Date: 20111012
Docket: T-1374-10
Citation: 2011 FC 1149
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, October 12,
2011
PRESENT: The Honourable Justice Mr. Boivin
BETWEEN:
|
|
STÉPHANE MARLEAU
|
|
|
|
Applicant
|
|
and
|
|
|
ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application
for judicial review under section 18.1 of the Federal Courts Act (“FCA”),
RSC, 1985, c F-7, and the Corrections and Conditional Release Act, SC
1992, c 20 (“CCRA”), of certain decisions made by the Correctional Service of
Canada (“CSC”). The applicant is hereby asking the Court to review his security
classification and to transfer him to a minimum security institution close to
his family.
Factual background
[2]
The applicant is an
inmate at the Port-Cartier Institution, a federal maximum security penitentiary
in Port-Cartier, Quebec. He has been serving a prison sentence since being
convicted of robbery and fraud.
[3]
According to the provisions
of the CCRA, a security classification is assigned to all offenders. On
July 29, 2009, when the applicant was at the Warkworth Institution in
Ontario, the CSC calculated the applicant’s security classification using the Security
Reclassification Scale. The result was 26 points. Although this result
corresponds to a medium security classification, it also falls within the 5%
discretionary range that justifies a maximum security classification.
[4]
On August 21, 2009,
the applicant’s security classification was evaluated by his parole officer at the
Warkworth Institution. The following classifications were recommended: a
maximum classification for institutional adjustment, a medium classification for
escape risk, a maximum classification for risk to public safety and a maximum classification
for security level. These recommendations were approved by the warden of the
Warkworth Institution.
[5]
On August 26,
2009, the applicant filed a second level grievance with the CSC to challenge
the decision on his security classification evaluation.
[6]
On November 30,
2009, a second level grievance decision was issued, confirming the applicant’s
maximum security classification.
[7]
On January 8,
2010, the applicant filed a third level grievance with the CSC.
[8]
A few months after he
filed his third level grievance, the applicant contacted the Office of the
Correctional Investigator Canada to enquire about the status of his third level
grievance.
[9]
In a letter dated
July 12, 2010, Sofia Gutierrez, an investigator with the Office of the
Correctional Investigator (a distinct government branch from the CSC), wrote to
the applicant to inform him that she had contacted the Offender Redress
Division at National Headquarters to find out why it was taking so long to
respond. Ms. Gutierrez wrote in her letter that there had been a policy
breach in the processing of the applicant’s grievance.
[10]
In a letter dated
August 19, 2010, the CSC’s Offender Redress Division (National
Headquarters) acknowledged receipt of the applicant’s third level grievance and
informed him that a response would be sent no later than December 13,
2010.
[11]
During the week of
August 20, 2010, the applicant filed an application for judicial review
with the Federal Court. The application was received on August 25, 2010. The
main goals of his application were a review of his maximum security classification
and a transfer to a minimum security institution close to his family.
[12]
On September 24,
2010, the applicant received a letter from the Executive Director and General
Counsel of the Office of the Correctional Investigator, Ivan Zinger. In his
letter, Mr. Zinger acknowledged the delay in responding to the applicant’s
grievance. He explained that the applicant’s situation was [translation] “much
too common and [that]
delays in processing complaints and grievances by Canada’s correctional system are
a systemic problem”.
[13]
On October 8, 2010, the
respondent wrote to the applicant to again explain that CSC would be deciding
on his third level grievance before December 13, 2010.
[14]
On December 10,
2010, the CSC issued a third level decision concerning the applicant’s
grievance. The applicant’s grievance was allowed in part. The applicant
received a copy of the decision on December 13, 2010.
[15]
On December 21,
2010, the respondent wrote the applicant a letter, reminding him that the CSC
had made a decision concerning his third level grievance and asking him to
withdraw his application for judicial review before January 15, 2011. In
that letter, the respondent informed the applicant that his application had
become moot.
[16]
Since the applicant’s
application for judicial review was not withdrawn, the respondent filed a
motion to strike the notice of application on February 28, 2011. On
March 22, 2011, Justice Martineau issued an order dismissing the
respondent’s motion to strike. Justice Martineau indicated that he was not satisfied
that the application for judicial review had become completely academic, noting
that a tangible and concrete dispute still seemed to exist.
[17]
On April 27, 2011,
the applicant’s security classification was reduced to medium, and the
applicant read this decision on May 2, 2011.
[18]
On June 20, 2011,
the applicant submitted a request to be transferred from the Port-Cartier
Institution to the Archambault Institution. This request is currently being
processed.
[19]
The applicant did not
file a new application for judicial review of the third level decision issued
on December 10, 2010.
Issues
[20]
Several issues have
been raised. Essentially, the Court finds that the following questions are
relevant in this case:
1. Has the application for judicial review become moot or
academic? If the answer to this question is no:
2. Is the application for judicial review interlocutory?
3. Can the applicant use the present application for judicial review,
which was filed on August 25, 2010, to challenge the second level grievance
response issued on November 30, 2009 or the third level grievance response
issued on December 10, 2010?
Relevant legislation
[21]
The relevant
legislation is reproduced in Appendix A.
Analysis
1.
Has the
application for judicial review become moot or academic?
[22]
The applicant alleges
that even though the respondent replied to his third level grievance on
December 10, 2010, there is still an issue to be resolved (Zarzour v
Canada (Attorney General), [2000] FCJ No 103, 176 FTR 252). He submits that
he waited 11 months for a response and that the CSC grievance system does
not work. The applicant also refers to Justice Martineau’s order regarding
the motion to strike dated March 22, 2011, in which the judge stated that
a tangible and concrete issue remained to be resolved.
[23]
The respondent cites Borowski
v Canada (Attorney General), [1989] 1 S.C.R. 342, 57 DLR (4th) 231, and
submits that the present application is moot since the CSC issued a response to
the third level grievance on December 10, 2010. The respondent also argues
that judicial review before the Federal Court is not the appropriate medium for
settling all of the applicant’s grievances.
[24]
The Court points out
that in Borowski, the Supreme Court of Canada developed the mootness
doctrine. Essentially, the Supreme Court of Canada discussed the parameters of
a practice that allows a court to decline to decide a case which raises merely
a hypothetical or abstract question. A controversy must exist not only when the
application for judicial review is instituted, but also at any other moment
during the proceeding. Consequently, an issue can become moot if it is resolved
as the result of events occurring during the course of the judicial review.
[25]
The approach involves
two steps. First it is necessary to determine whether the required tangible and
concrete dispute has disappeared and the issues have become academic. Second,
if the response to the first question is affirmative, it is necessary to decide
if the court should exercise its discretion to hear the case.
[26]
At the second stage,
three factors must be considered to determine whether the Court is able to
exercise its discretion: (i) the existence of the adversarial system; (ii)
judicial economy; and (iii) the need for courts to demonstrate some sensitivity
to the effectiveness or efficacy of judicial intervention and to be aware of
the judiciary’s role in our political framework.
[27]
After having read the
applicant’s application for judicial review and heard the parties, the Court is
of the view that, in his application, the applicant is actually seeking a mandamus.
In fact, the applicant’s application is not concerned with any particular
decision but rather with compelling National Headquarters to issue a decision
regarding his third level grievance:
[translation]
This is the
purpose of my application for judicial review. I filed a third level grievance
in January 2010 (Reference No.V40A00034617), which was given to the
warden, Théresa Westfall, to challenge my security classification, which was
23.5 at the 2009-08-07 evaluation (sic) the score was 23.5; however, I never
received a response. (Applicant’s Record, p. 2)
[28]
In light of the
principles described, the Court finds that the applicant’s application has
become moot since the CSC issued a response to the applicant’s third level
grievance in December 2010, thus resolving the issue. The Court also finds
that the applicant did not exhaust all internal remedies before filing his
application for judicial review and that there are no exceptional circumstances
(C.B. Powell Ltd. v Canada (Border Services Agency), 2010 FCA 61, 400 NR
367). In that sense, the present application for judicial review is
interlocutory.
[29]
The Court also notes that
at no point did the applicant amend his notice of application for judicial
review or directly challenge the third level decision issued in
December 2010. The Court furthermore notes that the applicant’s
classification was reduced to medium on April 27, 2011.
[30]
The fact that the application
is academic and moot is enough to dispose of the matter. The Court therefore
does not have to deal with questions 2 and 3. The Court will deal nonetheless with
certain questions discussed at the hearing in the hope that this will be useful
for the parties.
[31]
First, it should be
noted that the CCRA, the Corrections and Conditional Release Regulations
(the Regulations) and Commissioner’s Directive No. 81, Offender
Complaints and Grievances (CD 081) (Appendix A) introduce a comprehensive
grievance process in the corrections system.
[32]
Specifically, under
section 27 of CD 081, the complaint and grievance process includes
four levels: written complaints, first level grievances, second level
grievances and third level grievances. Section 30 of CD 081 provides
that grievers can apply for judicial review of the final decision with the
Federal Court under subsection 18.1(2) of the Federal Courts Act.
[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 RCS 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”.
[35]
In his application for judicial
review, the applicant in fact admits that he did not exhaust the CSC grievance process
because he wanted to obtain a response to his grievance. He alleges that the
CSC took too much time to render a decision. At the hearing, the parties
referred to Caruana v Canada (Attorney General), 2006 FC 1355, [2006]
FCJ No 1715, and Marachelian v Canada (Attorney General), [2001] 1 FC
17, 187 FTR 238. In the Court’s opinion, these decisions do not apply to the
facts of the present matter, for the following reasons.
[36]
In Caruana, the
applicant had every reason to believe that, given the difficulties he had
experienced at the second level of the grievance resolution procedure, it was
likely that he would not receive a quick response at the third level. In that
case, the applicant had received a decision at the second level. He had then
applied for judicial review within the required timeframe, namely, within
30 days of the decision (subsection 18.1(2) of the Federal Courts
Act). After hearing the case on its merits, the Court dismissed the
application for judicial review. The facts raised in Caruana do not
apply in the present matter because the second level decision was issued within
a reasonable timeframe; the application for judicial does not concern the second
level decision; and the goal of the application filed by the applicant in the
present case was to accelerate the third level decision.
[37]
Marachelian involved an application for judicial review
of a refusal to re-evaluate the classification of the inmate in question and to
transfer him. In that case, the Court found that, in light of evidence
indicating that the CSC had not acted independently and that other government
agencies had dictated its decisions, the circumstances warranted an exception
to the general rule that internal remedies should be exhausted beforehand. Consequently,
the Court determined that the application for judicial review was appropriate. However,
in the case at bar, the evidence does not demonstrate that the CSC was influenced
by another agency and, consequently, did not act independently. The decision in
Marachelian therefore does not apply in the present matter.
[38]
The Court nonetheless
observes that, in light of the record, and this despite there being some
mitigating factors, the CSC did not comply with its own policy described in
CD 081 in terms of its analysis and processing of the applicant’s third
level grievance (letter from Sofia Gutierrez, Investigator, Officer of the
Correctional Investigator, July 12, 1010; letter from Ivan Zinger,
Executive Director and General Counsel, Office of the Correctional
Investigator, September 24, 2010).
[39]
In sum, and in light of
the foregoing, the Court finds that the applicant cannot use the present
application for judicial review to challenge the response to the second level
grievance dated November 30, 2009, or the response to the third level
grievance dated December 10, 2010.
[40]
The application for
judicial review filed by the applicant is moot and academic. It will therefore
be dismissed.
[41]
Given the result, costs
would normally follow the event and be awarded to the respondent. Even though
this issue has become moot and academic, it once again highlights certain
deficiencies in the processing of inmates’ complaints. In these circumstances,
the Court will exercise its discretion and make no order as to costs.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the application for judicial review be
dismissed, without costs.
“Richard Boivin”
Certified true
translation
Johanna Kratz,
Translator
Email this Content