Date: 19971203
Docket: A-706-96
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
CHEVALIER D.J.
BETWEEN:
ALLEN EDWARD BULLOCK
Appellant,
AND:
HER MAJESTY THE QUEEN
Respondent.
Heard at Toronto, Ontario, Thursday, November 20, 1997
Judgment delivered at Ottawa, Ontario, Wednesday, December 3, 1997
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: DESJARDINS J.A.
CHEVALIER D.J.
Date: 19971203
Docket: A-706-96
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
CHEVALIER D.J.
BETWEEN:
ALLEN EDWARD BULLOCK
Appellant,
AND:
HER MAJESTY THE QUEEN
Respondent.
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] This is an appeal from a decision of a Motions Judge by which he dismissed Allen Edward Bullock's (Appellant) motion for an order extending the time to file an application for judicial review from the decision of the Correctional Services of Canada ordering his involuntary transfer from a medium security to a maximum security institution.
[2] A brief summary of the relevant facts is necessary to understand the background surrounding this appeal which was argued by the Appellant personally under important security measures.
The Facts
[3] The Appellant is currently an inmate of Kingston Penitentiary, in Kingston, Ontario, who is serving an indeterminate sentence for a variety of offences. At all material times, he was an inmate of Warkworth Institution, a medium security institution operated by the Respondent and located in the Township of Brighton in the county of Northumberland.
[4] On December 12, 1994, the Respondent approved the Appellant's emergency involuntary transfer to Kingston Penitentiary. Not only did the transfer provide the Appellant with fewer privileges and less contact with his family and outside support, but it also immediately compromised his chances on short or mid-term of obtaining release on parole.
[5] The Appellant has now spent almost three years in the maximum security jail pursuant to the decision to order his transfer. He has tried to attack the decision relentlessly over the years, but in vain.
[6] Immediately upon his transfer, the Appellant filed grievances against the Respondent's decision and sought legal advice through the Ontario Legal Aid Services. His request for legal aid was eventually turned down definitively in March 1996. I shall return later to some of the relevant dates regarding his legal aid application and his grievances. Suffice it to say for the time being that the final denial of his grievance by the Respondent came only on August 18, 1995. The Appellant brought an application for Judicial Review of the impugned decision on June 28, 1996. He was told that he had to seek an extension of the time to file his application, which he did unsuccessfully.
[7] There are obviously a fair number of other facts that are important and relevant to this appeal, but I propose to deal with them as I consider the two issues involved in these proceedings.
The Delay in Seeking Judicial Review
[8] The first obstacle for the Appellant to overcome is the delay in seeking a judicial review. The basic rule established by s. 18.1(2) of the Federal Court Act is that judicial review has to be sought within 30 days from the day the impugned decision is rendered. It is also trite law that an extension of time may be granted but, as a general rule, such extension will be allowed only if the entire delay is satisfactorily accounted for and if the application discloses a fairly arguable case within the jurisdiction of the Court1. However, as this Court said in Grewal v. M.E.I.2, it should be borne in mind that the underlying consideration in applications of this kind is whether, in the circumstances presented, to do justice between the parties calls for the grant of the extension. The test which requires proof of a reasonable explanation and an arguable case is, in my view, merely a means of achieving that purpose. In exceptional circumstances, this Court has granted an extension of time of eight months for a judicial review precisely in order to achieve justice3.
[9] The initial decision to transfer the Appellant was taken by the Respondent on December 12, 1994 and the Appellant was notified on the following day4. Within 48 hours of such decision, the Appellant filed a grievance with the local authorities as he was entitled to5. It is worth noting that it is only on February 13, 1995 that the transfer of the Appellant was approved by the relevant authorities6. The Appellant then obtained the right to appeal to the Regional authorities which he did7. On March 20, 1995, the Appellant's second level grievance was denied8.
[10] The Appellant persisted in the vindication of his rights and, pursuant to the internal review process, launched a third level grievance to the Regional Headquarters. His grievance was finally dismissed on August 18, 19959.
[11] Early in January 1995, while his initial grievance was still pending, the Appellant sought legal advice and legal aid. He also complained to the Minister of Justice as well as to the Solicitor General from whom he got answers in May 199510. While the Minister of Justice informed the Appellant that the matter was not within his purview, an employee of the Respondent answered on behalf of the Solicitor General and, not unexpectedly, supported the transfer decision. On May 5, 1995, Mr. Michael Mandelcorn provided a favorable legal opinion to the Ontario Legal Aid Plan, but nonetheless the Appellant's application was turned down by the Area Committee on May 2511.
[12] On June 20, 1995, Mr. R. Goddard from the Correctional Law Project at Queen's University wrote to the Area Director of the Ontario Legal Aid Plan, but to no avail, a substantial legal opinion in support of the Appellant's appeal to overturn the decision refusing his application12.
[13] Throughout the grievance process, the Appellant fought and stood alone without legal representation and legal assistance. When the guillotine finally fell on his grievance on August 18, 1995, the Appellant had nowhere to go. He was alone, in a maximum security jail, without legal knowledge and legal representation and with a freedom of movement severally restricted which greatly reduced his access to legal services.
[14] A letter of February 21, 1996 from a lawyer, Mr. Scully, to the Area Director of the Ontario Legal Aid Plan where the Appellant's appeal was still pending clearly indicates that the Appellant was still desperately seeking to obtain the services of a lawyer to challenge before the Federal Court his involuntary transfer to the Kingston Penitentiary13. The letter indicates that the Appellant had contacted this lawyer on several occasions over the last few months and that the lawyer had attended at Kingston Penitentiary on three separate occasions to interview the Appellant at length.
[15] In the end, in despair, without appropriate resources and some eight months after the expiration of the delay to challenge the dismissal of his grievance on August 18, 1995, the Appellant wrote at the beginning of May 1996 to the Federal Court and sent his claim. Needless to say that the material sent did not conform to the norms and standards usually followed in this Court. In a letter dated May 16, 1996, the Registry Officer sent the Appellant a copy of the Federal Court Act and Rules with instructions and guidance as to how to proceed and as to the need to seek an extension to commence an application for judicial review14. It also offered him assistance in the usual tradition of this Court.
[16] I have reviewed at some length the Appeal Book Record provided by the Appellant to show his persistent and uninterrupted efforts to seek redress against his involuntary transfer to a maximum security institution. Such review also reveals the difficulties encountered by an unrepresented inmate in getting proper and meaningful access to the Courts, especially when he is detained in a maximum security jail.
[17] In the particular circumstances of this case, where the unrepresented inmate held on an indeterminate sentence still suffers the prejudicial effects of his transfer to a maximum security institution, including a jeopardy of his parole rights, the concepts of time, due diligence and justice take a different connotation. At all times, the Appellant intended to and did challenge the decision of the Respondent regarding his transfer and, as diligently as he could under trying circumstances, has tried to seek judicial review of the Respondent's final decision.
[18] I am satisfied that, in these circumstances, the Appellant has given a reasonable and satisfactory explanation for the eight month delay in bringing his application for judicial review and, therefore, that his application for an extension of time meets the first part of the test.
The Arguable Case
[19] The Appellant submitted to us that he has an arguable case and referred us to his affidavit and to various documents filed with his application record.
[20] The Notice of Emergency Involuntary Transfer Recommendation which was served on him enunciates in the following terms the reasons for his transfer:
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NOTICE OF EMERGENCY INVOLUNTARY |
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The following reasons have resulted in this recommendation: |
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1. Your admittance into Administrative Segregation as a result of your unacceptable behavior, and your incurred institutional charge. Since this admission information from a reliable inmate source has informed us that you have made verbal threats regarding serious acts of violence and sexual assault against a female staff member. This is deemed a serious threat to the safety and security of CSC staff and to the Institution. |
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2. Your convictions are of a violent and sexual nature and give rise to concern that you will act out violently or sexually when an opportunity exists. |
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3. You have incurred numerous charges at this institution which reflect your need for increased structure and security. |
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4. You are being reclassified as a maximum security offender. |
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5. Given the structure and routine at Warkworth Institution, it is impossible to meet your given security needs and an Emergency Transfer is therefore required. |
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6. You will be afforded the opportunity to address your criminogenic need at Kingston Penitentiary. |
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7. In accordance with C.D. 540 section 16 you are hereby advised that you have 48 hours to submit a rebuttal either in person or in writing to this proposed Involuntary Transfer. Your rebuttal must be directed to the Warden of the sending Institution (Warkworth). Your failure to provide a written rebuttal within 48 hours will be considered as your acceptance of the proposed transfer. |
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(emphasis added)
[21] The Appellant immediately denied, in his rebuttal, the allegation made by an inmate source and complained about the unfairness of the process as he was not given any necessary details to appropriately rebut the allegation. He wrote:
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I deny it, but I can't do anything beyond denying it. At least give specifics. The information I have been provided with does not say where, when and with whom and that is not fair to me15. |
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[22] It is interesting to note that Paragraph 6 of Annex 'A' of the Commissioner's Directive 540, which deals with the transfer of inmates, states:
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The notice of recommendation for an involuntary transfer, which is provided to an inmate, must contain enough information to allow the inmate to know the case against him or her. The inmate must be in a position to be able to respond to the recommendation for an involuntary transfer. To meet this standard, the details of the incident(s) which prompted the transfer recommendation must be provided to the greatest extent possible. This shall include providing the inmate with the following information regarding the incident(s): where it occurred, when it occurred, against whom it occurred, the extent of injury or damage which resulted, the evidence or proof of its occurrence, any further relevant information which may elaborate on the incident(s). |
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(emphasis added)
[23] Counsel for the Respondent has been unable to point to any evidence in the record before us that would show that the Appellant was given adequate information to meet the allegation made by another inmate which appeared to be the main justification for the transfer.
[24] In the course of Winter 1995, the Appellant sought to have access to his personal file through the Access to Information Act. On April 27, 1995, after he had submitted his third level grievance, he received his files from the Respondent. At that point, he discovered that additional serious allegations (Observation Report dated 30/11/94 - alleged perceived watching too close a female staff member and Observation Report dated 24/11/94 - alleged possession of a knife) had been put by the authorities of the Warkworth's Institution in the Transfer Package file on January 25, 1995 and that he was never told of these allegations, let alone given details and an opportunity to rebut them16.
[25] A review of all these facts satisfies me that the Appellant has shown an arguable case with respect to the fairness of his involuntary transfer by the Respondent to a maximum security institution.
[26] In my view, for all these reasons and because the transfer decision "would continue to affect the future rights of the parties inter se"17, justice requires that an extension be granted to have the legality of the transfer reviewed. Consequently, the appeal should be allowed, the Order of the Motions Judge set aside, the Application for an extension of time to file an Application
for judicial review granted and the time within which the Appellant may commence a judicial review application of the transfer decision should be extended to and including June 28, 1996.
"Gilles Létourneau"
J.A.
"I concur
Alice Desjardins J.A."
"I concur
François Chevalier D.J."
__________________
1 Feder Holdings Ltd. v. M.N.R. (Customs & Excise), [1987] 2 C.T.C. 169 (F.C.A.).
2 [1985] 2 F.C. 263, at p. 272 (F.C.A.).
3 Re National Association of Broadcast Employees and Technicians and Western Ontario Broadcastings Ltd., [1979] 25 N.R. 471 (F.C.A.).
4 Appeal Book, p. 15.
5 Appeal Book, pp. 9-10.
6 Appeal Book, pp. 19-20.
7 Id.
8 Appeal Book, p. 72.
9 Appeal Book, p. 11.
10 Appeal Book, pp. 102-112.
11 Appeal Book, pp. 38-39 and 37.
12 Appeal Book, pp. 25-31.
13 Appeal Book, pp. 21-23.
14 Appeal Book, pp. 113-114.
15 See the Rebuttal sent by the Appellant to the Warden of the Warkworth Institution, Appeal Book, p. 10.
16 See paragraphs 2, 8, 39-42 the uncontradicted affidavit of the Appellant.
17 Grewal v. M.E.I., supra note 2, at p. 276.
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