting,
directly affected his liberty interests (May v Ferndale, [2005] 3 SCR
809, at para 76; Hutchison v Canada (Attorney General), 2010 ONSC
535, at paras 30-35).
[43]
Mr.
Hall further notes that section 80(3) of the Regulations requires the
Commissioner to provide an offender who has filed a third level grievance with
his decision and the reasons for the decision “as soon as practicable after the
offender submits an appeal.”
[44]
Mr.
Hall submitted his grievance to the Commissioner on March 20, 2012. On April
23, 2012, after some negotiations concerning whether Mr. Hall would be
permitted to by-pass the second level grievance procedure and proceed directly
to an appeal to the Commissioner, CSC wrote to Mr. Hall to advise him that his
grievance would be forwarded to the Commissioner for a decision. The
Commissioner acknowledged receipt of the grievance on May 4, 2012 and stated
that it would be managed in accordance with the Commissioner’s Directive 081 - Offender
Complaints and Grievances [CD 081]. Paragraph 18 of that document states
that the Commissioner will respond to a third-level grievance of “routine
priority” within 80 working days of receipt by the Grievance Coordinator.
[45]
On
August 20, 2012, the analyst to whom Mr. Hall’s grievance had been assigned wrote
to Mr. Hall to advise that the estimated timeframe for providing the
Commissioner’s response would not be met. After noting that “further
investigation is required to permit a thorough analysis into the issues
identified in your presentation,” the analyst advised that a response was
expected to be finalized on or before October 2, 2012. In concluding his
letter, he apologized for this delay.
[46]
It
appears that the Commissioner’s decision was ultimately rendered on November 7,
2012. However, for some reason it was not provided to Mr. Hall until
approximately December 4, 2012.
[47]
In
determining whether Mr. Hall was treated fairly, as contemplated by section 90
of the CCRA, the Regulations and CD 081 provide helpful guidance.
[48]
As
noted above, section 80(3) of the Regulations requires the Commissioner to
provide an offender with a decision and reasons “as soon as practicable after
the offender submits an appeal.” CD 081 then specifies a timeframe of 80
working days, and proceeds to state:
20. If the Institutional Head, the Regional Deputy
Commissioner or the Director, Offender Redress, considers that more time is
necessary to deal adequately with a complaint or grievance, the grievor must be
informed, in writing, of the reasons for the delay and of the date by which the
decision will be rendered.
[49]
In
this case, this provision was invoked and Mr. Hall was informed of both the
reasons why a decision on his grievance would be delayed and of the estimated
date by which the decision would be finalized.
[50]
As
it turned out, the decision took approximately 25 additional working days to be
completed and then a further 19 days to be delivered to Mr. Hall. In my view,
this delay of approximately 44 working days, while regrettable and certainly
deserving of a reasonable explanation, was not such as to render the third
level grievance process in this case unfair (Wilson v Canada (Attorney
General), 2012 FC 57, at para 18; Ouellette v Canada (Attorney General),
2012 FC 801, at para 28).
[51]
Accordingly,
the declaration that Mr. Hall has requested will not be granted.
VI. Conclusion
[52]
I
agree with Mr. Hall’s submission that the Commissioner erred by failing to
conduct a de novo review of his request for a transfer to a minimum
security institution and by asking himself the wrong question.
[53]
The
Commissioner’s decision will therefore be set aside and referred back to the
Commissioner for a redetermination in accordance with these reasons, as requested
in this Application.
[54]
However,
I do not agree with Mr. Hall’s submission that the grievance process in this
case was neither fair nor effective, due to the delay of approximately 44
working days in reaching the third level grievance decision and delivering it
to him. Accordingly, the declaration that he has requested in that regard will
not be granted.
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