Date: 20060307
Docket: T-1394-05
Citation: 2006 FC 271
Ottawa, Ontario, March 7, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
ALLAN ARTHUR CRAWSHAW
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1] "The law gives the authorities in our penal institutions a measure of discretion to ensure that those institutions operate effectively and at the same time to make it possible for inmates to benefit from certain readjustment or rehabilitation programs. To do this the authorities must be guided by a wide range of intellectual disciplines, each containing information essential to the best possible exercise of their discretion. The task imposed on them by law is not always an easy one. It may well be that throughout this experience certain decisions are not as good as others or that, on the facts, someone else would have arrived at different conclusions... However, an observer outside the applicant's environment does not have the responsibility of making all these decisions. That responsibility also does not belong to a court, which must refrain from any judicial intervention that would lead it to assume a discretionary power conferred by law on others."(as specified by Justice Louis-Marcel Joyal in Beaulieu v. Leclerc Institution, [1987] F.C.J. No. 1122 (QL))
JUDICIAL PROCEDURE
[2] This an application for judicial review pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, of the decision of Correctional Services Canada (CSC), dated June 27, 2005.
[3] Mr. Crawshaw requests an Order of Certiorari, quashing the decision of CSC, an Order of Mandamus imposing on CSC the duty to act fairly with regards to the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA), the Corrections and Conditional Release Regulations, SOR/92-620, (Regulations) and the Commissioner's Directive by removing the high security 14 foot double razor wire fencing and electronically controlled gates and guard houses and replacing them with a four foot fence that is more appropriate for a minimum security prison.
[4] This is an application for judicial review and not an appeal. Therefore, if the decision is considered incorrect, unreasonable or erroneous, the recourse is to return the matter to the first instance, specialized decision-maker mandated by legislation to consider the matter and decide it on the merits.
BACKGROUND
[5] Mr. Crawshaw is presently incarcerated at William Head Institution, a minimum security federal penitentiary, serving an indeterminate sentence for first degree murder and possession of an explosive substance. (Affidavit of Shereen Miller sworn September 27, 2005, Exhibit A, p. 2.)
[6] In September 2002, William Head Institution was re-designated a minimum security institution. It was previously designated a medium security institution. (Affidavit of Shereen Miller sworn September 27, 2005, Exhibit A, p. 2.)
[7] Mr. Crawshaw has resided at Elbow Lake and Ferndale, both minimum security institutions located in British Columbia. (Mr. Crawshaw's Affidavit sworn August 30, 2005, pp. 6-7)
[8] At Mr. Crawshaw's request, CSC transferred him to William Head Institution. This transfer took place on October 30, 2003. (Mr. Crawshaw's Affidavit sworn August 30, 2005, p. 7)
[9] On February 27, 2005 Mr. Crawshaw filed a Second Level Grievance. His grievance asked that the 14 foot razor-wide fences and guard tower be replaced with a 4 foot fence and that William Head Institution stop operating as a medium security institution. (Affidavit of Shereen Miller sworn September 27, 2005, Exhibit A, p. 26)
[10] On April 6, 2005, the Board denied Mr. Crawshaw's Second Level Grievance. (Affidavit of Shereen Miller sworn September 27, 2005, Exhibit A, p. 15)
[11] On April 17, 2005, Mr. Crawshaw commenced a Third Level Grievance alleging that William Head Institution is not operating as a minimum security facility and requesting that the 14 foot razor-wire security fence be removed and replaced with a 4 foot fence and that the warden and staff of William Head Institution either be replaced or retrained in compliance with the law. (Affidavit of Shereen Miller sworn September 27, 2005, Exhibit A, pp. 10-14)
[12] On June 27, 2005, CSC denied Mr. Crawshaw's Third Level Grievance. (Affidavit of Shereen Miller sworn September 27, 2005, Exhibit A, pp. 7-8)
[13] Mr. Crawshaw now seeks a judicial review of this decision.
DECISION UNDER REVIEW
[14] In the Third Level Grievance response, CSC considered the recommendations of Deputy Warden Dave Clouston concerning the 14 foot razor-wire security fence. Deputy Warden Dave Clouston recommended a denial of Mr. Crawshaw's request to replace the fence stating:
When the Institution was reclassified to the minimum security level, the commitment was to the surrounding community that the fence would remain unchanged. (Affidavit of Shereen Miller sworn September 27, 2005, Exhibit A, pp. 17-18)
[15] With respect to Mr. Crawshaw's request that the 14 foot razor-wire security fence and guard tower be replaced with a 4 foot fence, CSC stated the following in their decision dated June 27, 2005.
The perimeter fence at William Head is permissible because it serves to define the boundaries of the institution. (Affidavit of Shereen Miller sworn September 27, 2005, Exhibit A, p. 8)
[16] With respect to Mr. Crawshaw's allegations that William Head Institution does not operate as a minimum security institutions, CSC stated the following in their decision dated June 27, 2005:
When comparing the freedom of movement, the access to services and programs, and the security measures used to control and monitor offender conduct, it appears that William Head has made significant progress towards the successful transition to a minimum in these areas and has practices comparable to other minimums in the CSC. Our comparison with other minimums revealed that William Head residents have a number of privileges not available everywhere such as visiting other living units, 24 hour access to the living unit's patio area, later lock up times and fewer counts. The changes made during the transition period have been shared with the Inmate Committee, with the exception of the details of measures that would jeopardize the security of the institution. (Affidavit of Shereen Miller sworn September 27, 2005, Exhibit A, p. 8)
ISSUES
[17] Did Correctional Services Canada commit a reviewable error in its decision to reject Mr. Crawshaw's Third Level Grievance?
ANALYSIS
Standard of review
[18] The Trial Division may grant leave only if it is satisfied that the Respondent, in its decision on a Third Level Grievance, acted without jurisdiction, failed to observe a principle of natural justice, acted in a way that was contrary to law, or based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it. (paragraph 18.1(4) of the Federal Courts Act)
[19] In applying s. 18.1(4), Justice Paul Rouleau, in Inmate Welfare Committee of William Head Institution. v. William Head Institution, 2003 FCT 288, [2003] F.C.J. No. 411 (QL),determined that:
...In order to grant the relief sought this Court, in accordance with subsection 18.1(4) of the Federal Court Act, must be satisfied that in rendering the decision the Correctional Service of Canada exceeded or failed to exercise its jurisdiction, failed to observe a principle of natural justice, erred in law in making its decision, based its decision on an erroneous finding of fact made in a perverse or capricious manner or, acted in a way that was contrary to law.
[20] The standard of review with respect to a judicial review involving a decision of a penal body was also examined in the matter of Beaulieu above where Justice Joyal stated as follows:
...Unless there are formal defects, a breach of natural justice, an excess of jurisdiction or a finding of fact made in an irrational or vexatious manner, an administrative decision is not open to question even though the court may not agree with it.
[21] Also in Beaulieu above, Justice Joyal went on to make the following comments with respect to the courts' need to refrain from intervening in the institution's implementation of certain programs:
The law gives the authorities in our penal institutions a measure of discretion to ensure that those institutions operate effectively and at the same time to make it possible for inmates to benefit from certain readjustment or rehabilitation programs. To do this the authorities must be guided by a wide range of intellectual disciplines, each containing information essential to the best possible exercise of their discretion. The task imposed on them by law is not always an easy one. It may well be that throughout this experience certain decisions are not as good as others or that, on the facts, someone else would have arrived at different conclusions or imposed lighter penalties. However, an observer outside the applicant's environment does not have the responsibility of making all these decisions. That responsibility also does not belong to a court, which must refrain from any judicial intervention that would lead it to assume a discretionary power conferred by law on others.
[22] In Inmate Welfare Committee of William Head Institution v. William Head Institution above, Justice Rouleau confirmed this approach. He wrote:
It is not the function of this Court to revisit these arguments and to then either agree or disagree with the Commissioner's conclusion. Provided there is evidence capable of supporting the decision in question, and I am satisfied that there is, there is no basis for interfering with that decision, even if the Court might not have reached the same conclusion.
[23] In Schaefler v. Canada (Solicitor General), 2004 FC 517, [2004] F.C.J. No. 623 (QL),Justice Sean J. Harrington specifically defines the standard of review regarding a decision of CSC made in an administrative context as being that of patent unreasonableness. He wrote:
Then, as an administrative decision, it must be subjected to the appropriate standard of review. It is well-established that administrative decisions which relate to public order do not constitute an abuse of discretion unless patently unreasonable.
[24] Likewise, the court in this case must refrain from intervening with the Warden's discretion to maintain the 14 foot fence at William Head Institution or interfere with the administrative operation of William Head Institution.
[25] It is clear that the decision reached on the Third Level Grievance was within the jurisdiction of CSC as provided in the grievance procedures. Further, it is clear that decision took into consideration the submissions of Mr. Crawshaw at each level. The final decision addresses the questions posed in the Third Level Grievance that was filed. Finally, it is obvious the decision was made having regard to the material before the final decision maker which is outlined in the facts above. Consequently, this court should not interfere. (Affidavit of Shereen Miller sworn September 27, 2005, Exhibit A, pp. 7-8)
Did Correctional Services Canadacommit a reviewable error in its decision to reject Mr. Crawhaw's Third Level Grievance?
[26] The decision to retain the 14 foot razor-wire fence was made in a lawful manner. First, it is clear that the Warden of William Head Institution had delegated authority to retain the 14 foot razor-wire fence at William Head Institution pursuant to section 4 of the Regulations which states as follows.
| 4. An institutional head is responsible, under the direction of the Commissioner, for
(a) the care, custody and control of all inmates in the penitentiary;
(b) the management, organization and security of the penitentiary; and
(c) the direction and work environment of staff members.
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4. Sous l'autorité du commissaire, le directeur du pénitencier, est responsable de :
a) la prise en charge, la garde et la surveillance de tous les détenus du pénitencier;
b) la gestion, l'organisation et la sécurité du pénitencier;
c) la direction des agents et leur milieu de travail.
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[27] Other relevant principles from the CCRA are outlined in section 4, which states as follows:
| 4. The principles that shall guide the Service in achieving the purpose referred to in section 3 are
(a) that the protection of society be the paramount consideration in the corrections process;
(b) that the sentence be carried out having regard to all relevant available information, including the stated reasons and recommendations of the sentencing judge, other information from the trial or sentencing process, the release policies of, and any comments from, the National Parole Board, and information obtained from victims and offenders;
(c) that the Service enhance its effectiveness and openness through the timely exchange of relevant information with other components of the criminal justice system, and through communication about its correctional policies and programs to offenders, victims and the public;
(d) that the Service use the least restrictive measures consistent with the protection of the public, staff members and offenders;
(e) that offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence;
(f) that the Service facilitate the involvement of members of the public in matters relating to the operations of the Service;
(g) that correctional decisions be made in a forthright and fair manner, with access by the offender to an effective grievance procedure;
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4. Le Service est guidé, dans l'exécution de ce mandat, par les principes qui suivent :
a) la protection de la société est le critère prépondérant lors de l'application du processus correctionnel;
b) l'exécution de la peine tient compte de toute information pertinente dont le Service dispose, notamment des motifs et recommandations donnés par le juge qui l'a prononcée, des renseignements obtenus au cours du procès ou dans la détermination de la peine ou fournis par les victimes et les délinquants, ainsi que des directives ou observations de la Commission nationale des libérations conditionnelles en ce qui touche la libération;
c) il accroît son efficacité et sa transparence par l'échange, au moment opportun, de renseignements utiles avec les autres éléments du système de justice pénale ainsi que par la communication de ses directives d'orientation générale et programmes correctionnels tant aux délinquants et aux victimes qu'au grand public;
d) les mesures nécessaires à la protection du public, des agents et des délinquants doivent être le moins restrictives possible;
e) le délinquant continue à jouir des droits et privilèges reconnus à tout citoyen, sauf de ceux dont la suppression ou restriction est une conséquence nécessaire de la peine qui lui est infligée;
f) il facilite la participation du public aux questions relatives à ses activités;
g) ses décisions doivent être claires et équitables, les délinquants ayant accès à des mécanismes efficaces de règlement de griefs;
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[28] Also relevant in s. 28 of the CCRA that provides:
| 28. Where a person is, or is to be, confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which the person is confined is one that provides the least restrictive environment for that person, taking into account
(a) the degree and kind of custody and control necessary for
(i) the safety of the public,
(ii) the safety of that person and other persons in the penitentiary, and
(iii) the security of the penitentiary;
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28. Le Service doit s'assurer, dans la mesure du possible, que le pénitencier dans lequel est incarcéré le détenu constitue le milieu le moins restrictif possible, compte tenu des éléments suivants :
a) le degré de garde et de surveillance nécessaire à la sécurité du public, à celle du pénitencier, des personnes qui s'y trouvent et du détenu;
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[29] The public interest is an important consideration in the safe operation of a correctional facility. The safety of the public and the protection of society are cited as considerations in the above-noted sections of the CCRA and the Regulations.
[30] Commissioner's Directive 006 also assists CSC staff in the development of policies and practices regarding the security classification of institutions. With respect to perimeters, section 10 reads as follows:
| 10. The perimeter of a minimum security institution will be defined but not directly controlled. Inmate movement and association will be regulated but with little or no staff supervision. Arms will not be retained in the institution.
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10. Le périmètre d'un établissement à sécurité minimale sera défini mais non contrôlé directement. Les déplacements et les possibilités d'association des détenus seront réglementés, mais avec peu ou pas de surveillance de la part du personnel. Aucune arme ne sera gardée dans l'établissement.
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[31] In replying to Mr. Crawshaw's Third Level Grievance, CSC notes that the decision to retain the 14 foot razor-wide fence was made as a concession to the neighboring residents. However, despite the presence of the fence, the towers are no longer staffed, the pedestrian gates on the perimeter fence are now left open and the perimeter hourly mobile patrols were eliminated. (Affidavit of Shereen Miller sworn September 27, 2005, Exhibit A, p. 5)
[32] CSC's decision to retain the 14 foot razor-wide fence strikes a reasonable compromise between a commitment to the surrounding community that the fence would remain unchanged and the increasing freedoms that are afforded to minimum security inmates. This decision was made with due consideration to all involved and is not contrary to law.
CONCLUSION
[33] This application for judicial review is dismissed as CSC did not commit any errors in its decision to reject Mr. Crawshaw's Third Level Grievance.
JUDGMENT
THIS COURT ORDERS that
1. The application for judicial review be dismissed;
2. The whole without costs.
"Michel M.J. Shore"
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