Date: 20121101
Docket: A-63-12
Citation: 2012 FCA 275
CORAM: BLAIS
C.J.
SHARLOW
J.A.
MAINVILLE
J.A.
BETWEEN:
MICHAEL AARON SPIDEL
Appellant
and
CANADA (ATTORNEY GENERAL)
Respondent
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
The
appellant, a former inmate at the Ferndale Institution in British Columbia
(“Ferndale”) is appealing a judgment of Justice O’Reilly of the Federal Court,
reported as 2012 FC 54 (“Reasons”) by which his application for judicial review
challenging a decision of the Commissioner of the Correctional Service of
Canada (“Commissioner”) was dismissed.
[2]
The
appellant had submitted a grievance to the correctional authorities challenging
changes made in 2010 to the Inmate Handbook at Ferndale. That change required
that the legal guardians be responsible for supervising minors under their care
during inmate visits at Ferndale. Prior to this change, inmates at Ferndale were allowed to have one-on-one visits with their minor children. Since the
change, such visits must be in the presence of the legal guardian.
[3]
The
Commissioner denied this grievance at the third level of the offender grievance
procedure set out in the Corrections and Conditional Release Regulations,
SOR/92-620. The Commissioner determined that the change to the Inmate Handbook
had been made in order to accurately reflect the policy in place at Ferndale as well as national policy and legislation.
[4]
The
appellant disputed the finding by Commissioner that the Inmate Handbook was
amended to reflect existing policy. The Federal Court judge found the
appellant’s submissions on this point to be compelling: Reasons at paras. 25 to
27. However, looking at the overall context, the Federal Court judge was
satisfied that the personal concerns of the appellant could be considered
within the framework of an individual application to participate in private family
visits without supervision. He found that the corrective measures suggested by
the appellant would not necessarily be appropriate for all inmates at Ferndale. He concluded that it was not unreasonable, therefore, for the Commissioner to
deal with the validity of the policy itself, leaving the question of whether
there were appropriate alternatives in individual cases to a separate inquiry:
Reasons at para. 29.
[5]
The
Federal Court judge further found reasonable the Commissioner’s conclusion that
the rule relating to the supervision of children’s visits with inmates was
validly established in the interests of safety and security, given that there
could be individual exceptions to that rule where safety and security concerns
could be otherwise met: Reasons at paras. 31-32. He consequently dismissed the
judicial review application.
[6]
The
appellant raises before us a single ground of appeal. He submits that the
Federal Court judge erred by applying the standard of reasonableness set out in
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (“Dunsmuir”).
The appellant further submits that the appropriate standard of review in this
case is not to be found in Dunsmuir, but rather in the Corrections
and Conditional Release Act, S.C. 1992. c. 20 (“Act”).
[7]
The
appellant notably refers to paragraphs 4(d) of the Act as it read prior
to the amendments brought by the Safe Streets and Communities Act, 2012,
c.1 s. 54. That paragraph, which is no longer incorporated into the Act,
provided that in achieving the purpose of the federal correctional system, the
Correctional Service of Canada must be guided by the principle that it must use
the least restrictive measures consistent with the protection of the public,
staff members and offenders. The appellant also refers to paragraph 4(g)
of the Act (now numbered paragraph 4(f)) under which correctional
decisions are to be made in a forthright and fair manner, with access by the
offender to an effective grievance procedure.
[8]
The
Supreme Court of Canada in Canada (Citizenship and Immigration) v.
Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 (“Khosa”) has held that
while Parliament may establish a standard of review by statute for courts
reviewing federal administrative decisions, it must do so through clear
language. Failing legislative language reflecting a clear intention by
Parliament, the Dunsmuir principles apply. As noted in Khosa at
para. 51:
[51] As stated at the outset, a legislature has the power to specify a
standard of review, as held in Owen [R. v. Owen, 2003 SCC 33,
[2003] 1 S.C.R. 779], if it manifests a clear intention to do so.
However, where the legislative language permits, the courts (a) will not
interpret grounds of review as standards of review, (b) will apply Dunsmuir
principles to determine the appropriate approach to judicial review in a
particular situation, and (c) will presume the existence of a discretion to
grant or withhold relief based on the Dunsmuir teaching of restraint in
judicial intervention in administrative matters (as well as other factors such
as an applicant’s delay, failure to exhaust adequate alternate remedies,
mootness, prematurity, bad faith and so forth).
[9]
Read
in the overall context of the Act, section 4 is a provision that outlines the
principles which guide the Correctional Service of Canada in achieving the
legislated general purpose of the federal correctional system as set out in
section 3 of the Act. Nowhere in section 4 are there references to a court or
its powers to review administrative decisions made under the Act, including decisions
regarding offender grievances. The Federal Court’s authority and power to carry
out such judicial reviews are rather to be found in the Federal Courts Act,
R.S.C. 1985, c. F-7. As decided in Khosa, the applicable standards of
review in such circumstances are those set out in Dunsmuir.
[10]
This
has been the approach adopted by our Court and the Federal Court, both prior
and subsequent to Dunsmuir, in regard to judicial review
applications challenging decisions made within the framework of the offender
grievance procedure provided for under the Act: see notably Sweet v. Canada
(Attorney General), 2005 FCA 51, 332 N.R. 87, at paras. 14 to 16; Johnson
v. Canada (Attorney General), 2008 FC 1357, 337 F.T.R. 306, at paras 36 and
39; Yu v. Canada (Attorney General), 2011 FCA 42, 414 N.R. 283, at
paras. 19 to 21.
[11]
The
principal issues before the Federal Court judge in the judicial review
proceedings were (a) whether the Commissioner erred in finding that the
impugned change to the Inmate Handbook reflected national policy regarding the
safety and security of federal penitentiary institutions, and (b) whether the
Commissioner’s refusal to consider alternative proposals was justified
considering that such alternatives could be considered within the framework of
the appellant’s individual request for personal unsupervised visits with his
minor child. Both these issues involved consideration by the Commissioner of
the proper method for ensuring safety and security in federal institutions, a
matter on which the Federal Court should show deference to the Commissioner.
[12]
In
these circumstances, the Federal Court judge applied the proper standard of
review.
[13]
I
would consequently dismiss this appeal with costs in the lump sum amount of
$800, including disbursements and taxes.
"Robert M.
Mainville"
“I agree
Pierre Blais C.J.”
“I
agree
K. Sharlow J.A.”
FEDERAL COURT OF
APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-63-12
STYLE OF CAUSE: Spidel
v.
Canada (Attorney General)
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October
31, 2012
REASONS FOR JUDGMENT BY: MAINVILLE
J.A.
CONCURRED IN BY: BLAIS C.J.
SHARLOW J.A.
DATED: November 1, 2012
APPEARANCES:
|
Michael
Aaron Spidel
|
FOR
THE APPLICANT
|
|
Jennifer
Dagsvik
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
N/A
|
FOR THE APPLICANT
|
|
Myles J. Kirvan
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
Email this Content