Date: 20100720
Docket: T-2092-09
Citation: 2010 FC 762
Ottawa, Ontario, July 20,
2010
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
DAVID
R. JOLIVET
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application
pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7,
for judicial review of a decision by the Senior Deputy Commissioner (“SDC”) of
the Correctional Service of Canada (“CSC”) dismissing at the final level a
grievance filed by David R. Jolivet (“the Applicant”). The grievance concerned
the decision of the Warden of the Mountain Institution (“the Warden”) not to
allow the Applicant to return to work as soon as some other inmates following a
lockdown of the Mountain Institution.
BACKGROUND FACTS
[2]
The
Applicant is an inmate at the Mountain Institution, a medium security
penitentiary. He works as the institution’s Bleach Coordinator. He is
classified as a medium security offender.
[3]
On March
29, 2008, there was a riot at the Mountain Institution, resulting in a shutdown
of the penitentiary. The Applicant did not participate in the riot.
[4]
Following
the shutdown, the Warden established a plan for a gradual return to a normal
routine. Under that plan, inmates whose ratings of institutional adjustment
were “low” were allowed to return to work on May 21, 2008. Inmates whose
ratings of institutional adjustment were “moderate” were to resume work on June
17, 2008. However, the Applicant, whose rating of institutional adjustment was
also “moderate,” was allowed to return to work on June 6, 2008.
[5]
During the
shutdown and until his return to work, the Applicant was paid at half his usual
daily wage, pursuant to paragraph 45(a)(2) of the Commissioner’s Directive
(“CD”) 730.
[6]
In May
2008, upon learning that he would not be allowed to return to work at the same
time as inmates with “low” ratings of institutional adjustment, the Applicant
commenced a grievance process. He now seeks a judicial review of the final
denial of his grievance.
[7]
The Senior
Deputy Commissioner rejected the Applicant’s argument that the CD 730 does not
provide for a partial shutdown. In his view, the word shutdown in paragraph
45(a) of that directive “encompasses all types of shutdowns, including partial
shutdowns.” The Warden is responsible for “managing challenges as they arise in
such a way as to return the institution to a safe and secure environment as
soon as possible” after an incident, pursuant to paragraph 13(b) of the CD 567,
as well as for the control of inmates, management of the penitentiary and the
direction of its staff, pursuant to paragraphs (a) to (c) of section 4 of the Corrections
and Conditional Release Regulations, SOR/92-620 (“CCRR”). It was
thus open to him to establish a phased schedule for a return to normal
following the riot at the Mountain Institution, and to determine that inmates
who required more supervision, as demonstrated by higher institutional
adjustment ratings, would not be allowed to return to work as fast as those who
required less.
[8]
The sole
issue in this case is whether the SDC erred in concluding that the
Warden had the power to decide that inmates with higher institutional
adjustment ratings would not be able to return to work at the same time as
those whose ratings were “low.”
ANALYSIS
[9]
This
issue concerns the Warden’s powers under the Corrections and Conditional Release Act, S.C. 1992,
c. 20 (CCRA) and the CCRR, and is accordingly one of
jurisdiction. The applicable standard of review is, therefore, correctness (Dunsmuir
v. New-Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at par. 59).
[10]
The thrust of the Applicant’s
argument is that the Warden exceeded his powers by creating “sub security
Classifications within Medium Security.” Because the inmates at Mountain
Institution are classified as medium security, to treat them differently
according to the security risk they represent is contrary to the provisions of
the CCRA establishing security classifications as well as to the
statutory duty to act fairly which is incumbent upon the Warden. Furthermore,
the Warden does not have the power to impose a partial shutdown of a
penitentiary during which some, but not all, inmates are allowed to return to
work. There must be either a complete shutdown or none at all.
[11]
The Applicant relies on
Offender Redress Bulletins (“the Bulletins”) issued by the Correctional
Service of Canada (“CSC”) which, according to him, prohibit the use of
institutional adjustment ratings “to increase or decrease Security
Classification Levels in Medium Security Facilities.” He also relies on an
internal CSC letter in which the Director of its Offender Redress Division
expressed doubt as to whether the Warden’s actions were within his powers.
[12]
The Respondent argues that
the Warden had the authority to modify inmates’ work routines, including by
imposing a schedule of gradual return to work, pursuant to which inmates
requiring less supervision resume work earlier. Being responsible for the
health and safety of inmates and staff of the Mountain Institution, the Warden
has a “broad discretion to develop plans that promote the objectives of the
institution’s safety.” Exercising this discretion, the Warden could validly
impose a “partial shutdown,” since the CD 730 does not qualify the term “shutdown”
and does not require that it be a complete one.
[13]
The Respondent submits that
some of the provisions of the CCRA on which the Applicant relies, which
deal with institutional placement and transfers, are irrelevant in this case.
The statutory duty to act fairly is also not at issue, because it deals with
the manner in which decisions affecting inmates are taken and “does not require
that all offenders be treated exactly the same.” Finally, the fact that
Parliament has created certain security classifications did not prevent the
Warden from taking other security-related factors into account in shaping his
response the riot at Mountain Institution. Institutional adjustment ratings are
based on the a “[c]lincal judgment” as to the degree of supervision an inmate
requires, and while they do not constitute a separate security classification,
they were a relevant consideration which the Warden could properly take into
account.
[14]
I agree
with the Respondent for the following reasons.
[15]
The term
“shutdown” is not defined in the CCRA, the CCRR, or any of the
Commissioner’s Directives. CD 568-1, Recording and Reporting of Security
Incidents, includes an Annex A entitled “Definitions for the Purpose of
Reporting Security Incidents,” which defines a “lockdown” as “[a] non-routine
situation which results in full suspension of all activities/privileges and the
inmates are locked in their cells on a non-individualized basis.” However, this
definition is only valid “for the purpose of reporting security incidents” and
does not limit the Warden’s powers. Neither CD 568-1, nor any other provision
of the CCRA, the CCRR, or the Commissioner’s Directives prevents
the Warden from ordering a gradual lifting of a “lockdown.”
[16]
Pursuant
to paragraph 4(d) of the CCRA, the CSC is required to “use the least
restrictive measures consistent with the protection of the public, staff
members and offenders.” Therefore, I am of the view that the Warden must
have the power to order the partial lifting of a lockdown if allowing some, but
not all, inmates to resume their normal routines is consistent with the
protection of the public, staff members, and their own, since such a measure is
the least restrictive of their residual liberty.
[17]
Inmates’
Institutional Adjustment Ratings are relevant to such a decision and the SDC
did not err in concluding that the Warden properly took them into account. They
are the results of assessments of the “degree of supervision and control within
the penitentiary” an inmate requires, which is one of the factors to consider
in establishing an inmate’s security classification pursuant to section 18 of
the CCRR. When establishing a plan for a gradual return to normal
following a security incident, it is reasonable for the Warden to consider the
degree of supervision and control inmates require in order to decide which of
them can safely be allowed to resume their ordinary routines first.
[18]
In doing
so, the Warden does not create a new security classification contrary to the
legislative scheme set up by Parliament. He is merely taking a relevant factor
into account in devising a temporary response to an emergency situation. The
statutory provisions and the Bulletins on which the Applicant relies do not
restrict the Warden’s power to do so.
[19]
Section 28
of the CCRA provides that the penitentiary “in which [an offender] is
confined is one that provides the least restrictive environment for that
person” taking into account a number of factors. Similarly, the Bulletins deal
with the placement and transfer of inmates in various medium-security
penitentiaries. Neither they nor section 28 of the CCRA are relevant on
the facts of the present case.
[20]
Section 30
of the CCRA provides that inmates are to be classified as maximum,
medium, or minimum security. The Warden did not contravene it. He did not
re-classify the Applicant into some other category but, as explained above,
merely took temporary measures in order to respond to an emergency situation.
It is noteworthy that the Applicant was allowed to resume his work duties
little over two weeks after the inmates with a “low” Institutional
Adjustment Ratings were.
[21]
Finally,
the principle “that correctional decisions be made in a forthright and fair
manner,” set out in paragraph 4(g) of the CCRA, relates to the
decision-making process. It justifies, for example, the inmates’ right to be
heard before certain decisions concerning them are made, and to have access to
reasons for such decisions. However, it does not mandate that these decisions
conform to any specific understanding of substantive fairness, such as that all
inmates at a locked down penitentiary are to be treated in the same way. Nor
does it allow this Court, on judicial review, to substitute its own view of
what a substantively fair outcome would have been for a decision lawfully taken
by the Warden or any other person to whom Parliament has delegated the
authority to make such a decision.
[22]
The Warden
had the power to order a gradual lifting of a shutdown, allowing some inmates
to return to work before others. Further, in taking the latter decision in this
case, he did not rely on irrelevant considerations or create security
classifications contrary to the CCRA. Thus the SDC did not err dismissing
the Applicant’s grievance.
[23]
For
these reasons, the application for judicial review of the decision is
dismissed, without costs.
JUDGMENT
THIS COURT
ORDERS that the application for judicial
review of the decision be dismissed, without costs.
“Danièle Tremblay-Lamer”
Email this Content