Légère v. Canada, docket T-836-96

     T-836-96

BETWEEN:

     ALLAN J. LÉGÈRE,

     Applicant,

     - and -

     HER MAJESTY THE QUEEN,

     Respondent.

     REASONS FOR ORDER

PINARD J.

         This is an application for judicial review of the October 13, 1995 decision of the Special Handling Unit (S.H.U.) National Review Board Committee of Correctional Services Canada (N.R.B.C.), refusing the applicant's request for a transfer to a non-S.H.U. maximum security facility, and maintaining the applicant at the S.H.U. of the Regional Reception Centre located in Ste-Anne-des-Plaines, Quebec. The N.R.B.C.'s decision reads:

Admitted to the SHU on 91-12-13 as a result of an escape plot with violence and due to the risk factor. At the beginning of his stay, Legere opted to stay in voluntary segregation. He was not involved in a correctional plan, spending most of his time on his appeal dismissed on 94-12-16.

The involvement in a correctional plan started in 1994. The subject accepted to meet with the CMOI and the psychologist. As of now, no real therapeutic progress has however been noticed.

In 94-11, Legere was the victim of an assault with a weapon; this incident was the fourth of the kind during his stay. The subject has remained in segregation due to incompatibles.

The CMT recommendation for the present review is a transfer to Port-Cartier. However the Board members, consider that Legere's lack of therapeutic progress is an indication that he still represents an exceedingly high escape risk. When coupled with the nature of his crimes, this perception leads to conclude that the risk for staff is also exceedingly high. Under these circumstances, the decision is to maintain him in the SHU with a review in four (4) months.

         The placement of an inmate in a S.H.U. is authorized by section 28 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act). That section reads:

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.

         The Special Handling Unit at the Regional Reception Centre in Ste-Anne-des-Plaines, Quebec is a maximum security institution operated by Correctional Services Canada. The level of security at the S.H.U. is more restrictive than that of other maximum security institutions, and is such that the escape risk is virtually non-existent. The risk of escape in non-S.H.U. maximum security institutions is comparatively higher. It is important to stress that the fact that subsection 30(1)¹ of the Act only prescribes three security classifications in no way precludes the existence nor impugns the legality of enhanced security facilities such as the S.H.U.. This fact was recently confirmed by Madame Justice Tremblay-Lamer in Murray v. Canada (Correctional Service, S.H.U. National Review Board Committee)².

         The applicant received life sentences in January of 1987 and December of 1991 for the commission of a number of murders. On May 4, 1989, the applicant escaped while being transferred from a maximum security institution to a hospital. While detained in the maximum security institution, he had managed to secretly make a homemade handcuff key. During his escape, he threatened two of the guards with a homemade knife and took two hostages. While unlawfully at large, the applicant committed four murders for which he was convicted on November 3, 1991. The applicant has been confined at the S.H.U. at Ste-Anne-des-Plaines, Quebec, since December 13, 1991, and has thus far been denied transfer to a regular maximum security penitentiary by the N.R.B.C.. Before any decision, including the impugned decision, to maintain him at the S.H.U. was taken by the N.R.B.C. the applicant was provided with all the relevant documentation (progress summary reports and evaluations). He was also given an opportunity to make representations at all relevant times.

         The issue on this application is whether the decision of the National Review Committee Board, dated October 13, 1995, refusing the applicant's request for a transfer to a non-S.H.U. maximum security facility was patently unreasonable, particularly in light of the recommendation of the applicant's Case Management Team that such a transfer was appropriate.

         The decision to transfer or to refuse to transfer an inmate is a discretionary one, which attracts the duty of procedural fairness. The general rule with respect to the standard of review applicable to discretionary decisions was succinctly stated by McIntyre J. in Maple Lodge Farms v. Government of Canada³, at pages 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. . . .

         There is no evidence in the present case that the duty of procedural fairness owed to the applicant was not complied with. In fact, the applicant does not take issue with the procedure leading up to the decision of October 13, 1995, rather he challenges the content of that decision, arguing that it is unreasonable in light of all the evidence before the N.R.B.C., specifically the recommendation of the Case Management Team that he should be transferred to Port-Cartier.

         In assessing the reasonableness of the N.R.B.C.'s decision to refuse the applicant's request for a transfer to a non-S.H.U. maximum security institution, it must be recalled that it is not the role of this Court to substitute its own opinion on judicial review for that of the N.R.B.C.. In the case at bar, the N.R.B.C. relied primarily on the applicant's lack of therapeutic progress as a basis for concluding the applicant continued to represent a high escape risk. The N.R.B.C. also took into account the very serious nature of the applicant's crimes and concluded that the risk for staff was exceedingly high. A psychological follow-up report completed on August 25, 1995 acknowledged that the applicant had gone through the appropriate motions of complying with the program established for him, but noted that the applicant had made little "authentic investment" in the program, had poor insight into his behaviour, and had made little real progress from a therapeutic standpoint. Nonetheless, the psychologist felt that the applicant was a suitable candidate for transfer.

         Although obliged to consider the recommendations of the applicant's Case Management Team and of the psychologist, it was completely within the discretion of the N.R.B.C. to decline to follow these recommendations. On the basis of the applicant's previous convictions and evaluations and the fact that he continued to be identified as presenting a high risk of escape and a high risk for correctional staff and for the community, I find that it was not at all unreasonable for the N.R.B.C. to unanimously conclude, on October 13, 1995, that the applicant's transfer to a non-S.H.U. maximum security institution represented an unacceptably high risk. In denying the applicant's transfer request, the N.R.B.C. chose, no doubt out of an abundance of caution, to privilege public and correctional staff safety over the obvious interest of the applicant in being transferred to a less restrictive facility.

         Since the applicant has failed to satisfy me that the N.R.B.C. based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it, his application must be dismissed.

OTTAWA, Ontario

June 2, 1997

                                

                                         JUDGE

__________________

     ¹      30. (1) The Service shall assign a security classification of maximum, medium or minimum to each inmate in accordance with the regulations made under paragraph 96(z.6).

     ²      [1996] 1 F.C. 247 at 257-258 (F.C.T.D.).

     ³      [1982] 2 S.C.R. 2">[1982] 2 S.C.R. 2.