Latham v. Saskatchewan Penitentiary Disciplinary Board, 2005 FC 266

Date: 20050218

Docket: T-873-04

Citation: 2005 FC 266

BETWEEN:

                                                           BRYAN R. LATHAM

                                                                                                                                            Applicant

                                                                           and

                                              SASKATCHEWAN PENITENTIARY

                                                        DISCIPLINARY BOARD

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

SIMPSON, J.

[1]                The Applicant is an inmate who is serving an indeterminate sentence as a dangerous offender at the Saskatchewan Federal Penitentiary (the "Applicant"). He has applied for judicial review of a decision made by an Independent Chairperson ("ICP") dated April 7, 2004 (the "Decision"). Although originally charged with threatening to assault another person (the "Charge") contrary to subsection 40(h) of the Corrections and Conditional Release Act, S.C. 1992, c.20 ("CCRA"), the Applicant was actually convicted of engaging in disrespectful or abusive conduct under subsection 40(g) of the CCRA (the "Other Offense").

[2]                The Applicant was sentenced to two days in segregation with credit given for time served. His conviction and sentence also had an administrative impact in the sense that security classification points were added to his security classification record.

THE FACTS

[3]                Since this decision does not turn on the facts they will not be described in detail. Suffice it to say that, on February 12, 2004 during a meeting between the Applicant and a parole officer (the "Officer") in the latter's office, the Applicant's Acting Unit Manager (the "Manager") intervened to terminate meeting. In response, the Applicant is alleged to have invaded the Manager's personal space, "stuck" a coffee cup in his face and said "I'm warning you not to get involved". After the incident the Applicant was returned to his cell but the next day he was moved to segregation where he remained for six days.

PROCEEDINGS

[4]                The Charge was laid on February 13, 2004 and was heard and disposed of by the ICP on April 7, 2004. The Crown called the Officer as a witness and the Applicant testified on his own behalf. The Manager did not testify. At the end of the proceeding, without notice to the Applicant, the ICP convicted him of the Other Offense which she described as an "included offense".

THE ISSUE

[5]                Given that the charge was laid under subsection 40(h) of the CCRA, was the ICP entitled to convict him of the Other Offense under subsection 40(g) of the CCRA on the basis that it was an included offense?

DISCUSSION

[6]                The relevant sections of the CCRA read as follows:

[7]                The ICP's hearing was conducted pursuant to section 43 of the CCRA. It provides in part:

[8]                The Applicant had no opportunity to consider and respond to the Other Offense because the ICP treated it as "included" and did not mention it until she wrote the Decision. However, in submissions before me, counsel for the Respondent said that there was no possibility that the Applicant's case had been prejudiced by the fact that he was unaware that the Other Offense was going to be considered. He said that the elements of both the Charge and the Other Offense were the same and that the evidence would have been the same regardless of whether the Charge or the Other Offense had been heard.

[9]                I have not found this submission persuasive. In my view, the Charge and the Other Offense are different offenses. The Charge of threatening to assault puts the focus entirely on the Applicant's conduct. On the other hand, the Other Offense has two distinct aspects. To the extent that disrespectful or abuse behaviour must be shown, the evidence may overlap with evidence adduced on the Charge but the additional requirement to show that the behaviour "is likely to provoke a person to be violent" is new and different. It moves the focus from the Applicant to the Manager and calls for evidence and/or submissions dealing with his reaction and whether violence would have been likely. This is particularly the case given the Manager's position as a prison official See McCoy v. Canada (Attorney General), [2001] F.C.J. No. 1861, 2001 FCT 1346.

CONCLUSION

[10]            In my view, once the ICP decided to consider the Other Offense, she was obliged by subsection 43(3) of the CCRA to adjourn the matter to give the Applicant an opportunity to address the likelihood that his conduct would have provoked the Manager to be violent.

              "Sandra J. Simpson"             

JUDGE

Ottawa, Ontario

February 18, 2005

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-873-04

STYLE OF CAUSE:                          BRYAN R. LATHAM v. SASKATCHEWAN

PENITENTIARY DISCIPLINARY BOARD

PLACE OF HEARING:                    OTTAWA

DATE OF HEARING:                      FEBRUARY 7, 2005

REASONS FOR ORDER :             THE HONOURABLE MADAM JUSTICE SIMPSON

DATED:                                             FEBRUARY 18, 2005

APPEARANCES:

BRYAN R. LATHAM                                                              FOR THE APPLICANT

ON HIS OWN BEHALF

MARLON MILLER                                                                 FOR THE RESPONDENT

SOLICITORS OF RECORD:

JOHN H. SIMS, Q.C.                                                              FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL

OF CANADA

FEB^-11-2005 14:32 TRIAL DIUISION

Federal Court Registry

I st Floor, 90 Elgin Street Ottawa, Ontario

KIA OH9

Attention: Allison Dickenson

Dear Madam:

Re:        Bryan R. Latham v. Saskatchewan Penitentiary Disciplinary Board Court No: T-873-04

As requested, I would like to provide the Court with the following information regarding the three questions posed to the Crown in this matter.

As per our recent conversation, I have not included Correction Services Canada's ("CSC") specific position regarding any potential adjustment of Mr. Latham's security classification to avoid the prospect that he may be prejudiced without the appropriate opportunity to respond. As such, I have simply stated factual details regarding his security classification and review periods. If the Court would require CSC's position on any adjustment to Mr. Latham's security of classification as a result of this matter, I would be happy to provide the specific details requested.

After consulting with CSC, Mr. Latham's concentration solely on the security classification scale when it comes to assessment is somewhat misguided.

I- What provision shows the time frame for a decision to be made on a transfer application from the Saskatchewan Penitentiary to the Riverbend Institution (Farm AneX)?

Section 15 of the Corrections and Conditional Release Regulations indicates that a decision on a transfer request submitted by an inmate shall be made within 60 days after the submission of the request. As per Commissioner's Directive 540 ("rransfer of Offenders"), the. time frame for a decision on voluntary transfers is "as soon as possible within 60 days of application."

However, in accordance with the Saskatchewan Penitentiary's Standard Operating

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Practice 700-15 ("Transfer of Offenders") it is the general procedure of the Saskatchewan Penitentiary to have an assessment for decision completed for an inmate's request for a transfer within the rezion (ie. to Riverbend Institution) within 30 days.

2. What is the authority for imposing security classification points as a result of an inmate's conviction or behaviour?

The authority for the Saskatchewan Penitentiary to complete the security classification scale arises in accordance with Standard Operating Practice 700^;04 ("Offender Intake Assessment and Correctional Planning"), Standard Operating Practice 700-14 ("Security Classification of Offenders' and Commissioner's Directive 006 ("Classification of Institutions").

The security classification point system is only one factor that CSC considers when determining the level of security for an inmate. In addition to automatic factual input for such information as charges and segregation, the security classification scale also includes subjective entries by parole officers regarding the motivation of an inmate for rehabilitation and the completion of a successful correctional plan.

As we heard at the hearing, the security classification scale is separated into a low classification, a medium classification, and a maximum classification. The cut-off point in the scale for each level varies over time and is based on a nation-wide number of offenders in each classification_ For example, the cut-off between "low classification" and "medium classification" can range from 14.5 points to 16 points. The cut-off area between a medium or maximum classification ranges around 27 points.

However, in addition to the security classification scale, CSC considers three other factors in determining the overall security classification of inmates. These include:

(a)           institutional adjustment;

(b)           escape risk; and

(c)            public safety risk,

An inmate could have a point number on the security classification scale in the low range, yet still be classified as either a medium or maximum security offender depending on the evaluation of the inmate under the other factors.

It is my understanding that Mr. Latharn's information regarding specific point additions for specific incidents has its origins in a 1991 document that is no longer used by parole officers who use the Commissioner's Directives and Standard Operating Practices as guides and has been replaced by the Standard Operating Procedure 700-14.

FEB-11-2005 14:33       TRIAL DIVISION

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3. The Court wanted confirmation on the time lines for when points on the security classification scale are adjusted. (Reference was made to April and November of each year).

Each inmate has a separate annual review period. The overall security classification for an inmate (not only the points, but also all of the other factors mentioned above) is reviewed by CSC on an annual basis. For Mr. Latham, his current review period is in December.

However, CSC may be required or may decide to review the inmate's security classification at any time during the year_ For example, if a request for transfer is made by an inmate, CSC may do a review of the security classification for that inmate at that time. Another example might be where the inmate has completed his correctional plan.

The reference to April and November provided by Mr. Latham at the hearing can be explained as follows:

Mr. Latham's security classification was reviewed in March, 2003.At that time, the points for Mr. Latham on the security classification scale totalled 21. This was a specific application for transfer made by Mr. Latham, which prompted the review of the security classification. Mr. Latham's security classification was then reviewed a second time on its regularly scheduled review on December 15, 2003. Again, Mr. Latham's security classification scale had a total of 21 points. On the next scheduled annual review of Mr. Latham's security classification on December 10, 2004, Mr. Latham's security classification points totalled 25. The increase on the security classification scale was due not only to the offence and resulting segregation in question, but also as a result of the other subjective entries by CSC and other incidents recorded.

Lastly, the Court queried about what would happen if Mr. Latham applied for a transfer between a review period in April and a review period in November if the points on his security classification scale were adjusted between those two review periods. It must be noted that the security classification scale is only one factor in assessing the overall security classification of an inmate. The other factors are also reviewed at the appropriate periods (ie. the entries regarding motivation and completion of a correctional plan, institutional adjustment, escape risk and public safety risk).

I hope that this information answers the questions raised by the Court and if there are any other questions or concerns, please do not hesitate to contact me dixectly. If the Court requires that I send a copy of this correspondence to Mr. Latharn, please advise as such.

Counsel

Civil Litigation and Advisory Services

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