Date: 20050512
Docket: T-1164-04
Citation: 2005 FC 666
BETWEEN:
GEORGE GAMBINI and PHILLIP MacDONALD
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] While Messrs. Gambini and MacDonald were incarcerated at Fenbrook Institution, a low- medium security Federal penitentiary, rumour came to the warden's attention that both were involved with others in an organized system of intimidation and coercion.
[2] They were both placed in administrative segregation and, in accordance with existing procedure, a review was conducted after five days and copy provided to them.
[3] To hear them tell it, in order to avoid remaining in administrative segregation or being sent to a higher security institution, they both agreed to enter into a behaviour modification agreement as part of a "voluntary" desegregation process.
[4] The fact that they signed this agreement goes against their permanent record and may prejudice their ongoing incarceration as well as the timing and conditions of their release.
[5] They say, in effect, that the doctrine of unequal bargaining power applies. They had to agree to the lesser of two evils. The behaviour modification agreement restricted their freedom to associate with certain named individuals, imposed a curfew and restricted their movements to an extent greater than the inmate population at large. They say that the allegations with respect to intimidation and muscling are not true, that natural justice was denied them because they were not given sufficient particulars of the allegations, and that the behaviour modification agreements were obtained by coercion and in violation of their constitutional rights.
[6] The respondent takes issue with all these points but, more importantly, submits that the application for judicial review should be dismissed because it is premature. The Corrections and Conditional Release Act, S.C. 1992, c. 20 at sections 90 and 91, and the Regulations thereunder, commencing at section 74, set out a complete internal grievance procedure which must be exhausted before an applicant seeks judicial review under section 18 of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended.
[7] As interesting as the arguments submitted on behalf of Messrs. Gambini and MacDonald may be on the merits, I must agree with the respondent and dismiss their application on the grounds that it is premature.
[8] The Regulations set out a multi-level grievance procedure, which is able to deal with all aspects of the complaint, including violation of Charter rights (Nova Scotia Workers' Compensation Board v. Martin, [2003] 2 S.C.R. 504).
[9] Although there are exceptions to the general rule that internal remedies should be exhausted before judicial review is sought, those exceptions have no application in this case. As Pelletier J., as he then was, stated in Marachelian v. Canada (Attorney General), [2001] 1 F.C. 17:
10. The policy reasons for requiring applicants to exhaust their internal remedies are compelling. To hold otherwise is to undermine the legitimacy of alternate remedies by assigning them to a secondary position when there are many reasons why they should occupy a primary role in the resolution of disputes. In the context of correctional facilities, one could identify timeliness, familiarity with a unique environment, adequate procedural safeguards and economy as reasons for which internal remedies ought to be exhausted before approaching this Court...
[10] More recently, the Supreme Court has held that even where the wording of a statute is not strong enough to oust the Court's jurisdiction, the dispute resolution process set out in the legislative scheme should not be jeopardized by permitting parallel access to the courts (Vaughan v. Canada, 2005 S.C.J. No. 12, (QL)).
[11] There are no compelling reasons why the grievance procedure should not be followed in this case. Indeed, a judicial review after the grievance procedure has been completed would probably be more meaningful as the Court would have the benefit of the findings and opinions of those specifically authorized by law to look into the matters, persons who may have special qualifications that the Court does not. See for example: Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793, at paragraph 17, and Martin, supra, at paragraphs 30 and 31.
"Sean Harrington"
J.F.C.
Ottawa, Ontario
May 12, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1164-04
STYLE OF CAUSE: GEORGE GAMBINI and
PHILLIP MacDONALD
AND
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 10, 2005
REASONS FOR ORDER : HARRINGTON J.
DATED: MAY 12, 2005
APPEARANCES:
John L. Hill FOR APPLICANTS
Natalie Henein FOR RESPONDENT
SOLICITORS OF RECORD:
John L. Hill FOR APPLICANTS
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
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