Date:
20110204
Docket:
A-508-09
Citation: 2011 FCA 42
CORAM: NADON
J.A.
PELLETIER J.A.
MAINVILLE
J.A.
BETWEEN:
ESMOND JACK
YU
Appellant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR
JUDGMENT
MAINVILLE
J.A.
[1]
The
appellant seeks compensation for the loss of his property following his
involuntary transfer from the Matsqui penitentiary to the Kent
penitentiary. At the time of his transfer, the belongings in his cell at
Matsqui were gathered by the Correctional Service of Canada (CSC) and
eventually shipped to Kent. However, many of the items gathered never
reached Kent.
Consequently, the appellant made claims for lost property. These claims were
for the most part denied by the correctional authorities, principally on the
basis that many of the items claimed were not listed on the appellant’s
personal property record (PPR). On judicial review, Snider J. of the Federal
Court upheld the denial of compensation. The appellant now appeals to this
Court.
Background and context
[2]
The
type and quantity of personal property which inmates in penitentiaries may keep
with them within a facility are strictly regulated through controls on the
management of inmate property and purchasing practices. These restrictions are
intended to ensure the safety of staff, of the inmates and of the public.
However, once the personal property of an inmate has been lawfully allowed into
the institution, the institutional head must take all reasonable steps to
ensure that this property is protected from loss or damage.
[3]
Commissioner’s
Directive 090 (CD-090) regulated the personal property of inmates until its
replacement by a more detailed Commissioner’s Directive 566-12 (CD-566-12).
Both CD-090 and CD-566-12 were adopted pursuant to sections 97 and 98 of the Corrections
and Conditional Release Act, S.C. 1992, c. 20.
[4]
Under
the inmate personal property system established under these directives, all
authorized personal property of an inmate is registered on a PPR upon the
inmate’s admission to an institution, with an agreed upon value being assigned
to each item. After the inmate’s admission, he may acquire other personal
property, notably through purchase. All items received after the inmate’s
admission are also registered on a PPR. As rightfully conceded by counsel for
the respondent during the hearing of this appeal, it is CSC staff who control
both the initial PPR and the updates to the PPR, and who also control the
admission of items purchased by inmates.
[5]
When
it is necessary to remove and transfer the personal property of an inmate from
his cell, the inmate himself, whenever possible, is responsible for packing the
items and a system for recording and verifying the packed items exists for
purposes of control. However, when an inmate does not pack his personal
property himself, the directives provide for a system under which the employees
of the CSC conduct the packing in a controlled environment. Of particular
interest for the purposes of this appeal is the requirement that an “Inmate
Personal Property (Cell Property Removal)” (CPR) form be completed in such
circumstances by two staff members, which allows for a list of the items packed
to be prepared and attested to by the staff.
[6]
On
November 1, 2007, a cellular phone was found in the appellant’s cell at Matsqui
hidden in his printer. The possession of a cellular phone is considered to be a
serious breach of security, and the appellant was placed in segregation and
eventually transferred to Kent. His cell was padlocked, and his personal
effects were subsequently packed by CSC personnel. A CPR of the items packed
was consequently prepared by the staff.
[7]
The
appellant’s personal effects were eventually forwarded to Kent. However,
many items were missing. The appellant’s printer was missing and was not even
listed on the CPR, though it was obviously in his cell when he was segregated
since the cell phone had been found hidden in it. Many other items listed on
the CPR were also missing, notably two language learning CDs, a black long
sleeve shirt, two T-shirts, a special mechanics book with CD, and a pair of
pants.
[8]
The
appellant claimed compensation for these missing items as well as for various
small items which were not listed on the CPR or on his PPR, but which he
asserted were nevertheless in his cell at Matsqui when he was segregated.
The claims decisions
[9]
Claims
payment requests for damage to, or loss of, property belonging to inmates are
the subject of Commissioner’s Directive 234 entitled Claims against the
Crown and the Offender Accident Program (CD-234). This directive provides
for an internal claims process and investigation, and sets out guidelines to
accept or reject inmate claims for loss of property and to determine an
appropriate amount of compensation where claims are found to be warranted.
[10]
The
initial investigation report prepared in response to the appellant’s claims
noted that the appellant had submitted receipts that showed that many of the
items claimed and listed on the CPR had been purchased while he was at
Matsqui. Nevertheless, the initial investigation concluded that there was “no
choice” but to reject most of the appellant’s claims since the missing items
listed on the CPR were not also listed on the appellant’s PPR.
[11]
The
appellant appealed this decision under Commissioner’s Directive 081 concerning Offender
Complaints and Grievances (CD-081). Assistant Deputy Commissioner Bergen
granted the appeal for all missing items which had been listed on the CPR even
though they may not have been listed on the appellant’s PPR. She explained her
decision as follows (Appeal Book at pages 56-57) :
While the institutional review focused on
the inmate’s responsibility with respect to his/her personal property, it is
also important for the institution to take some responsibility in this case
with respect to the recording of personal property. Inmates should not be
permitted to take property to their cells for personal use until that property
has been provided a value and has been listed on Personal Property Records.
[…]
Although it appears that property was
sent out for Mr. Yu, Kent Institution records indicate that some of Mr. Yu’s
personal items were never received. Although these items are not listed on Mr.
Yu’s Personal Property Records, Mr. Yu provided copies of receipts validating
his claim and institutional staff at Matsqui Institution allowed him to have
these items for cell use without recording them as per policy requirements,
therefore I recommend that this claim be upheld in part … .
[12]
The
appellant again appealed this decision to a “third level” under the grievance
procedure set out in CD-081. In his third level grievance decision, senior
Deputy Commissioner Hyppolite overturned the previous decision of Assistant
Deputy Commissioner Bergen. He rejected the claims for all items which were not
listed on the appellant’s PPR even though they had been found in his cell by
the staff and had been listed on the CPR. His decision was principally based on
his reading of section 9 of CD-090 and of section 15 of CD-566-12 which both provide
that every inmate must ensure that his personal property records are kept
up-to-date by bringing any changes to the attention of relevant staff.
[13]
However,
a missing printer had been listed on the appellant’s PPR, and since a printer
was clearly in the appellant’s cell when the cellular phone had been found
hidden in it, the Senior Deputy Commissioner accepted this claim even though
the printer was not listed on the CPR.
Federal Court Judgment
[14]
The
appellant sought judicial review of this third level grievance decision before
the Federal Court. The applications judge defined three issues,
namely what was the appropriate standard of review, whether the third level
grievance decision was made in breach of procedural fairness, and whether this
decision was reasonable.
[15]
The
applications judge found that the appropriate standard of review was
correctness on issues of procedural fairness, and reasonableness on whether the
decision properly compensated for the destruction or loss of items.
[16]
The
applications judge determined that there had been a breach of procedural
fairness by the failure to provide timely disclosure of the CPR to the
appellant. However, the judge also found that there was no prejudice resulting
from this non-disclosure and that the breach was inconsequential. She
consequently declined to overturn the third level grievance decision on this
sole basis.
[17]
The
applications judge further determined that it was not unreasonable for the
third level grievance decision-maker to find that the appellant had the
responsibility to update his PPR. The applications judge also determined that
in light of the fact the PPR had not been updated, it was also not unreasonable
for the third level grievance decision-maker to find that the CSC could not
verify whether the items were in the appellant’s cell at the time he was
segregated. Moreover, the fact that the appellant had receipts for these items
was found by the applications judge not to be helpful, since they did not prove
that the items purchased had remained in the appellant’s possession.
[18]
In
conclusion, the applications judge was satisfied that the third level grievance
decision was reasonable, and consequently dismissed the judicial review
application without costs.
Analysis
Standard of Review
[19]
In
appeal of a judgment concerning a judicial review application, the role of this
Court is to determine whether the applications judge identified and applied the
correct standard of review, and in the event she has not, to assess the
impugned decision in light of the correct standard of review; the applications
judge’s selection of the appropriate standard of review is a question of law
subject to review on appeal on the standard of correctness:: Dr. Q. v.
College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003]
1 S.C.R. 226 at paragraph 43; Mugesera v. Canada (Minister of Citizenship
and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 at paragraph 35; Prairie
Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), 2006 FCA
31, [2006] 3 F.C.R. 610 at paragraphs 13-14.
[20]
In
assessing the standard of review, the applications judge adopted the analysis in
Johnson v. Canada, 2008 FC 1357 at paragraphs 35 to 39, in which Mosley
J. concluded that for inmate grievance decisions, a standard of correctness
applied to questions of law, including procedural fairness, and a standard of
reasonableness applied to findings of fact and of mixed law and fact. The
applications judge thus applied a standard of correctness to the issue of
procedural fairness she had identified, and a standard of reasonableness to
whether the third level grievance decision properly compensated for the
destruction or loss of items, presumably on the assumption that only questions
of fact or of mixed law and fact were involved.
[21]
However,
as further discussed below, this judicial review also raises issues of law, notably
the interpretation of section 84 of the Corrections and Conditional Release
Regulations, SOR/92-620, of section 3 of the Crown Liability and
Proceedings Act, R.S.C. 1985, c. C-50, and of various Commissioner’s
Directives, which are subject to review on a standard of correctness: Sweet
v. Canada (Attorney General), 2005 FCA 51, 332 N.R. 87 at paragraph 15.
Though that case concerned the interpretation of certain provisions of the Corrections
and Conditional Release Act and of its regulations, a similar standard of
correctness applies to the proper interpretation of the Commissioner’s
Directives which are adopted pursuant to sections 97 and 98 of that act and
which are therefore “regulations” under the meaning of subsection 2(1) of the Interpretation
Act, R.S.C. 1985, c. I-21: Canada (Attorney General) v. Mercier,
2010 FCA 167, 320 D.L.R. (4th) 429 at paragraph 58.
Applicable Legal
Principles
[22]
The
general principle concerning the loss of inmate effects is set out in section
84 of the Corrections and Conditional Release Regulations:
|
84. The institutional head shall take all
reasonable steps to ensure that the effects of an inmate that are permitted
to be taken into and kept in the penitentiary are protected from loss or
damage.
|
84. Le
directeur du pénitencier doit prendre toutes les mesures utiles pour garantir
que les effets personnels que le détenu est autorisé à apporter et à garder
dans le pénitencier soient protégés contre la perte et les dommages.
|
[23]
Section
38 of CD-234 concerning claims against the Crown provides that an inmate should
not be compensated for the loss of property which is not listed on his property
record. However, this section adds that compensation may nevertheless be
provided, even for property that is not listed on a property record, if the
inmate can demonstrate that efforts were made to record the property:
|
38.
An offender should not be compensated for property that is not listed
on his or her property record, unless:
a.
the property was not required to be recorded on a property record in
accordance with CD 090, "Personal Property of Inmates"; or
b.
the offender can demonstrate that efforts were made to have the item
recorded.
(Emphasis added)
|
38. Un délinquant ne devrait pas recevoir de
dédommagement pour des effets personnels qui ne figurent pas dans son relevé
des effets personnels, sauf :
a. s’il n’était pas tenu de les consigner dans le relevé
des effets personnels selon la DC 090, « Effets personnels des détenus »;
b. si le délinquant peut démontrer qu’il s’est efforcé
d'y faire consigner les articles.
(Je souligne)
|
[24]
Items
purchased by an inmate after his admission into an institution must first
transit through CSC staff, who are responsible for assigning a value to each
item so purchased and to register the value of each item on a PPR pursuant to sections
28 and 30 of CD-090 and sections 40 and 44 of the more recent CD-566-12
concerning the personal property of inmates. The “efforts” required under
section 38 of CD-234, reproduced above, can thus be deemed to have been demonstrated
by the inmate who follows the purchasing policies of the CDC in order to
acquire an item.
[25]
Moreover,
the
Claims Administration Instructions – Guidelines 234-1 issued under the
authority of the Assistant Commissioner, Corporate Services of the CSC specifically
provides in section 26, that a claim is normally accepted when the
circumstances that gave rise to the claim indicate that the requirements of
section 84 of the Corrections and Conditional Release Regulations have
not been met, or where the CSC is liable for the loss by reason of section 3 of
the Crown Liability and Proceedings Act. The directions concerning the
conduct of investigations on claims and which are set out in section 8 of Annex
B of these Guidelines 234-1 allow for an inmate to substantiate a claim not
only by means of his PPR, but also by means of a CPR, by means of purchase
vouchers, and by means of CSC reports. This approach would be meaningless if
the sole accepted evidence for allowing a claim was the PPR.
Application to the circumstances of the
appellant
[26]
It
is not disputed that certain items listed on the CPR prepared after the
appellant’s segregation at Matsqui never reached Kent. It is also not disputed that these items
lawfully entered the Matsqui Institution through purchases by the appellant,
and consequently CSC does not assert that any of these items are contraband.
[27]
It
is nevertheless argued by CSC that even if these items were lawfully purchased
and lawfully entered the institution, and even if they were in fact found in
the appellant’s cell and subsequently lost while under the care and control of
CSC, no compensation should be paid because the appellant was remiss in not
updating his PPR. This approach cannot be right and should not be endorsed.
[28]
As
already noted, section 38 of CD-234 concerning claims against the Crown
states that compensation may be provided even for property that is not listed
on a PPR if the inmate can demonstrate that efforts were made to have the
property recorded. Moreover, both CD-090 and CD-566-12 provide for an inmate
purchase system which requires CSC to approve all items entering the
institution which are purchased by an inmate and to register such items on a
PPR.
[29]
In
this matter, I subscribe to the reasons of Assistant Deputy Commissioner
Bergen, reproduced above, which granted compensation for all missing items
which had been listed on the CPR even though they may not have been listed on
the appellant’s PPR. As Assistant Deputy Commissioner Bergen noted, while the
institutional review focused on the appellant’s responsibility with respect to
his PPR, it was also important for the institution to take some responsibility
in this case with respect to the recording of personal property. Although some
of the items listed on the CPR are not listed on the PPR, the appellant
provided copies of receipts of purchase, and institutional staff at Matsqui
allowed him to have items for cell use without recording these items on a PPR
as required under Commissioner’s Directives.
[30]
Pursuant
to section 84 of the Corrections and Conditional Release Regulations,
the institutional head must take reasonable steps to ensure that the effects of
an inmate that are permitted to be taken into and kept in a penitentiary are
protected from loss. A claim for loss items should therefore be accepted where
it appears that the requirements of section 84 of the regulations have not been
met or where the CSC is liable for the loss under section 3 of the Crown
Liability and Proceedings Act. Here, the items claimed were listed on the
CPR and the appellant could prove ownership by means of the receipts in his
possession. Since the items were last seen in the possession and under the
control of the CSC, the failure to deliver the items to the appellant at Kent
was a breach of section 84 of the regulations and would create liability under
section 3 of the Crown Liability and Proceedings Act since the CSC acted
as a bailee of the appellant’s property. To the extent the Commissioner’s
directives are inconsistent with the regulations or the Crown Liability and
Proceedings Act, the third-level grievance decision-maker erred in law in
preferring form (the PPR requirement) over substance.
[31]
Consequently,
the third level grievance decision was in error in overturning Assistant Deputy
Commissioner Bergen’s findings that compensation was owed to the appellant for
those items which were recorded on the CPR but which never reached Kent.
[32]
The
third level grievance decision also rejected the claim for one of the items
(“Book with Compact Disk-Speed Mechanics”) even though it was listed both on
the appellant’s PPR and on the CPR. This decision was based on the finding that
the item was also listed on the appellant’s new, more recent PPR, leading to
the conclusion that the item had consequently been found. As the appellant
rightly argues, this conclusion was reached without allowing the appellant an
opportunity to explain why the new PPR listed the item. The appellant contends
that he purchased a new copy of this item after the initial item was loss in
the transfer to Kent, and had he been given an opportunity to
address the issue, he would have submitted the voucher proving his purchase of
a new copy of the claimed item.
[33]
Section
44 of CD-234 concerning claims against the Crown specifically provides that
decision-makers in the claims process “must ensure that the information upon
which they act is reliable and persuasive” and must “decide whether or not it
would be fair to allow the information to affect his or her decision.” In this
case, neither the initial investigation nor the second level grievance decision
by Assistant Deputy Commissioner Bergen raised the issue of the new PPR. In
fact Assistant Deputy Commissioner Bergen had allowed the claim for the item at
issue (“Book with Compact Disk-Speed Mechanics”). In light of this, it was
incumbent on the third level grievance decision-maker, pursuant to section 44
of CD-234, to investigate the new PPR listing prior to reaching the finding
that the item had resurfaced.
[34]
The third level grievance
decision however reasonably concluded that the appellant was entitled to
compensation for the loss of his printer even if that item was not recorded on
the CPR. Since the printer was found to be in the appellant’s cell when he was
segregated, it was reasonable to find that the printer had been lost even if it
was not listed on the CPR. The compensation for that printer was correctly
determined to be the value of the printer as indicated in the appellant’s PPR.
The appellant’s claim that the value of this printer was incorrectly stated on
his PPR cannot be accepted since the appellant confirmed this value by signing
his PPR.
[35]
The
other items claimed by the appellant were not listed on his PPR and were not
listed on the CPR. For many of these items, no receipts were submitted in support
of their purchase. In such circumstances, as found by the applications judge, the
decision to deny compensation for these items was reasonable.
[36]
The
net result is that the appellant should have been granted compensation for the
claims which were upheld by Assistant Deputy Commissioner Bergen and for the
amounts she determined, in addition to the compensation for the appellant’s
printer in the amount recognized by the third level grievance decision. The
only exception concerns the item “Book with Compact Disk-Speed Mechanics” which
will be compensated only insofar as the appellant can demonstrate to CSC that
the item listed in his new PPR was purchased after the similar item was listed
on the CPR, thus establishing that the items are not the same.
Costs
[37]
The
appellant is seeking costs. The rule against awarding costs to self-represented
litigants has been somewhat alleviated in recent years: Sherman v. Canada (Minister of National
Revenue),
2003 FCA 202, [2003] 4 F.C. 865 at paragraphs 46 to 52; Thibodeau v. Air
Canada, 2007 FCA 115, 375 N.R. 195 at paragraph 24. This new approach to
costs for self-represented litigants seeks to provide a moderate allowance for
the time and effort devoted to preparing and presenting a case insofar as the
successful self-represented litigant incurred an opportunity cost by foregoing
remunerative activity.
[38]
In
light of the circumstances of the appellant, who has been incarcerated in a
penitentiary throughout these proceedings, I cannot conclude that he has
incurred any opportunity cost by foregoing remunerative activity in order to
prepare and present his case. Consequently, I would not exercise the discretion
of this Court to award costs for fees. However, the appellant should be
reimbursed by the respondent for his disbursements in this Court and in the
Federal Court.
Disposition
[39]
I
would consequently grant this appeal, set aside the applications judge’s
decision, allow the application for judicial review, set aside the third level
grievance decision, and return the matter to the Commissioner for Corrections for
re-determination with instructions to compensate the appellant in accordance
with these reasons. I would also order that the respondent reimburse the
appellant his disbursements in this Court and in the Federal Court.
"Robert
M. Mainville"
“I
agree
M.Nadon J.A.”
“I
agree
J.D. Denis Pelletier”
Email this Content