Date: 20100401
Docket: T-721-09
Citation: 2010 FC 355
Ottawa, Ontario, April 1, 2010
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
MARC-ANTOINE
GAGNÉ
Applicant
and
CORRECTIONAL SERVICE OF CANADA
(CANADA (CSC))
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review by Marc-Antoine Gagné (the applicant) under
subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7, of a
decision by the Acting Warden of the La Macaza Institution (the warden), dated
January 8, 2009, refusing the applicant an escorted temporary absence (ETA) in
order for him to attend a family dinner.
FACTS
[2]
The
applicant is serving a two-year sentence after having been convicted for a series
of sexual offences involving minors, committed via the Internet. On November
19, 2008, he applied for an ETA in order to be able to attend a family dinner
during the Christmas holidays.
[3]
The warden
refused this application on January 8, 2009. It should be noted that the
applicant has since been placed in a halfway house. He is therefore subject to
a different legislative and regulatory regime than the one applicable to
penitentiaries. As he acknowledged at the hearing, a decision of this Court in
his favour would not have any practical effect. He nonetheless insists on
having the case heard on its merits.
[4]
In her
reasons, the warden initially thought the applicant’s proposed ETA plan was
unrealistic and unacceptable at this stage of his institutional progress. She
noted that the applicant had not worked on his criminogenic factors, and that
he still posed a relatively high risk while having low reintegration potential.
In his case no discharge was recommended until he had undergone treatment to
help him in his rehabilitation. The granting of an ETA would have been
premature, since an ETA is one stage in a ‘‘gradual reintegration process’’ which
the applicant had not reached.
[5]
She
explained her decision as follows: [translation]
In short,
Despite the fact that your
conduct in the institution does not preclude authorizing an absence,
Considering that the risk of
reoffending that you pose during your absence is an undue risk to society,
The Escorted Temporary Absence
is not granted pursuant to section 17 of the [Corrections and Conditional
Release Act, S.C. 1992, c. 20 (the Act)].
[6]
Moreover,
according to the warden, even if the applicant’s risk of reoffending could have
been managed by taking appropriate measures, including the presence of an armed
escort, [translation] ‘‘the very purposes of the ETA would
have been thwarted by this kind of escort. In fact, it would have been
difficult to have any meaningful contact with the members of [the] family in
circumstances where [the applicant would be] in handcuffs and shackles and
under the surveillance of an armed escort.’’
ANALYSIS
[7]
Subsection
17(1) of the Act states that a warden of a penitentiary
‘‘may’’ authorize an ETA,
Where, in the opinion of the
institutional head,
(a) an inmate will not, by
reoffending, present an undue risk to society during an absence authorized
under this section,
(b) it is desirable for the
inmate to be absent from the penitentiary, escorted by a staff member or other
person authorized by the institutional head, for medical, administrative,
community service, family contact, personal development for rehabilitative
purposes, or compassionate reasons, including parental responsibilities,
(c) the inmate’s
behaviour while under sentence does not preclude authorizing the
absence, and
(d) a structured
plan for the absence has been prepared.
[8]
The use of
the verb ‘‘may’’ in this section indicates that Parliament intended the power
to authorize an ETA to be discretionary (see section 11 of the Interpretation
Act, R.S.C. 1985, c. I-21), even though it adopted criteria which must
guide the exercise of this power.
[9]
Section 9
of the Corrections and Conditional Release Regulations, SOR/92-620 (the Regulations)
provides additional explanations with regard to the intended purposes of an
ETA. Paragraph (d) of this section states that an ETA may be authorized ‘‘for
family contact purposes to assist the inmate in maintaining and strengthening
family ties as a support to the inmate while in custody and as a potential
community resource on the inmate’s release’’. This purpose is also recognized
by the respondent’s Commissioner’s Directives (the Directives).
[10]
The
applicant argues that the warden erred in refusing his application and that he
met all of the admissibility criteria for an ETA. He insists that the Act, the Regulations and the Directives all
recognize maintaining and strengthening family ties as being a valid objective
of an ETA. Furthermore, the warden allegedly failed to consider the fact that
the offences for which he was convicted were committed via the Internet.
According to the applicant, committing such an offence takes time, and the
officer escorting him would surely notice the slightest sign of any attempt to
reoffend and put a stop to it. As such, the warden allegedly erred in determining
that he would pose a risk of reoffending during an absence.
[11]
I agree
with the applicant’s arguments with regard to the warden’s assessment of the
risk he would pose during his absence. Whatever medium or long-term risks the
applicant might pose to society, it is true that committing the kind of
offence for which he was convicted does require time and planning. There were
in fact preventive measures that could have been taken in the context of a
brief escorted absence which would have prevented the applicant from planning
and committing such an offence. The warden herself acknowledged this fact. The
finding that [translation] ‘‘the risk of reoffending [that would be
posed by the applicant] during [an] absence is an undue risk to society’’ cannot
be inferred from the applicant’s record. The warden’s reasoning is ‘‘deeply
flawed’’. It does not fall ‘‘within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law’’, Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at para. 47.
[12]
In spite
of all the deference owed to a discretionary decision by a penitentiary warden,
given the fact that this finding is the very basis of the warden’s
decision and not merely some incidental matter to which the Court should pay only
scant attention, the decision is unreasonable and should be set aside. However,
given the change in the applicant’s circumstances, it would be futile to refer
the matter back for a new decision.
JUDGMENT
THE COURT ORDERS that the application for judicial review be allowed. The warden’s
decision is set aside. Costs are awarded to the applicant.
“Danièle Tremblay-Lamer”
Certified
true translation
Sebastian
Desbarats, Translator
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