T-1376-95
OTTAWA, ONTARIO, THURSDAY, JUNE 26, 1997
PRESENT: MR. JUSTICE RICHARD
BETWEEN:
GILLES DÉGARIE,
Applicant,
- AND -
HER MAJESTY THE QUEEN (in right of Canada),
and CORRECTIONAL SERVICE CANADA,
Respondents.
O R D E R
The application made by the applicant on June 16, 1995, for judicial review of a decision dated September 29, 1994, is dismissed.
J.D. RICHARD
Judge
Certified true translation
C. Delon, LL.L.
T-1376-95
BETWEEN:
GILLES DÉGARIE,
Applicant,
- AND -
HER MAJESTY THE QUEEN (in right of Canada),
and CORRECTIONAL SERVICE CANADA,
Respondents.
REASONS FOR ORDER
RICHARD J.
The applicant is currently serving a sentence of 17 years, 10 months and 4 days, which began in 1980, for offences consisting of robbery, criminal negligence in the operation of a vehicle, fraud, uttering, theft, making death threats and hostage-taking, as set out in the criminal profile report.
The applicant has been incarcerated at the Port-Cartier Institution, a maximum security institution, since February 19, 1992.
On or about June 16, 1994, after being in involuntary administrative segregation for two days for saying that he would attack a member of the Institution's staff, the applicant mentioned that he wanted to remain in segregation. On June 20, 1994, the applicant formally confirmed his request to be placed in administrative segregation. The applicant's request for voluntary segregation was granted.
At subsequent interviews, in July, August and September 1994, the applicant reiterated his wish to remain in segregation. Throughout the period of voluntary segregation, the applicant occupied a cell in the segregation area of "L" Block.
There are two segregation areas at the Institution: one in "L" Block, where the applicant was, and one in "S" Block (also referred to as "L.T.S.": long term segregation), where the applicant now is. According to the affidavit of the warden of Port-Cartier Institution, these two segregation areas offer the same services. The living conditions and the rights and privileges of the inmates placed in administrative segregation are the same in both segregation areas. The only difference there is between these two segregation areas relates to physical location and the structure of the blocks: in "L" Block there is a regular population area in addition to the segregation area. This is not the case in "S" Block.
On September 29, 1994, while the applicant was in voluntary segregation, the decision was made to transfer him from the "L" Block segregation area to the "S" Block segregation area since there were several facts that suggested that the applicant had provoked a number of inmates in the "L" area and since he had been identified as having exploited certain residents by tricking them out of money, among other things.
The applicant was therefore asked on September 29, 1994, to change areas since the location of the "S" area was such that contact with the regular population was very limited. When the applicant refused to change areas, he was ordered to cooperate, but he continued to refuse.
Ultimately, the applicant complied, and it was not necessary to use force to transfer him from "L" Block to "S" Block. Given that the applicant had refused to be placed in the "S" Block segregation area, the applicant's preventive segregation became involuntary as of September 29, 1994.
The applicant is not challenging his placement in segregation. In his application for a writ of certiorari, he states
| [translation] In accordance with the applicant's wishes, he is not challenging the placement of the applicant in long-term segregation, only the reasons used by the administration of the Port-Cartier Institution, which reasons and/or grounds and/or charges are "dead letters" and have resulted in numerous decisions, and the pile of negative documents in the applicant's institutional file, which have resulted in a mountain of hardships suffered by him. |
Nor is the applicant challenging the legality of his detention.
| [translation] This application is not seeking any remedies and/or making any claims by reason of unlawful detention, although there could nonetheless be an appearance of unlawful detention, that remedy will not be the subject of argument per se. |
The applicant is challenging the reasons underlying the forced transfer to a new cell block, that his, his transfer from the "L" Block segregation area to the "S" Block segregation area. What the applicant refers to as charges are really the reasons that resulted in the transfer to the new cell block.
The only decision to which this application for judicial review relates is the decision of September 29, 1994, to transfer the applicant from the "L" Block segregation area to the "S" Block segregation area.
The applicant argues that he was refused information about the exact nature of what he is alleged to have done. He is challenging the sufficiency of the reasons which are, in his view, prejudicial to him.
When the applicant was placed in administrative segregation in "S" Block on September 29, 1994, he was informed of the reasons for the decision and of his right to counsel. The reasons are as follows:
| [translation] While you were in administrative segregation in the segregation area, we learned of several facts that lead us to believe that you used your situation to provoke several inmates in that area. In addition, you are identified as having exploited certain residents. Your presence in this area is not acceptable at this time. |
On October 5, 1994, the Administrative Segregation Committee interviewed the applicant. During that interview, the applicant was again informed of the reasons for the decision and had an opportunity to present his position. The applicant presented his arguments when the Administrative Segregation Committee interviewed him and also in various requests or complaints. Since the applicant was involuntarily placed in "S" Block he has submitted several grievances and complaints to the penitentiary administration; they have reached the third level and have not yet been disposed of.
On this point, I refer to the decision in Camphaug,1 in which the issue was also the sufficiency of the information given.
| ... that a decision to transfer is not like a conviction for an offence: what is required on the part of the decision-maker is a reasonable belief that the prisoner should be moved for the sake of the orderly and proper administration of the institution. This implies that fairness in the making of such a decision does not require that the inmate be given all of the particulars of all alleged wrongdoings; it is sufficient if he can make representations to demonstrate that the recommendation that he be moved is an unreasonable one. |
The applicant was adequately informed of the reasons for the decision and he was therefore in a position to reply to them or to oppose the decision. In this instance, there has been no violation of the rules of procedural fairness or the principles of fundamental justice.
There was a lawful exercise of the discretion granted to the warden of the Institution which cannot be contested unless there is evidence that it was imposed unfairly. This decision was made in order to guarantee the safety of other inmates and the proper functioning of the Institution, in accordance with subsection 31(3) of the Corrections and Conditional Release Act.
Having regard to the evidence, the placement of the applicant in involuntary administrative segregation was not imposed unfairly.
The applicant is seeking a remedy under subsection 24(1) of the Charter.
The respondent submits that transferring an inmate into one cell block rather than another cell block in the Institution, when the living conditions and rights and privileges are the same, is a matter of the management and administration of a penitentiary. In the instant case, since the "L" Block segregation area offers the same services, conditions and rights and privileges as the "S" Block segregation area, no remedy can be available under subsection 24(1) of the Charter in respect of the transfer of the applicant to a particular cell block in the Institution. The decision of September 29, 1994, does not infringe the applicant's constitutional rights.
I do not need to express an opinion concerning the nine grievances that are currently pending. Section 90 of the Corrections and Conditional Release Act, sections 74 to 82 of the Regulations and Commissioner's Directive No. 81 provide for an inmate grievance settlement procedure. In this instance, the applicant has not exhausted those remedies.
In the circumstances, the applicant's application for judicial review is dismissed.
J. D. RICHARD
Judge
Ottawa, Ontario
June 26, 1997
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: T-1376-95
STYLE OF CAUSE: Gilles Dégarie
v. Her Majesty the Queen et al.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 25, 1997
REASONS FOR OF THE HONOURABLE MR. JUSTICE RICHARD
DATED: June 26, 1997
APPEARANCES:
Gilles Dégarie THE APPLICANT
representing himself
Rosemarie Millar FOR THE RESPONDENTS
SOLICITORS OF RECORD:
George Thomson FOR THE RESPONDENTS
Deputy Attorney General of Canada
Ottawa, Ontario
__________________
1 Camphaug v. Canada (1990), 34 F.T.R. 165, at 167.