Date: 19980226
Docket: T-894-97
BETWEEN:
NICHOLAS Y. BONAMY
Applicant
- and -
CORRECTIONAL SERVICE CANADA
Respondent
REASONS FOR ORDER
ROTHSTEIN J.:
[1] This is a judicial review of a decision of a Third Level Grievance Board denying the applicant's application to be transferred from the Grande Cache Institution in Alberta to the William Head Institution near Victoria, B.C. The applicant who represents himself in these proceedings describes the alleged error of the respondent as one of failure to observe principles of natural justice or procedural fairness. However, there is no evidence of any breach of procedural fairness in the material filed. It appears that the applicant's real complaint is that in refusing his transfer application, the respondent failed to comply with sections 28 and 29 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, as amended:
| 28. Where a person is, or is to be, confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which the person is confined is one that provides the least restrictive environment for that person, taking into account |
| (a) the degree and kind of custody and control necessary for |
| (i) the safety of the public, |
| (ii) the safety of that person and other persons in the penitentiary, and |
| (iii) the security of the penitentiary; |
| (b) accessibility to |
| (i) the person's home community and family, |
| (ii) a compatible cultural environment, and |
| (iii) a compatible linguistic environment; and |
| (c) the availability of appropriate programs and services and the person's willingness to participate in those programs. |
| 29. The Commissioner may authorize the transfer of a person who is sentenced, transferred or committed to a penitentiary to |
| (a) another penitentiary in accordance with the regulations made under paragraph 96(d), subject to section 28; or |
| (b) a provincial correctional facility or hospital in accordance with an agreement entered into under paragraph 16(1)(a) and any applicable regulations. |
[2] The applicant's argument is that his home community is Victoria and that an M.B.A. program is available to him there. As a result, he says that section 28 requires that he be transferred to the William Head Institution near Victoria.
[3] The obligation placed on the respondent by section 28 of the Corrections and Conditional Release Act is to "take all reasonable steps to ensure that the penitentiary in which the person is confined is one that provides the least restrictive environment for that person". In doing so, the respondent must take into account the considerations listed in section 28.
[4] The Third Level Grievance Board found that the applicant did not "meet any of the following transfer criteria" with reference being made specifically to the considerations listed in section 28. In dealing with the one consideration which appears to be the real basis of the transfer application, "accessibility to the person's home community and family" the Board states:
| Although you are basing your transfer request on claims that British Columbia is where your community resources are located, there is nothing on file to support your position. In accordance with the community assessment report on file, it would appear that the only potential individual who could provide community support in British Columbia is your former common-law wife, and she has indicated that she is not prepared to do that. Until you can demonstrate that you do have community support in British Columbia who are willing to participate in your release plans, your transfer request to that province cannot be approved. |
It is apparent that the Board, in making its decision, took into account what it was required to consider under section 28.
[5] The applicant seems to think that merely because he has asserted that his home community is Victoria, that this obliges the respondent to transfer him. There is no such transfer right. In this case, the respondent has taken into account the considerations listed in section 28 and, in particular, has investigated the issue raised by the applicant. There is no indication of bad faith or reliance upon irrelevant considerations by the Third Level Grievance Board that might otherwise cause a Court to interfere with its decision.
[6] In this judicial review the applicant makes reference to an M.B.A. program being available in Victoria. This was not raised by the applicant before the Third Level Grievance Board and indeed the material relating to the program postdates the decision under review. In any event, the program is not offered at William Head Institution and I am far from satisfied that a program in Victoria is "available" to an inmate of a penitentiary or jail in the absence of some evidence that arrangements have been made to permit the inmate to leave the penitentiary for that purpose. There is no such evidence here.
[7] The judicial review is dismissed.
"Marshall Rothstein"
J U D G E
TORONTO, ONTARIO
FEBRUARY 26, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-894-97
STYLE OF CAUSE: NICHOLAS Y. BONAMY
- and -
CORRECTIONAL SERVICE CANADA
MATTER DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER BY: ROTSHTEIN, J.
DATED: FEBRUARY 26, 1998
WRITTEN REPRESENTATIONS BY: NICHOLAS Y. BONAMY
WRITTEN REPRESENTATIONS BY: CORRECTIONAL SERVICE CANADA
SOLICITORS OF RECORD:
Mr. Nicholas Y. Bonamy
Vancouver Island Correction Centre
4216 Wilkinson Road
Victoria, B.C.
V8Z 5B7
For the Applicant
Ms. Donnaree Nygard
Department of Justice
Vancouver Regional Office
Suite 900 - 840 Howe Street
Vancouver, B.C.
V6Z 2S9
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980226
Docket: T-894-97
Between:
NICHOLAS Y. BONAMY
Applicant
- and -
CORRECTIONAL SERVICE CANADA
Respondent
REASONS FOR ORDER