Date: 20120423
Docket: T-282-11
Citation: 2012 FC 464
Ottawa, Ontario,
April 23, 2012
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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SEBASTIAN CERRA
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review by
Sebastian Cerra challenging a third-stage grievance decision rendered by the
Senior Deputy Commissioner (Deputy Commissioner) of the Correctional Service of
Canada (Corrections) on January 20, 2011.
[2]
Mr. Cerra is a federal inmate serving a sentence
at the Mountain Institution in Agassiz, British Columbia.
His complaint against Corrections concerns its practice of waking him from
sleep on a recurring basis throughout the night. He asserts that this practice
deprives him of sleep and constitutes cruel and unusual punishment.
[3]
As initially framed, Mr. Cerra’s grievance
alleged that correctional officers were deliberately waking him on an hourly
basis. It is at least implicit in the grievance that Mr. Cerra’s concern
was with the behaviour of certain correctional officers and not with the
lawfulness of the Corrections policy on inmate counts and security patrols. In
his arguments to the Court, Mr. Cerra seemed to be challenging both the policy
and its method of execution.
[4]
Because this is an application for judicial
review, the Court is limited to the assessment of the reasonableness of
the impugned decision. It is not appropriate to conduct such a review by having
regard to evidence or arguments that were not before the Deputy Commissioner. I
would add to this that the Corrections policy that is at the root of Mr.
Cerra’s complaint has previously been upheld by this Court in Wild v Canada (Correctional Services), 2004 FC 942, 256 FTR 240 [Wild]. In that case, Justice
Edmond Blanchard found the policy in question to be “justified and desirable in
an institutional setting to ensure public safety and the safety of the inmates”:
Wild at para 44. At the same time, Justice Blanchard observed that the
security policy was required to be executed with minimal disruption to the
inmates or, in the language of Article 8 of the policy, “in the least intrusive
manner possible”.
[5]
The security policy mandates frequent security
checks of all inmates throughout the night. It requires correctional
officers to verify that each inmate is alive. It seems to me, as it did to
Justice Blanchard in Wild, above, that it is inevitable that inmates
will be awoken from time to time during security rounds. It is not a requirement,
however, that inmates be roused from sleep on an hourly basis to ensure that
they are breathing. And it goes without saying that the deliberate harassment
of an inmate by correctional officers would be unlawful and a violation of
the statutory obligation to treat inmates humanely.
[6]
There is, however, nothing in the record before
me to establish that the Deputy Commissioner erred in dismissing Mr. Cerra’s
grievance. The decision is well supported by the evidence cited and it is,
therefore, a decision that is within “a range of possible, acceptable outcomes
which are defensible in respect of the facts and the law”: see Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59,
[2009] 1 S.C.R. 339, citing Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47, [2008] 1 S.C.R. 190.
[7]
The record discloses that Mr. Cerra’s grievance
was treated seriously by Corrections. Noise levels were monitored for a
period of time to ensure that correctional staff was adhering to good practices
and following policy and no violations were identified. The Deputy Commissioner
noted that, at the initial stages of his grievance, Mr. Cerra had failed to
identify any specific incidents to support his complaint. Mr. Cerra also
offered no evidence from other inmates to corroborate his evidence of
deliberate harassment and Corrections’ own enquiries turned up no such
evidence.
[8]
In argument to the Court, Mr. Cerra was unable
to identify a reviewable error in the Deputy Commissioner’s decision. Indeed,
it was apparent from his submissions that he misunderstood the limitations that
are inherent in the Court’s judicial review jurisdiction. The Court does not
have the unfettered authority to set aside such a decision, but instead must
pay considerable deference to the findings and conclusions of the initial
decision-maker. There is no legal basis for the Court to determine that the
Deputy Commissioner’s decision was unlawful or unreasonable. Mr. Cerra’s
application is dismissed with costs payable to the Respondent in the amount of
$250 inclusive of disbursements.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is dismissed with costs payable to the
Respondent in the amount of $250 inclusive of disbursements.
"R.L. Barnes"
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