Date: 20061011
Docket: T-455-06
Citation: 2006 FC 1209
OTTAWA, ONTARIO, October 11, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
DONALD RUSSELL
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
Donald Russell, (the “Applicant”)
pleaded guilty to second degree murder of John Whittaker and forcible
confinement of Janet Seccombe. The Applicant was also charged with sexual
assault and sexual assault with a weapon of Ms. Seccombe, but those charges
were withdrawn in a plea agreement. The Applicant was convicted on October 3,
2001 and is currently serving a life sentence without eligibility of parole for
11 years.
[2]
The Agreed Statement of Fact
established that on December 28, 1997 the Applicant was at the home of Janet
Seccombe. The Applicant and Ms. Seccombe had been in a relationship since 1992,
while he was still serving a jail term for a previous conviction. While she was
in her bedroom, the Applicant, who had been drinking, bound her to the bed with
extension cords and shoelaces. The victim, John Whittaker, engaged in a fight
with the Applicant during which the victim was stabbed to death. When the
police came, they found Ms. Seccombe still tied up in the bedroom. The Police
Report contained the following statements (Peel Regional Police Report for
occurrence # 97-196243, Affidavit of Carolyn Gilbert):
At
approximately 5:00 p.m. the accused lured Seccombe up to her bedroom under the
pretext of trying on a dress that he had bought her for Christmas. Once in the
bedroom, the accused grabbed Seccombe by the throat and pulled a knife from a
nylon bag that he was carrying. The accused threatened Seccombe with the knife
and demanded sex.
The accused
then tied the victim to the bed using assorted cords from the residence and had
sexual intercourse with her. The accused left her in that position for two
hours.
[3]
During the trial, the court
instructed the Crown to remove all references to the alleged sexual assault
from the Victim Impact Statement and the Agreed Statement of Fact. However,
references to the alleged sexual assault still appear on the Police Report.
[4]
The following information is
contained in his inmate files (as taken from the Police Report) (Executive
Summary Offender Grievance Presentation – Third Level, Affidavit of Carolyn
Gilbert):
Mr. Russell is
a 50-year-old federal recidivist currently serving a Life sentence for 2nd
degree murder. The victim was his girlfriend’s male friend, and the offence
took place on 1997-12-28. He was arrested on the same day without incident. He
was charged with 1st Degree Murder, Sexual Assault with a weapon,
Sexual Assault and Unlawful Confinement (latter three against his then
girlfriend.). He pled guilty to 2nd Degree Murder and Forcible Confinement and
was subsequently sentenced by Justice Dumo on 2001-10-03 to Life with parole
eligibility after 11 years.
[5]
When a psychiatric assessment was
done on the Applicant, the Sexual Offender Report completed on January 11, 2002
by Dr. Malcolm indicated that the Applicant’s offences did not have a clear
sexual component and a full Specialized Assessment was not needed at that time.
However, it was later recommended that he attend a moderate intensity sex
offender program.
[6]
The Applicant moved pursuant to s.
24 of the Corrections and Conditional Release Act, 1992, S.C. c. 20 (“CCRA”)
to have all references to the alleged sexual assault removed from his inmate
files. However, that request was denied by the Correctional Service of Canada
(“CSC”). The Applicant grieved the matter to the third level without success.
[7]
The Applicant is willing to seek sex offender counseling
but fears he would be required to admit guilt to the alleged sexual assault of
Ms. Seccombe. Without such admission he will be deemed to be in a state of
denial and this will negatively impact his chances of being granted Private
Family Visits (“PFV”) and/or a conditional release. He has participated twice
in a Sex Offender Treatment Program in 1992 and 1995.
[8]
The Applicant is now seeking
judicial review of that third level decision.
DECISION
[9]
The decision at the
third level succinctly stated:
The fact that
legislation and Correctional Service Canada policy makes it mandatory that
Police Reports are acquired and the information contained therein used in the
case management process, your grievance is denied.
ISSUE
[10]
Is the CSC in violation of its
section 24 obligation under the CCRA to ensure that information that it uses is
accurate, complete and up-to-date? If so, what information contained in the Applicant’s
inmate files should be expunged?
STANDARD
OF REVIEW
[11]
I have
examined and adopt as my own the pragmatic and functional analysis of Justice Lemieux in Tehrankari v. Canada,
[2000] F.C.J. No. 495 who stated at paragraph 44:
¶ 44
To conclude on this point, I would apply a correctness standard if the question
involved is the proper interpretation of section 24 of the
Act; however, I would apply the standard of reasonableness
simpliciter if the question involved is either the application of proper legal
principles to the facts or whether the refusal decision to correct information
on the offender's file was proper.
STATUTORY
FRAMEWORK
[12]
Section 23 of the CCRA states that
when an offender is admitted into federal custody, relevant information is obtained
about the offence and the offender.
23. (1) When a
person is sentenced, committed or transferred to penitentiary, the Service
shall take all reasonable steps to obtain, as soon as is practicable,
(a) relevant
information about the offence;
(b) relevant
information about the person's personal history, including the person's social,
economic, criminal and young-offender history;
(c) any
reasons and recommendations relating to the sentencing or committal that are
given or made by
(i) the court
that convicts, sentences or commits the person, and
(ii) any
court that hears an appeal from the conviction, sentence or committal;
(d) any
reports relevant to the conviction, sentence or committal that are submitted to
a court mentioned in subparagraph (c)(i) or (ii); and
(e) any other
information relevant to administering the sentence or committal, including
existing information from the victim, the victim impact statement and the
transcript of any comments made by the sentencing judge regarding parole eligibility.
[13]
Section 24 of the CCRA provides
that:
24. (1) The
Service shall take all reasonable steps to ensure that any information about an
offender that it uses is as accurate, up to date and complete as possible.
(2) Where an
offender who has been given access to information by the Service pursuant to
subsection 23(2) believes that there is an error or omission therein,
(a) the
offender may request the Service to correct that information; and
(b) where the
request is refused, the Service shall attach to the information a notation
indicating that the offender has requested a correction and setting out the
correction requested.
[14]
Section 10 of the CSC’s Standard
Operating Practice 700-02 Intake Information Collection contains a similar
provision to s. 23(1)(a) of the CCRA. Although revoked on April 10, 2006, this
Standard Operating practice was in force at the time the decision under review
was made. It stated:
10 When a
person is sentenced, committed or transferred to penitentiary, the Service
shall take all reasonable steps to obtain, as soon as is practicable, and shall
enter into the Offender Management System and, where applicable, record in the
CDC:
a.
relevant information about the offence, such as:
- Finger Print System (FPS) or SPIC;
- Police report providing critical details of the
offence;
ANALYSIS
1.
Is the CSC in violation of its
section 24 obligation under the CCRA to ensure that information that it uses is
accurate, complete and up-to-date? If so, what information contained in the Applicant’s
inmate files should be expunged?
[15]
The Applicant submits that the CSC
has a duty to take reasonable steps to ensure that all information concerning
an offender is accurate and up-to-date. The Applicant in a nutshell argues that
since he was not convicted of sexual assault, and since the court deliberately
removed all references in the Victim Impact Statement to the alleged sexual
assault, any reference in his file to the alleged sexual assault on Ms.
Seccombe should be removed or alternatively, the record should be clarified to
state that present offenses for which he is incarcerated do not include a
sexual component.
[16]
Before considering these
submissions it is important that the court take note of the context. As Lemieux
J. noted in Tehrankari, supra (another
case involving s. 24):
¶ 32 Any remedy flowing from this
proceeding must take into account the prison context is a special
one. For example, in Cardinal v. Director of Kent Institution,
[1985]
2 S.C.R. 643, Le Dain J. pointed out the minimal or essential requirements
of procedural fairness in the circumstances must be "fully compatible with
the concern that the process of prison administration, because of its special
nature and exigencies, should not be unduly burdened or obstructed by the
imposition of unreasonable or inappropriate procedural requirements ...”
[17]
Clearly s. 24 contains two very
distinct provisions. The first is to collect and maintain accurate information,
and the second is to correct inaccurate information at the request of inmates.
As Lemieux J. in Tehrankari, supra observed:
¶ 50 There are
two separate components to section 24 of the Act. First, the legal
obligation in subsection (1) concerning the accuracy, completeness and currency
of any information about an offender the Service uses and the reasonableness of
the steps taken to ensure this is so. Second, the provisions in subsection (2)
where an offender believes certain information contains an error or omission
and requests a correction which is refused.
¶ 51 The
purpose of subsection 24(1) seems clear. Parliament has said in plain words
that reliance on erroneous and faulty information is contrary to proper prison
administration, incarceration and rehabilitation. Counsel for the
respondent focussed on the limitation in the subsection -- the information must
be used by the Service. If the information is simply on file and not
used it has no consequence, he argues …
¶ 52 … The
structure of section 23 and 24 of the Act signal the type of information
contemplated for correction. It is profile information from which
the Service can use to predict an offender's likely behaviour. The
Commissioner acknowledged this DNA type information as at the root of the
Service exercising "the option of increasing your security level based on
a number of your history of violent offences, your record of escape and an
evaluation of information identifying you as an escape risk".
[18]
Here we are clearly dealing with both
obligations. First, I can see no argument as to why a police record should not
be kept under s. 23(10 (a) of the CCRA. Indeed, Section 10 of the CSC’s Standard Operating Practice 700-02
mandates the keeping of such information. The information involved in this case
is DNA type information, as that term is used by Lemieux J., i.e. information
that CSC can use to predict an offender’s likely behaviour.
[19]
The mere fact that information kept
within CSC files contains information obtained from a police report (which
describes charges that were not prosecuted) by itself does not make the information
incorrect as long as there is a clear distinction between allegations and
facts. As Mactavish J. pointed out in Brown v. Canada (A.G.), [2006]
FC 463, a case where allegations and charges of assault (never prosecuted) were
contained in the inmate’s record:
¶ 25 A
distinction has to be drawn between an allegation that a particular event has
taken place and an assertion that the event has, in fact, taken place.
…
¶ 31 I do not
accept Mr. Brown's contention that this type of information should not be
placed on his institutional files. Not only did he not offer any support for
his contention, but it seems to me that having this sort of information readily
available is especially important where, as in this case, Mr. Brown is serving
a lengthy sentence, and may be required to deal with a variety of Correctional
Service personnel over the life of his sentence in a number of different
institutions.
[20]
However the existence of such information can and sometimes does
lead to erroneous conclusions or statements. In the case at bar, the executive
summary regarding the Applicant’s grievance, which denied him PFV stated quite
correctly:
Mr. Russell is
a 50-year-old federal recidivist currently serving a Life sentence for 2nd
degree murder. The victim was his girlfriend’s male friend, and the offence
took place on 1997-12-28. He was arrested on the same day without incident. He
was charged with 1st Degree Murder, Sexual Assault with a weapon,
Sexual Assault and Unlawful Confinement (latter three against his then
girlfriend.). He pled guilty to 2nd Degree Murder and Forcible Confinement and
was subsequently sentenced by Justice Dumo on 2001-10-03 to Life with parole
eligibility after 11 years …
According
to the brief police report, Mr. Russell got into an argument with the
victim in the basement of his girlfriend’s apartment. Mr. Russell stabbed and
killed the victim. Neighbors contacted the police as they overheard the
confrontation. When the police arrived, Mr. Russell was covered in blood and
admitted to stabbing the victim.
This report
also indicates that at this residence just prior to the murder, Mr. Russell
lured his girlfriend up to her bedroom under the pretext of trying on a dress
he bought her for Christmas. Once there, Mr. Russell allegedly grabbed the
victim by the throat, pulled a knife and threatened the victim while he
demanded sex. He tied the victim to the bed and had forced vaginal intercourse
with her. He left her in this position for approximately two hours, during
which time the altercation and eventual murder took place.
(Underlining
added)
Respondent’s
Record page 107
[21]
Similarly, the psychological assessment dated January 11, 2002 stated:
“B. Malcolm
and K. Thibault briefly interviewed Mr. Russell on January 9, 2002 and briefly
discussed his current offences, as well as, his prior sexual offences and
treatment. In light of Mr. Russell’s current offences not having a clear
sexual component, and because he successfully completed the Sex Offender
Treatment Program at Warkworth Institution in 1992 and 1995 a full Specialized
Assessment was not deemed necessary at this time.
(Underlining added)
Respondent’s Record page 95
[22]
However psychological assessment
dated January 28, 2003 mixed up
allegations and facts and flatly observed:
That afternoon
Mr. Russell attended the victim’s home, when they consumed some alcohol and
exchanged gifts. Following this Mr. Russell lured the victim to her bedroom on
the pretext of having her try on a dress he given her as a gift. Once in the
bedroom, Mr. Russell produced a knife from a bag he was carrying and grabbed
the victim by the throat and demanded sex. Mr. Russell then proceeded to tie
the victim to the bed using cords from around the house. Mr. Russell forced
sexual intercourse with the victim and afterwards left the victim tied to
the bed for approximately two hours.
(Underlining added)
Respondent’s Record page 97
[23]
Thus, while the decision of the
third level grievance was reasonable as far as it went, it failed to take into
account the fact that police reports can lead to false conclusions and in the case
of the psychological assessment dated January
28, 2003, it actually did. Thus, this application will succeed in part.
[24]
Under these circumstances and
taking into account the prison context, what proper remedy will ensure that the
record does not lead to inaccurate conclusions, yet also guard against tying up
the CSC in unnecessary red tape?
[25]
In my view the easiest way to
achieve such a balanced result would be to order that the
Respondent:
a)
amend its Offender Management System (“OMS”) to note that no conviction
ever resulted from any charges of sexual assault and sexual assault with a
weapon (involving Ms. Seccombe) laid against the Applicant on December 28,
1997; and
b)
amend the psychological assessment report dated January 28, 2003 (found
at p. 97 of the Respondents Record) in order that the third sentence on page 2 starts
with the words According to the police report” so that the complete sentence
will read “According to police report, Mr. Russell forced sexual intercourse
with the victim and afterwards left the victim tied to the bed for approximately
two hours.”
ORDER
THIS COURT ORDERS that:
- This application for judicial review
is allowed in part;
- The respondent is ordered to:
- amend
its OMS to note that no conviction ever resulted from any charges of
sexual assault and sexual assault with a weapon (involving Ms. Seccombe)
laid against the Applicant on December
28, 1997.
- amend
the psychological assessment report dated January 28, 2003 (found at p. 107 of the Respondents Record) in
order that the third sentence on page 2 starts with the “According to the
police report” so that the complete sentence will read “According to
police report, Mr. Russell forced sexual intercourse with the
victim and afterwards left the victim tied to the bed for approximately
two hours.”
- Given the split result there will be
no order as to costs.
“Konrad
W. von Finckenstein”
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