Docket: T-949-13
Citation:
2015 FC 44
Ottawa, Ontario, January 13, 2015
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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DEREK ANTHONY WOOD
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Applicant
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and
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COMMISSIONER OF CORRECTIONS CANADA (CSC)
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review of a
decision dated March 28, 2013 by the Deputy Commissioner, Transformation and
Renewal Team [Commissioner] of the Correctional Service Canada [CSC], whereby
he decided that the application’s third-level grievances required no further
action. The Commissioner declined corrective action in a decision that combines
three grievances which had been submitted by the applicant.
[2]
Mr. Wood is a self-represented applicant in the
present case. He was represented by counsel at the hearing on short notice. His
grievances in the impugned decision are over: (i) his security classification
as a maximum security inmate which he alleges is inaccurate; (ii) his request
for voluntary transfer to a medium security institution; (iii) voluntary
segregation; and (iv) the time-bar imposed by the second-level decision-maker.
[3]
For the reasons discussed below, this
application for judicial review will be dismissed.
II.
Background
[4]
Mr. Derek Anthony Wood is a 41 year-old, “high
profile” inmate at Kingston Penitentiary. He is serving an indeterminate
sentence for first degree murder, forcible confinement, attempted murder,
robbery, assault with a weapon and assaults of peace officers.
[5]
On March 30, 2012, CSC conducted a security
classification of Mr. Wood, assigning him a rating of Maximum Security
Classification, based on a Security Reclassification Scale [SRS] score of 27.5
[#208 decision]. The applicant’s ratings were assigned as follows:
“institutional adjustment concerns”—high, “escape risk”—moderate and “public
safety concerns”—high.
[6]
On April 3, 2012, Mr. Wood obtained a written
copy of the #208 decision.
[7]
On September 18, 2012, Mr. Wood filed his
second-level grievance with respect to his security classification, which was
rejected on January 16, 2013. On January 24, 2013, Mr. Wood filed a third-level
grievance.
[8]
The Commissioner rendered a decision on March
28, 2013, the decision formally under review [impugned decision].
III.
Impugned decision
[9]
The impugned decision combines and tackles three
grievances (V40R00009797, V40R00009798 and V40R00010936), pursuant to paragraph
24 of the Commissioner’s Directive [CD] Offender Complaints and Grievances,
on the basis that they encompass a common theme: issues related to transfer
applications and segregation. The Commissioner starts his analysis by stating
explicitly that he considered Mr. Wood’s submissions, responses and his
Offender Management System file.
[10]
Only the first section of the impugned decision,
which covers V40R00009797, is relevant in view that Mr. Wood contests the
grievance relating to security classification only; V40R00009798 and V40R00010936
respectfully address questions relating to segregation and transfer to a medium
security institution.
[11]
The Commissioner summarizes the historical
trajectory of the grievance through the CSC process, the substance of Mr.
Wood’s submissions and the reasons for refusing to order corrective action. In
V40R00009797, Mr. Wood grieves his denied request for a new SRS score and subsequent
transfer to Drummond Institution on the basis that the decision at the second
level: (a) contained “fallacious information” of
his classification as a medium security inmate; b) that the “region not the individual institution” should have
responded to his request; and c) it was “fallacious”
to claim he had taken longer than thirty days to file his response.
[12]
The Commissioner noted that the second-level
decision-maker rejected the grievance because of a time-bar; Mr. Wood was
grieving information he was aware of five months prior to the date of his
grievance. He was informed on April 3, 2012 that his security level had already
been reassessed and was aware that a transfer request could not be granted on
his rating.
[13]
The Commissioner upheld the second-level’s
decision to time-bar the grievance and asserted no justification for delay was
provided. In relation to his security assessment, the Commissioner reasoned
that Mr. Wood had not pursued the appropriate avenue to contest the information
upon which Security Classification is predicated (citing Annex B of the
Commissioner’s Directive 701) and that, at the time of the decision, Mr. Wood’s
classification was consistent with policy based on a score of 27.5, ratings of
high institutional adjustment concerns, moderate escape risk and high public
safety concerns.
IV.
Issues and Standard of Review
[14]
As the applicant challenges the manner in which
the Commissioner applies the regulations and policy to the facts presented in
his grievance, the standard of review is reasonableness (McDougall v Canada
(Attorney General), 2011 FCA 184 at para 24; Dunsmuir v New Brunswick,
2008 SCC 9 at para 53) and the sole issue raised is as follows:
•
Was the Deputy Commissioner’s decision to deny
the applicant’s third-level grievance reasonable?
V.
Analysis
A.
Preliminary remark
[15]
As mentioned above, in his oral submissions to
the Court, Mr. Wood asserted that in relation to the impugned decision, he only
wishes to contest his security classification as a maximum security inmate.
[16]
The difficulty is that the question of security
classification, as it appears in the impugned decision, is initially
pre-determined by cross-over reference to the #208 decision, which was
qualified as an interim decision by Prothonotary Morneau Esq. In his order
dated November 20, 2013, Prothonotary Morneau decided that the #208 decision
was not the decision at issue under the applicant’s application.
[17]
Whether or not I agree with the November 20, 2013
order or whether or not it can be reconciled with: (a) the order of Prothonotary
Tabib, dated September 17, 2013 which declined to rule on the question of the
#208 decision, whereby she was of the view it should be “properly
left to the judge on the merits”; and (b) the order of Annis J., dated
February 14, 2014 which excluded from the scope of the certified tribunal
record materials dealing with questions (ii) and (iii), as listed above in
paragraph 2 of this decision - leaving only materials relating to the #208
decision, has no impact as the November 20, 2013 order was not appealed before
a judge of this Court and is therefore final. This applies to the merit of the
#208 decision and to the time-bar imposed by the second-level decision-maker.
B.
Reasonableness of the Decision
[18]
In any case, even if I were to straightforwardly
address security classification, I view the #208 decision as being reasonable
and in line with sections 17 and 18 of the Corrections and Conditional
Release Regulations, SOR/92-620 [CCRR].
[19]
Mr. Wood asserts his Charter right to
residual liberty in the grievance process has been violated. Assuming Mr. Wood
even has a prima facie plausible claim, the Federal Court of Appeal has
affirmed (Fabrikant v Canada, 2012 FC 1496, 2013 FCA 211) that this
Court may decline to hear Charter issues on the basis that such issues
were not initially raised at the grievance level before the decision-maker.
Administrative tribunals have the ability to decide questions of law, including
Charter determinations (R v Conway, 2010 SCC 22 at para 79) and
such determinations are equally appropriate issues that may be decided under
the CSC grievance procedure (see e.g. Bouchard c Canada (Procureur général), 2006 CF 775). Mr. Wood cannot circumvent the grievance process by
raising a Charter issue which had not been put initially before a perfectly
adept decision-maker at the grievance level. The CD 081-1 provides that
complaints or grievances which significantly impact or infringe on an
offender’s rights and freedoms are typically designated as high priority. On
the record before me, Mr. Wood did not assert Charter violation in his
grievances before the Commissioner and he is therefore prevented to raise it
before this Court.
[20]
Mr. Wood also submits that the security
classification is based on inaccurate and outdated information.
[21]
The facts of this case can be distinguished from
those in Nagy v Canada (Attorney General), 2013 FC 137 at paras 33-37 [Nagy],
where the CSC had not taken reasonable steps to ensure that they relied on
accurate and non-faulty information to classify the applicant in the first
place, regardless of his consistent rebuttal of the facts. In Nagy, the
applicant relied on section 24 of the Corrections and Conditional Release
Act, SC 1992, c 20 [CCRA] to request that his delinquent file be corrected,
which the applicant failed to do in the case at bar. More relevant for the
purposes of the present case are sections 17 and 18 of the CCRR which provide
guidance as to how to determine and classify inmates’ security levels which is
the more pertinent legislation.
[22]
In his third-level grievance, Mr. Wood argued
that he should have been classified as a medium security offender mainly based
on the following information:
•
That his aggression was limited to his time at
the Atlantic Region, (Edmonton and Port Cartier) where other inmates and staff
had targeted him due to his high profile.
•
None of his segregation placement over this
period was involuntary.
•
He was not involved in a prison sub-culture.
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His completion of cognitive living skills, anger
and emotions management, vocation carpentry, safety courses.
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His lack of alcohol or drug use.
•
The refusal by the CSC to provide him with an
updated psychological assessment despite his various efforts.
[23]
Despite the violent incidents Mr. Wood argued
were justified in the Atlantic Region, the #208 decision notes violent
incidents also occurred in the Quebec region. As for the psychology assessment,
the report lists three separate occasions in which Mr. Wood was assessed
psychologically and the results derived as a consequence. In addition, the
Commissioner had before him a segregated status updated on August 29, 2012,
which notes the rationale which underscores voluntary segregation under paragraph
31(3)(c) and the reason it factors against the applicant.
[24]
On the whole, although the #208 decision has
been found not to be the object of this application, it was the only decision
of concern to the applicant as argued before me. I find that the decision falls
within an acceptable range of outcomes defensible with respect to the facts and
the law.
VI.
Conclusion
[25]
For all of these reasons, the applicant’s
application for judicial review will be dismissed. However, considering the
specific procedural context of this file, no costs will be granted.
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