Clarke v. Canada (Attorney General), 2005 FC 669

Date: 20050511

Docket: T-1911-03

Citation: 2005 FC 669

BETWEEN:

                                                       CHRISTOPHER CLARKE

                                                                                                                                            Applicant

                                                                         - and -

                                                     THE ATTORNEY GENERAL

                                                                   OF CANADA

                                                                                                                                        Respondent

                                            ASSESSMENT OF COSTS - REASONS

Charles E. Stinson

Assessment Officer

[1]                The Applicant, an inmate, sought judicial review of a decision of a disciplinary court which had found him guilty of refusing to follow a prison order and fined him $15.00. The Court dismissed his application with costs. I issued a timetable for written disposition of the Respondent's bill of costs.

The Applicant's Position

[2]                The Applicant argued further to Graham v. Millhaven Penitentiary, [2004] F.C.J. No. 1639 (F.C.) and Hiebert v. Canada, [2002] F.C.J. No. 1452 (F.C.), both addressing judicial review of disciplinary court convictions, that the circumstances warrant a lump sum award. Relative to Rule 400(3)(c) (importance and complexity), the evidence is that the Applicant is a first-time offender making real efforts, with considerable community and family support, at rehabilitation. This transgression was his only major disciplinary offence to date. The seeking of judicial review of a disciplinary conviction carried serious consequences relative to an attempt for parole. Relative to Rule 400(3)(a) (result), the Court's reasons confirm that his breach was inadvertent and not willful. The Applicant's limited resources, coupled with a statutory release date four years hence, precluded settlement offers as a factor further to Rule 400(3)(e). Relative to Rule 400(3)(h) and (o) (public interest and any other relevant matter respectively), the judicial review addressed the serious issue of the control of inmates without seeking to undermine institutional authority. Rather, it sought to minimize the potential damage to the Applicant's rehabilitation and his case for eventual conditional release.

[3]                The Applicant conceded that both capacity to pay and likelihood of satisfaction of the assessed costs are not relevant factors. However, the amount of costs claimed here, by interfering with the Respondent's capacity to support his family and in turn hampering his family's role in his rehabilitation, would undermine the positive statutory intent of the Corrections and Conditional Release Act, S.C. 1992. c. 20 (hereafter the "CCRA"), s. 71(1) concerning the promotion of relationships between inmates and the community. The costs assessed should be minimal and be in the range of $100.00 - $250.00 consistent with Graham and Hiebert, supra. In Graham, the Court noted novel issues of statutory interpretation and allowed $100.00 all inclusive. In Hiebert, the Court, in dismissing the judicial review, noted at paragraph [39] that "the legal principles applicable to the issues are well-settled" and that the Applicant should pay costs, fixed at $250.00. The result here is more consistent with Graham, supra and therefore costs should be in the order of $100.00.

The Respondent's Position

[4]                The Respondent noted that the Court did not make the "otherwise" order contemplated by Rule 407 and therefore Column III costs are assessable. The Applicant's capacity to pay some or all of the costs, which here are fair and reasonable given the effort required and the Court's conclusions, is irrelevant. The Respondent's conduct does not justify reduced costs further to Rules 409 and 400(3). The Respondent asked, further to Rule 408(3) discretion, for 3 units under item 26 (available range of 2 - 6 units) for the assessment of costs as a function of the requisite work to prepare the bill of costs and supporting materials.

Assessment

[5]                The Applicant's submissions sought to highlight the problem with the Respondent's choice to charge him under the CCRA, s. 40(a) (disobeying an order), as opposed to s. 40(1) (refusing to provide a urine sample) and suggest that even the Respondent's submissions reflected that inconsistency by referring to the wrong subsection. Essentially, the Court concluded that, the record disclosing that the Applicant agreed to provide a urine sample, but then fell asleep before doing so, the s. 40(1) charge was precluded and therefore the s. 40(a) charge was appropriate. I do not think that the result here helps the Applicant's position concerning costs. I think that it is difficult for a litigant who has not advanced settlement overtures to argue that its position on costs is enhanced. I simply do not find public interest to be a factor here. Assuming that the Applicant's assertions about rehabilitation are sincere, I recognize the potential negative effect of the disciplinary conviction on his achievement of early parole, but the institution had a substantial interest in maintaining the integrity of its disciplinary regime.

[6]                I concluded at paragraph [7] in Starlight v. Canada, [2001] F.C.J. No. 1376 (A.O.) that the same point in the ranges throughout the tariff need not be used, as each item for the services of counsel is discrete and must be considered in its own circumstances. As well, broad distinctions may be required between an upper versus lower allowance from available ranges. Given that I think that this litigation was straightforward throughout, I allow only the minimum for counsel fees, claimed at the maximum for item 2 (reply) and at something less than the maximum for items 13(a) (preparation for hearing) and 14(a) (attendance). The disbursements total $254.55, and were clearly supported in the evidence as reasonably necessary. I allow them as presented. There was work for the Respondent in pursuing costs: I allow item 26 at the minimum 2 units.

[7]                The Respondent's bill of costs, presented at $1,990.35, is assessed and allowed at $1,464.55. The Applicant's submissions on lump sum awards addressed a procedure or practice vested in the Court under Rule 400(4), but not an assessment officer.

(Sgd.) "Charles E. Stinson"

     Assessment Officer

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-1911-03

STYLE OF CAUSE:                          CHRISTOPHER CLARKE

- and -

THE ATTORNEY GENERAL OF CANADA

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF PARTIES

REASONS FOR ASSESSMENT OF COSTS:                     CHARLES E. STINSON

DATED:                                                                                   May 11, 2005

SOLICITORS OF RECORD:

John Dillon                                                                                for Applicant

Kingston, ON

John H. Sims, Q.C.                                                                   for Respondent

Deputy Attorney General of Canada