Date: 20120124
Docket: A-239-11
Citation: 2012 FCA 26
CORAM: NOËL
J.A.
DAWSON J.A.
TRUDEL
J.A.
BETWEEN:
Michael Aaron
SPIDEL
Appellant
and
CANADA (ATTORNEY
GENERAL)
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1]
This
is an appeal from a decision of the Federal Court (2011 FC 601, [2011] F.C.J.
No. 804) wherein a Judge dismissed the appellant Mr. Spidel’s application
for judicial review in respect of the denial of a third-level grievance filed
against the Ferndale Institution (Institution).
[2]
The
relevant facts are set out by the Judge in his reasons and are not in dispute.
The appellant indicated during the course of the hearing of this appeal that
his first-level grievance, which was directed at an issue which has since been
resolved, “changed trajectory” at the second-level. In the second-level
grievance, the appellant alleged that amendments to the Institution’s policy
with respect to the permitted use of cameras, implemented while his first-level
grievance was pending, violated the principle of the “least restrictive
measures”, as set out in subsection 4(d) of the Corrections and
Conditional Release Act, S.C. 1992, c. 20. The appellant explained that
this is “what the grievance is about”.
[3]
Given
this, the issues which remain on appeal are:
1. Did
the Judge err by finding the onus to be on the appellant to show amendments to the
Institution’s permitted use of cameras (contained in Standing Order 764.1 and
the inmate photographer job description) were not the least restrictive
measures possible?
2. Did
the Judge err by striking out portions of the appellant’s affidavit and
attached exhibits?
3. Did
the Judge err by refusing to allow the appellant to rely on a ground of review
not pleaded in his notice of application?
4. Did
the Judge err by not applying Rules 75 and 312 of the Federal Courts Rules,
SOR/98-106 in the appellant’s favour so as to allow him to amend his notice of
application or supplement his record?
5. Did
the Judge err in his consideration of the adequacy of the procedural fairness
shown to the appellant at the first-level of the grievance process?
[4]
Addressing
the first issue, no error has been shown to have been committed as to who bore
the burden of proof. The appellant acknowledges that the amendments were within
the Warden’s jurisdiction. Determining whether the measures implemented were
the least restrictive measures possible is a question of law or mixed fact and
law. It was incumbent upon the appellant to demonstrate a prima facie case
that less restrictive measures were available, and he did not submit evidence
to show this.
[5]
The
appellant also argues that the respondent should justify the amendments to the
Institution’s policy in an Oakes style Charter analysis. However, even if this
type of analysis was required in this instance, a litigant must still prove a
violation of the Charter before the government is required to justify the
limitation on the litigant’s Charter rights. The appellant has not demonstrated
a violation of his rights.
[6]
Turning
to the second issue, on judicial review the Federal Court only considers
documentary evidence that was before the decision-maker. New evidence may only
be added in exceptional circumstances. This is different from the grievance
process where the griever is entitled to a hearing de novo at each
level. In my view, the appellant has not shown any error in the Judge’s
exercise of discretion to strike portions of the appellant’s affidavit and
attached exhibits.
[7]
Moreover,
the appellant elected to argue this appeal solely on the basis of the certified
tribunal record. Thus, nothing would seem to turn on the material struck from
the record by the Judge.
[8]
The
third and fourth issues may conveniently be addressed together because even if
the Judge had allowed the appellant to amend his notice of application and
argue the issue of least restrictive measures, there was no evidence that the
measures adopted were not the least restrictive. Nor did the appellant suggest
that any such evidence could have been forthcoming had the Judge allowed him to
supplement his record. In the absence of evidence that less restrictive
measures were available the appellant’s argument could not succeed.
[9]
Turning
to the final issue, nothing turns on the breach of natural justice alleged to
have taken place during the course of the first-level grievance because even if
one assumes that the process leading to that decision was unfair, the appellant
obtained through that process the return of certain photographs. This was the
very remedy the appellant sought. Furthermore, as the appellant made clear
during the hearing, the issue surrounding the return of the photographs
transformed into a different one aimed at the allegedly “illegal” policy which
was adopted in the interim.
[10]
For
completeness, I note that the appellant continued to take issue with the
outcome of the first grievance to the extent that after the photographs in
question were returned to him, the grievance was categorized as “no further
action required”. In the appellant’s view his grievance was upheld.
[11]
However,
as the appellant was advised in the response to his second-level grievance,
guidelines in force at the Institution prohibited photographs from being taken
that could undermine the security of the Institution or the safety of any
person. Photographs of things such as “office equipment / filing cabinets” were
prohibited. In his third-level grievance presentation, the appellant did not challenge
the existence of these guidelines.
[12]
The
Offender Complaint and Grievance Procedures Manual in force at the time provided
that a grievance should be categorized as upheld where the grievance was
justified on grounds that the treatment of the offender, or the application of
a procedure was unfair, arbitrary or contrary to policy. Given that the
pictures in issue were of files and filing cabinets (and thus prima facie
prohibited) and that they were released to the appellant after the conduct of a
security risk assessment, it was not unreasonable for the grievance to have
been closed on the basis that no further action was required.
[13]
For
these reasons, I would dismiss the appeal with costs.
“Eleanor R. Dawson”
“I
agree.
Marc
Noël J.A.”
“I
agree.
Johanne
Trudel J.A.”
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