Docket:
T-82-13
Citation: 2013 FC 1071
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, October 24, 2013
PRESENT: The Honourable Madam Justice Gagné
|
|
|
BETWEEN:
|
|
SYLVAIN DUFRESNE
|
|
Applicant
|
|
and
|
|
ATTORNEY GENERAL OF CANADA
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant is a repeat sexual offender who is
under a long-term supervision order valid until February 15, 2020. During
the period relevant to this case, he was subject to a six-month residency
condition in a Community Correctional Centre (CCC). Because he had been seen in
public with an individual who was smoking crack cocaine, his parole officer
confined him to the CCC for the evening pending a disciplinary interview with
the Parole Officer Supervisor (POS) the next morning.
[2]
The applicant filed a complaint with
Correctional Service Canada (Service), followed by first-, second- and
third-level grievances, in which he alleged that he had been subjected to an unlawful
detention in violation of paragraph 10(a) of the Canadian
Charter of Rights and Freedoms (Charter) and Commissioner’s Directive (CD)
580, Discipline of Inmates, because his officer had not informed him,
within a reasonable period, of the reason for his confinement. At the third
level, the applicant added a new ground for grievance: for the 18 hours of his
confinement, he was not provided with any meals. The applicant submits that
because CCCs do not provide food services, a policy should be established
whereby offenders who are confined without authorization to sign out are
entitled to an appropriate number of meals for the period of confinement.
[3]
The applicant is seeking judicial review of the
decision of the Senior Deputy Commissioner of the Service rejecting his third-level
grievance. The Senior Deputy Commissioner found that the applicant’s
confinement was not a detention within the meaning of the Charter and that CD
580 did not apply to him because he was not a detainee within the meaning of
the Corrections and Conditional Release Act, SC 1992, c 20 (Act), and
the Corrections and Conditional Release Regulations, SOR/92-620 (Regulations).
Finally, she refused to deal with any issue that had not been raised at the
first level of grievance.
[4]
Before this Court, the applicant reiterates that
he was subjected to an unlawful detention, adding (i) that the principles of
natural justice and procedural fairness had been violated in his case and (ii) that
the Senior Deputy Commissioner should have addressed his grievance concerning
the provision of meals in CCCs.
Issues and standard of review
[5]
In his written and oral representations before
this Court, the applicant raised a number of arguments that may be grouped as
follows:
a.
Was the applicant unlawfully detained?
b.
Were the principles of natural justice and
procedural fairness violated in the applicant’s case?
c.
Should the Senior Deputy Commissioner have dealt
with the grievance concerning the provision of meals in CCCs?
[6]
The parties did not take any position on what
standard(s) of review should be applied to the impugned decision. The applicant
simply alleges that the Senior Deputy Commissioner erred in law in her
interpretation and application of the Act, the Regulations and the Charter,
implying that the applicable standard of review is correctness.
[7]
If this is the case, I do not share the
applicant’s view. In her decision, the Senior Deputy Commissioner had to
consider whether the officer had acted properly in temporarily confining the
applicant to the residence in the interest of public safety, and so the
standard applicable to issues (i) and (iii) should be reasonableness (Spidel
v Canada (Attorney General), 2012 FCA 275).
[8]
With respect to the issues involving natural
justice and procedural fairness, the standard of correctness will be applied.
Analysis
[9]
A preliminary remark is in order. Because the
applicant is no longer subject to a residency condition, this application for
judicial review can to some extent be considered moot. In its written
submissions, the respondent did not raise any arguments relating to the
mootness issue. Before the Court, the applicant indicated that he preferred
that a decision be rendered on the merits. Given the lateness of the argument
and the fact that the parties have appeared before the Court, a judgment will
be rendered.
Was the
applicant unlawfully detained?
[10]
The Parole Board of Canada (Parole Board) is
responsible for the long-term supervision of offenders under long-term
supervision orders. Under section 134.1 of the Act, it has the discretion
to establish any conditions that it considers reasonable and necessary in order
to protect society and to facilitate the successful reintegration into society
of the offender as a law-abiding citizen.
[11]
In accordance with the residency condition
established by the Parole Board, the offender was required to sleep at the CCC
every night and register all of his outings and sign-out times, and his curfew
was managed and determined by his parole officer. In short, he was required to
follow all of her instructions.
[12]
On February 20, 2012, the applicant took a
walk along Sainte-Catherine Street in Montréal. As required, he registered his outing.
[13]
At approximately 1:30 p.m., the monitoring
officer, who was making an impromptu visit, noticed that the applicant was
walking with an individual who was smoking crack cocaine. She contacted the
applicant’s parole officer to inform her of this.
[14]
Upon receiving this information, the applicant’s
parole officer held a case conference with the POS to determine an appropriate
intervention. During the conference, held at about 2:00 p.m. the same day, it
was agreed that despite the fact that no conditions had been breached, a
disciplinary meeting was in order to obtain more details and assess the
possibility of upwardly revising the applicant’s risk of recidivism.
[15]
Upon his return to the CCC at about 5:20 p.m.,
the applicant was informed by the commissionaire responsible for monitoring the
comings and goings of the offenders that he would not be permitted to sign out
again before meeting with his parole officer the next morning. Over the course
of the evening, the applicant unsuccessfully attempted to contact his parole
officer to learn more about the precise reasons for his confinement.
[16]
The next morning, the applicant met with his
parole officer when she arrived at the CCC at about 8:50 a.m. She informed him
that the POS would be meeting with him to talk about his previous day’s walk.
The disciplinary meeting finally took place at about 11:30 a.m. without
the POS, who had been unable to make himself available. The parole officer
provided the applicant with all of the information she had, and the applicant
was given the opportunity to explain himself and provide his version of the
events.
[17]
The applicant acknowledged that from his parole
officer’s perspective, the situation could be seen as a cause for concern and
that this was not a good association for him. He then left the CCC to attend
his employment training, which he was able to do without any repercussions.
[18]
The applicant submits that to make his confinement
lawful, his parole officer should have provided him upon his return to the CCC
with a written notice containing the grounds. The applicant is mainly relying
on this Court’s decision in Bonamy v Canada (Attorney General), 2010 FC
153 (Bonamy) at paras 62-71, in support of the argument that Service
officers cannot limit the movements of an offender as a disciplinary measure
without the offender’s consent. Instead, they must use the formal inmate
disciplinary process set out at paragraphs 4 and 11(a) of CD 580 and the
provision regarding the communication of information to offenders at
section 27 of the Act.
[19]
However, the disciplinary regime applicable to
inmates in penitentiaries (sections 38 to 45 of the Act and
sections 24 to 41 of the Regulations) does not apply to the applicant. The
applicant is not an inmate, but rather a sex offender under community
supervision, subject to the special regime of a long-term supervision order.
[20]
It was pursuant to section 134.2 of the Act
that his parole officer modified his sign-out schedule to confine him temporarily
to the CCC pending a meeting to clarify a high-risk situation, in the public
interest and for the protection of society. In fact, the applicant was
subjected to a period of confinement of 4.5 hours, namely, from 6:30 to
8:30 p.m. (when he would normally be authorized to sign out) on
February 20, 2012, and from 9:00 a.m. to shortly past 11:30 a.m. on
February 21, 2012 (this delay being essentially attributable to the
absence of the POS).
[21]
Moreover, it is CD 715, Community Supervision
Framework, and CD 719, Long-Term Supervision Orders, that apply to
the applicant, not CD 580. A careful reading of these documents shows that
Service officers must consider, first and foremost, the protection of the
public. Because this is a case of community supervision, instructions must be
adapted to an offender’s particular circumstances and must be flexible to
ensure the ongoing management of the risk he represents.
[22]
The applicant’s parole officer had the authority
to confine the applicant to the CCC on the evening of February 20 and the
morning of February 21 and was justified in so doing because she had
received information regarding a potential increase in the risk that he
represented for the public.
[23]
The applicant also submits that his confinement
must be considered a detention and his rights under sections 7, 10(a)
and 11 of the Charter were therefore violated.
[24]
First, for the period that the applicant was
subject to a residency requirement, his liberty was already restricted and he
could be considered lawfully detained. The applicant is subject to the
conditions imposed by the Parole Board, and, as mentioned above, his sign-out
schedule at the CCC was left to the Service officers’ discretion.
[25]
In Normandin v Canada (Attorney General),
2005 FCA 345 at para 66, the Federal Court of Appeal held that detention in a
CCC through a residency requirement imposed by the Parole Board is compliant
with the Charter.
[26]
Moreover, the temporary restriction of the applicant’s
liberty was not sufficiently long to warrant constitutional protection. This
measure had no criminal or penal consequences for the applicant and applied
only for a very short time. The Supreme Court decision in Cunningham v
Canada (Her Majesty the Queen in right of Canada and the Warden of Kingston
Penitentiary), [1993] 2 S.C.R. 143 at p 151, states the following:
I conclude that the
appellant has suffered deprivation of liberty. The next question is whether the
deprivation is sufficiently serious to warrant Charter protection. The Charter
does not protect against insignificant or “trivial” limitations of rights . . . .
It follows that qualification of a prisoner's expectation of liberty does not
necessarily bring the matter within the purview of s. 7 of the Charter. The
qualification must be significant enough to warrant constitutional protection. To
require that all changes to the manner in which a sentence is served be in
accordance with the principles of fundamental justice would trivialize the protections
under the Charter. To quote Lamer J. in Dumas, supra, at p. 464,
there must be a “substantial change in conditions amounting to a further
deprivation of liberty”.
Were the
principles of natural justice and procedural fairness violated in this case?
[27]
The applicant contends that the inmate
disciplinary process applies to his case and argues that his parole officer
denied him procedural fairness. Again, the applicant is not an inmate, but
rather an offender under community supervision, and the requirements listed
above apply in terms of natural justice and procedural fairness.
[28]
In the words of Justice Fraser Martin of the
Superior Court of Quebec in Condo v R (18 September 2006), Montreal
500-36-004170-067 (SC):
[11] . . . There
is a world and a day of difference between the degree of procedural fairness
which is to be applied when we are dealing with someone who is incarcerated or
someone who is at liberty. That I think is the key to the whole question. It
would be in very rare circumstances, that this Court would grant relief in a
matter of habeas corpus with certiorari in aid when the situation
relates to conditions established by a Parole officer which may in any event be
revised on a day to day basis and which are also subject to revision at the
expiry of a period of 90 days dating from your release from the penitentiary.
[12] These are all
elements or factors which must be built into the question of whether or not,
procedural unfairness, if it exists, is sufficiently serious to trigger your Charter
rights and hence open the door to this extraordinary remedy.
. . .
[14] Certainly habeas
corpus alone would have failed because there is no detention per se.
What is there? Yes, there is some limitation of freedom but of course there
is some limitation of freedom in any event flowing from the very fact that you
are under mandatory supervision [emphasis added].
[29]
Section 14 of CD 715 does, however,
state that “[the Service] respects the principles of fundamental justice and
the duty to act fairly”. In addition, section 27 of the Act applies to
offenders and reads as follows:
|
Information to be given to offenders
27. (1) Where an offender is
entitled by this Part or the regulations to make representations in relation
to a decision to be taken by the Service about the offender, the person or
body that is to take the decision shall, subject to subsection (3), give the
offender, a reasonable period before the decision is to be taken, all the
information to be considered in the taking of the decision or a summary of
that information.
Idem
(2) Where an offender is entitled by
this Part or the regulations to be given reasons for a decision taken by the
Service about the offender, the person or body that takes the decision shall,
subject to subsection (3), give the offender, forthwith after the decision is
taken, all the information that was considered in the taking of the decision
or a summary of that information.
Exceptions
(3) Except in relation to decisions on
disciplinary offences, where the Commissioner has reasonable grounds to
believe that disclosure of information under subsection (1) or (2) would
jeopardize
(a) the safety of any
person,
(b) the security of a
penitentiary, or
(c) the conduct of any
lawful investigation,
the Commissioner may authorize the
withholding from the offender of as much information as is strictly necessary
in order to protect the interest identified in paragraph (a), (b)
or (c).
Right to interpreter
(4) An offender who does not have an
adequate understanding of at least one of Canada’s official languages is
entitled to the assistance of an interpreter
(a) at any hearing
provided for by this Part or the regulations; and
(b) for
the purposes of understanding materials provided to the offender pursuant to
this section.
|
Communication de renseignements au
délinquant
27. (1) Sous
réserve du paragraphe (3), la personne ou l’organisme chargé de rendre, au
nom du Service, une décision au sujet d’un délinquant doit, lorsque celui-ci
a le droit en vertu de la présente partie ou des règlements de présenter des
observations, lui communiquer, dans un délai raisonnable avant la prise de
décision, tous les renseignements entrant en ligne de compte dans celle-ci,
ou un sommaire de ceux-ci.
Idem
(2) Sous réserve du paragraphe (3), cette
personne ou cet organisme doit, dès que sa décision est rendue, faire
connaître au délinquant qui y a droit au titre de la présente partie ou des
règlements les renseignements pris en compte dans la décision, ou un sommaire
de ceux-ci.
Exception
(3) Sauf dans le cas des infractions
disciplinaires, le commissaire peut autoriser, dans la mesure jugée
strictement nécessaire toutefois, le refus de communiquer des renseignements
au délinquant s’il a des motifs raisonnables de croire que cette communication
mettrait en danger la sécurité d’une personne ou du pénitencier ou
compromettrait la tenue d’une enquête licite.
Droit à l’interprète
(4) Le délinquant qui ne comprend de
façon satisfaisante aucune des deux langues officielles du Canada a droit à
l’assistance d’un interprète pour toute audition prévue à la présente partie
ou par ses règlements d’application et pour la compréhension des documents
qui lui sont communiqués en vertu du présent article.
|
[30]
The applicant received enough information within
a reasonable period to be able to make representations during the meeting with
his parole officer. He was informed of the grounds for the meeting at about
8:50 a.m., and the meeting was held at about 11:30 a.m. The applicant
understood prior to the interview that the Service would likely consider the
previous day’s walk [translation]
“a matter of concern” (see the parole officer’s report, Applicant’s Record at p
16). He was given an opportunity to provide his version of the facts and was simply
advised to avoid associating with homeless persons, substance abusers and
prostitutes.
[31]
Furthermore, since the meeting did not result in
any criminal, penal or even disciplinary consequences for the applicant, even
if the applicant had been subjected to procedural unfairness (which is not the
case), it would not warrant the intervention of this Court (Mobil Oil Canada
Ltd v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202).
Should the Senior Deputy Commissioner have dealt with the grievance concerning
the provision of meals in CCCs?
[32]
The Senior Deputy Commissioner’s decision to
refuse to deal with an issue that had not been raised at the two previous
grievance levels was reasonable and consistent with CD 081, Offender
Complaints and Grievances, which promotes the resolution of complaints and
grievances at the lowest possible level. This issue should have been raised
with the POS, who is responsible for the management of the CCC. It was not
raised for the purposes of this file, but it seems to have been the subject of
a separate second-level grievance dated April 15, 2010, that is not before
this Court.
[33]
Moreover, as counsel for the respondent pointed
out at the hearing, the rules in force at the CCC at the time these facts
occurred provided offenders with the possibility of a 15-minute outing after
their curfew for the purpose of purchasing necessities. They also authorized
the preparation of meals in the kitchen until midnight and the delivery of
take-out meals until 11:00 p.m. The record contains no evidence regarding
the applicant’s efforts to take advantage of any of these options.
Conclusion
[34]
For the reasons above, I am of the view that the
application for judicial review should be dismissed.
Email this Content