Cairenius v. Canada (Correctional Service), 2005 FC 447

Date: 20050405

Docket: T-1225-03

Citation: 2005 FC 447

Saskatoon, Saskatchewan, April 5^th, 2005

Present:           THE HONOURABLE MADAM JUSTICE HENEGHAN                                    

BETWEEN:

                                                             RUNO CAIRENIUS

                                                                                                                                            Applicant

                                                                           and

                                         CORRECTIONAL SERVICE OF CANADA

                                                                           and

                                                   WARKWORTH INSTITUTION

                               AS REPRESENTED BY WARDEN YVAN THIBAULT

                                                                                                                                      Respondents

                                            REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                Mr. Runo Cairenius (the "Applicant") seeks judicial review of the decision made by Cheryl Fraser on behalf of Correctional Service of Canada ("CSC") on or about June 11, 2003. In that decision, the Applicant's Third Level Grievance pursuant to the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the "Act") and the Corrections and Conditional Release Regulations, SOR/92-620 (the "Regulations") was denied.

BACKGROUND

[2]                The Applicant is an inmate of Warkworth Institution in Ontario. On or about May 22, 2002, the Applicant's cell was subject to a routine inspection by CSC staff. A number of items were found, including a large number of electronic parts and gadgetry, manuals and magazines. According to the affidavit of Andrea Hale, Unit Manager of Warkworth Institution, the CSC staff member who conducted the inspection noted that a book or manual about electronics was found in the Applicant's cell, opened to a page which related to the construction of what the Respondent deemed to constitute "incendiary devices".

[3]                According to Ms. Hale's affidavit, Deputy Warden Arbuckle issued a direction on May 24, 2002, "to remove portions of the contents of Mr. Cairenius' cell". The Applicant was placed in administrative segregation on May 23, 2002 and remained there until June 4, 2002.

[4]                Again, according to Ms. Hale, the contents of the Applicant's cell were removed, beginning on May 24, 2002, by two CSC correctional supervisors and were taken to a locked room to be sorted and verified. According to the affidavit of Ms. Hale, CSC staff completed several "Cell Property Removal Forms", listing all the items that had been removed from the cell. Over a period of several days, the items were reviewed by CSC staff and placed in one of four categories: a) authorized items; b) contraband items; c) unauthorized items; and d) garbage.

[5]                According to the Applicant's affidavit filed in this application, he was allowed to observe this sorting process on several occasions, beginning on May 24, 2002. At that time, several items were returned to him. According to the affidavit of Ms. Hale, the Applicant attended on the completion of the review and was advised of the categories into which his property had been sorted. Ms. Hale also deposed that upon his release from segregation on June 4, 2002, authorized items were returned to the Applicant, contraband items were seized, garbage was discarded, and unauthorized items were placed in Admissions and Discharge to be forwarded to a relative. It appears that no forwarding address was provided.

[6]                The Applicant subsequently alleged that a number of items that had been in his cell on May 22, 2002 were unaccounted for. The items, totalling 103, were valued by the Applicant at $1,032.52 and are the subject of the grievance process and of this application for judicial review. The Applicant filed an Inmate Grievance Presentation (First Level) ("First Level Grievance") pursuant to the offender grievance procedure, outlined in Commissioner's Directive 081,Offender Complaints and Grievances ("CD 081"), claiming that CSC had failed to return these items to the Applicant, and seeking compensation therefor.

[7]                On January 21, 2003, Warden Thibault denied this First Level Grievance, based, in part upon a report prepared on January 10, 2003 by Correctional Supervisor Jack Deen. Mr. Deen concluded that a number of discrepancies existed in the Applicant's claim and recommended that the claim be denied in full.

[8]                In his decision, the Warden indicated that he had found no evidence to suggest that the CSC had been negligent in handling the Applicant's property. He said that in reaching his decision, he had considered the Cell Property Removal forms completed by CSC staff, other grievances filed by the Applicant relative to the CSC investigation and the relevant responses issued in respect of those claims.

[9]                On February 10, 2003, the Applicant filed an Inmate Grievance Presentation (Second Level) ("Second Level Grievance") as an appeal from the Warden's decision. This Second Level Grievance was denied on March 6, 2003 by the Regional Deputy Commissioner on the basis of an investigation conducted by Larry Kirby, a Regional Representative at Regional Headquarters (Ontario). This investigation involved a review of the file material relating to the First Level Grievance, other supporting documents and telephone or personal interviews with appropriate staff members and other persons. In his decision, the Regional Deputy Commissioner made the following findings:

You had many unauthorized items in your cell. Some of it was disposed of with your consent. Others were packed in boxes to be stored in the Admissions and Discharge Department until you provided an address for them to be shipped to. To date, you have not provided an address for these items to be shipped to. There is evidence to indicate that you have made claims for items destroyed or disposed of, as well as evidence that you have made claims for items that have gone past their shelf life, indicating that they have no monetary value. There is evidence that you altered the configuration of items, rendering them unauthorized items.

[10]            The Applicant submitted a Third Level Grievance on May 12, 2003. This was denied on June 11, 2003 by Cheryl Fraser, Assistant Commissioner. She based her decision on an analysis prepared by Michael Comeau who found that the Applicant could not claim the items listed in his grievance because none of these items were listed on the Inmate Personal Property (Cell Removal) sheets. In her decision, Ms. Fraser said the following:

There is no evidence to suggest that the Correctional Staff responsible for removing and itemizing your effects acted outside the provisions of law and policy while conducting their duties. For this reason, contrary to your grievance you cannot claim compensation for items that were not listed on the Inmate Personal Property (Cell Property Removal) sheets.

DISCUSSION AND DISPOSITION

[11]            The sole issue arising in this application for judicial review is whether the Respondent CSC committed a reviewable error in denying the Applicant's Third Level Grievance.

[12]            The availability of an inmate grievance process is provided for in section 90 of the Act which reads as follows:

Regulations enacted pursuant to section 96(u) provide an official grievance procedure with four steps as described in CD 081.

[13]            First, a grievance is presented as a complaint which gives rise to a response. If this is unsatisfactory, a First Level Grievance may be submitted; this is considered at the institutional level. A Second Level Grievance, if submitted, is dealt with at the regional level. If still unsatisfied, recourse can be made to a Third Level Grievance which is addressed at the national level. The final decision made at the third level may be the subject of an application for judicial review.

[14]            In Tehrankari v. Correctional Service of Canada (2000), 188 F.T.R. 206 (T.D.) at page 218, Justice Lemieux discussed the standards of review applicable to different administrative decisions made in the context of prisons. For those decisions that depend on factual findings, the appropriate standard is that of patent unreasonableness, as follows:

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. The patently unreasonable standard applies to pure findings of fact. (Subsection 18.2(4) of the Federal Court Act, R.S.C. 1985, c. F-7.)

[15]            In the present case, the third level decision-maker made the following factual finding:

There is no evidence to suggest that the Correctional Staff responsible for removing and itemizing your effects acted outside the provisions of law and policy while conducting their duties. For this reason, contrary to your grievance you cannot claim compensation for items that were not listed on the Inmate Personal Property (Cell Property Removal) Sheets.

Also, just because an item is listed on your Arts and Craft Permit does not provide proof that it was in your cell when your effects were removed. As previously mentioned only items listed on the Cell Property Removal Sheets as being present when officers itemized your effects can be verified as being in this location.

Based on this rationale you have not provided any evidence to prove negligence on the part of the Service therefore your grievance is denied.

[16]            This explanation for the refusal of the Applicant's Third Level Grievance suggests that he had some responsibility for the items in his cell. The support for this understanding is found in Commissioner's Directive 090, entitled Personal Property of Inmates. Section 9 of that document provides as follows:

9. Every inmate shall agree, in writing, to accept responsibility for the safekeeping and reasonable use of his/her personal property retained in his/her cell. Every inmate shall ensure that his/her personal property records are kept up-to-date by bringing any changes, including finished arts and crafts items retained for personal use, to the attention of the relevant staff.

[17]            The Applicant filed a lengthy record, including some material of questionable relevance. However, he did not file clear copies of cell contents forms. In these circumstances, I am satisfied that the Adjudicator's decision is reasonably supported by the evidence. There is no basis for judicial intervention and this application for judicial review is dismissed.

                                               ORDER

This application for judicial review is dismissed. In the exercise of my discretion, there will be no order as to costs.

                                                                                      "E. Heneghan"

                                                                                                   J.F.C.

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-1225-03

STYLE OF CAUSE:                         RUNO CAIRENIUS

Applicant

and

CORRECTIONAL SERVICE OF CANADA

and WARKWORTH INSTITUTION As represented by Warden Yvan Thibault

Respondents

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                       October 6, 2004

REASONS FOR ORDER AND

ORDER:                                             HENEGHAN J.

DATED:                                              April 5, 2005              

APPEARANCES:

Runo Cairenius

FOR APPLICANT

Roslyn Mounsey

FOR RESPONDENTS

SOLICITORS OF RECORD:

Runo Cairenius

FOR APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENTS