Docket:
T-1493-14
Citation:
2015 FC 303
Ottawa,
Ontario, March 10, 2015
PRESENT: The Honourable Mr. Justice Manson
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BETWEEN:
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JAMES
W. ROBERTSON
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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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JUDGMENT AND REASONS
[1]
This is an application under section 18.1(4)(a)
of the Federal Courts Act, RSC , 1985, c F-7 [the Act], for a judicial
review of Correctional Service of Canada’s [CSC] decision to impose a
correctional plan on the Applicant, who is under a long-term supervision order
[LTSO], on the basis that the CSC has acted without jurisdiction in attempting
to impose a Correctional Plan on the Applicant while knowing it has no legal
authority to do so.
[2]
The Applicant submitted this application on the
basis that the Respondents erred in law contrary to section 18.1(4)(c) of the
Act, when it knew from a previous decision of this Court that it could only act
pursuant to a designated proviso.
[3]
The Applicant is further seeking an order
prohibiting the CSC from imposing a correctional plan on him pursuant to the Corrections
and Conditional Release Act, SC 1992, c 20 [CCRA] generally, and
specifically sections 2.1, 4, 15.1, 99.1 and 134.1, and declaring he is not
required to utilize the grievance procedure set out in the CCRA, when it is the
CSC’s authority that is being challenged.
[4]
This application is dismissed for the following
reasons.
I.
Facts
[5]
In September of 2003, the Applicant was
sentenced to sixteen years of incarceration, reduced to five for time served,
and a LTSO, appended to Count 1 of the Indictment, for various sexual offences.
[6]
The Applicant’s sentence ended January 19, 2010,
and his ten year LTSO commenced that day. The LTSO will expire on October 9,
2022.
[7]
On March 12, 2010, the Applicant left Canada without permission and resumed residency at his home in South Lake Tahoe, California, USA. He volunteered his address to the CSC; his destination was reported to the United States Border
Protection Service [USBPS] upon crossing; and the USBPS report was transmitted
to the Canadian authorities upon crossing. In addition, his activities were
monitored by the South Lake Tahoe Police Department for 18 months at the
request of the Crown.
[8]
After 18 months in the United States, Canada sought and obtained the Applicant’s extradition. The CSC charged him with
three breaches of section 753.3(1) of the Criminal Code, RSC, 1985, c
C-46: leaving Canada without permission, failing to report to the long-term
supervisor, and failing to give a change of address.
[9]
On December 21, 2012, the Criminal Code
allegations were dismissed without notice to the Applicant.
[10]
While incarcerated for 90 days in Matsqui
Institution in British Columbia in early 2013, an updated correctional plan was
presented to the Applicant. The Applicant protested this plan and wrote
directly to the Commissioner of the CSC in a letter dated March 4, 2013, with a
follow up query dated April 22, 2013.
[11]
A representative of the CSC from the
communications department responded to the Applicant’s above letters on May 14,
2013.
[12]
The Applicant continued to express his
disagreement with the CSC’s imposition of a correctional plan during meetings
with his supervisor, while complying with its requirements.
[13]
A second updated correctional plan was issued on
April 11, 2014 (dated April 2, 2014). The Applicant verbally protested this in
a meeting with his supervisor on April 17, 2014.
[14]
During a May 9, 2014, meeting with his
supervisor, the Applicant tendered a letter taking issue with the CSC’s
perceived authority to issue a correctional plan.
[15]
On May 13, 2014, the Applicant received an email
in response to the May 9, 2014 letter, which acknowledged that the CSC is not
authorized pursuant to section 15 of the CCRA, to issue correctional plans to
offenders in his circumstances, but they are so authorized under section 4.
[16]
The Applicant requested clarification of the
CSC’s position as stated in the May 13th email, in a letter dated
May 21, 2014.
[17]
The Applicant received an email response on June
5, 2014, which had an Offender Initial Grievance Presentation attached. He did
not submit a grievance.
[18]
The CSC sent a further email to the Applicant on
June 16, 2014, which did not specifically address his letters of May 9 and 21.
It maintained the general authority of the CSC to issue correctional plans.
[19]
The Applicant commenced this application for
judicial review on June 26, 2014.
[20]
The decision under review is the decision by CSC
to impose a correctional plan on the Applicant after his sentence had been
completed, but before his LTSO had been completed.
II.
Issues
[21]
The issues in the present application are as
follows:
A. Is
the application procedurally flawed, in that it was commenced out of time and
the Applicant has not exhausted alternative remedies available to him?
B. Does
the Applicant’s parole officer have the authority to impose a correctional plan
on the Applicant pursuant to the CCRA? If so, under what authority?
C. If
the Applicant’s parole officer has the authority to impose a correctional plan
on him, was the Officer’s impugned update to this plan reasonable?
III.
Standard of Review
[22]
The appropriate standard of review to apply to
the first two issues is correctness. Reasonableness is the applicable standard
for the third issue (Dunsmuir v New Brunswick, 2008 SCC 9 at para 54; Smith
v Alliance Pipeline Ltd, 2011 SCC 7 at para 26).
IV.
Relevant Statutory
[23]
The relevant statutory provisions being
considered are attached as Appendix A.
V.
Analysis
[24]
The Applicant argues that section 2.1 of the
CCRA clearly sets out other sections of the Act which apply to a person under a
LTSO, and the list does not include section 15.1, which addresses correctional
plans. In their letter dated May 13, 2014, the Respondents referred to section
4(h) of the CCRA, as justification for imposing the contended correctional plan.
The Applicant argues that this section is too general to be accepted as lawful
authority for such an act.
[25]
Moreover, the Applicant argues that in Part II
of the CCRA, section 99.1, like section 2.1, lists sections of the CCRA which
apply to offenders under LTSOs and nowhere in this section is there mention of
correctional plans. Section 134.1 of the CCRA authorizes the Parole Board of
Canada [PBC] to impose conditions listed under section 161.1 of the Regulations
on persons subject to a LTSO, but does not mention correctional plans. Further,
the PBC has not ordered a correctional plan be imposed on the Applicant.
[26]
The Applicant states that this Court has found
that where a section of the CCRA lists other sections which apply to offenders
in particular circumstances, this list is to clarify that where it is unclear
whether a section would apply to a certain type of offender. Other sections may
still apply, but they must be clear by their individual wording that is the
case (McMurray v National Parole Board, 2004 FC 462 at para 111 [McMurray]).
[27]
Given that sections 2.1 and 99.1 list sections
that would otherwise be ambiguous as to whether they apply to offenders with
LTSOs, and that section 15.1 dealing with correctional plans is not clear in
its own wording as to whether it applies to those under LTSOs, and it is not included
in either list, the Applicant argues that it should not be interpreted to apply
to the Applicant.
[28]
With regard to the grievance procedure available
to offenders, the Applicant argues that the CCRA makes it mandatory for the CSC
to develop such a procedure, but does not make it mandatory for offenders to
utilize it. While sections 90 and 91 of the CCRA are listed in section 2.1 and
thus apply to the Applicant, he emphasizes that it would be inappropriate to
require him to complain to the Commissioner about their own behaviour in
imposing a correctional plan upon him.
[29]
The Respondents has an affidavit from Marie
Hagman to support the position that an offender must pursue a remedy in the
grievance procedure before applying for judicial review. She refers to sections
90, 91 and 96(u) of the CCRA, and sections 74 to 82 of the Regulations for
justification, but the Applicant again argues nowhere in these sections is the
grievance process outlined as a mandatory first step for a complainant.
[30]
The Respondents states that the ability to
update correctional plans is consistent with a parole officer’s authority to
instruct long term offenders. Further, updating correctional plans is
consistent with their discretion to provide instructions to assist offenders
like the Applicant in meeting the conditions of their release and facilitate
rehabilitation and reintegration. It is also consistent with the purpose of
LTSOs; they are intended to “enhance the offender’s
social reintegration but without compromising the protection of society and the
victims” (Normandin v Canada, 2005 FCA 345 at paras 15, 33-46 [Normandin]).
[31]
The Respondents further argues that the
Applicant’s parole officer reasonably updated the Applicant’s correctional plan
in April of 2014. Her ability to do so is consistent with the CSC’s mandate and
reflects the principles that must guide the CSC under the CCRA as outlined
above. She reasonably exercised her authority in doing so.
A.
Is the application procedurally flawed?
[32]
The Applicant has clarified in his materials in
response to the Respondents’s motion to strike that it is the April 2014 update
to his correctional plan that he seeks to have reviewed. This challenge to the
decision is well outside of the allowable time period of thirty days, under
section 18.1(2) of the Act.
[33]
Moreover, even if this limitation period was
found not to be operable, the Applicant should have exhausted the CSC grievance
procedure before applying for review from this court. I therefore decline to
exercise the jurisdiction of this Court on the basis the Applicant has failed
to avail himself of an adequate alternative remedy. Absent exceptional
circumstances, which is a high threshold to meet, the internal grievance
procedure should have been employed (Froom v Canada (Minister of Justice),
2004 FCA 352 at para 12; McMaster v Canada (Attorney General), 2008 FC
647 at para 27; Canada (Border Services Agency) v CB Powell Ltd,
2010 FCA 61 at para 33).
[34]
The CSC grievance procedure is mandated by
sections 90 and 91 of the CCRA and exists to deal with complaints of offenders
against CSC employees’ actions and decisions. Section 2.1 of the CCRA
explicitly makes it clear that it applies to offenders subject to LTSOs. While
the Applicant admittedly voiced his disagreement with the application of a
correctional plan, he never filed a grievance. Further, when a grievance form
was provided to him by the CSC, he continued to abstain from taking advantage
of the appropriate procedural process (Ewert v Canada (Attorney General),
2009 FC 971 at para 32).
[35]
While I have decided that I should not exercise
the Court’s discretion to hear this matter, I have nevertheless considered the
other issues raised by the Applicant.
B.
Does the Applicant’s parole officer have the
authority to impose a correctional plan pursuant to the CCRA? If so, under what
authority?
[36]
The Applicant’s correctional plan was lawfully
created pursuant to the Regulations in place at the time of his incarceration.
The CCRA authorizes such a plan under section 15.1 of the CCRA. While a section
outlining the use of correctional plans is not listed under section 2.1 of the
CCRA (which deals with LTSOs), it would be incorrect to interpret that section
as exhaustively listing all conditions that an offender under an LTSO can be
subject to.
[37]
The Applicant incorrectly argues that no section
of the CCRA or Regulations listed in section 2.1 includes mention of
correctional plans. Sections 3 and 4 are explicitly listed as applying to those
plans under LTSOs. As the Respondents points out, section 4(h) states that among
other things, an offender (and it mentions LTSOs), is expected to obey rules
and conditions governing LTSOs, “including by
participating in programs designed to promote their rehabilitation and
reintegration”. Further, section 134.2(1) providing for the use of
ongoing instructions to offenders subject to long-term supervision orders also
applies in support of a broad and flexible discretionary authority to use
correctional plans for such offenders under long-term supervision orders (Normandin,
above, at paras 40-45).
[38]
Finally, it would be inconsistent with the
object and purpose of the CCRA, as well as its governing principles, to
interpret it to include exhaustive lists of the tools available to the CSC in
pursuit of those goals. The Applicant has been charged with offences for which
he was sentenced. This sentence involved a LTSO, which is in operation until
October 9, 2022. It is available to the CSC to determine how best to deal with
the Applicant while he is still under their supervision, including implementation
and use of updated correctional plans.
C.
Did the parole officer reasonably update the
Applicant’s correctional plan?
[39]
Determining whether the Applicant’s parole
officer acted reasonably in updating the Applicant’s plan involves
consideration of whether or not her decision is consistent with the purpose and
principles governing the CSC, outlined in sections 3, 3.1 and 4 of the CCRA. I
see no evidence presented by the Applicant that this update is contrary to
these provisions. I further see no reason on the record to question the parole
officer’s decision.
[40]
I find that the Officer reasonably exercised her
authority.
THIS COURT’S JUDGMENT
is that:
1.
The Application is dismissed.
"Michael
D. Manson"
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