Docket: T-1083-15
Citation:
2017 FC 339
[ENGLISH
TRANSLATION]
Ottawa, Ontario, April 3, 2017
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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ROBIN RIVEST
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the case
[1]
Mr. Robin Rivest is applying for judicial review
of a decision rendered on April 30, 2015, by the Correctional Service Canada,
whereby his two grievances were dismissed at the final level. In those
grievances, the applicant contests his placement in segregation, the increase
of his security classification, and his subsequent transfer to a
maximum-security penitentiary. All these decisions are the result of his
involvement in the illegal smuggling of contraband narcotics and cigarettes into
Drummond Institution, where he is serving a life sentence.
[2]
The applicant associates all his reasons for
contesting the decision with breaches of procedural fairness, whereas the
respondent sees, with one exception, questions arising from the unreasonable nature
of decisions made by the Service. However, two of the reasons cited by the
applicant in his memorandum of fact and law to justify this Court’s
intervention were withdrawn during the hearing. As he had not sent the notices
required by the Federal Court Rules, SOR/98-106 to the Attorney General
of Canada and the provincial attorneys general, the applicant is foregoing to
ask the Court to declare that the grievance process set out in the Corrections
and Conditional Release Act, S.C. 1992, c. 20 [CCRA] is
unconstitutional, since it would violate the rights guaranteed to inmates by
section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, constituting Schedule B of the Canada Act, 1982 (UK),
1982, c. 11. Furthermore, and contrary to what he claimed in writing, the
applicant acknowledges that the Service invoked subsection 27(3) of the CCRA
to deny him certain information, the disclosure of which, according to the
Service, would jeopardize the safety of others or an ongoing investigation.
[3]
For the reasons below, the applicant’s
application for judicial review will be dismissed.
II.
Facts
[4]
On March 3, 2014, the applicant was placed in
administrative segregation at Drummond Institution and his visitation rights
were suspended. This segregation continued for a period of 91 days, as the
outcome of sporadic administrative revisions, up until the decision was made to
reassess his security classification and to transfer him to Donnacona, a
maximum-security institution.
[5]
All these decisions stem from the fact that
based on the information received, the Service had reasonable grounds to
believe that the applicant was involved in the illegal smuggling of contraband
narcotics and cigarettes at Drummond Institution. The applicant was informed upon
his placement into segregation that the Service had reliable information
linking him in general to contraband, and more specifically, to an event that
occurred during the week of February 24, 2014, during which an individual, who
had recently been released from that institution, had 50 grams of tobacco and
22 grams of marijuana (for a value of $3,016) smuggled using two arrows show
from the adjacent woods. According to the Service, these activities and events
affect the safety of people inside the institution.
[6]
The applicant refused to receive the first
communication addressed to him on that matter.
[7]
During the review hearings for his segregation,
the Service gave the applicant some additional information, but he continued to
deny the acts of which he was accused. The Service informed him that a Security
Intelligence Report (SIR) would be filled out by a Security Intelligence
Officer (SIO) regarding the following allegations:
1- Four reliable
sources link the applicant to the smuggling of contraband using arrows into
Drummond Institution;
2- The applicant
used a fellow inmate’s telephone card six times to get in contact with an
individual who had been recently released from Drummond Institution;
3- On February
27, 2014, the fellow inmate who had been released was then apprehended and
arrested by the police near the perimeter of Drummond Institution in connection
with the smuggling of arrows;
4- Two arrows
containing 50 grams of tobacco and 22 grams of marijuana, for a value of
$3,016, were found in the courtyard of Drummond Institution.
[8]
Although the applicant denies any participation
in the contraband and the events during the week of February 24, 2014, he
admits that he contacted the ex-inmate who was apprehended by the authorities,
but to discuss boxing and other innocuous subjects.
[9]
When it was completed, the SIR was given to the
applicant. In the report, the SIO concludes in the existence of a major
contraband smuggling network using arrows fired in the courtyard of Drummond
Institution. He also concludes that the applicant is a major player in this
network and recommends reassessing his security classification to a “high” risk. The SIR essentially contains information that was already sent to the
applicant, but specifies that certain information cannot be shared with him,
because it is covered by subsection 27(3) of the CCRA.
[10]
In May 2014, the Service wanted to give the
applicant documents on his transfer to Donnacona Institution and those
involving the reassessment of his security classification, including the “Security Reclassification Scale”. The applicant
refused to receive those documents.
[11]
In June 2014, the applicant was transferred to
Donnacona Institution.
[12]
In her decision, the Warden of Drummond
Institution indicated that the applicant had the opportunity to submit
observations on the proposed transfer in person or in writing.
[13]
In a single decision rendered on April 30, 2015,
the Senior Deputy Commissioner, on behalf of the Service, dismissed the
applicant’s two grievances regarding his administrative segregation and the
reassessment of his security classification that led to his transfer to
Donnacona Institution (reference numbers V30R00023736 and V30R00023737).
III.
Impugned decision
[14]
First, the same facts and events are the basis
of the two decisions contested by the applicant.
[15]
In deciding on the applicant’s grievances, the
Service indicates that it considered and summarizes the applicant’s
submissions, his counsel’s arguments, as well as the information gathered by
the SIO, which include the versions of the facts gathered from “believed reliable” sources. The Service concludes
that the versions gathered were consistent with the applicant’s behavioural
history, with the arrest of the individual in connection with the smuggling of
contraband using arrows, and with the fact that the applicant got in contact
with that individual during a period contemporaneous with the events. The
Service adds that the assessment and determination of the credibility of the
information used by the SIO were completed in accordance with the requirements
of CD 568-2.
[16]
As for the applicant’s administrative
segregation, the Service finds that this decision was justified because the
security information clearly identifies him as being involved in a major
smuggling of contraband intended for institutional trafficking. The Service
adds that his initial placement met the provisions of paragraph 31(3)(a) of the
CCRA, since trafficking tobacco and prohibited substances in the
institutions constitutes a major threat to the security of the institution and
safety of the correctional population and hence, there were reasonable grounds
to believe that without that measure, the safety of a person or the security of
the institution could be compromised. Finally, the Service is of the opinion
that under the circumstances, the placement in segregation represented the only
viable and proper alternative to ensure the security of the institution.
[17]
The Service concluded that the information sent
to the applicant throughout the process that led to his transfer allowed him to
learn about the acts of which he was accused and to clearly explain its
position. Subsection 27(1) of the CCRA requires that all the information
considered in making a decision, or a summary thereof, be shared with the
inmate before the decision is made. The applicant received a summary of the
essential information collected on several occasions, in accordance with the
provisions of the CCRA. As the SIR specifies, the only information not
sent is covered by subsection 27(3) of the CCRA.
[18]
Finally, with respect to the involuntary
transfer to Donnacona Institution, the Service finds that in light of the
concerns about the security of the institution and safety of its population,
and of the necessity to put an end to the applicant’s segregation by reintegrating
him into a regular population, the transfer to an institution able to meet his
high needs for secure supervision was required.
[19]
The Service considers the applicant’s history of
chaotic behaviour in the institution, including his difficulties integrating,
the fact that he has been a constant subject of interest since the beginning of
his stay regarding his involvement in illicit activities, his difficulties
complying with institutional regulations, his positive result for THC on the
urinalysis, and the lack of progress to improve the dynamic factors that
contributed to his violent criminal history. It concludes that the applicant’s
transfer to a maximum-security institution is the most appropriate measure in
his case.
[20]
The applicant’s two grievances were therefore
dismissed.
IV.
Issues and standard of review
[21]
I concur with the respondent, that this
application for judicial review raises two questions:
A.
Is the Service’s decision reasonable?
B.
Was the disclosure of information to the
applicant sufficient?
[22]
The decision rendered by the Service on a
third-level grievance raises mixed questions of law and fact. It can therefore
be reviewed according to the reasonableness standard (Johnson v. Canada
(Correctional Service), 2014 FC 787 at para 37; Bonamy v. Canada (Attorney
General), 2010 FC 153, at para 47; Gallant v. Canada (Attorney General),
2011 FC 537, at paras 14–15).
[23]
When this standard of review applies, this
court’s review “is concerned mostly with the existence
of justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9 at para
47). This Court may only substitute its own conclusion for the one chosen by
the decision-maker “as long as the process and outcome
fit comfortably with the principles of justification, transparency and
intelligibility” (Canada (Citizenship and Immigration) v. Khosa,
[2009] 1 S.C.R. 339 at para 59).
[24]
Contrary to the applicant’s arguments, the
question of sufficiency of grounds also falls within reasonableness (Newfoundland
and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 14), just like that of knowing whether the Service
considered the arguments submitted by the applicant.
[25]
Finally, although the question of knowing
whether the decision-maker disclosed sufficient information to the subject is
in itself generally one of procedural fairness (Mission Institution v. Khela,
2014 SCC 24 at para 79), the disclosure of information in this case is part
governed by section 27 of the CCRA. The question is therefore that of an
application of the Act by an administrative decision-maker, in its field of
expertise, and its decision on that matter will also be subject to the
reasonableness standard. (Ross v. Canada (Attorney General), 2015 FC 344
at para 25, Khela, supra at para 89).
V.
Analysis
A.
Is the Service’s decision reasonable?
[26]
The applicant claims that the Service acted
illegally in not considering any alternative measures to his administrative
segregation. As the mere fact of alleging that it did it is insufficient, the
Service had to list the alternative measures considered and indicate why they
could be chosen in the applicant’s case.
[27]
The applicant also claims that the Service did
not truly consider his observations and those of his counsel with respect to
the reliability of the sources and information regarding him. He submits that
the decision only reported his representations, without however taking them
into consideration or responding to them. He argues that the Service failed to
explain why the human sources who were consulted were deemed to be reliable,
and finally, that the grounds provided in support of the decision are
insufficient.
[28]
The respondent points out that although in this
case, the Service considered and responded to all the questions, it is
consistent jurisprudence that a decision-maker is presumed to have considered
all the evidence (Boeyen v. Canada (Attorney General), 2013 FC 1175 at
para 53). It is insufficient to observe that an element of a decision is
inadequate or insufficient to conclude in the unreasonableness of a decision (Newfoundland
Nurses, at para 16).
[29]
In my opinion, the Service’s decision to deny
the applicant’s grievances is entirely reasonable. The decision is
comprehensive and responds to all the questions raised by the applicant.
(1)
Alternative measures to segregation
[30]
On reading the decision, it is obvious that the
Service dealt with this question. In its final decision, the Service assessed
the following factors: the wealth of information from sources believed reliable
indicating that the applicant was involved in smuggling contraband and illicit
substances using arrows; the applicant was seen using a fellow inmate’s
telephone card on six occasions to get in contact with the individual
apprehended at the institution’s perimeter for sending arrows containing 50
grams of tobacco and 22 grams of marijuana, and: the applicant was a constant
subject of interest for involvement in illicit activities since the beginning
of his sentence.
[31]
In light of these facts, the applicant was
placed in segregation, a measure that was described as being necessary, as the
smuggling and trafficking of tobacco and prohibited substances in the
institution, in addition to being illegal, are a major threat to the security
of the institution and the safety of the correctional population. Due to the
nature of the behaviour, the Service noted that placement in segregation was
the only viable alternative under the circumstances. In a letter sent to the
applicant, the Service clearly laid out the alternatives considered, i.e.
change of cell, range or cell block, or even the intervention by the Inmate
Committee, a correctional manager, chaplain, Elder or psychologist (see
Respondent’s Record, volume 1, respondent’s certified record, “involuntary placement in administrative segregation”
at p. 36), and it clearly justified the fact that segregation was the only
appropriate measure in the applicant’s case. It cannot be said that this
decision is unreasonable.
(2)
Applicant’s observations
[32]
The applicant submits that the Service did not
truly take his observations into account, nor those of his counsel, especially
concerning the reliability of the information sources regarding him. In my
view, this allegation is unjustified. The applicant has not submitted any
evidence that the Service ignored his representations. The decision-maker “is presumed to have considered all the evidence unless the
Applicant provides evidence to the contrary” (Boeyen, supra
at para 53; Florea v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 598 (F.C.A.)).
[33]
In its decision, the Service clearly indicates
that the information regarding the applicant is deemed to be credible, since it
comes from several sources. In addition, the information provided by the
sources corresponds to the observations made by the Preventive Security
Department, and is also corroborated by other elements that are on the
applicant’s file.
[34]
It is true that the applicant and his counsel
deny all the information collected by the Service, but that does not mean that
the Service would have failed to consider all the evidence on file, as well as
the representations of the applicant and his counsel. The decision provides a
detailed analysis of the evidence, and it is my view that the Service’s
conclusions are supported in that evidence.
B.
Was the disclosure of information to the
applicant sufficient?
[35]
The applicant submits that the Service did not
meet its obligation to share with him all the information that was considered
regarding his transfer. He submits that he asked for more information about the
allegations against him on many occasions, but was unsuccessful.
[36]
The applicant also submits that he never
received the scoring matrix that was used in reassessing his security
classification and that this constitutes a major breach of the duty to disclose
inherent in the requirement of procedural fairness (Khela, supra
at paras 96–97; May v. Ferndale Institution, 2005 SCC 82 at paras 117–119).
[37]
The key issue here is knowing whether the
applicant was able to fully participate in the decision-making process, and I
believe that that is the case. The applicant received a summary of the
information about him, as required by section 27 of the CCRA, and had
the opportunity to respond to the allegations. In my opinion, the applicant is
simply dissatisfied with the little weight given to his explanations. The
applicant knew exactly what was alleged against him, including the date, place,
and other details regarding the incident. The only significant information that
was not shared with the offender was the name of the sources linking him to the
contraband in the institution. The respondent therefore submits that there is
no violation of procedural fairness in this case.
[38]
The applicant cannot complain about not having
received the scoring matrix that was used in reassessing his security
classification, since attempts were made to give it to him, along with other
documents that he refused to receive (see Respondent’s Record, volume 1, p.
128).
[39]
The content of the duty to procedural fairness
in this case is governed by the CCRA and the Corrections and
Conditional Release Regulations, SOR/92-620 [Regulations]. In the Regulations,
it is provided that inmates who are subject to an involuntary transfer have the
right to submit representations (Regulations, paragraph 12(b)). When an
inmate has the right to submit observations, subsection 27(1) of the CCRA
provides that “all information
to be considered [in the taking of the decision] or a summary of that
information”, must be shared with him, subject to
subsection 27(3) of the CCRA, which allows the Service to refuse to
disclose information if it has reasonable grounds to believe that that
disclosure of information would jeopardize the safety of any person or the
security of a penitentiary, or would compromise the conduct of any lawful
investigation.
[40]
The disclosure must be sufficient to permit the
prisoner to participate in a significant manner in opposing his transfer and to
verify whether the transfer is based on a reasonable and serious concern (Canada
(Attorney General) v. Boucher), 2005 FCA 77 at paras 28–30; Caouette v.
Mission Institution, 2010 BCSC 769 at para 75; Ross, supra,
at para 4).
[41]
In the case at hand, the Service provided the
applicant with a summary of the information considered in the decision-making,
as required in subsection 27(1) of the CCRA. The applicant had the
opportunity to respond to the allegations, and he knew exactly what the
allegations against him were, including the date, place, and the details of the
calls made to his former fellow inmate, and the fact that four individuals of
believed reliability linked him to the contraband in general, and to the events
of the week of February 24, 2014, in particular. The decision reveals that the
information that was sent to the applicant on several occasions clearly set out
the factors and evidence gathered.
[42]
I therefore conclude that this argument should
also be dismissed.
VI.
Conclusion
[43]
For the foregoing reasons, the application for
judicial review is dismissed. The final decision is reasonable and the
disclosure of information is sufficient.
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