Docket: T-151-00
OTTAWA, ONTARIO, the 30th day of November, 2000
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
MICHAEL BLASS,
Applicant,
- and -
ATTORNEY GENERAL OF CANADA,
Respondent.
O R D E R
The application for judicial review is allowed and the decision to segregate the applicant is set aside. I order that the comments by the jail authorities of the Port-Cartier Institution, to the effect that the information that was assembled identifies the applicant as one of the instigators of the events of April 22, 1999, and that they had reasonable grounds to segregate him while the investigation was proceeding, be stricken from his record.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20001130
Docket: T-151-00
BETWEEN:
MICHAEL BLASS,
Applicant,
- and -
ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR ORDER
LEMIEUX J.:
A. The Facts
[1] The applicant, an inmate at the Port-Cartier Institution, is seeking to quash the level 3 administrative decision of the Correctional Service of Canada (hereinafter the "CSC"), which upheld the decision of August 23, 1999 to place him in segregation for investigation purposes, a decision made pursuant to the provisions of paragraph 31(3)(b) of the Corrections and Conditional Release Act (hereinafter the "Act").
[2] Section 31 of the Act reads:
| Purpose
31. (1) The purpose of administrative segregation is to keep an inmate from associating with the general inmate population.
Duration
(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.
Grounds for confining inmate in administrative segregation
(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. [Underlining added.]
|
|
| Objet
31. (1) L'isolement préventif a pour but d'empêcher un détenu d'entretenir des
rapports avec l'ensemble des autres détenus.
Retour parmi les autres détenus
(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.
Motifs d'isolement préventif
(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.
[Je souligne.]
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|
[3] I reproduce the relevant extract from the level 3 decision:
| [Translation] We conclude, therefore, that your placement in segregation for investigation purposes was justified. We also conclude that your confinement in segregation until the end of the investigation, during the period from April 24 to May 11, 1999, was appropriate and that the Port-Cartier authorities were justified in cancelling your private family visit (PFV), which had been scheduled for April 26, 1999, until the conclusion of the administrative investigation. You will appreciate that in order to shed light on these events and not to impede the ongoing investigation, the only alternative was to place you in administrative segregation. |
[4] The applicant was placed in segregation on April 23, 1999 following a mass disturbance on April 22, 1999 generated by the inmates of the Port-Cartier Institution, during which some significant material damage occurred.
[5] The applicant was segregated on the ground that he might impede the investigation concerning the events of April 22, 1999. The CSC expresses its justification in the following way in a report on a hearing to review the applicant's status, dated April 30, 1999:
| Pursuant to the events of 99-04-22 in the late evening, during which significant damage to equipment occurred and the security of the institution was jeopardized. The information collected identifies you as one of the instigators of these events. |
| To shed light on these events and to avoid impeding the ongoing investigation, the only alternative at present is to place you in administrative segregation. [Emphasis added] |
[6] This report also contains the comments expressed by the applicant at the hearing:
[Translation] Mr. Blass repeated several times that he had not done anything or provoked anything directly or indirectly during the events of 1999-04-22 (mass movement). Instead, he said that someone somewhere had made an error.
[7] The applicant's reintegration in the general inmate population occurred on May 11, 1999 after the hearing that day. The report of this hearing describes his reintegration plan and an overall assessment of the applicant. The relevant paragraphs read:
| The investigation is concluded and its findings produced nothing new to us. We now think there is no longer any reason for keeping the subject in segregation. |
| OVERALL ASSESSMENT AND RECOMMENDATION: |
| Mr. Blass has developed an image among his peers. That is why he should be aware of the consequences of some of the things he says to them. The subject can no longer impede the investigation, since it is now concluded. We recommend, therefore, that Mr. Blass be returned to the general inmate population. |
B. Issues
[8] The applicant raises two issues. He says the authorities in the Port-Cartier Institution had no reasonable grounds to believe that his continued presence among the other inmates might impede the progress of the investigation. He adds that he was given no information by the penitentiary authorities that would have enabled him to challenge their decision to place him in segregation.
[9] The respondent submits that the applicant is no longer in segregation and under the principles laid down by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, his application is moot.
C. Analysis
(a) on the merits
[10] Since the leading decision of the Supreme Court of Canada in Cardinal v. Warden of Kent Institution, [1985] 2 S.C.R. 644, there is no doubt that the prison authorities have a duty of procedural fairness when exercising their statutory authority to place an inmate in administrative segregation.
[11] In Cardinal, supra, Le Dain J. enumerated the effects on an inmate of a (non-disciplinary) administrative segregation, at page 648:
| Administrative dissociation or segregation ... is a form of confinement involving severe restrictions on mobility, activity and association. |
[12] The cases teach us that the duty of fairness is flexible and variable and based on an assessment of the context of the particular statute and the rights contemplated (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at p. 837). The very nature of a prison institution requires that decisions be made "on the spot" by the officials and judicial review must be exercised with deference; fairness in the prison context has no fixed content but a content that will vary according to the circumstances (see Procureur général du Canada v. Richard St-Amand, No. 200-10-00972-005, Quebec Court of Appeal, July 12, 2000).
[13] Procedural fairness requires that an inmate in a case of administrative segregation be sufficiently informed of the allegations against him to be able to reply to them (see Demaria v. Regional Classification Board, [1987] 1 F.C. 74 and Cardinal, supra).
[14] Parliament codified the common law principles of procedural fairness in the prison context, including administrative segregation, when it overhauled the Act in 1992. These principles are reflected as well in the Corrections and Conditional Release Regulations (hereinafter "the Regulations" (SOR/92-620) and Commissioner's Directive No. 590 -- Administrative Segregation (the "Directive").
[15] Section 27 of the Act covers information to be given to inmates:
| 27. (1) Where an offender is entitled by this Part or the regulations to make representations in relation to a decision to be taken by the Service about the offender, the person or body that is to take the decision shall, subject to subsection (3), give the offender, a reasonable period before the decision is to be taken, all the information to be considered in the taking of the decision or a summary of that information.
|
27. (1) Sous réserve du paragraphe (3), la personne ou l'organisme chargé de rendre, au nom du Service, une décision au sujet d'un délinquant doit, lorsque celui-ci a le droit en vertu de la présente partie ou des règlements de présenter des observations, lui communiquer, dans un délai raisonnable avant la prise de décision, tous les renseignements entrant en ligne de compte dans celle-ci, ou un sommaire de ceux-ci.
|
| (2) Where an offender is entitled by this Part or the regulations to be given
reasons for a decision taken by the Service about the offender, the person or
body that takes the decision shall, subject to subsection (3), give the
offender, forthwith after the decision is taken, all the information that was
considered in the taking of the decision or a summary of that information.
|
(2) Sous réserve du paragraphe (3), cette personne ou cet organisme doit, dès
que sa décision est rendue, faire connaître au délinquant qui y a droit au titre de la présente partie ou des règlements les renseignements pris en compte dans la décision, ou un sommaire de ceux-ci.
|
| (3) Except in relation to decisions on disciplinary offences, where the
Commissioner has reasonable grounds to believe that disclosure of information
under subsection (1) or (2) would jeopardize
(a) the safety of any person,
(b) the security of a penitentiary, or
(c) the conduct of any lawful investigation,
the Commissioner may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified
in paragraph (a), (b) or (c). [Underlining added.]
|
|
| (3) Sauf dans le cas des infractions disciplinaires, le commissaire peut
autoriser, dans la mesure jugée strictement nécessaire toutefois, le refus de communiquer des renseignements au délinquant s'il a des motifs raisonnables de croire que cette communication mettrait en danger la sécurité d'une personne ou du pénitencier ou compromettrait la tenue d'une enquête licite. [Je souligne.]
|
(4) An offender who does not have an adequate understanding of at least one of
Canada's official languages is entitled to the assistance of an interpreter
(a) at any hearing provided for by this Part or the regulations; and
(b) for the purposes of understanding materials provided to the offender pursuant to this section.
|
| 4) Le délinquant qui ne comprend de façon satisfaisante aucune des deux langues officielles du Canada a droit à l'assistance d'un interprète pour toute audition prévue à la présente partie ou par ses règlements d'application et pour la compréhension des documents qui lui sont communiqués en vertu du présent
article.
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[16] Section 33 of the Act prescribes a review procedure when an administrative segregation is imposed. It reads:
| 33. (1) Where an inmate is involuntarily confined in administrative segregation,
a person or persons designated by the institutional head shall
| (a) conduct, at the prescribed time and in the prescribed manner, a hearing to review the inmate's case; |
| (b) conduct, at prescribed times and in the prescribed manner, further regular hearings to review the inmate's case; and |
| (c) recommend to the institutional head, after the hearing mentioned in paragraph (a) and after each hearing mentioned in paragraph (b), whether or not the inmate should be released from administrative segregation. |
|
33. (1) Lorsque l'isolement préventif est imposé au détenu, le directeur charge
une ou plusieurs personnes de réexaminer périodiquement chaque cas, par une
audition, selon les modalités réglementaires de temps et autres, et de lui faire après chaque réexamen des recommandations quant au maintien ou non du détenu en
isolement préventif.
|
| (2) A hearing mentioned in paragraph (1)(a) shall be conducted with the inmate
present unless
|
(2) L'audition a lieu en présence du détenu, sauf dans les cas suivants :
|
| (a) the inmate is voluntarily absent; |
| (b) the person or persons conducting the hearing believe on reasonable grounds that the inmate's presence would jeopardize the safety of any person present at the hearing; or |
| (c) the inmate seriously disrupts the hearing. |
|
|
| a) celui-ci décide de ne pas y assister; |
| b) les personnes chargées de l'audition croient, pour des motifs raisonnables,_ que sa présence mettrait en danger la sécurité de quiconque y assiste; |
| c) celui-ci en perturbe gravement le déroulement. |
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|
[17] The Regulations also contain some procedural fairness provisions. They establish a Review Board. The institutional head must ensure that the inmate who is the subject of a Segregation Review Board hearing is given prior to the hearing the information that the Board will be considering at the hearing. Subsection 21(3) of the Regulations states:
| 21. (3) The institutional head shall ensure that an inmate who is the subject of a Segregation Review Board hearing pursuant to subsection (2)
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21. (3) Le directeur du pénitencier doit veiller à ce que le détenu qui fait l'objet d'une audition du comité de réexamen des cas d'isolement conformément au paragraphe (2) :
|
| (a) is given, at least three working days before the hearing, notice in writing of the hearing and the information that the Board will be considering at the hearing; |
|
| a) reçoive, au moins trois jours ouvrables avant l'audition, un avis écrit de l'audition et les renseignements que le comité entend examiner à l'audition; |
|
| (b) is given an opportunity to be present and to make representations at the hearing; and |
|
| b) ait la possibilité d'assister à l'audition et d'y présenter ses observations; |
|
| (c) is advised in writing of the Board's recommendation to the institutional head and the reasons for the recommendation. [Underlining added.] |
|
| c) soit avisé par écrit de la recommandation faite par le comité au directeur du pénitencier et des motifs de celle-ci. [Je souligne.] |
|
[17] In the case at bar, the authorities in the Port-Cartier Institution failed to give the applicant any information indicating why he had been identified as one of the instigators of the events of April 22, 1999, although that was the reason for his administrative segregation. The lack of information meant that the applicant was unable to rebut in any real and effective way the decision of the prison authorities to place him in administrative segregation.
[18] The respondent has not explained or justified the reason why the applicant was given no information whatever in this regard. Furthermore, the respondent has made no claim that the information gathered by the prison authorities originated from a confidential source that had to be protected. (See Gallant v. Canada, [1989] 3 F.C. 329.)
[19] Counsel for the applicant cites the decision of the Federal Court of Appeal in the Demaria case. Demaria, supra, bears a close resemblance to the case at bar. The prison authorities at Collins Bay had decided to transfer Mr. Demaria to Millhaven Institution for the following reason, which was communicated to the inmate:
| I have reasonable and probable grounds to believe that you are responsible for bringing contraband into this institution, ie, the poisonous substance cyanide. |
[20] Hugessen J.A., writing on behalf of the Court at page 76, concludes that "There is ... simply no doubt that the appellant was not treated with the fairness to which he was entitled," in a context in which a hearing was not required. And he states, at page 77:
| The allegations against him are devoid of every significant detail. When? Where? How? whence came the poison? How was it obtained? For what purpose? How much? the allegation is said to be based on information obtained by the Millhaven staff and the Ontario Provincial Police. What information comes from which source? Is there an informer involved? If so, how much of the substance of his statement can be revealed while protecting his identity? Have the police pursued their enquiries? Have they made any arrests? The list of questions is almost endless. |
[21] The remarks by Hugessen J.A. apply to the case at bar, and I find that the prison authorities in Port-Cartier failed to adhere to the applicable statutory or regulatory provisions and breached the fairness principle in relation to the applicant by failing to give him any relevant information concerning the allegations behind his administrative segregation.
[22] Counsel for the respondent cites Gravel v. Canada (Correctional Service), [1999] A.C.F. No. 1569, Cartier v. Canada (Attorney General), [1998] A.C.F. No. 1211, St-Armand, supra and Gallant, supra. In all of these cases, the court found that the prison authorities had given the inmate information and documentation that he needed in order to be able to argue his respective grievances. In the case at bar, I note a total lack of evidence on the record of such information indicating the reason or reasons for which the inmate was considered to be one of the instigators.
(b) Lapse
[23] Assuming, without deciding, that the applicant's appeal is moot, I do have discretion to hear it. The applicable criteria were set out in the Borowski decision, supra.
[24] In this case, I am applying the principle of the collateral legal consequences warranting a decision on the merits. In Borowski, supra, Sopinka J. explains the scope of this principle at pages 358 and 360, citing Chief Justice Warren of the Supreme Court of the United States in Sibron v. New York, 392 US 40 in this regard, at p. 55:
| . . . most criminal convictions do in fact entail adverse collateral legal consequences. The mere "possibility" that this will be the case is enough to preserve a criminal case from ending "ignominiously in the limbo of mootness." |
[25] It seems to me that in the case at bar the rationale for the applicant's segregation will have some collateral practical effects on him. One of these effects was acknowledged by Rouleau J. in Zarzour v. Canada (Attorney General), [2000] A.C.F. 103. Here is what he wrote:
| The application for judicial review is accordingly allowed. I consider that the authorities' charges relating to the plaintiff's transfer and the raising of his security level will cause the latter irreparable harm when he becomes eligible to make a parole application. I therefore direct that the charges regarding his participation in the canteen theft that occurred on April 15, 1998, his involvement in the attack on a fellow inmate and the allegation regarding the storage of tobacco obtained as the result of his involvement in illegal activities be deleted from the plaintiff's record. |
[26] I note as well Commissioner's Directive 782 -- Sharing Offender-Related Information (with the National Parole Board) and the Service's duty under section 24 of the Act to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible.
[27] It would be unfair to allow the applicant's record to remain in the state it is now in, since he did not have an opportunity to dispute the merits of the rationale for his segregation.
Decision
[28] The application for judicial review is allowed and the decision to segregate the applicant is set aside. I order that the comments by the jail authorities of the Port-Cartier Institution, to the effect that the information that was assembled identifies the applicant as one of the instigators of
the events of April 22, 1999, and that they had reasonable grounds to segregate him while the investigation was proceeding, be stricken from his record.
Ottawa, Ontario
November 30, 2000
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: MICHAEL BLASS v. AGC |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: November 20, 2000 |
REASONS FOR ORDER OF LEMIEUX J.
DATED: November 30, 2000
APPEARANCES:
Mr. Daniel Royer
Mr. Pierre Tabah for the applicant
Mr. Sébastien Gagné for the respondent
SOLICITORS OF RECORD:
Labelle, Boudreault, Côté et Associés
Montréal, Quebec for the applicant
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the respondent
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