Docket: T-2115-14
Citation:
2015 FC 965
Ottawa, Ontario, August 12, 2015
PRESENT: The
Honourable Mr. Justice Russell
|
BETWEEN:
|
|
JEAN JAMES
|
|
Applicant
|
|
and
|
|
CANADA (ATTORNEY
GENERAL)
|
|
Respondent
|
JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application under s 18 of the Federal
Courts Act, RSC 1985, c F-7 for judicial review of the decision of an
Acting Senior Deputy Commissioner [Deputy Commissioner] with Correctional
Services Canada [CSC], dated July 30, 2014 [Decision], which denied the Applicant’s
third level grievances under CSC’s offender complaints and grievances process.
II.
BACKGROUND
[2]
The Applicant is an inmate at the Fraser Valley
Institution. She began serving a life sentence for first-degree murder on
November 4, 2011.
[3]
The Applicant has been married to her husband
for over forty years. They have one adult son.
[4]
The Applicant first applied to the Private
Family Visit [PFV] program in early 2012.
[5]
On April 4, 2013, a parole officer completed a
Community Assessment. The parole officer determined that the Applicant’s
husband and son were suitable candidates for the PFV program.
[6]
On April 20, 2013, the Applicant’s case
management team [CMT] conducted an Assessment for Decision [A4D]. The CMT
determined that the Applicant was an unsuitable candidate for the PFV program
because of the “unmanageable” risk of family
violence. The A4D outlined a number of factors that contributed to the
Applicant being an unsuitable candidate (Certified Tribunal Record [CTR] at
57-58):
Ms. JAMES was not scored on the Statistical
Information on Recidivism – Revised 1 (SIR-R1) scale, as this tool has not been
validated for use with female offenders. A CPIC review indicates no confirmed
reports of domestic violence requiring police intervention. However, according
to a Family Violence Risk Assessment completed 2012-02-09, Ms. JAMES is a
suspected perpetrator of spousal assault. File information indicates that Ms.
JAMES can be volatile when angry and she has allegedly been observed throwing
things at her husband in a state of rage. File information also indicates that
Ms. JAMES’ husband stayed in the marital relationship as he was afraid of Ms.
JAMES; that is, he was scared to leave her. Ms. JAMES’ husband’s suspected
marital infidelities allegedly culminated in Ms. JAMES making enquiries about
murdering her husband with poison. She also allegedly made enquiries about
obtaining a gun, which she would use to shoot and kill her husband. While
family violence has been identified as a factor in the Correctional Plan, Ms.
JAMES has yet to address this need area through programming, which is
concerning to the writer in the context of this assessment for decision.
It is notable, however, that Ms. JAMES and
her husband both deny any violence in their relationship. There is no provincial
or federal institutional suspicion or evidence of abusive, threatening or
controlling behaviour by Ms. JAMES towards family members during telephone
calls or visits. It is also notable that Ms. JAMES lived with her husband for
over 16 years post-index offence, and not only did she not kill her husband
(notwithstanding the above-noted alleged enquiries made about killing her
husband). Having said this, Ms. JAMES is now serving a life (25) sentence for
an offence ostensibly related to her husband’s marital infidelity with the
victim. Ms. JAMES appears to have lived those 16-plus post-index offence years
with her husband with the belief that she would not be held responsible for the
murder of her friend. Ms. JAMES, therefore, had every reason to avoid the
suspicion of police that surely would have arisen if her husband had also died
as a result of foul play. This is apparent in light of the fact that, in 1992,
Ms. JAMES was arrested (and later released) after becoming a prime suspect in
the murder that she was ultimately convicted of in 2011.
What cannot be denied for the purpose of
this risk assessment is the fact that Ms. JAMES was found guilty, beyond any
reasonable doubt, of the pre-meditated first-degree murder of her former
friend. This murder was particularly cruel and heinous in its execution; for
example, the victim sustained myriad wounds from a sharp-bladed instrument and
was nearly decapitated in the fatal attack. The damage inflicted upon the
victim far exceeded what was necessary to meet the goal of murdering the
victim. As such, Ms. JAMES has a confirmed history of pre-meditated violent
behaviour against a person. Moreover, it is particularly concerning to the
writer that Ms. JAMES has not yet begun the process of addressing her
criminogenic factors through programming; that is, Ms. JAMES is currently an
untreated violent offender. According to her Correctional Plan, “Until such
time as Ms. JAMES is able to be accountable for her offence and become engaged
in her correctional plan meaningfully, the level of risk for violence will
remain High.”
[7]
The A4D also noted that the Applicant had
allegedly attempted to contract out the assault of one or more inmates at the
Fraser Valley Institution and that the Applicant was suspected of tampering
with inmates’ food. The A4D also referenced the Applicant’s escape risk. While
the risk remained low, the Applicant had been investigated for making inquiries
into obtaining a fake passport.
[8]
The Applicant denies all of the suspicions and
allegations. She says that she has never been violent towards her husband or
her son. She believes that the allegations come from family members who suffer
from dementia or from whom she is estranged.
[9]
On April 23, 2013, a Visits Review Board denied
the Applicant’s PFV application.
[10]
In early May 2013, the Applicant submitted a
rebuttal to the Visits Review Board’s decision.
[11]
On June 10, 2013, the Applicant requested that
the allegations of domestic violence be removed from her file. The Applicant
was advised that she had submitted the request on the wrong form. The Applicant
grieved this response.
[12]
On June 24, 2013, the Fraser Valley Institution Warden
[Warden] wrote a memorandum upholding the Visits Review Board’s decision to
deny the Applicant’s application to participate in the PFV program. This
memorandum referenced the domestic violence allegations and noted that the
Applicant had presented no new information to suggest that she was no longer at
risk for family violence.
[13]
Sometime before July 2013, the Applicant
submitted a request to her Primary Worker to remove the allegations in the A4D
that she had tampered with inmates’ food and had attempted to contract the
assault of another inmate because they were not true.
[14]
On July 12, 2013, the Applicant’s Primary Worker
prepared a memorandum. The Primary Worker denied her request because the A4D
referred to suspicions or allegations and noted that the Applicant had denied
the allegations. The Primary Worker refused to amend the A4D because the
statements did not suggest absolute statements of truth.
[15]
On July 31, 2013, the Applicant submitted a
written complaint in response to the memorandum [Complaint 11689]. She asked
that the file be corrected so that her file information was accurate and
up-to-date.
[16]
On September 2, 2013, the Applicant was notified
that the complaint was denied. However, the decision-maker said that a
memorandum would be added to the Applicant’s file to explain the results of the
investigations into the allegations to clarify their validity.
[17]
On September 9, 2013, the Applicant submitted a
first level grievance [First Level Grievance 11689]. The Applicant reiterated
her complaints about the allegations relating to food tampering and the assault
contract. She also raised an issue about the inclusion of the family violence
allegations in the A4D.
[18]
On September 12, 2013, the Applicant submitted a
complaint about the Visits Review Board’s decision to deny her access to the
PFV program [Complaint 12301]. The Applicant reaffirmed her position that there
had never been any family violence and that the decision was based on incorrect
information. She also relied on the fact that there had never been any issues
during her husband’s many visits to the Fraser Valley Institution. The
Applicant asked that she be reassessed for participation in the PFV program.
[19]
On September 22, 2013, the Applicant submitted a
first level grievance challenging the Warden’s decision to uphold her denial
into the PFV program [First Level Grievance 12459].
[20]
On September 27, 2013, the Applicant elevated First
Level Grievance 12459 to a second level grievance [Second Level Grievance
12459].
[21]
On October 3, 2013, the Applicant received a
response to First Level Grievance 11689. It stated that the Applicant’s
grievance was denied because the appropriate policy had been followed in
declining to remove information from the Applicant’s file. It also noted that
the follow-up memorandum had already been added to her file to clarify the
allegations.
[22]
On October 11, 2013, the Applicant was notified
that Complaint 12301 was denied.
[23]
On October 12, 2013, the Applicant elevated
First Level Grievance 11689 to a second level grievance [Second Level Grievance
11689].
[24]
On October 23, 2013, the Applicant elevated
Complaint 12301 to a first level grievance [First Level Grievance 12301].
[25]
On November 1, 2013, the Applicant received a
response to both Second Level Grievance 12459 and Second Level Grievance 11689.
The Applicant’s Second Level Grievance 11689 was upheld in part. The Warden
agreed to amend the A4D to note that a formal correction to the allegations had
been requested.
[26]
On November 19, 2013, the Applicant elevated
Second Level Grievance 12459 to a third level grievance [Third Level Grievance
12459]. This grievance combined elements of Complaint 12301 and First Level
Grievance 12301. The Applicant reiterated that she had wrongly been denied
access to the PFV program, and she complained that the appropriate policy had
not been adhered to. She highlighted the fact that she had never been violent
towards her husband, that there were no security concerns arising from her
husband’s many visits to the Fraser Valley Institution, that her behaviour at
the Fraser Valley Institution had been exemplary, and that the decision was
based on incorrect information. The Applicant also said that she had asked for
more information about programming but had received “little
to no information about the context of the program, the scope of the program,
or the process for navigating those who are on Appeal.” The Applicant
asked that she be reassessed and given access to the PFV program.
[27]
On November 19, 2013, the Applicant also
elevated First Level Grievance 12301 to a second level grievance [Second Level
Grievance 12301].
[28]
On November 21, 2013, the Applicant was advised
that First Level Grievance 12301 had been denied.
[29]
On November 26, 2013, the Applicant elevated
Second Level Grievance 12301 to a third level grievance [Third Level Grievance
12301].
[30]
On December 6, 2013, the Applicant was advised
to expect a response to Third Level Grievance 12301 at the end of the March
2014. The Applicant ultimately received two further letters extending the
expected completion date because Third Level Grievance 12301 required further
investigation.
[31]
On February 26, 2014, the Applicant was advised
to expect a response to Third Level Grievance 12459 in early April 2014. The
Applicant ultimately received a further letter extending the expected
completion date because Third Level Grievance 12459 required further
investigation.
[32]
On August 1, 2014, the Applicant’s counsel asked
that responses to Third Level Grievances 12301 and 12549 be provided
immediately because the delay was prejudicial to the Applicant. The Applicant
says that the delay caused her and her family stress and anxiety.
[33]
The Applicant was provided copies of the
responses to Third Level Grievances 12301 and 12459 on September 15, 2014.
III.
DECISION UNDER REVIEW
[34]
On July 30, 2014, the Deputy Commissioner denied
the Applicant’s grievances. The Deputy Commissioner responded simultaneously to
Third Level Grievance 12301 and Third Level Grievance 12459 because they
contained overlapping issues, in accordance with s 24 of the Commissioner’s
Directive 081 [CD 081]. It appears that Second Level Grievance 11689 was also
reviewed because it was considered a related subject matter.
[35]
In Third Level Grievances 12459 and 12301, the
Applicant had complained that her PFV application was improperly denied because
the policy had not been adhered to. She said there were no security concerns so
there was no reason to believe that security concerns would arise during a PFV.
In Third Level Grievance 12301, the Applicant had also complained that she had
never received copies of her correctional plan and criminal profile report. She
said that she did not recall meeting with her Primary Worker to conduct the
criminal profile assessment. She also complained that she had not received
information regarding programming.
[36]
The Deputy Commissioner first addressed the
rationale for denying the application for the PFV program. She agreed that
there were no security concerns and no reason to believe that security concerns
would arise during a PFV. She also acknowledged that the Community Assessment had
determined that both the Applicant’s husband and son were positive sources of
support and were considered suitable candidates for the PFV program.
[37]
The Deputy Commissioner also reviewed the A4D.
She said that the purpose of the A4D was to determine the Applicant’s
eligibility to participate in PFVs in accordance with the eligibility criteria
in s 8(a) of the Commissioner’s Directive 710-8 [CD 710-8]. She noted that the
A4D indicated that the Applicant is serving a life sentence for a particularly
brutal murder. She noted that both the Applicant and her husband deny any
violence in their relationship and that there is no institutional suspicion or
evidence of abusive behaviour during the Applicant’s husband’s regular visits
and phone calls. The Deputy Commissioner noted that, despite these positive
factors, the Applicant’s intake assessment indicated that she had a high need
for improvement in the marital/ familial domain. Her Family Violence Risk
Assessment also indicated that she was suspected of being a perpetrator of
spousal assault. She can be volatile when angry and has allegedly been observed
throwing things at her husband in a state of rage.
[38]
The Applicant’s Correctional Plan also indicated
that she is required to participate in the Women Offender Correctional Program
– both moderate and high intensity – to address her risk factors. She is
required to successfully complete the recommended programming to address her
history of abusive relationships prior to participating in PFVs with her
husband. However, the Applicant has refused to participate in any programming.
As a result, the Applicant is an untreated violent offender. The Correctional
Plan indicates that she will be at a high risk of violence until she is
accountable for her offence and becomes meaningfully engaged in her Correctional
Plan.
[39]
The Deputy Commissioner also pointed to the
A4D’s reference to the Applicant’s escape risk. She has been investigated for
making inquiries into obtaining a fake passport. With the length of her
sentence, there are concerns about her risk of escape if an opportunity
presented itself.
[40]
Ultimately, the Applicant’s CMT determined that
her risk for family violence was unmanageable in a PFV. The Applicant has yet
to participate in any correctional programs. The Deputy Commissioner
acknowledged that the Applicant denies any history of family violence; however,
she said that s 3.1 of the Corrections and Conditional Release Act, SC
1992, c 20 [CCRA] dictates that “the protection of
society is the paramount consideration.” As a result, CSC is required to
consider all of the information in the Applicant’s file. The Deputy Commissioner
invited the Applicant to submit a file correction form if she believes there
are any errors in her file.
[41]
The Deputy Commissioner concluded that the
Applicant was appropriately denied participation in the PFV because she is an
untreated violent offender due to her refusal to participate in any
programming. This portion of the grievance was denied.
[42]
The Deputy Commissioner also reviewed the
Applicant’s grievances relating to information and records that she says she never
received. However, the Applicant does not challenge these decisions on judicial
review and so these portions of the Decision will not be reviewed.
IV.
ISSUES
[43]
The Applicant raises the following issues in
this proceeding:
1. Did the Deputy Commissioner err in law by delaying her decision with
regard to the Applicant’s third level grievance for an unjustifiable period of
time and without adequate explanation?
2. Did the Deputy Commissioner render an unreasonable decision in
denying the Applicant permission to participate in the PFV program?
3. Did the Deputy Commissioner err by failing to conduct an independent
and de novo assessment of the Applicant’s grievance?
V.
STANDARD OF REVIEW
[44]
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis
need not be conducted in every instance. Instead, where the standard of review
applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[45]
The Applicant says that the first issue involves
breaches of procedural fairness and is reviewable on a standard of correctness:
Dunsmuir, above, at paras 55, 79; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa]; Hall v
Canada (Attorney General), 2013 FC 933 at para 24 [Hall]. The second
issue concerns the merits of the Decision and is reviewable on a standard of
reasonableness: Dunsmuir, above, at paras 51-53; Hall, above, at
paras 21-22. The third issue respecting the Deputy Commissioner’s error in
conducting an independent and de novo assessment is reviewable on a
standard of reasonableness: Alberta (Information and Privacy Commissioner) v
Alberta Teachers’ Association, 2011 SCC 61 at para 30; Hall, above,
at paras 21-22. The Respondent agrees with the Applicant’s submissions on the
standard of review for all three issues.
[46]
The Court concurs. The first issue raises a question
of procedural fairness and will be reviewed on a standard of correctness: Mission
Institution v Khela, 2014 SCC 24 at para 79; Exeter v Canada (Attorney General), 2014 FCA 251 at para 31. The second and third issues raise
questions of mixed fact and law and are reviewable on a standard of
reasonableness: Dunsmuir, above, at para 53; Johnson v Canada
(Attorney General), 2008 FC 1357 at paras 35-39, rev’d in part on other
grounds 2011 FCA 76.
[47]
When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: see Dunsmuir, above, at para 47; Khosa,
above, at para 59. Put another way, the Court should intervene only if the
Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
VI.
STATUTORY PROVISIONS
[48]
The following provisions of the CCRA are
applicable in this proceeding:
|
Purpose of
correctional system
|
But du
système correctionnel
|
|
3. The
purpose of the federal correctional system is to contribute to the
maintenance of a just, peaceful and safe society by
|
3. Le système
correctionnel vise à contribuer au maintien d’une société juste, vivant en
paix et en sécurité, d’une part, en assurant l’exécution des peines par des
mesures de garde et de surveillance sécuritaires et humaines, et d’autre
part, en aidant au moyen de programmes appropriés dans les pénitenciers ou
dans la collectivité, à la réadaptation des délinquants et à leur réinsertion
sociale à titre de citoyens respectueux des lois.
|
|
[…]
(b) assisting
the rehabilitation of offenders and their reintegration into the community as
law-abiding citizens through the provision of programs in penitentiaries and
in the community.
|
[…]
|
|
Paramount
consideration
|
Critère
prépondérant
|
|
3.1 The protection
of society is the paramount consideration for the Service in the corrections
process.
|
3.1 La
protection de la société est le critère prépondérant appliqué par le Service
dans le cadre du processus correctionnel.
|
|
Principles
that guide Service
|
Principes
de fonctionnement
|
|
4. The
principles that guide the Service in achieving the purpose referred to in
section 3 are as follows:
|
4. Le Service
est guidé, dans l’exécution du mandat visé à l’article 3, par les principes
suivants :
|
|
[…]
|
[…]
|
|
(d) offenders
retain the rights of all members of society except those that are, as a
consequence of the sentence, lawfully and necessarily removed or restricted;
|
d) le
délinquant continue à jouir des droits reconnus à tout citoyen, sauf de ceux
dont la suppression ou la restriction légitime est une conséquence nécessaire
de la peine qui lui est infligée;
|
|
[…]
|
[…]
|
|
Accuracy,
etc., of information
|
Exactitude
des renseignements
|
|
24. (1) The
Service shall take all reasonable steps to ensure that any information about
an offender that it uses is as accurate, up to date and complete as possible.
|
24. (1) Le
Service est tenu de veiller, dans la mesure du possible, à ce que les
renseignements qu’il utilise concernant les délinquants soient à jour, exacts
et complets.
|
|
Correction
of information
|
Correction
des renseignements
|
|
2) Where an
offender who has been given access to information by the Service pursuant to
subsection 23(2) believes that there is an error or omission therein,
(a) the
offender may request the Service to correct that information; and
(b) where the
request is refused, the Service shall attach to the information a notation
indicating that the offender has requested a correction and setting out the
correction requested.
|
(2) Le
délinquant qui croit que les renseignements auxquels il a eu accès en vertu
du paragraphe 23(2) sont erronés ou incomplets peut demander que le Service
en effectue la correction; lorsque la demande est refusée, le Service doit
faire mention des corrections qui ont été demandées mais non effectuées.
|
|
[…]
Contacts
and visits
|
[…]
Rapports
avec l’extérieur
|
|
71. (1) In
order to promote relationships between inmates and the community, an inmate
is entitled to have reasonable contact, including visits and correspondence,
with family, friends and other persons from outside the penitentiary, subject
to such reasonable limits as are prescribed for protecting the security of
the penitentiary or the safety of persons.
|
71. (1) Dans
les limites raisonnables fixées par règlement pour assurer la sécurité de quiconque
ou du pénitencier, le Service reconnaît à chaque détenu le droit, afin de
favoriser ses rapports avec la collectivité, d’entretenir, dans la mesure du
possible, des relations, notamment par des visites ou de la correspondance,
avec sa famille, ses amis ou d’autres personnes de l’extérieur du
pénitencier.
|
|
[…]
|
[…]
|
|
Grievance
procedure
|
Procédure
de règlement
|
|
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).
|
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.
|
[49]
The following
provisions of the Corrections and Conditional Release Regulations,
SOR/92-620 [Regulations] are applicable in this proceeding :
|
80. (1) If an offender is not satisfied with a decision of the
institutional head or director of the parole district respecting their
grievance, they may appeal the decision to the Commissioner.
|
80. (1) Lorsque le délinquant est insatisfait de la décision
rendue au sujet de son grief par le directeur du pénitencier ou par le directeur
de district des libérations conditionnelles, il peut en appeler au
commissaire.
|
|
(3) The
Commissioner shall give the offender a copy of his or her decision, including
the reasons for the decision, as soon as feasible after the offender submits
an appeal.
|
(3) Le
commissaire transmet au délinquant copie de sa décision motivée aussitôt que
possible après que le délinquant a interjeté appel.
|
|
[…]
|
[…]
|
|
91. (1)
Subject to section 93, the institutional head or a staff member designated by
the institutional head may authorize the refusal or suspension of a visit to
an inmate where the institutional head or staff member believes on reasonable
grounds
|
91. (1) Sous
réserve de l’article 93, le directeur du pénitencier ou l’agent désigné par
lui peut autoriser l’interdiction ou la suspension d’une visite au détenu
lorsqu’il a des motifs raisonnables de croire :
|
|
(a) that,
during the course of the visit, the inmate or visitor would
|
a) d’une
part, que le détenu ou le visiteur risque, au cours de la visite :
|
|
(i) jeopardize
the security of the penitentiary or the safety of any person, or
|
(i) soit de
compromettre la sécurité du pénitencier ou de quiconque,
|
|
(ii) plan or
commit a criminal offence; and
|
(ii) soit de
préparer ou de commettre un acte criminel;
|
|
(b) that
restrictions on the manner in which the visit takes place would not be
adequate to control the risk.
|
b) d’autre
part, que l’imposition de restrictions à la visite ne permettrait pas
d’enrayer le risque.
|
|
(2) Where a
refusal or suspension is authorized under subsection (1),
|
(2) Lorsque
l’interdiction ou la suspension a été autorisée en vertu du paragraphe (1) :
|
|
(a) the
refusal or suspension may continue for as long as the risk referred to in
that subsection continues; and
|
a) elle reste
en vigueur tant que subsiste le risque visé à ce paragraphe;
|
|
(b) the
institutional head or staff member shall promptly inform the inmate and the
visitor of the reasons for the refusal or suspension and shall give the
inmate and the visitor an opportunity to make representations with respect
thereto.
|
b) le
directeur du pénitencier ou l’agent doit informer promptement le détenu et le
visiteur des motifs de cette mesure et leur fournir la possibilité de
présenter leurs observations à ce sujet.
|
VII.
ARGUMENT
A.
Applicant
(1)
Delay
[50]
The Applicant submits that the unjustified
delays in making and communicating the Decision were not fair or effective and
breached the rules of natural justice and her right to procedural fairness: Cardinal
v Director of Kent Institution, [1985] 2 S.C.R. 643 at 653. The delay also
violated her security of the person and did not accord with the principles of
fundamental justice contrary to s 7 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].
[51]
The CCRA and the Regulations require that
grievances be resolved expeditiously and that decisions be rendered as soon as
practicable: CCRA, s 90; Regulations, s 80. In addition, CD 081 specifics that
decisions will be rendered within eighty working days, failing which the
offender will be notified of the reason for the delay and provided with an
expected completion date.
[52]
The Applicant’s grievance took three times as
long. The Applicant received the Decision approximately nine months after she
submitted the grievances and one year after she filed her first level
grievance. The Applicant complains that the consultations completed on her file
appear to consist simply of emails being sent back and forth. She says that
each letter notifying her to expect a delay said that time was required to
perform a thorough analysis but that no such analysis was taking place. She
also complains that there are periods of two and a half and three months where
nothing appears to have been done on her file.
[53]
The content of the duty of fairness varies
according to the five factors set out in Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817; see also Congrégation
des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village), 2004
SCC 48 at para 5. The Applicant says that her participation in the PFV program
is of the utmost importance to her. She is a senior citizen in a long-term
stable marital relationship. The Decision goes to the core of her personal
dignity and security of the person. Her family legitimately expected a decision
in accordance with CSC’s timeframes. She says the delay has resulted in serious
psychological distress and anxiety to herself and her family in a way that infringed
her Charter right to security of the person: Charter, s 7; Boeyen
v Canada (Attorney General), 2013 FC 1175 at paras 140-148.
(2)
Unreasonable Decision
[54]
The Applicant submits that the Decision does not
fall within the range of possible outcomes and is not defensible in light of
the facts and law.
[55]
The discretion for making PFV decisions is set
out in CD 710-8 and the Standard Operating Practice 700-12. They provide that
inmates are eligible for the PFV program unless they are:
- At risk for
family violence;
- Participating in
unescorted temporary absences for family contact purposes;
- In a special
handling unit;
- Recommended or
approved for transfer to a special handling unit; or,
- In a
disciplinary segregation at the time of the scheduled family visit.
[56]
The Applicant says that she does not fall within
any of the exceptions. The Decision was based upon other factors and so is
unreasonable.
[57]
First, the Applicant says that the evidence
supports her claim that she has never been involved in spousal or family
violence. There is no institutional suspicion or evidence of abusive behaviour
in any of the Applicant’s visits or phone calls with her husband. She has never
been charged with or convicted of an offence involving spousal or familial
violence. There is no evidence to support the allegation that the Applicant was
observed throwing things at her husband. It is not clear when the event is said
to have taken place or whether anyone made any inquiries to determine the
details or accuracy of the information. The Applicant’s husband and son have
also denied any violence in the family.
[58]
Second, the Applicant says that CSC has not
taken all reasonable steps to ensure that the information in her file is
accurate, up-to-date and as complete as possible: CCRA, s 24. The Decision
should have assessed whether the Applicant currently poses a risk of spousal
violence on the proven facts. The Deputy Commissioner should have conducted a de
novo review to determine whether it was reasonable to rely upon the
allegations in the A4D because the Applicant disputes the allegations. The
Decision is supposed to assess her current risk of family violence but there is
no evidence of any current concerns. There is simply a bare suspicion of past
violence. The Applicant acknowledges that the murder she was convicted of was
violent, but she says that it was nearly twenty-five years ago and there are no
other proven allegations of violence. In addition, there is no suggestion in
any of the documents or allegations that the Applicant poses a risk to her son,
and yet the request to have PFVs with her son was also denied.
[59]
Third, the Decision refers to the Applicant’s
escape risk, but CD 710-8 does not provide risk of escape as a basis upon which
to deny a PFV application. Regardless, the conclusion is unreasonable and is not
based on any information that was before the Deputy Commissioner. It is clear
from the A4D that the escape risk was not considered a serious risk.
[60]
Fourth, the Decision refers the Applicant to the
file correction process to address her concerns about the allegations of spousal
violence but had the Deputy Commissioner seriously reviewed the entire file,
she would have seen the Applicant’s efforts to have the file information
corrected.
[61]
Fifth, the Applicant says it is unreasonable to
deny her participation in the PFV because she has not participated in
programming for domestic violence. This is unreasonable because there is no
evidence that she has ever committed acts of domestic violence. The Applicant
points to the Court’s decision in Edwards v Canada (Attorney General), 2003
FC 1441 [Edwards] where the Court found it was unreasonable to deny an
inmate access to PFVs until he completed a sex offender assessment when he had
never been convicted of a sexual offence.
(3)
De Novo Hearing
[62]
The Applicant says that the Deputy Commissioner
erred in failing to conduct a de novo hearing in relation to her
complaint that she be permitted to participate in the PFV program. The Court
has held that each level of the grievance procedure is to be conducted as a
hearing de novo in which the grievor is entitled to have her grievance
heard afresh and to present new evidence: Hall, above, at para 35; Riley
v Canada (Attorney General), 2011 FC 1226 at para 21 [Riley]; Tyrrell
v Canada (Attorney General), 2008 FC 42 at paras 37-38 [Tyrrell]. The
Deputy Commissioner erred in simply reviewing the Warden’s decision and
response to the Applicant’s rebuttal: Hall, above. She failed to
consider the Applicant’s submissions regarding the lack of compelling
information regarding any history of family violence. If the Deputy
Commissioner had actually reviewed the evidence in light of the Applicant’s
submissions, she would have been confronted with the lack of substantiated
evidence in regards to the domestic violence issue. The Deputy Commissioner
also failed to consider whether the Applicant is currently at risk of
committing family violence given her history of exemplary family visits.
[63]
The Applicant asks that the Deputy
Commissioner’s Decision be quashed and for a declaration that the grievance
procedure in this case was not fair or effective due to the unjustified delays,
a declaration that the delays infringed the her s 7 Charter rights, and an
order of mandamus to order CSC to provide the Applicant with access to
the PFV program.
B.
Respondent
(1)
Procedural fairness
[64]
The Respondent submits that the delay in
completing the final grievance does not constitute a breach of procedural
fairness. The duty owed to the Applicant is on the low end of the spectrum: Sweet
v Canada (Attorney General), 2005 FCA 51 at paras 34, 37; Yu v Canada
(Attorney General), 2009 FC 1201 at para 27. It is an administrative
decision and the impact on the Applicant is moderate because she can re-apply
for PFVs.
[65]
The Applicant complains about periods of time
where nothing was done on her file, but the record reveals that the analyst was
reviewing the claim, analyzing the underlying documentation and investigating
the issues before determining what further information she required to respond
to the grievances. The grievance response was then reviewed by the analyst’s
manager and director, after which it was submitted to the Deputy Commissioner
for a final decision.
[66]
CD 081 provides that high-priority grievances
will be answered in sixty days. However, where further time is required to
adequately respond to a grievance, the grievor may be notified of the delay and
the reasons for the delay. In accordance with CD 081, the Applicant was
informed of each delay and the reasons for each delay. The delay did not render
the process unfair: Ouellette v Canada (Attorney General), 2012 FC 801
at para 28; Wilson v Canada (Attorney General), 2012 FC 57 at paras
17-18; Gallant v Canada (Attorney General), 2011 FC 537 at paras 19-22.
The Applicant was consistently informed of the need for additional time to
provide a decision and the reasons for the same. Her submissions were fully
considered and answered through the grievance process.
(2)
De Novo Hearing
[67]
The Respondent agrees that a de novo review
is required at each stage of the grievance process; however, a de novo review
of an institutional head’s decision is not always required. Section 91 of the
Regulations provides that the institutional head, or his or her delegate, is
responsible for decisions relating to visits. See also CD 710-8, s 20. The
Deputy Commissioner cannot determine the Applicant’s PFV application anew
because it would usurp the institutional head’s authority as provided for under
the statute. As a result, it was reasonable for the Deputy Commissioner to give
deference to the review board and the Warden’s decision to deny the Applicant’s
PFV application and to focus on whether the decision complied with law and
policy: Spidel v Canada (Attorney General), 2012 FC 54 at para 30.
[68]
The Respondent distinguishes the case law that
the Applicant relies upon. In Hall, the governing legislation did not
exclusively grant the power to make transfer decisions to the institutional
head. The authority was granted to CSC generally. Consequently, the commissioner
in Hall was statutorily empowered to make a decision on the transfer
request anew. Similarly, the decisions in Tyrrell and Riley simply
stand for the proposition that the grievance process requires each subsequent
decision-maker within the grievance process to review each grievance in a de
novo manner. The decision-maker must apply an independent analysis to all
of the information before him or her, including any new evidence: Tyrrell,
above, at paras 37-38; Riley, above, at para 21. It is insufficient for
each subsequent decision-maker to simply agree with the decision below.
[69]
The Deputy Commissioner did not simply review
the decisions of the lower level grievance decision-makers. She conducted an
independent analysis based on a comprehensive review of the information before
her. It is clear that the Deputy Commissioner placed greater weight on the A4D,
the Applicant’s need to complete programming, and the need for CSC to give
paramount consideration to the protection of society. It is apparent that the
Deputy Commissioner conducted a de novo assessment of the previous
grievance proceedings but properly declined to substitute her own decision for
that of those who are statutorily empowered to make the decision.
(3)
Reasonableness
[70]
The Respondent submits that the Decision is
reasonable. The Deputy Commissioner properly applied the applicable criteria to
the facts of the Applicant’s case. Corrections officials must make decisions in
keeping with the paramount principle of protecting society. CD 710-8 provides
risk of family violence as a ground to refuse a PFV application.
[71]
The Deputy Commissioner properly considered all
of the evidence and submissions before her. It was reasonable for the Deputy
Commissioner to note that CSC must consider all file information, including
information of suspected spousal or familial violence, the Applicant’s
Correctional Plan, and programming taken to date. The record shows that an
analyst at the final grievance stage investigated the information on the
Applicant’s suspected involvement in spousal assault and confirmed that the
source of the information was police reports and other individuals recorded in
her file. The Applicant’s argument essentially amounts to saying that the
Deputy Commissioner should have put greater weight on her family’s statements
and the history of visits, but the Deputy Commissioner was entitled to review
all of the evidence. A disagreement with the weight given to evidence does not
render the Deputy Commissioner’s decision unreasonable. The Court cannot
reweigh the evidence on judicial review: Khosa, above, at paras 25,
59-63, 67.
[72]
The Respondent also distinguishes the Edwards,
above, proceeding. Not only had Mr. Edwards never been convicted of a
sexual offence, he had also not been assessed as being at risk of sexual
violence. In contrast, the Applicant’s risk factors related to her offence are
linked to the marital/ familial domain. Her Correctional Plan specifically
identifies family violence as a high needs area to address through core
programming. It was reasonable for the Deputy Commissioner to emphasize the Applicant’s
need to complete programming to address the risk of becoming involved in family
violence prior to participating in a PFV: Russell v Canada (Attorney
General), 2007 FC 1162 at para 21. The Applicant claims that she wishes to
complete her appeal before participating in programming, but her application
for leave to appeal to the Supreme Court of Canada was refused in May 2013: R
v James, 2013 BCCA 11, leave to appeal to SCC refused, 35252 (May 16, 2013).
[73]
There is also no merit to the Applicant’s complaint
that the Deputy Commissioner concluded that the Applicant is an escape risk.
The Deputy Commissioner simply reviewed all of the information before her and
referred to the escape risk documented in the A4D as a concern raised by a
security intelligence officer. Regardless, this was not a determinative, or
significant, issue in determining the Applicant’s grievance.
(4)
Remedies
[74]
The Respondent says that should the Court grant
the Applicant’s application for judicial review, the appropriate remedy is to
send the matter back for reconsideration.
[75]
There is no evidence upon which the Court could
grant a declaration regarding the Applicant’s Charter rights. She has
conflated the issue of delay with the threshold issue of whether s 7 of the Charter
is even engaged. The Court simply has a statement in the Applicant’s
affidavit that she has suffered stress, but there is no psychological or
medical evidence before the Court to determine the s 7 Charter matter: Blencoe
v British Columbia (Human Rights Commission), 2000 SCC 44 at paras 46-48,
57 [Blencoe]; Tyrrell, above, at paras 23-24.
[76]
The Applicant has not established that the
necessary conditions exist for an order of mandamus. Mandamus requires
a public duty to act clearly owed to the Applicant: Apotex Inc v Canada
(Attorney General) (1993), [1994] 1 FC 742 (CA); Kelly v Correctional
Service of Canada (Pacific Region) (1992), 56 FTR 166. The Decision at
issue in this proceeding is subject to the Warden’s discretion; mandamus cannot
compel a particular result.
VIII.
ANALYSIS
A.
Introduction
[77]
However it is dressed up, there is a fundamental
issue at the heart of this application. Following her incarceration, the
Applicant was assessed in the usual way and in her Correction Plan she was told
that she required a “High Need for Improvement”
in three (3) areas: Attitude; Personal Emotions; and Marital/Family. Specific
programming was recommended so that she could address these issues and work
towards reintegration. The Applicant has refused to take this programming.
Obviously, this refusal was bound to cause a problem when she applied for PFVs.
[78]
Everyone involved in this case appears to
recognize that PFVs are crucial for the Applicant’s reintegration into the
community. However, that reintegration cannot begin until she confronts her
issues and takes the programming recommended by her Correctional Plan
(Applicant’s Record at 205).
B.
Private Family Visits
[79]
The Decision states as follows (at 3):
To address your dynamic factors, your
Correctional Plan dated 2012-02-09 indicates that you are to participate in the
Women Offender Correctional Program (WOCP) – Moderate Intensity, which focuses
on all areas of a woman’s life. Subsequent to completing the WOCP – Moderate
Intensity Program, you are to complete the WCOP – High Intensity Program to further
address your risk factors. As noted in the A4D, you would need to
successfully complete recommended programming to address your history of
abusive relationships prior to participation in PFVs with a partner; however,
you have refused to participate in any recommended programming and, as such,
you are an untreated violent offender. According to your Correctional Plan,
until such time as you are able to be accountable for your offence and become
meaningfully engaged in your Correctional Plan, the level of risk you present
for violence will remain high.
[Emphasis added]
[80]
So the quickest way to PFVs for the Applicant
could not be plainer. But she refuses to take it. Instead she has grieved the
decision that has refused to grant her PFVs, and she now comes to the Court to
have the Decision of the Deputy Commissioner reviewed by the Court. The essence
of that Decision is fairly obvious given the Applicant’s refusal to participate
in the recommended programming (CTR at 6):
Upon review of the above information, it has
been determined that your application for participation in the PFV Program was
appropriately denied as you have refused to participate in correctional
programming and as a result you are considered to be an untreated violent
offender. Therefore, the decision was rendered in accordance with section 3.1
of the CCRA [please see above] and paragraph 8(a) of CD 710-8 [please
see above].
In light of the above information, this
portion of your grievance is denied.
[Emphasis in original]
[81]
The message could not be plainer. The Applicant
needs to cooperate by taking the recommended programming so that she can
qualify for PFVs that everyone thinks she requires to move towards
reintegration.
[82]
Rather than cooperate, the Applicant has chosen
to grieve the refusals and to come before this Court to review the process she
has been through and the Decision of the Deputy Commissioner. She says the
Decision is unreasonable, that she was denied procedural fairness because it
took too long and her s 7 Charter rights were breached, and the Deputy
Commissioner did not provide the kind of de novo review that the law
requires in the circumstances.
C.
Reasonableness
[83]
The Applicant says that the Decision is
unreasonable for several reasons:
a)
The preponderance of the evidence supports the
proposition that the Applicant has never been involved in any spousal or
familial violence. Therefore, her failure to take the recommended programming
should carry no weight in the final decision;
b)
The Deputy Commissioner was obliged to assess
the “current risk” of family violence and in
this case there is no evidence of any current concerns and only a bare
suspicion of past violence which has been unequivocally denied by the parties
said to be involved (i.e. the Applicant’s husband and son);
c)
The Applicant is a seventy-five-year-old woman
who was convicted of a violent murder of a non-family member. The offence
occurred in 1992 when the Applicant was a considerably younger woman of fifty-three;
d)
There is no suggestion in any document that the
Applicant poses a risk to her son, and yet the Applicant is not permitted to
have PFVs with him;
e)
The Decision refers to the risk of escape as a
basis for denying the Applicant’s request for participation in the PFV Program
and the Applicant cannot possibly be an escape risk;
f)
The Applicant’s case is similar to Edwards,
above, where Mr. Edwards was denied PFVs because he refused to undergo a sex
offender assessment which the Court found unreasonable because Mr. Edwards had
never been convicted of a sexual offence.
[84]
Some of these grounds require little discussion.
The escape risk was mentioned by the Deputy Commissioner as part of the review
of the back file, but it was not used to deny the Applicant PFVs. As the Decision
makes clear, she was refused PFVs because she refuses to take the recommended
programming so that she remains an untreated violent offender.
[85]
The Applicant’s case is not similar to Edwards,
above. The Applicant has not been convicted of a violent offence against a
family member, but she has been convicted of a murder of a former friend which
she carried out in a horrendously violent fashion, and where there is some
suggestion of a connection between the victim and the Applicant’s husband. The
Applicant has shown herself to be capable of volatility that can manifest
itself as extreme violence against another human being. The Applicant’s husband
and son are other human beings.
[86]
The other issues raised are all related to what
the Applicant calls “the preponderance of the evidence.”
This means they are questions of weight and it is not the job of the Court to
reweigh evidence: see Khosa, above, at para 59. The Court can
only interfere if the decision-maker has overlooked material evidence or taken
evidence into account that is inaccurate or not material.
[87]
In the present case, the Applicant says that
there is just no evidence of family violence that could be used to deny her a
positive PFV decision, particularly when it comes to her son. She also points
out that both her husband and son have themselves given evidence of an absence
of such violence.
[88]
It is clear from the Decision of the Deputy
Commissioner that it is the Applicant’s current status as an untreated violent
offender that is examined, and it is violence against family members that is at
issue. Current risk can only be assessed by looking at any evidence of past
violence together with the Applicant’s present status as a seventy-five-year-old
incarcerated woman and her refusal to follow her Correctional Plan. The Deputy
Commissioner also points out that the Applicant has presented no information to
suggest that the risk had changed when the matter went before the Warden.
[89]
A reading of the Decision makes it clear that
the Deputy Commissioner was alive to and considered all of these matters. She
points to the fact the husband and son were regarded as “positive sources of support” and were considered
suitable candidates for the PFV program. She identifies that it is the risk of
family violence (CD 710-8, s 8) that is the issue. She looks at the Applicant’s
history of past violence and points out that the index offence “was particularly brutal in nature.” She acknowledges
that both the Applicant and her husband denied any violence in their
relationship and that “there was no provincial or
federal institutional suspicion or evidence of abusive, or controlling
behaviour by you towards family members during telephone calls.” On the
other hand, as documented in the A4D, during the Applicant’s Intake Assessment
she was assessed “as requiring a high need for
improvement in the marital/family domain” and according to the Family
Violence Risk Assessment completed on 2012-02-09 “you
were a suspected perpetrator of spousal assault” and the “A4D indicated that you could be volatile when angry and that
you had allegedly been observed throwing things at your husband in a state of
rage.” The Deputy Commissioner also points out that “According to your Correctional Plan, until such time as you
are able to be accountable for your offence and become meaningfully engaged in
your Correctional Plan, the level of risk you present for violence will remain
high.”
[90]
So the Applicant has been assessed as a volatile
person (which she has not challenged before me) who is capable of extreme
violence and who has refused to be accountable for her index offence and to
meaningfully engage in the Correctional Plan. The suspicions of past family
violence, which the Applicant and husband and son deny, are not without some
evidentiary basis in the form of police reports and statements from other
individuals recorded on file. The Applicant can deny all of this but the
suspicion remains and the Deputy Commissioner was obliged to take it into
account.
[91]
Before me, the Applicant is essentially arguing
that the Deputy Commissioner should have given more weight to the denial of
family violence by the Applicant and her husband and son than to the other
factors at play. I cannot see how the Deputy Commissioner could possibly have
done this given the Applicant’s refusal to become meaningfully engaged in her
Correctional Plan and the evidence on the file record. The Applicant disagrees
with the outcome of the weighing process, but it is obvious that the Decision
itself is intelligible, transparent, and justifiable and falls within a range
of possible acceptable outcomes which are defensible in respect of the facts
and the law. See Dunsmuir, above, at para 47.
D.
Delay – Procedural Fairness
[92]
Even if the Decision was reasonable, the
Applicant says that it was procedurally unfair and breached her s 7 Charter
rights because of the delay in making it. She asserts that this delay caused
her psychological stress, but there is no evidence before me as to what this
means or how it was caused.
[93]
In Blencoe, above, the Supreme Court of
Canada had the following to say of relevance to the present case:
[47] Section 7 of the Charter
provides that “[e]veryone has
the right to life liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental
justice.” Thus, before it is even possible to
address the issue of whether the respondent’s s. 7 rights were infringed in a
manner not in accordance with the principles of fundamental justice, one must
first establish that the interest in respect of which the respondent asserted
his claim falls within the ambit of s. 7. These two steps in the s. 7 analysis
have been set out by La Forest J. in R. v Beare, [1998] 2 S.C.R. 87, at
p. 401, as follows:
To trigger its operation there must
first be a finding that there has been a deprivation of the right to “life, liberty and security of the person” and, secondly, that the deprivation is contrary to the principles
of fundamental justice.
Thus, if no interest in the respondent’s
life, liberty or security of the person is implicated, the s. 7 analysis stops
there. It is at the first stage in the s. 7 analysis that I have the greatest
problem with the respondent’s s. 7 arguments.
[94]
On the present facts, I have nothing more before
me than the Applicant’s assertion that the “denial of
my application for PFV’s has caused me extreme stress, anxiety and sadness. It
has taken a huge toll on my relationship with my husband and son.” This
is not evidence to the “delay” she refers to. This was a result of the
“denial.” As regards the delay itself, she says in her affidavit that the “extremely long delay in receiving a response to Third Level
Grievances 12301 and 124459 caused me to feel anxious and worried, and unsure
of what I should do next” (at para 69). This is not sufficient for me to
find that s 7 has even been triggered in this case as required under Blencoe,
above.
[95]
Nor do I think the delay was procedurally unfair
in the conventional sense. The Applicant had every opportunity to make her case
and all she is saying is that the decision should have been made sooner. The
Applicant was given notice of the delays in accordance with the governing
directive, but she says the notices did not explain the reasons for the delay
or account for extensive periods of time when nothing was being done on the
file. I have reviewed the steps in the process in the context of what was
required on Applicant’s file and the other files that the analyst was working
on at the time, and I cannot say that the delay was unreasonable in this case.
I can perfectly understand the Applicant’s need to have PFVs with her husband
and son and, at the age of seventy-five, she is obviously anxious that this
should occur soon and is impatient with the grievance process. But it has to be
remembered that those involved have significant caseloads to attend to besides
the Applicant, and the Applicant herself is a cause of her own stress because
she refuses to meaningfully engage in the re-integration process, thus
inevitably prolonging the time it will take to be granted PFVs with her husband
and son.
E.
De Novo Hearing
[96]
Finally, the Applicant says that, even if the
Decision is procedurally fair and reasonable, a reviewable error occurred
because the Deputy Commissioner failed to conduct the de novo review
that is required for each step of the grievance process. She says that the
Decision shows a lack of independent analysis in which the Deputy Commissioner
simply listed what others have said and then added a conclusion.
[97]
The Applicant relies upon Hall, above,
and her complaints are as follows (Applicant’s Memorandum of Fact and Law at
paras 131-138):
131. The Applicant respectfully submits
that the ASDC did not conduct a hearing de novo in this case and that
the Decision is therefore unreasonable.
132. It appears from the Decision that
the ASDC reviewed a number of documents during her assessment including the
Warden’s decisions at the first instance and in response to the Applicant’s
written rebuttal. These documents are all summarized in the Decision.
133. It is clear however that the ASDC
did not consider the Applicant’s submission regarding the lack of compelling
information regarding any history of family violence. It is submitted that if
the ASDC had reviewed the record and actually weighed the evidence in light of
the Applicant’s submission that there had never been family violence, the ASDC
would have been confronted with the lack of substantiated evidence in regard to
that issue.
134. Further, the Applicant submits that
the ASDC did not turn her mind to the question of whether the Applicant was
currently at risk of committing family violence given the recent and
corroborated history of exemplary interactions between the Applicant, her
husband and her son, since the Applicant’s incarceration.
135. The Applicant submits that the ASDC
erred by asking herself the wrong question in considering the Final Grievance.
Instead of personally assessing the Applicant’s request de novo, the
Applicant submits the ASDC simply asked whether the Warden had appropriately
denied the application.
136. The last paragraph of the decision
is reproduced here for ease of reference:
Upon review of the above information,
it has been determined that your application for participation in the PFV
program was appropriately denied as you have refused to participate in
correctional programming and as a result you are considered to be an untreated
violent offender. Therefore, the decision was rendered in accordance with
section 3.1 of the CCRA [please see above] and paragraph 8(a) of CD 710-8
[please see above].
137. The Applicant submits that the very
cursory reasons combined with this last paragraph make clear that the ASDC was
merely reviewing the Warden’s decision to determine whether it was supportable.
138. It is respectfully submitted that
the ASDC asked herself the wrong question in this instance. Her task was to
personally assess the Applicant’s request to participate in the PFV program.
Instead the ASDC determined that the Warden’s decision was made in “accordance”
with the appropriate law and policy.
[98]
Some of these assertions are about the weight
that the Deputy Commissioner should have given to the lack of evidence on
family violence and current risk. These are issues that I have already dealt
with in discussing the reasonableness of the Decision. In my view, then, this
matter comes down to whether a de novo assessment was required in this
context and, if it was, whether the Deputy Commissioner asked the wrong
question and “[i]nstead of personally assessing the
Applicant’s request de novo […] the [Deputy Commissioner] simply asked
whether the Warden had appropriately denied the application.”
[99]
First of all, I am not convinced that the
distinction which the Applicant seeks to draw is meaningful on these facts. It
is true that the Deputy Commissioner says that the Warden’s denial was
appropriate and was “rendered in accordance with
section 3.1 of the CCRA … and paragraph 8(a) of CD 710-8 ....” But when
these words are read in the context of the whole Decision they mean no more
than that, after reviewing and assessing the whole back file, the Deputy
Commissioner comes to the same conclusions as the Warden did.
[100] As the Applicant’s arguments reproduced above make clear, what she
is saying is that there could have been no independent de novo review
here because the Deputy Commissioner declined to accept the Applicant’s
arguments and evidence that there was no compelling information regarding any
history of family violence as being a conclusive reason to grant PFVs.
[101] As I have already made clear above, quite apart from the suspicions
of past family violence and the police reports and statements upon which they
are based, the Applicant was refused PFVs because she is a volatile person who
has committed excessive violence in the past that she has refused to come to
terms with and has refused to meaningfully move towards reintegration. In her
view, this is irrelevant to the family context. But in the minds of those
professionals who have assessed her, it is highly relevant and troublesome. And
they are the qualified professionals, not the Applicant and not the Court.
[102] The Applicant could have submitted any evidence she wanted
considered to the Deputy Commissioner but, in the end, the basis of her case
was that volatility and excessive violence towards non-family members and a
refusal to integrate are irrelevant considerations when it comes to family
violence. The professionals thought otherwise, and they are the ones who are
qualified to make these decisions.
[103] In my view, then, this ground of review is not sustainable. All the
Deputy Commissioner can do is to conduct a paper review of the whole back file
and any new evidence that the Applicant puts forward. The Deputy Commissioner
does not deal personally with the Applicant and so must rely on the advice and
conclusions of the professionals who have dealt with her. The Deputy
Commissioner conducts a full review of the whole file and reaches a reasonable
conclusion. She then says that the Warden was right because the Applicant’s
application for participation in the PFV program was appropriately denied
because the Deputy Commissioner has reviewed the whole file and, reasonably,
has come to the same conclusions as the Warden.
[104] As the Applicant’s arguments indicate, she is of the view that there
was no independent review here because the Deputy Commissioner did not accept
her position that the absence of direct evidence of family violence should have
been conclusive. In my view, this argument is fallacious.
F.
Costs
[105] Although she asked for costs in her written submissions – an “Order for the reimbursement of all costs and expenses and
legal fees incurred in pursuing his [sic] legislated rights” –
the Applicant backed off this position at the hearing before me and asked that
each side bear their own costs. The Respondent continues to ask for costs.
[106] The Applicant wants access to PFVs. Those responsible for her
well-being while she remains incarcerated have made it clear that the Applicant
requires PFVs to achieve reintegration with the community. They have also made
it clear to the Applicant that the way to PFVs requires meaningful engagement
with her Correctional Plan and completion of the recommended programming.
Instead of following this advice, the Applicant has come to the Court in an
attempt to sidestep the recommendations of the professionals involved with her
incarceration and reintegration. The Applicant would prefer to use the legal
system to avoid the programming which the professionals say she needs. In doing
so, she is postponing access to this programming and the PFVs that she so
obviously needs. She is not acting in her own best interests and the Court
should not encourage her in this approach by failing to award costs in the
usual way.
Email this Content