Date: 19981013
Docket: T-1979-96, T-2057-96, T-2537-97
BETWEEN: T-1979-96
IRVINE FORREST
Applicant
- and -
THE SOLICITOR GENERAL FOR CANADA, and
CORRECTIONAL SERVICE OF CANADA (ONTARIO REGION)
Respondents
AND BETWEEN:
T-2057-96
IRVINE FORREST
Applicant
- and -
THE SOLICITOR GENERAL FOR CANADA, and
CORRECTIONAL SERVICE OF CANADA (ONTARIO REGION)
Respondents
AND BETWEEN:
T-2537-97
IRVINE FORREST
Applicant
- and -
THE SOLICITOR GENERAL FOR CANADA, and
CORRECTIONAL SERVICE OF CANADA (ONTARIO REGION)
Respondents
REASONS FOR ORDERS
MacKAY J.
[1] These reasons concern three applications for judicial review made pursuant to s.18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended. The first two applications, T-1979-96 and T-2057-96, were filed September 5, 1996 and September 16, 1996 respectively, and on December 4, 1996, Dubé J. ordered that they be heard consecutively. Both were dealt with in one hearing, on September 30, 1997. Subsequently, on November 21, 1997, a third application for judicial review was filed, and later amended with leave of the Court, on the basis of changed circumstances affecting the applicant. When leave was granted for amendment of the third application for judicial review, counsel for the applicant requested that decision in relation to the first two applications, then under reserve, be held until they could be disposed of at the same time as the Court's decision with regard to the third application, a request to which I agreed. Argument on the third application was heard at a hearing held April 22, 1998 and May 5, 1998.
[2] In his applications T-1979-96 and T-2057-96 as filed, the applicant seeks both certiorari and declaratory relief in relation to a decision denying his application for private family visits while he was held at Joyceville Penitentiary in 1996 (T-1979-96), and in relation to a subsequent decision for his involuntary transfer to Kingston Penitentiary (T-2057-96). However, by the time these matters came on for hearing in Toronto on September 30, 1997, the applicant had been granted private family visits at Kingston Penitentiary and had been advised that he was to be transferred from Kingston to a medium security prison. As a consequence, during oral argument before me, counsel for the applicant withdrew the request for certiorari to set aside the decisions, questioned in each of the applications, but he continued to seek declaratory relief in relation to ss.7 and 15 the Charter of Rights and Freedoms (the "Charter"). The change in circumstances led to a preliminary issue in oral argument before me, that is, whether the applications concerned issues that were then moot.
[3] When the applicant's transfer from Kingston Penitentiary failed to take place he brought an application for judicial review in file number T-2537-97, which application seeks, inter alia, an order quashing a decision dated December 2, 1997 refusing the applicant's request for a transfer to Warkworth Institution, a medium security prison, and an order of mandamus directing that the applicant be transferred to a medium security prison. The applicant also seeks a declaration, as in his other applications, that his rights under ss. 7 and 15 of the Charter of Rights and Freedoms have been violated by the transfer refusal.
Background
[4] The applicant is incarcerated as a prisoner in federal institutions, serving sentences of some 18 years for possession of a restricted weapon, firearm use, carrying a concealed weapon, possession of a narcotic for the purposes of trafficking, assault, assault with a weapon, forcible confinement, uttering a threat to cause death, and attempted murder. The applicant's offences involved a number of victims, many of whom had some sort of relationship with him. A Criminal Profile Report, dated February 16, 1996, while he was in Joyceville, indicated that the applicant's violent acts had been associated with aggressive sexual overtones.
[5] The first of his current convictions was dated October 25, 1994. He began serving his sentence at Milhaven Institution in May 1995. He was transferred to Joyceville in August 1995, and subsequently on September 11, 1996, he was ordered transferred, involuntarily, to Kingston Penitentiary, where he has remained at least to the final day of hearings in May 1998.
Denial of Private Family Visits (T-1979-96)
[6] The applicant first applied for private family visits ("PFV") at Joyceville in August 1995, for visits of his common law spouse, with whom he had fathered a child, and of her children, with whom he had played a fatherhood role. After delays related to procedural matters, he was advised by his case management officer ("CMO"), Rick Rogers, that he had to complete a training program "living without violence" before being granted a PFV. Further procedural delays ensued and the applicant lodged grievances. When he contacted the Warden with his concerns, the latter's administrative assistant replied by letter dated January 8, 1996, that the applicant had to complete an education program before receiving a PFV. On March 7, 1996, the applicant's request was formally denied, a decision that the applicant appealed.
[7] On March 25, 1996, the Senior Deputy Commissioner rejected the applicant's appeal on the basis of risk factors identified in the applicant's case, namely, a history of violent behaviour against others, including abusive, threatening and controlling behaviour toward family members; and the failure of the applicant to address family violence, a matter identified as a concern in his correctional plan.
[8] On April 29, 1996, the applicant completed a "living without violence" program offered to inmates in the institution. He then re-applied for a private family visit. A Progress Summary was prepared by the applicant's primary caseworkers on May 22, 1996, to address this second request. The Progress Summary reiterates many of the concerns cited in the earlier refusal, including the fact that many of the applicant's crimes were directed at people he knew and that many of the offences had strong sexual overtones and displayed elements of violence, control and other aspects pertaining to domestic violence. The applicant was assessed as a high needs/high risk case, and it was judged unrealistic to assume that the 10 day educational/awareness program "living without violence" would affect his behaviour significantly. The caseworkers recommended that the application for private family visits not be approved.
[9] The matter was referred to the Unit Case Management Board and from there to the Visitation Review Board. The latter comprises individuals from outside of the inmate's unit to ensure impartiality. On June 12, 1996, the Unit Board unanimously decided to deny the PFV application. Its report repeated that the crimes for which the applicant had been sentenced involved violence with sexual overtones and victims known to the applicant. Once again, the applicant was encouraged to take a family violence program. The Board noted that the applicant had taken the "living without violence" course but had been somewhat disruptive and controlling of the group engaged in the program. The Visitation Review Board concurred, indicating that there appeared to be areas that the applicant should address prior to approval of a private family visit program.
[10] The Board's decision, approved by the Review Board, was communicated to the applicant on June 26, 1996. The applicant appealed this decision to the Senior Deputy Commissioner and on July 31 this officer upheld the denial. It is this decision of the Senior Deputy Commissioner that the applicant challenges on constitutional grounds in file T-1979-96. Later, before this application was heard, the applicant was advised in May 1997, while at Kingston Penitentiary, that his application for private family visits was approved.
Background events leading to involuntary transfer (T-2057-96)
[11] The applicant asserts that he was actively involved while at Joyceville in seeking redress for what he saw as violations of the institution's rehabilitation mandate. He lodged a number of complaints and grievances against guards, including his CMO, Rick Rogers. He also asked the Corrections Investigator to look into the rejection of his request for private family visits, and he wrote to the Solicitor General's Office, the Jamaican Government and the Canadian Human Rights Commission about racism, as he perceived it from his experience at Joyceville.
[12] The applicant alleges that as a result of these activities, he was subjected to unfair practices. His request for discretionary transfer of funds from his savings account to his current account was refused, an allegedly exceptional rejection. He claims to have been expelled from school classes because of overdue assignments, again an exceptional penalty. He approached one Linda Cross, a member of his Case Management Team, to ask for her support in another application for private family visits and she refused. He alleges that: he was closely monitored by guards during visits; he was falsely accused of taking a book from the library, an act said to have put his life in jeopardy from other inmates; he had his confidential mail opened; and he believes he was unfairly restricted during his free time in the yard.
[13] In late July 1996, the applicant was implicated in events of concern at Joyceville. On July 26, members of the Black Inmates and Friends Association ("BIFA") and members of the Inmate Committee at Joyceville approached the Correctional Supervisor and advised that the applicant would be assaulted if he remained in the open population at Joyceville. Approximately 15 minutes later, correctional officers en route to escort the applicant into segregation, found that the applicant had been assaulted and had cuts on his hands and his knee. The applicant would provide no information on his injuries and he was placed in segregation, said to be for his protection.
[14] Also on July 26, the applicant was interviewed, by his former CMO, Rick Rogers, then serving as Internal Preventative Security Officer. Mr. Forrest indicated to Officer Rogers that he had been assaulted by a number of black inmates because of a difference of opinion between him and other members of the BIFA. He did not reveal names or seek to press charges. On the same day, correctional officials learned that another inmate had been cut during the altercation. At least four inmates told the investigator that the applicant had been assaulted when, after entering the BIFA room and pulling a knife from his waistband, he had ultimately stabbed another inmate in the back. The inmates also said that the applicant was known to carry a knife on a regular basis and was involved in encouraging one inmate to kill another, resulting ultimately in a murder on the previous day, an event apparently not related to the applicant's altercation on July 26. The applicant was described as an outcast among his colleagues in BIFA.
[15] The applicant and the victim of the stabbing were interviewed by the provincial police on July 30, 1996, but they did not provide additional information and neither desired to lay charges. As a consequence, the police investigation was closed.
Involuntary transfer of the applicant
[16] The applicant's case management team met on July 29, 1996. They concluded that the then recent events, coupled with the nature of the offences leading to his incarceration, suggested that the applicant presented a risk that was no longer manageable at a medium security institution. The applicant was informed of this view, and he then advised correctional officials that he intended to rebut a recommendation for involuntary transfer. He received, apparently on August 6, 1996, a copy of the Progress Summary, completed by his case management team and dated July 30, 1996, assessing the events of late July.
[17] On August 6, a Notice of Involuntary Transfer Recommendation was completed, recommending that the applicant's case be studied for transfer to Kingston Penitentiary, a maximum security institution, because of reliable information indicating that the applicant regularly carried a weapon and that he was responsible for stabbing the victim injured on July 26. This behaviour and the nature of the offences for which the applicant had been convicted were said to render the applicant more properly a subject for incarceration in a high security facility.
[18] That same day, the applicant was notified of the transfer recommendation and was apparently given 48 hours to make submissions. The applicant's counsel wrote a letter to the Joyceville Warden expressing concern regarding the proposed transfer to Kingston. On August 8, 1996, counsel wrote again to the Warden, reiterating concerns expressed on August 6, 1996 and asking for a copy of the Progress Summary.
[19] A Security Intelligence Report prepared by Officer Rogers was received by the applicant's case managers and on August 8, 1996, a Progress Summary Addendum was prepared summarizing the findings of the Security Report and re-iterating the case managers' recommendation that the applicant be transferred to a high security facility. The closest such facility was Kingston Penitentiary.
[20] On August 13, 1996, the applicant prepared a rebuttal to the proposed transfer and Progress Summary Report. A copy of this rebuttal and of the Progress Summary Addendum were sent by fax to the applicant's counsel on August 15 and 16, 1996. Counsel for the applicant then wrote a letter to the Warden, dated August 16, 1996 and sent August 19, 1996. The letter advised that the Chairman of BIFA had told the investigating officer, Rick Rogers, that the applicant had not stabbed the wounded inmate. Counsel also noted that there existed a reasonable apprehension of bias on the part of Rick Rogers because of the applicant's previous grievances and complaints about him. The applicant's counsel requested that further investigations into the stabbing be conducted and, if the circumstances warranted, that the applicant be charged with an offence so he could have an opportunity to cross-examine the victim, and presumably others.
[21] On August 20, 1996, the Warden recommended that the applicant's case be examined for transfer by the Regional Administrator of Community and Institutional Operations. The Warden noted that the applicant's rebuttal had been reviewed by an institutional multi-disciplinary team and that his solicitor's remarks had been noted. The applicant was notified of this recommendation that same day.
[22] The transfer recommendation was reviewed by the Regional Transfer Board which approved the transfer of the applicant on September 11, 1996. This decision was made with the applicant's rebuttal and the letters from his counsel dated August 6, 8, and 16 among the materials before the Board. The applicant was notified of his right to appeal within 30 days. No appeal was lodged.
[23] The applicant says he never received any of the information upon which the Board was relying in making its decision. The applicant received notice of his transfer on September 15, 1996 and he was shown the transfer order but was not given a copy. He refused to sign the decision, instead he requested that it be sent to his counsel, which was done. The reasons given by the Board for approving the transfer included that the applicant had been identified by five reliable independent sources as the person responsible for a stabbing, and it had been revealed on the basis of reliable information that the applicant carried a knife within the institution.
[24] It is this decision that the applicant challenges in Court file T-2057-97.
The request to transfer back to a medium security facility (T-2537-97)
[25] In the summer of 1997, before the first two applications for judicial review were heard, while the applicant was at Kingston Penitentiary, he applied for transfer to one of two medium security facilities, including Warkworth Institution. On August 12, 1997, his case management officer at Kingston prepared a progress summary report recommending such a transfer.
[26] Initially, the transfer was approved by the Wardens at both Warkworth and Kingston, but the Warden at Warkworth, having reviewed the applicant's file, amended his decision and subsequently declined to approve it on September 25, 1997. This was some days after the applicant reportedly made allegations, carried in the media, of unfairness towards Black inmates incarcerated at Kingston.
[27] In late October, the applicant received a Transfer Referral Decision Sheet, indicating that his transfer to Warkworth was not approved. He grieved this decision on October 27, 1997 and was then informed, by a note apparently received on November 24, 1997, that the case was being referred to the Regional Administrator, Correctional Operations, the official charged with rendering a decision when wardens of the sending and receiving institution are unable to agree on the resolution of a request for voluntary transfer.
[28] An Institutional Transfer (Voluntary) Referral Decision Sheet, dated December 2, 1997 reproduces comments of the Warden of Warkworth, dated September 25, 1997, expressing concern with the applicant's history, and a Final Decision, signed by the Regional Administrator, Correctional Operations. This decision reads as follows:
| |
Subsequent to the emergency involuntary transfer to Kingston Penitentiary on Sept. 16, 1996, Forrest has been convicted (Mar. 04, 1997; July 10, 1997) of two serious charges (in relation to incidents on Dec. 20, 1996, and Mar. 27, 1997) and another serious charge was withdrawn on Apr. 17, 1997, due to the reported inavailability [sic] of the charging officer (relating to a reported incident on Mar. 26, 1997). He has also been convicted (Nov. 18, 1997 - x2; July 28, 1997) of three minor charges (in relation to incidents on July 28, 1997, Oct. 14, 1997, and Oct. 31, 1997) and his behaviour also warranted the filing of (5) respective incident reports in July 1997 (in relation to incidents on July 06, July 11, July 15, July 22, July 30), another in August (04). Having regard to this information, and being unable to ascertain any significant relationship between program achievement and a sustained period of improved institutional deportment, it is not my impression that sufficient grounds exist at this time upon which a reduction in the institutional adjustment rating (high to moderate) can be reasonably justified. The existing escape and public safety ratings are not in dispute. ... Transfer to Warkworth Institution is not approved. |
|
It is this decision that the applicant challenges in Court file T-2537-97.
[29] The applicant, in an affidavit in support of this application urges that the December 20, 1996 and March 27, 1997 events referred to in the Regional Administrator's decision were overstated. As regards the March 27, 1997 event, the charge was ultimately dropped; for although the applicant was placed in segregation as a consequence of that event, in which he was viewed initially as the aggressor in a serious altercation, he was ultimately found not to have been the aggressor and was released from segregation and returned to the general prison population.
[30] On January 22, 1998, the applicant was advised by his CMO that the applicant's classification would be reduced to medium once more and that he would be transferred to Warkworth Institution. Before this was done, on February 18, 1998, a security officer is said to have viewed the applicant assaulting another inmate, resulting in institutional charges being laid against the applicant. Following that incident, on March 10, 1998, the Warden of Kingston approved a recommendation from the applicant's case management team that the applicant remain at a maximum security institution and that his security classification be classified as maximum. On April 16, 1998, the applicant was informed by the Warden that there was insufficient evidence relating to the applicant's role in the assault to pursue institutional or criminal charges, but the incident did warrant the thorough investigation and a carefully timed release of the applicant from segregation.
[31] An outside review committee, earlier struck to inquire into one of the applicant's complaints, concluded, in a report dated January 6, 1998, but apparently only received by the applicant on April 20, 1998, that the attitude of some staff towards the applicant might stem from Mr. Forrest's confrontational attitude towards "the system". That report recommended, based on the applicant's complaints, that an outside investigation be conducted to address the applicant's concerns regarding racism at Kingston.
[32] The applicant, during his stay at Kingston, has continued his work with BIFA and has acted as an advocate for Black inmates. He claims to have suffered discriminatory treatment as a consequence, including refusals to allow PFV or to increase his pay level, and denial of access to food, nursing and staff.
The issues
[33] In oral argument relating to files T-1979-96 and T-2057-96, the respondent urged that both the decisions complained of were moot when the applications were heard in September 1997, owing to the earlier approval of private family visits, and to the then anticipated transfer of the applicant from Kingston to a medium security institution. When the third application in file T-2537-97 was heard, the denial of the anticipated transfer in December 1997, it is suggested, might render the argument of mootness inapplicable in regard to the basic issue in T-2057-96, i.e. whether the applicant should be assigned to a maximum security institution, but the decision in question, made in September 1996, is clearly a matter that cannot now usefully be reviewed. An issue is moot where circumstances of concern, flowing from the impugned decision, no longer exist.1 Clearly, in the case of the transfer decision, the circumstance of concern, i.e., the determination that the applicant be detained in a maximum security institution continues not as a result of the decision questioned in T-2057-96 but because of the decision arising from events at the Kingston penitentiary in February 1998. In the result, when the third application in T-2537-97 was heard, the decision there in question, made in December 1997, referring the applicant's application for transfer, was also moot. The Court's intervention in relation to the questioned decision in each of those applications could have no effect upon the status of the applicant or his rights arising from the later decision, made in March 1998, that he remain in a maximum security institution as a result of the incident in February 1998.
[34] While all three applications raise issues that are moot in regard to the relief requested of setting aside particular decisions, the applications also seek declaratory relief, with counsel for the applicant relying on events detailed in all three applications in urging this Court to find violation of his rights under ss. 7 and 15 of the Charter. In dealing with that requested relief, the issues that are addressed in these reasons are:
| A. In files T-1879-96 and T-2057-96: |
| Did the decisions relating to private family visits and the applicant's transfer to Kingston Penitentiary stem from systemic discrimination and targeting of the applicant at Joyceville so that the applicant's rights to equal treatment under the law, guaranteed by s.15 of the Charter, and to fairness under s.7, were violated? |
| Were the applicant's ss. 7 and 15 rights under the Charter breached as a result of the denial of his requested transfer? |
If there were such a violation, what relief is appropriate?
[35] For the record, I note there is no indication that notice of a constitutional challenge was served upon all attorneys-general in accord with s.57 of the Federal Court Act. The relief sought is not to declare statutory or regulatory provisions ultra vires or inoperable, thus that provision for notice would not appear applicable.
T-1879-96 and T-2057-96
[36] Underlying the two decisions here questioned, the applicant claims that his rights to equal treatment under the law guaranteed by s.15 of the Charter and to fairness under s.7 were violated by reason of the systemic oppression and targeting against him, by staff at Joyceville. The grounds of unequal treatment are alleged to be race and membership in the group of black inmates in Federal penitentiaries.
[37] The applicant sets out a number of allegations of unfair treatment, as he perceives it. His activities in exposing unfair treatment against black inmates and his participation as chairman and then secretary of BIFA, at Joyceville, are said to warrant an examination by the Court of the actions of staff and the applicant's allegations of their possible complicity in the events of July 26, 1996, when another inmate was stabbed and the applicant was ultimately considered responsible. In the applicant's opinion, it is not unreasonable to contemplate, given his activist orientation, that the attack on him by black inmates was induced by guards encouraging the inmates to teach him a lesson. The applicant submits that the institution turned a blind eye to his injuries from the event and to possible complicity of those who pointed to him as the one who had stabbed the knifing victim. I note there is no other evidence to support these allegations of the applicant.
[38] The test for a breach of s.15 of the Charter was set out by the Supreme Court of Canada in Andrews v. Law Society of BC2, and interpreted by the Court in the more recent case of Miron v. Trudel.3 The two step process relied upon by four judges in Miron has since been endorsed by a unanimous Supreme Court in Benner v. Canada (Secretary of State).4 More recently, the development of the case law concerning s. 15 was commented on as follows by the majority of the Court in Vriend v. Alberta:5
| |
The essential requirements of all these cases will be satisfied by enquiring first, whether there is a distinction which results in the denial of equality before or under the law, or of equal protection or benefit of the law; and second, whether this denial constitutes discrimination on the basis of an enumerated or analogous ground. |
|
[39] Relying on these authorities, I conclude that in the case at bar, the applicant must show that he has been denied "equal protection" or "equal benefit" of the law, as compared with some other person. Second, he must show that the denial amounts to discrimination; that is that the denial rests on one of the grounds enumerated in s. 15(1) or an analogous ground, so that the unequal treatment is based on stereotypical application of presumed group or personal characteristics as set out in those grounds.
[40] I am not persuaded there is evidence that the applicant has been denied equal protection or benefit under the law. The applicant urges that the behaviour of the guards in applying the law and regulations robbed him of equal protection and benefit because of his race and colour. The applicant alleges that he was treated differently in a variety of ways, in his access to the yard, the alleged theft of a book, his expulsion from school, the tardiness with which his application for personal family visits was considered, and the manner in which he was treated as a result of the July 1996 stabbing incident. The Court is asked to infer that there was racial discrimination on the basis that the applicant was treated differently from inmates generally, that he is black, and that he played a leading role in dealing with alleged racism in the institution. Yet, to amount to a s.15 breach, there must be evidence to support his allegations of different treatment, and that it was based on one of the grounds enumerated in s.15 or a close analogy to those grounds. Here, there is not evidence to support a conclusion that there was different treatment of the applicant or that dealing with him can be said to constitute discrimination on the basis of race or colour.
[41] The applicant's submission that it would not be unreasonable to conclude that he was attacked at the behest of the guards because of his activist activities is premised on an assumption of bad faith on the part of the staff. To establish bad faith, in my opinion, the applicant must demonstrate more than suspicion or possible motive. There is no evidence adduced to support staff complicity in the attack on July 26, 1997 and I am not persuaded that the alleged actions by the guards about which the applicant complains demonstrated to bad faith. In particular, I do not find bad faith in the prison officials' insistence that the applicant undertake a family violence program before receiving a private family visit, or in their investigation of the incidents of July 26, or in the fact that his former CMO, Officer Rogers, completed the internal security report about the events of July 26, although he was earlier the object of grievances filed by the applicant. There is not a basis to conclude these were unreasonable activities by prison officials seeking to maintain the safety of persons and the security of the institution, as required in the Corrections and Conditional Release Act, S.C. 1992, c.20.
[42] With respect to s.7, the applicant submits that his rights to life, liberty and security of the person were engaged by the decision to transfer him from a medium security facility to a maximum security prison and as a result, the process of considering the transfer must meet the requirements of fundamental justice. That seems well settled by jurisprudence.6 The applicant argues that he did not know the full case against him because he was not provided with all the information obtained from the applicant's accusers before the transfer was approved. Further, the institution demonstrated bad faith by transferring him even though there was competing evidence, apparently not investigated, to suggest that the applicant had not attacked the stabbing victim.
[43] The applicant also submits that despite s.12 of the Regulations7, which sets out procedures to be followed prior to a transfer and which may permit written responses by the inmate but not a hearing, the circumstances here warranted a hearing before the transfer. It is urged that since credibility issues were at play there should have been a hearing, or the institution should have charged the applicant with an offence so that he would have had an opportunity to challenge the credibility of inmates who named him as the culprit in the knifing.
[44] I do not agree that there was any violation of s. 7 in this case. In my opinion, the procedure did not violate the requirements of fundamental justice. The requirements of fundamental justice vary depending on the circumstances, and these requirements have been considered in several cases in the context of involuntary prison transfers. Mr. Justice Marceau, concurring with the majority in Gallant8, held that what is at issue with respect to fundamental justice in procedures relating to a prison transfer is the audi alteram partem principle, requiring an opportunity for reasonable participation of the person affected before the decision being taken is made, to permit the person affected to bring forth information that can help the decision-maker reach a fair and prudent conclusion. At the same time, the decision to transfer is not a conviction for an offence. What is required of the decision-maker is a reasonable belief that the prisoner should be moved for the sake of the orderly and proper administration of the institution. Fundamental justice is met if the prisoner can make representations that the recommendation that he be moved is unreasonable, and these are considered before the transfer decision is made.
[45] That principle, as applied in Gallant has been followed by Mr. Justice Strayer where he commented , in part, in Camphaug v. Canada9:
| |
...it was not for the Deputy Commissioner to retry all the allegations against the inmate on the basis of detailed evidence; it was sufficient that he form a reasonable opinion that Camphaug should be moved after Camphaug had an adequate opportunity to comment on that issue. |
|
[46] With respect to the issue of what information must be disclosed in an involuntary transfer, Mr. Justice Hugessen, for the Federal Court of Appeal in DeMaria v. Regional Clarification Board10, held that not only does the duty to act fairly in transfers require adequate notice and a fair opportunity to answer allegations, it is also important that the notice of allegations provided to the inmate contain as much detail as possible to ensure that the right to answer is not illusionary. In that case, his Lordship wrote:
| |
There is, of course, no doubt that the authorities were entitled to protect confidential sources of information. A penitentiary is not a choir school and, if informers were involved (the record here does not reveal whether they were or not), it is important that they not be put at risk. But even if that were the case it should always be possible to give the substance of the information while protecting the identity of the informant. The burden is always on the authorities to demonstrate that they have withheld only such information as is strictly necessary for that purpose. A blanket claim, such as is made here, that "all preventive security information" is "confidential and (cannot) be released", quite apart from its inherent improbability [footnote omitted], is simply too broad to be accepted by a court charged with the duty of protecting the subject's right to fair treatment. In the final analysis, the test must be not whether there exist good grounds for withholding information but rather whether enough information has been revealed to allow the person concerned to answer the case against him. |
|
[47] Mr. Justice Rouleau, in Armstrong v. Canada (Commissioner of Corrections)11, referring to Demaria, wrote that "The decision as to what information should be released to an inmate is not always an easy one; it involves balancing the inmate's right to liberty against the rights of safety and security of the person of other inmates at the institution." In that case, the applicant in a prison transfer was given information that informants and internal investigations had established his role in drug smuggling in the prison but few details were included and the identities of the informants were not provided. In holding that there had been no breach of procedural fairness, Rouleau J. wrote that "...withholding the identity of the informants was justified as well as the details of their statements;...this information would in all likelihood identify its source. I am satisfied that the Applicant was given enough information...". There, the applicant had submitted lengthy rebuttals once he was informed of the accusations, despite the lack of particulars.
[48] In Gaudet v. Marchand12, Rothman J.A., for the Québec Court of Appeal, commented that:
| |
The identities and statements of police informers is, of course, protected by a well-established rule of confidentiality...In a prison context, the reasons for the rule are too obvious to need elaboration. Suffice it to say, there would be few prison informers if their identities were not protected. |
|
[49] On the facts in this case, in my view, the evidence on the record in Court file T-2057-96 supports the conclusion that there was a basis for a reasonable belief on the part of the Regional Transfer Board that Mr. Forrest should be transferred. The applicant had an adequate opportunity, more than 48 hours, to comment in advance of the decision, and his comments were before the decision makers at various levels, including the Regional Transfer Board. The applicant and his counsel had the progress summary and its addendum recommending this transfer before counsel for the applicant made submissions on August 16, 1994, some weeks before the Board's decision. While the applicant was not given a copy of the Security Intelligence Report completed after the events of July 26, 1996, those other reports adequately summarized for him the key elements of the Security Intelligence Report, including findings and material points in this document in support of the recommendation for transfer. In sum, in my opinion, there was sufficient information available to the applicant and sufficient opportunity for him to comment before the transfer decision was made, thereby satisfying the requirements of fundamental justice. Further, I find that there were grounds upon which the prison officials could reasonably determine to transfer the applicant.
[50] The applicant submits that in the circumstances of this case, s.7 demands a formal hearing before a transfer, to allow the applicant to question the credibility of those informing on him. It is well settled that fundamental justice does not generally require formal hearings before transfers in the prison system. In the words of Mr. Justice Strayer in Jamieson v. Canada (Commissioner of Corrections)13:
| |
The jurisprudence is clear that there is a requirement of fairness when decisions are taken to transfer prisoners within the prison system... It is clear that this does not involve the requirement of a formal hearing prior to a transfer decision...It also seems clear that since the coming into force of the Canadian Charter of Rights and Freedoms, s. 7 thereof applies but the "principles of fundamental justice" do not require more than the common law duty of fairness... |
|
[51] In Gaudet v. Marchand14, the applicant sought unsuccessfully to have set aside his transfer from a maximum security institution to a special handling unit at another penitentiary, after informants reported that the applicant was planning a prison break. On appeal it was urged that the applicant should have been given the informers' statements and an opportunity to confront the informers in a hearing. Prison officials had given the applicant an opportunity to make representations in person and in writing. In holding that there was no breach of procedural fairness, the Québec Court of Appeal commented that
| |
The standards by which procedural fairness is measured are not immutable. They vary according to the context in which they are invoked...A criminal trial to determine the guilt or innocence of an accused person is a different context from a hearing to determine the transfer of a prisoner from the general prison population to administrative segregation or a special handling unit and the hearing cannot be the same....In this case, appellant was given the opportunity to consult counsel and to make representations in person and in writing as to the reasons for the transfer....In my view, the authorities satisfied their obligation to act fairly... |
|
[52] In my view the Regulations do not infringe s. 7 of the Charter by permitting transfers without a prior oral hearing and the absence of a hearing in this case did not violate s. 7 rights of the applicant, in particular his rights to fundamental justice under that section of the Charter.
T-2537-97
[53] As we have seen, Court file T-2537-97 deals with the decision of December 2, 1997, to refuse the applicant's transfer from Kingston to Warkworth penitentiary. The applicant urges that s. 7 of the Charter is triggered by the treatment of his request for transfer from a maximum to medium security prison. It is submitted that the processing of the transfer application failed to comply with fundamental justice in several respects. First, the applicant submits that the Warden of Warkworth, in changing his mind on the transfer application and disapproving a request he had initially approved, was influenced by extraneous matters, namely, an interview given by the applicant to the media. The decision is said to have been made in bad faith. Support for this view is said to come from the implausibility of the Warden inadvertently approving the transfer, and then changing his mind. Further, the reasons given by the Warden for changing his mind, namely, that the transfer was pre-mature, were not spelled out in detail and his rationale failed to comply with the criteria used to assess the security category of an offender. The applicant also urges that a legitimate expectation that he would be transferred arose from the initial approval of the applicant's transfer to Warkworth. These arguments concern a decision, of the Warden at Warkworth Institution, that is not in issue in this application for judicial review.
[54] Second, as I understand him, the applicant urges that the decision-maker responsible, the Regional Administrator, for the December 2, 1997 decision questioned by this application, violated fundamental justice by improper reliance upon alleged convictions of the applicant listed in her reasons, not all of which were accurately described by her. Some of those referred to by her related to incidents not previously considered by his case managers in relation to this application for transfer. Further, the Regional Administrator failed to address whether the applicant fit the profile of a maximum security inmate as required by Commissioner's Directives.
[55] Third, the applicant submits that time requirements set out in Correctional Service policy were ignored, resulting in a violation of procedural fairness. In this regard, the decision on the voluntary transfer came 112 days after his application, rather than 60 days as required by policy and regulation. As a consequence, the decision-maker took into account offences and concerns occurring in October and November 1997 that fell outside of the 60 day period required by the policy. A number of other steps required by policy are also said to have been ignored, including a requirement that where the receiving Warden does not agree with the transfer, he or she is to notify the sending Warden who will then review the reasons for rejection and reconsider the matter, then render his or her ultimate decision and notify the prisoner within five days. This, it is urged, was not done.
[56] For its part, the respondent urges that the applicant's s. 7 rights are not engaged in this application as the decision here questioned did not deprive the applicant of any residual liberty since his status has not been affected, for he continues in a maximum security institution as he was before the decision.. In any event, it is urged the requirements of fundamental justice were met. The applicant had opportunity to know and comment upon the decision of the Warden of Warkworth before the Regional Administrator was involved. The applicant was informed of the decision, provided with written reasons and informed about his right to invoke the internal inmate grievance process. I agree that the requirements of s. 7 of the Charter were here met. There is no requirement that the applicant be given an opportunity to respond to comments of the decision maker, other than by filing a grievance.
[57] Finally, it is urged that the Court should not issue an order in the nature of mandamus, as here requested, requiring that the applicant be transferred, for the decision in question is a discretionary one, not one where the decision-maker owes a clear duty to act in a specified way. Moreover, the respondent submits that no order should issue at all for the applicant here had available to him an alternative process for a remedy, the internal grievance process.
[58] If the issue were not moot, in view of the jurisprudence it is my opinion this application was premature. There was available to the applicant an alternative process for review of the decision, by the internal grievance process. The applicant was informed of that process with notification to him of the decision of the Regional Administrator, but he did not thereafter file a grievance. It is urged that his unsatisfactory experience in filing grievances in regard to numerous incidents of alleged wrongful activities of corrections officers, particularly in regard to their alleged racist behaviour, explains his unwillingness to utilize that form of relief yet again. Moreover, it is urged that the regulations provide for suspension of the internal grievance procedure pending disposal of other procedures initiated to deal with the matter.
[59] In Fortin v. Donnacona Institution, (Court file T-2052-95, January 30, 1997, [1997] F.C.J. No. 138 (F.C.T.D.)), my colleague Mr. Justice Teitelbaum held that the inmate's internal grievance process provides an alternative that, if not pursued, precludes the extraordinary relief available by judicial review, in the absence of the flagrant denial of natural justice. Here there was no flagrant denial of natural justice that would warrant exceptional intervention by the Court. Despite the applicant's perceptions of mistreatment because of his colour, there is not evidence supporting those perceptions in the third, or any earlier application. Finally, I agree with counsel for the respondent that an order in the nature of mandamus, to require transfer of the applicant, would not be available in the circumstances of this case where the decision in question was one within the discretion of the Regional Administrator.
[60] An aspect this application, stressed by counsel, as in the two earlier applications for judicial review, is the applicant's concern that his experience in the correctional institutions demonstrates a continuing pattern of racial discrimination violating his equality rights under s. 15 of the Charter. It is urged on his behalf that he has been harassed and mistreated, that occurrences and charges referred to in the decision of the Regional Administrator, at issue in T-2537-97, reflected racial discrimination against him by correctional officers. Further, in oral argument counsel for the applicant referred to events and actions occurring after the decision in question was made in December 1997, urging that these demonstrated continuing unfair treatment, discrimination, against the applicant.
[61] The subsequent events are not relevant in review of the December 2, 1997 decision here in issue. Moreover, with respect to the applicant's concern about a history of discriminatory treatment, an application for judicial review, which deals with a single decision or a similar process for declaratory relief are not readily adapted to review a series of events or decisions which the applicant relies upon to establish the basis for his relief, but the facts of those events are in dispute. While the applicant may perceive his experience as one of racial discrimination, there is no real evidence to support that perception in this application, or in the three applications for judicial review taken together. There is not here established a basis for finding discriminatory treatment of the applicant necessary to find a violation of s. 15 of the Charter.
[62] Yet it seems clear that the applicant and correctional officers have a difficult relationship. By affidavit filed in this matter the applicant's Unit Manager at Kingston avers that the applicant is "a very difficult inmate to manage" and that "He continually challenges the authority of correctional officers as well as the rules of the institution and alleges that virtually all decisions are racially motivated and discriminatory even when those decisions constitute enforcement of the rules of the institution...".
[63] Earlier, an outside review committee recommended further investigations of the applicant's complaints of racial discrimination at Kingston. Presumably such an inquiry would be by an independent agency. That process would facilitate review of the history of the experience of the plaintiff, and others, over a period of time, in a manner better adapted to a general survey of practices followed than is the process for judicial review.
Conclusion
[64] Orders issue in each Court file, dismissing these applications for judicial review. While the request to set aside questioned decisions was withdrawn in the first two applications, in the case of the third, T-2537-97, the questioned decision was moot when the matter was heard. Moreover, for the reasons set out, I am not persuaded there is evidence of infringement of the applicant's ss. 7 or 15 rights under the Charter in regard to the denial, on July 31, 1996, of private family visiting rights (T-1979-96), or in regard to his involuntary transfer to Kingston in September 1996 (T-2057-96), or with respect to the December 2, 1997 decision of the Regional Administrator (T-2537-97) rejecting his application for transfer to a medium security institution.
[65] At the hearing, the applicant requested costs on a solicitor client basis on the basis that the alleged systemic victimization of the applicant at the hands of correctional officers constitutes a special reason to grant costs. I have not been persuaded that the evidence here warrants a conclusion that the applicant was victimized as suggested. In my opinion, there is not any special reason within the meaning of Rule 1618, as it then was, to consider any award of costs to the applicant. Moreover, there is no record of delay or inappropriate action by the respondent Minister or the Correctional Service, in relation to the proceedings for judicial review, that would warrant consideration of costs on a solicitor and client basis. As was usual in judicial review proceedings when these applications were heard, in the absence of special reasons, in accord with Rule 1618 of the Federal Court Rules, C.R.C 1978, c. 663, as amended, which applied at all material times, there will be no order concerning costs.
[66] I direct that a copy of these Reasons be filed on each of Court files T-1979-96, T-2057-96 and T-2537-97.
"W. Andrew MacKay"
Judge
TORONTO, ONTARIO
October 13, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1979-96, T-2057-96, T-2537-97
| STYLE OF CAUSE: IRVINE FORREST |
- and -
| THE SOLICITOR GENERAL FOR CANADA, and CORRECTIONAL SERVICE OF CANADA (ONTARIO REGION) |
| DATE OF HEARING FOR T-1979-96 TUESDAY, SEPTEMBER 30, 1997 |
| (T-1979-96 and T-2057-96) |
| TUESDAY, MAY 5, 1998 (T-1979-96, T2057-96, T-2537-97) |
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: MACKAY, J.
DATED: TUESDAY, OCTOBER 13, 1998
APPEARANCES:
Tuesday, September 30, 1997 and
| Tuesday, May 5, 1998: Mr. Osborne G. Barnwell, Esq. |
For the Applicant
| Tuesday, September 30, 1997: Ms. Charleen Brenzall |
Tuesday, May 5, 1998: Ms. C. Brenzall and Ms. G. Sinclair
For the Respondents
SOLICITORS OF RECORD: Ferguson, Barnwell
| 515 Consumers Road, Suite 310 |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondents
FEDERAL COURT OF CANADA
Date: 19981013
Docket: T-1979-96, T-2057-96, T-2537-97
Between:
Applicant
- and -
| THE SOLICITOR GENERAL FOR CANADA, and CORRECTIONAL SERVICE OF CANADA (ONTARIO REGION) |
Respondents
REASONS FOR ORDERS
__________________
1 Cross v. Canada (Minister of Citizenship and Immigration) (1996), 111 F.T.R. 304, 33 Imm.L.R. (2d) 251 (F.C.T.D.).
2 [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1, 91 N.R. 255 (S.C.C.).
3 [1995] 2 S.C.R. 418, 124 D.L.R. (4th) 693, 181 N.R. 253.
4 [1997] 1 S.C.R. 358, 143 D.L.R. (4th) 577, 208 N.R. 81 (S.C.C.).
5 [1998] 1 S.C.R. 493 at 539, 156 D.L.R. (4th) 385 at 419 (S.C.C.), 224 N.R. 1 at 54-55.
6 Gallant v. Canada (Deputy Commissioner, Correctional Service), [1989] 3 F.C. 329 at 337, 92 N.R. 292 at 298, 36 Admin. L.R. 261 at 269, per Pratte J.A. (F.C.A.).
7 Correctional and Conditional Release Regulations, SOR/92-620.
8 Supra note 6, at 343 of F.C., 300-301 of N.R., 273-274 of Admin. L.R.
9 (1990), 34 F.T.R. 165 (F.C.T.D.).
10 [1987] 1 F.C. 74 at 77, 69 N.R. 135 at 137, 21 Admin. L.R. 227 at 231 (F.C.A.).
11 (1994) 79 F.T.R. 299 at 301 and 302 (F.C.T.D.).
12 (1994) 63 Q.A.C. 286, 94 C.C.C. (3d) 1 (Qué. C.A.), aff [1994] 3 S.C.R. 514.
13 (1986), 2 F.T.R. 146 at 148, 51 C.R. (3d) 155 at 159-60 (F.C.T.D.).
14 Supra note 12.
Email this Content