Hiebert v. Price, 2004 FC 1531

Date: 20041028

Docket: T-559-98

Citation: 2004 FC 1531

Vancouver, British Columbia this 28^th day October 2004

Present:           The Honourable Madam Justice Heneghan                                    

BETWEEN:

                                                  KURT ALEXANDER HIEBERT

                                                                                                                                            Applicant

                                                                           and

                                                     JOE PRICE, in his capacity as

                                          ACTING/ASSISTANT COMMISSIONER,

                                                  CORPORATE DEVELOPMENT,

                                         CORRECTIONAL SERVICE OF CANADA

                                                                           and

                                                OLE INGSTRUP, in his capacity as

                                            COMMISSIONER OF CORRECTIONS

                                                                                                                                      Respondents

                                            REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                Mr. Kurt Alexander Hiebert (the "Applicant") seeks judicial review of the decision of Joe Price in his capacity as Acting/Assistant Commissioner, Corporate Development, Correctional Service of Canada ("Respondent Price"). That decision, made on February 23, 1998, denied the Applicant's grievance of the decision made by the Regional Administrator, Correctional Operations, Regional Headquarters (Pacific), which decision was made on or about September 15, 1997.

[2]                The Applicant now seeks an order in the nature of certiorari to quash the decision denying his grievance. He also seeks an order of mandamus to compel the Commissioner of Corrections ("Respondent Commissioner") to comply with the relevant provisions of 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") and to authorize, without delay, his transfer the Regional Psychiatric Centre (Pacific) in Abbotsford, British Columbia or alternatively, to a penitentiary classified as a medium security penitentiary in British Columbia, to avail assessment by the Regional Psychiatric Centre.

BACKGROUND

[3]                The Applicant began serving an eight year sentence in British Columbia, in August 1985, upon conviction for several offences including robbery, mischief and possession of narcotics. While incarcerated, he was convicted of second degree murder of an inmate in 1987 and received a life sentence without eligibility for parole for 10 years.

[4]                In 1991, while still incarcerated in British Columbia, the Applicant was convicted of manslaughter, relative to the death of another inmate. He entered a guilty plea and received a 10 year sentence, to be served concurrently with the earlier sentences. Following the conviction, the Applicant was transferred from Kent Institution in British Columbia to the "Special Handling Unit" in Quebec.

[5]                According to his affidavit filed in this proceeding, the Applicant was approved by the Special Handling Unit for return to Kent Institution, in or about June 1993. However, this transfer was not effected and the Applicant was transferred to Kingston Penitentiary in or about September 1993. According to the Applicant, his transfer to Kent Institution was refused due to the presence of "incompatibles", that is persons whose presence in the institution constitutes a risk to the safety of the inmates or staff members or to the security of the institution. This term and its meaning is addressed in the affidavit of Mr. Crawford, filed on behalf of the Respondents.

[6]                The Applicant was subsequently incarcerated at Edmonton Institution and then returned to Millhaven, Ontario where he was admitted to the administrative segregation unit. He was later admitted to the Mental Health Unit at Millhaven and in August 1996, his case management officer recommended him for transfer to the Regional Psychiatric Centre (Pacific). That transfer was denied in November 1996, partly on the basis of "many incompatibles within the Pacific Region".

[7]                In or about May 1997, the Applicant sought a transfer from Millhaven Institution to Mountain Institute in British Columbia, for the purpose of receiving treatment at the Regional Health Centre (Pacific). This request was denied on September 15, 1997 and the reasons for that decision refer to, among other things, the presence of "incompatibles" in the Pacific Region.

[8]                On November 12, 1997, the Applicant submitted a grievance against the denial of his transfer request on September 15, 1997. As part of his submissions in the grievance process, the Applicant addressed the issue of "incompatibles".

[9]                The materials and submissions relating to the Applicant's grievance were reviewed by Mr. Kevin Crawford, an analyst in the Inmate Affairs Branch of the Correctional Service with responsibility for investigating and reviewing third level grievances submitted by inmates. According to his affidavit filed in this application, Mr. Crawford reviewed the following documents:

(1)         Progress Summary Report dated May 5, 1997;

(2)         Progress Summary Appraisal and Recommendation dated May 5, 1997;

(3)         Offender Security Level Referral Decision Sheet dated July 4, 1997;

(4)         Community Assessment dated 18 February 1997;

(5)         Community Assessment dated 7 March 1997;

(6)         Letter acknowledging receipt of grievance dated November 14, 1997 ;

(7)         Community Assessment dated January 21, 1998.

[10]            He also reviewed a letter, dated October 28, 1997, submitted by Mr. Denis Corrigan, the Unit Manager at Millhaven Institution. An edited copy of that letter is attached as an exhibit to Mr. Crawford's affidavit. Mr. Corrigan, who was the Unit Manager/Segregation/Mental Health Services at Millhaven Institution indicated that there were "difficulties" with the Applicant's case and his request for a transfer to the Pacific Region due to the number of incompatibles in that Region. Mr. Corrigan also refers, in his letter, to certain materials that had been prepared in connection with the Applicant's request which were enclosed with his letter, sent to National Headquarters in Ottawa.

[11]            Mr. Crawford was cross-examined upon his affidavit that was filed in this proceeding. He testified that he denied the Applicant's grievance, notwithstanding that the Applicant met certain criteria in favour of the transfer, because the problems with incompatibles posed a safety risk to other individuals and institutional security. These factors outweighed the factors in favour of allowing the grievance. Mr. Crawford reviewed the materials and forwarded them to the Respondent Price. He said that Mr. Price, in his capacity as Assistant Commissioner of Corporate Development, was authorized by the Commissioner to deal with inmate grievances and in that regard, produced a copy of the written authorization issued by the Respondent Commissioner.

[12]            In his decision denying the Applicant's grievance, Mr. Price determined that the issue of incompatibles was a critical factor weighing against allowing the grievance. His decision provides in part as follows:

The issue of incompatibilities with other inmates at Mountain Institution and other medium security institutions has been thoroughly reviewed. It is noted that you have provided several letters from inmates in the Pacific Region who have been listed as incompatibles and who now insist upon having their names removed from the security file as being identified as incompatibles. This factor was reviewed with institutional authorities, however, they continue to assert that the risk you would present to other inmates is not manageable at this time.

While I agree that you meet the criteria for consideration for an inter-regional transfer, it is apparent at the present time that the issues of inmate incompatibilities in the Pacific Region outweigh the merits of your transfer application. ...

[13]            The Applicant commenced this application on March 30, 1998 by means of an Originating Notice of Motion, pursuant to the former Federal Court Rules, C.R.C. 1978, c. 663, as amended. As part of that originating document, he sought production of documents, as follows:

the list of the incompatibles of the applicant, the reasons for their current status as incompatibles and the dates and methods whereby the status of incompatibility was reviewed, or, in the alternative, as much of the above information as is possible, witholding [sic] only as much information as is strictly necessary in order to protect the safety of any person.

[14]            The Respondents resisted disclosure of this information on the basis of section 37 of the Canada Evidence Act, R.S.C. 1985, c. 5, as amended and of sections 27(3)(a) and (b) of the Act.

[15]            By Order dated December 15, 1999, Justice Pelletier (as he then was) issued an Order dismissing the Applicant's request for disclosure of documents as set out in his originating notice of motion and upholding the objection to disclosure of confidential documents set out in the certificate filed by the Respondents pursuant to the Canada Evidence Act, supra. No appeal was taken from this Order.

SUBMISSIONS

[16]            In the present proceeding, the Applicant argues that the Respondent Price had no authority to deal with and decide his grievance since that power was given to the Respondent Commissioner, pursuant to the Act. Further, he submits that the Respondent Price breached the duty of procedural fairness and his rights pursuant to section 7 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.), c. 11 (the "Charter") by failing to provide him with sufficient information to rebut the presumption of incompatibility in the Pacific Region.

[17]            The Applicant also argues that the Respondent Price breached the duty to act fairly by failing to conduct a proper investigation concerning the issue of "incompatibles".

[18]            The Applicant further submits that the Respondent Commissioner failed in his legal duty to take reasonable steps to apply section 28 of the Act to ensure that he was housed in the least restricted environment available, having regard to the interests of safety and security of the penitentiary, accessibility to his family and appropriate programmes, and his willingness to participate in those programmes.

[19]            Finally, the Applicant argues that the Respondent Commissioner failed to discharge his legal obligations pursuant to section 31(2) of the Act to return him to the general population of another penitentiary at the earliest appropriate time.

[20]            The Respondents take the position that the decision was lawfully made and that there is no basis for judicial intervention.

DISCUSSION

[21]            This application raises three issues. First, did the Respondent Commissioner properly delegate his decision-making authority to the Respondent Price? Second, did the Respondent Price commit a reviewable error or breach procedural fairness in the manner in which he exercised that authority? Finally, did the Respondent Commissioner act unfairly or fail to discharge his legal obligations towards the Applicant?

[22]            The Applicant relies on section 80(2) of the Regulations to challenge the authority of Respondent Price to decide his third-level grievance. Section 80(2) provides as follows:

The Applicant says that the Respondent Commissioner had no authority to delegate this decision-making power.

[23]            I disagree with this argument, having regard to the purpose of the Act, the role and authority of the Commissioner, and the nature of the decision under review.

[24]            The purpose of the Act is set out in section 3 as follows:

[25]            The role of the Commissioner is set out in section 6(1) as follows:

[26]            Sections 97 and 98 authorize the Commissioner to make rules and issue directions. These sections provide as follows:

[27]          The subject of the Applicant's grievance is refusal of his request for a voluntary transfer. Transfer requests are considered to be administrative decisions within the scope of the Act. In this regard, I refer to Gallant v. Canada (Deputy Commissioner, Correctional

Service Canada), [1989] 3 F.C. 329 (C.A.) at 342 where the Court said as follows:

2. ... it is wrong to put on the same level all administrative decisions involving inmates in penitentiaries, be they decisions of the National Parole Board respecting the revocation of parole, or decisions of disciplinary boards dealing with disciplinary offences for which various types of punishments, up to administrative segregation, can be imposed, or decisions, such as the one here involved, of prison authorities approving the transfer of inmates from one institution to another for administrative and good order reasons. Not only do these various decisions differ as to the individual's rights, privileges or interests they may affect, which may lead to different standards of procedural safeguards; they also differ, and even more significantly, as to their purposes and justifications, something which cannot but influence the content of the information that the individual needs to be provided with, in order to render his participation, in the making of the decision, wholly meaningful. ...

[28]            As noted above, the Respondent Commissioner had delegated to the Respondent Price the authority to deal with matters pursuant to section 80 of the Regulations. That authorization provides as follows:

I, OLE INGSTRUP, COMMISSIONER OF CORRECTIONS, HEREBY AUTHORIZE THE ASSISTANT COMMISSIONER, CORPORATE DEVELOPMENT (CURRENTLY KNOWN AS THE ASSISTANT COMMISSIONER, CORRECTIONAL POLICY AND CORPORATE PLANNING), TO EXERCISE THE POWERS, DUTIES AND FUNCTIONS GIVEN ME BY SECTION 80 OF THE CORRECTIONS AND CONDITIONAL RELEASE REGULATIONS.

THIS DELEGATION REMAINS IN FORCE UNTIL IT HAS BEEN WITHDRAWN BY ME IN WRITING.

DATED AT OTTAWA THIS 25 DAY OF NOVEMBER 1996.

"Ole Ingstrup"

COMMISSIONER

[29]            The issue of delegation of this power by the Respondent Commissioner was addressed by this Court in Mennes v. McClung et al. (2001), 215 F.T.R. 33 where an inmate challenged the propriety of a delegation of authority to address a third level grievance to the Acting Assistant Commissioner. The Court rejected that argument and concluded that the decision-making authority could be delegated. At pages 36-37, the Court said as follows:

20.     ... Sections 75-82 of the Regulations provide for the grievance process and there is clearly no requirement under the Act or the Regulations for the Commissioner of Corrections, to individually or directly review complaints at the Third level appeal or at any other level. In addition, it would be impractical for the Commissioner of Corrections to have to review all the grievances made by every inmate in the country, at each level of appeal.

21.      The resolution to this issue is found in several sources: section 97 of the Act, section 98 of the Act, Commissioner's Directive Number 081 dated June 22, 1998 entitled Offender Complaints and Grievances (CD 081), the inclusion printed at the bottom of the decision of the Commissioner (Third level grievance -- National) and lastly subsection 2(2) of the Act. They will be treated below in this order. It is the interaction between these multiple sources that allowed for the delegation of authority to the Acting Assistant Commissioner Karen J. Wiseman by the Commissioner to pronounce on the final stage of the grievance process.

[30]            In Mennes, supra, the Court dealt with a further question, that is whether an Assistant Commissioner could delegate authority to an "Acting Assistant Commissioner for the purpose of rendering a final decision in the grievance process". Relying on section 2(2) of the Act, particularly the French rendition of that statutory provision, the Court answered that question in the affirmative.

[31]            In the present case, Mr. Crawford referred to two Directives that governed the prosecution of the Applicant's grievance. The first is Commissioner's Directive 540 entitled "Transfer of Inmates" that provides a grievance procedure for inmates relative to transfer decisions. The second is Commissioner's Directive 081 entitled "Inmate Complaints and Grievances".

[32]            In the present case, the authority was delegated by the Respondent Commissioner. On the basis of the applicable provisions of the Act and guided by the decision in Mennes, supra, I am satisfied that the Respondent Price was duly authorized to decide the third level grievance submitted by the Applicant. The next question for consideration is whether the Respondent Price committed a reviewable error in deciding that grievance or breached the duty of procedural fairness owed to the Applicant?                      

[33]            In my opinion, the decision made here to deny the third level grievance involved the exercise of discretion and expertise relative to the assessment of the presence of incompatibles in the institution to which the Applicant sought transfer. In these circumstances, the standard of review is reasonableness, subject always to the requirements of good faith and procedural fairness. In this regard, I refer to Kelly v. Correctional Service of Canada (Pacific Region) (1992), 56 F.T.R. 166 (T.D.) where the Court said the following at page 169:

It is well established that transfer decisions are administrative in nature and should not be interfered with unless the decision maker has clearly breached his duty to act fairly or a serious injustice has been committed (Re Nicholson and Haldimand-Norfolk Regional Board of Com'rs of Police, [1979] 1 S.C.R. 311">[1979] 1 S.C.R. 311; [1980] 1 S.C.R. 602">Martineau v. Matsqui Institution Disciplinary Board (No. 2), [1980] 1 S.C.R. 602, at p. 637; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 654). ...

[34]            The Court further noted that in reviewing an administrative decision in respect of an inmate's transfer, the Court is limited to reviewing the legality, but not the merits, of such decision.

[35]            In the present case, the Applicant initiated the request for the transfer. It was a voluntary transfer. He filed his submissions before various levels of decision-makers and availed of the grievance process that was in place. According to the affidavits of Mr. Crawford and Mr. Bryan Furman, filed as part of the Respondents' records, the Applicant had the opportunity to present his case and he did so. I see no breach of procedural fairness arising from the manner in which the Applicant pursued his request.

[36]            The essence of the negative decision made by the Respondent Price was the presence of incompatibles in the Pacific Region. Due to an irregular disclosure of information about those who were considered to be "incompatibles" relative to him, the Applicant addressed this issue in terms of the individuals who were so classified, in an attempt to show that the issue had been resolved.

[37]            The Respondent Price did not share the Applicant's opinion, in that regard. That decision was within the authority and expertise of Commissioner Price to make. He is vested with the authority to make decisions regarding the safety of inmates and the security of the institution, including the safety and security of Corrections Services staff. I see no error in the manner in which the Respondent Price made his decision and the record shows a rational basis for that decision.

[38]            The Applicant argues that his section 7 rights pursuant to the Charter, were breached. I see no merit in this argument. This is not a decision involving loss of the liberty of the Applicant. He was seeking a voluntary transfer. That decision was ultimately denied, after the Applicant had accessed the available grievance process. The record shows that the institution to which the Applicant sought transfer was not suitable for him, having regard to the factors of safety and security. These were relevant factors to be taken into account by the Respondent Price.

[39]            The Applicant also argues that he was denied procedural fairness because he did not receive enough information to "properly rebut the presumption of incompatibility throughout the Pacific Region". This argument must fail, because, in my opinion, it is a veiled attack on the Order of Justice Pelletier in upholding the Respondents' objections against production of certain information, pursuant to both the Canada Evidence Act, supra and the Act. In the absence of any appeal from that decision, I am bound to follow it. The sufficiency of the record is not an issue in this application and there is no basis for the Applicant's argument challenging that record.

[40]            The Applicant also argues that the Respondent Price breached the duty of fairness by failing to conduct a proper investigation into the issue of incompatibles to the Applicant. I reject this argument. It is not founded in the evidence which shows that the issue of incompatibles was before the Respondent Price and he considered it. The fact that he reached a conclusion contrary to the Applicant's opinion does not mean that his investigation was insufficient or defective. The transcripts of the cross-examinations of both Mr. Crawford and Mr. Furman show that this issue was considered by the subordinate decision-maker and investigators prior to the matter being referred to the Respondent Price.

[41]            Finally, I turn to the Applicant's arguments concerning the alleged failure of the Respondent Commissioner to discharge his duty pursuant to sections 28 and 31(2) of the Act. These sections provide as follows:

[42]            I fail to see the relevance of this argument to the subject of this application for judicial review, that is denial of the Applicant's third level grievance. However, insofar as the Commissioner is responsible for the control and management of the Correctional Service, including the conditions under which the Applicant is kept in custody in an institution, he did not breach these sections.

[43]            The Respondent Price considered the interests of safety and security. These were proper matters to be taken into account in making his decision. He balanced the interests of the Applicant against the interests of other individuals within the Correctional Service, in reaching his decision. He did not commit a reviewable error in doing so. Since I have already found that he was properly authorized to exercise the authority of the Respondent Commissioner, I conclude that the Applicant has failed to demonstrate any breach of duty the Respondent Commissioner relative to sections 28 and 31(2) of the Act.

[44]            The application for judicial review is dismissed with costs. In the exercise of my discretion, I set costs in the amount of $500.00, inclusive of GST and disbursements.

                                               ORDER

The application for judicial review is dismissed with costs. In the exercise of my discretion, I set those costs in the amount of $500.00, inclusive of GST and disbursements.

(Sgd.) "E. Heneghan"

J.F.C.

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-559-98

STYLE OF CAUSE: KURT ALEXANDER HIEBERT

v.

JOE PRICE and others

PLACE OF HEARING:                                 Ottawa, ON

DATE OF HEARING:                                   April 19, 2004

REASONS FOR ORDER

AND ORDER:          Honourable Madam Justice Heneghan

DATED:                     October 28, 2004

APPEARANCES:

Ms. Carol Blake                                                FOR APPLICANT

Mr. J. Sanderson Graham                                              FOR RESPONDENT

SOLICITORS OF RECORD:

Carol Blake                                                       FOR APPLICANT

Kingston, Ontario

Morris Rosenberg                                              FOR RESPONDENT

Deputy Attorney General

Ottawa, Ontario