Docket:
T-119-13
Citation: 2014 FC 212
Ottawa, Ontario, March 6, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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BRIAN MACINNES
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Applicant
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and
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THE WARDEN OF MOUNTAIN INSTITUTION AND THE ATTORNEY GENERAL OF CANADA
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This is an application for judicial review of an
Assessment for Decision made by Correctional Services Canada [CSC] to maintain
the Applicant’s classification as a medium security inmate. The application is
coupled with a request for a declaration that the Applicant’s rights pursuant
to section 7 and 12 of the Canadian Charter of Rights and Freedoms, Part
I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), 1982, c 11 [Charter] were violated as a result
of inadequate medical care, and, consequently, a mandamus order for the
Respondent to provide medical treatment and services to the Applicant within a
prescribed timeframe.
II. Background
[2]
The Applicant, Mr. Brian MacInnes, was sentenced
to a term of imprisonment of 7 years, 10 months, after pleading guilty to seven
counts of robbery, three counts of uttering threats, one count of failing to
stop for police, one count of possession of a stolen vehicle, one count of
dangerous driving, one count of using an imitation firearm, and one count of
theft under $5000. The Applicant began his sentence as a medium security inmate
on February 23, 2009.
[3]
Since March 2012, the Applicant has allegedly been
involved in a number of untoward incidents resulting in other inmates
assaulting him. The injuries arising from these incidents caused the Applicant
to require several hospital visits. The Applicant consulted several health care
professionals for medical services and treatments after the assaults.
[4]
The Applicant was kept in administrative
segregation several times to prevent any untoward incidents that might lead to
further assaults.
[5]
On January 9, 2013, an Institutional Parole
Officer issued an Assessment for Decision maintaining the Applicant’s medium
security classification. This assessment is done annually.
[6]
It is important to note that, on February
2013, the Applicant was transferred from Mountain Institution to the Regional
Treatment Centre at the Pacific Institution, where he remains as per the last
submissions on file.
[7]
The Applicant brought an application for
judicial review before the Federal Court of the Parole Officer’s decision.
III. Issues
[8]
(1) Is it appropriate for the Court to exercise
its judicial discretion to dispose of this application given that the Applicant
applied to this Court directly, without first pursuing the internal grievance
process?
(2) If the Court decides to exercise its discretion to
hear this matter, then, was the Respondent’s decision to maintain the
Applicant’s medium security classification reasonable, and, did the Applicant
receive adequate medical care from Mountain Institution?
IV. Relevant
Legislative Provisions
[9]
An offender is entitled to a fair and
expeditious process for resolving grievances that fall within the jurisdiction
of the Commissioner of CSC by virtue of section 90 of the Corrections and
Conditional Release Act, SC 1992, c 20 [CCRA]:
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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).
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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.
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[10]
The procedure for the resolution of grievances is
established by sections 74 to 82 of the Corrections and Conditional Release
Regulations, SOR/92-620 [Regulations] (reference to sections 74 to
82 of the Regulations are set out in Annex at pp 13 to 18 of this Decision).
[11]
As briefly summarized by Justice James O’Reilly in Spidel
v Canada (Attorney General), 2012 FC 1245, 420 FTR 121:
[8] … offenders should begin the
process with a complaint to the supervisor of the staff member involved, unless
the supervisor is the Institutional Head, the Regional Deputy Commissioner, or
the Commissioner himself (s 13). In any case, the decision of the Commissioner
represents the final stage of the grievance process (s 15). CD 081 also sets
out the time frames within which decision makers at the various levels must
respond, depending on the priority of the complaint (s 18).
V. Analysis
[12]
It is a well-established in the relevant case law that
this Court has the discretion to decline to exercise its judicial review
jurisdiction if an adequate, alternate remedy exists.
[13]
In his submissions, the Applicant raises a number of
arguments to establish that the Court should exercise its jurisdiction to hear
this matter. These arguments include:
a)
The Applicant’s matter is urgent and the
grievance process cannot address his complaint in a timely fashion;
b)
The grievance process is incapable of providing
the Applicant the Charter relief he is seeking;
c)
The Applicant is challenging the deprivation of
his residual liberty as a result of the continuance of his medium security
classification; therefore, must come directly to the Court;
d) The Applicant is contesting the legality of two of the
Commissioner’s policies; therefore, he cannot expect a fair and impartial
hearing through CSC’s grievance process, as the decision-maker would be
subordinate to the Commissioner.
[14]
The Respondent submits that the Applicant has no
evidentiary basis for claiming that the grievance procedure is slow and/or
inadequate, or that there has been a prima facie deprivation of his residual
liberty. Likewise, the Applicant has not established an evidentiary basis for
the Charter relief he is seeking.
[15]
The Respondent therefore asks that the Court decline to
hear the application for judicial review as it is premature; the Applicant did
not exhaust the recourse provided by the internal grievance process.
a) Inadequacy
of the grievance process and apprehension of institutional bias
[16]
On the issue of the adequacy of CSC’s internal
grievance process, the Court agrees with the Respondent that it was an adequate
alternative remedy, and the Applicant ought to have pursued his grievances
through this process before applying to the Court for judicial review.
[17]
Contrary to the Applicant’s assertions, CSC’s grievance
process has consistently been recognized by this Court as an adequate
remedy (Reda v Canada (Attorney General), 2012 FC 79, 404 FTR 85 at para
23; reference is also made to Ewert v Canada (Attorney General), 2009 FC
971, 355 FTR 170; Spidel, above; McDougall v Canada (Attorney
General), 2011 FC 285, 386 FTR 8).
[18]
There are strong policy and statutory reasons for
requiring inmates to use this process, and the Court should not interfere with
it except for “exceptional circumstances” such as cases of emergency, evident
inadequacy in the procedure, or where physical or mental harm is caused to an
inmate (Rose v Canada (Attorney General), 2011 FC 1495 at para 35; Marleau
v Canada (Attorney General), 2011 FC 1149 at para 34; Spidel,
above, at para 12; Ewert, above, at para 34; Gates v Canada (Attorney
General), 2007 FC 1058, 316 FTR 82 at para 26). Consequently, the Court has
generally declined to deal with judicial review applications where an applicant
has not first pursued this grievance process.
[19]
In the present case, the Court finds that the claims
advanced by the Applicant do not present compelling or exceptional
circumstances that would require the Court’s intervention.
[20]
The Applicant claims that this case is one of urgency
requiring the Court’s immediate intervention; however, he has provided no
evidence of undue or excessive delays in the grievance process; this, despite
the fact that he has already received a first level response in regard to
grievances made concerning his medical care in Mountain Institution.
[21]
Instead, the Applicant relies solely on general
evidence regarding inefficiencies within CSC’s grievance process to support his
allegation; in particular, the Applicant relies on the Annual Report of the
Correctional Investigator 2006-2007 (Ottawa: Public Works and Government
Services, 2007), which suggests that CSC’s grievance procedures have been
ineffective in dealing with a chronic backlog of cases.
[22]
Although the Court agrees that such evidence may assist
the Applicant in demonstrating inadequacies in the grievance process, such
evidence is not, in and of itself, sufficient to justify the Applicant
bypassing the grievance process established by the CCRA. The Applicant
has provided no indication as to how this evidence relates to his particular
case.
[23]
As articulated by Justice Luc Martineau in Rose,
above:
[34] Although the
evidentiary record shows that some cases have clearly been subject to excessive
delays, in the Court’s view, such statistical and anecdotal evidence is simply
insufficient to support a general all-inclusive declaration that the grievance
procedure is wrought with delay and thus not an adequate alternative to
judicial review ...
[24]
The Court further refers to Justice François Lemieux’s
comments regarding undue delays in CSC’s grievance process, in Ewert,
above:
[39] … As pointed
out by counsel for the Respondent whether the grievance system has been
reasonably responsive from a timing perspective depends on the facts and
circumstances of each particular case. There may well be contributing
factors complicating the decision making process. I agree with the Respondent,
the CSC inmate system on the evidence before me cannot be found presumptively
flawed on account of undue delay in processing grievances… [Emphasis added.]
[25]
As in Rose and Ewert, above, the general
evidence submitted by the Applicant in the present case does not permit the
Court to conclude that CSC’s grievance process would not resolve his complaints
in a timely manner; any delay in the processing of the Applicant’s grievances
has been caused by the Applicant’s choice to seek judicial review, and not the
grievance process.
[26]
In the Applicant’s submissions, there is also no
evidence that the Applicant’s grievances will not be fairly considered. The
Applicant argues that he would not receive a fair and impartial decision from
the internal grievance process as he is questioning the legality of CSC’s
policies, which are sanctioned by the Commissioner. Citing May v Ferndale, 2005 SCC 82, [2005] 3 S.C.R. 809, at paragraph 63, the Applicant argues that
where the legality of the Commissioner's policy is contested, it cannot be
reasonably expected that the decision-maker, who is subordinate to the
Commissioner, could fairly and impartially decide the issue.
[27]
Based on the evidence, the Court cannot accept the
Applicant’s contention that the grievance procedure will inevitably result in
an unfavourable decision on this basis.
[28]
In fact, the Court does not find that the Applicant is
questioning the legality of CSC’s policies whatsoever; but, rather, the
Respondent’s interpretation of those policies and the discretionary decision
taken thereon. For instance, the Applicant argues that the Parole Officer
responsible for drafting the Assessment for Decision, dated January 9, 2013,
erred in basing her decision to maintain the Applicant’s medium security
classification on his involvement in recurrent incidents with other inmates and
his placement in administrative segregation as a result of those incidents.
[29]
Similarly, the Applicant limited himself to arguing
that CSC’s policy regarding the supply of medication to inmates was
inappropriately followed by the physician visiting the institution.
[30]
The Applicant failed to comment on the legality of
either policy.
[31]
The Applicant also argues that the grievance
process is unable to provide him the Charter relief he is seeking;
therefore, it does not provide him with an adequate alternative remedy. The
Applicant is seeking a declaration that his rights pursuant to section 7 and 12
of the Charter were violated as a result of inadequate medical care, and
a mandamus order for the Respondent to provide medical treatment and services
to the Applicant within a prescribed timeframe.
[32]
The Court does not find that this argument justifies
his request for a judicial review. It is well established that the mere fact
that the Commissioner is not a court of competent jurisdiction for the
purpose of granting a remedy under subsection 24(1) of the Charter does
not relieve an Applicant of his or her obligation to exhaust the grievance
process (Veley v Warden of Fenbrook Institution, 2004 FC 1571 at
para 24). The Court is of the view that CSC’s grievance process can adequately
resolve the Applicant’s complaints, without resort to section 24 of the Charter.
[33]
In any event, the Court notes that, even if it were to
accept jurisdiction over this matter, it could not grant the relief the
Applicant is seeking. The Applicant is essentially asking that the Court manage
his medical care in the place of his physicians. The Court cannot set out a
treatment plan for the Applicant, nor can it compel the Commissioner or a
physician to prescribe medication. As correctly noted by the Respondent, the
exercise of professional medical judgment is not reviewable under subsection
18.1(4) of the Federal Courts Act, RSC 1985, c F-7. This Court is
concerned with legal error, not clinical judgment (Powell v Canada (Attorney General), 2004 FC 1304, 260 FTR 124). Moreover, it is most
significant to note that the Applicant was transferred and is no longer at
Mountain Institution, making such a request for a mandamus order moot. (It
is also noted by the Court that the Applicant has not provided sufficient
evidence to demonstrate that he is not receiving adequate medical attention at
the Pacific Institution where he is currently detained subsequent to the
transfer.)
b) Deprivation
of residual liberty
[34]
Relying on the cases of May, above, and R v
Scarcella, 2009 CanLII 32918 (ON SC), the Applicant claims that he has the
choice to challenge the Respondent’s decision to maintain his security
classification at medium security directly to the Court, as it affects his
residual liberty. The Court does not agree with this proposition.
[35]
This Court has reiterated several times that the May
decision, above, does not relieve applicants from pursuing the internal
grievance process before seeking relief from the Court simply because they
have chosen to challenge the legality of a decision affecting their residual
liberty. In McMaster v Canada (Attorney General), 2008 FC 647, 335 FTR
647, this Court clarified the persistent mischaracterization of the principles
set out in May:
[29] In my view,
counsel's reliance upon the May decision is misplaced. There, the issue was
the availability of the remedy of habeas corpus from provincial superior courts
when there was an existing right to seek judicial review in the Federal Court.
The majority of the Supreme Court found that inmates may choose to challenge
the legality of a decision affecting their residual liberty either in a
provincial superior court by way of habeas corpus or in the Federal Court by
way of judicial review. In so finding, the Supreme Court relied, at least in
part, on the fact that historically, the writ of habeas corpus has never been a
discretionary remedy. Unlike other prerogative relief, and declaratory relief,
the writ of habeas corpus issues as of right. The May decision does
not, in my view, alter the obligation of an inmate to pursue the internal
grievance procedure before seeking discretionary declaratory relief on judicial
review. [Emphasis added.]
(Reference is also
made to Reda, above; Ewert, above; Spidel, above; McDougall,
above; Collin v Canada (Attorney General), 2006 FC 544; Condo v
Canada (Attorney General), 2003 FCA 99, 239 FTR 158; Giesbrecht v Canada
(1998), 148 FTR 81, [1998] FCJ No 621 (QL/Lexis).)
[36]
The Court further clarified the May decision in Rose,
above:
[46] The
applicants rely on May v Ferndale Institution, 2005 SCC 82 [May]
to suggest that their case should be allowed to go directly to judicial review.
However, the question in that case was whether provincial superior courts
should decline their habeas corpus jurisdiction over CSC decisions affecting
the residual liberty of inmates, merely because an alternative remedy exists
and seems sufficiently convenient. The Supreme Court of Canada ruled that
courts would only be required to decline such jurisdiction if the legislator
had put in place a “complete, comprehensive and expert procedure for review of an
administrative decision”, such as the scheme created for immigration matters,
and concluded that this was not the case of the offender grievance procedure.
[47] More
particularly, the Supreme Court of Canada held in May that the language of the CCRA
and its regulations made it clear that Parliament did not intend to bar federal
inmates’ access to habeas corpus. Accordingly, timely judicial
oversight, in which provincial superior courts are called to exercise the
habeas corpus jurisdiction, was still necessary to safeguard the human rights
and civil liberties of inmates, and to ensure that the rule of law applies
within penitentiary walls.
[37]
In this case, the Court is unable to find any
exceptional circumstances which would justify the Applicant not first exhausting
his available remedies within CSC’s grievance process before coming to this
Court. There is a comprehensive grievance procedure for review of the
Applicant’s complaints open to him; and, which, based on the evidence, he has
already effectively used in challenging certain decisions regarding his medical
care at Mountain Institution. (Reference is also made to the Federal Court of
Appeal decision in Canada (Border Services Agency) v C.B. Powell Limited,
2010 FCA 61, [2011] 2 FCR 332 at para 30-33, and the Supreme Court of Canada
decisions referenced therein. The Court also reiterates in this context the Ewert,
above, in its decision at para 39 which is most relevant to this case.)
VI. Conclusion
[38]
For all of the above reasons, the Applicant’s application
for judicial review is considered premature and is dismissed.
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