Vancouver, British Columbia, February 8, 2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR JUDGMENT AND JUDGMENT
[1] This judicial review application challenges the third-level grievance decision of the Assistant Commissioner of Corrections Canada dated February16, 2005. At the hearing, I struck as a Respondent from the style of cause the Commissioner of Corrections Canada on the basis of section 303 of the Federal Courts Rules, 1998.
[2] This judicial review application arises in the following context. In preparation for Mr. Benoit's full parole review before the National Parole Board (the Board) the Correctional Service of Canada (CSC) completed a psychological risk assessment relating to the Applicant's likelihood to re-offend (the Risk Assessment).
[3] Mr. Benoit was invited to participate in the preparation of the Risk Assessment but declined to be interviewed. As a result, the Risk Assessment was completed based on the information in his CSC file and collateral CSC staff reports as authorized in paragraph 3 of the Commissioner's Directive 803.
[4] Mr. Benoit was incarcerated because in 1987 he was convicted of second degree murder and sentenced to life in prison. The Court of Appeal of British Columbia dismissed his appeal.
[5] In 1996, his Case Management Team recommended he participate in a program for violent offenders but he refused to do so.
[6] The Risk Assessment does not diagnose Mr. Benoit with any mental disorder and did not rely on the Revised Psychopathy Checklist (PCL-R).
[7] Instead, the Risk Assessment reviews his behaviour before and during his incarceration and relies on risk assessment tools to evaluate the likelihood he will re-offend.
[8] Mr. Benoit first complained on November 18, 2003, about the Risk Assessment. He alleged the author of the Risk Assessment was not a registered health care professional and his consent was needed for its preparation. His complaint was dismissed on December 10, 2003, on the grounds a registered health care professional supervised and reviewed the Risk Assessment and the CSC could complete the Risk Assessment without his consent because it was entitled to assess risk and did not make any medical diagnosis under the Commissioner's Directive 803.
[9] Mr. Benoit carried the issue to levels 1 and 2 without success. His level 3 grievance was put on a somewhat different basis, namely subsection 803(3) of the Commissioner's Directive was invalid because it would override section 88 of the Corrections and Conditional Release Act (the Act) where informed consent is required for treatment.
[10] The Assistant Commissioner denied Mr. Benoit's third level grievance. It was stated the CSC had certain statutory obligations with regards to the administration of his sentence, namely protection of society be the paramount consideration in the corrections process; his sentence be carried out having regard to all relevant information; and any information about the offender it uses shall be as accurate, up to date and complete as possible.
[11] The Assistant Commissioner concluded the purpose of the Risk Assessment was to provide the Board with an assessment of his risk to re-offend. The Assistant Commissioner stated the Risk Assessment Report did not relate to his medical treatment but to the safe administration of his sentence.
[12] I agree with counsel for the Respondent, after examining the Applicant's voluminous Applicant's Record in which he provides the history of his many grievances, the Applicant fundamentally misconceives the Risk Assessment as medical health care or treatment under section 85 of the Act. As mentioned above, the Risk Assessment in question does not diagnose Mr. Benoit with any mental disorder nor does it require him to undergo any form of health care treatment for any disorder without his consent.
[13] The purpose of the Risk Assessment in question it to assess his risk to re-offend violently and to recommend programs to reduce any such risk. Mr. Benoit cannot be forced to take such programs. He must agree to participate in them.
[14] This was pointed out to Mr. Benoit by the Board when it refused his application for full parole. This decision is dated November 30, 2005, and Mr. Benoit did not seek judicial review of it. The Board (Applicant's Record, page 111) pointed out the distinction between medical treatment for a medical disorder and a risk assessment and programs to reduce the risk of re-offending. According to the Board, a risk assessment provides critical information about an offender's mental status and about his behavioural characteristics and other risk factors on conditional release.
[15] The Board stated it found nothing which required him to follow a "medical treatment" but agreed his failure to address criminogenic factors and to access programs (which the CSC is required to provide under sections 76 and 102 of the Act to contribute to an offender's successful reintegration into society) had a direct impact on the risk he represented to the public.
[16] I should add the Legal Services Society of British Columbia came to the same conclusion the Assistant Commissioner did when it refused funding for Mr. Benoit to challenge the Board decision, being of the view a risk assessment is not treatment which he can be compelled to undergo.
[17] I agree with counsel for the Respondent the distinction drawn by the Assistant Commissioner is recognized by this Court. I cite, in particular, Inmate Welfare Committee William Head Institution v. Canada (A.G.), 2003 FC 870, where Justice Tremblay-Lamer set out the arguments at paragraph 4 and 5 of her decision and her findings at paragraphs 9 to 15 all of which I quote below:
… [4] The applicant argues that risk assessments cannot be done without the offender's consent. The change to CD 803 strips away an inmate's consent rights, as they pertain to psychological testing and assessments. The applicant submits that the amendment to section 3 is contrary to common law principles, and violates section 7 of the Charter of Rights and Freedoms and subsection 1(a) of the Canadian Bill of Rights. As such, it should be struck down.
[5] The respondent submits that CD 803 was amended to reflect the fact that employees of the Correctional Service of Canada ("CSC") must undertake risk assessments, including psychological assessments, regardless of an offender's consent, in order to fulfill CSC's legislative mandate of protecting the public. It would not be possible to fulfill this mandate if an offender's consent were required prior to his or her risk being assessed as the consent could often be withheld.
…
[9] One of the ways to achieve this objective is through risk assessments. Employees of CSC must assess the risk that an offender poses while incarcerated and prior to release in order to protect the public and to achieve the statutory objectives of the Act.
[10] There is an important distinction that needs to be drawn between medical and psychological assessments that are done for the benefit of the offender or to establish a diagnosis (mental health procedures), and risk assessments that are done for the protection of the public.
[11] On the one hand, CSC has an obligation to administer health care for the benefit of inmates. This obligation is found in sections 85 to 88 of the Act. Anything that CSC does pertaining to health care, including psychological assessment, diagnosis, or treatment that is done for the benefit of an inmate requires informed consent.
[12] On the other hand, CSC has a legislative mandate to assess risk in order to protect the public. Risk assessments do not require informed consent. Such a requirement would make it impossible for CSC to fulfill its legislative mandate of protecting the public as the consent could often be withheld.
[13] There are many examples in the Act illustrating the necessity for employees of CSC to perform a risk assessment in order to make a decision that affects the safety of the public. These include decisions involving the authorization of unescorted temporary absences in the community, the granting of work release, the conditional release of offenders, and the granting of parole to offenders.
[14] Contrary to the applicant's submissions, a risk assessment is not the same thing as a PCL-R (Psychological Checklist-Revised) assessment. The PCL-R assessment was developed by Dr. Hare and is used to assess psychopathic personality disorders in offenders. This information can be used to predict recidivism which in turn, can be used to measure the degree of risk that an offender poses to society. The PCL-R rating is just one type of rating or scale which may be referred to in a risk assessment. Risk assessments can encompass many other ratings or scales, and need not contain any reference to a PCL-R rating.
[15] In summary, risk assessments by CSC are not health care, treatment, or psychological assessments conducted in order to establish a diagnosis or to ascertain whether an offender requires health care or treatment. Risk assessments are a means to determine an offender's likelihood of recidivism and potential danger to the offender, other inmates, staff members and the public. It would be impossible to fulfill this mandate if an offender's consent were required prior to his or her risk being assessed as the consent could often be withheld….
[18] This case is clearly on point and accords with the statutory purpose of the federal correctional system which is to assist in the rehabilitation of offenders and their reintegration into the community.
[19] As for the Applicant's other arguments, they are without merit. They were: (1) the use of the PCL-R in producing the Risk Assessment; (2) absence of a definition of programs in section 76 of the Act; (3) a risk assessment being equivalent to exposing him to experiments in behaviour alteration techniques which require consent; (4) a retrospective application of the Act to his circumstances; and (5) that risk assessments should be conducted by security personnel.
JUDGMENT
This judicial review application must be dismissed.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-735-06
STYLE OF CAUSE: GENE BENOIT v. AGC et al.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: February 6, 2007
REASONS FOR JUDGMENT AND JUDGMENT: LEMIEUX J.
APPEARANCES:
(on his own behalf)
Scott Nesbitt FOR THE RESPONDENTS
SOLICITORS OF RECORD:
n/a FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENTS