Date: 20100812
Docket: T-1530-09
Citation: 2010
FC 818
Ottawa, Ontario, August 12, 2010
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
MARVIN JEFFREY TEKANO
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Tekano
seeks judicial review of the decision of the Canadian Human Rights Commission
(the Commission) dismissing his complaint against the Correctional Service of
Canada (CSC) which included allegations that (i) the CSC failed to accommodate
his mental disabilities by repeatedly placing him in segregation, and (ii) that
the CSC has a security classification policy or practice that systematically
discriminates against inmates suffering from mental disabilities. More particularly
that, in this case, although Mr. Tekano’s rating on the classification scale
was “medium, this was overridden to maximum security in part because of his
mental disability and its consequences such as head-banging.
[2]
According
to the Commission, pursuant to paragraph 44(3)(b) of the Canadian Human
Rights Act, R.S.C. 1985, c. H-6 (the Act), having regard to all the
circumstances of the complaint, no further inquiry by the Canadian Human Rights
Tribunal (the Tribunal) was warranted.
[3]
Having
considered the arguments of the parties, the Court agrees that the decision in
respect of the allegations relating to the accommodation of Mr. Tekano’s
disabilities contains reviewable errors that justify setting it aside. However,
the Commission’s conclusion in respect of the policy aspect of his complaint is
reasonable.
Background
[4]
Mr. Tekano
is a federal offender who is currently serving the remainder of a 21 year
sentence at the Chilliwack Community Correction Centre. The applicant’s
statutory release date was September 29, 2009, but he remains under CSC’s
supervision until his warrant expiry date of November 19, 2016. At the
time of his complaint, Mr. Tekano had served 13 years of his sentence and
was incarcerated at the Kent Institution, a maximum security penitentiary in British Columbia. He also spent time at the
Pacific Regional Treatment Centre (PRTC) in Abbotsford, British Columbia. At the Kent Institution, and for a
variety of reasons mostly related to his mental disabilities, the applicant was
periodically placed in the segregation unit or in isolation, meaning that he
was locked in his cell for 23 hours a day, most of the time with nothing but a
mattress. Sometimes, the Institutional Emergency Response Team (IERT) was
requested to extract him from his cell (or from the PRTC) or simply subdue him
with the use of force, chemical agents and/or restraints.
[5]
It is
agreed that Mr. Tekano suffers from multiple mental disorders that require
special accommodation by the CSC. The parties do not agree, however, as to the
nature of his disabilities or as to what would have constituted appropriate accommodation
prior to March 23, 2009.
One of the undisputed consequences of the applicant’s mental condition is that
he engages in head-banging when he experiences anxiety or frustration, which
can lead to serious self-injury such as disfigurement, brain damage, bleeding
and possibly death. Between June 19 and July 16, 2008, the applicant had 46
head-banging incidents allegedly due to his anxiety about being held in isolation.
[6]
He
remained in segregation until August 20, 2008, allegedly because the
Segregation Review Board would not transfer him until he could demonstrate
stable behaviour and remain free from self-injurious conduct. According
to Mr. Tekano, between July and August, 2008, he had another 32 incidents of
head-banging.
[7]
In his
complaint filed on August 29, 2008, the applicant focuses on the events that
took place between June and August, 2008. He contends that he suffers from
varying frontal lobe deficit, attention deficit hyperactive disorder (ADHD) and
some form of post-traumatic stress disorder (PTSD). According to him “he
requires positive social interaction and a stable environment where he feels
safe”,
something which segregation does not provide. The remedies he was seeking
included that CSC accommodate his disability by agreeing not to put him in
segregation which makes his condition worse, that he be provided regular
psychological counselling and that he be compensated for the pain and
suffering caused by the discrimination he has suffered. He also mentions that
the CSC staff at all level should be trained regarding their duty to
accommodate prisoners with mental disabilities and that CSC should change its policy
of classifying prisoners with mental disabilities as a higher security risk
because of their disabilities.
[8]
The
respondent, as mentioned, agrees that Mr. Tekano has a paranoid personality
disorder and may have a complex neuro-developmental disorder and a form of
ADHD; CSC neither confirms nor denies the diagnosis of PTSD.
[9]
According
to the CSC, any accommodation made for Mr. Tekano necessitates that the
applicant be put in an environment where staff can intervene immediately when he
engages in a self-harming behaviour. It further points out that the applicant
must also be protected from the inmate population, noting that on February 4,
2008, while housed in Unit E at the Kent Institution, he was stabbed in the
throat and in the right lung by another inmate. On other occasions, he was
abused verbally because of his self-injuring behaviour.
[10]
Although
Mr. Tekano had a self-injuring history in the past five years, as mentioned the
issue raised in the complaint mainly started after June 2008 when he was forcibly
transferred back from PRTC to the Kent Institution because he had been violent
towards the mental health staff and threatened the said staff with various
objects (such as broom and mop handles, in addition to glass from a broken
television).
[11]
The
Commission designated an investigator pursuant to subsection 43(1) of the Act
to investigate the complaint. In conducting his investigation, the investigator
examined all documentary evidence provided by the parties. While the respondent
does not indicate which, if any, documentation was provided to the investigator,
the applicant reports having sent on April 7, 2009, a package of documents
which contained among other things: a psychological report from Dr. Peggy
Koopman; a psychological assessment by Kevin Wildeman; a report by psychiatrist
Dr. Smith; a psychological report by Dr. Melady Preece; and a brief
report by psychiatrist Dr. Hechtman. Although it is not clear if the
investigator reviewed the report of Dr. Murphy, acting on behalf of CSC, dated
May 11, 2009 and the notes of Dr. Mater (also employed by CSC) dated March 24,
2009, it is clear that the investigator and/or the Commission were/was aware of
their involvement given the references made to these medical experts.
[12]
Thus, the
investigator considered the changes in the accommodation provided to Mr. Tekano
in the spring of 2009 after a new three-step plan was put in place and following
the various medical opinions referred to above that had been sought by the
applicant and later on by the CSC.
[13]
In
addition, one witness − Dr. Healy, Psychiatrist and Director of the Psychiatric
Hospital at the PRTC was interviewed. Although, it is somewhat surprising that
the investigator did not meet with any other witnesses, the
applicant did not challenge the thoroughness of the investigation per se.
[14]
In the
report, the investigator summarized the situation concerning the allegations
with respect to the accommodation of the applicant’s mental disabilities as
follows:
57.
The evidence indicates that although the parties disagree as to the
complainant’s diagnosis and accommodation needs, both parties agree that the
complainant has multiple mental disabilities for which he requires treatment. Both
parties further agree that if the complainant persists in his self-injurious
behaviour and continues to bang his head, he may suffer permanent brain damage
and even death.
58.
The evidence suggests that the complainant has not fully cooperated with the
respondent in the search for accommodation by refusing treatment at times and
by exhibiting violence toward mental health staff at the Regional Treatment
Centre.
59.
The evidence indicates that although the complainant is not getting his
preferred accommodation, the respondent has and continues to accommodate
his disabilities as best it can under the circumstances.
(my
emphasis)
[15]
With respect to the
alleged discriminatory policy or practice, the investigator reviewed how the
security classification of inmates is done. She mentions that she applied the
steps analysis commonly referred to as the Meiorin test (Superintendent
of Motor Vehicles v. British Columbia Council of Human Rights, [1999] 3
S.C.R. 868).
[16]
The investigator
concluded that:
(a)
the applicant’s
violent behaviour while incarcerated and the need for a high degree of
supervision are the reasons for which he was classified as a maximum security
inmate and not his disability as claimed by Mr. Tekano. Considering all of the
evidence, it does not appear that CSC systematically classifies disabled
inmates as maximum security inmates;
(b)
while the physical
and/or mental illness may be a factor in the determination of an inmate’s
security classification, the evidence suggests that there are a number of other
factors considered, such as the inmate’s background, institutional history and
behaviour, all as provided for in sections 17 and 18 of the Corrections and
Conditional Release Regulations S.O.R./92-620 (the Regulations).
[17]
Finally, the
investigator recommended that the Commission dismiss the complaint on the basis
that:
(i)
the CSC is
accommodating the complainant’s disabilities;
(ii)
the evidence does not
support the allegation that the respondent systematically classifies disabled
inmates as maximum security inmates; and
(iii)
having regard to all
the circumstances of the complaint, further inquiry by the Canadian Human
Rights Tribunal is not warranted.
[18]
On May 29, 2009, this
report was sent to the parties for review and comments. While the CSC did not
make any further submissions, the applicant sent extensive comments to the
Commission on June 23, 2009.
[19]
On August 11, 2009,
the Commission issued its decision simply adopting the recommendations of the
investigator’s report referred to above (see para. 17).
[20]
The relevant
provisions of the Act, the Corrections and Conditional Release Act,
S.C. 1992, c. 20, and the Corrections and Conditional Release
Regulations, S.O.R./92-620, are included in Annex A to these reasons.
Analysis
[21]
Before looking at the
main issues, the Court must deal with a preliminary objection raised by the
respondent in respect of documentary evidence filed by Mr. Tekano as exhibits
to the affidavit filed in support of the present application claiming that they
were not part of the Certified Record, i.e. the evidence actually before the
Commission, although they may well all have been before the investigator or the
Commission (Respondent’s record, para. 24 and Mr. Tekano’s affidavit, para. 13).
[22]
The applicant did not
respond to this objection per se. The Court does not believe that its
conclusion on this preliminary issue can be determinative of its finding on any
of the main questions raised by the applicant. In effect, it became quite
apparent during the hearing that the important points for which the applicant
sought to rely on this documentation are referred to in either his submissions
to the Commission or the investigation report itself.
[23]
That said, the Court
agrees with the respondent that the general rule set out in Paul v. Canadian
Broadcast Corporation, 2001 FCA 93; Canada Human Rights Commission v.
Pathak, [1995] 2 F.C. 455 (F.C.A.); and Niaki v. Canada (Attorney
General), 2006 FC 1104 should apply here.
[24]
Mr. Tekano did not
raise an issue of procedural fairness nor did he contest the neutrality or
thoroughness of the report so as to justify looking at evidence not actually
considered by the Commission, acting in its capacity as decision-maker as
opposed to in its investigative role.
[25]
Although the
applicant attempts to frame one of the issues as a pure question of law which
could be viewed as an excess of jurisdiction − the Commission adjudicated
on the complaint as opposed to applying the threshold set out in section 44 of
the Act – the Court does not accept this as a proper framing of the
issue as will be further discussed in reviewing the standard of review to be applied.
[26]
In the circumstances,
although the Court did not consider per se the said exhibits, it did
take into consideration the actual references made to these documents in the
Certified Record and which form part of the parties’ records.
[27]
Turning now to the
merits of the application, the first task of the Court is to properly
characterize the issues raised by the applicant in order to determine what
standard of review should be applied. The parties disagree on this point. The
applicant insists that the Court should apply the standard of correctness because
he raises three questions of pure law, whereas the respondent views the issues
before the Commission as questions of fact or mixed fact and law which should
be reviewed on the standard of reasonableness.
[28]
To properly
characterize the questions before the Court, it is useful to say a few words
about the role of the Commission and the threshold it must apply to determine
whether a complaint should be referred to the Tribunal or not.
[29]
The Supreme Court of
Canada addressed these issues on a number of occasions (for example, Syndicat
des employés de production du Québec et de l’Acadie v. Canada (Human Rights Commission), [1989] 2 S.C.R. 879 (paras. 23-27) (hereinafter
SEPQA); Bell v. Canada (Canadian Human Rights Commission;
Cooper v. Canada (Canadian Human Rights Commission), [1996] 3 S.C.R. 854 (paras. 48-58)
(hereinafter Bell). The Federal Court of Appeal also had
the opportunity to review them more recently in Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392
(F.C.A.).
[30]
It is clear that the
Commission’s role under subsection 44(3) of the Act is a screening
function. Still, it constitutes an important threshold in accessing “the
remedial powers of the Tribunal under section 54: a decision at this stage by
the Commission not to deal with a complaint is a decision which effectively
denies the complainant the possibility of obtaining relief under the Act”
(Sketchley, para. 75). The investigator is essentially engaged in a
fact-finding mission, but the Commission itself, when it takes action on the
basis of the investigator’s report, is nevertheless applying the facts in the
context of the legal requirements of the Canadian Human Rights Act. The
resulting decision will, in general, be one of mixed fact and law, calling “for
more deference if the question is fact-intensive, and less deference if it is
law-intensive” (Sketchley, para. 77, quoting Dr. Q. v. College of
Physicians and Surgeons of British Columbia, 2003 SCC 19 , [2003] 1
S.C.R. 226, at para. 34).
It is clear from SEPQA that the decision to either dismiss a case or
send it to the Tribunal for consideration is intimately linked to the
Commission’s perception of the merits of the case. As noted in Slattery v. Canada (Human Right Commission), [1994] 2 F.C. 574 (T.D.) at paras
72-78, this reasoning continues to apply to the new version of the legislation
under subsection 44(3) of the Act.
[31]
In Bell at paragraph 53, Justice
La Forest viewed the role of the Commission in
performing a screening analysis as somewhat analogous to that of a judge at a
preliminary inquiry and held that it was not the function of the Commission to
determine if the complaint is made out. Rather, its duty is to determine if an
inquiry is warranted, considering all the facts and to assess the sufficiency
of the evidence.
[32]
In Larsh v. Canada (Attorney General), (1999) F.C.J. No. 508 (T.D.) (QL), Justice
John Evans made it clear that the “Commission is entitled and obliged to
subject the evidence to a hard look before deciding whether in the circumstances
of a complaint a Tribunal hearing is warranted” (para. 33). In that sense,
the Commission is not bound to refer the matter to the Tribunal whenever
credibility is a central issue, this will particularly be so in cases where
there is a “he said, she said” situation. As noted by the Alberta Court of
Appeal in Callan v. Suncor Inc., 2006 ABCA 15 at para. 16
(hereinafter Callan), “mere conflicts in the evidence of the parties, or
issues of credibility, do not always require a full hearing. Sometimes, in the
context of all the evidence, particular areas of conflict may lose their
apparent importance.”
[33]
It is also clear that
the Commission must look and consider the sufficiency of the evidence as a
whole. However, the threshold it must apply to determine whether considering
all the circumstances a referral is warranted has repeatedly been described as
low, see for example Bell Canada v. Communications, Energy and paperworks
Union of Canada, [1999] 1 F.C. 113 (F.C.A.) (hereinafter Bell Canada)
at para. 35. Justice Sopinka in SEPQA describes it at paragraph 27 as
whether or not there is a reasonable basis on the evidence for proceeding to
the next stage. As the respondent puts it at paragraph 35 of his Memorandum, it
can also be translated as: “whether the evidence is sufficient to suggest a
possibility that some discrimination had occurred”.
[34]
With these principles
in mind, the first issue raised by Mr. Tekano is whether the Commission erred
in concluding that “although the complainant is not getting his preferred
accommodation, the respondent has and continues to accommodate his disabilities
as best it can under the circumstances”, particularly considering that to reach
such a conclusion it clearly had to exceed its jurisdiction and act as an
adjudicator, weighing complex and conflicting evidence including several
medical opinions.
This included making findings such as “there is no conclusive evidence with
regard to [Mr. Tekano’s diagnosis]”.
[35]
In Callan the complainant was
arguing that the Chief Commissioner erred in law by acting as an adjudicator as
opposed to simply assessing the whole of the evidence. The Alberta Court of
Appeal made it clear in that case that it was not useful to focus on such
distinction. Rather, it found that the decision was to be reviewed by
determining if the ultimate conclusion not to refer a matter to the Tribunal
was reasonable or not. Using such approach, the Court noted that:
“
… If the Chief Commissioner is faced with a complaint that is bristling with
issues of credibility and conflicts on the facts, it will in many cases be
unreasonable for him not to refer the matter to a human rights panel. However,
his decision should be assessed in light of its reasonableness, not based on
any perceived distinction between assessing evidence and adjudicating.” (Callan,
para. 15)
[36]
Like in Callan,
Mr. Tekano really contests the findings of fact on which the Commission based
its conclusion that a referral was not warranted. It is quite evident, when
looking at paragraphs 40 to 43, 50 and 51 of the applicant’s memorandum for
example, that what he is really saying is that in light of the evidence on the
record (particularly the medical opinions he submitted, the other options that
were available to CSC and that in fact were used several months later after Mr.
Tekano suffered what one of the medical experts describes as “something akin to
mental torture”, serving only to exacerbate his discomfort and distress) and having regard to all
the circumstances, there was a reasonable basis in the evidence for proceeding
to the next stage and thus the conclusion of the Commission is unreasonable. His
counsel argues that the investigator failed to consider the inordinate delay in
adopting the three-step plan described in the report and the fact that without
access to the Tribunal, Mr. Tekano could not benefit from its remedial
powers − damages to compensate him for the pain and suffering he suffered
between June 2008 and March 2009.
[37]
In my view, the
manner in which the Commission applied the test set out in subsection 44(3) of
the Act to the facts underlying the complaint in respect of the
accommodation (including the issue of consent and cooperation or the lack
thereof) is a mixed question of fact and law where there is no real extricable
question of law to be decided. The standard of review applicable to such question
is reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190, Bateman v. Canada (Attorney General), 2008 FC 393 at para. 19).
[38]
I have come to a
similar conclusion in respect of the Commission’s conclusion on the policy
aspect of the complaint which Mr. Tekano also challenges. The details of his
argument will be discussed later on.
i)
Accommodation and consent
[39]
The respondent argues
that much deference should be given to the Commission especially when the
decision involves the exercise of the Commission’s discretion as to the better
use of its limited resources. Here, by the time the investigation was completed
and the report issued, the complaint had been resolved as the three-step plan
put in place by the PRTC essentially put an end to the applicant’s segregation.
This effectively took care of Mr. Tekano’s complaint and the main redress he
was seeking.
[40]
The respondent
submits that with respect to the alleged delay in providing an accommodation
that actually satisfied Mr. Tekano, the Commission clearly felt that given the
constraints imposed on CSC and the particular duty it had to perform, and
considering the lack of cooperation of the applicant, the accommodation
provided, including Mr. Tekano’s segregation or isolation from June - August
2008, was appropriate. The case law is clear that one’s duty is not to provide
perfect or a preferred accommodation. In the circumstances, and after considering
the entirety of the evidence, the Commission’s decision was reasonable.
[41]
The standard of review
already takes into account the deference to be given to the Commission. The
Court will simply note that when the complainant seeks damages for the pain and
suffering allegedly caused by the failure to provide appropriate accommodation
of his disabilities in a timely fashion, it is not clear how the Commission’s
use of its resources is a relevant consideration.
[42]
It is not really
disputed that the plan described in the May 5, 2009 document prepared by
Dr. Healy which was established after the certification of Mr. Tekano constituted reasonable
accommodation. Had this been done in July 2008, it is quite unlikely that a
complaint would have been filed or the various medical and psychological expert
opinions in this file would have been sought.
[43]
Thus, the Court will
focus on the Commission’s decision in respect of the core or main aspect of the
complaint, that is, the accommodation provided prior to April – May 2009 and,
more particularly, what measures were actually taken to accommodate Mr. Tekano
in the period June – August 2008.
[44]
The applicant insists
that he has provided a strong evidentiary basis in respect of this aspect of
his complaint and given that there were such serious conflicts in the evidence,
the Commission was bound to give him access to the remedial powers of the
Tribunal in respect of his claim for compensation of his pain and suffering. To
illustrate his point, he referred the Court to a more recent decision of the
Commission in Woronkiewicz v. Correctional Service of Canada, 20080845
(C.H.R.C.) 23 September 2009 issued after the filing of his complaint, which is
a case, he says,quite similar to his. In Woronkiewicz, the Commission
rejected the recommendation of the investigator because there were a number of
key factual issues that were in dispute between the parties in respect of the
medication (Ritalin) and treatment required by a disabled inmate. The
Commission accepted the following statement in the complainant’s submissions:
Insofar
as the evidence presented by the respondent is in conflict with the evidence
presented by the complainant, such conflict should be explored in the forum of
a hearing, through the calling of expert evidence and cross-examination of
witnesses. To accept that the denial of mental health treatment was reasonable
and not discriminatory, as the respondent asserts, the Commission would have to
favour one version of the record over another.
[45]
Here, in addition to
Mr. Tekano’s views and the comments of Dr. Moore, a CSC specialist, he reports
in his complaint,
there was evidence at the very least prima facie from a number of
independent expert sources to support Mr. Tekano’s allegation that segregation
as it was used during that period was simply not an appropriate accommodation
for his mental disabilities even in a penitentiary context.
[46]
According to this
evidence, not only did it not help to stabilize his condition − a term
often used in the investigation report and by Dr. Healy particularly, but it
was qualified as mentioned earlier as “akin to mental torture” for someone with
ADHD,
a diagnosis that does not appear to be in dispute. In that sense, although
this measure commonly used by CSC to protect an inmate from the inmate
population or from injuring himself (such as suicide watch) is not generally
intended to be a punitive measure, it may well have become so for
Mr. Tekano given his mental disabilities and the fact that he continued,
despite his efforts, to bang his head on the walls to the point of causing
himself serious injuries.
[47]
Although Dr. Healy
opined that segregation was the only way to protect Mr. Tekano and to monitor his
behaviour.
There was also evidence that other alternatives were available to CSC such as
those actually adopted much later on and described in full in paragraph 26 of
the investigation report (see particularly the measures under “Stabilization of
mood and behaviour”). There was no evidence, or at least nothing in the
investigation report and before the Commission, as to why these measures
including certification
could not have been used as early as June 2008. This is especially so when one
considers that the medication dosage administered to Mr. Tekano between
June 2008 and March 2009 was clearly not working adequately to control his
anxiety or frustrations and to prevent his self-injurious behaviour, as well as
his violent behaviour during crises situations. According to Mr. Tekano,
Dr. Moore had assessed as early as January 2008 that segregation was
counter-indicated for his condition
and according to CSC he had a long history of refusing treatment or withdrawing
his consent after initially agreeing to counselling or psychiatric treatment.
[48]
From the applicant’s
submissions based on Dr. Murphy’s own report, it was clear that the Mental
Health Act contains provisions that were to be used for cases just like
this one. In fact, the words used by Dr. Murphy appear to be almost in
direct contradiction with the position taken by Dr. Healy that a more
effective plan could not be adopted well before April 2009 because of Mr.
Tekano’s lack of consent or cooperation. Again, why was certification of the
applicant not initiated earlier?
[49]
It is apparent from
the reasons given by the Commission (including the investigation report) that
this issue of failure to cooperate or consent to treatment was of particular
importance in coming to the conclusion that the CSC has accommodated the
complainant’s disabilities as best as it could under the circumstances during
the period from June to September 2008. However, here again there were serious
conflicts in the evidence. While Dr. Healy appears to see this behaviour as a
form of manipulation or as a paranoid personality tendency to focus on
litigation or conflicts, her view was disputed by other experts who opined that
what was characterized as lack of cooperation was in fact the normal and
foreseeable consequences of his mental disabilities. This view appears to be
corroborated by the fact that the BC Mental Health Board did certify Mr. Tekano
as incompetent to make decisions regarding his treatment.
[50]
Moreover, a closer
look at the circumstances included in the report as evidence of this lack
of cooperation, also raises questions as to how this really impeded the use of
the measures set out in the May 5th plan to stabilize his mood and
behaviour.
[51]
Mr. Tekano allegedly
refused to take an MRI (Magnetic Resonance Imaging) test that would allow
Dr. Healy to assess the extent of his brain injuries and determine the
scope of his brain activity. The very fact that Mr. Tekano was asked to submit
to this test by Dr. Healy is contested and, in any event, it is not clear why
the measures adopted later on could not have been implemented earlier despite the
lack of MRI results, especially since it is undisputed that Mr. Tekano
suffered from severe mental disabilities and could kill himself if his
self-injurious behaviour did not stop.
[52]
Mr. Tekano refused to
meet with Dr. Murphy through a glass wall after initially consenting to meet
with her in a face to face interview. Dr. Murphy later stated that such a
meeting was not necessary for her to issue a report and she was able to advise
CSC on appropriate treatment and measures to be taken.
[53]
Turning to the next incident
of lack of cooperation, the applicant refused to go back to Unit E because he feared for his
own safety despite CSC’s assurances that he would be all right. Again, it is
not clear how this prevented the use of the alternative measures set out in the
May 5th plan for stabilizing his mood and behaviour prior to
transferring him to the general inmate population.
[54]
Finally, the
respondent relies on the violent behaviour exhibited towards the medical staff
during the June 2008 crisis. As noted earlier, why were Pinel restraints and
stronger medication not used? There is no evidence that they were ever
considered.
[55]
As can be appreciated
from these few comments, there was conflicting evidence:
·
at least in respect
of the PTSD diagnosis;
·
on the impact of
segregation on the applicant;
·
as to whether there
were alternative measures available even in the correctional facility context
and as of June 2008;
·
considering his
mental disabilities as to whether it was reasonable that Mr. Tekano would
simply agree or consent to all the proposals made by CSC or PRTC and whether
his behaviour really impeded the use of alternative measures such as those set
out in the May 5th document;
·
as to whether steps
should have been taken earlier to certify him if indeed his lack of cooperation
impeded the stabilization of his mood and behaviour.
[56]
While there is no
doubt that the applicant has been found guilty of very serious crimes and that
the CSC has many constraints given the duty imposed on it, one must also
consider that a disabled inmate in a maximum security correctional facility is
in a uniquely vulnerable situation (Drennan v. Canada (Attorney General), 2008 FC 10, [2008] F.C.J. No. 14 (T.D.)
at para. 41.).
[57]
This case certainly
falls within the complex cases bristling with issues of credibility and
conflicting evidence (see Callan citation at para. 35 above) and I am
convinced considering the applicable low threshold that the decision to dismiss
this portion of the claim because it did not warrant further inquiry is not
within the range of acceptable outcomes on the facts and the law.
ii)
Systematic policy and practice
[58]
This aspect of the complaint
is raised in the last paragraph of the two-page complaint. It reads as follows:
CSC
uses a Security Classification Scale that automatically gives prisoners with “psychological
concerns” a higher security rating. This policy is discriminatory to people
with mental disabilities. My July 2007 security classification scale is 26.5,
which is a medium security classification. My medium security classification
scale was overridden to maximum security in part because of my head-banging
which I do because of my Post Traumatic Stress Disorder.
To
put this allegation in context, it is useful to look at the remedy sought in
respect of this portion of the complaint:
5.
That CSC change its policy of classifying prisoners with mental disabilities as
higher security because of their disabilities.
[59]
At the hearing, the
applicant focused on the fact that he never asserted that disabled inmates were
automatically classified as maximum security. Thus, the Commission erred when
it described his allegation as one relating to the systematic classification of
disabled inmates as maximum security inmates and, because of this, it
failed to properly apply the Meiorin test to the relevant facts. He also
says that it is implicit that the Commission wrongly believed that he had to
establish that one’s mental disability was the only or the primary
consideration to classify disabled inmates as a higher security risk to prove
discrimination. This is contrary to the established case law cited in their
written submissions to the Commission.
[60]
One must first note
that in his extensive submissions to the Commission on the investigation
report, the applicant never claimed that the investigator had misunderstood the
basis of his complaint. He never articulated that the classification of disabled
inmates as maximum security was never the issue. It appears that back then he
clearly understood the investigator to mean that there was no systematic policy
of classifying disabled inmates “as higher security because of their
disabilities”. The reference to maximum security being simply a reference to
his alleged own experience with the application of such policy. Obviously
judicial review should not be used as an opportunity to change the focus of
one’s complaint or to bonify it.
[61]
The Court is not persuaded
that when read in the context of the complaint and, having regard to all the
comments dealing with this succinct allegation (paras 60-79 of the
investigation report, see particularly 63-64), the Commission misunderstood Mr.
Tekano’s complaint or failed to properly apply the law to the relevant facts.
It did not fail to investigate the impact of the automated scale used by CSC.
[62]
It appears that the
applicant did not file any evidence other than refer to the fact that the SRS
(see note 28), one of the tools used in the process of reclassifying an inmate,
does attribute one point for “psychological concerns noted” (one of 15 factors
for which a numerical score is provided in that program). Apart from referring
to his own experience, he did not file any evidence as to how this one point
actually influences the classification of a disabled inmate. Certainly, in his
case the use of this tool gave him a score of 26.5 that did not correspond to
his actual classification confirming that CRS does not systematically or
automatically determine the classification of an inmate.
[63]
In that respect, it
is not clear what evidence there was that only inmates suffering from mental
disabilities would fall within the category “psychological concerns noted”, or exactly
what mental disability would always be noted. What is clear, however, is that
there was evidence that whenever such concerns were noted (one point
attributed) in respect of a mental health issue, this rating was always
subject to a health care professional assessment. I understand this to mean
that instead of obtaining a mental health assessment for all inmates to
determine whether a note should be entered in the automated system, it is done
only if a concern is actually noted in the system.
[64]
There is also no evidence
that the attribution of this one extra point assumes, as alleged by Mr. Tekano
in his written submissions to the Commission, that mental disabilities are a
safety risk. In fact, it could relate to the need for higher supervision, one
of the criteria set out in the Regulations and which, among other
things, is required for the protection of the inmate. This may explain why the
applicant in fact also indicated in his June 23, 2009 submissions that he
agrees that “mental disability should be taken into consideration in deciding a
prisoner’s security classification”, more
particularly because this can ensure that appropriate accommodation is given in
prison. So as he noted, his issue is that classification should not be done by automatically
assigning an individual with mental disabilities a higher SRS score.
[65]
The applicant argues
that the investigator erred by looking at the whole system from the initial
classification (OIA) to the actual reclassification of an inmate because it put
less emphasis on the real issue he raised.
[66]
I cannot agree. In
fact, looking at how classification and reclassification is done is useful to
assess the context and carry out the required step-by-step analysis which acknowledges
that the simple fact that a mental health issue was considered could be
perceived as depriving inmates with disabilities from the same opportunities as
other inmates (step one). It is clearly relevant to assess the impact, if any,
of the automated addition of one point to the SRS score, and whether this
impact is nullified by a specialist’s determination of the real need associated
with the particular mental disability (need for supervision, etc.), such that
it would effectively have no impact on the security level assigned to disabled
inmates. This is so, even if as submitted by the applicant, there is a
difference between a higher score and a higher classification.
[67]
That said, the
investigator and the Commission used the appropriate test (Meiorin test)
to assess the whole of the evidence and to determine if there was a reasonable
basis (sufficient evidence) on which one could possibly conclude that systematic
discrimination exists.
[68]
The Court is not
prepared to conclude that it is implicit that the Commission applied an
improper burden of proof as suggested by the applicant (see para. 59 above).
[69]
Although the Court
agrees that certain portions of the report could have been better written,
having considered the report as a whole as well as with the submissions made by
the applicant, the Court is simply not convinced that the Commission’s
conclusion that this part of the complaint does not warrant further
investigation by the Tribunal is unreasonable.
[70]
In light of the
foregoing, the application for judicial review is granted in part with costs to
the applicant. The Court reserves its jurisdiction to fix the amount (lump sum)
of the said costs. Thus, should the parties not be able to agree on an amount,
written submissions (a maximum of 5 pages each) shall be filed. To allow time
for discussion between the parties, the applicant shall have 15 days from the
date of this judgment to do so while the respondent shall file his response 5
days later.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that the
application is granted in part. The decision not to refer the complaint in
respect of the events that took place between June – August 2008 is quashed.
The matter shall be redetermined by the Commission.
The applicant shall have his costs in an amount
to be fixed in a distinct order of this Court.
“Johanne Gauthier”
ANNEX
A
Relevant
Statutory Provisions
1. Canadian
Human Rights Act, R.S.C. 1985, c. H-6
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Designation
of investigator
43.
(1) The Commission may designate a person, in this Part referred to as an
“investigator”, to investigate a complaint.
Manner
of investigation
(2) An
investigator shall investigate a complaint in a manner authorized by
regulations made pursuant to subsection (4).
Power
to enter
(2.1)
Subject to such limitations as the Governor in Council may prescribe in the
interests of national defence or security, an investigator with a warrant
issued under subsection (2.2) may, at any reasonable time, enter and search
any premises in order to carry out such inquiries as are reasonably necessary
for the investigation of a complaint.
Authority
to issue warrant
(2.2)
Where on ex parte application a judge of the Federal Court is satisfied by
information on oath that there are reasonable grounds to believe that there
is in any premises any evidence relevant to the investigation of a complaint,
the judge may issue a warrant under the judge’s hand authorizing the
investigator named therein to enter and search those premises for any such
evidence subject to such conditions as may be specified in the warrant.
Use of
force
(2.3)
In executing a warrant issued under subsection (2.2), the investigator named
therein shall not use force unless the investigator is accompanied by a peace
officer and the use of force has been specifically authorized in the warrant.
Production
of books
(2.4)
An investigator may require any individual found in any premises entered
pursuant to this section to produce for inspection or for the purpose of
obtaining copies thereof or extracts therefrom any books or other documents
containing any matter relevant to the investigation being conducted by the
investigator.
Obstruction
(3) No
person shall obstruct an investigator in the investigation of a complaint.
Regulations
(4)
The Governor in Council may make regulations
(a)
prescribing procedures to be followed by investigators;
(b)
authorizing the manner in which complaints are to be investigated pursuant to
this Part; and
(c)
prescribing limitations for the purpose of subsection (2.1).
R.S.,
1985, c. H-6, s. 43; R.S., 1985, c. 31 (1st Supp.), s. 63.
Report
44.
(1) An investigator shall, as soon as possible after the conclusion of an
investigation, submit to the Commission a report of the findings of the
investigation.
Action
on receipt of report
(2)
If, on receipt of a report referred to in subsection (1), the Commission is
satisfied
(a)
that the complainant ought to exhaust grievance or review procedures
otherwise reasonably available, or
(b)
that the complaint could more appropriately be dealt with, initially or
completely, by means of a procedure provided for under an Act of Parliament
other than this Act,
it
shall refer the complainant to the appropriate authority.
Idem
(3) On
receipt of a report referred to in subsection (1), the Commission
(a)
may request the Chairperson of the Tribunal to institute an inquiry under
section 49 into the complaint to which the report relates if the Commission
is satisfied
(i)
that, having regard to all the circumstances of the complaint, an inquiry
into the complaint is warranted, and
(ii)
that the complaint to which the report relates should not be referred
pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs
41(c) to (e); or
(b)
shall dismiss the complaint to which the report relates if it is satisfied
(i)
that, having regard to all the circumstances of the complaint, an inquiry
into the complaint is not warranted, or
(ii)
that the complaint should be dismissed on any ground mentioned in paragraphs
41(c) to (e).
Notice
(4)
After receipt of a report referred to in subsection (1), the Commission
(a)
shall notify in writing the complainant and the person against whom the
complaint was made of its action under subsection (2) or (3); and
(b)
may, in such manner as it sees fit, notify any other person whom it considers
necessary to notify of its action under subsection (2) or (3).
R.S.,
1985, c. H-6, s. 44; R.S., 1985, c. 31 (1st Supp.), s. 64; 1998, c. 9, s. 24.
|
Nomination
de l’enquêteur
43.
(1) La Commission peut charger une personne, appelée, dans la présente loi, «
l’enquêteur », d’enquêter sur une plainte.
Procédure
d’enquête
(2)
L’enquêteur doit respecter la procédure d’enquête prévue aux règlements pris
en vertu du paragraphe (4).
Pouvoir
de visite
(2.1)
Sous réserve des restrictions que le gouverneur en conseil peut imposer dans
l’intérêt de la défense nationale ou de la sécurité, l’enquêteur muni du
mandat visé au paragraphe (2.2) peut, à toute heure convenable, pénétrer dans
tous locaux et y perquisitionner, pour y procéder aux investigations
justifiées par l’enquête.
Délivrance
du mandat
(2.2)
Sur demande ex parte, un juge de la Cour fédérale peut, s’il est convaincu,
sur la foi d’une dénonciation sous serment, qu’il y a des motifs raisonnables
de croire à la présence dans des locaux d’éléments de preuve utiles à
l’enquête, signer un mandat autorisant, sous réserve des conditions
éventuellement fixées, l’enquêteur qui y est nommé à perquisitionner dans ces
locaux.
Usage
de la force
(2.3)
L’enquêteur ne peut recourir à la force dans l’exécution du mandat que si
celui-ci en autorise expressément l’usage et que si lui-même est accompagné
d’un agent de la paix.
Examen
des livres
(2.4)
L’enquêteur peut obliger toute personne se trouvant sur les lieux visés au
présent article à communiquer, pour examen, ou reproduction totale ou partielle,
les livres et documents qui contiennent des renseignements utiles à
l’enquête.
Entraves
(3)
Il est interdit d’entraver l’action de l’enquêteur.
Règlements
(4)
Le gouverneur en conseil peut fixer, par règlement :
a)
la procédure à suivre par les enquêteurs;
b)
les modalités d’enquête sur les plaintes dont ils sont saisis au titre de la
présente partie;
c)
les restrictions nécessaires à l’application du paragraphe (2.1).
L.R.
(1985), ch. H-6, art. 43; L.R. (1985), ch. 31 (1er suppl.), art. 63.
Rapport
44.
(1) L’enquêteur présente son rapport à la Commission le plus tôt possible
après la fin de l’enquête.
Suite
à donner au rapport
(2)
La Commission renvoie le plaignant à l’autorité compétente dans les cas où,
sur réception du rapport, elle est convaincue, selon le cas :
a)
que le plaignant devrait épuiser les recours internes ou les procédures
d’appel ou de règlement des griefs qui lui sont normalement ouverts;
b)
que la plainte pourrait avantageusement être instruite, dans un premier temps
ou à toutes les étapes, selon des procédures prévues par une autre loi
fédérale.
Idem
(3)
Sur réception du rapport d’enquête prévu au paragraphe (1), la Commission :
a)
peut demander au président du Tribunal de désigner, en application de
l’article 49, un membre pour instruire la plainte visée par le rapport, si
elle est convaincue :
(i)
d’une part, que, compte tenu des circonstances relatives à la plainte,
l’examen de celle-ci est justifié,
(ii)
d’autre part, qu’il n’y a pas lieu de renvoyer la plainte en application du
paragraphe (2) ni de la rejeter aux termes des alinéas 41c) à e);
b)
rejette la plainte, si elle est convaincue :
(i)
soit que, compte tenu des circonstances relatives à la plainte, l’examen de
celle-ci n’est pas justifié,
(ii)
soit que la plainte doit être rejetée pour l’un des motifs énoncés aux
alinéas 41c) à e).
Avis
(4)
Après réception du rapport, la Commission :
a)
informe par écrit les parties à la plainte de la décision qu’elle a prise en
vertu des paragraphes (2) ou (3);
b)
peut informer toute autre personne, de la manière qu’elle juge indiquée, de
la décision qu’elle a prise en vertu des paragraphes (2) ou (3).
L.R.
(1985), ch. H-6, art. 44; L.R. (1985), ch. 31 (1er suppl.), art. 64; 1998,
ch. 9, art. 24.
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2. Corrections and Conditional Release Act, S.C. 1992, c. 20
|
Service
to classify each inmate
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).
Service
to give reasons
(2)
The Service shall give each inmate reasons, in writing, for assigning a
particular security classification or for changing that classification
Agreements
81.
(1) The Minister, or a person authorized by the Minister, may enter into an
agreement with an aboriginal community for the provision of correctional
services to aboriginal offenders and for payment by the Minister, or by a
person authorized by the Minister, in respect of the provision of those
services.
Scope
of agreement
(2)
Notwithstanding subsection (1), an agreement entered into under that
subsection may provide for the provision of correctional services to a
non-aboriginal offender.
Placement
of offender
(3)
In accordance with any agreement entered into under subsection (1), the
Commissioner may transfer an offender to the care and custody of an
aboriginal community, with the consent of the offender and of the aboriginal
community.
1992,
c. 20, s. 81; 1995, c. 42, s. 21(F).
Regulations
96.
The Governor in Council may make regulations
(a)
prescribing the duties of staff members;
(b)
for authorizing staff members or classes of staff members to exercise powers,
perform duties or carry out functions that this Part assigns to the
Commissioner or the institutional head;
(c)
respecting, for the purposes of section 22,
(i)
the circumstances in which compensation may be paid,
(ii)
what constitutes a disability,
(iii)
the manner of determining whether a person has a disability, and the extent
of the disability,
(iv)
what constitutes an approved program,
(v)
to whom compensation may be paid, and
(vi)
the compensation that may be paid, the time or times at which the
compensation is to be paid, the terms and conditions in accordance with which
the compensation is to be paid, and the manner of its payment;
(d)
respecting the placement of inmates pursuant to section 28 and their transfer
pursuant to section 29;
(e)
providing for the matters referred to in section 70;
(f)
respecting allowances, clothing and other necessities to be given to inmates
when leaving penitentiary either temporarily or permanently;
(g)
respecting the administrative segregation of inmates;
(h)
prescribing the contents of the notice to be given to an inmate under section
42, and the time when the notice is to be given to the inmate;
(i)
in connection with the disciplinary sanctions described in section 44,
(i)
prescribing the maximum of each of those sanctions, which maxima shall be
higher for serious disciplinary offences than for minor ones,
(ii)
prescribing factors and guidelines to be considered or applied in imposing
those sanctions,
(iii)
prescribing the scope of each of those sanctions, and
(iv)
respecting the enforcement, suspension and cancellation of those sanctions;
(j)
providing for a review of the decisions of the person or persons conducting a
disciplinary hearing;
(k)
providing for
(i)
the appointment of persons other than staff members to conduct disciplinary
hearings or to review decisions pursuant to regulations made under paragraph
(j), and
(ii)
the remuneration and travel and living expenses of persons referred to in
subparagraph (i);
(l)
prescribing the manner in which a search referred to in
(i)
paragraph (b) of the definition “frisk search” in section 46,
(ii)
paragraph (b) of the definition “non-intrusive search” in section 46, or
(iii)
paragraph (b) of the definition “strip search” in section 46
shall
be carried out;
(m)
prescribing the procedures to be followed in conducting a urinalysis and the
consequences of the results of a urinalysis;
(n)
prescribing the effect that a visitor’s refusal to undergo a search can have
on the visitor’s right to visit an inmate or remain at the penitentiary;
(o)
respecting
(i)
the submission of reports referred to in section 67, and
(ii)
the return or forfeiture of items seized under section 65 or subsection 66(2)
or otherwise in possession of the Service;
(p)
prescribing limits on the entry into a penitentiary, and the use by inmates,
of publications, video and audio materials, films and computer programs;
(q)
providing for inmates’ moneys to be held in trust accounts;
(r)
respecting inmates’ work and working conditions;
(s)
respecting penitentiary industry;
(t)
respecting the conducting of businesses by inmates;
(u)
prescribing an offender grievance procedure;
(v)
for the organization, training, discipline, efficiency, administration and
good management of the Service;
(w)
providing for inmates’ access to
(i)
legal counsel and legal reading materials,
(ii)
non-legal reading materials, and
(iii)
a commissioner for taking oaths and affidavits;
(x)
respecting inmates’ attendance at judicial proceedings;
(y)
respecting the procedure to be followed on the death of an inmate;
(z)
prescribing the procedure governing the disposal of the effects of an escaped
inmate;
(z.1)
for the delivery of the estate of a deceased inmate to the inmate’s personal
representative in accordance with the applicable provincial law;
(z.1.1)
prescribing the sources of income from which a deduction may be made pursuant
to paragraph 78(2)(a) or in respect of which a payment may be required
pursuant to paragraph 78(2)(b);
(z.2)
prescribing the purposes for which deductions may be made pursuant to
paragraph 78(2)(a) and prescribing the amount or maximum amount of any deduction,
which regulations may authorize the Commissioner to fix the amount or maximum
amount of any deduction by Commissioner’s Directive;
(z.2.1)
providing for the means of collecting the amount referred to in paragraph
78(2)(b), whether by transferring to Her Majesty moneys held in trust
accounts established pursuant to paragraph 96(q) or otherwise, and
authorizing the Commissioner to fix, by percentage or otherwise, that amount
by Commissioner’s Directive, and respecting the circumstances under which payment
of that amount is not required;
(z.3)
providing for remuneration and travel and living expenses of members of
committees established pursuant to subsection 82(1);
(z.4)
for the involvement of members of the community in the operation of the
Service;
(z.5)
prescribing procedures to be followed after the use of force by a staff
member;
(z.6)
respecting the assignment to inmates of security classifications pursuant to
section 30, which regulations must set out factors to be considered in
determining the security classification of an inmate;
(z.7)
providing for the monitoring or intercepting of communications of any kind
between an inmate and another inmate or other person, where reasonable for
protecting the security of the penitentiary or the safety of persons;
(z.8)
respecting escorted temporary absences and work releases;
(z.9)
respecting the manner and form of making requests to the Commissioner under
section 26 and respecting how those requests are to be dealt with;
(z.10)
imposing obligations or prohibitions on the Service for the purpose of giving
effect to any provision of this Part;
(z.11)
prescribing anything that by this Part is to be prescribed; and
(z.12)
generally for carrying out the purposes and provisions of this Part.
1992,
c. 20, s. 96; 1995, c. 42, ss. 25, 72(F).
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Assignation
30.
(1) Le Service assigne une cote de sécurité selon les catégories dites
maximale, moyenne et minimale à chaque détenu conformément aux règlements
d’application de l’alinéa 96z.6).
Motifs
(2)
Le Service doit donner, par écrit, à chaque détenu les motifs à l’appui de
l’assignation d’une cote de sécurité ou du changement de celle-ci.
Accords
81.
(1) Le ministre ou son délégué peut conclure avec une collectivité autochtone
un accord prévoyant la prestation de services correctionnels aux délinquants
autochtones et le paiement par lui de leurs coûts.
Portée
de l’accord
(2)
L’accord peut aussi prévoir la prestation de services correctionnels à un
délinquant autre qu’un autochtone.
Transfert
à la collectivité
(3)
En vertu de l’accord, le commissaire peut, avec le consentement des deux
parties, confier le soin et la garde d’un délinquant à une collectivité
autochtone.
1992, ch. 20,
art. 81; 1995, ch. 42, art. 21(F).
Règlements
96.
Le gouverneur en conseil peut prendre des règlements :
a)
fixant les fonctions des agents;
b)
en vue d’autoriser les agents ou toute catégorie d’agents à exercer des
pouvoirs et fonctions attribués par la présente partie au commissaire ou au
directeur du pénitencier;
c)
précisant, pour l’application de l’article 22 :
(i)
les circonstances où une indemnité est versée,
(ii)
la nature d’une invalidité,
(iii)
la méthode de détermination d’une invalidité et de son taux,
(iv)
les programmes agréés,
(v)
les personnes pouvant être indemnisées,
(vi)
le montant de l’indemnité ainsi que les conditions et modalités de temps et
autres de son versement;
d)
concernant l’incarcération des détenus conformément à l’article 28 et leur
transfèrement conformément à l’article 29;
e)
régissant les questions visées à l’article 70;
f)
concernant les allocations, les vêtements ou objets de première nécessité à
remettre aux détenus quittant, même temporairement, le pénitencier;
g)
concernant l’isolement préventif;
h)
précisant la teneur de l’avis visé à l’article 42 et son délai de
transmission au détenu;
i)
concernant l’exécution, la suspension et l’annulation des sanctions
disciplinaires prévues à l’article 44 et précisant :
(i)
le maximum de chaque peine, lequel doit être, pour les infractions
disciplinaires mineures, inférieur à celui prévu pour les infractions
disciplinaires graves,
(ii)
les facteurs et les grands principes à prendre en compte pour la
détermination des peines,
(iii)
la portée de chaque peine;
j)
prévoyant la révision des décisions des personnes chargées d’instruire une
accusation d’infraction disciplinaire;
k)
prévoyant la nomination, la rémunération ainsi que les indemnités de séjour
et de déplacement à verser à toute personne, autre qu’un agent, chargée
d’instruire une accusation d’infraction disciplinaire ou conformément aux
règlements d’application de l’alinéa j), de réviser une décision;
l)
précisant la manière d’effectuer les inspections lors d’une fouille à nu,
d’une fouille discrète ou par palpation, au sens de l’article 46;
m)
précisant la procédure à suivre pour les analyses d’urine et les conséquences
des résultats de ces analyses;
n)
précisant les conséquences — en ce qui touche son droit de visite ou sa
présence au pénitencier — du refus d’un visiteur de se soumettre à une
fouille;
o)
précisant à qui les rapports visés à l’article 67 doivent être remis et
concernant la restitution ou la confiscation d’objets saisis en vertu de
l’article 65 ou du paragraphe 66(2), ou dont le Service a autrement obtenu la
possession;
p)
fixant des limites à l’introduction dans un pénitencier et à l’usage par les
détenus de publications, de matériel vidéo ou audio, de films et de
programmes informatiques;
q)
prévoyant le dépôt, dans des comptes en fiducie, de l’argent des détenus;
r)
concernant le travail des détenus et les conditions afférentes;
s)
concernant le secteur productif pénitentiaire;
t)
concernant l’exercice d’activités commerciales par les détenus;
u)
fixant la procédure de règlement des griefs des délinquants;
v)
concernant l’organisation, l’efficacité, l’administration et la bonne
direction du Service — y compris la formation et la discipline;
w)
en vue d’assurer aux détenus l’accès à des textes juridiques ou non ainsi
qu’auprès d’avocats et de commissaires aux serments;
x)
concernant la présence de détenus à des procédures judiciaires;
y)
concernant la procédure à suivre en cas de décès d’un détenu;
z)
fixant la procédure régissant la disposition des biens d’un évadé;
z.1)
concernant la remise — conformément aux lois provinciales applicables — des
biens d’un détenu décédé;
z.1.1)
précisant les sources de revenu qui peuvent faire l’objet des retenues
prévues à l’alinéa 78(2)a) et des versements prévus à l’alinéa 78(2)b);
z.2)
précisant l’objet des retenues visées à l’alinéa 78(2)a) et en fixant le
plafond ou le montant, ou permettant au commissaire de fixer ces derniers par
directive;
z.2.1)
prévoyant les modalités de recouvrement de la somme prévue à l’alinéa
78(2)b), notamment le transfert à Sa Majesté de l’argent déposé dans les
comptes en fiducie créés conformément à l’alinéa 96q), et permettant au
commissaire de prendre des directives pour en fixer le montant — en
pourcentage ou autrement — et pour prévoir les circonstances dans lesquelles
le versement n’en est pas exigé;
z.3)
prévoyant la rémunération ainsi que les indemnités de séjour et de
déplacement à verser aux membres des comités prévus au paragraphe 82(1);
z.4)
en vue de la participation des membres de la collectivité aux activités du
Service;
z.5)
fixant la procédure à suivre en cas d’usage de force par un agent;
z.6)
concernant l’attribution — aux termes de l’article 30 — d’une cote de
sécurité au détenu ainsi que les critères de détermination de celle-ci;
z.7)
précisant les mesures d’interception ou de surveillance des communications ou
des activités entre détenus ou entre un détenu et toute autre personne
lorsqu’elles sont nécessaires pour assurer la protection de quiconque ou du
pénitencier;
z.8)
concernant les permissions de sortir avec escorte et les placements à
l’extérieur;
z.9)
concernant les modalités d’une demande faite au commissaire conformément à
l’article 26 et concernant la manière de traiter cette demande;
z.10)
imposant des obligations ou des interdictions au Service pour l’application
de toute disposition de la présente partie;
z.11)
portant toute mesure d’ordre réglementaire prévue par la présente partie;
z.12)
portant toute autre mesure d’application de la présente partie.
1992, ch. 20,
art. 96; 1995, ch. 42, art. 25 et 72(F).
|
3. Corrections and Conditional Release
Regulations,
S.O.R./92-620
|
Security
Classification
17.
The Service shall take the following factors into consideration in
determining the security classification to be assigned to an inmate pursuant
to section 30 of the Act:
(a)
the seriousness of the offence committed by the inmate;
(b)
any outstanding charges against the inmate;
(c)
the inmate's performance and behaviour while under sentence;
(d)
the inmate’s social, criminal and, if available, young-offender history and
any dangerous offender designation under the Criminal Code;
(e)
any physical or mental illness or disorder suffered by the inmate;
(f)
the inmate's potential for violent behaviour; and
(g)
the inmate's continued involvement in criminal activities.
SOR/2008-198,
s. 1.
18.
For the purposes of section 30 of the Act, an inmate shall be classified as
(a)
maximum security where the inmate is assessed by the Service as
(i)
presenting a high probability of escape and a high risk to the safety of the
public in the event of escape, or
(ii)
requiring a high degree of supervision and control within the penitentiary;
(b)
medium security where the inmate is assessed by the Service as
(i)
presenting a low to moderate probability of escape and a moderate risk to the
safety of the public in the event of escape, or
(ii)
requiring a moderate degree of supervision and control within the
penitentiary; and
(c)
minimum security where the inmate is assessed by the Service as
(i)
presenting a low probability of escape and a low risk to the safety of the
public in the event of escape, and
(ii)
requiring a low degree of supervision and control within the penitentiary.
|
Cote
de sécurité
17.
Le Service détermine la cote de sécurité à assigner à chaque détenu
conformément à l'article 30 de la Loi en tenant compte des facteurs suivants
:
a)
la gravité de l'infraction commise par le détenu;
b)
toute accusation en instance contre lui;
c)
son rendement et sa conduite pendant qu'il purge sa peine;
d)
ses antécédents sociaux et criminels, y compris ses antécédents comme jeune
contrevenant s’ils sont disponibles et le fait qu’il a été déclaré délinquant
dangereux en application du Code criminel;
e)
toute maladie physique ou mentale ou tout trouble mental dont il souffre;
f)
sa propension à la violence;
g)
son implication continue dans des activités criminelles.
DORS/2008-198,
art. 1.
18.
Pour l'application de l'article 30 de la Loi, le détenu reçoit, selon le cas
:
a)
la cote de sécurité maximale, si l'évaluation du Service montre que le détenu
:
(i)
soit présente un risque élevé d'évasion et, en cas d'évasion, constituerait
une grande menace pour la sécurité du public,
(ii)
soit exige un degré élevé de surveillance et de contrôle à l'intérieur du pénitencier;
b)
la cote de sécurité moyenne, si l'évaluation du Service montre que le détenu
:
(i)
soit présente un risque d'évasion de faible à moyen et, en cas d'évasion,
constituerait une menace moyenne pour la sécurité du public,
(ii)
soit exige un degré moyen de surveillance et de contrôle à l'intérieur du
pénitencier;
c)
la cote de sécurité minimale, si l'évaluation du Service montre que le détenu
:
(i)
soit présente un faible risque d'évasion et, en cas d'évasion, constituerait
une faible menace pour la sécurité du public,
(ii)
soit exige un faible degré de surveillance et de contrôle à l'intérieur du
pénitencier.
|
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1530-09
STYLE OF CAUSE: MARVIN
JEFFREY TEKANO v. ATTORNEY GENERAL OF CANADA
PLACE OF
HEARING: Vancouver, BC
DATE OF
HEARING: April
21, 2010
REASONS FOR JUDGMENT: GAUTHIER
J.
DATED: August
12, 2010
APPEARANCES:
|
Ms. Jennifer
Metcalfe
Ms. Frances
Kelly
|
FOR THE APPLICANT
|
|
Ms. Jennifer
Dagsvik
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Prisoner’s
Legal Services
Community
Legal Assistance Society
|
FOR THE APPLICANT
|
|
Myles J.
Kirvan
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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