Docket: T-96-17
T-97-17
Citation:
2018 FC 40
Ottawa, Ontario, January 17, 2018
PRESENT: The
Honourable Mr. Justice Southcott
|
BETWEEN:
|
|
TERRY THOMPSON
|
|
Applicant
|
|
and
|
|
CORRECTIONAL SERVICES CANADA
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
This decision relates to two applications for
judicial review brought by the Applicant, Mr. Terry Thompson, arising from the
Respondent, Correctional Services Canada [CSC], having placed Mr. Thompson in
administrative segregation at the Donnacona Institution in Donnacona, Québec,
in December 2016. The first application (in Court file T-96-17) seeks judicial
review of a decision, described in the Notice of Application as “made by Donnacona Institution on December 16, 2016 denying the
Applicant a right to counsel on a detention.” The second application (in
Court file T-97-17) seeks judicial review of a decision, described in the
Notice of Application as “made by Donnacona Institution
on December 23, 2016 denying the Applicant full disclosure before a hearing.”
[2]
Both applications were heard by the Court first sitting
in Montreal on October 17, 2017, and then, following an adjournment for reasons
explained in my Order dated October 18, 2017, by video conference from Halifax
on December 11, 2017. Mr. Thompson, who is self-represented, participated on
both hearing dates by video conference from the Québec Regional Reception Centre
in Sainte-Anne-des-Plaines, Québec. At the request of the parties, their
arguments in the two applications were presented concurrently, as both
applications arise out of the same events. Consistent with that approach, the
Court is addressing both applications through this one combined Judgment and
Reasons.
[3]
As explained in greater detail below, the
applications are dismissed, because there is an adequate alternative avenue of
relief applicable to the issues raised in these applications, and there are no
compelling circumstances demonstrated in this case which would justify
departing from the general principle that the Court should refuse to entertain
an application for judicial review where there is an adequate alternative
remedy.
II.
Background
[4]
Mr. Thompson is currently an inmate at a federal
penal institution. At the time of the decisions that gives rise to these applications,
CSC had just transferred him from the Atlantic Institution in Renous, New
Brunswick [Atlantic], to the Donnacona Institution in Donnacona, Québec
[Donnacona]. Both are maximum-security facilities. The documentation in the record
before the Court indicates that, on December 16, 2016, Mr. Thompson attacked another
inmate in Donnacona. As a result of this incident, Mr. Thompson was placed in
segregation on December 16, 2016, pursuant to s 31(3)(a) of the Corrections
and Conditional Release Act, SC 1992, c 20 [CCRA]. This section empowers
the institutional head to order that an inmate be confined in administrative
segregation if the institutional head is satisfied that there is no reasonable
alternative to administrative segregation and he or she believes on reasonable
grounds that 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 that allowing the inmate to associate with other inmates would
jeopardize the security of the penitentiary or the safety of any person.
[5]
The record before the Court includes an unsigned
copy of a document dated December 23, 2016, entitled Review of Offender’s
Segregated Status Fifth Working Day Review [the Fifth Working Day Review],
which appears to document a decision to release Mr. Thompson from
administrative segregation in order to reintegrate him into the regular
population. The Fifth Working Day Review refers to an assessment that Mr.
Thompson could not be returned to the H or E units of the sector 240 population
in Donnacona, notes that he could be integrated with the sector 119 population
but refused to do so, and concludes with a decision that he be released from
segregation in order to reintegrate with the 119 population. A subsequent
document, again unsigned but bearing the dates January 23, 2017 and February 8,
2017, entitled Assessment for Decision, appears to document a recommendation to
transfer Mr. Thompson from Donnacona to Saskatchewan Institution [Saskatchewan],
in order to end a long-term placement in segregation at Donnacona.
[6]
Mr. Thompson’s first application for judicial
review challenges a decision which he describes as denying him the right to
counsel on December 16, 2017, the date he was originally placed in segregation
at Donnacona. I note that the material before the Court includes a document
entitled Inmate’s Request dated December 17, 2016, from Mr. Thompson to Unit
Staff, with the entry “Request duty counsel”.
[7]
Mr. Thompson’s second application challenges the
decision related to his segregation which appears to be reflected in the Fifth
Working Day Review dated December 23, 2016, on the basis that he was not
provided with disclosure of the reason he could not return to the sector 240
population before that decision was made. I note that, although the Fifth
Working Day Review appears to release Mr. Thompson into the regular population
at Donnacona, he states that both of his applications involve challenges to his
transfer from Donnacona to Saskatchewan. This appears to be the transfer
recommended in the subsequent Assessment for Decision document.
[8]
The record before the Court also includes a
document bearing the handwritten title “Grief Final”,
signed by Mr. Thompson on December 24, 2016, in which he states the following grievance:
On Dec. 23 2016 I was told I couldn’t go
back to 240 population because of safety reason they offered me 119 population
I stated that I couldn’t go because of conflict of interest the Board did not
put my statement and words in transcript and did not voice record this hearing
also I was denied full disclosure at this hearing couldn’t properly defend
myself
[9]
Mr. Thompson raised a similar concern in a
document bearing the handwritten title “Complaint”,
signed by him on January 8, 2017, in which he states the following:
Rebuttal for transfer I told the review
Board I couldn’t go to 119 population because a conflict of interest and I was
told I couldn’t go back to 240 population because of safety reasons they have
not provided any evidence to support claims they are many ranges in the 240
population
[10]
On March 30, 2017, in a document entitled
Offender Final Grievance Response [the Grievance Response] which bears the same
reference number as Mr. Thompson’s grievance dated December 24, 2016, the
Senior Deputy Commissioner issued a decision denying the grievance. I note that
the Grievance Response refers to Mr. Thompson having been released from
segregation on March 3, 2017, to facilitate his involuntary transfer to
Atlantic.
[11]
While not initially raised by the Respondent, at
the first hearing date in this matter and in my Order dated October 18, 2017, I
sought submissions from the parties on the issue as to whether the Court should
exercise its discretion to decide these applications for judicial review, given
the potential availability of an alternative administrative remedy through the
grievance procedure provided by the CCRA and regulations made
thereunder.
III.
Issues
[12]
Having considered the parties’ written
submissions and oral argument, I consider the issues raised by these
applications to be as follows:
A. Is there an adequate alternative remedy for the issues raised in
these applications and, if so, are there compelling circumstances in this case
which would justify departing from the general principle that the Court should
refuse to entertain an application for judicial review where there is an
adequate alternative remedy?
B. Applying the appropriate standard of review, does the Applicant’s
first application for judicial review demonstrate a reviewable error by
Donnacona?
C. Applying the appropriate standard of review, does the Applicant’s
second application for judicial review demonstrate a reviewable error by
Donnacona?
IV.
Analysis
[13]
My decision to dismiss both applications for
judicial review turns on the first issue described above, related to the existence
of an adequate alternative remedy.
[14]
The law is clear that the Court has the
discretion to decline to exercise its jurisdiction to hear an application for
judicial review where there is an adequate alternative avenue for relief (see,
e.g., Nome v Canada (Attorney General), 2016 FC 187 [Nome] citing,
at para 19, CB Powell Ltd. v Canada (Border Services Agency), 2010 FCA
61 at paras 31-32, and Froom v Canada (Minister of Justice), 2004 FCA
352 at para 12). In Nome, at paras 20 to 22, Justice Roussel identified
that the grievance procedure available to offenders under ss 90 and 91 of the
CCRA and ss 74 to 82 of the Corrections and Conditional Release Regulations,
SOR/92-620, affords an adequate alternative remedy to judicial review and
explained that judicial review will generally only be appropriate after a final
decision is rendered in the grievance process.
[15]
However, Justice Roussel also noted that there
may be circumstances where a judge may be persuaded to exercise the Court’s
discretionary jurisdiction to hear an application for judicial review despite
the availability of an alternative remedy. Gates v Canada (Attorney General),
2007 FC 1058 [Gates], represented an example of such a situation. In Gates,
Justice Phelan found that compelling circumstances, in that case the urgency
presented by falling temperatures in the applicants’ detention unit and the
fact that this placed their health in jeopardy, justified a departure from
requiring inmates to use the administrative complaints process. Justice Phelan
noted that actual physical or mental harm or clear inadequacy of the process
represented a non-exhaustive list of what might constitute compelling
circumstances that would justify such departure.
[16]
Returning to the present case, I note that,
while Mr. Thompson’s two applications are framed as challenging decisions by
Donnacona denying him counsel and disclosure, my view is that they can be
better characterized as raising two separate grounds for challenging the decision
or decisions by CSC at Donnacona to place Mr. Thompson in administrative
segregation and not to release him into the sector 240 population. The parties
acknowledge that both applications arise out of the same events. While Mr.
Thompson characterizes both applications as involving challenges to his
transfer from Donnacona to Saskatchewan, the documentary evidence before the
Court suggests that the December 23, 2016 decision was to release him into the
119 population, that the recommendation or decision to transfer him to
Saskatchewan was made subsequently, and that he was later transferred to
Atlantic in March 2017. As such, the events leading to these applications are
not particularly clear. Regardless, I accept that the thrust of Mr. Thompson’s concerns
is that he should have been allowed to return to the 240 population and that he
argues that the decision not to permit this return is reviewable by this Court,
both because he was not provided access to counsel to assist him in addressing
his placement in segregation and because he was not provided with information
as to why CSC at Donnacona formed the view he could not return to sector 240.
[17]
My conclusion is that there was an adequate
alternative remedy available to Mr. Thompson to pursue these concerns. Indeed, I
read the grievance that Mr. Thompson initiated on December 24, 2016, the date
after that of the Fifth Working Day Review, as raising the allegation that
Donnacona did not provide him with information as to why he could not return to
the 240 population, and that allegation was expressly addressed in the
Grievance Response. While Mr. Thompson did not include in his grievance the
allegation about denial of access to counsel, I see no reason such argument
could not have been raised either in his December 24, 2016, grievance or
another grievance arising out of his placement in segregation.
[18]
The Respondent argues that there are no
compelling circumstances which would justify the Court exercising its
discretion to decide these applications for judicial review despite there being
an alternative remedy. The argument raised by Mr. Thompson is that he has
already exhausted the alternative remedy that is available to him, as he has
pursued the grievance process available under the CCRA and has received a final
decision in the Grievance Response. In response, the Respondent’s position is
that the judicial remedy potentially available to Mr. Thompson was to seek
judicial review of the Grievance Response, which I understand the parties agree
is the final decision available through the alternative administrative process.
[19]
I agree with the Respondent’s position. This
issue was addressed recently by the Federal Court of Appeal in Elliot v
Canada, 2017 FCA 145, in which the appellant sought to set aside a Criminal
Profile Report prepared at Edmonton Institution which concluded that he had
caused “serious psychological harm” to a victim.
The Court noted at paragraph 12 that the appellant had unsuccessfully grieved
the inclusion of the offending phrase to the Commissioner of Corrections and had
not sought judicial review of the denial of his grievance, although that option
was open to him. The Court held the CCRA had provided the appellant with an
alternative remedy, the existence of which constituted a bar to a successful judicial
review application regarding the underlying decision to include the phrase.
[20]
In other words, the fact that the grievance
process under the CCRA has run its course and Mr. Thompson has now received a
final decision in that process does not entitle him to seek judicial review of
the original administrative decision that was the subject of the process.
Rather, it was that final decision, reflected in the Grievance Response, which
Mr. Thompson had the option of challenging through an application for judicial
review.
[21]
I therefore find that there is an adequate
alternative remedy applicable to the issues raised in these applications and
that that there are no compelling circumstances which would justify a departure
from the general principle that the Court should not exercise its discretion to
decide an application for judicial review where there is an adequate
alternative remedy. Having reached this conclusion, I must dismiss these
applications and therefore decline to consider the second and third issues articulated
above, related to the specific grounds of review raised by Mr. Thompson.
V.
Costs
[22]
Each of the parties has claimed costs in these
applications. The Respondent proposed that it be awarded lump-sum costs of
$500.00 if successful. Mr. Thompson made no submissions in response to the
Respondent’s costs claim but argued that he should receive $1500.00 lump-sum
costs if he were successful. As the Respondent has prevailed in these
applications, it is entitled to costs, and I consider the lump-sum amount of
$500.00 that it proposes to be a reasonable all-inclusive amount applicable to
both applications.
Email this Content