Date: 20010612
Docket: T-1188-00
Neutral Citation: 2001 FCT 632
BETWEEN:
SERGE DUPRAS
Applicant
and
PAUL T. L. URMSON, WARDEN OF KENT INSTITUTION,
PEITER DEVINK, DEPUTY COMMISSIONER,
REGIONAL HEADQUARTERS PACIFIC,
ROXY MANDZIAK, REGIONAL TRANSFER OFFICER,
REGIONAL HEADQUARTERS PACIFIC,
GUY VILLENEUVE, ASSISTANT DEPUTY COMMISSIONER,
REGIONAL HEADQUARTER LAVAL,
CAROLINE TURCOTT, REGIONAL TRANSFER OFFICER,
REGIONAL RECEPTION CENTRE QUEBEC
Respondents
REASONS FOR ORDER
McKEOWN, J.
[1] The Applicant seeks judicial review of the final decision by the Assistant Deputy Commissioner (Regional Headquarters, Laval) dated June 7, 2000 to approve the Involuntary Transfer of the Applicant from Kent Institution in British Columbia to Port Cartier Institution in the Province of Québec.
Issue
[2] The issue is whether the Respondents violated procedural fairness and the efficiency requirements in dealing with the Applicant.
Facts
[3] The Applicant is a maximum security inmate serving his third term for various offences, including assault, robbery, escape from custody, possession of a restricted weapon, possession of a prohibited weapon, aggravated assault, conspiracy and manslaughter.
[4] After a visit with his wife on June 23, 1999, the Applicant was placed in the Segregation Unit at Kent Institution for charges of Possession of Heroin. The Applicant's wife was also charged with Possession for the Purpose of Trafficking. The Applicant's charges were later changed to Possession for the Purpose of Trafficking of Heroin.
[5] In August, 1999, the Applicant received a Notice of Involuntary Transfer Recommendation to the Special Handling Unit in the Québec Region. In response, the Applicant's counsel submitted a rebuttal and subsequently the application for the Involuntary Transfer to the Special Handling Unit was defeated.
[6] On September 17, 1999 the Applicant was provided with a Notice of Review of Recommendation Relative to Involuntary Transfer and Assessment for Decision Institution Transfer (Involuntary) to Kingston Penitentiary in Ontario. On September 22, 1999 the Applicant's counsel submitted a rebuttal to the transfer to Kingston Penitentiary. The application for the Involuntary Transfer to Kingston Penitentiary was defeated.
[7] In December, 1999, Kent Institution provided Port Cartier Institution with an application for the Applicant's Involuntary Transfer without a copy of the application being provided to the Applicant and his counsel. The Applicant later became aware of this application for Involuntary Transfer to Port Cartier which was withdrawn due to the irregularity of the process.
[8] The Applicant agreed to a voluntary transfer to Atlantic Institution, Renous, New Brunswick in January, 2000.
[9] The Applicant applied for voluntary transfer to Atlantic Institution on February 15, 2000 so his wife could have an easier time integrating into the community as a unilingual anglophone. The parole officer at Kent Institution fully supported the Applicant's application and completed all necessary consultations and paper work, but the Applicant withdrew the application for voluntary transfer on April 3, 2000. The Applicant in his affidavit in this motion testified that he withdrew the application due to an incompatible inmate at the Atlantic Institution.
[10] On February 7, 2000, the Applicant was provided with an application for an involuntary transfer to Port Cartier Institution. A rebuttal of the transfer was submitted by the Applicant's counsel on February 28, 2000.
[11] On April 17, 2000, the Applicant received the notice of the Acting Warden that upheld his involuntary transfer. The Applicant claims the decision contained inaccuracies to which his counsel provided a response on April 26, 2000. On June 7, 2000, the Applicant was served with the Assist Deputy Commissioner of Québec's decision, dated that same day, approving the Applicant's transfer to Port Cartier Institution.
[12] The Applicant claims that the documentation on which the decision was based was inaccurate and also referred to two items concerned which had not been put forward as part of the Respondent's case. Firstly, the Applicant states that it is not truthful that he had an incompatible inmate at Kent Institution in the protected custody population. The Applicant states that there was only one inmate at Kent to have listed him as incompatible. The Applicant submits that the incompatible inmate from H Unit did not have contact with the rest of the prison population, and therefore should not have been considered by the Assistant Deputy Commissioner in making his decision. In these circumstances, it is not inaccurate to state that there was an incompatible at the Kent Institution. It is incomplete information, not wrong information. The Assistant Deputy Commissioner stated at page 3 of his decision:
De plus, nous remarquons la présence d'un antagoniste à l'établissement Kent. Selon les informations disponibles, cet antagonîsme est toujours d'actualité et un retour en population de votre part compromettrait la sécurité des personnes, de l'établissement et votre propre sécurité. Dans ces circonstances, il ne vous est pas possible de réintégrer la population régulière de l'établissement Kent.
[13] Secondly, the Applicant states that documentation also demonstrates false information, namely: that the Applicant had indicated that his wife could move to a place nearby the Port Cartier Institution. However, as the Applicant correctly states, this is not accurate because his wife is unable to move there given that the area is strongly francophone and she does not speak French. In addition, she is a student living in the Lower Mainland of British Columbia with her mother, who provides her with some support which she would not get if she moved away.
[14] The decision-makers were clearly aware of the language issue because of page 3 of the decision of the Acting Warden of the Kent Institution of April 11, 2000. The Acting Warden wrote:
Mr. TOUT indicates that you had applied for a voluntary transfer to Atlantic Institution on 2000/02/15 so that your wife could have an easier time integrating into the community as a unilingual anglophone.
The Acting Warden went on to say:
You indicated an interest in going to Atlantic Institution to allow for more favorable community integration for your wife. This was supported by the Case Management team.
However, it was clearly incorrect for the Regional Transfer Board at page 83 of the Applicant's Record to state as part of the final decision that:
[p]rior to withdrawal, [Mr. Dupras] had stated that his wife would be able to follow him to Quebec, thus maintaining family contact and enhancing his reintegration potential.
[15] The Corrections and Conditional Release Act, S.C. 1992, c. 20 (the CCRA) sets out the criteria for selection of a penitentiary in section 28 which reads as follows:
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Placement and Transfer of Inmates
Criteria for selection of penitentiary
28. Where a person is, or is to be, confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which the person is confined is one that provides the least restrictive environment for that person, taking into account
(a) the degree and kind of custody and control necessary for
(i) the safety of the public,
(ii) the safety of that person and other persons in the penitentiary, and
(iii) the security of the penitentiary;
(b) accessibility to
(i) the person's home community and family,
(ii) a compatible cultural environment, and
(iii) a compatible linguistic environment; and
(c) the availability of appropriate programs and services and the person's willingness to participate in those programs.
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Incarcération et transfèrement des détenus
Incarcération : facteurs à prendre en compte
28. Le Service doit s'assurer, dans la mesure du possible, que le pénitencier dans lequel est incarcéré le détenu constitue le milieu le moins restrictif possible, compte tenu des éléments suivants :
a) le degré de garde et de surveillance nécessaire à la sécurité du public, à celle du pénitencier, des personnes qui s'y trouvent et du détenu;
b) la facilité d'accès à la collectivité à laquelle il appartient, à sa famille et à un milieu culturel et linguistique compatible;
c) l'existence de programmes et services qui lui conviennent et sa volonté d'y participer.
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[16] The standard of review on the ultimate decision to transfer is patent unreasonableness. See Fitzgerald v. William Head Institution, [1994] B.C.J. No. 1534 (S.C.). However, it may be that the standard of review has been changed as a result of the decisions in both Pushanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Accordingly, I will use the standard of reasonableness simpliciter to review the decision.
[17] The decision to transfer inmates is a discretionary one. Courts in reviewing discretionary decisions ought not to interfere with the exercise of discretionary statutory authority merely because they may have arrived at a different decision. Where the decision is made in good faith, based on considerations relevant to the exercise of discretion, and no reliance is placed on any irrelevant or extraneous considerations, the decision ought not to be disturbed. See Légère v. Canada [1997], 133 F.T.R. 77 (F.C.T.D.).
[18] In reviewing the decisions of Corrections officials, I have to be cognizant of the difficult context within which these decisions are made and the balancing of interests that is necessary. I agree with Bouck J's statement in Bachynski v. William Head Institution, [1995] B.C.J. No. 1715 (S.C.) at paragraphs 36-7:
Prison authorities must act on the best information available. Sometimes it is unreliable and an individual inmate is wrongly charged or wrongly transferred. But given the nature of the inmate population and the necessity of preserving order there is often no other alternative.
...
Courts must always be vigilant in protecting the individual rights of an inmate who is dealt with in an unreasonable manner. On the other hand, we should realize the difficult situations that confront prison officials.
[19] This is particularly important in transfer cases where one is not judging the guilt or innocence of the party involved. In Gallant v. Canada (Deputy Commissioner, Correctional Service of Canada), [1989] 3 F.C. 329 (C.A.), Marceau J. stated at 342 that in a case where a sanction or punishment for commission of an offence was being imposed:
... fairness dictates that the person charged be given all available particulars of the offence. Not so in the case of a decision to transfer made for the sake of the orderly and proper administration of the institution and based on the belief that the inmate should, because of concerns raised as to his behaviour, not remain where he is. In such a case, there would be no basis for requiring that the inmate be given as many particulars of all the wrong doings of which he may be suspected. Indeed, in the former case, what has to be verified is the very commission of the offence and the person involved should be given the fullest opportunity to convince of his innocence; in the latter case, it is merely the reasonableness and the seriousness of the belief on which the decision would be based and the participation of the person involved has to be rendered meaningful for that but nothing more. ...
[20] The final decision dated June 7, 2000 included these comments from the Warden of Kent Institution at page 2:
This transfer will allow inmate Dupras to sever his relationship with the drug culture at Kent Institution. This will allow Inmate Dupras to concentrate on his CTP.
The final decision of the Assistant Deputy Commissioner pointed to this involvement with the drug culture at page 3:
Nous avons pris connaissance de l'information partinente à la présente étude. Nous constanons que vous vous étes impliqué dans des activités illicites en établissement. Vous avez d'ailleurs été surpris à agir de la sorte et avez été reconnu coupable de possession de drogue en vue d'en faire le trafic par la Cour.
[21] The Assistant Deputy Commissioner then indicated the concerns about incompatible inmates. It would appear that the Applicant would have incompatibles throughout the system. The Assistant Deputy Commissioner stated:
Tenant compte du nombre d'antagonistes que vous possédez à travers le pays, les alternatives à votre situation actuelle sont trés limitées. Considérant la nécessité de mettre un terme à votre isolement préventif, il apparait qu'un transférement non sollicité constitue, à ce stade-ci la seule option valable et sécuritaire, pusique [sic] vous refusez de bénéficier o'un transéferement sollicité. Nous sommes donc en accord avec la recommandation de transférement présentée. En effet, l'établissement Fort-Cartier offre l'encadrement et les programmes correspondant à vos besoins, et vous n'y avez aucun antagoniste identifié.
As can be seen, the Assistant Deputy Commissioner has taken into account the fact that the Applicant has been in a segregation unit at Kent Institution and that this situation is not advisable in the long-term.
[22] The Applicant's counsel submits that the transfer approval process in his case should be considered by the Court because the Applicant was kept in a segregated unit from June, 1999. However, it is not proper to determine the issue of the Applicant's length of time in segregation at this time, as this should be the subject of another judicial review. In my view, the delay in the transfer process is attributable to the attempts to transfer the Applicant, as well as the Applicant's own attempt to transfer voluntarily to a different institution.
[23] The Applicant submits that the paramount interests with respect to the issue of the transfer process are that the process should be fair and efficient. The Applicant relies on section 4 of the CCRA, which provides:
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The principles that shall guide the Service in achieving the purpose referred to in section 3 are
...
(g) that correctional decisions be made in a forthright and fair manner, with access by the offender to an effective grievance procedure;
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Le Service est guidé, dans l'exécution de ce mandat, par les principes qui suivent :
...
g) ses décisions doivent être claires et équitables, les délinquants ayant accès à des mécanismes efficaces de règlement de griefs;
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Pursuant to section 11(b) of the Corrections and Conditional Release Regulations, SOR/92-620 (the Regulations), the inmate is to be informed in writing of the reasons for his/her placement in a particular penitentiary, and he/she must be given an opportunity to make representations with respect thereto. This is spelled out in more specificity in section 12 of the Regulations which reads:
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12. Before the transfer of an inmate pursuant to section 29 of the Act, other than a transfer at the request of the inmate, an institutional head or a staff member designated by the institutional head shall
(1) give the inmate written notice of the proposed transfer, including the reasons for the proposed transfer and the proposed destination;
(2) after giving the inmate a reasonable opportunity to prepare representations with respect to the proposed transfer, meet with the inmate to explain the reasons for the proposed transfer and give the inmate an opportunity to make representations with respect to the proposed transfer in person or, if the inmate prefers, in writing;
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12. Sauf dans le cas du transfèrement demandé par le détenu, le directeur du pénitencier ou l'agent désigné par lui doit, avant le tranfèrement du détenu en application de l'article 29 de la Loi:
a) l'aviser par écrit du transfèrement projeté, des motifs de cette mesure et de la destination;
b) après lui avoir donné la possibilité de préparer ses observations à ce sujet, le rencontrer pour lui expliquer les motifs du transfèrement projeté et lui donner la possibilité de présenter ses observations à ce sujet, en personne ou par écrit, au choix du détenu;
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[24] There are guidelines issued as "Commissioner's Directives" which state that, "staff members are allowed to share with offenders information that is relevant to his or her case". The Applicant submits that these guidelines were not complied with by the Respondents' failure to inform him of the concerns about the incompatible in Kent Institution, and of the wife's interest, which ought to be considered. However, in my view, as I already stated, the question of the incompatible inmate did not have to be raised with the Applicant. For this reason, and the reasons in paragraphs [24] and [25], the information with respect to the Applicant's wife would not have been sufficient to change the result. I believe that in some cases the violation of the guidelines might be sufficient grounds to quash the decision. But this is not one of those cases.
[25] More importantly, with respect to the transfer of offenders guidelines, is the section which deals with the duty to act fairly. In particular, section 10 reads as follows:
Transfer procedures must ensure that transfers are carried out in a fair, efficient and secure manner which the requirements of both the offenders and institutions involved and the offender's rights are protected.
[26] The Applicant admits that the transfer was carried out in a secure manner, but submits that he was not given an opportunity to respond to the allegedly false information contained in the statements regarding the incompatible at Kent Institution and his wife's interest in moving to Quebec. Furthermore, the Applicant submits that the number of months spent in segregation in Kent Institution is not fair in a procedural manner. However, the question of whether the Applicant should have been released from segregation earlier cannot be reviewed by me at this time, since under the rules only one decision can be challenged under a judicial review. The Applicant seeks a remedy for the time that he spent in the segregation unit because it is relevant to the question of fairness and efficiency. I have previously reviewed why I think that the length of time that the Applicant spent in the segregation unit was not unfair. I note that the only length of time I am looking at is from the time the Warden gave notice of the proposed transfer (February 7, 2000) until the time that the transfer was made (June 7, 2000). Four months is not an unreasonable time spent in segregation.
[27] As stated earlier by Marceau J.A. in Gallant v. Canada, supra, every allegation does not have to be disclosed to the Applicant, and furthermore the test on transfer is merely the reasonableness and seriousness of the belief on which the decision was based and that the Applicant must have participated in a meaningful way. The Applicant was involved in illegal activities at Kent Institution and was very much a part of the drug culture. He refused treatment for his drug problems and only expressed interest in such treatment whenever an involuntary transfer was proposed. In the recommendation for transfer (April 17, 2000) the Acting Warden of Kent Institution stated at page 2:
Furthermore, although your heroine addiction is of great concern to the Case Management team, it is your involvement in the institutional sub-culture and its related violence that has resulted in the basis of the involuntary transfer recommendation.
[27] I see nothing unreasonable in the finding of the Assistant Deputy Commissioner's decision of June 7, 2000 and the material it is based upon.
[28] The application for judicial review is dismissed.
"William P. McKeown"
JUDGE
Calgary, Alberta
June 12, 2001
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