Date: 20001130
Docket: T-302-00
MONTRÉAL, QUEBEC, NOVEMBER 30, 2000
BEFORE: LEMIEUX J.
BETWEEN:
MARC BORDAGE
Plaintiff
AND:
DENIS CLOUTIER
- and -
RICHARD WATKINS
- and -
THE ATTORNEY GENERAL OF CANADA
Defendants
Application for judicial review from a decision by the Correctional Service of Canada on January 17, 2000 seeking an order of this Court to:
QUASH the decisions made by the Correctional Service of Canada in the plaintiff's case;
SET the plaintiff's security rating at minimum as initially recommended;
REASSIGN the plaintiff his accelerated review status pursuant to the Corrections and Conditional Release Act.
ORDER
For the reasons given this day, this application for judicial review is dismissed.
François Lemieux
Judge
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20001130
Docket: T-302-00
BETWEEN:
MARC BORDAGE
Plaintiff
- AND -
DENIS CLOUTIER
- and -
RICHARD WATKINS
- and -
THE ATTORNEY GENERAL OF CANADA
Defendants
(A) Introduction
[1] On February 18, 2000 the plaintiff, currently an inmate at the Leclerc Institution, a medium security penitentiary, filed an application for judicial review to challenge the decisions made by the Director of the Regional Reception Centre on January 17, 2000, to set his security rating at medium and order his transfer to the Archambault Institution, a medium security penitentiary.
[2] Further, in the same application for judicial review the plaintiff challenged the decision by the Correctional Service of Canada (hereinafter "CSC") on December 24, 1999 that he was not eligible for the accelerated review procedure mentioned in ss. 125 and 126 of the Corrections and Conditional Release Act (hereinafter "the Act").
(B) Facts
[3] The plaintiff was convicted of trafficking in cocaine and conspiracy to traffic in cocaine, and on November 5, 1999 he was sentenced to three years' imprisonment by Judge Louis de Blois of the Court of Quebec.
[4] In accordance with Commissioner's Directive 500 (Reception and Orientation of Inmates) and Standard Operating Practice 700-04 (Offender Intake Assessment and Correctional Planning), the plaintiff was taken to the Regional Reception Centre (hereinafter "RRC") for his intake assessment and correctional planning to arrive at a recommendation on his security rating and initial placement.
[5] On December 14, 1999 Angelo Daneau, parole officer, recommended a minimum security rating and placement in the Federal Training Centre, a minimum security penitentiary. On the same day Mr. Daneau, as he had received no notice to the contrary from the RRC Sentence Manager, found that the plaintiff was eligible for the accelerated parole review (hereinafter "APR").
[6] On December 20, 1999 Bernard Van Houtte, the Regional Sentence Administrator, after consulting the National Sentence Administrator, informed Mr. Daneau that following a review of the plaintiff's file by the CSC, and in particular after reviewing and analysing the transcript of his sentencing by Judge de Blois, the plaintiff could not benefit from the APR in the Act since it appeared that the acts with which the plaintiff was charged were associated with a criminal organization.
[7] On November 5, 1999 Judge de Blois imposed sentence on the plaintiff pursuant to the guilty verdict returned by the jury. He said that the evidence showed a well-developed organization selling narcotics, that the cocaine came from a gang of bikers, a gang with strong criminal ties, and that a photograph showed 20 bikers, including the plaintiff, and all except the plaintiff and Pierre Hamilton with criminal records relating to drugs or crimes of violence. According to Judge de Blois, the plaintiff was a drug supplier and had a high rank in the hierarchy of this organized trafficking, a well-established organization: he was one of the leading figures in the criminal hierarchy of a group of bikers involved in the sale of narcotics.
[8] The plaintiff was informed on December 24, 1999 by the Deputy Director of the RRC that he did not meet the eligibility requirements for the APR on the ground that [TRANSLATION] "We have obtained important further details regarding your involvement in a well-known criminal gang". The Deputy Director added in his memorandum of December 22, 1999 [TRANSLATION] "In view of these new facts . . . we are asking that an assessment be made of the three risks" and "Before ruling again on a final transfer decision, we will await a new placement recommendation in accordance with the assessment filed for the security rating".
[9] The plaintiff's security rating was re-evaluated by Mr. Daneau on December 23, 1999: the plaintiff was given a medium security rating and his placement in the Archambault Institution was recommended.
[10] The same day that he was informed of the decision on his security rating and the recommended placement, the plaintiff challenged it and indicated he would make written submissions through his counsel.
[11] On January 10, 2000 counsel for the plaintiff sent their written submissions to the RRC Director. On January 17, 2000 the RRC Director gave the plaintiff a medium security rating and ordered that he be placed in the Archambault Institution, a medium security penitentiary.
(C) Issues
[12] The defendants raised four preliminary objections: (1) under Rule 303(2) of the Federal Court Rules ("the Rules"), only the Attorney General of Canada should be named as a respondent; (2) under Rule 302, an application for judicial review should be limited to a single decision. In the case at bar, the plaintiff is challenging two different decisions: one concerning his security rating and placement and the other his eligibility for the APR; (3) the plaintiff has missed the deadline regarding the decision on the APR; and (4) the plaintiff has not made use of the grievance procedure.
(D) Analysis
(i) Expiry of deadline for decision regarding APR
[13] The evidence was that on December 24, 1999 the plaintiff was told that he could not benefit from the accelerated parole review, but his application for judicial review was not filed until February 18, 2000.
[14] Section 18.1(2) of the Federal Court Act states clearly that an application for judicial review must be made within 30 days after the time the decision was first communicated by the federal board, commission or other tribunal to the party directly affected. It is true that the Court may extend deadlines. However, the plaintiff has made no motion to that effect. In the circumstances, I have before me no reason for not complying with this legislative provision and so I have no choice but to dismiss the plaintiff's application for judicial review of the decision regarding availability of the APR.
(ii) Two decisions covered by same application
[15] I do not have to rule on this point, since we are no longer concerned with two decisions as the application for judicial review of the eligibility for the APR is now dismissed, being beyond the deadline.
(iii) Plaintiff did not use grievance procedure
[16] Section 4(g) of the Act lays down the rule that "decisions [of the Service shall] be made in a forthright and fair manner, with access by the offender to an effective grievance procedure". In accordance with the regulations implementing s. 96(u), s. 90 of the Act sets out a fair and expeditious procedure for resolving grievances on matters within the Commissioner's jurisdiction, and under s. 91 of the said Act every offender shall have complete access to the offender grievance procedure without negative consequences.
[17] Sections 74 to 82 of the Corrections and Conditional Release Regulations (hereinafter "the Regulations") contain provisions on the procedure for resolving grievances. Three levels are established: the first level, the Director of the institution; second level, the regional level; and the third level, the Commissioner. There is also a grievance review committee for the institution and an external grievance review committee. Additionally, Commissioner's Directive 081, Offender Complaints and Grievances, covers implementation of the grievance procedure laid down in the Regulations.
[18] In support of his argument that the plaintiff's application for judicial review should be dismissed on the ground that he did not make use of the grievance system, the Attorney General of Canada cited the judgment of Rothstein J. in Giesbrecht v. Canada, [1998] F.C.J. No. 621, and Anderson v. Canada (Armed Forces), [1997] 1 F.C. 273 (C.A.).
[19] In Giesbrecht, supra, an inmate objected to a decision approving his involuntary transfer to the Edmonton maximum security penitentiary. The plaintiff had filed a grievance; he also applied for judicial review. Rothstein J. considered that he had to resolve the preliminary point of whether the grievance procedure set out in the Act was another appropriate form of remedy which should be exhausted before any application for judicial review.
[20] Rothstein J. considered the provisions of the Act and the Regulations and the Commissioner's Directive, and in para. 10 of his judgment wrote this:
On its face, the legislative scheme providing for grievances is an adequate alternative remedy to judicial review. Grievances are to be handled expeditiously and time limits are provided in the Commissioner's Directives. There is no suggestion that the process is costly. If anything it is less costly than judicial review and more simple and straightforward. Through the grievance procedure an inmate may appeal a decision on the merits and an appeal tribunal may substitute its decision for that of the tribunal appealed from. Judicial review does not deal with the merits and a favourable result to an inmate would simply return the matter for redetermination to the tribunal appealed from.
[21] Rothstein J. noted that the final decision rendered at the conclusion of the grievance procedure could of course be the subject of an application for judicial review.
[22] Anderson, supra, dealt with the same question of principle, namely whether an application for judicial review can be brought where a grievance resolution system exists pursuant to the Queen's Regulations and Orders for the Armed Forces (hereinafter "QROAF").
[23] Stone J. considered the point in accordance with the criteria set out by the Supreme Court of Canada in Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at 588:
In order to evaluate whether appellant's right of appeal to the senate committee constituted an adequate alternative remedy and even a better remedy than a recourse to the courts by way of prerogative writs, several factors should have been taken into consideration among which [sic] the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by a body which was not a professional court of appeal and was not bound to act exactly as one or likely to do so. Other relevant factors include the burden of a previous finding, expeditiousness and costs.
[24] In Anderson, supra, the trial judge held that the grievance resolution procedure was not an adequate alternative remedy, a conclusion based on the time that would be consumed in pursuing the complaint up the chain of command and on the cost and stress for the respondent in so doing.
[25] Stone J. noted that the QROAF imposed a duty to investigate a complaint as "expeditiously as possible" and that one paragraph of the Regulations laid down strict deadlines for decisions at each decision-making level.
[26] Further, Stone J. was not satisfied that the cost and stress of pursuing the complaint up the chain of command justified intervention by the Court in that process. In his opinion, the rules of procedure defined in the QROAF are simple and straightforward. He concluded that the process mandated did afford an adequate alternative remedy and that accordingly the application for judicial review should be struck.
[27] The Attorney General of Canada drew to my attention the recent judgment of the Quebec Court of Appeal in Attorney General of Canada et al. v. Richard St-Amand (No. 200-10-000972-005, July 12, 2000). This was an appeal from a Superior Court judgment which allowed the habeas corpus application made by the respondent, cancelled the high security rating assigned to him and his transfer to the Donnacona penitentiary and ordered that he be returned to the Archambault penitentiary.
[28] The reasons for judgment were written by Thérèse Rousseau-Houle J.A., who began her analysis by a discussion of the principle of exhausting other remedies. As was the case here, the prison authorities in St-Amand had informed the inmate that he could exercise his right to object by a grievance (Commissioner's Directive No. 540 and Standing Orders 700-14) to the security rating and to his placement by the inmate grievance procedure.
[29] In St-Amand, the inmate argued that use of the grievance procedure would have changed nothing since the Director of the Regional Reception Centre did not have the power to alter the security rating and the decision to that effect, taken to make possible the transfer, had thus become final before he could exercise his right to be heard. He argued that the procedure contained in Standing Orders 700-14 for amending the security rating did not comply with the audi alteram partem rule and was inconsistent with the procedural guarantees embodied in s. 27 of the Act for his emergency transfer, which made any chance of responding to the allegations contained in the transfer report meaningless.
[30] Rousseau-Houle J.A. noted that the Quebec Court of Appeal had several times dismissed applications for habeas corpus pursuant to the rule that remedies should be exhausted when an adequate alternative remedy exists. She concluded as follows at p. 14, paras. 42 and 43:
[TRANSLATION]
In the case at bar, the raising of the respondent's security rating was due to his immediate transfer to a maximum security institution. He could challenge that higher rating by the grievance procedure and present his point of view and evidence to the decision-making levels. He also benefited from the guarantees mentioned in s. 13 of the Regulations and s. 15 of Commissioner's Directive No. 540, which gave him an opportunity to make oral and written submissions to the Director of the penitentiary to which he was transferred or an officer appointed by the latter.
As there are no exceptional circumstances in the record to indicate that the statutory procedure was not appropriate and that the requirements of fundamental justice make immediate recourse to habeas corpus necessary, there is no basis for having recourse to the broader application of habeas corpus review.
[31] Counsel for the plaintiff's rejoinder was to cite the judgment of Pelletier J. in Kevork Marachelian v. The Attorney General of Canada (case T-916-99, July 11, 2000) and the comments of Arbour J. in her report of the Commission of Inquiry Into Certain Events Occurring at the Prison for Women in Kingston.
[32] I do not have to rule on counsel for the plaintiff's rejoinder because it relates essentially to the decision by the CSC on the plaintiff's eligibility for the APR, a decision which is no longer the subject of this application for judicial review.
[33] I further note that in Marachelian, supra, Pelletier J. endorsed the rule that other remedies should be exhausted but made an exception which does not concern us here.
[34] I would further note that in her inquiry report Arbour J. warned that she did not have sufficient information to formulate comments on the grievance resolution procedure and grievances in the Correctional Service in general.
[35] In the case at bar, as noted, the plaintiff Marc Bordage was informed on January 17, 2000 that:
[TRANSLATION]
Pursuant to Commissioner's Directive No. 540 and Standard Operating Procedure No. 740-14, you have an opportunity to request a review of your security rating and placement by inmate grievance procedure.
[36] Giesbrecht and St-Amand held that the grievance system laid down in the Act, the Regulations, Commissioner's Directive No. 540 and his Standard Operating Practices are an adequate statutory procedure which must be exhausted before initiating an application for judicial review when the question is one relating to a security rating or placement. The circumstances in St-Amand are identical to those of the case at bar and I have come to the conclusion that the application for judicial review by the plaintiff Marc Bordage must be dismissed because it does not comply with the rule that other remedies must be exhausted.
Disposition
[37] This application for judicial review is dismissed.
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François Lemieux
Judge |
Montréal, Quebec
November 30, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20001130
Docket: T-302-00
Between:
MARC BORDAGE
Plaintiff
- AND -
DENIS CLOUTIER
and
RICHARD WATKINS
and
THE ATTORNEY GENERAL OF CANADA
Defendants
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: T-302-00
STYLE OF CAUSE:
MARC BORDAGE
Plaintiff
- AND -
DENIS CLOUTIER
and
RICHARD WATKINS
and
THE ATTORNEY GENERAL OF CANADA
Defendants
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 31, 2000
REASONS FOR ORDER BY: LEMIEUX J.
DATED: November 30, 2000
APPEARANCES:
Jacques Normandeau for the plaintiff
Michelle Lavergne and Éric Lafrenière for the Attorney General of Canada, defendant
SOLICITORS OF RECORD:
| Montréal, Quebec [sic] |
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for the plaintiff |
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| Department of Justice Canada Montréal, Quebec |
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for the Attorney General of Canada, defendant |
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