Date: 20091211
Docket: T-802-09
Citation: 2009 FC 1272
Ottawa, Ontario, December 11,
2009
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
PETER
SCARCELLA
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
In April, 2006, the
Applicant, Mr. Peter Scarcella, was sentenced to nine years incarceration at a
federal penitentiary (see R. v. Scarcella, [2006] O.J. No. 1555). The
sentence was imposed following his conviction of conspiracy to commit murder
and conspiracy to commit an aggravated assault. These convictions are related
to a shooting incident in which Mr. Scarcella was involved and where an
innocent bystander was seriously injured.
[2]
Upon his admission to
the federal penitentiary system, Mr. Scarcella was subjected to an Intake
Offender Assessment process. As part of that intake process, a Security Intelligence
Officer with Correctional Services Canada (the Service) completed a referral
sheet under Commissioner’s Directive (CD) CD 568-3: Identification and Management of Criminal
Organizations
(CD 568-3) that
identified Mr. Scarcella as “boss” of the “Scarcella Traditional Organized
Crime Group”. Mr. Scarcella disputes this Traditional Organized Crime
(TOC) designation. He has pursued all remedies available to him to dispute the
designation, right up to and including a Third-level Grievance.
[3]
Before the
Court in this application is the Third-level Grievance Decision of the Senior
Deputy Commissioner (SDC) of the Service, dated April 28, 2009. The SDC denied
the grievance and upheld the TOC designation of Mr. Scarcella, as contemplated
by CD 568-3.
II. Issues
[4]
This
application raises the following issues:
1)
Is Mr.
Scarcella entitled to rely on the contents of a legal opinion of counsel to the
Service that was inadvertently disclosed to him?
2)
Is the
Third-level Grievance Decision unreasonable in that there was insufficient
reliable evidence to apply the TOC designation to Mr. Scarcella?
3)
Was the
Third-level Grievance Decision made contrary to s. 24 of the Corrections and Conditional
Release Act,
S.C. 1992, c.20 (CCRA) which requires the Service to ensure that information it uses is
accurate, complete and up to date?
III. Disclosure of Legal Opinion
[5]
The first question
before this Court is whether the Applicant should be able to rely on the
contents of a legal opinion that inadvertently fell into his hands, and was
subsequently sent to his counsel, Mr. Hill. The brief answer is “no”.
[6]
The
concept of solicitor-client privilege is firmly entrenched in our legal system;
protecting this privilege is in the public interest. Strong support for the
importance of this privilege can be seen in two recent Supreme Court of Canada
cases – Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2
S.C.R. 319 at paragraph 26; Canada (Privacy Commissioner) v. Blood Tribe
Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574 (Blood Tribe).
The privilege is necessary and essential for the proper functioning of our
legal system. Thus, the protection of solicitor-client confidentiality and
privilege ought to be as close as possible to being absolute. Furthermore,
solicitor-client privilege applies to all interactions between a client and the
lawyer; not merely to parts of legal opinion, but the whole advice or
recommendation (Blood Tribe, above, at para. 10).
[7]
In my view, this
letter is clearly subject to solicitor-client privilege. The document itself
contains, in a prominent position at the top, the notation that “This document
and all attachments are protected by solicitor-client privilege”. Further,
having reviewed the document, I am satisfied that it was a legal opinion
provided by the Department of Justice lawyer to the Service. The opinion was
given in the context of on-going litigation involving Mr. Scarcella; it was not
merely policy advice. The inadvertent disclosure did not result in a waiver of
the privilege. Given the importance of solicitor-client privilege to the
operation of our justice system, I am satisfied that any use of the information
contained in the opinion is not permissible in this judicial review.
[8]
Accordingly, the
document will not be admitted into these proceedings.
IV. Reasonableness
of the Decision
A. Background
[9]
The background to the
Third-level Grievance Decision is the TOC classification of Mr. Scarcella.
That designation was done pursuant to CD 568-3.
[10]
The purposes
of CD 568-3 (and the designation of TOC members) are stated, in the document,
to be as follows:
·
to recognize that
criminal organizations pose a threat to the safety and management of the
Service’s institutions;
·
to recognize
that membership and association in criminal organizations are significant risk
factors;
·
to prevent
members of criminal organizations to exercise influence and power in the
Service’s institutions;
·
to encourage
members to break their ties with criminal organizations.
[11]
CD 568-3
defines a criminal organization (at para. 9) as:
A group or association that is involved in ongoing illegal
activities. This includes groups, organizations, associations or other bodies
that were established in the community before their members were incarcerated,
as well as groups established in our institutions.
[12]
A member or
associate of a criminal organization is a “person associated to or involved
with a criminal organization” (at para. 8).
[13]
Mr. Scarcella
does not dispute the validity or provisions of CD 568-3. Rather, he objects to
how it was applied to him. His objection is understandable – CD 568-3 provides
that “membership and association with a criminal organization shall be
considered a significant risk factor when making any decision related to the
offender” (at para. 19). Thus, a TOC designation will be one factor in
decisions such as transfers, security classification, availability of temporary
releases and others. It should be noted, however, that improper use of
information on an inmate’s file may be the subject of judicial review before
this Court (see Brown v. Canada
(Attorney General)
2006 FC 463, 200
F.T.R. 143).
B. Standard
of Review
[14]
The parties are
agreed that the standard of review of the decision – insofar as this issue is
concerned – is reasonableness. As described by Justice Binnie in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at paragraph 47, a reasonable decision incorporates a number of elements:
A
court conducting a review for reasonableness inquires into the qualities that
make a decision reasonable, referring both to the process of articulating the
reasons and to outcomes. In judicial review, reasonableness is concerned mostly
with the existence of justification, transparency and intelligibility within
the decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
C. Analysis
[15]
The key argument of
Mr. Scarcella is that the
TOC designation is based on speculation, allegations and suspicions, rather
than fact.
[16]
In his
argument to the Third-level Grievance and to this Court, Mr. Scarcella appears
to ask that a criminal law standard be applied to any TOC finding. This
argument is seriously flawed. It is true that Mr. Scarcella has never been
convicted of an organized crime offence. However, a finding under the Criminal
Code, R.S.C. 1985, c. C-46, is not necessary for a TOC determination.
Further, the SDC is not required to make any finding beyond a reasonable doubt
as would be the case in criminal proceedings. In this regard, I agree with the
views of the SDC:
A designation under CD 568-3 is not
analogous to a criminal conviction and thus the policy does not require an
offender to be convicted of a criminal organization offence in order to be
designated. Rather, the designation can be supported from a number of different
sources including police information, reliable source information, criminal
involvement in a criminal organization activity, court documentation, etc.
[17]
In the
context of CD 568-03, the SDC was required to determine, based on the evidence
before him, whether Mr. Scarcella met the definition of TOC set out in CD
568-03. The question is: based on the evidence before the SDC, does the TOC
designation fall within the range
of possible, acceptable outcomes?
[18]
As referenced in his
decision, the SDC had a significant body of evidence before him. A review of
his decision demonstrates that the SDC reviewed and assessed the quality of all
of the evidence before him. I can do little better than to refer to, with
approval, the following analysis of the SDC:
The
threshold for designation under CD 568-3 is determined largely by the quality
and completeness of the information obtained as well as the reliability of the
source from which the information was received. In your case, the police
information relied on by CSC came from the York Regional Police Intelligence
Bureau and the Ontario CFSEU [Combined Forces Special Enforcement Unit]. These
are specialized units with in-depth knowledge of the composition and
functioning of criminal organizations and are often involved in complex
criminal investigations. Information from these sources is generally considered
very reliable and it is not the role of CSC security intelligence officers to
“re-investigate” the work done by the police. In particular, the information
provided by the CFSEU, which is summarized in the SIR, is comprehensive and
describes in detail your activities and criminal affiliations. It also received
a reliability rating of “completely reliable” . . .
[19]
In sum, there was an
ample factual record to support the TOC designation. The reasons of the SDC
show the existence of justification, transparency and intelligibility within
the decision‑making process. The decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
V. Application
of s. 24 of the CCRA
[20]
In reaching his
decision, the SDC was required to comply with s. 24(1) of the CCRA,
which provides that:
|
24. (1)
The Service shall take all reasonable steps to ensure that any information
about an offender that it uses is as accurate, up to date and complete as
possible.
|
24. (1)
Le Service est tenu de veiller, dans la mesure du possible, à ce que les
renseignements qu’il utilise concernant les délinquants soient à jour, exacts
et complets.
|
[21]
Mr. Scarcella
observes that the information relied on by the SDC in reaching the Third-level
Grievance Decision dates back to 2006, whereas the decision under review was
only made in 2009. Accordingly, Mr. Scarcella submits that the SDC was in
breach of s. 24(1) by not ensuring that the information was “up to date”.
[22]
There is no doubt
that s. 24(1) of the CCRA places an obligation on the Service to make
sure that information used by its staff to make decisions on offenders is
accurate, complete and current (see Tehrankari v. Canada (Correctional
Service)
(2000), 188 F.T.R. 206, 38 C.R. (5th) 43, at
para. 50). Parliament used the plain words of s. 24(1) to make sure that
“reliance on erroneous and faulty information is contrary to proper prison
administration, incarceration and rehabilitation” (Tehrankari, above, at
para. 51). Perfection is not required; rather, the Service must take
“reasonable steps” to meet this obligation. Mr. Scarcella does not dispute the
accuracy of the information that was considered by the SDC. Instead, he complains
that the data was not necessarily up to date.
[23]
The problem with Mr.
Scarcella’s position is that there is no evidence that any further information
was available or that the information considered was somehow erroneous. Mr.
Scarcella could have adduced further evidence to show that, while he may
have been associated or involved with a criminal organization, that was no
longer the case. He did not do so. Given the nature of the information and the
fact that nothing new was brought forward by Mr. Scarcella, I am satisfied that
the SDC was entitled to rely on information before it as “accurate, up to date
and complete”. There was, on these facts, no obligation on the Service to go so
far as to ask the police to re-investigate its initial opinions, or to conduct
investigations on its own.
VI. Conclusion
[24]
For these reasons, I
will dismiss this application for judicial review.
[25]
In my discretion and
having heard submissions from the parties, I will award costs to the
Respondent, at the usual level of the middle of Column 3 of Tariff B.
[26]
With respect to the legal
opinion, which I found to be subject to solicitor-client privilege, I note that
counsel for Mr. Scarcella undertook to return all copies to the Respondent. In
addition, I will order that any copies contained in the Court’s Registry be
returned to the Respondent.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1.
the application for
judicial review is dismissed;
2.
costs are awarded to
the Respondent at the usual level of the middle of Column 3 of Tariff B; and
3.
all copies of the
legal opinion that was included at Tab F of the Applicant’s Affidavit and that
was ordered sealed by the Order of Madam Prothonotary Tabib on August 5, 2009, shall be
returned forthwith by the Registry or counsel for Mr. Scarcella (as
applicable) to the Respondent.
“Judith
A. Snider”
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