Poulin v. Canada (Attorney General), 2002 FCT 131

Date: 20020204

Docket: T-2218-00

Neutral citation: 2002 FCT 131

BETWEEN:

PIERRE-PAUL POULIN

Plaintiff

and

THE ATTORNEY GENERAL OF CANADA

Defendant

REASONS FOR ORDER AND ORDER

BLAIS J.

[1]        This is an application for judicial review asking the Court to determine the legality of a decision by Deputy Commissioner Michel Roy (hereinafter "the Deputy Commissioner") of the Correctional Service of Canada (hereinafter "the CSC") in the third-level grievance procedure, reference No. V8000A003816, rendered on October 23, 2000, by which the grievance filed by Pierre-Paul Poulin (hereinafter "the plaintiff") was denied.

FACTS

[2]        The plaintiff is serving a term of life imprisonment on four counts of first-degree murder.

[3]        This is the third time the plaintiff has been imprisoned in a federal penitentiary.

[4]        The plaintiff's criminal record and his tendency to violent behaviour caused the correctional authorities to regard him as a danger to public safety and assign him a medium-security rating. Although the plaintiff has made some efforts to deal with his violent behaviour, he has not overcome it sufficiently for the authorities to cease regarding him as a risk.

[5]        He is currently imprisoned at the Mission Institution, a medium-security institution in British Columbia.

[6]        On April 10, 2000 the plaintiff applied to be transferred to the William Head Institution, another medium-security penitentiary in British Columbia, so he could take an intensive program of ornamental gardening there.

[7]        Unlike the Mission Institution, the William Head perimeter is "open". The institution is surrounded by the ocean on three sides and although fenced in, its perimeter is not guarded by electronic equipment.

[8]        On June 14, 2000 the Mission warden Brenda Marshall, who had to make the decision as to whether a transfer would be authorized, refused to approve the plaintiff's application.

[9]        The plaintiff used the grievance procedure under the Corrections and Conditional Release Act (hereinafter "the Act") and filed a second-level grievance against the Mission warden's decision.

[10]      In a decision dated July 17, 2000 the Assistant Commissioner at the second level - regional dismissed the plaintiff's grievance.

[11]      The plaintiff again filed a grievance at the third level from the decision of the regional Assistant Commissioner.

[12]      At the third level - national, by a decision dated October 23, 2000, the Deputy Commissioner did not consider that the plaintiff was a good candidate for an open institution like William Head, in view of the risk he represented to public safety, and dismissed his grievance.

[13]      On November 24, 2000 the plaintiff filed an application for judicial review from the Deputy Commissioner's decision. He asked the Court to quash the Deputy Commissioner's decision and order his transfer to William Head.

APPLICABLE LEGISLATION

[14]      Section 28 of the Act sets out the parameters which the CSC Commissioner (or his representative) should take into account in deciding on an offender's transfer:

[15]      Section 29 of the Act authorizes the CSC Commissioner (or his representative) to transfer an offender from one penitentiary to another:

POINT AT ISSUE

[16]      By refusing to authorize the plaintiff's transfer, did the Deputy Commissioner fail to perform his duty to act fairly, exercise his authority in bad faith, capriciously or arbitrarily, or take improper considerations into account?

ANALYSIS

[17]      The Deputy Commissioner did not fail to perform his duty to act fairly, exercise his authority in bad faith, capriciously or arbitrarily or take improper considerations into account.

Applicable standard of review

[18]      In Tehrankari v. Canada (Correctional Service), [2000] F.C.J. No. 495, Lemieux J. defined the applicable standard of review in a CSC grievance procedure. He said:

[para 33] A word needs to be said about the standard of review applicable in this case keeping in mind the type of decision made and the decision-maker (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. In Baker, supra, L'Heureux-Dubé J. pointed out it was held in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, a decision which related to the determination of a question of law in that case, (the interpretation of the exclusion provisions in section 2 of the Immigration Act as they relate to the definition of Convention refugee) made by the Immigration and Refugee Board, was subject to a standard of review of correctness but on other questions, the standard of review varied.

[para 44] 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 findings of fact. (Subsection 18.2(4) of the Federal Court Act, R.S.C. 1985, c. F-7.)

[19]      In the case at bar, the conclusions drawn by the Deputy Commissioner were based on facts. Consequently, the applicable standard of judicial review is the patently unreasonable standard.

Participation in Intensive Violent Offender Program

[20]      The Deputy Commissioner took the plaintiff's correctional plan into account. In order to reduce the risk the plaintiff posed to the public, the correctional plan suggested by the Deputy Commissioner recommended that the plaintiff deal with his tendency to violent behaviour by taking the Intensive Violent Offender Program. The Deputy Commissioner wrote in this regard in his decision:

[TRANSLATION]

Your participation in the Intensive Violent Offender Program is regarded as a crucial aspect of your rehabilitation. As you have not been admitted to this program because of your problems with learning English, other short or medium-term alternatives must be considered.

[21]      The Deputy Commissioner attached greater weight to public safety than to the plan's rehabilitation objectives. The power conferred on the Commissioner (or his representative) is twofold: discretionary, according to Légère v. Canada, [1997] F.C.J. No. 749 (F.C.T.D.), in which Pinard J. said:

[para 6] The decision to transfer or to refuse to transfer an inmate is a discretionary one, which attracts the duty of procedural fairness.

[22]      . . . and this power is also administrative, according to Kelly v. Canada (Correctional Service), [1992] F.C.J. No. 720 (F.T.C.D.), in which Denault J. said:

[para 11] 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).

[23]      The Deputy Commissioner may require that the plaintiff's violent behaviour be treated before approving his transfer to William Head. The Deputy Commissioner considered the challenges the plaintiff presented for the Intensive Program, in particular his being unilingual and his visual handicap at the time the decision was taken, and suggested certain solutions:

[TRANSLATION]

As recommended by Dr. Wallace, your participation in the "Prospect" program which moves at a slower pace is strongly recommended. Efforts are also made by Pacific Region authorities to find a person who could help participants who do not have a sufficient command of English to complete the Violent Offender Program. In the meantime, you could also take steps to become more bilingual.

[24]      It is clear that at that point it was up to the plaintiff to explore these solutions.

William Head Institution

[25]      Like Mission, William Head is a medium-security institution. The significant difference between these two institutions is the fact that the William Head perimeter is "open". On account of this particular setting, public safety is a consideration that weighs heavily on the William Head correctional authorities.

[26]      The plaintiff received only one recommendation favouring his transfer: that recommendation was qualified. It is contained in the document entitled "Assessment for Decision" dated May 10, 2000, to be found at p. 107 of the plaintiff's record, and reading as follows:

[TRANSLATION]

This transfer would probably help Mr. Poulin acquire other work skills and reduce his institutionalization. That is regarded as beneficial. The CMT considers Mr. Poulin would benefit from a transfer to William Head. However, Mr. Poulin would derive greater benefit from participation in the Intensive Violent Offender Program . . . For the moment, the CMT gives limited support to transfer to William Head and recommends its approval.

[27]      Safety considerations are of primary importance for the William Head authorities. In the document titled "institutional transfer (voluntary) decision sheet", dated June 14, 2000, to be found at pp. 111-112 of the plaintiff's record, the William Head director wrote:

[TRANSLATION]

This is the second time that I am examining this inmate's file. I find that very little has changed since my first assessment, except that the psychological reports tend to confirm my view that, for various reasons, this inmate is not an acceptable candidate for transfer to William Head. He has no real reason for going to William Head except a desire to study horticulture. He has not taken the Intensive Violent Offender Program at the RHC and appears to think he does not need this program. He is considered to pose an escape risk and the psychological report indicated that his escape potential IS NOT low. I feel that the risk to the community if he escaped is high and, consequently, I do not think he should be in the open environment of William Head with the perimeter security at our disposal. The reasons given by the CMT for giving limited support to the transfer do not offset the risks presented by this inmate.

[28]      It is clear from reading the opinion of the William Head warden that in his view the plaintiff was not a proper candidate for his institution.

[29]      Further, in his decision the Deputy Commissioner considered the plaintiff's candidacy for a transfer to William Head based on security factors:

[TRANSLATION]

At the time of the last assessment of your security rating on October 20, 1999 the Mission Institution authorities determined the risk of escape and the adjustment in the institution as low, while the risk to public safety was regarded as high. I feel that this assessment was proper in view of the fact that the principal criminogenic factors identified in your correctional plan have still not been treated.

. . . . .

In view of the points mentioned in the preceding paragraph, your transfer to an "open" perimeter security situation like that of the William Head Institution cannot be considered at this time.

[30]      The Deputy Commissioner took public safety into account in his decision at the expense of the plaintiff's correctional plan. Such a factor is relevant to the review of a transfer application. Section 28 of the Act requires such consideration:

[31]      The plaintiff gave a good presentation and documentation of his case. He properly identified the points in his favour, with considerable knowledge and details, in view of the circumstances.

[32]      However, the courts have clearly established that the Correctional Service Commissioner and his representatives have a discretionary authority.

[33]      The Court does not have to consider whether it would make a different decision, but whether the Deputy Commissioner made an error that justifies the Court's intervention. On reviewing the record, I cannot conclude that this Court's intervention is warranted.

O R D E R

[34]      Consequently, THE COURT ORDERS THAT:

The instant application for judicial review is dismissed.

OTTAWA, ONTARIO

February 4, 2002

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                                                          SOLICITORS OF RECORD

FILE:                                                                               T-2218-00

STYLE OF CAUSE:                                                     Pierre-Paul Poulin

-and-

The Attorney General of Canada

PLACE OF HEARING:                                                Vancouver, British Columbia

DATE OF HEARING:                                                  January 24, 2002

REASONS FOR ORDER AND ORDER BY:         BLAIS J.

DATE OF REASONS:                                                  February 4, 2002

APPEARANCES:

Pierre-Paul Poulin                                                              FOR HIMSELF

Marie Crowley                                                                  FOR THE DEFENDANT

SOLICITORS OF RECORD:

Morris Rosenberg                                                              FOR THE DEFENDANT

Deputy Attorney General of Canada

Ottawa, Ontario