Date: 20110302
Docket: A-44-09
Citation: 2011 FCA 76
CORAM: DAWSON J.A.
LAYDEN-STEVENSON
J.A.
STRATAS
J.A.
BETWEEN:
WILLIAM A. JOHNSON
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
LAYDEN-STEVENSON J.A.
[1]
The
appellant (Mr. Johnson) is an inmate at Warkworth Institution (Warkworth). He
filed four applications for judicial review with respect to related third-level
grievance decisions of Correctional Service Canada (CSC). Justice Mosley, a
judge of the Federal Court (the judge), heard the applications together and
dismissed each of them: 2008 FC 1357. On this appeal, Mr. Johnson appeals from
the Federal Court judgment in relation to three of the four applications. The
Attorney General of Canada (the Crown) maintains that the appeal should be dismissed.
I agree with the Crown regarding two of the applications, but disagree with
respect to one of them.
Background
[2]
Each
of Mr. Johnson’s grievances was multi-layered. However, the errors he alleges
on the part of the judge in relation to the applications in issue are concise
and narrow. To provide context, a brief summary of the factual background is
required. However, only those facts relevant to the issues on appeal will be
reviewed.
[3]
Mr.
Johnson has been at Warkworth since November, 1999. Within the institution, he
works as a machine operator and is proficient in building and repairing
electrical devices. On October 5, 2005, while Mr. Johnson was working, two CSC
officers searched his cell. The officers concluded that a number of electrical
devices and articles in the cell were likely unauthorized. They seized the
items. Apparently, Mr. Johnson had previously been permitted to have such
articles in his cell. Mr. Johnson asked one of the officers (also a member of
his case management team) to return the items or to explain the seizure.
According to Mr. Johnson, the officer dismissed his request and uttered a
sexually inappropriate comment. Although Mr. Johnson asked his parole officer
to arrange a meeting with the correctional supervisor to discuss the situation,
he claims he was never afforded an opportunity to resolve the matter
informally.
[4]
Mr.
Johnson was charged pursuant to paragraph 40(j) of the Corrections and
Conditional Release Act, S.C. 1992, c. 20 (the Act). That provision creates
a disciplinary offence where, without prior authorization, an inmate is in
possession of an item that is not authorized by a Commissioner’s Directive or
by a written order of the institutional head. The Chairperson of the Minor
Disciplinary Offence Board (the board) upheld the charge and imposed a $15.00
fine. Mr. Johnson grieved that determination primarily on the basis that there
had been no attempt at informal resolution. When his grievance was denied at
the third-level, he initiated an application for judicial review. I will refer
to it as the disciplinary offence application.
[5]
CSC
officials later destroyed the seized items. Mr. Johnson filed an Inmate Request
for Lost or Damaged Effects seeking compensation. CSC offered $65.00
compensation for some of the items and replacement of the others. Mr. Johnson
found the offer insufficient and grieved, unsuccessfully. Again, he commenced
an application for judicial review. I will refer to it as the destruction of
property application.
[6]
After
the search and seizure of the items from his cell, Mr. Johnson was advised that
he had exceeded his personal effects cell limit of $1500.00 and was asked to
return an electric typewriter. Claiming that the typewriter was an approved
educational item that qualified as an exemption from the $1500.00 personal
effects cell limit, Mr. Johnson grieved. During the course of the grievance
proceedings, the typewriter was seized as contraband and another grievance
requesting the return of the typewriter (on the basis that it was an
educational item) was launched. When he was unsuccessful, Mr. Johnson filed an
application for judicial review. I will refer to it as the typewriter
application.
The Judge’s Decision
[7]
The
judge concluded that the issues raised questions of mixed fact and law,
reviewable on a standard of reasonableness. He therefore considered whether the
impugned decisions “fall within a range of possible outcomes which are defensible
in light of the facts and the law” in accordance with the teaching in Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190.
[8]
In
relation to the disciplinary offence application, the judge made a number of
factual determinations. He found that informal resolution was not possible at
the time of the search. The evidence regarding subsequent attempts at informal
resolution was contradictory. The officers did not verify Mr. Johnson’s Inmate
Personal Property Record and did not take all reasonable steps to resolve the
matter informally before issuing a disciplinary charge. Nonetheless, Mr.
Johnson implicitly had admitted he had been in possession of some unauthorized
items that were the subject of the seizure. The judge concluded that the
third-level grievance decision upholding the charge and the fine was not
unreasonable.
[9]
Regarding
the destruction of property application, the judge found the CSC offer of
$65.00 monetary compensation for some of the items, coupled with the offer to
replace the remainder with identical items, was not unreasonable. Further, the
offer was in accordance with CSC policy.
[10]
As
for the typewriter application, the judge determined that Mr. Johnson was
permitted to purchase a typewriter because his personal computer had been
seized. However, the typewriter did not qualify as an educational item under
CSC policy and Mr. Johnson failed to establish that CSC had agreed to exempt
the typewriter from the personal effects cell limit as an educational item.
Although the judge criticized the CSC “contraband” classification (finding “unauthorized
item” to be appropriate) regarding the typewriter, he nonetheless concluded
that the denial of the grievance was reasonable.
The Standard of Review
[11]
The
role of an appellate court, on an appeal from a Federal Court judicial review
application, is to determine whether the reviewing court identified the
applicable standard of review and applied it correctly: Dr. Q. v. College of
Physicians and Surgeons of British Columbia, [2003]
1 S.C.R. 226 at para. 43; Telfer v.
Canada (Revenue Agency), 2009 FCA 23, [2009] D.T.C. 5046 at paras.
18-19. No deference is owing on matters of procedural fairness: Canada (Citizenship
and Immigration) v. Khosa, [2009] 1 S.C.R. 339 at para. 43.
Preliminary Matter
[12]
Mr.
Johnson raises a concern that allegedly transcends all of the applications
before this Court. He characterizes this concern as “improper considerations”
and he lists a number of the judge’s comments which, in Mr. Johnson’s view, were
not supported by the evidence.
[13]
The
basis of the concern arises from the judge’s ruling that the tribunal record
had not been properly produced to Mr. Johnson or properly put before the court
as an exhibit to a supporting affidavit. As a result, on each application, the
judge struck the tribunal material included in the Crown’s submissions.
[14]
Mr.
Johnson is correct that certain factual statements in the judge’s reasons for
judgment appear to originate from the material that was struck from the record.
The reference to a bomb threat, which ostensibly occurred some time before the
search of Mr. Johnson’s cell, is not contained in the record. Additionally, the
quotation that appears at paragraph 60 of the judge’s reasons (the statement of
the observing officer) had been struck from the record. Consequently, neither
of these references should have found their way into the judge’s reasons.
[15]
However,
with the exception of the reference to the bomb threat and the second last
sentence of the quotation – both of which the Crown conceded did not form part
of the record –the various impugned statements are supported by the material
that Mr. Johnson included in his record (appeal book, vol. II, p. 192, vol.
III, pp. 326, 332, 341, 343, 370, 374, 407, 411).
[16]
In
any event, the statements to which Mr. Johnson takes exception merely provide
context to the judge’s reasons and do not materially affect his judgment. In
short, they are irrelevant to the issues on appeal. Consequently, they do not
affect this Court’s review of the applications because they do not impact on
the judge’s identification or application of the relevant standards of review.
The Statutory Provisions
[17]
The
text of the statutory provisions referred to in these reasons is attached as
Schedule “A”.
The Disciplinary Offence
Application
[18]
The
judge concluded that the dismissal of Mr. Johnson’s grievance with respect to
the disciplinary offence was reasonable. As noted earlier, Mr. Johnson
successfully argued that CSC failed to take reasonable steps to informally
resolve his purported possession of unauthorized items in accordance with
subsection 41(1) of the Act, which requires CSC staff to “take all reasonable
steps to resolve [a disciplinary offence issue] informally, where possible.”
Mr. Johnson does not take issue with that finding. Rather, he argues that the
failure by CSC to adhere to subsection 41(1) was a condition precedent to the
issuance of a disciplinary charge against him. Accordingly, he says the judge
erred in upholding the resulting disciplinary charge.
[19]
The
disciplinary charge was issued on October 7, 2005 and a hearing was scheduled
before the board on October 17, 2005. When Mr. Johnson raised his subsection
41(1) concerns, the board adjourned the hearing to consider the informal
resolution attempts required by the Act. The disciplinary hearing was resumed
on October 24, 2005 and the board affirmed the charge against Mr. Johnson.
[20]
In
Laplante v. Canada (A.G.), [2003] 4 F.C. 1118 at paras. 12, 13 (C.A.), this Court
held that subsection 41(1) does not create a condition precedent to the board’s
jurisdiction to affirm a disciplinary charge. Rather, it grants to the board
the power to take steps to satisfy itself that an attempt at informal
resolution has been made, following which the board may proceed with its
hearing. In this case, the board’s decision is not contained in the record.
However, the fact that the board may have concluded Mr. Johnson’s subsection
41(1) rights had been respected, while the judge concluded otherwise, does not
mean the board acted without jurisdiction. Indeed, the judge specifically noted
that subsection 41(2) of the Act permits CSC to issue a disciplinary charge
against an inmate where an informal resolution is not achieved, depending on
the seriousness of the alleged conduct and any aggravating or mitigating factors.
In my view, subsection 41(1) does not constitute an absolute bar to the
issuance of a disciplinary charge.
[21] Further, the judge interpreted
the record and Mr. Johnson’s statement that “most of his items were
authorized” as an implicit admission that at least some of his possessions were
not authorized. The judge’s interpretation in this respect is supported by the second-level
grievance response, which states: “although the attempt at informal resolution
is not clearly evident, this does not negate the fact that some of the
articles listed on the offence report were in fact unauthorized” (CSC
response to second-level grievance, appeal book, vol. II, p. 192).
[22] In my view, the judge’s inference
was sound. Despite Mr. Johnson’s insistence that he did not admit, at any time,
that he was in possession of unauthorized items, it is clear that he maintained
throughout that many of the unauthorized items were legally purchased
and issued (my emphasis, appeal book, vol. II, p. 184).
[23] I have not overlooked Mr.
Johnson’s forceful oral argument that Commissioner’s Directive 580 permits the
discretionary conferral of a privilege. However, if the conferral of such a
privilege with respect to the possession of what would otherwise be regarded as
unauthorized items exists, it has not been established on this record. Notably,
this submission does not appear in Mr. Johnson’s memorandum of fact and law nor
does the judge refer to it in his reasons. The record shows that the thrust of
Mr. Johnson’s submissions in relation to this application turned on the issue
of informal resolution.
[24] Given this Court’s jurisprudence,
the text of section 41 of the Act and Mr. Johnson’s implicit admission, the
judge did not err in concluding that Mr. Johnson’s concerns were addressed
throughout the CSC grievance process and that the decision with respect to the
disciplinary offence was not unreasonable.
[25] Next, Mr. Johnson argues that his
procedural rights were violated because he was not provided reasonable access to
a recording of his disciplinary hearings. Section 33 of the Corrections and
Conditional Release Regulations, S.O.R./92-620 (the Regulations) requires
CSC to record all disciplinary offence hearings, to retain that record for at
least two years after the decision is rendered and to provide inmates
reasonable access to that recording. The judge considered this submission and
concluded, because Mr. Johnson did not raise this as a concern until the
hearing of the application for judicial review, he had waived any right to
complain of a procedural irregularity or denial of natural justice. The judge’s
statement accords with the jurisprudence of this Court that a party who has
waived a right to procedural fairness cannot subsequently challenge an
administrative decision on the basis of a breach of that waived right: Irving
Shipbuilding Inc. v. Canada (A.G.), [2010] 2 F.C.R. 488 at para. 48
(C.A.), leave to
appeal refused, [2009] 3 S.C.R. vii.
[26] The judge’s reasoning applies to
Mr. Johnson’s failure to request a recording at any time during the grievance
process. However, as I understand his argument on this appeal, Mr. Johnson
claims that the Crown’s failure to produce the recording in the Federal Court
proceeding warrants redress. His request for the recording was made pursuant to
rules 317 and 318 of the Federal Courts Rules, S.O.R./98-106 (the
Rules). Rule 317 provides for the production of “material relevant to an
application that is in the possession of a tribunal.” I emphasize that the
requested material must be relevant to the matter before the Court.
[27] Mr. Johnson contends that it was
not possible for the judge to assess the matter relating to the
application of subsection 41(1) of the Act in the absence of a transcript and
audio recording of the disciplinary hearing. In my view, the judge’s task was
to review the third-level grievance decision. Since Mr. Johnson did not request
the recording during the grievance process, it could not be relevant to the
judge’s judicial review of that process because such review is limited to the
material that was before the grievance board.
The Typewriter
Application
[28] Mr. Johnson’s typewriter was
removed (from his cell) to his storage area within the institution because its
value caused him to be in violation of the total personal effects cell value
limit of $1,500. He grieved on the basis that the typewriter was an educational
item and therefore exempt from the usual cap on an inmate’s personal property.
His characterization of the typewriter was rejected. According to Mr. Johnson,
the judge erred in concluding there was no evidence CSC had agreed the
typewriter was issued as an educational supply.
[29] Mr. Johnson refers to various
statements in his supporting affidavit and claims they demonstrate his typewriter
was purchased from his savings account with CSC approval and it was issued to
him despite that it put him over the $1500 personal property limit.
Unfortunately for Mr. Johnson, the portions of the record upon which he relies
to rebut the judge’s conclusion do not constitute evidence demonstrating the
existence of any agreement between Mr. Johnson and CSC. Although his references
suggest that he may have understood the typewriter was an educational
supply, there is no independent evidence to support his claim.
[30] Although the record supports Mr.
Johnson’s view regarding the types of purchases that can be made from an
inmate’s savings account, Commissioner’s Directive 090 specifically provides
that typewriters are to be included as an inmate’s personal property. Mr.
Johnson failed to establish CSC approved his typewriter as an educational
supply. Consequently, the judge did not err in concluding that the third-level
grievance decision was reasonable.
The Destruction of
Property Application
[31] Mr. Johnson contends that the
judge came to inconsistent determinations in dismissing this application. His
submissions on this point relate to paragraphs 72, 74 and 76 of the judge’s
reasons. Mr. Johnson claims that the judge’s reasons were inconsistent because,
on the one hand, the judge refused to accept the proposition that the
destruction of Mr. Johnson’s property was illegal yet, on the other hand, he
determined that CSC’s actions did not meet the requirements of section 84 of
the Regulations. Although I can understand Mr. Johnson’s point, the judge
clearly explained that he was not required to analyze whether the seizure and
destruction of Mr. Johnson’s property was illegal because the focus of the
application before him was whether the CSC corrective action in response to
that destruction was reasonable. Actually, the judge’s statement accords with
Mr. Johnson’s notice of application in this respect (which is also consistent with
the requested relief on this appeal). The judge’s comments do no more than
provide a contextual backdrop for the judge’s analysis and, in any event, do
not materially affect the disposition of the application.
[32] Mr. Johnson also contends, given
the conclusion in paragraph 76 of the reasons, the judge erred by failing to
allow his application. Although I appreciate how Mr. Johnson may have
misinterpreted the judge’s statements, in my view, paragraph 76 serves to
emphasize deficiencies in the CSC administrative processes and is consistent
with the judge’s comments in paragraph 103 of his reasons. The judge’s
recognition that “Mr. Johnson was entitled to a clear explanation of how the
respondent proposed to provide redress” constitutes a criticism regarding the
fact that Mr. Johnson did not receive such an explanation until after he had made
an inmate request. There is no reviewable error in the judge’s conclusion in
this respect.
[33] However, that does not end the
matter. At paragraph 75 of his reasons, the judge states:
According to paragraph 35 of
Commissioner’s Directive 234, the CSC may, instead of offering monetary
compensation, consider replacing the claimed effect with an identical one.
Where an identical item is not available, an item of equivalent quality may be
offered if the offender agrees, in writing, to accept the substitution in lieu
of money. The full cost to replace the effect(s) should not exceed the monetary
settlement offer that would be made for the item or item(s). In the case at
bar, the respondent has offered Mr. Johnson $65.00 as monetary compensation for
some of the items and has offered to replace the others with identical ones.
This, in my estimation, is not an unreasonable outcome. Mr. Johnson has been
compensated according to policy (CD 234, CD 234-1 and CD 860) and all of the
items that were seized from his cell on October 6th have been
accounted for. No further action is required (my emphasis).
[34] In fact, all of the seized items
were not accounted for. The third-level grievance decision failed to address Mr.
Johnson’s CD Power Director. This item was listed on Mr. Johnson’s Inmate Claim
for Lost or Damaged Effects (appeal book, vol. III, p. 343). The third-level
grievance decision of the Senior Deputy Commissioner, as amended (appeal book,
vol. III, p. 407) refers to the BLKN UPS power cord. There is no reference to
the CD Power Director. The latter item’s significance is crucial because,
without it, the BLKN UPS power cord does not function. As Mr. Johnson put it,
the replaced power cord is “useless”.
[35] At the hearing Crown counsel
suggested the fact the BLKN UPS power cord was replaced “implicitly” means it
was replaced with a functioning power cord. On its face, this supposition appears
reasonable. However, on the record, in view of CSC’s multiple transgressions with
respect to its policies and guidelines, I have little faith that counsel’s
assumption is accurate. Because the third-level grievance did not address all
of the items that had been claimed, it cannot be reasonable. The matter ought
to have been returned to the decision-maker for redetermination. Consequently,
I would allow the appeal in relation to this application.
Reasonable Apprehension
of Bias
[36] Mr. Johnson also contends that
the judge’s errors give rise to a reasonable apprehension of bias against him.
This allegation is said to apply to each of the applications and is based in
whole or on any part of the judge’s alleged errors or the transcript of the
submissions before the judge (which is not contained in the record). The
judge’s reasons are detailed, comprehensive and reflective of the record and
the submissions made to him. There is simply no basis advanced to support the
allegation of bias nor is there anything in the record that would lead a
reasonable bystander, fully informed of the circumstances, to conclude that
there were reasonable grounds to believe the judge was biased.
Conclusion
[37] I would allow the appeal in part. I would
set aside the judgment relating to the destruction of property application,
that is, the decision of the Senior Deputy Commissioner dated February 13,
2006, as amended. Making the decision that ought to have been made, I would
allow the application for judicial review of the decision of the Senior Deputy
Commissioner dated February 13, 2006, as amended, and remit the matter for
reconsideration.
Costs
[38] The $200 costs award made by the judge in
relation to the application for judicial review of the above-noted decision is
set aside. Although Mr. Johnson was only partially successful on his appeal,
his out-of-pocket expenses with respect to the preparation and duplication of
the appeal book and memorandum of fact and law as well as service of the
documents would not have been diminished had he appealed only in relation to
the application in which he ultimately succeeded.
[39] In view of the flagrant disregard CSC displayed
for its policies and guidelines, the delay in the hearing of the appeal
precipitated by the Crown’s failure to serve Mr. Johnson with its memorandum of
fact and law and Mr. Johnson’s success on his appeal of one of the applications,
in the exercise of my discretion, I would award Mr. Johnson all of his
disbursements. The parties should be able to agree on the amount of the
disbursements. Failing agreement, the disbursements should be assessed in
accordance with Tariff B of the Federal Courts Rules.
“Carolyn
Layden-Stevenson”
“I
agree.
Eleanor R. Dawson J.A.”
“I
agree
David Stratas J.A.”
SCHEDULE “A”
to the
Reasons in A-44-09
dated March 2,
2011
|
Corrections and Conditional Release Act, S.C. 1992,
c. 20
40. An inmate commits a disciplinary offence who:
(j) without prior authorization, is in possession of,
or deals in, an item that is not authorized by a Commissioner’s Directive or
by a written order of the institutional head;
…
41. (1) Where a staff member believes on reasonable grounds
that an inmate has committed or is committing a disciplinary offence, the staff
member shall take all reasonable steps to
resolve the matter informally, where possible.
(2) Where an informal resolution is not achieved, the
institutional head may, depending on the seriousness of the alleged conduct
and any aggravating or mitigating factors, issue a charge of a minor
disciplinary offence or a serious disciplinary offence.
Corrections and Conditional
Release Regulations, S.O.R./92-620
33. (1) The Service shall ensure that all
hearings of disciplinary offences are recorded in such a manner as to make a
full review of any hearing possible.
(2) A record of a hearing shall be
retained for a period of at least two years after the decision is rendered.
(3) An inmate shall be given reasonable
access to the record of the inmate's hearing.
…
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.
Federal Courts Rules, S.O.R./98-106
317. (1) A party may request material
relevant to an application that is in the possession of a tribunal whose
order is the subject of the application and not in the possession of the
party by serving on the tribunal and filing a written request, identifying
the material requested.
(2) An applicant may include a request
under subsection (1) in its notice of application.
(3) If an applicant does not include a
request under subsection (1) in its notice of application, the applicant
shall serve the request on the other parties.
318. (1) Within 20 days after service of a
request under rule 317, the tribunal shall transmit
(a) a certified copy of the
requested material to the Registry and to the party making the request; or
(b) where the material cannot be
reproduced, the original material to the Registry.
(2) Where a tribunal or party objects
to a request under rule 317, the tribunal or the party shall inform all
parties and the Administrator, in writing, of the reasons for the objection.
(3) The Court may give directions to
the parties and to a tribunal as to the procedure for making submissions with
respect to an objection under subsection (2).
(4) The Court may, after hearing
submissions with respect to an objection under subsection (2), order that a
certified copy, or the original, of all or part of the material requested be
forwarded to the Registry.
|
Loi sur le système correctionnel
et la mise en liberté sous condition,
L.C. 1992, c. 20
40. Est
coupable d’une infraction disciplinaire le détenu qui:
j) sans
autorisation préalable, a en sa possession un objet en violation des
directives du commissaire ou de l’ordre écrit du directeur du pénitencier ou
en fait le trafic;
[…]
41. (1) L’agent
qui croit, pour des motifs raisonnables, qu’un détenu commet ou a commis une
infraction disciplinaire doit, si les circonstances
le permettent,
prendre toutes les mesures utiles afin de régler la question de façon informelle.
(2) À défaut de
règlement informel, le directeur
peut porter une
accusation d’infraction disciplinaire mineure ou grave, selon la gravité de la
faute et l’existence de circonstances atténuantes ou aggravantes.
Règlement sur le système
correctionnel et la mise en liberté sous condition, D.O.R.S./92-620
33. (1) Le Service
doit veiller à ce que toutes les auditions disciplinaires soient enregistrées
de manière qu'elles puissent faire l'objet d'une révision complète.
(2) Les enregistrements des auditions
disciplinaires doivent être conservés pendant au moins deux ans après la date
de la décision.
(3) Tout détenu doit avoir accès, dans
des limites raisonnables, à l'enregistrement de son audition disciplinaire.
[…]
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.
Règles des Cours fédérales, D.O.R.S./98-106
317. (1) Toute
partie peut demander la transmission des documents ou des éléments matériels
pertinents quant à la demande, qu’elle n’a pas mais qui sont en la possession
de l’office fédéral dont l’ordonnance fait l’objet de la demande, en
signifiant à l’office une requête à cet effet puis en la déposant. La requête
précise les documents ou les éléments matériels demandés.
(2) Un demandeur peut inclure sa
demande de transmission de documents dans son avis de demande.
(3) Si le demandeur n’inclut pas sa
demande de transmission de documents dans son avis de demande, il est tenu de
signifier cette demande aux autres parties.
318. (1) Dans les 20
jours suivant la signification de la demande de transmission visée à la règle
317, l’office fédéral transmet :
a) au greffe
et à la partie qui en a fait la demande une copie certifiée conforme des
documents en cause;
b) au greffe
les documents qui ne se prêtent pas à la reproduction et les éléments
matériels en cause.
(2) Si l’office fédéral ou une partie
s’opposent à la demande de transmission, ils informent par écrit toutes les
parties et l’administrateur des motifs de leur opposition.
(3) La Cour peut donner aux parties et
à l’office fédéral des directives sur la façon de procéder pour présenter des
observations au sujet d’une opposition à la demande de transmission.
(4) La Cour peut, après avoir entendu
les observations sur l’opposition, ordonner qu’une copie certifiée conforme
ou l’original des documents ou que les éléments matériels soient transmis, en
totalité ou en partie, au greffe.
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