Docket:
T-1764-12
Citation: 2013 FC 1179
Ottawa, Ontario, November 21,
2013
PRESENT: The Honourable Mr. Justice Scott
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BETWEEN:
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DR. V.I. FABRIKANT
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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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REASONS FOR JUDGMENT AND JUDGMENT
I.
Introduction
[1]
This is an application by Dr. Fabrikant (the
Applicant) for judicial review pursuant to section 18.1 of the Federal
Courts Act, RSC 1985, c F-7 [FCA] of the decision of Correctional
Service Canada [CSC], rendered on August 3, 2012, refusing to provide him with
a second parka (the Decision).
[2]
The Decision under review is a third-level
offender grievance response concerning institutional amenities at the Drummond
institution (see page 7, paragraph 5 of the Applicant’s motion record filed January
11, 2013). In his third-level grievance, the Applicant grieved that the
Drummond institution refuses to provide him with adequate winter clothing, alleging
that he had received two parkas at every other institution where he has been
incarcerated in the past. The Applicant also alleged grand-fathered rights to
justify his entitlement to two parkas.
[3]
The third-level offender grievance response
denies the Applicant’s grievances on grounds that his grand-fathered rights
argument has no basis and that Regional procedure 885 of Quebec Region [Regional
procedure 885], Annex A, stipulates that one parka is given to each inmate
every three years.
II.
Facts
[4]
The Applicant is presently incarcerated at the
Archambault Institution, a federal penitentiary where he is serving a sentence
of life imprisonment. The Applicant filed two grievances with CSC, when he was
at the Drummond Institution, in accordance with section 90 of the Corrections
and Conditional Release Act, SC 1992, c 20 [the CCRA], through which
he sought a review of the decisions refusing to grant him a second parka.
[5]
The Applicant claims that he always received two
parkas during the winter and that he needs a supplementary parka because he is
72 years old and is afflicted with a heart condition. He claims that elderly
people need more clothes in the winter than younger and healthier individuals.
[6]
On October 18, 2012, the Applicant filed a
motion for an interlocutory injunction in order to immediately obtain a second
parka. This motion was denied on October 30, 2012.
[7]
On November 27, 2012, the Applicant filed a
second motion for interlocutory injunction in order to obtain a second parka,
this time clarifying that it was strictly for outside use. This motion was
denied on December 19, 2012 and was appealed by the Applicant. This appeal was
dismissed with costs on September 12, 2013.
III.
Legislation
[8]
The applicable provisions of the Corrections
and Conditional Release Act, cited above, the Corrections and
Conditional Release Regulations, SOR/92-620 [the CCRR], the Federal
Courts Rules, SOR/98-106 [the FCR] and the Regional procedure 885
cited above, are reproduced in an appendix to this decision.
IV.
Issue
[9]
This application raises only one issue:
Was the refusal to provide the Applicant with a second parka
reasonable?
V.
Standard of review
[10]
The Respondent submits that the applicable
standard of review is that of reasonableness because the decision entails the
interpretation, by the third-level grievance officer, of CSC procedures and
policies, which are well known to the officer. The Respondent refers to Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association,
[2011] 3 S.C.R. 654 at para 30.
[11]
Even though it was not argued in his written
submissions, at the hearing, the Applicant alleged that the applicable standard
of review should be correctness, because the officers who rendered the Decision
on his grievances are not well educated and cannot therefore properly interpret
applicable legislation, policies and procedures.
[12]
The Court rejects the Applicant’s position and agrees
with the Respondent. The standard of review for decisions taken pursuant to the
CCRA was addressed by the Federal Court and determined to be that of
reasonableness (see Crawshaw v Canada (Attorney General), 2011 FC 133 at
paras 24 to 26) when relating to the application of legal principles to facts
and findings of facts. This Court must therefore determine whether the decision
under review “falls within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law” (see Dunsmuir v New Brunswick, 2008 SCC
9 at para 47 [Dunsmuir]).
[13]
The Supreme Court of Canada stated, in paragraph 57 of the Dunsmuir case,
that :
“An exhaustive review is not required in every
case to determine the proper standard of review. Here again, existing
jurisprudence may be helpful in identifying some of the questions that
generally fall to be determined according to the correctness standard (Cartaway
Resources Corp. (Re), [2004] 1 S.C.R. 672, 2004 SCC 26). This simply means
that the analysis required is already deemed to have been performed and need
not be repeated”.
[14]
Therefore, since the applicable standard of review has been
satisfactorily identified by previous case law, the Court will apply the reasonableness
standard.
Preliminary
motion
[15]
At the onset of the hearing, the Applicant presented an oral motion to
be allowed to testify thereby introducing evidence related to five specific
events that took place over the last months. Three of these events or
encounters occurred in March of this year, one on August 26 and the last one on
October 23rd and were not before the third-level grievance officer.
Some of these events had already been the subject of a motion pursuant to rule
312 of the FCR that was dismissed by Prothonotary Tabib, in a decision
rendered on November 1, 2013. The Applicant had attempted to file a motion
before this Court to appeal the Protonotary’s decision but it was not perfected
on time.
[16]
The Court, after hearing both the Applicant and the Respondent,
dismissed the Applicant’s oral motion, on grounds that the evidence he wants to
introduce by testimony was not part of the record before the third-level
grievance officer and is not determinative of the issue as they all took place
after the grievance was filed and the Respondent is not in a position to
respond at this late stage. In sum, the Applicant failed to convince this Court
that the facts alleged warrant the exception sought.
VI.
Positions of the
parties
A.
Applicant’s position
[17]
The Applicant submits that the Respondent
breached section 83 of the CCRR cited above, that creates the
obligation to ensure that inmates are adequately clothed and fed (see paragraph
83 (2) (a)).
[18]
The Applicant claims
that he has always received two parkas every winter, the only exception being
the time he spent at the Drummond institution. He alleges that initially, when
he was transferred back to the Archambault penitentiary in April 2011, he had 2
parkas, but one parka was taken away on grounds that Regional procedure 885
entitles inmates to receive only one parka.
[19]
The Applicant acknowledges that this policy has
“always existed” but claims that he always received two parkas notwithstanding.
[20]
At the hearing the Applicant refuted the
Respondent’s argument based on acquired rights and argued that his claim is
based rather on legitimate expectations. Since the Respondent has always
provided a second parka in the past he can legitimately claim to be entitled to
receive an additional one.
[21]
The Applicant claims to suffer from a heart
condition which makes him feel the cold more harshly than other inmates. He
alleges that a doctor has prescribed a second parka in the past but that he cannot
find the original prescription.
[22]
He submits that Regional procedure 885
mandates one pillow and 2 blankets per prisoner, but this has never prevented
him from receiving more blankets and pillows; consequently the same flexibility
should apply with regards to parkas.
[23]
The Applicant also filed exhibit number 2, which
contains scientific articles supporting his argument that elderly people need
more clothes in winter than “younger and healthier individuals” and that
exercise outdoors provides significant health advantages. He claims that if he
feels cold then he is not adequately clothed and therefore considers that Respondent
has breached section 83 of the CCRR.
[24]
The Applicant submits that several paragraphs of
the Respondent’s amended affidavit are irrelevant and that the affiant had no
personal knowledge of the facts alleged. On that score the Applicant directed
the Court to the transcript of the examination of Mr. Charland. He drew the
Court’s attention to paragraphs 6 and 7 of Mr. Charland’s affidavit relating to
the temperature in his cell. Pointing out that these facts are irrelevant since
he requires a second parka strictly for outdoor use. He also underlined the
apparent contradictions between paragraph 14 of the affidavit and Mr. Charland’s
statement on page 43, line 23, where the latter acknowledged that he had no
evidence that the Applicant took his second parka from another inmate. The
Court was also directed to paragraph 16 where Mr. Charland mentions a
subterfuge to obtain a second parka, versus the answers provided by Mr.
Charland on pages 55 and 57 of the transcript, where he admitted that he did
not verify with Mr. Provençal whether the Applicant had been given a second
parka in the past.
[25]
Finally, the Applicant raised what he believes
is a contradiction with respect to paragraph 10 of Mr. Charland’s affidavit
stating that he was refused a prescription for a second parka and Mr Charland’s
response to a question from the Applicant at page 55, wherein he confirms not
having verified with the Doctor why the request for a prescription for a second
parka was denied.
[26]
The Applicant equally underlined that the third-level
decision never challenged that he did receive a second parka.
[27]
The Applicant also asserts, in his written
representations, that the affiant’s lawyer is the one who typed the text of the
affidavit and that the Court should infer that rule 82 of the FCR was
breached.
[28]
The Applicant refutes the Respondent’s claims
that he does not need to walk outside in the winter in order to improve or
maintain his health. He relies on the scientific articles filed in support of
that contention. He also rejects the Respondent’s submission that he could walk
and exercise inside when he is uncomfortable outside or simply go outside for
shorter periods of time on multiple occasions, claiming that these suggestions
are unsafe for someone with cardiac problems.
[29]
Finally, the Applicant underlines that the
Decision ignored the fact that Chief Justice Rolland ordered that he be given a
second parka for the purpose of his transportation to Court when he testified
as a witness in a trial in 2011.
[30]
The Applicant is therefore asking the Court to:
a) Order the Respondent to allow Applicant to
have two parkas in his possession;
b) Order the Respondent to include in Regional
procedure 885 the following phrase: “the norms described in this instruction
are flexible: they can be changed according to special need (sic) of
specific prisoners, especially elderly and sick prisoners”, with costs.
B.
Respondent’s position
[31]
The Respondent rejects the Applicant’s argument based
on past practices to provide two parkas.
[32]
The Respondent refers to the definition of
“acquired rights” found in Hubert Reid, Dictionnaire de droit
québécois et canadien, (Montréal: Wilson et Lafleur, 2010),
and submits that in order for such a right to be recognized, the use must have been
lawful. He posits that in this case the second parka was never authorized under
the applicable procedures nor tolerated in practice. The Respondent notes that
the Applicant himself acknowledges that Regional procedure 885 has
always existed.
[33]
The Respondent submits that Annex A of Regional
procedure 885 specifically provides for one parka per inmate and claims
that the Applicant has failed to file any reliable evidence, medical or factual,
to indicate that he requires a second parka or that he needs to walk outside in
the winter to improve his health.
[34]
The Respondent also underlines that section 83
of the CCRR does not grant inmates with an absolute right to walk
outdoors in all circumstances and that consequently the CSC takes reasonable
steps, weather permitting.
[35]
The Respondent claims that the scientific
articles submitted by the Applicant constitute new evidence as these documents
were never part of the record, when the third-level grievance officer took his
decision. Consequently, he alleges that the Court should reject these documents.
Failure to do so would transform this judicial review into a de novo
appeal (see Ontario Association of Architects v Association of
Architectural Technologists of Ontario, [2001] 1 FC 577, 2002 FCA 218).
[36]
The Respondent also argues that the Applicant
refers to “clear evidence in the Applicant’s medical file” but such evidence
does not exist.
[37]
The Respondent denies both the Applicant’s claim
that a prescription for a second parka was ever issued by a medical practitioner
and the existence of an informal practice to grant him the extra parka. The
Respondent submits that the Applicant has never been officially provided with a
second parka nor has he been authorized to have one in his possession.
[38]
As to Applicant’s claim that Respondent breached
rule 82 of the FCR, the Respondent refers to Justice Gleason’s recent
decision which stated that it is a common practice for counsel to draft
affidavits and that there is nothing improper in doing so (see Fabrikant v
Canada (Correctional Service), 2012 FC 1496 at para 6 [Fabrikant]).
[39]
The Respondent submits that the Applicant has failed
to demonstrate the need for the Court to depart from its role in judicial
review to return the matter back to the federal board that rendered the decision
if it concludes that is was unreasonable (see Brychka v Canada (Attorney
General), [1998] 141 FTR 258 at para 27).
[40]
Consequently the Respondent submits that the Court
should dismiss this Application for judicial review with costs.
VII.
Analysis
Was the refusal to provide the Applicant with a second parka
reasonable?
[41]
The Court concludes that the refusal to provide
the Applicant with a second parka is reasonable for the following reasons.
[42]
The Court disagrees with the Applicant’s
contention that he has acquired rights or legitimate expectations, as he
explained in the course of the hearing, to be provided with two parkas based on
past practice. The Court agrees with the Respondent that it was not incumbent
on Respondent to verify with each penitentiary where the Applicant has been
detained whether or not he had received a second parka. The burden to adduce
such evidence rests on the Applicant in this instance.
[43]
The Supreme Court of Canada clarified the
concept of vested rights in Dikranian v Quebec (Attorney General), 2005
SCC 73 at paras 37 and 39:
“37. Few authors have tried to
define the concept of "vested rights". The appellant cites Professor
Côté in support of his arguments. Côté maintains that an individual must meet
two criteria to have a vested right: (1) the individual's legal (juridical)
situation must be tangible and concrete rather than general and abstract; and
(2) this legal situation must have been sufficiently constituted at the time of
the new statute's commencement (Côté, at pages. 160-61). [Emphasis added]
. . .
39. A
court cannot therefore find that a vested right exists if the juridical
situation under consideration is not tangible, concrete and distinctive. The
mere possibility of availing oneself of a specific statute is not a basis for
arguing that a vested right exists”.
[44]
Since the Applicant was never positioned legally
to claim the existence of an acquired or vested right. Regional procedure 885
has and continues to prescribe one parka per inmate he cannot claim to have an
acquired right to a second parka.
[45]
With respect to legitimate expectations, the
concept applies strictly to procedural matters as was recently reaffirmed by
the Supreme Court of Canada in Agraira v Canada (Minister of Public Safety
and Emergency Preparedness), 2013 SCC 36 at para 97; consequently it cannot
create substantive rights.
[46]
As to the Applicant’s contention based on the
fact that he has been provided with more bedding despite the wording in Regional
procedure 885 mandating one pillow and 2 blankets per prisoner, the Court
notes that Annex C of Regional procedure 885 states, in the column
“Conditions”, that these articles are given “as required”. Therefore, the
regulation allows for some discretion as to bedding, however it is to be noted that
the wording used in Annex A regarding parkas does not grant any discretion.
[47]
The Court also finds that the Applicant has
failed to adduce evidence from a medical authority that his cardiac condition warrants
the exception sought from the application of Regional procedure 885 to provide
him with two parkas.
[48]
Exhibit 2 constitutes new evidence which was not
before the third-level grievance officer; consequently it cannot be considered
in this judicial review.
[49]
As to the Applicant’s contention that the
Respondent’s affidavit contravenes sections 81 and 82 of the FCR, this
Court disagrees. Our Court, in Canada (Minister of Citizenship and
Immigration) v Pierre, 2012 FC 1169, at paragraph 23, addressed the issue
of “personal knowledge” found in section 81:
“23. […] When the
admissibility of an affidavit must be determined, the Court has to take into
account the "reality of the surrounding circumstances. It depends, among
other things, on the office or qualifications of the [affiant] and whether it
is probable that a person holding such office or having such qualifications
would, of his own knowledge, be aware of the particular facts" (see Smith
Kline and French Laboratories Ltd v Novopharm Ltd, [1984] F.C.J. No. 223)”.
[50]
Mr. Charland drafted the affidavit as acting
chief administrator and services manager of the Archambault Penitentiary,
Correctional Services Canada. It is likely that based on his own knowledge, he
would be aware of most facts described in his affidavit. Consequently his
affidavit is admissible though the Court acknowledges that some of the answers
provided in the course of his examination do contradict, partially, statements
found in paragraphs 10 and 16. It is clear that paragraphs 6 and 7 of Mr.
Charland’s affidavit are irrelevant in the current proceedings, but more
importantly, the apparent inconsistencies with respect to paragraphs 14 and 16 do
not modify the Court’s assessment that the Applicant has failed to provide
conclusive evidence that the Decision is unreasonable, since it was
acknowledged in the third-level decision that the Applicant had a second parka
when he was transferred to Archambault.
[51]
Regarding the Applicant’s claim that rule 82 of
the FCR was breached because the affidavit was drafted by counsel, the
Court rejects this argument for the same reasons provided by Justice Gleason,
in another case concerning the Applicant (see Fabrikant cited above at
para 6).
[52]
Finally, the Court must dismiss the Applicant’s contention
that paragraph 83 (2) (d) of the CCRR has been violated by the Respondent.
Paragraph 83 (2) (d) states that “reasonable steps” must be taken to afford
inmates the opportunity to “exercise for at least one hour every day outdoors,
weather permitting, or indoors where the weather does not permit exercising
outdoors”. No evidence was submitted to the effect that Applicant was not afforded
this opportunity.
[53]
The Applicant has failed to discharge the
requisite burden of proof to succeed in this application because he has not adduced
any evidence to establish that Respondent breached his statutory duty to ensure
that he is adequately clothed for prevailing weather conditions. The Applicant
has not filed any evidence to prove that his medical condition warrants the
provision of a second parka or that he was ever given a prescription for one.
[54]
In sum the Applicant has not convinced this Court
that the Decision was unreasonable; consequently this application for judicial
review is dismissed.
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