Date:
20080211
Docket: T-412-07
Citation: 2008 FC 89
Ottawa, Ontario, the 11th day of February 2008
Present:
the Honourable Mr. Justice Beaudry
BETWEEN:
DENIS
BÉGIN
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review, pursuant to section 18.1 of the Federal
Courts Act, S.C. 1985, c. F-7, of a December 1, 2006 decision by the Correctional Service of
Canada (CSC) regarding a third-level
grievance procedure.
The request to correct some of the information contained in the applicant’s
correctional record pursuant to section 24 of the Corrections and
Conditional Release Act,, R.S. 1992, c. 20 (the Act) was dismissed, on the ground
that the procedure followed by the CSC complied with the Act.
ISSUES
[2]
Did the CSC Commissioner make an unreasonable error
in concluding that the procedure followed and the refusal to make the requested
corrections were in compliance with section 24 of the Act?
FACTUAL BACKGROUND
[3]
The
applicant has been incarcerated at La Macaza Institution since November 25, 1997.
[4]
He was
found guilty of the first-degree murder of Ricardo Gizzi. The Quebec Court of
Appeal ordered a new trial following its ruling that the applicant’s March 8, 1996
statement should be excluded because it was made with the hope of advantage, and
was consequently non-voluntary (R. v. Bégin, [2002] J.Q. No 3546). During
the investigation of the murder of Ricardo Gizzi, the applicant made another
statement (March 11, 1996) in which he admitted having participated in another
murder.
[5]
At the new
trial for the murder of Ricardo Gizzi, the applicant pled guilty to second
degree murder, and he is currently serving a life sentence. No criminal
proceedings were initiated following his admission regarding the second murder.
[6]
In 1995, the
applicant was the subject of a complaint to the police by his ex-spouse for
battery, death threats and sexual assault. A request to institute proceedings
was filed but no charges were brought.
[7]
The March 11, 1996 sworn statement during the
police investigation and the ex-spouse’s complaint are included in the
applicant’s correctional record. The facts alleged in both documents are noted
in other documents of his correctional record.
[8]
The
applicant filed three grievances. In the first grievance (#V30400021298), he sought
to amend his Statistical Information on Recidivism (SIR) sheet. In the second
one (#V30A0021378), he sought to strike from the record the information
relating to the facts in his March 11, 1996 sworn statement as well
as his ex-spouse’s complaint contained in the case management document (SCCP-PU-042),
the psychological report (SCCP-PU-076), and the preventive security report (SCCP-PU-065).
In the third grievance (#V30A00021571), he sought to amend his Family Violence Risk Assessment (FVRA) sheet.
[9]
In the
first grievance regarding his SIR sheet, the applicant alleges that the parole
officer (PO) in charge of his file harassed and intimidated him. He submits as
evidence the fact that the PO relied on facts reported in
his March 11, 1996 statement and in the complaint filed by his ex-spouse.
IMPUGNED DECISION
[10]
The three
grievance procedures progressed independently, that is, they were all filed on
different dates. The responses to the first- and second-level grievances were
also issued on different dates. In his memorandum, the applicant included a
table corresponding to each of the grievances to illustrate the steps he
followed and the decisions at each level (see pages 549 to 554). For purposes
of this proceeding, suffice it to say that each grievance was dismissed at the
first level. The grievances were partly allowed at the second level to enable
the PO to review the requests more
closely.
[11]
Following
the second-level decisions, the three grievances were effectively consolidated
on September 8, 2006.
[12]
On September 21, 2006, the applicant sent a letter
to the third-level decision-maker to dispute the PO’s memoranda.
[13]
On
December 1, the three grievances were dismissed in a single decision. This
judicial review is in reference to a decision rendered by the CSC Commissioner at the third level, on the
following grounds:
(a) The
Commissioner determined that the procedure followed by the La Macaza authorities
in response to the applicant’s requests for corrections was in compliance with
section 24 of the Act.
(b) The
Commissioner found that the inclusion of the disputed information in the
applicant’s record was in compliance with section 23 of the Act and section 17 of
the Corrections and Conditional Release Regulations, SOR/92-620 (the Regulations).
(c) Emphasizing
the administrative nature of the CSC, the Commissioner determined that criminal
evidence rules are not applicable in correctional matters. The CSC is an administrative body subject to
specific rules with different aims. Whether charges are dismissed, stayed,
withdrawn or outstanding, the CSC must ensure that the information is in all
likelihood accurate.
(d) The
Commissioner relied on Mooring v. Canada (National Parole Board), [1996]
1 S.C.R. 75 to determine that traditional evidence rules in criminal trials do
not apply to the National Parole Board and therefore do not apply to the
decision-making process of the CSC. He concluded that the burden
of proof applicable to this decision is the balance of probabilities. The Board
(and consequently the CSC) must ensure that the information is reliable and
persuasive, and that it would be just and proper to use it. The paramount
concern is the protection of society.
(e) He also found
that the PO’s alleged actions did not
amount to harassment.
RELEVANT PROVISIONS
[14]
Corrections
and Conditional Release Act,
S.C. 1992, c. 20.
|
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.
23.
(1) When a person is sentenced, committed or transferred to penitentiary, the
Service shall take all reasonable steps to obtain, as soon as is practicable,
(a)
relevant information about the offence;
(b)
relevant information about the person’s personal history, including the
person’s social, economic, criminal and young-offender history;
(c)
any reasons and recommendations relating to the sentencing or committal that
are given or made by
(i)
the court that convicts, sentences or commits the person, and
(ii)
any court that hears an appeal from the conviction, sentence or committal;
(d)
any reports relevant to the conviction, sentence or committal that are
submitted to a court mentioned in subparagraph (c)(i) or (ii); and
(e)
any other information relevant to administering the sentence or committal,
including existing information from the victim, the victim impact statement
and the transcript of any comments made by the sentencing judge regarding
parole eligibility.
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.
(2) Where an offender who has been
given access to information by the Service pursuant to subsection 23(2)
believes that there is an error or omission therein,
(a)
the offender may request the Service to correct that information; and
(b)
where the request is refused, the Service shall attach to the information a
notation indicating that the offender has requested a correction and setting
out the correction requested.
|
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.
23.
(1) Le Service doit, dans les meilleurs délais après la condamnation ou le
transfèrement d’une personne au pénitencier, prendre toutes mesures possibles
pour obtenir :
a)
les renseignements pertinents concernant l’infraction en cause;
b)
les renseignements personnels pertinents, notamment les antécédents sociaux,
économiques et criminels, y compris comme jeune contrevenant;
c)
les motifs donnés par le tribunal ayant prononcé la condamnation, infligé la
peine ou ordonné la détention — ou par le tribunal d’appel — en ce qui touche
la peine ou la détention, ainsi que les recommandations afférentes en
l’espèce;
d)
les rapports remis au tribunal concernant la condamnation, la peine ou
l’incarcération;
e)
tous autres renseignements concernant l’exécution de la peine ou de la
détention, notamment les renseignements obtenus de la victime, la déclaration
de la victime quant aux conséquences de l’infraction et la transcription des
observations du juge qui a prononcé la peine relativement à l’admissibilité à
la libération conditionnelle.
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.
(2)
Le délinquant qui croit que les renseignements auxquels il a eu accès en
vertu du paragraphe 23(2) sont erronés ou incomplets peut demander que le
Service en effectue la correction; lorsque la demande est refusée, le Service
doit faire mention des corrections qui ont été demandées mais non effectuées.
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[15]
Corrections and Conditional Release Regulations, SOR/92-620
|
17.
The Service shall take the following factors into consideration in
determining the security classification to be assigned to an inmate pursuant
to section 30 of the Act:
(a)
the seriousness of the offence committed by the inmate;
(b)
any outstanding charges against the inmate;
(c)
the inmate's performance and behaviour while under sentence;
(d)
the inmate's social, criminal and, where available, young-offender history;
(e)
any physical or mental illness or disorder suffered by the inmate;
(f)
the inmate's potential for violent behaviour; and
(g)
the inmate's continued involvement in criminal activities.
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17.
Le Service détermine la cote de sécurité à assigner à chaque détenu
conformément à l'article 30 de la Loi en tenant compte des facteurs suivants
:
a)
la gravité de l'infraction commise par le détenu;
b)
toute accusation en instance contre lui;
c)
son rendement et sa conduite pendant qu'il purge sa peine;
d)
ses antécédents sociaux et criminels, y compris ses antécédents comme jeune
contrevenant s'ils sont disponibles;
e)
toute maladie physique ou mentale ou tout trouble mental dont il souffre;
f)
sa propension à la violence;
g)
son implication continue dans des activités criminelles.
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ANALYSIS
Standard of review
[16]
Several
judges have used the pragmatic and functional analysis approach to determine
the standard of review applicable to CSC decisions. In Ewert v. Canada (Attorney General), [2007] F.C.J. No. 31 (QL),
2007 FC 13, and Mymryk v. Canada (Attorney General), [2007] F.C.J. No. 60 (QL), 2007 FC 32, I
wrote that the applicable standard is the patent unreasonableness standard when
issues of fact are involved. In Tehrankari v. Canada (Correctional Services), [2000] F.C.J. No. 495 (QL), at
paragraph 44, Lemieux J. stated as follows on the standard of review:
To
conclude on this point, I would apply a correctness standard if the question
involved is the proper interpretation of section 24 of the
Act; however, I would apply the standard of reasonableness simpliciter
if the question involved is either the application of proper legal principles
to the facts or whether the refusal decision to correct information on the
offender's file was proper. The patently unreasonable standard applies to
pure findings of fact. (Subsection 18.2(4) of the Federal Courts Act,
R.S.C. 1985, c. F-7.)
[Emphasis added.]
[17]
The
application of subsection 24(2) in this case is a question of mixed fact and
law. The Commissioner was required to apply the legal principles to the facts. In
my view, the reasonableness simpliciter standard applies to the decision
with respect to subsection 24(2).
[18]
On the
other hand, the interpretation of paragraph 23(1)(b) and of subsection 24(1)
of the Act is a question of law. In making his decision, the Commissioner
relied on Mooring, supra. Accordingly, the correctness standard is the
applicable standard.
Did the CSC Commissioner make a reviewable error?
[19]
With
respect for the contrary view, I do not find that the Commissioner made any reviewable
error in rendering his decision.
[20]
Pursuant
to subsection 24(2), the CSC is required to include all information in the
offender’s record. The CSC fulfilled its obligation in
that regard. When a request for correction is made by an offender and the
request is refused, the CSC must ensure that there is a notation that corrections
were requested but not allowed. Such a notation appears in the applicant’s
record.
[21]
The
Supreme Court has indicated that, in order to satisfy the reasonableness simpliciter
criteria, a somewhat probing examination of the reasons supporting the disputed
decision should be undertaken (Law
Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, at paragraph 47).
[22]
Section 24
of the Act imposes a second obligation on the CSC. Subsection (1) requires that
the CSC ensure that the information
is accurate, up-to-date and complete. Paragraph 23(1)(b) requires that
the CSC take every reasonable step to obtain all relevant information, including
the offender’s social, economic and criminal history. The inclusion of the
sworn statement and of the ex-spouse’s complaint is consistent with both
provisions. I shall return to this later.
[23]
The case
law highlights the fact that the main factors in risk assessment concern the
protection of society. All reliable and available information should be
considered, provided it has not been obtained improperly. Societal interest
overrides the protection of the right of the accused to a fair trial (Mooring,
supra, at paragraph 27).
[24]
The
inclusion of the sworn statement and the ex-spouse’s complaint in the record does
not allow the CSC to conclude that the
information they contain is true. In correctional matters, it is up to the
decision-maker to determine if it is fair to take into consideration disputed
information. In Mooring, supra, at paragraphs 36 and 37, the
Court stated:
What
is the content of the Board’s “duty to act fairly”? The content of the
duty of fairness varies according to the structure and the function of the
board or tribunal in question. In the parole context, the Parole Board must
ensure that the information upon which it acts is reliable and persuasive. To
take an extreme example, information extracted by torture could not be
considered reliable by the Board. It would be manifestly unfair for the Board
to act on this kind of information. As a result, the Board would be under a
duty to exclude such information, whether or not the information was relevant
to the decision. Wherever information or “evidence” is presented to the Board,
the Board must make a determination concerning the source of that information,
and decide whether or not it would be fair to allow the information to affect
the Board's decision.
In determining whether or not it would be fair to consider a particular piece
of information, the Board will often be guided by decisions of the courts
regarding the exclusion of relevant evidence. For instance, where incriminating
statements are obtained from the offender, the law of confessions based on an
admixture of reliability and fairness will be pertinent although not binding. The
Board may, in appropriate circumstances, conclude that reliance on a coerced
confession is unfair. Decisions concerning s. 24(2) of the Charter will
also be relevant to the Board's final decision. However, cases decided under s.
24(2) should not be determinative of the Board's decision to exclude relevant
information based on the principles of fairness. Obviously, different
considerations will often apply in the parole context. For example, s. 101(a)
of the Corrections and Conditional Release Act requires “that the
protection of society be the paramount consideration in the determination of
any case”. This will accordingly be a guiding principle where the Board is
required to rule on the admissibility of a particular piece of information. The
Board’s expertise and experience concerning the protection of society will aid
the Board in arriving at a decision. Should the Board fail to abide by the
principles of fairness in making those decisions, an appeal lies to the Appeal
Division under s. 147(1)(a) of the Corrections and Conditional
Release Act. The Board's decision is also subject to judicial review. [Emphasis added.]
[25]
As for the
March 11, 1996 statement, the applicant submits that it should meet the same
fate as his March
8, 1996 statement,
given that the Quebec Court of Appeal ordered a new trial on the ground that the
earlier statement was made with the hope of advantage. Based on the above-stated
legal principles, there is no evidence in the record that the March 11, 1996
statement was obtained under duress. The factual components are relevant and meet
the probability test. Even though the applicant was not charged following his confession,
I feel it is important that the CSC
make note of it in its records. The CSC did not judge the applicant as a result
of that statement; it entered the statement in his correctional record with a
notation that the applicant denied the crime. Accordingly, I find no reviewable
error here.
[26]
As for his
ex-spouse’s complaint and her request to institute legal proceedings, the
applicant claims that his ex-spouse acknowledged that the complaint was false, that
she had lied and made up the story under pressure from her godmother in Canada, Mrs. Barbosa, acting for the
Cali crime cartel in Colombia. The applicant added that his
ex-spouse even [translation] “admitted lying during an
examination.” Again, except for the applicant’s statement in his affidavit,
there is absolutely no evidence supporting these allegations. I notice,
however, that the CSC indicated in its documents that
the applicant disagrees with the version of facts in the complaint. Notwithstanding
that no charges were filed against the applicant following that complaint, I may
not, in view of the CSC’s broad
inclusionary mandate
(Mooring, supra), order these documents to be set aside.
[27]
The
applicant also disputes items 2, 9, 11, and 15 of his SIR. Pursuant to the
guidelines in Commissioner’s Directive 705-6 of April 10, 2006 regarding notations (middle
of tab 10 in the applicant’s record) the accuracy of the information should be
verified through all available sources (file review, offender, collateral contacts, etc.).
[28]
I
carefully reviewed the applicant’s reasons for disputing these items, but his
explanations have convinced me that the Court should not intervene. For
instance, the applicant maintains that he was working full-time in the
six-month period prior to committing his offence (item 15: employment status at
the time of arrest). The CSC’s reply is contained in a
September 8, 2006 memorandum (applicant’s record, page 58):
[translation]
The subject claims that he was working at
the time of his arrest.
We know from reading the record that most of his income was derived from illicit
trafficking in narcotics. In addition, the initial assessment of 97-12-08 notes
that he runs businesses and is able to support himself. (We do not know whether
this was honest, reported work.) The assessment also discloses that he recently
had employment problems.
Given his propensity for lying and deceit,
we requested, on 06-02-28, that he provide us with evidence
in this regard, such as income tax returns or other non-forged documents that could
help us verify their genuineness. We told him that if he produced this type of
evidence, we would be happy to amend his SIR. We have not yet received such documents.
[29]
This is
not an unreasonable response and it demonstrates that there was no breach of
fairness on the part of the CSC.
[30]
In sum, the
CSC correctly interpreted the Act and Regulations and the principles stated by
the Supreme Court in Mooring, supra. The CSC therefore did not act unreasonably in
dismissing the third-level grievances.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be dismissed.
“Michel
Beaudry”
Certified true
translation
Brian McCordick,
Translator
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