Date:
20120717
Docket:
T-610-11
Citation:
2012 FC 894
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa, Ontario, July 17, 2012
PRESENT:
The Honourable Justice Scott
BETWEEN:
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STEVE HURDLE
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS
FOR ORDER AND ORDER
I. Introduction
[1]
This
is an application for judicial review submitted by Steve Hurdle (the applicant)
pursuant to section 18.1 of the Federal Courts Act, RSC (1985), c F-7, regarding
instructions given by his parole officer (his officer) Christine Lévesque on
March 10, 2011, and other instructions indicating he was to avoid certain
places, refrain from certain activites and submit a weekly report of his
purchases.
[2]
For
the following reasons, the Court dismisses the applicant's application for
judicial review.
II. Facts
[3]
The
applicant's long-term supervision order has been in force since July 9, 2007,
and will end on March 29, 2015.
[4]
The
applicant currently resides at the Sherbrooke Community Correctional Centre [CCC],
where he is under the supervision of his officer, Christine Lévesque.
[5]
On
March 10, 2011, his officer gave him a pass with a pre-established schedule of
outings as she had done in the preceding weeks. On the pass is printed the
following: [translation] "has
a special condition to note all movements. May go smoke 3x15 min after his
curfew". The applicant agrees to respect the pre-established outings
established by his agent and the related conditions.
[6]
Moreover,
the applicant is also challenging other decisions by his officer, alleging they
constitute modifications to his long-term supervision order and submits the
entries from the Offender Management System that concern him for the period of
September 25, 2010, to March 28, 2011. The decisions are about submitting receipts
weekly, attending a place of worship, playing badminton at the community centre
and going to the movies.
[7]
The
respondent presents a preliminary motion to dismiss the application for
judicial review, while presenting alternative arguments on the merits of the
case.
III. Legislation
[8]
The
relevant provisions of the Corrections and Conditional Release Act, SC,
1992, c 20 [the Act] and the Corrections and Conditional Release Regulations,
SOR/92-620 [the Regulations], are reproduced in the appendix to these reasons.
IV. Issues
1.
Is the application for judicial review
admissible?
2.
If so, are the officer's instructions
reasonable?
V. Position
of the parties
A. Applicant's
position
[9]
The
applicant claims that the Correctional Service of Canada [CSC], through his
officer, is imposing an overly restrictive confinement schedule at the Sherbrooke
CCC, contrary to his long-term supervision order. He believes that subsection
134.1(2) of the Act is unequivocal regarding the exclusive jurisdiction of the
National Parole Board (the Board) to impose supervision conditions. On this,
the applicant claims that the CSC is not respecting the long-term supervision
order and is holding him at the Sherbrooke CCC on illegal grounds.
[10]
He
claims that the Board imposed only that he report in at 11:30 p.m. and that all
the other restrictions imposed on him are in violation of subsection 134.1(2) of
the Act.
[11]
The
applicant also claims that the Board withdrew the condition that he was to
provide a financial report to his officer. However, despite this decision by
the Board, his officer still required weekly submissions of his receipts; he
associated this to producing a financial record.
[12]
Finally,
he claims that he is unable to get to his place of worship, go to the movies or
play badminton. According to the applicant, his officer's instructions go
against the long-term supervision order and, therefore, are in violation of
sections 134.1 and 134.2 of the Act.
[13]
In
response to the respondent's motion to dismiss, the applicant claims that the
Act does not impose an obligation to exhaust the complaint and grievance process
before presenting a judicial review before the Court, particularly considering
the strict restrictions that are imposed on him in violation of section 134.1 of
the Act.
B. Respondent's
position
[14]
The
respondent claims that the application for judicial review is inadmissible
because it is without merit, untimely and the administrative recourse has not
been exhausted (see Spidel v Canada (Attorney General), 2010 FC 1028 at paras
14 to 18 [Spidel]). He first makes a preliminary objection based on the
inadmissibility of this application for judicial review. Under the terms of
section 134.2 of the Act, the applicant's officer may impose certain
instructions on him to ensure that the conditions of his release are respected.
The respondent claims that if the applicant is not satisfied with the officer's
instructions, he may file a grievance under sections 90, 91 and 96(u) of
the Act and section 74 of the Regulations.
[15]
The
applicant also wishes to have his officer's instructions reviewed. The
respondent feels that these instructions do not constitute decisions of a
federal board, commission or other tribunal within the meaning of section 2 of
the Federal Courts Act.
[16]
Additionally,
the respondent notes that subsection 18.1(2) of the Federal Courts Act states
that an application for judicial review must be filed in the thirty days
following the decision of the federal board, commission or other tribunal. As a
result, all allegations in part B of the applicant's proposals are
inadmissible. These allegations involve the production of receipts, attending a
place of worship, and going to the movies as well as playing badminton at the
community centre.
[17]
If
the Court finds that the applicant's application for judicial review is
admissible, the respondent claims that the officer's instructions are
reasonable in this case and the officer is entitled to impose them on the
applicant under section 134.2 of the Act. These instructions are to prevent
violations of the conditions imposed and to protect Canadian society. For these
reasons, the Court must dismiss the applicant's application for judicial
review.
VI. Analysis
1.
Is the applicant's application for
judicial review admissible?
[18]
In
the application for judicial review before the Court, the applicant seeks to
have the officer's instructions overturned considering they are unreasonable
and because he feels that only the Board has the power to revise his conditions
pursuant to section 134.1, since they fall under the long-term supervision
order.
[19]
The
respondent claims that the application for judicial review is inadmissible
because the applicant did not exhaust the recourse provided by the internal
complaint and grievance process and therefore advances a preliminary objection.
[20]
The
Court allows the respondent's preliminary objection and dismisses the
applicant's application for judicial review for the following reasons.
[21]
Pursuant
to section 74 of the Regulations, the applicant must make "every
effort...to resolve the matter informally" or "submit a written
complaint, preferably in the form provided by the Service, to the supervisor of
that staff member." According to the evidence on record, the applicant did
not conform to this section of the Regulations.
[22]
The
agent responsible for the applicant adjusts the applicant's conditions for
outings weekly. These adjustments according to the applicant's progress in his
reintegration work are not, in the Court's opinion, an usurpation of the
Board's power but a delegation intended under section 134.2 of the Act and the
decisions made weekly are subject to the complaints and grievance procedure.
[23]
In
Spidel, supra, at paras 16-17, we learn that "there must be
compelling or exceptional circumstances before the Court will exercise its
discretion to trump the grievance process... The grievance process generally
has been held to be adequate" (see Giesbrecht v Canada (1998), 148 FTR 81 (T.D.)
and Ewert v Canada (Attorney
General), 2009 FC 971).
[24]
Boivin J. wrote, in Marleau
v Canada (Attorney General), 2011 FC 1149, at paras 33 and 34:
[33] The Court also points out that the case law demonstrates that, in
principle, a person can turn to the courts but only after having exhausted all
possible remedies available in the administrative process. As a general rule,
therefore, judicial review should not be allowed where an adequate alternative
remedy exists (Harelkin v University of Regina, [1979] 2 S.C.R. 561, 26 NR 364; Giesbrecht v Canada, [1998] FCJ
No 621, 148 FTR 81; Vaughan v Canada, 2005 SCC 11, [2005] 1 S.C.R. 146).
[34] The doctrine of exhaustion was recently clearly described by the
Federal Court of Appeal in C.B. Powell Ltd (above). The Federal Court of
Appeal reiterated that, to prevent fragmentation of the administrative process
and piecemeal court proceedings, absent exceptional circumstances, parties
cannot proceed to the court system until the administrative process has run its
course and has finished. The Federal Court of Appeal also confirmed that very few
circumstances qualify as “exceptional”.
[25]
Regarding the exceptional
circumstances that would allow for the complaints and grievances process to be
bypassed, Martineau J. stated, in Rose v Canada (Attorney General), 2011
FC 1495 at para 35:
[35] According to the jurisprudence, the Court’s discretion with respect
to hearing a judicial review where it is established that an adequate
alternative remedy exists is subject to consideration of whether there are
exceptional circumstances such as cases of emergency, evident inadequacy in the
procedure, or where physical or mental harm is caused to an inmate (Ewert v Canada (Attorney General), 2009 FC 971 at para 34 [Ewert];
Spidel v Canada (Attorney General), 2010 FC 1028 at para 12; Gates v
Canada (Attorney General), 2007
FC 1058 at para 26 [Gates]).
[26]
In this case, it is clear
that the Court is not faced with an exceptional case that would warrant bypassing
the complaints and grievance process set out in the Regulations. With no
evidence to convince us that an exceptional circumstance exists to justify the
intervention of the Court, we must decline (McMaster v Canada (Attorney
General), 2008 FC 647 ; May v Ferndale Institution, [2005] 3 SCR
809). "[T]he application for judicial review must
be directed to the decision made at the last level of the internal procedure,
not the decision that could be challenged through internal mechanisms." (see Reda v Canada (Attorney General), 2012 FC
79 at para 29 [Reda]).
[27]
Moreover, the evidence on
file does not allow the Court to find that the complaints and grievances
process is inadequate in this case.
[28]
The applicant's application
for judicial review is therefore dismissed, considering it is premature and the
evidence on file does not allow us to conclude we have an exception in this
case.
[29]
Moreover, counsel for the
applicant presented a last argument in response, that the complaints and
grievance procedure did not apply in this case but only to Part II of the Act.
[30]
Exceptionally, the Court
allowed him to submit written notes in support of this claim, despite the lack
of allegations on this subject in his memorandum. Counsel for the respondent
replied within the agreed upon deadline.
[31]
The applicant also claims
that under sections 90 and 97 of the Act, a grievance is only possible for
matters under the jurisdiction of the Commissioner regarding the management of
the Correctional Service, as stated at section 4 of the Act and any other
application of this part of the Act. Since sections 90 and 97 are an integral
part of Part I of the Act, the applicant claims that only issues under Part I
are subject to the complaints and grievance process. Since the application for
judicial review is based on section 134.2, under Part II of the Act, the
applicant feels that this means a grievance cannot be filed against a decision
made under section 134.2 because these matters are not under the Commissioner's
jurisdiction.
[32]
The respondent claims that
pursuant to sections 90 and 91 of the Act, an offender who feels aggrieved or
treated in a manner inconsistent with the Act or the policies on issues that
are under the jurisdiction of the Commissioner may make use of the complaint
and grievance process to resolve the conflict. He also refers to paragraph 11 of
Commissioner's Directive 081. Moreover, the respondent notes that sections 90 and
91 of the Act do not include any exclusions regarding its application to
individuals covered by Part II of the Act. The respondent feels that all
offenders have access to the complaints and grievance process for issues under
the jurisdiction of the Commissioner, and this includes long-term offenders.
[33]
He also notes that section
2.1 of the Act clearly states that a long-term offender may make use of the
complaints and grievance process as any other offender. According to the
respondent, access to the complaints and grievance process is determined by the
issue and not by the complainant's designation as a long-term offender. Section
134.1 requires that the long-term offender must respect the conditions
prescribed by the National Parole Board of Canada.
[34]
In his or her supervisory
role, the SCC officer may give the offender instructions to prevent the
violation of the conditions imposed or to protect society. The officer has
powers granted on behalf of the Commissioner (see section 2, paragraph 5(d),
and subsection 6(1) of the Act). Therefore, the
supervision of long-term offenders is under the jurisdiction of the
Commissioner. Moreover, many Commissioner's Directives make note of this supervisory
jurisdiction (Commissioner's Directive CD 719: Long-Term Supervision Order). As
a result, any conflict that arises between the officer and the offender is
under the jurisdiction of the Commissioner and is resolved through the
complaint and grievance process.
[35]
This
is why:
An offender being supervised in the community may
submit a complaint or grievance to his/her Parole Officer or to the designated
staff member within the parole office, community residential facility or
Community Correctional Centre (see article 14 of Commissioner's Directive 081 on
Offender Complaints and Grievances).
[36]
Section
2 of the Regulations provides the following definition of the term "parole
supervisor":
"parole
supervisor"
"parole supervisor" has the same meaning as in subsection 134(2) of the Act; (surveillant de liberté conditionnelle)
[37]
Subsection
134(2) of the Act states that a "parole supervisor" means a staff
member as defined in subsection 2(1), or a person entrusted by the Service with
the guidance and supervision of an offender on parole, statutory release or
unescorted temporary absence.
[38]
The
same definition applies for offenders who are under long-term supervision
orders, in accordance with subsection 134.2(2).
[39]
Since
the parole officer includes an employee of the Service or a person entrusted by
the Service with the guidance and supervision of an offender who is on parole,
statutory release or unescorted temporary absence, the Commissioner may, under
paragraph 5(d) of the Act, supervise the long-term supervision of
offenders. Thus, the officers' decisions fall under the Commissioner's supervision
powers.
[40]
The
complaints and grievance process is under sections 74 to 82 of the Regulations.
In Reda, supra, at para 17, Madam Justice Bédard describes the
complaint and grievance procedure as follows:
It is an
administrative process composed of four levels. An
offender who is dissatisfied with an action or a decision by a CSC employee
must first submit a complaint to that employee’s supervisor. Where the
employee’s supervisor refuses to review the complaint or where the offender is
not satisfied with the supervisor’s decision, the offender may then submit a
grievance. The grievance procedure consists of three levels, with the decision
of the CSC Commissioner or his or her representative being the last level.
[41]
Moreover, paragraphs 7 and 8 of the SCC guidelines 081-1: Offender
Complaints and Grievances, state:
7. The four levels of the offender complaint and grievance process are:
a.
complaint - submitted by the offender at the
institution/district parole office and responded to by the supervisor of the
staff member whose actions or decisions are called into question;
b.
first-level
grievance (institution/district parole office)
- submitted to the Institutional Head for response;
c.
second-level
grievance (Regional Headquarters) - submitted
to the Regional Deputy Commissioner for response; and
d.
third-level
grievance (National Headquarters) - submitted
to the Commissioner for response.
8. Some grievances must be
automatically initiated at higher levels than the complaint level, such as:
a.
allegations of harassment, sexual harassment or
discrimination - first
level;
NOTE: Grievances containing allegations of harassment, sexual harassment or
discrimination against the Institutional Head must be initiated at the second
level
b.
submissions regarding intra-regional involuntary
transfers - second level;
c.
submissions concerning an appeal of a decision
rendered on a claim against the Crown - second
level
d.
submissions regarding segregation placement
decisions/24-hour reviews - second
level;
e.
submissions regarding inter-regional transfers -
third level;
or
f.
submissions concerning transfers to/from the
Special Handling Unit - third
level.
[42]
Although the SCC directives and guidelines are merely reference
tools, they show us that there is a complaint and grievance process for
long-term offenders.
[43]
Moreover, the Act does not exclude Part II from the complaint and
grievance process. On the contrary, the parole officer's decisions or instructions
are subject to the supervisory powers pursuant to section 5 of the Act.
[44]
The Court therefore
dismisses the applicant's last argument because it is clear that the complaint
and grievance process is not limited to Part II of the Act.
[45]
The Court thereby finds that the doctrine of exhaustion must apply
in this case and decides to exercise its discretion to not hear the application
for judicial review against the decision (see Harelkin v University of Regina,
[1979] 2 S.C.R. 561; Reda, supra).
[46]
Lastly, counsel both claim that the opposing
party should be responsible for costs, should the decision be in their favour.
VII. Conclusion
[47]
The Court allows the
respondent's motion to dismiss since the applicant must first exhaust the
recourse provided at section 74 of the Regulations. Therefore, the applicant's
application for judicial review is dismissed, with costs.
ORDER
THE
COURT DISMISSES the applicant's application for judicial review,
with costs.
"André
F.J. Scott"
Certified
true translation
Elizabeth
Tan, Translator
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