Date:
20080605
Docket: A-389-07
Citation: 2008 FCA 202
CORAM: LÉTOURNEAU J.A.
NOËL
J.A.
TRUDEL
J.A.
BETWEEN:
JEAN-CLAUDE BOUCHARD
Appellant
and
ATTORNEY GENERAL OF CANADA
and
CORRECTIONAL SERVICE OF CANADA
Respondents
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1]
The
appellant is appealing a decision of Justice Shore of the Federal Court (the
judge), who dismissed the appellant's application for judicial review of a
third-level grievance decision of the Correctional Service of Canada. The
grievance concerned two issues: the raising of the appellant's security classification
and his transfer. His security classification
was increased from minimum to medium, and he was transferred from a
minimum-security institution to a medium-security one.
[2]
The
appellant represented himself.
His appeal seeks a number of remedies that are not in our jurisdiction to grant
in the context of the present appeal. Furthermore, he mentions topics in his memorandum of fact and law that were not before the
judge and that we therefore cannot rule on.
[3]
Furthermore,
it is not easy to identify the issues that are being appealed before us. The
safest way in this case is to examine the decision the judge made on the
following four issues, over which the parties seemed to have been in agreement
in first instance:
1. Did the
Assistant Commissioner of penitentiaries (the Commissioner) err when he refused
to decide the issue of whether administrative segregation was justified?
2. Did
the Commissioner commit a patently unreasonable error by determining that the
delay in responding to the appellant’s grievance was not prejudicial to the
appellant?
3. Was the
information provided to the appellant regarding the reasons to justify the
appellant’s raised security classification and transfer insufficient so as to
amount to a breach of procedural fairness?
4. Did the
decision-maker commit a patently unreasonable error in determining that the
reasons underlying the applicant’s raised security classification and transfer
justified these two measures?
[4]
The
judge’s answer to each of these questions was no. The
task before us is, first, to determine whether the judge chose the correct
standard of review to analyse the administrative decision-maker's decision.
Second, if the judge chose the correct standard of
review, we must ensure that it was correctly applied to the facts in the case.
If an incorrect standard was chosen, we must analyse
the administrative decision maker's decision by applying the correct standard
of review.
[5]
Since Dunsmuir
v. New Brunswick, 2008 SCC 9, dated March 7, 2008, the patent
unreasonableness standard has disappeared, having been replaced by that of
unreasonableness simpliciter. However, the more exacting standard of
patent unreasonableness prevailed at the time the Federal Court delivered its
judgment on February 7, 2007. That said, I do not think that the judge’s
conclusions would have differed whether he applied one or the other standard.
[6]
With
respect to the first question, the judge did not err in concluding that the
issue of administrative segregation had not been before the administrative
decision-maker, as it had already been the subject of a different third-level
grievance, and the unchallenged decision on this grievance was res judicata.
[7]
The judge
was also right to endorse the findings of the authorities, according to which
the six-day delay in responding to the second-level grievance did not prejudice
the appellant.
[8]
Lastly, as
for the two other issues, the judge stated the law correctly with respect to
the principles applicable to the required sharing of information with an inmate
to allow him or her to verify and challenge the reasonableness and seriousness
of the belief on which a transfer decision is based: see Gallant v. Canada
(Deputy Commissioner, Correctional Service Canada), [1989] 3 F.C. 329
(F.C.A.); Cartier v. Canada (Attorney General), [1998] F.C.J. No. 1211
(Trial Division) (QL); Blass v. Canada (Attorney General), 2002 FCA 220;
Canada (Attorney General) v. Boucher, 2005 FCA 77.
[9]
He was
right not to interfere with the Commissioner’s decision to raise the
appellant’s security classification and order his transfer.
[10]
The
evidence on record established the reasonableness and seriousness of the
decision.
[11]
The
assessment reports and notification of decision for the involuntary transfer
show that the appellant’s attitudes and behaviour had deteriorated and that he
had behaved in a threatening manner towards other inmates, resisted
instructions, not co-operated with the reintegration team, despite a warning,
and challenged the objectives that had been set for him. From this, the
authorities concluded that the appellant posed an undue risk to a minimum-security
institution.
[12]
Before
concluding, I have to refer to the following obiter that the judge added
not to his reasons, but, astonishingly, at the end of his formal judgment:
JUDGMENT
THE COURT ORDERS that
the application for judicial review be dismissed;
OBITER
The length of time
served may be one of the circumstances considered in applying the statutory
criteria to an individual's circumstances. It may not of itself justify parole
but it may well serve as an indication that the inmate is no longer dangerous.
As well, a lengthy incarceration with the concomitant institutionalizing effect
upon the inmate may serve to explain and perhaps to some extent excuse certain
breaches of discipline.
(Steele v. Mountain
Institution, [1990] 2 S.C.R. 1385.)
Despair often engenders
frustration. Mr. Bouchard has spent nearly 25 years of his life in prison. For
17 years, his conduct was exemplary. In 2002, the decision to reduce his full
parole eligibility period created in Mr. Bouchard an expectation of imminent
release from incarceration and re-entry into the community. However, since the
incidents reported by the CSC in 2002-2003, Mr. Bouchard has lost hope and his
situation is deteriorating. The refusal to grant parole in 2003 threw him into
a cycle of frustration of the sort referred to above. Indeed, Mr. Bouchard’s
refusal to cooperate with the National Parole Board (NPB) can be traced back
almost exclusively to his most recent years of imprisonment. Since that time,
this behaviour has been the product of his frustration, and he is focussing his
energy on alternative legal remedies to secure his release.
In light of
the foregoing, the decision in Mr Bouchard’s parole review scheduled for 2008
must be based on the criteria set out by Mr. Justice Peter deCarteret Cory in Steele,
supra, at paragraph 65; in other words, the Board will grant parole
where (i) the inmate has derived the maximum benefit from imprisonment, (ii)
the inmate's reform and rehabilitation will be aided by the grant of parole,
and (iii) the inmate's release would not constitute an undue risk to society.
In R. v. Lyons, [1987] 2 S.C.R. 309, at pages 340-341, Mr. Justice
Gérard V. La Forest described as follows the fundamental importance of these
criteria in the Board’s assessment of offender sentences:
[48] ... in the
context of a determinate sentencing scheme the availability of parole
represents an additional, superadded protection of the liberty interests of the
offender. In the present context, however, it is, subsequent to the actual
imposition of the sentence itself, the sole protection of the dangerous
offender's liberty interests. [...] Seen in this light, therefore, the parole
process assumes the utmost significance for it is that process alone that is
capable of truly accommodating and tailoring the sentence to fit the
circumstances of the individual offender.
Therefore, these
criteria will serve as guidelines for the Board to take into consideration as
it assesses the progress of Mr. Bouchard, not only since the incidents that
occurred in 2002, but also for the 17 years before that.
i) Has the inmate
derived the maximum benefit from imprisonment?
Throughout Mr.
Bouchard’s incarceration, specialists’ reports have stated that he was deriving
the maximum benefit from his imprisonment. First, the grant of parole in 2002
was based on abundant evidence of good conduct and the fact that, having given
up drugs and alcohol since 1984-85, he had participated in numerous
rehabilitation programs and completed more than ninety (90) escorted temporary
absences (ETA). In that regard, it is important to note that all of the ETA
reports dated 2000 to 2001 are positive and all assessment reports subsequent
to temporary absences or work releases dated 2001 to 2003 are positive, except
for the one dated August 7, 2001 (Exhibit D-9).
Secondly, according to
the assessment of criminological factors dated February 3, 2002 (Exhibit D-5),
Mr. Bouchard made significant progress towards a re-entry into the community.
Certain parts of that report should be noted for a better understanding of the
sort of progress Mr. Bouchard has achieved since the outset of his
incarceration:
Re behaviour:
[TRANSLATION]
[Mr. Bouchard] presents in the interview
as being relatively at ease. He was extremely cooperative with me. The
atmosphere quickly became conducive to a productive exchange. His speech was
candid and straightforward and he demonstrated openness and authenticity. His
thinking was coherent and his vocabulary was appropriate. This is a sociable,
approachable, fairly articulate person. He is modest and humble in his
presentation and description of himself. He likes to talk to people and shows
an interest in becoming a better person.
He spoke to me frankly
about his past, present and future and was open and transparent about past
thoughts and actions that had the potential to cast him in a bad light. He
courageously told me about his beliefs, his truth. He was not afraid to bare
himself psychologically, and did so with surprising candour; indeed, this
openness seems to be part of who he is now.
I was not able to detect
any kind of manipulation on his part such as diversion, systematic obstruction,
direct or veiled intimidation, prevarication, flattery, seduction or overstated
victimization. His version of his life story corresponds in every respect to
all of the other assessments on file that have been carried out to date.
Mr. Bouchard appears to
have a strong potential for introspection, which allows him to care about
others and adapt while developing effective personal and social skills so as to
derive a sense of personal achievement from it.
Self-criticism is fairly
articulate. He recognizes his criminal orientation from that time, his
inconsistent and egocentric behaviour, his rigid approach, his lack of social
empathy, his moral judgment narrowed and perverted by criminal objectives. He
admits that he mortgaged the lives of many members of his family and those of
others (his victims) as well as his own life. He has a clear perception of his
former personal deficiencies, and over time, he has come to identify fairly
clearly the dynamic anchors that motivated him at that time in his life.
His affect is modulated
to his speech. He is capable of interpersonal sensitivity and well-adapted
emotions. He becomes sad when he talks about the various losses in his life
(parents, siblings) and shows optimism about the future. He is capable of
affective attachment; we noted that he is highly receptive to others’ points of
view and demonstrates an excellent ability to interact with others. His
attitude appears natural and sincere, not superficial or forced: Mr. Bouchard
does not exhibit any kind of manipulation aimed at creating a favourable image of
himself. This is a communicative and expressive person. He has good adaptive
resources and effective control.
His overall demeanour is
confident and self-assured, without being presumptuous or rash. In other words,
this is someone who is not fearful or apprehensive in the face of obstacles;
rather, he is determined, energetic and anxious to realize his full potential.
(Exhibit D-5, pages 3-4)
Re his progress over the
course of his sentence:
[translation]
[…] The death of his
brothers and a sister at the end of the 1980s […] was a very painfully
emotional experience for the subject, one that appears to have set in motion a
gradual, noticeable softening of his adaptive mechanisms. He has started to
appear more reasonable and interactive towards authority and his entourage,
adopting a more constructive, less arrogant and resistant approach. He listens
more (he did not listen at all before) and he participates in institutional
programs at a significant level. In short, since 1990, we detect a certain desire
to distance himself from his former deviant and antisocial attitudes.
[…] Since 1990,
therefore, there has been a noticeable calming in terms of his behaviour. The
initial changes were not dazzling, but they occurred quietly, one by one, and
evolved over a period of lengthy reflection. This period was followed by a
slight opening up to things that could help him in his process of change. He
got involved in the Toastmasters Program. Then came the Self-Awareness Program
and the Lifeskills Program. He did a lot of reading at that time and started
writing as well. Writing about himself, his life, his family—it all gradually
enabled him to explore his inner life more closely and brought him to realize
that he needed help.
In 1995, he asked to
meet with a psychologist and started regular psychotherapeutic counselling for
approximately one year […]
He enrolled in all
treatment programs that the Correctional Service offered to him and his
involvement was qualitative and sincere. He also took on more altruistic projects
such as World Vision and the Life-Hope group (of which he was also president
for one year) and became involved in religious workshops as well. He was also
president of the Inmates Committee for close to two years. He acquitted himself
of these responsibilities very well.
All of this led to a
gradual downgrading of his security classification until, in June 1998, he was
transferred to Ste-Anne-des-Plaines Institution to start a social reintegration
program and he entered the Living Units program.
Since 2000, Mr. Bouchard
has been granted about 60 escorted temporary absences for family contact,
personal development and community services; he has not caused any problems of
a security nature. In two ETAs out of 60, the comments of the escort (the same person
both times) were negative. All other ETAs transpired without any difficulty,
and the ETA reports were written by some 18 different escorts, based on the
information we have at this time.
(Exhibit D-5, at pages
6-8)
Criminological
Assessment:
[translation]
[…] He has been working on this for over
eleven years now, and his determination has been noticed; all of his
caseworkers, including myself, consider it beneficial. Through all these years,
through his participation in all treatment programs offered by the CSC and
through psychological counselling, which appears to have propelled him towards
a wholesale reconstruction of his personality, we are seeing the gradual
development of a greater awareness of himself and of others that has led Mr.
Bouchard to “mature” relationally, affectively and emotionally.
[…] His lengthy
imprisonment (more than nineteen years) appears to have eroded his antisocial
personality traits, finally promoting a process of introspection. He
understands that the trajectory of his life at the time was leading him nowhere
except into a dead end. It appears that Mr. Bouchard has not used drugs or
alcohol for over seventeen years.
[...] We detect in Mr.
Bouchard a great ability and willingness to adhere to current prosocial values.
On the other hand, this adherence appears to have peaked—it cannot go any
farther in his current living conditions. In the early stages of
incarceration, the closed environment can be ideal for stopping and learning to
face up to oneself. But over time, it has less and less to offer in terms of
the stimuli of real life in society. As a result, the subject’s progress has
now reached a kind of stagnation point.
He needs to move beyond
the stagnation and developmental dead-end he is experiencing, having reached a
ceiling, a saturation point in the prison environment. His institutional and
personal progress reveals to us an individual firmly in control of himself
thanks to a better awareness of himself, his limitations and his strengths […] (emphasis
added)
(Exhibit D-5, at pages
9-13)
Finally, the documentary
evidence reveals that since the 2003 incident, Mr. Bouchard has been
incarcerated at the Federal Training Centre in Laval, a reinforced minimum
security penitentiary. Moreover, the applicant has been pursuing his secondary
school studies with the goal of upgrading his education; he has also been
trying to become involved in activities such as the occupational health and
safety group.
ii) Will the inmate’s
reform and rehabilitation be aided by the grant of parole?
Mr. Bouchard’s situation
since the incidents of 2002-2003 has been deteriorating; despair and
frustration have been controlling his life and preventing him from progressing
within the institutional setting. The documentary evidence clearly shows that
in Mr. Bouchard’s case parole merits thorough consideration:
[TRANSLATION]
This gradual return to
society does not appear to pose any undue risk to the public at this time. It
will enable the subject to continue making the kind of progress he has
initiated so successfully within our institutions and adjust it to the
realities of life on the outside. He will be empowered to find and rebuild a
place for himself within society where he can make a worthwhile contribution
and continue to reform his life appropriately and prosperously. His current
incarceration and the loss of certain members of his family appear to have
affected Mr. Bouchard deeply and painfully; they have most definitely had a
powerful and lasting deterrent effect upon him as he now strives to lead the
life of a well-adjusted, responsible person. He is willing and able, and in
addition, Mr. Bouchard has managed to create for himself an appropriate and
healthy social support network comprised of family members and their friends,
particularly his brother Marcel and his friends. Mr. Bouchard is 48 years old
and wants to live out his final years outside of pentitentiary [sic]
walls; we believe that, with the help he will receive from the CSC for the rest
of his life, he can do it.
(Criminological Report, Exhibit D-5, at
pages 13 and 14)
iii) Will the inmate's
release constitute an undue risk to society?
Protecting society is
one of the imperatives of the correctional system. If an inmate’s release
continues to constitute an undue risk to the public, then his or her detention
can be justifiably maintained for a lifetime. (Steele, supra, at
paragraph 71.)
However, according to
the documentary evidence from January 3, 2002, Mr. Bouchard did not pose a
danger to society at the time:
This gradual return to
society does not appear to pose any undue risk to the public at this time.…
(Criminological Report,
Exhibit D-5, at page 12)
Moreover, he has taken
part in several rehabilitation programs and completed more than ninety (90)
escorted temporary absences (ETA). It is important to note in this regard that
all of the ETA reports dating from 2000 to 2001 are positive and all of the
assessment reports following a temporary absence or work release dated 2001 to
2003 are positive, except for the one from August 7, 2001.
The length of the term
served may be one of the assessment factors considered in applying the
statutory criteria to an individual's circumstances. It may not of itself
justify parole but it may well serve as an indication among an array of factors
that the inmate is no longer dangerous and could be paroled.
Finally, since the
incidents of 2002-2003, Mr. Bouchard has been incarcerated at the Federal
Training Centre in Laval, a reinforced minimum security institution.
On this point, an
analysis should take into account the incidents that occurred in 2002-2003 and
any explanations as to the reasons for their occurrence. A lengthy
incarceration with the concomitant institutionalizing effect upon the inmate
may serve to explain and perhaps to some extent excuse certain breaches of
discipline. Rather than focussing indiscriminately on breaches of discipline,
the analysis must concentrate on the crucial issue of whether granting parole
would constitute an undue risk to society (Steele, supra, at
paragraphs 77-79)
In short, to break the
perpetual cycle of despair and frustration and to assess the potential risk to
the public, it is vital that Mr. Bouchard and the CSC re-estabish [sic] meaningful
contact with each other in order to come to an understanding that takes due
account of the concerns of both parties and does not minimize the rationale for
his prolonged incarceration thus far.
For the sake of
society’s and Mr. Bouchard’s welfare, there needs to be an analysis not just of
acts that have been committed, but of attitudes leading to action, in order to
achieve a collective result based on cooperation and a sincere desire for
change—which in itself represents the goal of the correctional system. [Emphasis in
original.]
[13]
Strictly speaking,
this is not an obiter, as its content does not refer to the decision
that was made but flatly goes beyond the scope. However well intentioned it may
be, this obiter is inappropriate. As we were able to see at the hearing,
its effect was to create expectations. The appellant, who is an inmate and
subject to the rules of his detention facility, tried to obtain the services of
an in-house arbitrator or mediator to settle or negotiate what he perceives as
a dispute between himself and the penitentiary administration.
[14]
It is also
likely that it resulted in polarizing the appellant’s and the pentitentiary
administration’s positions and caused an estrangement rather than a
reconciliation between the parties.
[15]
I believe
that it is worthwhile, particularly in the context of correctional law, to
recall the wise words of Justice Beetz in Cie Immobilière Viger v. L.
Giguère Inc., [1977] 2 S.C.R. 67, at page 77:
The judge is bound by
the issues before him, and does not extend his ruling beyond what is necessary
to settle them.
[16]
I would
dismiss the appeal, but without costs, given the circumstances.
“Gilles
Létourneau”
“I
concur.
Marc
Noël, J.A.”
“I
concur.
Johanne
Trudel, J.A.”
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