Date: 20020528
Docket: A-819-00
Neutral Citation: 2002 FCA 220
CORAM: RICHARD C.J.
NADON J.A.
PELLETIER J.A.
BETWEEN:
THE QUEEN
Appellant
and
MICHAEL BLASS
Respondent
Hearing held at Ottawa, Ontario, on May 14, 2002.
Judgment delivered at Ottawa, Ontario, on May 28, 2002.
REASONS FOR JUDGMENT : PELLETIER J.A.
CONCURRED IN BY: RICHARD C.J.
NADON J.A.
Date: 20020528
Docket: A-819-00
Neutral Citation: 2002 FCA 220
CORAM: RICHARD C.J.
NADON J.A.
PELLETIER J.A.
BETWEEN:
THE QUEEN
Appellant
and
MICHAEL BLASS
Respondent
REASONS FOR JUDGMENT
PELLETIER J.A.
[1] On April 22, 1999, an incident occurred at the Port-Cartier Institution that caused significant equipment damage and jeopardized the security of the institution. The prison authorities received information that the respondent, Michael Blass, was one of the instigators of the disruption. He was placed in administrative segregation for nineteen days on the ground that his presence in the population would interfere with the ongoing investigation. This appeal from the decision allowing his application for judicial review of the decision to place him in administrative segregation raises the following two issues:
-did the prison authorities have reasonable grounds for placing the respondent in administrative segregation under paragraph 31(3)(b) of the Corrections and Conditional Release Act, S.C.1992, c. 20?
-did the prison authorities breach the rules of procedural fairness by failing to give the respondent sufficient information to enable him to effectively challenge the decision to place him in administrative segregation?
[2] When the respondent was placed in administrative segregation, he was informed of the reasons that justified placing him there in the following terms:
[TRANSLATION] You are being placed in administrative segregation in accordance with paragraph 31(3)(b) of the Corrections and Conditional Release Act because there are reasonable grounds to believe "that the continued presence of the inmate [you] in the general inmate population would interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of a serious disciplinary offence".
Justification:
Pursuant to the events in the late evening of 99-04-22, during which significant damage to equipment occurred and the security of the institution was jeopardized. The information collected identifies you as one of the instigators of these events.
To shed light on these events and to avoid interfering with the ongoing investigation, the only option at present is to place you in administrative segregation.
[3] As required by subsection 33(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (Act), there were two reviews of the placement of the respondent in administrative segregation. Following the first review on April 30, 1999, the respondent was informed that:
[TRANSLATION] The investigation that is the justification for placing you in administrative segregation is still ongoing, and returning you to the general population could interfere with that investigation.
[4] The respondent denied any involvement in the incident of April 22, 1999, and the staff member who reviewed the placement of the respondent in administrative segregation took note of that position:
[TRANSLATION] Mr. Blass repeated several times that he had not done anything or provoked anything, directly or indirectly, during the events of 1999-04-22 (mass movement). Instead, he said that someone somewhere had made an error.
[5] At the review on May 11, 1999, the author of the report stated:
[TRANSLATION] The PSO [Preventive Security Officer] has informed us that the investigation is concluded and its findings produced nothing new to us.
[6] The overall assessment and recommendation by the staff member who reviewed the decision reads as follows:
[TRANSLATION] Mr. Blass has developed an image among his peers. That is why he should be aware of the consequences of some of the things he says to them. The subject can no longer interfere with the investigation, since it is now concluded. We recommend, therefore, that Mr. Blass be returned to the general inmate population.
[7] The decision of the institutional head gave effect to that recommendation as
follows:
[TRANSLATION] The investigation has been concluded and the findings do not suggest anything different from the information we had already received. The reason for the segregation has become moot.
[8] The respondent returned to the general inmate population and was not charged with any criminal or disciplinary offence.
[9] The respondent filed a grievance regarding his placement in segregation. Given that the decision he was grieving had been made by the institutional head, and that the institutional head is the first level of the grievance procedure, the grievance proceeded directly to the second level, regional management, where it was rejected on the following grounds:
[TRANSLATION] In light of the documents filed in this case, you were placed in segregation on April 23, 1999, because you were identified as one of the instigators of the events that occurred during the evening of April 22. It was determined to be necessary to place you in segregation so as not to interfere with the ongoing investigation. It was the only possible alternative in the circumstances. Therefore, we believe that there were justified and legitimate grounds for placing you in segregation, and that there is no basis for your allegation that you were placed in segregation under false pretences.
. . .
Having regard to all of the foregoing, your grievance is rejected.
[10] The respondent submitted his grievance to the third level, the Commissioner, where it was again rejected. The Commissioner's decision reads as follows:
[TRANSLATION] Your grievance, V3000A003008, which was received at National Headquarters on November 19, 1999, has been reviewed at the third level.
After examining the documents in your file, consulting with the authorities at the Port-Cartier Institution and reviewing the comments you made when you presented your grievance, we are satisfied with the response given to you by the preceding level.
We conclude, therefore, that your placement in segregation for investigation purposes was justified. We also conclude that your confinement in segregation until the end of the investigation, during the period from April 24 to May 11, 1999, was appropriate and that the Port-Cartier authorities were justified in cancelling your private family visit (PFV), which had been scheduled for April 26, 1999, until the conclusion of the administrative investigation. You will appreciate that in order to shed light on these events and not to impede the ongoing investigation, the only alternative was to place you in administrative segregation.
In the circumstances, your grievance is rejected.
[11] The respondent applied for judicial review of that decision by the Commissioner. The Trial Division judge allowed the respondent's application. After outlining the facts and the relevant provisions of the Act, he defined the two issues as follows:
The applicant raises two issues. He says the authorities in the Port-Cartier Institution had no reasonable grounds to believe that his continued presence among the other inmates might impede the progress of the investigation. He adds that he was given no information by the penitentiary authorities that would have enabled him to challenge their decision to place him in segregation.
[12] The judge did not deal with the first issue. The issue of procedural fairness was addressed in the context of the second issue.
[13] Relying on Demaria v. Regional Classification Board, [1987] 1 F.C. 74, the judge noted that procedural fairness requires that an inmate be sufficiently informed of the allegations against him to be able to reply to them. He cited the provisions of the Act and the Regulations that are the basis of this right to procedural fairness. He stated that the respondent was not given any information indicating why he had been identified as one of the instigators of the events of April 22, 1999. He considered this lack of information to be significant because, in his opinion, those allegations were the reason why the respondent was placed in administrative segregation. The judge concluded by finding "that the prison authorities in Port-Cartier failed to adhere to the applicable statutory or regulatory provisions and breached the fairness principle in relation to the applicant by failing to give him any relevant information concerning the allegations behind his administrative segregation." It is clear from the judge's reasons that the "allegations behind his administrative segregation" to which he referred are the allegations that the respondent was one of the instigators of the disturbance on April 22, 1999.
[14] Her Majesty the Queen is appealing the decision of the Trial Division judge. She contends that the judge erred in finding that the respondent was placed in administrative segregation because he was suspected of being one of the instigators of the events of April 22, 1999. She adds that the judge erred in holding that the prison authorities had to provide the respondent with more details about the information in their possession relating to his involvement in the mass disturbance.
[15] Section 31 of the Act, which deals with administrative segregation, reads as follows:
| 31. (1) The purpose of administrative segregation is to keep an inmate from associating with the general inmate population.
(2) Where an inmate is in administrative segregation in a penitentiary, the Service shall endeavour to return the inmate to the general inmate population, either of that penitentiary or of another penitentiary, at the earliest appropriate time.
(3) The institutional head may order that an inmate be confined in administrative segregation if the institutional head believes on reasonable grounds
(a) that
(i) 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
(ii) the continued presence of the inmate in the general inmate population would jeopardize the security of the penitentiary or the safety of any person,
(b) that the continued presence of the inmate in the general inmate population would interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of a serious disciplinary offence, or
(c) that the continued presence of the inmate in the general inmate population would jeopardize the inmate's own safety,
and the institutional head is satisfied that there is no reasonable alternative to administrative segregation.
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31. (1) L'administrative segregation a pour but d'empêcher un détenu d'entretenir des rapports avec l'ensemble des autres détenus.
(2) Le détenu en administrative segregation doit être replacé le plus tôt possible parmi les autres détenus du pénitencier où il est incarcéré ou d'un autre pénitencier.
(3) Le directeur du pénitencier peut, s'il est convaincu qu'il n'existe aucune autre solution valable, ordonner l'administrative segregation d'un détenu lorsqu'il a des motifs raisonnables de croire, selon le cas_:
a) que celui-ci a agi, tenté d'agir ou a l'intention d'agir d'une manière compromettant la sécurité d'une personne ou du pénitencier et que son maintien parmi les autres détenus mettrait en danger cette sécurité;
b) que son maintien parmi les autres détenus peut nuire au déroulement d'une enquête pouvant mener à une accusation soit d'infraction criminelle soit d'infraction disciplinaire grave visée au paragraphe 41(2);
c) que le maintien du détenu au sein de l'ensemble des détenus mettrait en danger sa sécurité.
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[16] It is clear from section 31 of the Act that the institutional head can only place an inmate in administrative segregation on the grounds specified in subsection 3 of that section. In this case, the institutional head cited the fear that the respondent would interfere with an ongoing investigation that could lead to charges being laid. To comply with the requirements of procedural fairness, the institutional head could not simply cite the provisions of the Act. He had to disclose to the inmate the facts that justified citing those grounds. The reason why the institutional head informed the respondent that he had information that the respondent was one of the instigators of the incident of April 22, 1999, was to comply with that obligation. In communicating this information to him, the institutional head was not accusing the respondent of being an instigator of the disturbance. He was merely telling him the facts on which he based his belief that the respondent's presence in the general inmate population would interfere with the ongoing investigation.
[17] It is clear from the judge's reasons that he was satisfied that the respondent was placed in administrative segregation because of the allegations implicating him in the events of April 22, 1999. However, absent any evidence that the grounds stated by management at the time the respondent was placed in administrative segregation and at each review of the placement were not the real grounds, the judge had to accept them. There is no evidence in the record from which he could have found that the grounds relied on by the prison authorities were fictitious. Therefore, the starting point for his analysis had to be that the prison authorities had placed the respondent in administrative segregation because they feared that his presence in the general inmate population would interfere with the ongoing investigation. The questions that the judge had to answer in reviewing the decision to place the respondent in administrative segregation arose out of those grounds.
[18] The first question with was whether the prison authorities had reasonable grounds to believe that the respondent would interfere with the ongoing investigation. The judge did not answer that question. The second question, which raised the issue of compliance with the requirements of procedural fairness, was whether the respondent had enough information to challenge the conclusion by the prison authorities that he would interfere with the ongoing investigation. The judge replaced that question with a different one: whether the information given to the respondent concerning his role as instigator was adequate.
[19] The judge was misled by the confounding of the cause of the respondent being placed in segregation with the occasion for the placement. The information received about the respondent's role in what led to the disturbance was not the cause of the respondent being placed in segregation. As the prison authorities repeatedly said, the cause was the fear that he would interfere with their investigation. According to the justification relied on in the notice given to the respondent when he was initially placed in segregation, that fear arose out of the fact that he had been identified as one of the instigators. It was the fact that this fear was prompted that made that information the occasion for his placement. What procedural fairness requires is that the inmate be in a position to challenge the allegation against him in a meaningful way. In this case, the allegation against the respondent was not that he was an instigator. The allegation against him was that his presence would interfere with an investigation. Having more details about the information indicating that he was an instigator was not going to put the respondent in a better position to challenge the validity of the fear that he would interfere with the ongoing investigation.
[20] Demaria, on which the judge relied, was not a case dealing with administrative segregation. The legal principle set out in that case was argued in a challenge to the involuntary transfer of an inmate from one institution to the other. That was also the case in Gallant v. Canada, [1989] 3 F.C. 329 where the issue was the transfer of an inmate from Kent Institution to the Prince Albert penitentiary. Those cases did not deal with the requirements of procedural fairness with respect to administrative segregation during an investigation. On the other hand, as Pratte and Marceau JJ.A. noted in Gallant, the requirements of procedural fairness vary from case to case. Marceau J.A. pointed out that it is wrong to think that all decisions made in penitentiaries demand the same type of procedural fairness. Certain decisions made for the sake of the proper administration of the institution do not require the same degree of disclosure as decisions of a disciplinary nature. The decision to place the respondent in administrative segregation to ensure that he would not interfere with an ongoing investigation is clearly a decision made for the proper administration of the institution.
[21] With respect, I find that the judge made an error that justifies intervention by this court when he failed to address the issue of the reasonableness of the fear that the respondent would interfere with the ongoing investigation, and when he addressed the issue of the adequacy of the information given to the respondent concerning the allegation that he was an instigator of the disturbance at the Port-Cartier Institution. Because the evidence filed by the parties is in affidavit form and there is no issue as to credibility, this court is in a position to dispose of the issues and to make the order that the judge should have made.
[22] I am of the opinion that the institutional head had reasonable grounds to believe that the respondent's presence in the general inmate population could interfere with the investigation, the purpose of which was to identify the instigator or instigators of the disturbance on April 22, 1999. It was not unreasonable to think that it would be in the respondent's interest to influence other people's testimony, by whatever means were available to him, in order to avoid being charged as an instigator, whether the information about him was true or false. In either case, it would be in his interest to avoid facing such charges.
[23] With respect to the issue of procedural fairness, the penitentiary authorities informed the respondent that they believed his presence would interfere with the ongoing investigation and also told him the facts on which they based that conclusion. It was not necessary to give him more details about this information because, at that stage, the relevant issue was not whether he was an instigator or not, but whether he might interfere with the investigation. Once the respondent knew that there was information implicating him, and the reason that he was being confined was the fear that he might interfere with the investigation, he knew everything that there was to know. He could have tried to prove that the administration's fear was unfounded or that there were other ways to avoid the possibility that he would interfere with the investigation. There was no breach of procedural fairness.
[24] For these reasons, the appeal should be allowed, the order of the Trial Division set aside and the application for judicial review dismissed.
"J.D. Denis Pelletier"
J.A.
"I concur,
J. Richard C.J."
"I concur,
M. Nadon J.A."
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
APPEAL DIVISION
SOLICITORS OF RECORD
APPEAL FROM THE JUDGMENT OF THE TRIAL DIVISION DATED NOVEMBER 30, 2000, IN DOCKET T-151-00
DOCKET: A-819-00
STYLE OF CAUSE:HER MAJESTY THE QUEEN v. MICHAEL BLASS
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 14, 2002
REASONS FOR ORDER BY: Pelletier J.A.
DATE OF REASONS: May 28, 2002
APPEARANCES:
Sébastien Gagné FOR THE APPELLANT
Daniel Royer FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPELLANT
Deputy Attorney General of Canada
Ottawa, Ontario
Labelle, Boudreault, Côté et associés FOR THE RESPONDENT
Montréal, Quebec
Date: 20020528
Docket: A-819-00
Ottawa, Ontario, May 28, 2002
CORAM: RICHARD C.J.
NADON J.A.
PELLETIER J.A.
BETWEEN:
THE QUEEN
Appellant
and
MICHAEL BLASS
Respondent
JUDGMENT
The appeal is allowed, the order of the Trial Division is set aside and the application for judicial review is dismissed.
"J. Richard"
Chief Justice
Certified true translation
Mary Jo Egan, LLB
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