Dockets: T-2563-14
T-204-15
Citation:
2016 FC 1151
[ENGLISH TRANSLATION]
Ottawa, Ontario, October 19, 2016
PRESENT: The Honourable Mr. Justice Martineau
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Docket: T-2563-14
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BETWEEN:
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CHRISTOPHER
LILL
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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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Docket: T-204-15
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AND BETWEEN:
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CHRISTOPHER
LILL
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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]
For the reasons that follow, the Court allows in
part the applications for judicial review in dockets T-204-15 and T-2563-14,
joint in this case, and sets aside the two decisions rendered on January 31,
2014, by the Acting Senior Deputy Commissioner, Lori MacDonald [the Acting
Deputy Commissioner], in reconsideration of the decisions made in 2012 and 2013
by the Senior Deputy Commissioner, Anne Kelly [the Senior Deputy Commissioner].
The file of the applicant, Christopher Lill, is referred back for
redetermination so that all of his grievances are allowed according to the
terms and conditions set out in the Court instructions. Without costs.
[2]
In this case, the applicant is contesting the
legal validity and/or reasonableness of the successive refusals of the Deputy
Commissioners to allow and/or grant him the remedies sought in four grievances
against the following actions by the Correctional Service of Canada [CSC]:
a)
Grievance V30R00018783 contesting the placement
and maintenance of the applicant in involuntary administrative segregation (Docket
T20415); and
b)
Grievance V30R00018786 contesting the
reassessment of the applicant’s security classification and grievances
V30R00018784 and V30R00018785 contesting his involuntary transfer to a
maximum-security institution (Docket T256314).
[3]
The applicant is serving a life sentence for
first-degree murder with no eligibility for parole for 25 years. Following a
reassessment of his security classification, the applicant was admitted to La
Macaza, a medium-security institution [the institution], on September 28, 2010.
On October 21, 2011, a violent incident involving another inmate [the other
inmate] occurred at the institution. According to the incident report, prepared
on October 25, 2011, the other inmate apparently set off the alarm in his cell
in order to obtain health care. On October 24, 2011, the applicant was placed
in involuntary administrative segregation for security reasons.
[4]
Paragraph 31(3)(a) of the Corrections and
Conditional Release Act, S.C. 1992, c.20 [the Act], enables the
institutional head to order that an inmate be confined in administrative
segregation if the institutional head is satisfied that there is no reasonable
alternative to administrative segregation and he or she believes on reasonable
grounds that the inmate has acted, has attempted to act or intends to act in a
manner that jeopardizes the security of the penitentiary or the safety of any
person and allowing the inmate to associate with other inmates would jeopardize
the security of the penitentiary or the safety of any person. At that time, the
alleged altercation with the applicant on October 21, 2011 was based solely on
the other inmate’s testimony. No officer or any other witness or video or audio
surveillance could confirm the other inmate’s claims.
[5]
On October 31, 2011, during the
fifth-working-day review of his involuntary segregation placement, the
applicant informed the Administrative Segregation Committee of his
understanding of the situation and said that he had been set up by the other
inmate, who regularly complained about noise coming from the applicant’s cell.
Nevertheless, the administrative segregation order was maintained, and the
applicant was informed that his security classification had been reassessed as
maximum (decision by the committee on October 31, 2011, Exhibit P-4). At the
same time, the applicant was also informed that, as a result of that
reassessment, he would be transferred to a maximum-security institution. On
November 7, 2011, the applicant’s security classification was officially
increased to maximum.
[6]
As a result, on November 30, 2011, the applicant
was transferred to Port-Cartier Institution in Quebec, a maximum-security
penitentiary, where he remained until September 27, 2012. At that time, since
he still had a maximum security classification, the applicant was transferred
to the Regional Mental Health Centre, a multi-level institution. In April 2013,
the applicant was transferred to Atlantic Institution in New Brunswick, another
maximum-security institution, where he remained until May 2, 2014. In the
meantime, the four grievances filed by the applicant to contest the legality of
these various actions by CSC (V30R00006318, V30R00006450, V30R00006464 and
V3R00006570, cited above) had been processed.
[7]
First, the legal validity of the reassessment of
the applicant’s security classification and his involuntary transfer to a maximum-security
institution was ultimately confirmed by the Senior Deputy Commissioner in
November 2012. Second, with regard to the placement and maintenance of the
applicant in involuntary administrative segregation following the incident on
October 21, 2011, the Senior Deputy Commissioner allowed the applicant’s
grievance in part. The information available did not demonstrate that an
exhaustive analysis had been conducted by the Preventive Security Department
before ordering the applicant’s placement in segregation. Furthermore, there
was no officially recorded information identifying the applicant as the
instigator of the altercation. The Senior Deputy Commissioner therefore ordered
that the following general corrective measures be taken:
•
That the institutional head be issued a reminder
of the importance of ensuring that viable alternatives to segregation be
considered and promoted; and
•
That the institutional head remind preventive
security officers about recording security information.
[8]
The applicant filed applications for judicial
review of these two decisions (dockets T2295-12 and T-722-13), but following
an out-of-court settlement between the parties, in 2014 the Acting Deputy
Commissioner reconsidered the previous decisions made by the Senior Deputy
Commissioner. It is the legal validity and reasonableness of those two
decisions made in January 2014 that are at issue today.
[9]
In a first decision, the Acting Deputy
Commissioner noted that the institutional head had applied the two corrective
measures prescribed by the Senior Deputy Commissioner and that, all things
considered, the matter of the applicant’s placement and maintenance in
administrative segregation had become theoretical because two years had passed
since that latter decision had been made. As a result, she found that the
applicant’s grievance did not require that additional corrective measures be
taken.
[10]
In a second decision, the Acting Deputy
Commissioner also confirmed the decisions of the Senior Deputy Commissioner
regarding the applicant’s security reclassification and his involuntary
transfer to a maximum-security institution. With regard to the applicant’s
security reclassification, the Acting Deputy Commissioner found that all of the
information in the applicant’s file and available at the time of the
reassessment could and had been considered when administering the Security
Reclassification Scale and the Assessment for Decision. She also considered the
applicant’s adjustment difficulties, noted in his file, during his
incarceration in the institutions mentioned above. In light of observations by
institutional staff and the various incidents involving the applicant, the
Acting Deputy Commissioner found that the information in the applicant’s file,
as of the date of the assessment, justified an increase in his security
classification.
[11]
With regard to the involuntary transfer to a
maximum-security institution, the Acting Deputy Commissioner found that the
related decision-making process had been carried out appropriately and was
based on an assessment of all the relevant information. In this regard, she
noted that the applicant was transferred to Port-Cartier Institution in
response to the applicant’s reassessed security requirements while facilitating
his access to Aboriginal spirituality and a compatible linguistic environment.
As a result, she rejected the applicant’s grievances.
[12]
In addition to seeking that the two decisions by
the Acting Deputy Commissioner be set aside, the applicant is now seeking a
general declaration of illegality of CSC’s actions as well as a Court order to
have all mentions of the alleged assault on October 21, 2011, of which he was
exonerated, struck from his institutional file and his maintenance in
segregation no longer be considered by the relevant authorities.
[13]
According to the information provided by the two
solicitors of record, the applicant is no longer incarcerated in a
maximum-security institution, but rather in a medium-security institution
(Cowansville Institution) since May 2, 2014. However, I do not find that this
development is enough, in itself, to make the current requests theoretical,
considering that the harmful effects of the applicant’s security
reclassification following the incident on October 21, 2011 are likely to
persist over time.
[14]
Note, in passing, that in October 2014, the
applicant initiated an action for damages against Her Majesty the Queen (docket
T218914). The applicant is requesting a sum of $456,000 from the respondent
for the time he was detained in administrative segregation (30 days, from
October 31, 2011, to November 30, 2011) and in maximum-security institutions
(882 days, from November 30, 2011, to May 2, 2014). The respondent is
contesting the action, claiming that the sum requested is grossly exaggerated,
whereas there is no indication of bad faith or negligence in the applicant’s
treatment following the incident on October 21, 2011. The proceedings have been
suspended since May 25, 2015, until a final judgment is rendered with regard to
these applications for judicial review.
[15]
The applicant makes various arguments against
the legal validity and/or reasonableness of the Acting Deputy Commissioner’s
two decisions, but there is no need to linger on them longer than is necessary.
In fact, the respondent acknowledged from the outset that the Acting Deputy
Commissioner’s two decisions must be set aside because the corrective measures
ordered are insufficient and/or the decisions are otherwise unreasonable. It
seems that the only reason the respondent did not agree to the judgments
allowing the two applications for judicial review is that the parties did not
come to an agreement on the statements or remedies, the applicant insisting
that this Court order that all mentions of the alleged altercation on October
21, 2011 be removed from his institutional file.
[16]
In this case, it is not up to this Court to
order that inaccurate or erroneous entries that may currently appear in the
applicant’s institutional file be struck out or corrected. This was not the
objective of the applicant’s grievances. Concerning the harm that an erroneous
or inaccurate entry may have with regard to the applicant’s residual liberty, I
will simply remind the parties that, in the prospective risk assessment of the
offender, the reliability of information is a function of its accuracy.
Correctional authorities and the Parole Board need not consider relevant
information that is inaccurate and therefore unreliable (Zarzour v Canada,
2000 CanLII 16791 (FCA), [2000] F.C.J. No. 2070 at paragraphs 27-28). That
being said, the respondent does not object to this ruling being placed in the
applicant’s institutional file.
[17]
Nevertheless, there is now every indication that
the other inmate involved in the incident on October 21, 2011 seems to have
falsely accused the applicant of assault. At first glance, the applicant’s
placement and maintenance in administrative segregation were therefore not
based on truthful information that could demonstrate his involvement in the
alleged assault. Moreover, due to a lack of evidence, the charges of simple assault
brought against the applicant at the time and to which he pleaded not guilty
were withdrawn by the Crown in May 2013.
[18]
Additionally, it is clear upon reading the
documentation submitted by the applicant that his alleged participation in the
assault on October 21, 2011, was – at least initially – the main reason for the
decision by correctional authorities to place and maintain the applicant in
administrative segregation (see the transcript of the fifth-working-day review
of the offender’s status on October 31, 2011, Exhibit P-4). It remains to be
determined whether the reassessment of the applicant’s security classification
and, thus, the decision to transfer him to a maximum-security institution in
November 2011 must be treated as separate actions that have no relation to the
incident on October 21, 2011.
[19]
That is not the case here. The two decisions
contested by the applicant are unreasonable. The defects affecting the validity
of the decision to maintain the applicant in administrative segregation irrevocably
tainted the rest of the process of reassessing the security classification of
the applicant, who did not request a voluntary transfer to a maximum-security
institution. It is therefore appropriate to set aside the impugned decisions
and refer the case back for redetermination. Both parties agree that the Court
should exercise its discretion to prescribe appropriate instructions pursuant
to subsection 18.1(3) of the Federal Courts Act, R.S.C., 1985, c. F-7.
[20]
The problem is that nearly five years have
already passed since the applicant sought appropriate remedy from the
correctional authorities. As soon as October 2011, the applicant proposed a
mediation session, claiming that the other inmate had falsely accused him of
assault to get him placed in segregation because the applicant was making too
much noise beside the other inmate’s cell. However, two different
decision-makers already made decisions in 2012 and 2014, with no correction
that was satisfactory to the applicant being prescribed, even though both
decision-makers found that the information available did not make it possible
to demonstrate that the Preventive Security Department had conducted an
exhaustive analysis before ordering that the applicant be placed in
segregation. Furthermore, there was no officially recorded information
identifying the applicant as the instigator of the altercation.
[21]
In Ouellette v Canada (Attorney General),
2008 FC 559, [2008] F.C.J. No. 701 at paragraph 27, the Court states:
The Court’s jurisdiction in judicial review
applications is limited to the powers set out in subsection 18.1(3) of the Federal
Courts Act. The Court has the power to determine whether the decision-maker
erred in fact or in law, and, if such is the case, to set aside the decision
and to refer the issue back to the federal board, commission or tribunal. In
exceptional cases, the Court can give instructions as to the decision to render
(Rafuse v. Canada, 2002 FCA 31, [2002] F.C.J. No. 91 (QL)), but this
power is rarely exercised. This will be the case, for example, when the sole
issue to be decided is a pure question of law which would dispose of the case,
or in cases where the evidence on the record is so clearly conclusive that
there is only one possible conclusion (Simmonds v. Canada (Minister of National
Revenue – M.N.R.), 2006 FC 130, [2006] F.C.J. No. 184 (QL), at paragraph
38). […]
[22]
In this regard, the respondent argues that the
following corrective measures should have been applied by the Acting Deputy
Commissioner: 1) that the information about the incident on October 21, 2011,
and the maintenance in segregation no longer be used or taken into
consideration in future decision-making processes; and 2) that the security
reclassification and involuntary transfer no longer be taken into consideration
in future decision-making processes. Therefore, the respondent thinks that the
case should be referred back for redetermination with instructions from the
Court including these two additional corrective measures.
[23]
Even though this is a reconsideration case, bad
faith or bias from the decision-maker – different in each case – are not raised
by the applicant (Lebon v. Canada (Public Safety and Emergency Preparedness),
2012 FC 1500, [2012] F.C.J. No. 1600 at paragraphs 25-27, supra, 2013 FCA 55,
[2013] F.C.J. No. 196). Nevertheless, the two parties agree that it would serve
no practical purpose to have a third decision-maker start over and from the
beginning with the review of the applicant’s grievances. Given the current
status of the file, only one conclusion seems logically available, meaning that
with regard to redetermination, the best interests of justice authorize the
Court to order that the applicant’s grievances be allowed for the specific
reasons mentioned in the Court judgment (Mymryk v Canada (Attorney General),
2010 FC 632, [2010] F.C.J. No. 779 at paragraph 33).
[24]
Consequently, the decisions rendered on January
31, 2014, by the Acting Deputy Commissioner are set aside, and the file is
referred back for redetermination with the following instructions:
a)
Grievance
V30R00018783 filed by the applicant concerning his placement in involuntary
administrative segregation is allowed for the purpose of applying the following
additional corrective measure: the information about the incident on October
21, 2011, and the maintenance of the applicant in involuntary segregation must
no longer be used or taken into consideration by correctional authorities in
any future decision-making process; and
b)
Grievances
V30R0001876, V30R00018784 and V30R00018785 filed by the applicant concerning
the reassessment of his security classification and his transfer to a
maximum-security institution are allowed for the purpose of applying the
following corrective measure: the security reclassification on November 7,
2011, and the applicant’s involuntary transfer to a maximum-security
institution on November 24, 2011, must no longer be taken into consideration by
correctional authorities in future decision-making processes.
[25]
Lastly, the other conclusions the applicant is
seeking in his applications for judicial review are denied, without prejudice
to the applicant’s right to request the correction of any entry in his file to
the relevant correctional authorities and to pursue his action for damages
against the Crown, if applicable. Moreover, this judgment does not cancel the
corrective measures imposed by the Senior Deputy Commissioner in relation to
grievance V30R00018783.
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