Ross v. Canada (Attorney General), 2002 FCT 183

Date: 20020219

Docket: T-1792-00

OTTAWA, ONTARIO, TUESDAY, FEBRUARY 19, 2002

Present:         THE HONOURABLE MR. JUSTICE LEMIEUX

BETWEEN:

                                                                    ARTHUR ROSS

                                                                                                                                                     Applicant

                                                                             - and -

                                           THE ATTORNEY GENERAL OF CANADA

                                                                                                                                               Respondent

                                                                            ORDER

For the reasons given, the judicial review application is dismissed without costs.

                                                                                                                                                      J U D G E                  

Date: 20020219

Docket: T-1792-00

Neutral citation: 2002 FCT 183

BETWEEN:

                                                                    ARTHUR ROSS

                                                                                                                                                     Applicant

                                                                             - and -

                                           THE ATTORNEY GENERAL OF CANADA

                                                                                                                                               Respondent

                                                            REASONS FOR ORDER

LEMIEUX J.:

Arthur Ross, an inmate at the Saskatchewan Penitentiary in Prince Albert, seeks judicial review, under section 18 of the Federal Court Act, from the June 6, 2000 decision of the Commissioner of the Correctional Service of Canada ("CSC") denying his grievance at the third and final level of the grievance process prescribed under section 90 of the Corrections and Conditional Release Act (the "Act") and the Corrections and Conditional Release Regulations (the "Regulations").

Mr. Ross is currently serving a sixteen-year sentence on convictions of having sex, on two separate occasions, with young girls of twelve. His convictions were maintained by the Saskatchewan Court of Appeal and leave to the Supreme Court of Canada was dismissed. He maintained his innocence before this Court. In addition, he has been found to be a dangerous offender.

The Commissioner's decision reads:

Your third level grievance regarding an opinion expressed by a Parole Officer and included in a Community Assessment dated 1999-11-24 has been reviewed.

You have been provided appropriate responses to this issue by each of the previous levels. You have been informed that the Parole Officer formed his opinion based on "file information" and you demand to be provided that "file information". You were informed in response to your complaint that the PO made his assessment based on information available on your Criminal Profile Report and Intake Assessment. You have had the response to your demand for "file information" since you received the response to your complaint.

Furthermore, as noted in the response provided by the second level, you have been convicted of, and are serving a 16 year sentence for, the sexual assault of two twelve year old children. If you have not already done so, I suggest you request access to your files under the Privacy Act for further information on your conviction and sentence.

The Parole Officer's opinion is valid. Your grievance is denied.

What led Mr. Ross to engage the grievance process was a statement contained in a Community Assessment report about him dated November 11, 1999. That report was written by Ernie Otway of the Lethbridge Parole Office.

Mr. Ross found offensive, untrue and defamatory a statement made by Parole Officer Otway in that report under the heading "Overall Assessment". I reproduce below the Overall Assessment made by Mr. Otway. The objectionable sentence troubling Mr. Ross is underlined:

The writer notes the offender has four previous convictions for sexual assaults dating from 1981 to his present convictions. The convictions involve young females and the offender uses his life skills to engage young people in sex. The offender has received various periods of incarceration and treatment yet he returns to committing similar offences. The writer notes the offender denies his latest offences and his general attitude is that he does not feel sex acts with young people is a problem or an offence. The writer feels the offender is a high risk to reoffend unless he has a change in attitude. The writer feels the offender is very intelligent and he uses what he learns to get his way and agitate persons in the justice system. The writer feels the offender will continue to pursue young females and the concern has to be that he will cause more than psychological harm to future victims... . [emphasis mine]

Mr. Ross invokes section 24 of the Act in support of the principal redress sought in this judicial review application namely the deletion of the offending sentence.

Section 24 of the Act reads:

Two questions arise in this proceeding: first, how to characterize the statement which Arthur Ross alleges is false and second, is there any basis in law to support the relief sought by the applicant?

Mr. Ross characterizes the offending phrase as a statement or finding of fact. I do not agree. The view expressed by the Commissioner and by the officials of the CSC when dealing with Mr. Ross' grievance is correct. What Mr. Otway expressed was a conclusion or an opinion based on Mr. Ross' Criminal Profile Report and Intake Assessment.

In this respect, the deletion sought by Mr. Ross is of a different nature and quality than the ones sought to be corrected in Tehrankari v. Canada (Correctional Service), [2000] F.C.J. No. 495.

In Tehrankari, supra, this Court expressed in the following words the standard of review applicable in the case of the Commissioner's decision in respect of a grievance involving section 24 of the Act:

[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.

The applicant's challenge to Parole Officer Otway's opinion is that it has no basis in fact. There is no evidence to support it. As noted, Parole Officer Otway's opinion does not represent a pure finding of fact. The standard of review is, in the circumstances, reasonableness. This determination, and any remedy flowing from this proceeding, must take into account the prison context is a special one. (See Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643.)

My review of the applicant's Criminal Profile Report and Intake Assessment leads me to the conclusion Mr. Otway had an ample evidentiary basis upon which he could formulate the opinion he did. That opinion had two aspects to it: his denial of guilt in respect of his latest offences and his general attitude. The evidentiary basis for Parole Officer Otway's conclusion has been detailed in a document entitled "Inmate Grievance Presentation" found at pages 65 through 69 of the applicant's application record.

I conclude the applicant has failed to show any basis for interfering with the Commissioner's third level grievance which endorsed the view Parole Officer Otway's opinion was valid. As a result, this judicial review application is dismissed.

The applicant also sought ancillary relief: an order of this Court compelling Mr. Otway's examination and an order directing charges to be laid against him. There is no merit in the ancillary relief sought by the applicant. That aspect of his judicial review application is also dismissed. The respondent sought costs. I do not think the circumstances of this application warrant costs against the applicant.

                                                                                                                        "François Lemieux"   

                                                                                                                                         J U D G E         

OTTAWA, ONTARIO

FEBRUARY 19, 2002