Date : 20040226
Docket: T-914-03
Citation: 2004 FC 340
BETWEEN:
FRANÇOIS BOUCHER
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
HARRINGTONJ.
INTRODUCTION
[1] François Boucher has been in prison for a very long period: he has been incarcerated since 1977. A few years ago things improved for Mr. Boucher, as his security rating was reassessed to medium and he was transferred to a medium security prison. In fact, he hoped that in future his security rating would change to minimum and he would be given day passes, and finally would be paroled.
[2] Then, suddenly, he was placed in administrative segregation. He was charged with being an accomplice in the murder of a prison guard and intending to flee to Africa. He was interrogated by two officers of the Sûreté du Québec, and the prison authorities subsequently reclassified his security rating to maximum and transferred him to Port-Cartier, a maximum security institution where he still is.
[3] The Court has before it an application for judicial review made by the applicant pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended (the Act), from a decision dated May 15, 2003, in which the third level of Correctional Service Canada (CSC) dismissed the grievance filed by the applicant. That grievance involved the dismissal of his application for reclassification of his security rating and the involuntary transfer to the Port-Cartier Institution.
FACTUAL BACKGROUND
[4] The applicant is currently serving a term of life imprisonment with no eligibility for parole for 18 years: this term began in 1977. He is also serving a fourteen-year term for manslaughter committed in 1977: he began to serve this term in 1993. In 1992, after serving 15 years of his sentence, he became eligible for day parole, judicial review and unescorted temporary absences. Even before he could make an application to this effect to the Parole Board, the applicant was charged with manslaughter committed in 1977, convicted and sentenced to 14 years.
[5] In December 2002, two security intelligence reports were filed. The information was collected over several days. In the first report, dated December 11, there was a reference to a source in the Leclerc Institution which indicated that when the applicant was placed in administrative segregation, the first person whom he contacted was an individual known to the police and involved in organized crime. The report further indicated that the applicant formed the intent to commit the murder of an employee at La Macaza, to carry out a robbery and to flee to Africa after his release. The second report, dated December 19, set out the following information: the applicant had forged identity papers which had been sent to him from outside and he had obtained a firearm. There was also a physical description of the victim, that is about five feet ten inches, dark hair and, among other details, about 40 years old. This information was never disclosed to the applicant.
[6] The applicant explained that, to his knowledge, there were only three inmates at the Leclerc Insitution in December 2002 who could have had access to this information. The applicant indicated that each of the three had good motives to lie in giving this information.
[7] To prepare for his eventual release from the penitentiary, the applicant in 1992 wrote a letter to the Crown counsel who had acted at his trial, asking him to help the applicant change his identity at the end of his term of imprisonment. The applicant indicated that he had located his biological mother and wanted to start life over with a new identity.
[8] On December 4, 2002, two Sûreté du Québec officers came to see the applicant at La Macaza. The officers told him that he was suspected of having conspired to commit murder, planned robbery and intended to escape to Africa. Neither of the police officers gave details about these suspicions, nor even a description of the victim. Following this conversation, the applicant was placed in administrative segregation for conspiracy to murder a correctional officer at the La Macaza Institution.
[9] On December 10, 2002, without notice or delay, the applicant was transferred on an urgent and involuntary basis to the regional reception centre, without being given reasons for the transfer or an opportunity to submit his position on the transfer. On December 12, 2002, the applicant was told that he would be involuntarily transferred to the Port-Cartier Institution and that his security rating would increase from medium to high. The Port-Cartier Institution is a high security institution.
[10] The Sûreté du Québec investigation did not conclude that there was any evidence proving the planning of the alleged crimes, which could justify filing criminal charges against the applicant. The applicant was not charged with any criminal offence based on the allegations of conspiracy, robbery or attempted escape.
IMPUGNED DECISION
[11] At the third level, it was decided that the facts indicated the possibility of a conspiracy to attempt an assault and a strong possibility of an escape. This was a very serious charge, based on communications in this regard between the author of the reports and resource persons, consultation of security intelligence reports Nos. 330-11-2002 and 352-18-02, reports of notices of involuntary placement in administrative segregation (2002-12-04), Assessment for Decision (2002-12-12), Notification of Recommendation for Involuntary Transfer (2002-12-12 and 2002-12-18), Correctional Plan Progress Report (2002-12-16) and Notification of Decision on Involuntary Transfer (2002-12-27). These documents are exhaustive and very explicit and the information gathered about the applicant indicated that the allegations were valid.
[12] The information collected on the applicant came from another institution and was corroborated by evidence obtained from the inmate's personal effects (correspondence, contacts and so on). As much information as possible was allegedly given to the applicant so that he could prepare his defence, and thus the duty to act fairly was fulfilled.
POINT AT ISSUE
[13] The only issue is whether the decision by the third level of the grievance process on May 15, 2003, was one warranting the Court's intervention.
APPLICANT'S ARGUMENTS
[14] The applicant maintained that the Board's decision was wrong, since the CSC did not give him sufficient information at the time of the reclassification of his security rating from medium to maximum and the resulting transfer. In other words, in the applicant's view the CSC had a duty to give him more information on the allegations of a conspiracy to murder, planned robbery and escape to Africa so that he could submit a full defence. For example, the CSC should have given details on the allegations: the identity of the accomplice, the method of committing the murder, a description of the victim - man or woman? Tall or short? Fat or thin? The information disclosed was, in his submission, too vague to allow him to submit a full answer and defence.
[15] In the plaintiff's view, this breach of the rules of natural justice deprived him of his constitutional rights guaranteed by section 7 of the Canadian Charter of Rights and Freedoms (the Charter).
RESPONDENT'S ARGUMENTS
[16] The respondent, for his part, maintained that the quality and quantity of the information given to the applicant when his security rating was raised was quite sufficient and consistent with the requirements of the rules of natural justice applicable in the case at bar: consequently, the decision at the third level of the grievance procedure was well founded.
ANALYSIS
Applicable standard of judicial review
[17] The standard of judicial review applicable to a decision by the CSC Commissioner was set out in Tehrankari v. Canada (Correctional Service), [2000] F.C.J. No. 495, and Ennis v. Canada (Attorney General), [2003] F.C.J. No. 633. In those judgments, Lemieux J.A. applied the four factors mentioned by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, and pointed out that the Act contained no privative clause protecting decisions made by the Commissioner in connection with the grievance procedure. The Commissioner had the necessary expertise as compared with courts of law, and this justified considerable restraint regarding decisions made by him on matters relating to penitentiary management. The purposes of the provision in particular, and of the Act as a whole, are part of the rights conferred on the inmate by Parliament. The judge drew the following conclusions:
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 finding of fact.
Application
Natural justice and scope of reasons for decision
[18] In the Commissioner's Directives, Transfer of Offenders, No. 540, the transfer procedures must ensure that transfers are carried out in a fair, efficient and secure manner that meets the requirements of both the offender and the institutions involved, and that offender rights are protected. There may be reasons to accommodate an offender in a facility where the security level differs from his security classification, but strict attention must be paid to the duty to act fairly and the rules of fundamental justice, under which the offender must have an opportunity to respond in an informed manner to the transfer notice. The test is whether the information revealed to the offender was enough to enable him to answer the case made against him, and not whether there were valid grounds to withhold certain information. When an involuntary transfer is proposed, the offender must be advised in writing of his right to have the services of counsel without delay, within 24 hours.
[19] That Directive was not observed in the case at bar, beginning with the two security intelligence reports. A source from the Leclerc Institution indicated that the applicant would commit the murder of an employee at La Macaza, commit robbery and flee to Africa after his release. It is interesting that the information contained in those reports was never disclosed to the applicant, nor was the information that the first person he contacted after being placed in administrative segregation was an individual involved in organized crime, that the applicant had forged identity papers in his possession, that he had obtained a firearm and that the victim was a person 40 years old, five feet ten inches in height and weighing 170-190 pounds, with dark hair. There are several places in the report where the information is blacked out, and in particular one place where the sentence begins with the word "malgré ["despite"], without it being possible to read what follows, as it is not visible after that. None of this was disclosed to the applicant. Further, he was never told who was the possible victim, who was the accomplice or when or how the conspiracy was to be put into effect.
[20] I also have reservations regarding the facts alleged and the work of the police: the applicant is currently serving a second term of 14 years for manslaughter which took place in 1977, the trial for which was not until 1992, 15 years after the fact. Further, the victim of that homicide was the mother of two police officers. It will be recalled that in September or October 2002 an officer from the Sûreté du Québec told the applicant in an interview that it was better to be in a penal institution outside of Quebec, because of his notoriety. The applicant might well be entitled to be paranoid because, each time he came close to release, the authorities found some means of throwing a monkey wrench into it.
[21] The documents which the security officers found in the applicant's cell were letters written by the applicant to women in Africa and to his mother, an address book with the name of women in Africa and contacts with criminals. It is worth noting that these letters were not before the decision-maker at the third level.
[22] The applicant has spent over 26 years of his life in prison. It is reasonable to assume that the only people he associates with are criminals. Inmates do not have much contact with people outside of institutions. The applicant explained that, on the internet, he contacted women in Africa, and also in Finland, the U.S. and perhaps Germany, to pass the time and establish relationships. Accordingly, it is difficult to make a connection between an address book and the applicant's escape to Africa, especially after the explanation which he gave and the fact that in September 2002 he located his biological mother and was in regular contact with her, intending to live with her in Las Vegas after his release. These documents are not a sufficient basis for raising his security rating and justifying a transfer to a maximum security institution.
[23] In this connection, it is worth noting how the prison authorities reassessed the applicant's security rating. According to the publication Security Classification of Offenders, Standard Operating Practices No. 700-14, the security rating reassessment scale is the result of research to develop a tool to assist officers in determining the most appropriate security level at key points throughout the offender's term. The scale is made up of 17 factors used to assess the risk presented by the offender and his performance during his imprisonment. A number of points are assigned to each factor. Provisions regarding exceptions are incorporated in the scale to take into account factors which may require the transfer of an offender to a security level that does not correspond to the level obtained by weighing the 17 factors. The reassessment of a security rating must be consistent with the requirements of section 18 of the Corrections and Conditional Release Regulations.
[24] There is not to be any derogation from the results obtained with the security rating reassessment scale unless the officer considers that a derogation would be in order. A detailed explanation must be included in the Assessment for Decision, in accordance with section 18 of the Regulations, ensuring that the analysis takes the following categories into account: adjustment to the institution, probability of escape and risk to the safety of the public.
[25] In the case at bar, the prison authorities did not comply with this Standard Operating Practice. To raise the security rating, they referred to incidents of violence that took place in 1981, 1983 and 1984, which was over 20 years earlier. The applicant has never been charged with violent incidents or serious disciplinary offences since that time. Before the recent events in 2002, he had always earned a low or medium rating for adjustment to the institution, probability of escape and risk to the safety of the public. Moreover, the authorities had to derogate from the reassessment in order for the applicant to be classified as a high risk and transferred to a maximum security institution. It is unreasonable to take incidents that occurred over 20 years earlier to justify increasing a security rating, and moreover, derogating from the reassessment scale so the applicant will end up in a maximum security institution.
[26] The restriction on the applicant's freedom should also be noted. The decision to transfer an inmate to a prison institution where his freedom is more restricted infringes his freedom. Under section 7 of the Charter, such a decision must be made in accordance with the principles of fundamental justice, and that was not true in the case at bar. As indicated in Gallant v. Canada (Deputy Commissioner, Correctional Services Canada), [1989] 3 F.C. 329:
Since the judgments of the Supreme Court of Canada in [1980] 1 S.C.R. 602">Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; The Queen v. Miller, [1985] 2 S.C.R. 613; Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643; and Morin v. National Special Handling Unit Review Committee et al., [1985] 2 S.C.R. 662, it can no longer be doubted that the decision to transfer an inmate to a penal institution where his freedom will be more severely restricted is, in effect, a committal to a "prison within a prison" which deprives the inmate of his liberty. Such a decision must therefore, according to section 7 of the Charter, be made "in accordance with the principles of fundamental justice" . . .
The respondent argued that the appellant's decision violated not only the rules of procedural fairness but, also, section 7 of the Canadian Charter of Rights and Freedoms . . .
[27] For all of these reasons, in my opinion the decision by the Correctional Service of Canada Commissioner must be set aside. In the event that there is another proceeding on this matter, this Court directs that all the applicant's correspondence, electronic or on paper, must be made available to the decision-maker and that if the prison authorities or the Sûreté du Québec do not submit an affidavit in opposition to the evidence filed by the applicant within a reasonable time, without a legitimate excuse, the decision-maker, in turn, may make a negative finding. This rule was discussed in [1970] S.C.R. 1010">Lévesque v. Comeau, [1970] S.C.R. 1010, and [1935] S.C.R. 671">Abbott Estate v. Toronto Transportation Commission, [1935] S.C.R. 671, where it was held that the decision-maker could draw a negative conclusion if a party refused to present evidence or a witness which should have been brought forward.
[28] Additionally, in my opinion any reference to allegations of conspiracy to commit murder, robbery and attempted escape should not be struck out or deleted from the applicant's file pursuant to section 24 of the Act, because that remedy was not specifically sought and there are certain prerequisites under the Act which the applicant did not meet.
"Sean Harrington"
Judge
Montréal, Quebec
February 26, 2004
Certified true translation
K. A. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-914-03
STYLE OF CAUSE: FRANÇOIS BOUCHER
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 11, 2004
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE HARRINGTON
DATED: February 26, 2004
APPEARANCES:
Diane Magas FOR THE APPLICANT
Sébastien Gagné FOR THE RESPONDENT
SOLICITORS OF RECORD:
Magas Law Office FOR THE APPLICANT
Ottawa, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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