Date: 20050711
Docket: T-1328-04
Citation: 2005 FC 967
Ottawa, Ontario, Monday the 11th day of July 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
ROBERT LABBE
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Robert Labbe is an inmate of Kingston Penitentiary, who is confined in administrative segregation. In his words, he brings "this application for judicial review to expose [the] cruel and inhumane conditions to which inmates are exposed in the segregation cells". Specifically, he seeks two declarations:
i) First, a declaration that the Correctional Service of Canada is in breach of its legislated duties under sections 31, 36 and 37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("Act") in its treatment of offenders confined to the segregation cells at Kingston Penitentiary, by failing to treat inmates in the segregation cells as it would treat inmates in general population (save and except for security purposes specific to the segregation cells).
ii) Second, a declaration that the treatment of inmates in the segregation cells at Kingston Penitentiary is in violation of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("Charter") specifically sections 7 and 12.
[2] Sections 31, 36 and 37 of the Act are set out in the Appendix to these reasons.
[3] In support of his application, Mr. Labbe filed his own brief and non-specific affidavit. The Attorney General neither cross-examined Mr. Labbe upon his affidavit, nor adduced contrary evidence. The Attorney General thus leaves unanswered serious allegations, including that:
• the warden of the institution does not make daily inspections of the segregation cells, as she is obliged to do by subsection 36(2) of the Act;
• no daily visit by registered health care professional is provided to inmates in the segregation unit, as required by subsection 36(1) of the Act; and
• unspecified guards have engaged in conduct amounting to harassment, and this misconduct is pervasive throughout the segregation unit.
[4] Instead, the Attorney General argues that this application for judicial review should be dismissed on a series of technical grounds: there is no single decision to be judicially reviewed; the Correctional Service of Canada, when carrying out its daily duties, cannot be considered to be a federal board, commission or other tribunal; the declarations sought are declarations of fact, not law; there is an incomplete and inadequate factual record before the Court; and, Mr. Labbe has available to him adequate, internal recourse mechanisms.
[5] Declaratory relief is discretionary, and, for the following reasons, I have concluded that this is not an appropriate case for the exercise of that discretion.
[6] First, the evidentiary record is not sufficient to support the relief sought. For example, Mr. Labbe states that neither the warden, nor a registered health care professional, make daily inspections or visits. In order to conclude that any such failure rises to the level of a breach of statutory duty that would attract a remedy, or constitutes a breach of rights guaranteed by the Charter, more information is required. Are such visits missed only infrequently? Most of the incidents complained of lack specifics, such as the date, the name of the affected inmate, and the name of the relevant corrections officer. Because of the lack of particularity in the evidence, it is impossible to assess the evidence to see whether it establishes the cumulative effect Mr. Labbe asserts it does. Further, there is no evidence as to the treatment provided to inmates in general population. This evidence is required in order to allow the Court to determine whether inmates in the segregation cells are similarly treated, save and except for security purposes, as required by the Act. In sum, the evidence falls far short of that put before the Court in McCann et al. v. The Queen et al. (1975), 29 C.C.C. (2d) 337 (F.C.T.D.), a case relied upon by Mr. Labbe.
[7] Further, to the extent that Mr. Labbe alleges that the treatment of inmates in segregation violates rights protected by sections 7 and 12 of the Charter, the Supreme Court of Canada has repeatedly warned that alleged Charter violations are not to be determined in the absence of a proper evidentiary record. See, for example, Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at paragraph 80, and MacKay v. Manitoba, [1989] 2 S.C.R. 357 at paragraph 8 and following.
[8] I have considered Mr. Labbe's counsel's submissions that it asks too much of an inmate to report or to grieve conduct on the part of corrections officers that might be criminal, and that, because documents kept by an inmate are subject to seizure, Mr. Labbe was required to rely only on his memory when preparing his affidavit. However, those submissions are not supported by evidence to that effect from Mr. Labbe.
[9] The second reason for declining to grant declaratory relief in this case is the existence of the internal grievance procedure. In principle, as a matter of law, an applicant must exhaust alternate, internal remedies before seeking declaratory relief. See, for example, Kourtessis v. Canada (Minister of National Revenue), [1993] 2 S.C.R. 53 and Canada(Auditor General) v. Canada(Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49. A reviewing Court must, however, determine the adequacy of the alternate remedy. In this regard, Mr. Labbe swore that, in the past, he used the institution's grievance procedure to grieve the lack of mirrors for shaving. His grievance was upheld and shaving mirrors were to have been installed by January 31, 2004. However, shaving mirrors were only installed around August of 2004. This experience does not persuade me that the grievance procedure is inadequate. The Commissioner's Directive concerning "Offender Complaints and Grievances" is premised on a number of specific principles, one of which is:
d. Complaints and grievances which significantly impact upon offenders' rights and freedoms will be assigned priority for investigation, resolution and response;
[10] This principle may provide an explanation as to why there was delay in the response to Mr. Labbe's grievance, and it supports the view that any grievance of the serious matters raised here would be afforded a higher priority.
[11] Finally, notwithstanding what I understand to be the submission of the Attorney General on this point, I accept that the exercise of jurisdiction under section 18 of the Federal Courts Act, R.S.C. 1985, c. F-7 does not depend upon the existence of a specific decision or order. See, for example, Krause v. Canada, [1999] 2 F.C. 476 (C.A.) and Lac des Mille Lacs First Nation v. Hogan (2000), 198 F.T.R. 48 where judicial reviews of a course of conduct were permitted. However, Mr. Labbe's affidavit falls short of establishing a course of conduct encouraged or permitted by a federal board, commission or other tribunal in that no allegation is made that the conduct he complains of was knowingly permitted or condoned by any specific person or institution whose conduct is capable of judicial review.
[12] It follows that the application for judicial review will be dismissed, but upon two conditions. The first is that the Court makes no finding upon the merits of Mr. Labbe's allegations so that the dismissal is without prejudice to his ability to bring a further application, upon proper evidence, should recourse to internal procedures prove to be inadequate, or should further evidence be available to establish the inadequacy of such recourse. The second condition is that counsel for the Attorney General is required, within seven days of receipt of these reasons, to provide a copy of these reasons to both the warden of Kingston Penitentiary and to the appropriate Regional Deputy Commissioner of Corrections, and to confirm to the Court their receipt of these reasons. This second condition is to insure that the Correctional Service of Canada understands the Court's concern that serious allegations were raised, but unanswered, in this application. Of particular concern are the unanswered allegations of failure to comply with subsection 36(1) and subsection 36(2) of the Act.
[13] The Attorney General seeks the costs of this application. In view of the fact that the substance of Mr. Labbe's concerns was not addressed in this application, and that the Court did not accept a number of the procedural objections raised by the Attorney General, this is an appropriate case, in my view, where costs should not follow the event. Rather, each side should bear their own costs.
ORDER
[14] THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed on the conditions set out above.
2. No costs are awarded.
"Eleanor R. Dawson"
APPENDIX
Sections 31, 36 and 37 of the Corrections and Conditional Release Act:
| 31(1) The purpose of administrative segregation is to keep an inmate from associating with the general inmate population.
31(2) Where an inmate is in administrative segregation in a penitentiary, the Service shall endeavour to return the inmate to the general inmate population, either of that penitentiary or of another penitentiary, at the earliest appropriate time.
31(3) The institutional head may order that an inmate be confined in administrative segregation if the institutional head believes on reasonable grounds
(a) that
(i) the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person, and
(ii) the continued presence of the inmate in the general inmate population would jeopardize the security of the penitentiary or the safety of any person,
(b) that the continued presence of the inmate in the general inmate population would interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of a serious disciplinary offence, or
(c) that the continued presence of the inmate in the general inmate population would jeopardize the inmate's own safety,
and the institutional head is satisfied that there is no reasonable alternative to administrative segregation.
[...]
36(1) An inmate in administrative segregation shall be visited at least once every day by a registered health care professional.
36(2) The institutional head shall visit the administrative segregation area at least once every day and meet with individual inmates on request.
37. An inmate in administrative segregation shall be given the same rights, privileges and conditions of confinement as the general inmate population, except for those rights, privileges and conditions that
(a) can only be enjoyed in association with other inmates; or
(b) cannot reasonably be given owing to
(i) limitations specific to the administrative segregation area, or
(ii) security requirements.
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31(1) L'isolement préventif a pour but d'empêcher un détenu d'entretenir des rapports avec l'ensemble des autres détenus.
31(2) Le détenu en isolement préventif doit être replacé le plus tôt possible parmi les autres détenus du pénitencier où il est incarcéré ou d'un autre pénitencier.
31(3) Le directeur du pénitencier peut, s'il est convaincu qu'il n'existe aucune autre solution valable, ordonner l'isolement préventif d'un détenu lorsqu'il a des motifs raisonnables de croire, selon le cas :
a) que celui-ci a agi, tenté d'agir ou a l'intention d'agir d'une manière compromettant la sécurité d'une personne ou du pénitencier et que son maintien parmi les autres détenus mettrait en danger cette sécurité;
b) que son maintien parmi les autres détenus peut nuire au déroulement d'une enquête pouvant mener à une accusation soit d'infraction criminelle soit d'infraction disciplinaire grave visée au paragraphe 41(2);
c) que le maintien du détenu au sein de l'ensemble des détenus mettrait en danger sa sécurité.
[...]
36(1) Le détenu en isolement préventif reçoit au moins une fois par jour la visite d'un professionnel de la santé agréé.
36(2) Le directeur visite l'aire d'isolement au moins une fois par jour et, sur demande, rencontre tout détenu qui s'y trouve.
37. Le détenu en isolement préventif jouit, compte tenu des contraintes inhérentes à l'isolement et des impératifs de sécurité, des mêmes droits, privilèges et conditions que ceux dont bénéficient les autres détenus du pénitencier.
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