Date: 20070108
Docket: T-997-03
Citation: 2007 FC 14
Ottawa,
Ontario, January 8, 2007
Present: The
Honourable Mr. Justice Blanchard
BETWEEN
GEORGE FLYNN
Applicant
and
ATTORNEY
GENERAL
OF
CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
While he was incarcerated at the La Macaza
Correctional Institution, applicant George Flynn’s contact visits with his
common-law wife were suspended.
1. Introduction
[2]
This is an application for a writ of mandamus
under sections 18 and 18.1 of the Federal Courts Act, L.R. (1985), c.
F-7, s. 1; 2002, c. 8, s. 14, in respect of the decision dated June 6, 2003 by
the Commissioner of the Correctional Service of Canada (the CSC) in the matter
of a third-level grievance. That decision upheld the indefinite suspension of
the applicant’s contact visits with his common-law wife, Elizabeth Boucher.
[3]
The applicant seeks the following orders: an
order setting aside the CSC Commissioner’s decision; an order to share all
information held by the CSC for all proceedings initiated in respect of the La
Macaza Warden’s decision to suspend the applicant’s contact visits and in
respect of the subsequent second- and third-level determinations upholding the
Warden’s decision; an order compelling the respondent to correct the
applicant’s record so as to expunge all erroneous information concerning the
allegations made against the applicant and his common-law wife. Finally, the
applicant seeks any other relief that the Court may deem appropriate.
[4]
At the hearing, the parties informed the Court
that the applicant, having served out his sentence, is no longer incarcerated
at La Macaza Institution. Although the parties acknowledge that the principal
request in this judicial review, namely, the issuance of a writ of mandamus,
is now moot, they are nevertheless asking the Court to consider the arguments
of the parties and to rule on the issues at bar based on their merits. The
Court has been informed that the applicant has initiated a civil action in this
Court against the respondent and that the matter is currently in abeyance
pending the outcome of this judicial review application. In R. v. Grenier,
2005 FCA 348, at paragraph 20, the Federal Court of Appeal held that “…a
litigant who seeks to impugn a federal agency's decision is not free to choose
between a judicial review proceeding and an action in damages; he must proceed
by judicial review in order to have the decision invalidated.” The Court of
Appeal also recognized that a decision of a federal agency retains its legal
force and authority, and remains juridically operative and legally effective,
so long as it has not been invalidated. Therefore, although the Court is not in
a position to issue a writ of mandamus in the circumstances, it is
appropriate to determine whether a reviewable error was committed with respect
to the La Macaza Warden’s decision to suspend the applicant’s contact visits
and with respect to the second- and third-level determinations to uphold that
decision.
2. Factual
background
[5]
The applicant served a sentence of imprisonment
at La Macaza Institution, in the province of Quebec, that started in April
2002. From the time of his arrival, he was entitled to physical-contact visits
with his common-law wife, Ms. Boucher. The applicant and Ms. Boucher also
participated regularly in the private family visiting program (PFV).
[6]
An investigation concerning the applicant was
conducted by Mr. Pilette, the institutional preventive security officer. Having
collected intelligence from various informants, the institution’s preventive
security department obtained authorization to wiretap the applicant’s telephone
conversations. This authorization was given by the Warden, Ms. Prévost.
[7]
The respondent asserts that the intelligence was
to the effect that the applicant was lending tobacco, making money transactions
and smuggling narcotics and cash into the institution through his private
family visits. According to the intelligence, the applicant’s spouse, Ms.
Boucher, was involved in this illicit activity. The investigation concluded
that the unlawful activities of the applicant and Ms. Boucher posed a threat to
the security of the institution.
[8]
The applicant and Ms. Boucher deny the
allegations against them.
[9]
On February 21, 2003, the respondent alleges
that the preventive security officer and the unit manager met with Ms. Boucher
and informed her of the grounds for suspending the contact visits. She was
informed that her access to the institution would be suspended until the
investigation was completed. Immediately following the meeting with Ms. Boucher,
the respondent alleges, the applicant was interviewed and the same information
was communicated to him orally, specifically that:
1.
He was the subject of a preventive security
investigation and electronic audio surveillance;
2.
He was suspected of having taken part in illicit
acts with Ms. Boucher’s assistance, i.e., smuggling pills, money and
narcotics into the institution;
3.
He was also suspected of making tobacco loans
and money transactions in the institution.
[10]
However, the applicant asserts that no such
details were communicated to him until his counsel was given this information
in a letter from the Warden dated March 12, 2003.
[11]
On February 26, 2003, the results of the
security investigation led the institutional authorities to conclude that the contact
visits between the applicant and Ms. Boucher were compromising the security of
the institution. The visits committee decided that the applicant’s contact
visits privilege should be withdrawn and that only non-contact visits would be
authorized. Ms. Boucher was notified by letter that the decision would be
reviewed every six months for as long as the risk continued.
[12]
During a search of the applicant’s cell, CSC
officers found the same type of pills that Ms. Boucher had had in her
possession at the meeting of February 26, 2003, specifically, Motrin
(200 mg, brown).
[13]
As of February 27, 2003, the applicant met with
Ms. Boucher numerous times in non-contact visits. On March 12, 2003, the Warden
of La Macaza upheld the suspension of the applicant’s contact visits, as well
as an indefinite suspension of his participation in the private family visiting
program with Ms. Boucher. On March 13, 2003, a behaviour contract was proposed
to the applicant, but he refused to sign.
[14]
On May 6, 2003, the Regional Deputy Commissioner
rendered his decision in respect of a second-level grievance against the
Warden’s decision. He found that the security intelligence had been
scrupulously checked and that it left no doubt as to the involvement of the
applicant and his spouse in unlawful activities within the Institution, the
details of which were protected information. He upheld the Warden’s decision.
The applicant then submitted a third-level grievance.
[15]
On June 6, 2003, the third-level grievance was
rejected for the same reasons as those found in the second-level decision. The
applicant received the third-level decision on June 12, 2003.
[16]
The applicant alleges that the suspension of
visits between his common-law wife and him has adversely affected their health.
3. Issues
A. Did the Correctional Service of Canada comply
with the rules of procedural fairness in terms of sharing the information that
gave rise to the decision to suspend contact visits between the applicant and
Ms. Boucher?
B. If the answer is yes, was that decision
patently unreasonable, considering the circumstances of this case?
4. Analysis
A. Did the Correctional Service of Canada comply with the
rules of procedural fairness in terms of sharing the information that gave rise
to the decision to suspend contact visits between the applicant and Ms.
Boucher?
[17]
The relevant sections of the Corrections and
Conditional Release Act (the Act) and the Corrections and Conditional
Release Regulations (the Regulations) are set out in the Appendix.
[18]
Subsection 91(1) of the Regulations empowers the
institutional head, i.e., the warden, to authorize the refusal or suspension of
an inmate’s visits. Paragraph 91(2)(b) is particularly relevant in this
case. It provides that “the institutional head or staff member shall promptly
inform the inmate and the visitor of the reasons for the refusal or suspension
and shall give the inmate and the visitor an opportunity to make
representations with respect thereto.” Subsection 27(1) of the Act
provides for the communication of relevant information to an offender when a
decision is to be taken regarding him. This provision stipulates that the
person responsible for taking the decision must give the offender, within a
reasonable period before the decision is to be taken, all the information to be
considered or a summary of that information. This provision is subject to
subsection 27(3), which provides that the Commissioner may authorize
information to be withheld if he has reasonable grounds to believe that
disclosure would jeopardize the safety of a person or the security of the
penitentiary.
[19]
The applicant maintains that he received no
details concerning the allegations against him. It was only after the
application for judicial review was made that the details of those allegations
were disclosed to him.
[20]
The respondent, on the other hand, contends that
at the meeting of February 21, 2003, the following information was shared
orally with the applicant:
1.
He was the subject of a preventive security
investigation and electronic audio surveillance;
2.
He was suspected of having taken part in illicit
acts with Ms. Boucher’s assistance, i.e., smuggling pills, money and
narcotics into the institution;
3.
He was also suspected of making tobacco loans
and money transactions in the institution.
[21]
The applicant argues that the authorities have
an obligation to treat offenders fairly, and relies in that regard on Demaria
v. Regional Classification Board, [1987] 1 F.C. 74. Part of that obligation
is to provide the offender with sufficient information to afford him a fair
opportunity to respond to the allegations against him. Hugessen J.’s decision
in Demaria, at pages 76 and 77, describes the obligation:
[…] The only
real question in the present case is as to the content of that duty. More
narrowly still, it is to know whether the appellant was given adequate notice
of what was being alleged against him and a fair opportunity to answer those
allegations.
[…]
[…] The purpose
of requiring that notice be given to a person against whose interests it is proposed
to act is to allow him to respond to it intelligently. If the matter is
contested, such response will normally consist of either or both of a denial of
what is alleged and an allegation of other facts to complete the picture.
Where, as here, it is not intended to hold a hearing or otherwise give the
person concerned a right to confront the evidence against him directly, it is
particularly important that the notice contain as much detail as possible, else
the right to answer becomes wholly illusory. […]
[22]
The respondent counters that the reasons of
Nadon J. in Cartier v. Canada (Attorney General), [1998] F.C.J. no.
1211, apply in the case at bar. In that judgment, Nadon J. refers to pages 341
to 344 of Marceau J.A.’s reasons in Gallant v. Canada (Deputy Commissioner,
Correctional Service of Canada) (C.A.), [1989] 3 F.C. 329. The learned
judge of appeal explained that in order to appreciate the practical
requirements of the audi alteram partem principle, it is wrong to put on
the same level all administrative decisions involving inmates in
penitentiaries. He wrote as follows at pages 342 and 343:
Not only do
these various decisions differ as to the individual's rights, privileges or
interests they may affect, which may lead to different standards of procedural
safeguards; they also differ, and even more significantly, as to their purposes
and justifications, something which cannot but influence the content of the
information that the individual needs to be provided with, in order to render
his participation, in the making of the decision, wholly meaningful. In the
case of a decision aimed at imposing a sanction or a punishment for the
commission of an offence, fairness dictates that the person charged be given
all available particulars of the offence. Not so in the case of a decision to
transfer made for the sake of the orderly and proper administration of the
institution and based on a belief that the inmate should, because of concerns
raised as to his behaviour, not remain where he is. In such a case, there would
be no basis for requiring that the inmate be given as many particulars of all
the wrong doings of which he may be suspected.
[23]
In the case at bar, we are dealing with an
alleged infringement of a right to contact visits, provided for in subsection
90(1) of the Regulations. The Regulations also provide for how this right may
be limited, notably in paragraphs 90(1)(a) and (b), which
stipulate that the institutional head must have reasonable grounds to believe
that a physical barrier is necessary for the security of the penitentiary or
the safety of a person and that no less restrictive measure is available.
[24]
Here, the facts are altogether different from
those in Gallant. This is not an inmate transfer. One may argue that the
decision deals with an issue relating to the maintenance of order within the
institution, but the decision also has a significant impact on an established
right—one that is provided for in the Regulations and that cannot be affected
except in specific circumstances also provided for in the Regulations.
Considering the personal interests and rights at stake in this case, it is not
appropriate to limit the obligation to share the particulars of the wrongdoings
the inmate is suspected of having committed. I am of the opinion that he should
have all the information he needs to render his participation in the
decision-making process wholly meaningful. I am of the opinion that the
information actually provided to the applicant in these proceedings has not
allowed such participation. I shall explain myself in the following paragraphs.
[25]
The issue is whether the CSC provided the
applicant, as required by section 27 of the Act, with all the information to be
considered in making the decision, or with a summary of that information.
[26]
In the instant case, the information sought by
the applicant was given to him after this application for judicial review was
filed, but well before the applicant’s release from the penitentiary. Thus, it
cannot be asserted that it would not have been possible to disclose the
information prior to making the decision because of the reasons referred to in
subsection 27(3) of the Act, i.e., because there were grounds for believing
that disclosure would jeopardize the safety of a person, the security of the
penitentiary or the conduct of a lawful investigation. In this case, there was
never any question of refusing to provide the sought-after information on the
basis of subsection 27(3) of the Act. Besides, in the reports entered in
evidence, several passages containing information considered protected were
struck out. The expunged evidence is not the subject of the present
application.
[27]
The respondent contends that an appropriate
summary of the information was shared orally with the applicant at the meeting
of February 21, 2003, before the decision was taken. According to the
respondent, this summary was sufficient in the circumstances in terms of
affording the applicant a fair opportunity to respond to the allegations
against him.
[28]
In order to assess whether the respondent
actually complied with the disclosure obligations under section 27 of the Act,
it useful to review the information in question.
[29]
The La Macaza Warden’s decision to suspend the
applicant’s contact visits with his common-law wife was based in part on information
set out in the Security Intelligence Report dated March 17, 2003. In that
report, which was not disclosed to applicant before the decision was taken, we
read the following:
[translation]
PIR 2003/01/08;
Source XXX met with his PO to tell him that he has a tobacco debt with inmate
FLYNN, who is putting the pressure on to get paid by spreading it around the
inmate population that he is a deadbeat who doesn’t pay his debts. He adds that
FLYNN bought a dépanneur XXXX. Finally, the source indicated that FLYNN
is going to smuggle some pot into the institution on the occasion of his next
PFV.
The source of this
information received a reliability rating of “believed reliable.”
[30]
In the record, there is also a Protected
Information Report from January 8, 2003, referred to in the Security
Intelligence Report. The report from January 8 was not disclosed to the
applicant before the decision was taken. In that report, also from a source
believed reliable, we read the following information:
[translation]
LAMA 0389
indicated to me that FLYNN, FPS: 132893A is putting pressure on him. XXX LAMA
0389 was indebted to inmate Flynn, and LAMA 0389 was tired of inmate Flynn
blackening his reputation among the other inmates, saying he was a deadbeat.
They had been informed that both of them were implicated in illicit activity
(loans, borrowing). Both had agreed not to let it happen again and that they
would not talk behind each other’s backs to the other inmates. Today, LAMA 0389
reported that every time he talks to a fellow inmate, Flynn shows up and
informs the fellow inmate that LAMA 0389 is a deadbeat. He stated that inmate
Flynn also spread the word around among the general population that LAMA 0389
is a deadbeat. As a result, he says that his fellow inmates avoid him and call
him less-than-flattering names. He says that now that Flynn has ruined his
reputation, he refuses to pay him the debt of three units of tobacco.
He added that
before he was placed in administrative segregation, inmate XXX had told him he
was going to collect from him, saying he would be right there beside him at
canteen time to make sure he paid his debt to Flynn. Inmate Flynn apparently
also told him the exact amount he had spent on canteen purchases and told him
he had better pay him back for the tobacco instead of spending money. During
the interview, LAMA 0389 told me that Flynn passed by the interview office
three times, right near the office window.
LAMA 0389
indicated that Flynn is going to try to smuggle some pot into the institution on
the occasion of his next PFV. He also said that Flynn bought the “dépanneur”
belonging to a black inmate from Block C named XXX. He said that Flynn has a
lot of goodies like soft drinks, chips, chocolate, smokes, and that he makes
loans with interest.
[31]
The Protected Information Report from January 8,
2003 contains important information about the applicant’s alleged drug
trafficking activity, including the allegation that he was going to smuggle
“pot” into the institution on the occasion of his next Private Family Visit
(PFV) and, particularly, the source of that information. The tip came from
inmate Lama, who, according to his own statements, held a grudge against the
applicant. It goes without saying that the reliability of such evidence could
be considered suspect. The respondent is not disputing the fact that this
information was received and considered by the Warden before she made her
decision; nor is the respondent disputing the fact that the information was not
disclosed to the applicant before the Warden made her decision. The applicant
was unaware of this evidence. He therefore had no opportunity to challenge it
or present contrary evidence. I would add that the summary of the information,
shared orally by the respondent, contained no particulars that would allow the
applicant to challenge the reliability of the evidence and defend himself. In
my opinion, the summary in this case was utterly insufficient and did not in
any way meet the respondent’s obligation under the Act to provide a summary of
all information to be considered in the decision. The applicant had no fair
opportunity to defend himself against the allegations which, on the face of it,
seem at least in part to have served as the basis of the Warden’s decision.
[32]
I find that the information not disclosed was
significant enough, considering the interests at stake in the decision, that it
should have been disclosed to the applicant before the decision was taken so
that he would have a reasonable opportunity to defend himself. The respondent
therefore failed to fulfill the disclosure obligations under the Act. In light
of this failure, I find that the institutional head did not comply with the
rules of procedural fairness before rendering her decision.
[33]
Owing to this breach of procedural fairness, the
decision of the Warden and the subsequent second- and third-level grievance
determinations upholding the Warden’s decision must be set aside.
[34]
In light of my determination with respect to the
first issue, there is no need to address the second issue. The Court cannot
comment on the reasonableness of the decision if it is determined that the
rules of procedural fairness were not observed.
[35]
The matter will be referred back to the CSC for
reconsideration, but to an authorized person other than the Warden of La Macaza
Institution.
ORDER
THE
COURT ORDERS that:
1. The
application for judicial review be granted.
2. The
matter be referred back to the CSC for reconsideration, but to an authorized
person other than the Warden of La Macaza Institution.
“Edmond P. Blanchard”
Certified True
Translation
Stefan Winfield
APPENDIX
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Corrections
and Conditional Release Act
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La Loi sur
le système correctionnel et la mise en liberté sous condition
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27. (1) Where an offender is entitled by this Part or the
regulations to make representations in relation to a decision to be taken by
the Service about the offender, the person or body that is to take the
decision shall, subject to subsection (3), give the offender, a reasonable
period before the decision is to be taken, all the information to be
considered in the taking of the decision or a summary of that information.
(2) Where an
offender is entitled by this Part or the regulations to be given reasons for
a decision taken by the Service about the offender, the person or body that
takes the decision shall, subject to subsection (3), give the offender,
forthwith after the decision is taken, all the information that was
considered in the taking of the decision or a summary of that information.
(3) Except in
relation to decisions on disciplinary offences, where the Commissioner has
reasonable grounds to believe that disclosure of information under subsection
(1) or (2) would jeopardize
(a)
the safety of any person,
(b)
the security of a penitentiary, or
(c)
the conduct of any lawful investigation,
the
Commissioner may authorize the withholding from the offender of as much
information as is strictly necessary in order to protect the interest
identified in paragraph (a), (b) or (c).
…
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27. (1) Sous réserve du paragraphe (3), la personne ou l’organisme
chargé de rendre, au nom du Service, une décision au sujet d’un délinquant
doit, lorsque celui-ci a le droit en vertu de la présente partie ou des
règlements de présenter des observations, lui communiquer, dans un délai
raisonnable avant la prise de décision, tous les renseignements entrant en
ligne de compte dans celle-ci, ou un sommaire de ceux-ci.
(2) Sous
réserve du paragraphe (3), cette personne ou cet organisme doit, dès que sa
décision est rendue, faire connaître au délinquant qui y a droit au titre de
la présente partie ou des règlements les renseignements pris en compte dans
la décision, ou un sommaire de ceux-ci.
(3) Sauf dans
le cas des infractions disciplinaires, le commissaire peut autoriser, dans la
mesure jugée strictement nécessaire toutefois, le refus de communiquer des
renseignements au délinquant s’il a des motifs raisonnables de croire que
cette communication mettrait en danger la sécurité d’une personne ou du
pénitencier ou compromettrait la tenue d’une enquête licite.
[…]
|
|
Corrections
and Conditional Release Regulations
|
Règlement
sur le système correctionnel et la mise en liberté sous condition
|
|
91. (1) Subject to section 93, the institutional head or a staff
member designated by the institutional head may authorize the refusal or
suspension of a visit to an inmate where the institutional head or staff
member believes on reasonable grounds
(a)
that, during the course of the visit, the inmate or visitor would
(i) jeopardize
the security of the penitentiary or the safety of any person, or
(ii) plan or
commit a criminal offence; and
(b)
that restrictions on the manner in which the visit takes place would not be
adequate to control the risk.
(2) Where a
refusal or suspension is authorized under subsection (1),
(a)
the refusal or suspension may continue for as long as the risk referred to in
that subsection continues; and
(b)
the institutional head or staff member shall promptly inform the inmate and
the visitor of the reasons for the refusal or suspension and shall give the
inmate and the visitor an opportunity to make representations with respect
thereto.
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91. (1) Sous réserve de l'article 93, le directeur du pénitencier ou
l'agent désigné par lui peut autoriser l'interdiction ou la suspension d'une
visite au détenu lorsqu'il a des motifs raisonnables de croire :
a) d'une part, que le détenu ou le visiteur risque, au cours de la
visite :
(i) soit de
compromettre la sécurité du pénitencier ou de quiconque,
(ii) soit de
préparer ou de commettre un acte criminel;
b) d'autre part, que l'imposition de restrictions à la visite ne
permettrait pas d'enrayer le risque.
(2) Lorsque
l'interdiction ou la suspension a été autorisée en vertu du paragraphe (1) :
a) elle reste en vigueur tant que subsiste le risque visé à ce
paragraphe;
b) le directeur du pénitencier ou l'agent doit informer promptement
le détenu et le visiteur des motifs de cette mesure et leur fournir la
possibilité de présenter leurs observations à ce sujet.
|
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94. (1) Subject to subsection (2), the institutional head or
a staff member designated by the institutional head may authorize, in
writing, that communications between an inmate and a member of the public,
including letters, telephone conversations and communications in the course
of a visit, be opened, read, listened to or otherwise intercepted by a staff
member or a mechanical device, where the institutional head or staff member
believes on reasonable grounds
(a) that
the communications contain or will contain evidence of
(i) an act that
would jeopardize the security of the penitentiary or the safety of any
person, or
(ii) a criminal
offence or a plan to commit a criminal offence; and
(b) that
interception of the communications is the least restrictive measure available
in the circumstances.
(2) No institutional head or staff member
designated by the institutional head shall authorize the opening of, reading
of, listening to or otherwise intercepting of communications between an
inmate and a person set out in the schedule, by a staff member or a
mechanical device, unless the institutional head or staff member believes on
reasonable grounds
(a) that
the grounds referred to in subsection (1) exist; and
(b) that
the communications are not or will not be the subject of a privilege.
(3) Where a communication is intercepted under
subsection (1) or (2), the institutional head or staff member designated by
the institutional head shall promptly inform the inmate, in writing, of the
reasons for the interception and shall give the inmate an opportunity to make
representations with respect thereto, unless the information would adversely
affect an ongoing investigation, in which case the inmate shall be informed
of the reasons and given an opportunity to make representations with respect
thereto on completion of the investigation.
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94. (1) Sous réserve du paragraphe
(2), le directeur du pénitencier ou l'agent désigné par lui peut autoriser
par écrit que des communications entre le détenu et un membre du public
soient interceptées de quelque manière que se soit par un agent ou avec un
moyen technique, notamment que des lettres soient ouvertes et lues et que des
conversations faites par téléphone ou pendant les visites soient écoutées,
lorsqu'il a des motifs raisonnables de croire :
a) d'une part, que la communication contient ou contiendra des
éléments de preuve relatifs :
(i) soit à
un acte qui compromettrait la sécurité du pénitencier ou de quiconque,
(ii) soit à
une infraction criminelle ou à un plan en vue de commettre une infraction
criminelle;
b) d'autre part, que l'interception des communications est la
solution la moins restrictive dans les circonstances.
(2)
Ni le directeur du pénitencier ni l'agent désigné par lui ne peuvent
autoriser l'interception de communications entre le détenu et une personne
désignée à l'annexe par un agent ou par un moyen technique, notamment
l'ouverture, la lecture ou l'écoute, à moins qu'ils n'aient des motifs
raisonnables de croire :
a) d'une part, que les motifs mentionnés au paragraphe (1)
existent;
b) d'autre part, que les communications n'ont pas ou n'auront pas
un caractère privilégié.
(3)
Lorsqu'une communication est interceptée en application des paragraphes (1)
ou (2), le directeur du pénitencier ou l'agent désigné par lui doit aviser le
détenu, promptement et par écrit, des motifs de cette mesure et lui donner la
possibilité de présenter ses observations à ce sujet, à moins que cet avis ne
risque de nuire à une enquête en cours, auquel cas l'avis au détenu et la
possibilité de présenter ses observations doivent être donnés à la conclusion
de l'enquête
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