Date: 20080107
Docket: T-1740-06
Citation: 2007 FC 1277
Ottawa, Ontario, January
7, 2008
PRESENT: The Honourable Justice Frenette
BETWEEN:
ALLAN
MacDONALD
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
AMENDED REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The
Applicant, Allan MacDonald, seeks judicial review pursuant to section 18.1 of
the Federal Courts Act, R.S.C. 1985 c. F-7 of a decision of the
Correctional Service of Canada (CSC) to transfer him to an institution
significantly farther from his family and community than the institution to
which he was originally assigned.
FACTS
[2]
The
Applicant is 59 years old. He has been serving, since 2000, a life sentence for
first-degree murder of an off-duty police officer in his community of Penetanguishene,
Ontario. His first
chance for parole will be in 2022.
[3]
Prior
to his arrest, the Applicant was a well-known member of his community, being
both a fireman and the Chairman of the Penetanguishene Police Services Board.
He suffered from depression and alcoholism. His only criminal conviction until
the offence was for driving under the influence and had occurred a few months
earlier.
[4]
The
Applicant was originally assessed by CSC at the Millhaven Institution
Assessment Unit. Part of this assessment related to his designation as a High
Profile Offender, a status based on the media and community interest in his
case. Pursuant to this assessment, it was determined that he should be placed
at Fenbrook Institution in Gravenhurst, Ontario, approximately 60 miles from
Penetanguishene. This institution was near his family and friends, and provided
the programs identified as necessary for Mr. MacDonald’s correctional plan.
[5]
Shortly
after that initial assessment, the Applicant’s security level changed such that
he no longer met the criteria to remain at Fenbrook. He was transferred to
Joyceville Institution (approximately 250 miles from Penetanguishene) and
remained there from January 2001 to January 2005, at which point his security
level was re-assessed and he was transferred back to Fenbrook.
[6]
On
January 12, 2006, the Applicant was given a Notice of Involuntary Transfer,
meaning that he was to be sent back to Joyceville. There had been no changes to
his security or correctional plan in the twelve months that he was at Fenbrook;
that is, he still met the criteria to remain there. The Applicant submitted a
rebuttal of that notice, as permitted. Nevertheless, he was transferred to
Joyceville.
[7]
The
stated reason for the transfer was the Penetanguishene community’s response to
having Mr. MacDonald so close. The Warden apparently received calls from the
widow of the slain officer and the Canadian Police Association opposing his
presence at Fenbrook. He also apparently received letters from friends and
family of Mr. MacDonald, asking to keep him nearby so that they could visit
him.
[8]
In
his decision, the Warden noted that the original decision to transfer Mr.
MacDonald to Fenbrook had focussed on “program completion and closer proximity
of Fenbrook to family for Mr. MacDonald.” The Warden then took the
following additional considerations into account:
The index offence took place in a very
near proximity to the community near Fenbrook Institution. I have taken into
account the sensitivity surrounding this case from the victim impact perspective.
In addition, I have focussed on the sensitivity of this case in terms of
impacts on the community where the crime took place. I have assessed very
carefully in terms of public safety, the proximity of Fenbrook to where the
crime took place. As noted above, it should be noted that Fenbrook is
substantially closer to where the crime took place versus Joyceville.
RELEVANT LEGISLATION AND
GUIDELINES
[9]
The relevant provisions
are set out below:
|
Corrections and Conditional Release Act
R.S.C 1992, c. 20:
28. Where a person is, or is to be,
confined in a penitentiary, the Service shall take all reasonable steps to
ensure that the penitentiary in which the person is confined is one that
provides the least restrictive environment for that person, taking into
account
(a) the degree and kind of custody and control
necessary for
(i) the safety of the public,
(ii)
the safety of that person and other persons in
the penitentiary, and
(iii) the security of the penitentiary;
(b) accessibility to
(i) the person’s home community and family,
(ii) a compatible cultural environment, and
(iii) a compatible linguistic environment; and
(c) the availability of appropriate programs and
services and the person’s willingness to participate in those programs.
29. The Commissioner may authorize
the transfer of a person who is sentenced, transferred, or committed to a
penitentiary to:
(a) another penitentiary in accordance with the
regulations made under paragraph 96(d), subject to section 28; or
(b) a provincial correctional facility or hospital in
accordance with an agreement entered into under paragraph 16(1)(a) and any
applicable legislation
Commissioner’s Directive 710-2: Transfer
of Offenders (Issued under the authority of the Commissioner of the Correctional
Service of Canada) April 10,
2006:
Policy Objectives:
1. To transfer offenders to meet
their individual security requirements and program needs while ensuring
public safety and the protection of offender rights.
2. To ensure public safety by
transferring offenders to an environment most suitable to addressing their
risks and needs.
[…]
7. Involuntary transfers are transfers
initiated by CSC for reasons stated in section 28 of the CCRA.
|
Loi sur le système correctionnel et la
mise en liberté sous condition L.R.C. 1992, ch. 20 :
Incarcération : facteurs à prendre en
compte
28. Le Service doit s’assurer, dans la
mesure du possible, que le pénitencier dans lequel est incarcéré le détenu
constitue le milieu le moins restrictif possible, compte tenu des éléments
suivants :
a) le degré de garde et de surveillance
nécessaire à la sécurité du public, à celle du pénitencier, des personnes qui
s’y trouvent et du détenu;
b) la facilité d’accès à la collectivité à laquelle il
appartient, à sa famille et à un milieu culturel et linguistique compatible;
c) l’existence de programmes et services qui lui
conviennent et sa volonté d’y participer.
Transfèrements
29. Le commissaire peut autoriser
le transfèrement d’une personne condamnée ou transférée au pénitencier, soit
à un autre pénitencier, conformément aux règlements pris en vertu de l’alinéa
96d), mais sous réserve de l’article 28, soit à un établissement
correctionnel provincial ou un hôpital dans le cadre d’un accord conclu au titre
du paragraphe 16(1), conformément aux règlements applicables.
Directive du Commissionaire 710-2:
Transfèrement de Délinquants :
Objectifs de la Politique:
1. Transférer les délinquants de
manière à répondre à leurs besoins individuels en matière de sécurité et de
programmes tout en assurant la sécurité du public et en sauvegardant les
droits des délinquants.
2. Assurer la sécurité du public
en transférant les délinquants dans le milieu qui répond le mieux à leurs
besoins et est le mieux adapté au risque qu'ils présentent.
[…]
7. Transfèrement non sollicité :
transfèrement effectué sur l'initiative du SCC pour des motifs prévus à
l'article 28 de la LSCMLC.
|
ISSUES
[10]
(a) What
is the standard of review to be applied in this case?
i. What is the
applicable standard of review?
[11]
The
Applicant pleads that the applicable standard of review in this case, because
it involves a breach of the duty of fairness, should be correctness, see Coscia
v. Canada (Attorney General), 2005 FCA 132, [2005] F.C.J. No. 607 . The Coscia
case related to a ruling of the National Parole Board, which confirmed a denial
of parole on the basis of danger to the public (inter alia). The
Court of Appeal applied the standard of review of correctness because the
issue was whether there had been a breach of procedural fairness.
[12]
In
my assessment, the facts were very different from the one in the present case
and the interpretation involved a different text of law. The Applicant also
relied upon Demaria v. Regional Classification Board, [1987] 1 F.C. 74,
[1986] F.C.J. No. 493. The Demaria case addressed the possible of an
involuntary transfer of an inmate serving life imprisonment for murder. The
transfer order was quashed because the allegation of bringing cyanide into the
institution had not been proven; however the standard of review
was not discussed.
[13]
The
Respondent proposes a standard of review of patent unreasonableness quoting Bachynski
v. William Head Institution, [1995] B.C.J. No. 1715.
[14]
In
that case, an application for an order of habeas corpus was dismissed. It
was an application to undo a transfer to another institution, i.e from medium
to maximum security.
[15]
Invoking
a standard of patent unreasonableness, the Court rejected the application
because the administration had fairly and reasonably treated the Applicant.
[16]
In
Collin v. Lussier, [1983] F.C.J. No. 35, [1983] 1 F.C. 218, an order to transfer
a convicted murderer, from a medium security institution to a maximum security
one, allegedly without valid reasons, was considered to constitute a punishment
and a reduction of freedom. Justice Decary did not elaborate on the standard of
review; he based his decision on the violation of the Applicant’s rights as
guaranteed in section 7 of the Canadian Charter of Right and Freedom.
[17]
In
the recent case of Russell v. Canada (Attorney
General),
[2007] FC 1162, [2007] F.C.J. No. 1514, Justice Tremblay-Lamer applied a
standard of review of reasonableness simpliciter to a decision of the third
level of a grievance panel of the Correctional Service of Canada.
[18]
Justice
Anne Mactavish noted in Dearnley v. Canada (Attorney
General), 2007
FC 219, [2007] F.C.J. No. 308, that some deference is clearly due to the
interpretation of the Commissioner’s Directives.
[19]
In
the present case, I note that there is no privative clause or statutory right
of appeal, although it is clearly foreseen that an inmate may pursue a “legal
remedy” (Corrections
and Conditional Release Regulations SOR/92-620 s. 81) (Regulations). This suggests
less deference. However, the warden has expertise in the weighing and
interpretation of the Commissioner’s Directives and the interests of inmates, whereas
the Court’s expertise in this area is limited. The stated purpose of the
statute is to carry out sentences and to assist in rehabilitation and
reintegration into society of offenders (s. 3), while protecting the safety of
the public. The nature of the question here is a question of fact and
discretion. These last three factors favour more deference to the
decision-maker.
[20]
As
a result, I think that the standard of review in this case should be patent
unreasonableness.
ii. Did the Warden
err in transferring Mr. MacDonald?
[21]
An
involuntary transfer is a transfer initiated by CSC in order to better satisfy
section 28 of the CCRA, reproduced above. That section requires consideration
of the safety of the public, of the inmate(s), the security of the
penitentiary; the accessibility to the inmate’s community, family, culture, and
language; rehabilitation and the availability of programs and services useful
for the inmate. The Regulations and the Commissioner’s Directives describe the
procedural steps, such as the requirement for notice to the inmate to
accomplish involuntary transfer.
[22]
The
Applicant argues that the decision was based solely on the complaints of the victims’
widow and representations made by the Police association of Canada. He pleads
that these unilateral representations should not have been considered or should
not have been determinative because they are not mentioned in section 28 of the
CCRA.
[23]
Furthermore,
family and friends of the Applicant protested the transfer by letters sent to
the CSC but it did not consider them.
[24]
The
Respondent submits that “[t]he community outcry is a valid factor to be
considered in the placement of an inmate to be balanced against the other
factors….”He argues that among the factors enumerated in section 28, he bases
himself specifically upon the “safety of the public” factor.
[25]
To
him, “safety of the public” includes both physical and psychological aspects of
Harm to the public. The Applicants contest this point of view arguing that if
the legislator had wished to include the “public outcry” factor, he would have
added it to section 28. Furthermore, he adds “safety of the public” is not
affected by the transfer of an inmate from one penal institution to another,
since he remains incarcerated. I must agree with that proposition.
[26]
Nowhere
in the CCRA, the Regulations, or the Commissioner’s Directive on the Transfer
of Offenders is “community outcry” even alluded to. On the contrary, all three
of those documents specifically identify that accessibility for the inmate to
their family and rehabilitation of fundamental importance.
[27]
Nor
does the Respondent explain how the Applicant’s presence in the Fenbrook
facility could put at risk the safety of the public, which is the only
consideration of the public interest described in section 28 and mentioned in
the decision. No reported cases in Canada support the warden’s
inference that the very fact that an inmate is a high-profile offender could
put the public at risk.
[28]
Even
the proposition put forward (and rejected) in Musitano v. Canada (Attorney
General), [2006] O.J. No. 1152 that large amounts of media attention
in the case of a transfer to the community might destabilize the security of
the institution cannot be argued here, as Mr. MacDonald was already at
Fenbrook and apparently in full safety and security despite the steady media
and community interest from Penetanguishene. In any case, the Respondent has
not raised the issue of the security of the penitentiary.
[29]
The
Respondent has not demonstrated any basis from which the Warden could have
drawn the conclusion that Mr. MacDonald should have been transferred. The sole
factor to which he refers in the Notice of Involuntary Transfer does not seem
to have any support in law or policy.
[30]
In
conclusion, the decision of the CSC cannot stand and the order of involuntary transfer
of the Applicant to the Joyceville Institution must be annulled.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is granted and the CSC decision to involuntary
transfer the Applicant to the Joyceville Institution, is quashed, with costs
against the Respondent.
“Orville
Frenette”
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