Docket: T-1627-15
Citation:
2016 FC 695
Ottawa, Ontario, June 20, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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PATRICK DANIEL
FISCHER
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review by
the Applicant, a federal inmate, of the third level grievance decision of the
Senior Deputy Commissioner [Commissioner] of the Correctional Service of
Canada, Offender Redress Division [CSC] dated December 12, 2014, dismissing the
Applicant’s grievance concerning his request to have numerous CD-ROMs
containing legal material allowed in his cell.
I.
Background
[2]
The Applicant, Patrick Fischer, is a federally
incarcerated inmate serving a life sentence for first degree murder. Though
leave to appeal his conviction was denied by the Supreme Court of Canada on
December 15, 2005 (R v Fischer, [2005] SCCA No 308), the Applicant
advises he is working to overturn his conviction with the Association in
Defence of the Wrongly Convicted.
[3]
Among the Applicant’s personal property are
numerous CD-ROMs, some containing legal materials pertaining to the criminal
conviction for which he is incarcerated. Upon transferring from Kent Maximum
Security Institution to Mountain Medium Security Institution, the CD-ROMs were
confiscated and he was informed they were not permitted in his cell.
[4]
Inmate grievances relating to actions or
decisions of CSC staff are governed by the procedure set out in section 90 of
the Corrections and Conditional Release Act, SC 1992, c 20 [CCRA].
The Corrections and Conditional Release Regulations, SOR/92-620 [CCRR]
outline the four stages of the grievance procedure in sections 74 to 82 as: (1)
an initial complaint; (2) a written grievance to the institutional head [the
first level grievance]; (3) an appeal to the regional head [the second level
grievance]; and (4) a final appeal to the Commissioner [the third level
grievance].
[5]
The Applicant submitted a first level grievance
on June 4, 2012, a second level grievance on August 13, 2012, and a third level
grievance on June 5, 2013. The first and second level grievances determined the
CD-ROMs were considered “burned”, which is
contrary to policy. The decision-makers at both levels found that the
arrangement permitting the Applicant to view his materials on a CSC computer in
the Operations Building constituted reasonable access to his legal reading
materials, as required under subsection 97(3) of the CCRR.
[6]
At the third level grievance the Applicant made
the following arguments:
- the CD-ROMs were
not homemade as they were professionally transferred and labelled by a
professional video company;
- the CD-ROMs were
issued to him while he was previously incarcerated at Kent Institution,
have been authorized to be in his possession since at least 2003, and
thus, should also be allowed at Mountain Institution;
- that restricting
his possession of the CD-ROMs violated his Charter rights and was also
contrary to the principles guiding CSC in subsection 4(d) of the CCRA;
- that the access
to the CD-ROMs he was provided was not “reasonable
access” as it jeopardized his safety due to the fact other
inmates would consider him to be a “rat”;
and
- that the
computer he had been given did not have installed software such that he
could in fact access the material on the CD-ROMs.
[7]
The third level grievance issued September 4,
2013, denied the Applicant’s request on the basis that the material on the
CD-ROMs – containing crime scene video and pictures – were not appropriate for
viewing in an institutional environment, and that pursuant to subsection 96(1)
of the CCRR, correctional staff could prohibit the CDs [the Previous
Decision]. The Previous Decision also notes the Applicant did not prove he was
permitted to retain the CDs at Kent Institution.
[8]
The Applicant filed for judicial review of the
Previous Decision on May 7, 2014 (T-1140-14). Upon motion by the Attorney
General acknowledging the decision was flawed, the Court ordered that the
Previous Decision be sent back for redetermination by consent on August 14,
2014. The Court issued no reasons [the Previous Judicial Review].
[9]
On September 17, 2014, prior to the
redetermination third level grievance decision being rendered, the Applicant
was transferred on an emergency involuntary basis from Mountain Institution
back to Kent Institution. He is permitted access to the CD-ROMs in a designated
area, but they are not permitted in his cell.
[10]
The December 12, 2014 third level grievance decision
under review denied the Applicant’s request [the Decision]. The Commissioner
reviewed the Applicant’s grievance in light of his previous submissions,
relevant legislation and policy, the Applicant’s correctional file and the
Previous Judicial Review.
[11]
The Commissioner agreed with the finding of the
first and second level grievances that the arrangement providing the Applicant
access to his legal materials was reasonable.
[12]
The Decision describes that paragraph 14 of Commissioner’s
Directive 566-12, Personal Property of Inmates [CD 566-12], outlines the
items inmates will normally be allowed to retain, provided they are consistent
with the National Lists of Personal Property and do not pose a safety risk.
Permitted items include:
(a) items, which were in the inmates’ lawful
possession at the time of admission or readmission to their placement
institution, or in their lawful possession on transfer, unless indicated
otherwise for reasons of safety, health or security and the security level of
the institution;
[13]
Annex B to CD 566-12, the National List of
Personal Property for Men Inmates, indicates Men Inmates are permitted 40 Audio
cassettes, audio CDs or CD-ROM disks, but stipulates “No
CD-RW, CD-A-Write, … or “burned” permitted (exception: PBC digital recordings
on CD)”.
[14]
As well, paragraphs 9 and 10 of Annex D to CD
566-12, referring to allowable peripherals for inmates with authorised
computers (not the Applicant’s case), prohibits “burned”
or “homemade” CDs. The Decision explains that
Threat Risk Assessments conducted by CSC Security have assessed that it is
difficult to ascertain the true content of such CDs.
[15]
In specific response to the Applicant’s
submissions, the Decision notes the following:
- though the
CD-ROMs may have been professionally reproduced, they did not originate
from an approved vendor and are therefore considered “burned” or “homemade”
CDs, prohibited under CD 566-12;
- the Applicant
provided no documentation confirming he was permitted at Kent Institution
to possess the CD-ROMs in his cell: nor were these items recorded on the
Applicant’s Offender Personal Property Records at the time of the
Decision;
- there is no
indication that the Applicant’s safety is jeopardized by the
accommodation; and
- the Institution
should ensure the computer provided for accessing the materials has the
same software as inmate-authorized computers, which was confirmed to have
been the case for the computer provided the Applicant for the purpose of
accessing his legal materials.
[16]
The Commissioner thus found that the Applicant
was afforded the opportunity to review the legal materials in a safe and
controlled environment, and when balanced with the need to ensure security of
the Institution, the measures taken to facilitate access to the Applicant’s
legal materials were reasonable.
[17]
Finally, the Decision notes that the Applicant
was transferred to Kent Institution, and it outlines the procedure the
Applicant must go through at that Institution to access his CD-ROMs.
II.
Issues
[18]
The issues are:
- Is the
Decision’s denial of the Applicant’s request for permission to have
CD-ROMs containing legal material allowed in his cell reasonable?
- Is the
Decision’s finding that the Applicant had reasonable access to the
CD-ROMs, in accordance with subsection 97(3)(a) of the CCRR
reasonable?
III.
Standard of Review
[19]
The merits of the third level grievance decision
are to be reviewed against the standard of reasonableness. It is a decision of
mixed fact and law, and CSC personnel are better situated than the Court to
make and review decisions arising in the correctional setting (Spidel v
Canada (Attorney General), 2011 FC 999 at para 31 aff’d 2012 FCA 26; Dunsmuir
v New Brunswick, 2008 SCC 9 at paras 47-50).
[20]
I have also considered whether the Commissioner
fettered her discretion (an argument not raised by the parties, but on the face
of the Decision, a necessary consideration), which is also reviewed on the
standard of reasonableness: a decision that is the product of a fettered
discretion is per se an unreasonable decision (Stemijon Investments
Ltd v Canada (Attorney General), 2011 FCA 299 at paras 22-25).
IV.
Analysis
A.
Preliminary Issue
[21]
The Applicant contends the Decision is the same
as that which was sent back for redetermination by this Court in file number
T-1140-14. He claims the new Decision virtually mirrors determinations and
reasons provided in the Previous Decision, acknowledged by the Respondent to be
in flawed. No new issues or justifications are provided in the Decision, and
the Applicant argues causing him to relitigate the same issue over constitutes
bad faith.
[22]
He describes that after speaking with
Respondent’s counsel in the Previous Judicial Review, he was left with the
understanding that the Respondent was no longer disputing the accuracy of his
submissions and would tender a Motion for Consent to allow the Application.
Thus, he argues that the Decision in this proceeding has made determinations
contrary to facts acknowledged in the Previous Judicial Review.
[23]
However, the Previous Judicial Review provides
no reasons as to why it was granted. It may have been on a substantive basis,
but could also have been granted on procedural grounds. The reasons for the
Respondent’s Motion for Consent to grant the judicial review are not provided
and the Court in this application cannot speculate or make inferences that are
not supported by the record as to what was conceded by the Respondent, or for
what reason the Decision was sent back for redetermination. There is no
evidence of bad faith or improper purpose.
[24]
I do however note that the Applicant is correct
to point out that the Previous Decision is very similar to the Decision currently
under review.
B.
Is the Decision’s denial of the Applicant’s
request for permission to have CD-ROMs containing legal material allowed in his
cell reasonable?
[25]
The Respondent submits the Decision was
reasonable. Pursuant to subsection 96(1) of the CCRR, circulation within
the penitentiary of any video audio material or computer program that the
institutional head or staff member believes on reasonable grounds would
jeopardize the security of the penitentiary or the safety of any person may be
prohibited.
[26]
CD 566-12 expressly sets out in Annex B that “burned” CDs are not permitted in cells. The
documentation before CSC confirmed that the CD-ROMs in this case are rewritable
CDs (CD-R or CD-RW type) and determined by staff to be “burned”
materials containing crime scene video and pictures.
[27]
The Commissioner determined the CD-ROMs were not
allowed in the Applicant’s cell because, although they may have been
professionally produced, they are considered “homemade”,
as they do not originate from an approved vendor. The Decision conveys that
pursuant to paragraph 14, Annex B and Annex D of CD 566-12, burned or homemade
CDs are prohibited.
[28]
I find that the Decision denying the Applicant’s
request for permission to have his legal CD-ROMs allowed in his cell is not
justified by transparent and intelligible reasons.
[29]
First, the Decision’s characterization of all
CDs not originating from an approved vendor as “homemade”
is unreasonable. Such an interpretation is not found in or supported by CD
566-12, the CCRA, the CCRR, or a consideration of the ordinary
meaning of the term “homemade”.
[30]
Second, the Decision notes that the
justification for prohibiting burned or homemade CDs is because “it is difficult to ascertain their true content”.
Yet, there is no discussion within the Decision under review of the content of
the CD-ROMs, or whether they would jeopardize the security of the penitentiary
or the safety of any person in accordance with subsection 96(1) of the CCRR.
[31]
Lastly, the Decision is unreasonable because in
considering whether the CD-ROMs would be permitted in the Applicant’s cell, I
find that the Commissioner fettered her discretion provided under the CCRA and
CCRR.
[32]
Subsection 96(p) of the CCRA states the
Governor in Council may make regulations authorizing the institutional head, or
a designated staff member to control the use by inmates of publications, video
and audio materials, films and computer programs.
[33]
Subsection 96(1) of the CCRR provides the
institutional head or a designated staff member with the discretion to prohibit
the entry into, or the circulation within the penitentiary of any publication,
video or audio material, film or computer program that he or she “believes on reasonable grounds would jeopardize the security
of the penitentiary or the safety of any person.”
[34]
CD 566-12 establishes procedures for the
authorization, possession, control and protection of offender property. It is
settled law that such policy manuals or directives are not law and are not
binding on the decision-maker.
[35]
Directives and “soft
law” from administrative agencies are important to ensure the
consistency and efficiency of the decision-making process. However,
administrative decision-makers are required to examine the particular facts of
each case, and should not apply guidelines, policy statements or directives as
if they were law (Ha v Canada (Minister of Citizenship and Immigration),
2004 FCA 49 at para 71; Thamotharem v Canada (Minister of Citizenship &
Immigration), 2007 FCA 198 at para 62 [Thamotharem]; Lussier v
Canada (Revenue Agency), 2015 FC 10 at paras 25-29 [Lussier]).
[36]
In Thamotharem, above, the Federal Court
of Appeal stated:
[62]…while agencies may issue guidelines or
policy statements to structure the exercise of statutory discretion in order to
enhance consistency, administrative decision makers may not apply them as if
they were law. Thus, a decision made solely by reference to the mandatory
prescription of a guideline, despite a request to deviate from it in the light
of the particular facts, may be set aside, on the ground that the decision
maker's exercise of discretion was unlawfully fettered: see, for example, Maple
Lodge Farms [v Canada (1982), [1982] 2 S.C.R. 2] at page 7.
[Emphasis added]
[37]
In concluding the CD-ROMs were prohibited
materials, the Commissioner fettered the discretion afforded her under the CCRR
by only considering the mandatory prescription of CD 566-12. This is
notwithstanding the Applicant’s request to deviate from it in light of the
particular facts that the CD-ROMs were professionally produced and contain legal
material to which he is entitled access, and that PBD Decisions are exempted,
and as such these legal CD-ROMs should also be exempted.
[38]
The Commissioner does not assess whether to
exercise the discretion granted under the CCRR to deviate from CD 566-12
on these particular facts, nor does the Decision consider the principles set
out in sections 3.1, 4(c), 4(d) and 4(f) of the CCRA, which are
explicitly referenced in CD 566-12 as guiding principles for such
decision-making.
[39]
It is only after having determined that the
CD-ROMs were prohibited that the Commissioner references subsection 97(3) of
the CCRR to determine whether the Applicant had been provided “reasonable access to legal materials”.
[40]
The Decision references the “balance that must be struck between the need to ensure the
security of the Institution and [the Applicant’s] right to have reasonable
access to [his] legal materials”. Yet, the Decision never once indicates
how the Applicant having access to the legal CD-ROMs jeopardizes the security
of the Institution, or considers whether removal of the CD-ROMs was a necessary
and proportionate measure in accordance with guiding principles set out under
the CCRA.
[41]
In solely referencing the Directive, and
applying it as if it were law, the Commissioner fettered her discretion, and
the Decision is thus unreasonable (Thamotharem, above, at para 62; Lussier,
above, at paras 25-29).
C.
Is the Decision’s finding that the Applicant had
reasonable access to the CD-ROMs in accordance with subsection 97(3)(a) of the
CCRR reasonable?
[42]
The Applicant acknowledges that he was offered
access in a “safe and controlled environment”; however,
he claims it is the repercussions and aftermath of such access that jeopardizes
his safety. He submits CSC knows being suspected a “rat”
is a serious safety issue.
[43]
The evidence is conflicting on whether the
access afforded the Applicant was reasonable:
- the record
suggests the Applicant was not actually able to access the material on the
CD-ROMs using the laptop provided;
- the Applicant’s “cross-examination” of Roger Sehra, Correctional
Manager of Operations at Mountain Institution, revealed that the laptop
provided the Applicant was configured with the necessary software by
October 2, 2013 – which post-dates the Applicant’s attempt to access his
material; and
- the record
before the Commissioner also conveys however that “the
laptop was a non-networked CSC computer [that] did provide reasonable
access as the software was typical of the common Inmate computer found on
a range in the living units”.
[44]
In my view, there is no need to consider this
issue, given the above finding of unreasonableness. Moreover, the determination
of reasonable access is arguably a moot issue: the Applicant has since been
transferred to Kent Institution and there is insufficient evidence before the
Court on the reasonableness of the access at this Institution to make any
determination that would have a practical effect on the Applicant’s current
rights.
[45]
There is no evidence of bad faith, vexatious or
egregious conduct, as alleged by the Applicant, and no punitive or exemplary
damages are warranted based on the facts before the Court.
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