Marshall v. Canada (Solicitor General), 2002 FCT 168

Date: 20020214

Docket: T-834-01

Neutral citation:2002 FCT 168

Ottawa, Ontario, the 14^th day of February 2002

PRESENT:      The Honourable Madam Justice Dawson

BETWEEN:

                                                ANDREW MARK MARSHALL

                                                                                                                                            Applicant

                                                                         - and -

THE SOLICITOR GENERAL OF CANADA, CORRECTIONAL SERVICES CANADA and THE WARDEN OF DRUMHELLER INSTITUTION

                                                                                                                                      Respondents

                                          REASONS FOR ORDER AND ORDER

DAWSON J.

[1]                 These are my reasons for dismissing from the bench a motion for leave to file a supplementary affidavit sworn by the applicant and for an extension of time within which to file the notice of application, and for, in consequence, dismissing the application for judicial review.

THE FACTS

[2]                 As the chronology of events is most relevant to the applicant's motion it is important to review the factual background in some detail.

[3]                 In this application Mr. Marshall seeks an order setting aside the decision of the Warden of the Drumheller Institution to transfer Mr. Marshall on an involuntary basis to the Stony Mountain Institution outside of Winnipeg, and an order requiring that Mr. Marshall be returned to an institution in Alberta. The notice of application instituting this proceeding was filed on May 16, 2001 but, in breach of Rule 301(c)(ii) of the Federal Court Rules, 1998, failed to set out the date of the decision under review and the date on which it was first communicated to Mr. Marshall.

[4]                 After filing the application, on May 17, 2001 Mr. Marshall moved for an interim order requiring his return to an institution in Alberta. In response to that motion the respondents, among other things, in their written submissions filed on May 23, 2001, objected to the application for judicial review in its entirety on the ground that the final decision to transfer Mr. Marshall was communicated to him on July 14, 2000. Therefore, the respondents argued that the application for judicial review had been filed more than nine months after the expiry of the 30-day time limit for challenging such decisions prescribed by subsection 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7. Subsection 18.1(2) is as follows:

[5]                 The motion for interim relief was dismissed by Justice Heneghan.

[6]                 On June 1, 2001 the respondents filed a certified record which included the institutional file relating to the impugned decision to transfer.

[7]                 On June 15, 2001 the affidavit supporting Mr. Marshall's application for judicial review was filed. The affidavit was that of a recently retired lawyer who was assisting Mr. Marshall's counsel. Such affidavit simply attached the affidavits of Mr. Marshall and his father which had been filed in support of the motion for interim relief. The only evidence relevant to the issue of the timely commencement of the application for judicial review, or to the issue of the timely intent to commence this proceeding, was the following evidence of Mr. Marshall:

I am presently an inmate at the Drumheller Institution, I was advised that I would be transferred to Stony Mountain Institution in Winnipeg, sometime last year. I filed a rebuttal against that decision through the internal appeal system at the Institution, however, while I was not given a formal Notice of decision, from the monthly status report written by Mr. M. Smith, it indicated that I would be transferred to Stony Mountain in Winnipeg. In my most recent status report from the Institution dated April 12^th, 2001, it again stated that I would be transferred to Stony Mountain. A copy of that report is attached as Exhibit "A" to this my affidavit.

[8]                 On July 18, 2001, the respondents filed the affidavit of a parole officer in response to the application for judicial review. In that affidavit the officer swore:

That I have referred to the visitor logbook that is located in the Segregation building at the Drumheller Institution and also to records contained in the Offender Management System, and confirm that I shared the final decision from the Warden to proceed with the transfer with Andrew Marshall on July 4, 2000, at 2:35 p.m. A copy of the visitor logbook is attached as Exhibit "1" to this Affidavit. A copy of the records contained in the Offender Management System is are [sic] attached as Exhibit "2" to this Affidavit.

That I personally served the final Notice of Transfer on Andrew Marshall on July 14, 2000. A copy of the Institution Transfer (Involuntary) Referral Decision Sheet was shown to me and is attached as Exhibit "3" to this Affidavit.

[9]                 The following entries were contained in the Offender Management System exhibited to the parole officer's affidavit:

July 4, 2000:

"I shared Marshalls involuntary transfer to Stony Mountain With him. He will be providing me with a rebuttal to the package. He has 48 hours."

September 7, 2000:

"Andrew was seen by the segregation review board. He will remain in segregation pending his transfer to Stony Mountain. He told the board that his lawyer would be in touch with the institution over this issue."

November 2, 2000:

"Andrew indicated during seg review that there is a court order preventing him from transferring from Drumheller to Stony Mountain until after his post suspension hearing. He was told that the institution does not have such an order however should it be received he would then be kept in Drumheller until the hearing".

[10]            The Institutional Transfer (Involuntary) Referral Decision Sheet bears a notation that the officer gave a copy of the decision sheet to Mr. Marshall on July 14, 2000. This document was contained in the tribunal record.

[11]            Thereafter the matter proceeded as follows:

·            On August 31, 2001, the applicant's record was served and filed.

·            On September 24, 2001, the respondents' record was served and filed. In the respondents' record, the respondents again raised objection that the application for judicial review had not been filed on a timely basis, but was filed more than ten months after the decision had been made.

·            On October 2, 2001, a requisition for hearing was filed on Mr. Marshall's behalf.

·            On November 28, 2001, the Court ordered that the application for judicial review be heard on January 23, 2002.

·            On January 14, 2002, a notice of motion was filed pursuant to Rule 369 on Mr. Marshall's behalf requesting leave to file an additional affidavit and an extension of time for the filing of the notice of application.

[12]            The additional affidavit which Mr. Marshall sought to have filed was an affidavit sworn by him on January 4, 2002, which consisted in part of argument and irrelevant material postdating the decision under review. Of potential relevance was the following evidence:

I have now had the opportunity of reviewing [the parole officer's affidavit] and can only say as follows:

i. As I have stated before, I do not recall ever receiving a copy of the final decision in writing regarding my transfer to Stony Mountain Institution.

[...]

ix. If I am incorrect with respect to whether or not I was served with the final decision in writing, then I ask this Court's permission to allow to amend my application to request an extension of time within which to file my application.

[13]            The affidavit was silent on when the decision was communicated to Mr. Marshall, when he formed the intent to bring the application for judicial review, whether he ever waivered in that intent, and the explanation for any delay. Evidence was given that Mr. Marshall's lawyer had not received any notification of Legal Aid coverage.

[14]            A request to adjourn the application for judicial review so that the motion brought under Rule 369 could be determined was refused, the Court directing the motion to be argued orally at the commencement of the scheduled hearing of the judicial review application.

[15]            Therefore, the issues before the Court on January 23, 2002 were:

i)           Should leave be given to file Mr. Marshall's supplemental affidavit?

ii)          Should an extension of time be granted with respect to the filing of the application for judicial review? and

iii)          The issues raised in the application for judicial review.

ANALYSIS

i) Should leave be given to file a supplemental affidavit?

[16]            The applicable rule is Rule 312(a) which provides:

[17]            The principles which govern the exercise of the Court's discretion were succinctly set out by Prothonotary Hargrave in Wayzhushk Onigum Nation v. Kakeway, _[2000] F.C.J. No. 156 as follows:

In my view, the 1998 Federal Court Rule 312 allows the filing of a supplementary affidavit in limited instances and special circumstances, for to do otherwise would not be in the spirit of judicial review proceedings which are designed to obtain quick relief through a summary procedure. While the general test, as reflected in Eli Lily, Abbott Laboratories and Bayer A.G. (supra) is whether the additional material will serve the interests of justice, will assist the Court and will not seriously prejudice the other side, it is also important that any supplementary affidavit neither deal with material which could have been made available at an earlier date, nor unduly delay the proceedings. To this I would add two further observations.

First, supplemental material is meant to provide additional factual evidence to meet the respondent's case: see for example Vrabek v. The Queen [1997] 2 C.T.C. 261 at 262-263 (F.C.A.). Moreover, a reply affidavit is to meet the other sides case, not merely to confirm the deponent's initial evidence.

Second, a motion to file reply affidavit evidence ought to be brought promptly, for not only is judicial review, by the use of an application, a summary procedure designed to get to a hearing with a minimum of delay, but also, and equally important, delay will often be a bar to a discretionary remedy. [underlining added]

[18]            As for the application of those principles to the facts before the Court, without doubt evidence relevant to the timeliness of this application and any required extension of time could and should have been made available at an earlier date.

[19]            From May 24, 2001, Mr. Marshall knew the respondents took the position that the matter was brought out of time, and any evidence to respond to that position should have been filed by June 15, 2001. Any needed extension of time should have been sought then.

[20]            Having failed to do so, it remains that once the respondents' affidavit evidence and responding record were filed, any motion to file evidence in reply thereto should have been brought promptly. Mr. Marshall failed to do that, instead moving under Rule 369, 9 days before the hearing. Rule 369 allows a respondent 10 days to respond to the motion.

[21]            Most importantly, given the tepid nature of Mr. Marshall's proposed new evidence, and its failure to deal with when the decision was communicated, the intent to commence proceedings and the explanation for any delay, I am unable to conclude that the proposed evidence would serve the interests of justice or assist the Court.

[22]            For those reasons, in the exercise of my discretion, I declined to give leave for the filing of the supplemental affidavit.

ii) Should an extension of time be granted?

[23]            Counsel for Mr. Marshall conceded in oral argument that this application was not commenced within the time prescribed by subsection 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7.

[24]            The evidence to that effect appears incontrovertible for the following reasons.

[25]            First, Mr. Marshall does not say when he first learned of the decision and I draw an adverse inference from that, and from the failure of the notice of application to comply with Rule 301(c)(ii).

[26]            Second, and equally important, I prefer the evidence of the parole officer which is supported by the previously referred to notes in the Offender Management System and an entry in the visitors' logbook in the Drumheller Institute.

[27]            Finally, counsel for Mr. Marshall agreed that it was reasonable to infer that the content of the institutional reviews were shared with Mr. Marshall on or about their dates. The August 4, 2000 review notes that Mr. Marshall had been accepted for involuntary transfer to Stony Mountain.

[28]            It is clear that at least by August of 2000 Mr. Marshall knew of the decision to transfer him. Notwithstanding, this proceeding challenging that decision was not commenced until May 16, 2001.

[29]            It follows from the fact that the application for judicial review was brought out of time that unless an extension of time is granted, the application for judicial review should be dismissed for that reason.

[30]            As for the principles which govern the exercise of the discretion to extend time, the applicable principles were articulated by the Court of Appeal in Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263 (F.C.A.) as follows at pages 277-278:

There remains, however, the questions whether there is any satisfactory reason, any proper justification, for not bringing the application within the 10-day period and whether justice requires that the extension be granted.

Among the matters to be taken into account in resolving the first of these questions is whether the applicant intended within the 10-day period to bring the application and had that intention continuously thereafter. Any abandonment of that intention, any laxity or failure of the applicant to pursue it as diligently as could reasonably be expected of him could but militate strongly against his case for an extension. The length of the period for which an extension is required and whether any and what prejudice to an opposing party will result from an extension being granted are also relevant. But, in the end, whether or not the explanation justifies the necessary extension must depend on the facts of the particular case and it would, in my opinion, be wrong to attempt to lay down rules which would fetter a discretionary power which Parliament has not fettered.

[31]            In Council of Canadians v. Canada (Director of Investigation and Research, Competition Act) (1997), 212 N.R. 254, the Federal Court of Appeal, after quoting the above passage from Grewal, wrote at paragraph 4:

In our view, that quotation may be compendiously summarized as a requirement that an applicant for an extension of time must display due diligence. Manifestly, the judge in the present case was not satisfied that the Council had met that test and we agree: it had knowledge of the impugned decision on 27 May 1996; it had a legal opinion as to how to attack it no later than July 19, 1996; it only decided to launch proceedings on September 6 and ultimately did so on September 18.

[32]            Applying those principles, for the following reasons I am not satisfied that justice requires that the extension of time be granted.

[33]            First, I have not been satisfied in any way that Mr. Marshall displayed due diligence. As noted above, I accept the parole officer's evidence that Mr. Marshall received the impugned decision on July 14, 2000. Thereafter, he did nothing to challenge that decision until May 16, 2001.

[34]            It appears that rather than challenging the decision to remove him, Mr. Marshall chose to bring two applications for habeas corpus in the Court of Queen's Bench in Alberta ancillary to proceedings before the National Parole Board in respect of the revocation of Mr. Marshall's day parole. While the first application resulted in an order dated December 20, 2000 that Mr. Marshall be held at Drumheller pending the Parole Board decision, a second application on April 10, 2001 was denied and on May 9, 2001 an appeal of that denial was filed in the Alberta Court of Queen's Bench.

[35]            Only after the denial of the second habeas corpus application were these proceedings commenced.

[36]            Also relevant to the issue of diligence is the absence of any evidence as to the intent to commence proceedings, and the absence of any explanation for the delay in commencing proceedings. Administrative delays in obtaining a legal aid certificate do not justify an extension of time, and in any event the evidence in this regard is weak and to the effect that it was only when no notification of legal aid coverage was received by the end of November of 2001 that an inquiry was made about coverage. Thus, I do not see how this justifies pre-November 2001 delay.

[37]            I also considered the length of the delay. This proceeding should have been brought in August of 2000, but was not brought until May of 2001, some 9 months later.

[38]            I also considered the merits of Mr. Marshall's underlying application for judicial review as part of considering what justice requires.

[39]            Mr. Marshall raised three issues with respect to the impugned decision:

1.          Did the warden err in law by failing to comply with the provisions of paragraph 28(b)(i) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("Act") and subsections 12(b) and (d) of the Corrections and Conditional Release Regulations, SOR/92-620 ("Regulations")?

2.          Did the warden make an erroneous finding of fact by concluding that Mr. Marshall was a security risk to the institution and to other inmates?

3.          Was Mr. Marshall denied natural justice by:

i)           denial or limitation of his right to counsel and to make full answer in his ongoing immigration matters;

ii)          failure to provide Mr. Marshall with any notice of the final decision thereby depriving him of the opportunity to apply for judicial review; and

iii)          failure to provide any reasons for the final decision?

[40]            In Gravel v. Canada (Correctional Services), [1999] F.C.J. No. 1569 (F.C.T.D.) Justice Pinard reviewed the applicable standard of review to be applied to decisions of the nature challenged in this proceeding. He wrote as follows, at paragraph 4:

The decision to transfer an inmate to one institution rather than another is a discretionary decision (Kelly v. Attorney General of Canada (1987), 12 F.T.R. 296), carrying with it a duty to observe the requirements of procedural fairness ([1982] 2 S.C.R. 2">Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2). The general rule on the standard of control applicable to such a discretionary decision was succinctly stated by McIntyre J. in [1982] 2 S.C.R. 2">Maple Lodge Farms, supra, at 7 and 8:

It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.

[41]            I accept this to be the applicable standard of review, and counsel for Mr. Marshall was content to argue on the basis that the decision was reviewable upon the most deferential standard of patent unreasonableness.

[42]            As to the first ground of error alleged, the allegation that the warden erred by failing to comply with paragraph 28(b)(i) of the Act, section 28 is as follows:

[43]            The rationale for the decision to transfer Mr. Marshall was stated as follows:

Marshall is serving a seven year three month sentence for Living off Avails, Assault, and Procuring. His Statutory release date is September 2002. He has taken several programs and been on conditional release during this sentence. File information indicates history of muscling special needs offenders, disobeying of institutional rules disrespectful to staff and suspicion of assaulting another offender. On June 16, 2000 you were placed in administrative segregation after a shank, knuckle buster and Utility knife were found in your cell. Drumheller Institution has an initiative where all offenders are given equal opportunity for programs and a safe environment. It is clear Marshall has no intention of abiding by the rules and regulations and following the initiative of Drumheller Institution. Involuntary transfer to Stony Mountain approved.

[44]            Given the discretionary nature of the decision, the warden was entitled to weigh the factor in paragraph 28(b)(i) of the Act alongside the safety and security concerns of the penitentiary and those within it.

[45]            Further, with respect to accessibility to Mr. Marshall's home community and family, there is evidence that the Bowden Institution in Alberta had been consulted regarding a transfer, but that this was not recommended due to an identified incompatibility with someone already at that facility. There is also evidence that there was an incompatibility with the Saskatchewan penitentiary, leaving Stony Mountain as the only other medium security facility in the prairie region.

[46]            Section 12 of the Regulations relied upon by Mr. Marshall is as follows:

[47]            The parole officer's evidence, which I accepted, was that he met with Mr. Marshall concerning the proposed transfer and gave Mr. Marshall the opportunity to make representations. Mr. Marshall did make written representations. Therefore, there is evidence of compliance with subsection 12(b) of the Regulations. As well, the parole officer's evidence is that Mr. Marshall was given written notice of the final decision thereby complying with subsection 12(d) of the Regulations.

[48]            As to the alleged error of fact, Mr. Marshall does not deny that weapons and contraband were found in his cell. In his written representations against the involuntary transfer he simply said that he had proof that the items found in his cell did not belong to him. There is therefore some basis in the evidence for the warden's decision that Mr. Marshall presented a security risk.

[49]            As for the third ground, alleged breaches of natural justice, the evidence of the parole officer is that Mr. Marshall was given notice of the final decision. That final decision contained the reasons referred to above.

[50]            Mr. Marshall made much of the difficulty he will face and did face in communicating with his Calgary-based counsel from Stony Mountain. On the evidence before me the only difference between Drumheller and Stony Mountain with respect to Mr. Marshall's access to counsel is that if Mr. Marshall wants to meet with counsel in person, his counsel will have to travel further to do so. In my view, this is at most an inconvenience but not a denial of natural justice.

[51]            Given the absence of diligence and that the arguments to be advanced on the application for judicial review appear to be weak, I concluded, in the exercise of my discretion, that the extension of time should be refused. It follows that the application should be refused as being brought out of time.

COSTS

[52]            At the oral hearing I reserved my decision on the issue of costs. The respondents sought costs in the amount of $500.00 in respect of the motion for leave to file the supplementary evidence and an extension of time, and $500.00 in respect of the application for judicial review. The respondents specifically relied upon the provisions of Rule 410(2) which provides:

[53]            On Mr. Marshall's behalf it was argued that no costs should be awarded as he did not proceed frivolously and he is in custody and hence not working.

[54]            I am satisfied that costs should follow the event. In view of the fact that the motion for an extension and the application for judicial review were heard together an award of $500.00 is in my view appropriate, inclusive of disbursements.

ORDER

[55]            THEREFORE IT IS ORDERED THAT:

1.          The motion for leave to file a supplementary affidavit is dismissed.

2.          The motion for an extension of time within which to file the notice of application is dismissed.

3.          The application for judicial review is, in the result, dismissed.

4.          The applicant shall pay to the respondents costs fixed in the amount of $500.00 inclusive of disbursements.

"Eleanor R. Dawson"

                                                                                                                                Judge