Federal Court Decisions

Date: 20090622

Docket: T-1227-08

Citation: 2009 FC 652

Ottawa, Ontario, June 22, 2009

PRESENT:     The Honourable Mr. Justice O'Reilly

BETWEEN:

JERROD BYARD

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]               Mr. Jerrod Byard applied for a transfer from a medium to a minimum security institution. The Correctional Service of Canada (CSC) turned him down primarily on the basis that he is still considered a “person of interest” in respect of an outstanding murder investigation dating back to 2005, when he was on parole. His parole was later revoked for involvement in drug trafficking.

[2]               Mr. Byard argues that the CSC’s reliance on information obtained from the RCMP was unlawful. He asks me to overturn the CSC’s decision and order a reconsideration of his request for a transfer.

[3]               I can find no basis for overturning the CSC’s decision and must, therefore, dismiss this application for judicial review. Originally, Mr. Byard’s submissions included allegations that his rights under s. 7 of the Charter were violated, as well as provisions of the Privacy Act, R.S.C. 1985, c. P-21. These arguments were not pressed at the hearing. Accordingly, the sole issue before me is whether the CSC’s consideration of information provided by the RCMP was lawful.

I.               Factual Background

[4]               In 1998, Mr. Byard was convicted of murder. He was granted day parole in August 2005. In November 2005, Mr. Jody Elliott was murdered. Informants told police that Mr. Byard was present at the time of the killing but was not actively involved. In January 2006, Mr. Byard’s parole was revoked after police searched his apartment and found evidence of drug trafficking.

[5]               Police still view Mr. Byard as a person of interest in respect of the 2005 murder. Other persons have been charged, but have not yet been tried. Because of his alleged association with that crime, Mr. Byard’s request for transfer to a minimum security institution was turned down, as were his efforts to grieve that decision.

[6]               When questioned about the murder, Mr. Byard invoked his right to counsel and chose to remain silent. Originally, the CSC drew an adverse inference from Mr. Byard’s conduct. However, at his third level grievance, the decision-maker concluded that the CSC had wrongly taken Mr. Byard’s silence into account when it denied his request for a transfer.

I.               Was the CSC’s Conduct Lawful?

[7]               Mr. Byard argues that the information relied on by the CSC does not fall within the factors that must be taken into account in determining an inmate’s security classification according to s. 17 of the Corrections and Conditional Release Regulations, SOR/92-620 (enactments cited are set out in Annex A). Further, he suggests that, by relying on the RCMP’s information, the CSC has effectively fettered its discretion in relation to decisions about security classifications and delegated its responsibility to the RCMP.

[8]               Section 17 of the Regulations states that the CSC must take into account the following factors, among others:

•           any outstanding charges against the inmate;

•           the inmate’s performance and behaviour while under sentence;

•           the inmate’s social, criminal and, if available, young-offender history;

•           the inmate’s potential for violent behaviour; and

•           the inmate’s continued involvement in criminal activities.

[9]               Mr. Byard maintains that, since he was never charged in relation to the 2005 murder, there are no outstanding charges against him and, therefore, that the CSC cannot take into account the fact that the RCMP still considers him a person of interest. However, it is clear that the RCMP’s concerns fall within other factors that the CSC is required to consider, including behaviour while under sentence, criminal history, potential for violence and continued involvement in crime. Further, I note that s. 17 sets out the factors that the CSC must consider. It does prevent the CSC from considering others that may be relevant.

[10]           The CSC had a duty to “take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible” (s. 24(1) of the Corrections and Conditional Release Act, 1992 c. 20). In that sense, the CSC has a duty to include information about inmates that is relevant to decisions that have to be taken in the correctional setting. However, there will certainly come a point when information of the sort in issue here will become stale and of little value or relevance in making decisions about security classifications. As mentioned, the persons charged in relation to the 2005 murder have not yet come to trial. Once the evidence is in, both the RCMP and, in turn, the CSC are likely to have all the information they will ever acquire about Mr. Byard’s involvement or lack of involvement in that crime. If all that remains at that point is the lingering and vague suggestion that Mr. Byard is a person of interest, I would expect the CSC to give that information very little weight in assessing Mr. Byard’s security classification. Whether it might be relevant for other purposes is an open question (see: Brown v. Canada (Attorney General), 2006 FC 463, at para. 36).

III.          Conclusion and Disposition

[11]           In my view, the information relied on by the CSC falls within s. 17 of the Regulations. By relying on it, the CSC did not fetter its discretion or delegate its decision-making responsibility to the RCMP. The application for judicial review is dismissed.

JUDGMENT

THIS COURT’S JUDGMENT IS that :

1.                  The application for judicial review is dismissed.

“James W. O’Reilly”

Annex “A”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-1227-08

STYLE OF CAUSE:                          Byard v. A.G.C.

PLACE OF HEARING:                    Vancouver, British Columbia

DATE OF HEARING:                      April 15, 2009

REASONS FOR JUDGMENT:       O’REILLY J.

DATED:                                             June 22, 2009

APPEARANCES:

SOLICITORS OF RECORD: