Date: 20070704
Docket: T-2175-06
Citation: 2007 FC 694
Ottawa, Ontario, July 4,
2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
DORA
ARRIOLA LONDONO
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of the
decision dated November 16, 2006 of Paul Snyder, the Acting Assistant Deputy
Commissioner of the Correctional Service of Canada, denying the applicant
clearance to visit federal penitentiaries in Ontario.
[2]
At the hearing, the respondent informed the
Court that the actual decision denying clearance was made by Mr. Bob MacLean on
September 20, 2006. It became clear to the Court that this decision was not
communicated to the applicant. Moreover, the November 16, 2006 decision, which
the applicant thought was the decision and which the applicant submitted was
inadequate for a number of reasons, was not the decision.
Background
[3]
The applicant was convicted of conspiracy to
import narcotics in 1997. She was released on parole on June 2, 1999 and was
granted full parole on November 11, 2000. She completed her sentence on August
21, 2006. She is currently employed by the Prisoners with HIV/AIDS Support Network (PASAN) as the Federal
Community Development Coordinator. As such, she is responsible for providing
prevention, education and support services to prisoners in federal
penitentiaries in Ontario.
[4]
The applicant first applied for institutional
access clearance on February 23, 2005, which was before her warrant expiry date.
On April 5, 2005, the Correctional Service of Canada (the Service) provided a
negative recommendation with respect to the applicant’s request. On May 29,
2006, her employer PASAN requested that the respondent reconsider her
application for institutional access clearance. Once again, the Service
recommended that the application be denied.
[5]
As soon as her sentence ended on August 21,
2006, the applicant re-applied for institutional access clearance on August 21,
2006. This application was supported with an 11-page submission, a 5-page
affidavit from the applicant, a 6-page statutory declaration from the Executive
Director of PASAN, an opinion from a psychologist that the applicant’s risk of
re-offending is low, and over 100 pages of background documents.
The
Decision
[6]
The November 16, 2006 letter, which the
applicant thought was the decision, stated that the application for regional
clearance had been denied, did not provide reasons, and that the respondent had
reviewed the past process which denied clearance implied that the respondent
had not assessed the application as a new application.
Relevant legislation and directives
[7]
The legislation relevant to this application is
the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act),
particularly the following sections:
|
Definitions
2. (1) In this Part, […]
"visitor" means any person other than an inmate
or a staff member. […]
Purpose of correctional system
3. The purpose of the
federal correctional system is to contribute to the maintenance of a just,
peaceful and safe society by
(a) carrying out sentences
imposed by courts through the safe and humane custody and supervision of
offenders; and
(b) assisting the rehabilitation
of offenders and their reintegration into the community as law-abiding citizens
through the provision of programs in penitentiaries and in the community. […]
Principles that guide the Service
4. The principles
that shall guide the Service in achieving the purpose referred to in section
3 are
(a) that the protection of
society be the paramount consideration in the corrections process; […]
(d) that the Service use the
least restrictive measures consistent with the protection of the public,
staff members and offenders;
(e) that offenders retain the
rights and privileges of all members of society, except those rights and
privileges that are necessarily removed or restricted as a consequence of the
sentence;
(f) that the Service facilitate
the involvement of members of the public in matters relating to the
operations of the Service; […]
Correctional Service of Canada
5. There shall
continue to be a correctional service in and for Canada, to be known as the
Correctional Service of Canada, which shall be responsible for
(a) the care and custody of
inmates;
(b) the provision of programs
that contribute to the rehabilitation of offenders and to their successful
reintegration into the community; […]
Commissioner
6. (1) The Governor in Council may appoint a person
to be known as the Commissioner of Corrections who, under the direction of the
Minister, has the control and management of the Service and all matters
connected with the Service. […]
Living conditions, etc.
70. The Service
shall take all reasonable steps to ensure that penitentiaries, the
penitentiary environment, the living and working conditions of inmates and
the working conditions of staff members are safe, healthful and free of
practices that undermine a person’s sense of personal dignity.
Contacts
and visits
71. (1) In order to promote relationships between
inmates and the community, an inmate is entitled to have reasonable contact,
including visits and correspondence, with family, friends and other persons
from outside the penitentiary, subject to such reasonable limits as are
prescribed for protecting the security of the penitentiary or the safety of
persons. […]
|
Définitions
2. (1) Les
définitions qui suivent s’appliquent à la présente partie. […]
«visiteur » Toute personne autre qu’un
détenu ou qu’un agent. […]
But du système correctionnel
3. Le
système correctionnel vise à contribuer au maintien d’une société juste,
vivant en paix et en sécurité, d’une part, en assurant l’exécution des peines
par des mesures de garde et de surveillance sécuritaires et humaines, et
d’autre part, en aidant au moyen de programmes appropriés dans les
pénitenciers ou dans la collectivité, à la réadaptation des délinquants et à
leur réinsertion sociale à titre de citoyens respectueux des lois. […]
Principes de fonctionnement
4. Le
Service est guidé, dans l’exécution de ce mandat, par les principes qui
suivent :
a) la protection de la société est le critère prépondérant lors de
l’application du processus correctionnel; […]
d) les mesures nécessaires à la protection du public, des agents et
des délinquants doivent être le moins restrictives possible;
e) le délinquant continue à jouir des droits et privilèges reconnus
à tout citoyen, sauf de ceux dont la suppression ou restriction est une
conséquence nécessaire de la peine qui lui est infligée;
f) il facilite la participation du public aux questions relatives à
ses activités; […]
Maintien en existence
5. Est
maintenu le Service correctionnel du Canada, auquel incombent les tâches
suivantes :
a) la prise en charge et la garde des détenus;
b) la mise sur pied de programmes contribuant à la réadaptation des
délinquants et à leur réinsertion sociale; […]
Commissaire
6. (1) Le
gouverneur en conseil nomme le commissaire; celui-ci a, sous la direction du
ministre, toute autorité sur le Service et tout ce qui s’y rattache. […]
Conditions de vie
70. Le
Service prend toutes mesures utiles pour que le milieu de vie et de travail
des détenus et les conditions de travail des agents soient sains,
sécuritaires et exempts de pratiques portant atteinte à la dignité humaine.
Rapports avec l’extérieur
71. (1)
Dans les limites raisonnables fixées par règlement pour assurer la sécurité
de quiconque ou du pénitencier, le Service reconnaît à chaque détenu le
droit, afin de favoriser ses rapports avec la collectivité, d’entretenir,
dans la mesure du possible, des relations, notamment par des visites ou de la
correspondance, avec sa famille, ses amis ou d’autres personnes de
l’extérieur du pénitencier. […]
|
[8]
Also relevant to this application is the
Commissioner’s Directive on Visiting dated December 17, 2001, particularly sections
17 and 18:
|
Refusal or suspension of visit
17. The Institutional Head may authorize the
refusal or suspension of a visit between an inmate and a member of the public
where he or she believes on reasonable grounds that:
a) during the course of the
visit the inmate or the member of the public would :
(1) jeopardize the security of
the penitentiary or the safety of an individual; or
(2) plan or commit a criminal
offence; and
b) restriction on the manner in which the visit takes
place would not be adequate to control the risk.
18. Where a refusal or suspension of visit is
authorized under paragraph 17:
a) the refusal or suspension may
continue for as long as the risk referred to continues;
b) the Institutional Head shall inform the inmate and the
visit promptly, in writing, of the reasons for the refusal or suspension and
shall give the inmate and the visitor an opportunity to make representations
with respect thereto. The title of the person to whom they should address
their representations should be indicated; and
c) the extent of the information shared shall take into
consideration limitations of the Privacy Act, namely to avoid the
disclosure of any personal information to either party, unless the affected
party agrees in writing to the disclosure.
|
Refus ou suspension des visites
17. Le
directeur peut autoriser le refus ou la suspension d’une visite à un détenu
par un membre de la collectivité lorsqu’il a des motifs raisonnables de
croire :
a) que, au courant de la visite, le détenu
ou le membre de la collectivité risque :
(1) de compromettre la
sécurité de l’établissement ou de quiconque; or
(2) de planifier ou de
commettre un acte criminel;
b) que le fait d’apporter des
restrictions aux modalités relatives à la visite ne permettrait pas de réduire
le risque.
18.
Lorsqu’une interdiction ou une suspension de visite est autorisée en vertu du
paragraphe 17 :
a) elle reste en vigueur tant que le
risque vise demeure;
b) le directeur doit rapidement informer
par écrit le détenu et le visiteur des motifs de cette meure et leur fournir
la possibilité de présenter leurs observations à ce sujet (le titre de la
personne à qui adresser ces observations devrait être indique);
c) les informations fournies doivent
respecter les restrictions imposées par la Loi sur la protection des
renseignements personnels, notamment pour éviter que des renseignements
personnels soient communiques à l’une ou l’autre des parties, à moins que la
personne touchée ait consenti par écrit à la divulgation de l’information.
|
Standard of
review
[9]
The standard of review applicable to a decision
by the Commissioner of the Service to deny institutional access to a visitor
was discussed by Justice von Finckenstein in Edwards v. Canada (Attorney General), 2003 FC 1441 at paragraph 19:
¶19
Following the pragmatic and functional
approach, it becomes clear that there are cross cutting factors in this case.
On one hand, the lack of a privative clause in the Act suggests that little
deference should be given to the decision of the Commissioner. On the other
hand, the Commissioner is an expert with regards to the management of prisons
and particularly with regards to the safety of inmates and visitors. In
addition, while the case involves the individual rights of Mr. Edwards, it is
also related to the Commissioner's obligation to consider the safety and
welfare of the offender's family. Considering these factors and the fact that
the issue is one of mixed law and fact, namely the application of the term
"reasonable limits" to the circumstances of Mr. Edwards's case, the
most appropriate standard of review is reasonableness simpliciter.
[Emphasis
added]
I agree with and adopt Justice von
Finckenstein’s analysis and conclude accordingly that the reasonableness
standard governs this application for judicial review.
[10]
A decision is unreasonable only if there is no
line of analysis within the given reasons that could reasonably lead the
tribunal from the evidence before it to the conclusion at which it arrived.
This means that a decision may satisfy the standard if it is supported by a
tenable explanation even if it is not one that the reviewing courts find
compelling: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247.
[11]
With respect to the allegation that the
respondent breached the duty of fairness owed the applicant, it is trite law
that the standard of review is correctness.
Issues
[12]
The applicant argues that the Service erred in
denying her application for institutional access clearance on three grounds:
1. the respondent refused to treat the
application of August 21, 2006 as a new application for clearance and instead
treated it as a request for a review of the 2005 decision;
2. the respondent did not provide the
applicant with an opportunity to respond before making its decision; and
3. the respondent erred in determining
that the applicant was a security risk.
Analysis
[13]
When the applicant’s first application for
institutional access clearance was denied, the Service cited three main
factors:
1. the applicant’s proposed work in the
institutions would violate her parole conditions;
2. the applicant’s parole officer did
not support her application; and
3. based on her criminal record, the
applicant posed a safety risk.
The applicant argues that her subsequent
application, submitted over one year later, was clearly a new application that
reflected new circumstances and new evidence. By that time, the applicant was
no longer subject to any parole conditions, and she provided new evidence in
support of her position that she did not pose a safety risk. The applicant
submits that the decision letter dated November 16, 2006 establishes that it
did not treat her application as a new application, but rather as a request for
reconsideration.
[14]
The September 20, 2006 letter was written by Bob
MacLean, Chair of the Regional Screening and Clearance Board for the Ontario
Region. The letter dated November 16, 2006 was written by Paul Snyder, acting
Assistant Deputy Commissioner for the Ontario Region.
[15]
As I indicated at the outset, the Court is
satisfied that the September 20, 2006 decision letter was never communicated to
the applicant. The only letter communicated to the applicant was the letter
dated November 16, 2006 which, I agree with the applicant, is not a decision
letter, rather a review letter. Based on this review letter, the applicant had
good grounds to consider that the respondent had refused to treat the new
application dated August 21, 2006 as a new application for clearance.
Accordingly, this application for judicial review must be allowed on this
ground alone.
[16]
The applicant also argues that the respondent
deprived her of the opportunity to respond to the Service’s safety and security
concerns. The applicant submits that the Act establishes a right to visit a
penitentiary absent a risk to the safety or security of the institution that
cannot be accommodated by placing reasonable restrictions on the visit. The
applicant argues that the Service has an obligation to consider an application
to visit a penitentiary and, if it intends to deny an application, it must
inform the applicant of the reasons and give her an opportunity to respond.
[17]
The requirement to provide the applicant with an
opportunity to know the reasons for the denial of her regional clearance and an
opportunity to make representations with respect thereto is codified in section
18 of the Commissioner’s Directive on Visiting. Neither letter before the Court
does this. Accordingly, this application must be allowed on this ground as
well.
[18]
With respect to the
Service’s determination that the applicant posed a risk and should therefore be
denied the requested institutional access clearance, it is clear from the Threat
Risk Assessment that the Regional Screening and Clearance Board took into
account the following factors:
1. The applicant was
an ex-offender convicted of importing drugs into Canada with her husband;
2. The applicant had
only recently finished completing her sentence;
3. The applicant was
not supported by the Institutional Head or department for re-entry into the
penitentiary institutions;
4. The applicant
travelled to Columbia, a known source country for drugs; and
5. The applicant’s
employer, PASAN, promotes a purpose and belief inconsistent with the Service’s
mandate under the Act
and concluded that the applicant is considered a “medium threat”.
[19]
The Service treated the Treat Risk Assessment as
confidential and did not provide the applicant with a copy. Accordingly, the
applicant would not have known, but for this Federal Court case, that this
threat risk assessment existed. The Service is not obliged to disclose
confidential documents regarding its assessment of the security of individuals
seeking to visit a penitentiary. However, the service should provide visitors
being denied access a generalized basis for their reasons with respect to
security. Now that the applicant has full disclosure of the Threat Risk
Assessment, the applicant will, in due course, be able to provide a response.
Conclusion
[20]
The applicant was not provided with the decision
denying her 2006 application. Moreover, the decision did not adequately
provide the reasons for the decision or provide the applicant with an
opportunity to respond.
[21]
The Court cannot decide whether the applicant
should be granted clearance. However, the Court did offer its opinion during
the hearing that the applicant appeared to be conscientious and extremely
thorough in her sincere attempt to be allowed to help prisoners in the federal
penitentiaries with HIV/AIDS.
[22]
The Court found the record in this case
confusing. The applicant sought clearance on two or three different occasions. The
material in support of the last application was voluminous, yet thorough. The
confusion was compounded by the respondent not communicating the decision
letter to the applicant. In fact, the Court questions whether the so called
decision letter from the respondent was really the decision with respect to the
application because it was not addressed to the applicant or her counsel.
[23]
In any event, the proper course is for the
respondent to prepare a thorough decision letter setting out the reasons for
its decision and providing the applicant with an opportunity to respond before
the decision is finalized. The decision letter should address the submissions dated
August 21, 2006 in support of the clearance application.
Costs
[24]
Both parties sought their respective legal
costs. The normal practice is that costs follow the event and the applicant
will be awarded her costs according to the Tariff.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1.
This
application for judicial review is allowed, the decision denying the applicant
clearance is set aside and her application is referred to a different designate
of the Commissioner of the Correctional Service of Canada for a new decision, which
gives the applicant reasons in advance if the decision is negative, and an
opportunity to respond; and
2.
The
applicant is entitled to her costs.
“Michael
A. Kelen”
Email this Content