Docket: T-136-16
Citation:
2017 FC 25
Ottawa, Ontario, January 06, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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GREGORY
MCMASTER
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA AND THE COMMISSIONER OF CORRECTIONS AND THE WARDEN OF
BEAVER CREEK INSTITUTION MEDIUM
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Respondents
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JUDGMENT AND REASONS
[1]
Gregory McMaster is an inmate at the Beaver
Creek Institution [BCI] in Gravenhurst, Ontario. In December 2014, a number of
incidents occurred at BCI which resulted in Mr. McMaster being removed from his
position as Chair of the Inmate Welfare Committee [IWC] and placed in
segregation. Mr. McMaster filed internal grievances regarding these and other
incidents.
[2]
This is a judicial review of the third level
grievance decision of the Assistant Commissioner, Policy, of Correctional
Service of Canada [CSC] which partially upheld Mr. McMaster’s grievance.
[3]
For the reasons that follow, this judicial
review is dismissed without costs.
I.
Relevant Facts
[4]
On December 17, 2014, Mr. McMaster attended an
Inuit Feast in the gymnasium at BCI. During a head count of inmates, Mr.
McMaster attempted to go to the washroom twice, but was told by the staff to
wait until an accurate head count was completed. Mr. McMaster takes medication
which causes the need for frequent urination. He informed staff of this and
requested permission to use the washroom. His request was refused and he became
agitated. At some point during this incident, one of the Correctional Officers
[COs] made a comment comparing Mr. McMaster’s behaviour to that of the CO’s
five year old son. Mr. McMaster took offense to this remark and stepped towards
the COs in an aggressive manner.
[5]
On December 18, 2014, Mr. McMaster was suspended
from his position as Chair of the IWC. As Chair of the IWC, Mr. McMaster was
responsible for maintaining good communication between inmates and the
administration at BCI. Mr. McMaster was told that he was being removed from
this position because: he insulted another inmate in front of others; he
obscured a security camera at a time when an altercation was likely to occur;
and, he accused BCI staff of planting contraband to generate overtime. Mr.
McMaster says the real reason for his suspension from the IWC was retaliation
for the events in the gymnasium the previous day.
[6]
On December 19, 2014, a memorandum was issued to
CSC staff advising that the IWC position was vacant and that all keys to the
IWC office were to be located.
[7]
On December 20, 2014, concerns were raised that
an inmate had been seen entering the IWC office while Mr. McMaster was present.
CSC staff believed that Mr. McMaster kept an unauthorized key to the IWC
office. A search of his cell was undertaken. The search was stopped when Mr.
McMaster returned the key.
[8]
On December 21, 2014, Mr. McMaster was placed in
segregation, pursuant to paragraph 31(3)(a) of the Corrections and
Conditional Release Act (S.C. 1992, c. 20) [CCRA], when a weapon
(altered potato peeler) was found in his cupboard. He was told that he was
being placed in segregation because of his deteriorating behaviour and the
potential risk to the safety of others at BCI.
[9]
On December 22, 2014, a “Review
of Offender’s Segregated Status, First Working Day Review”, was
conducted, which detailed the incidents leading to the placement of Mr.
McMaster in segregation. It was noted that Mr. McMaster had been
administratively segregated due to an accumulation of information regarding his
recent deteriorating behavior which suggested that he may be a danger to other
inmates, to staff members, or to himself. These incidents included: a
confrontational attitude displayed toward an Officer that resulted in the
suspension of his position as Chair of the IWC; Mr. McMaster was seen on camera
entering an unauthorized area; and, an altered potato peeler was found in Mr. McMaster’s
unit.
[10]
On December 30, 2014 at the Segregation Review
Board [SRB], Mr. McMaster claimed responsibility for the potato peeler and the
SRB recommended his release from segregation. That same day, another
segregation review was administered: “Review of
Offender’s Segregated Status, Fifth Working Day Review”, where the
Institutional Head concurred with the recommendation of the SRB to release Mr.
McMaster from segregation. Mr. McMaster was released from segregation later
that day.
II.
Grievance Decision
[11]
As a result of these incidents, Mr. McMaster
filed internal grievances pursuant to the Commissioner’s Directive 081-
Offender Complaints and Grievances [CD 081]. This judicial review relates to
the grievance decision to the third and final-level grievance which was submitted to the Commissioner. In this
grievance, Mr. Master raised a number of issues including the following:
a)
Access to the washroom;
b)
Allegations of harassment;
c)
Suspension from his position as IWC Chair;
d)
The non-routine search of his cell;
e)
His placement in segregation;
and
f)
The recording of his SRB hearing.
[12]
On December 11,
2015, Larry Motiuk,
Assistant Commissioner [AC], Policy,
issued a decision upholding parts of Mr. McMaster’s
grievance but denying other parts of the grievance.
[13]
With respect to the parts of the grievance
upheld, the AC found that CSC staff should have contacted a manager to
determine if Mr. McMaster could have been permitted to use the washroom during
the Inuit Feast, given his medical condition. The decision also notes that video
footage of the Inuit Feast, which could not be located, should also have been
retained.
[14]
As well, the decision concludes that the
comments made by the CO amounted to harassment.
[15]
While the AC upholds the decision to place Mr.
McMaster in segregation, he does note that CSC staff did not sufficiently
discuss alternatives to segregation with Mr. McMaster.
[16]
The AC found that Mr. McMaster’s suspension from
his position as Chair of the IWC was appropriate because of his deteriorating
behavior which violated paragraphs 62(a)(c) of the Commissioner’s
Directive 083- Inmate Committees [CD 083].
III.
Preliminary Matters
[17]
At the opening of the hearing, Mr. McMaster
moved to file a supplementary Affidavit he swore on September 12, 2016. The
Respondent objected to the introduction of this Affidavit.
[18]
In the Supplementary Affidavit, Mr. McMaster
reargues the points already outlined in detail in the Affidavit he filed in
support of the application and sworn on March 10, 2016. Further, the
Supplementary Affidavit attaches documents which were not considered as part of
the grievance process. Finally, the Affidavit was not contained to facts within
the personal knowledge of Mr. McMaster and included argument and speculation.
For these reasons, the Supplementary Affidavit of Mr. McMaster was not received
into evidence (Strykiwsky v Stony Mountain, 2000 FCJ No.1404).
IV.
Issues
[19]
On this judicial review, Mr. McMaster raises a
number of issues which are essentially a recast of the issues raised in his
grievance. Therefore in my view, the issues are:
- Was the AC’s
decision reasonable?
- Was there a
breach of Mr. McMaster’s procedural fairness rights?
V.
Standard of Review
[20]
The parties agree that reasonableness is the
appropriate standard of review of the AC’s decision. (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47)
[21]
Additionally, this Court has recognized that the
CSC is owed a high degree of deference in grievance matters due to its
expertise in inmate and institution management (Skinner v Canada (Attorney General), 2016 FC 57 at para 21; Fischer v Canada
(Attorney General), 2013
FC 861 at para 22).
[22]
Allegations of breach of procedural fairness are
considered on the standard of correctness (Moodie v Canada (Attorney
General, 2015 FCA 87 at para 50; Mission Institution v Khela, 2014
SCC 24 at para 79 and Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at para 43).
VI.
Analysis
A.
Was the AC’s decision reasonable?
[23]
The reasonableness of the grievance decision
will be considered in relation to the main issues raised by Mr. McMaster.
(1)
Washroom incident
[24]
Although this part of his grievance was upheld,
Mr. McMaster argues that the COs should have been sanctioned for denying him
the opportunity to use the washroom in contravention of sections 69 and 70 of
the CCRA.
[25]
The AC noted that the refusal to allow Mr.
McMaster to go to the washroom was in accordance with the Commissioner’s
Directive 566-4- Inmate Counts and Security Patrols. Although Mr.
McMaster requested the video recording of the events, the recording was not
available. The AC determined that he could make a decision of what transpired,
based upon the five observation reports submitted by different CSC staff
members. In the absence of video evidence, it was reasonable for the AC
to consider these observation reports, as they were relevant to the grievance.
Although Mr. McMaster argues that additional observation reports should have
been sought out, it was reasonable for the AC to determine that he had adequate
information to understand the incident in question.
[26]
Mr. McMaster was successful on this part of his grievance.
However Mr. McMaster argues that the COs should be disciplined. However,
discipline of COs staff is not a remedy available to Mr. McMaster as part of
the grievance process. Further, the AC notes that Mr. McMaster’s health was not
impacted. Therefore there is no further remedy available.
(2)
Removal as IWC Chair
[27]
Mr. McMaster argues that the reasons for his
dismissal from the IWC Chair position were not substantiated and were the
result of a campaign directed to “get rid” of
him. The role as IWC Chair is a position of trust and leadership within BCI.
Therefore, to maintain this position, Mr. McMaster had to maintain the
confidence of the CSC staff.
[28]
Mr. McMaster was advised of the reasons he was
being removed from the position and he was granted a hearing, where he made
submissions.
[29]
The AC considered the events leading to the
removal of Mr. McMaster as Chair of the IWC and concluded that his removal was
an appropriate response to the behavioural incidents recorded. His removal was
in accordance with the CD 083, which states at paragraph 62 that the
Institutional Head may remove a member of the IWC when the member demonstrates
deteriorating institutional behaviour. The AC concluded that the decision to
remove Mr. McMaster from this position was justified. This finding is
reasonable.
(3)
Administrative segregation
[30]
Mr. McMaster argues that the AC failed to
acknowledge that the COs should have considered alternatives to segregation and
he argues there was no justification to his administrative segregation pursuant
to subsection 31(3) of the CCRA.
[31]
Mr. McMaster was partially successful on this
part of his grievance. The AC agreed that staff should have discussed
alternatives with him prior to placement in segregation. However the AC
concludes that the decision to place him in segregation was reasonable because
a weapon was found in his unit.
[32]
The record shows that Mr. McMaster was advised
as to the reasons for his placement in segregation. Essentially, Mr. McMaster
disagrees that his behaviour justified the use of segregation as a measure.
However, after considering the circumstances, the AC’s finding that his
segregation was appropriate in the circumstances is a reasonable conclusion.
His segregation was it in accordance with Guidelines 709-1 Administrative
Segregation Guidelines [G709-1], and in keeping with paragraph 31(3)(a) of
the CCRA.
[33]
Given the events leading to the segregation,
that could have reasonably posed a risk to the security of others at BCI, Mr.
McMaster’s segregation was lawful and in keeping with the institutional
guidelines and the provision of the CCRA.
(4)
Event Recordings
[34]
To assist in his grievances, Mr. McMaster made
requests for recordings of various events at BCI, including the gym incident
and his segregation hearings.
[35]
The recording of the events in the gym was not
retained. This was addressed by the AC in his decision and a directive was
issued to CSC staff to ensure future recordings are retained. Therefore, Mr.
McMaster was successful on this part of his grievance and no further remedy is
available.
[36]
Mr. McMaster also grieved the length of time
(two months) it took to obtain copies of his SRB hearing. Although no policy
outlines the timeframe within which inmates are to be given access to these
recordings, the AC notes that two months was an unreasonable amount of time. As
such, this portion of Mr. McMaster’s grievance was also upheld.
[37]
Additionally, Mr. McMaster grieved the fact that
the recording of the segregation hearing was incomplete, thus interfering with
his ability to prepare his grievance. The AC confirms that the recording ends
part way through the hearing. As such, this portion of the grievance was also
upheld. It is noted however that all of the information relied upon by the SRB
was provided in full to Mr. McMaster.
[38]
As Mr. McMaster was successful on these portions
of his grievance there is no additional remedy available.
(5)
Corrections to his File
[39]
In his grievance, Mr. McMaster made various
requests that his internal records be corrected or amended. The AC found that
the Grievance Process was not the proper avenue to contest the accuracy of this
information or to make any changes to the records. The AC identifies the
appropriate process for Mr. McMaster to take to have these requests considered
(Commissioner’s Directive 701- Information Sharing at Annex B, paragraph
3).
[40]
The AC was reasonable in concluding that he
could not address the requested file corrections through this grievance
process. (Skinner, supra at para 26)
(6)
General Harassment
[41]
Overall, Mr. McMaster argues that the conduct of
the COs at BCI amounts to general harassment against him. He argues that the AC
should have ordered a harassment investigation pursuant to sections 26 and 27
of the CD 081.
[42]
The AC concluded that the harassment
allegations, with the exception of the one incident where a CO made a comment
comparing Mr. McMaster’s behaviour to that of his five years old son, were not
substantiated. The AC found that there was no evidence to corroborate the
allegation of general harassment. The AC was therefore under no obligation to conduct
further investigation into harassment allegations pursuant to the CD 081. This was a reasonable conclusion for the AC to make and is
entitled to deference from this Court.
(7)
Violation of sections 7 & 12 of the Charter
[43]
Mr. McMaster argues that his section 7 and
section 12 Charter rights
have been violated as a result of the incidents outlined in his grievance. In
particular he argues that the decision to segregate him contravened his rights
under the Charter.
[44]
Mr. McMaster’s confinement to segregation was
considered as part of the grievance. It was found to have been justified in the
circumstances for the safety of everyone and it was done in compliance with the
institutional directives. Accordingly the argument that this was in breach of
his Charter rights has no merit.
[45]
Further despite lengthy written and oral
submissions, Mr. McMaster failed to plead any material facts to support the
alleged Charter violations (see Mancuso v Canada (National Health and
Welfare, 2015 FCA 227 at para 21).
[46]
As Mr. McMaster did not present substantive
arguments to support his claims, it is not necessary for this Court to
undertake a Charter analysis.
B.
Was there a breach of Mr. McMaster’s procedural
fairness rights?
[47]
Mr. McMaster makes general allegations that he
was not accorded procedural fairness in his removal as IWC Chair and his
placement in segregation.
[48]
With respect to his removal as IWC Chair, Mr.
McMaster was provided with the Correctional Intervention Board’s reasons to
suspend him from this position. He received a Notice of Inmate Suspension,
which outlined the various incidents where his behaviour had been inconsistent
with the position of IWC Chair. All of these incidents were supported by
documentation and the reasons for his suspension were fully discussed with him
in person. He was also provided with the opportunity to make submissions.
[49]
With respect to segregation, Mr. McMaster was
advised of the reasons why he was placed in segregation. He was provided with a
copy of the First Working Day Review Report, which indicated that there had
been an accumulation of information regarding his deteriorating behaviour. The
AC recognized that he should have been made aware of the alternatives to
segregation. However, ordering that the Institutional head of BCI respect its
requirements outlined in the G709-1 was the appropriate corrective action.
[50]
Further, according to Mr.
McMaster, the BCI Warden and some CSC staff were biased
against him and that this should have been considered by the AC. The AC weighed Mr. McMaster’s arguments against the
accounts of the other witnesses and parties involved, such as the Cos and CSC
staff. The AC relied upon the supporting evidence and on his assessment of
credibility to conclude that the allegations of bias were not substantiated
with any evidence. It was therefore reasonable for the AC to conclude that
there is no evidence to support Mr. McMaster’s claim
that the decision makers he faced were biased.
[51]
The AC reasonably considered the procedural
fairness arguments and concluded they were without merit.
VII.
Conclusion
[52]
Cleary, Mr. McMaster disagrees with the decision
to remove him as Chair of the IWC. While that may be understandable, the staff
at BCI had the mandate pursuant to section 62 of the CD 083 to take the steps
they deemed necessary to protect staff and inmates. I find that the steps taken
were reasonable and that Mr. McMaster’s grievance to the various issues he
raised was given appropriate consideration. This is evident from the fact that
Mr. McMaster was successful on some portions of his grievance. Overall, the
grievance decision is reasonable and it is entitled to deference from this
Court. The judicial review is therefore dismissed.
[53]
Although the Respondent requested costs, in the
circumstances, I decline to award costs against Mr. McMaster.
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