BETWEEN:
GARFIELD GRAHAM,
Applicant
and
INDEPENDENT CHAIRPERSON AT MILLHAVEN PENITENTIARY and THE ATTORNEY GENERAL OF CANADA.
Respondents
[1] Under subsection 44(1) of the Corrections and Conditional Release Act, S.C. 1992, c.20 (the "CCRA" or "the Act"), is a sanction of disciplinary segregation and loss of privileges, for a serious disciplinary offence, lawful?
FACTS
[2] Mr. Graham is an inmate at Millhaven Penitentiary. On November 19, 2003, two homemade concealed weapons were discovered in his cell. He was charged with a serious disciplinary offence - possession of contraband contrary to subsection 40(i) of the CCRA.
[3] The disciplinary hearing took place before the independent chairperson (ICP) on March 2, 2004. After hearing evidence from the officer on duty and Mr. Graham, the ICP found Mr. Graham guilty of the offence. In considering the appropriate sanction, the ICP considered a number of factors including Mr. Graham's previous (and recent) sanction of four days disciplinary segregation and loss of privileges for a contraband weapons offence. He imposed a sanction of twelve days disciplinary segregation and loss of privileges.
[4] Mr. Graham's counsel argued that the sanction was unlawful. The ICP suspended the imposition of the sanction to enable Mr. Graham to apply for judicial review of his decision. Mr. Graham takes no issue with the ICP's finding of guilt.
ISSUE
[5] The only question is whether a disciplinary sanction of loss of privileges can be imposed in conjunction with a sanction of disciplinary segregation. The answer requires reference to various provisions of the CCRA and the Corrections and Conditional Release Regulations, SOR/92-620 (the Regulations).
THE STANDARD OF REVIEW
[6] Mr. Justice Kelen, in Forrest v. Canada (Attorney General) (2002), 219 F.T.R. 82 (T.D.), discussed the appropriate standard of review for decisions of a penitentiary disciplinary court. The Federal Court will not intervene in questions of fact unless the finding is patently unreasonable. For findings of mixed fact and law, unless the finding is unreasonable, intervention is not warranted. Justice Kelen, at paragraph 17, reviewed the role of the court on judicial review and noted, among other things, that the court must ensure that the [independent chairperson] did not err in law or fail to observe a principle of natural justice or fairness.
[7] This judicial review centres on an issue of statutory interpretation. There is no privative clause. The ICP has expertise related to the penitentiary decision-making process and is appointed on that basis - Regulations, ss. 24(1) - but is no better-positioned than the court regarding questions of law.
[8] The provisions in question are disciplinary in nature and describe possible disciplinary sanctions. Decisions made on the basis of these provisions have direct impact on the rights and privileges of inmates. As a result, the ICP is required to take certain factors into account when deciding upon the appropriate sanction: Regulations, s. 34. The purpose of the disciplinary provisions is to promote the good order of the penitentiary: CCRA s. 38. The purpose of the Act is to carry out sentences imposed by courts and to assist in the rehabilitation and reintegration of offenders while contributing to the maintenance of a just, peaceful and safe society: CCRA s. 3. The nature of the question is one of law and is not dependent on the facts of the case before the ICP.
[9] Balancing the noted factors, little deference is owed to the ICP on the issue of the proper interpretation of the CCRA and the Regulations. The applicable standard of review in this matter is one of correctness.
THE RELEVANT STATUTORY PROVISIONS
[10] The purpose of the correctional system is found in section 3 of the CCRA:
| Corrections and Conditional Release Act, S.C. 1992, c. 20
3. The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by (a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and (b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.
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Loi sur le système correctionnel et la mise en liberté sous condition, L.C. 1992, ch. 20
3. Le système correctionnel vise à contribuer au maintien d'une société juste, vivant en paix et en sécurité, d'une part, en assurant l'exécution des peines par des mesures de garde et de surveillance sécuritaires et humaines, et d'autre part, en aidant au moyen de programmes appropriés dans les pénitenciers ou dans la collectivité, à la réadaptation des délinquants et à leur réinsertion sociale à titre de citoyens respectueux des lois.
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[11] Section 38 sets out the purpose of the disciplinary system:
| 38. The purpose of the disciplinary system established by sections 40 to 44 and the regulations is to encourage inmates to conduct themselves in a manner that promotes the good order of the penitentiary, through a process that contributes to the inmates' rehabilitation and successful reintegration into the community. |
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38. Le régime disciplinaire établi par les articles 40 à 44 et les règlements vise à encourager chez les détenus un comportement favorisant l'ordre et la bonne marche du pénitencier, tout en contribuant à leur réadaptation et à leur réinsertion sociale. |
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[12] The possible sanctions in relation to disciplinary offences are enumerated in section 44:
| 44. (1) An inmate who is found guilty of a disciplinary offence is liable, in accordance with the regulations made under paragraphs 96(i) and (j), to one or more of the following: (a) a warning or reprimand; (b) a loss of privileges;(c) an order to make restitution; (d) a fine; (e) performance of extra duties; and (f) in the case of a serious disciplinary offence, segregation from other inmates for a maximum of thirty days. (2) A fine or restitution imposed pursuant to subsection (1) may be collected in the prescribed manner.
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44. (1) Le détenu déclaré coupable d'une infraction disciplinaire est, conformément aux règlements pris en vertu des alinéas 96i) et j), passible d'une ou de plusieurs des peines suivantes_: a) avertissement ou réprimande; b) perte de privilèges; c) ordre de restitution; d) amende; e) travaux supplémentaires; f) isolement pour un maximum de trente jours, dans le cas d'une infraction disciplinaire grave. (2) Le recouvrement de l'amende et la restitution s'effectuent selon les modalités réglementaires. |
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[13] The rights, privileges and conditions of confinement of an inmate in administrative segregation are contained in section 37:
| 37. An inmate in administrative segregation shall be given the same rights, privileges and conditions of confinement as the general inmate population, except for those rights, privileges and conditions that (a) can only be enjoyed in association with other inmates; or (b) cannot reasonably be given owing to (i) limitations specific to the administrative segregation area, or (ii) security requirements.
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37. Le détenu en isolement préventif jouit, compte tenu des contraintes inhérentes à l'isolement et des impératifs de sécurité, des mêmes droits, privilèges et conditions que ceux dont bénéficient les autres détenus du pénitencier. |
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[14] Section 96 gives authority to the Governor in Council to make regulations, among other things, regarding the disciplinary sanctions enumerated in section 44:
| 96. (i) in connection with the disciplinary sanctions described in section 44, (i) prescribing the maximum of each of those sanctions, which maxima shall be higher for serious disciplinary offences than for minor ones, (ii) prescribing factors and guidelines to be considered or applied in imposing those sanctions, (iii) prescribing the scope of each of those sanctions, and (iv) respecting the enforcement, suspension and cancellation of those sanctions; |
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96. i) concernant l'exécution, la suspension et l'annulation des sanctions disciplinaires prévues à l'article 44 et précisant_: (i) le maximum de chaque peine, lequel doit être, pour les infractions disciplinaires mineures, inférieur à celui prévu pour les infractions disciplinaires graves, (ii) les facteurs et les grands principes à prendre en compte pour la détermination des peines, (iii) la portée de chaque peine;
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[15] The Regulations set out the considerations and restrictions applicable to disciplinary sanctions:
| Corrections and Conditional Release Regulations, SOR/92-620 34. Before imposing a sanction described in section 44 of the Act, the person conducting a hearing of a disciplinary offence shall consider (a) the seriousness of the offence and the degree of responsibility the inmate bears for its commission; (b) the least restrictive measure that would be appropriate in the circumstances; (c) all relevant aggravating and mitigating circumstances, including the inmate's behaviour in the penitentiary; (d) the sanctions that have been imposed on other inmates for similar disciplinary offences committed in similar circumstances; (e) the nature and duration of any other sanction described in section 44 of the Act that has been imposed on the inmate, to ensure that the combination of the sanctions is not excessive; (f) any measures taken by the Service in connection with the offence before the disposition of the disciplinary charge; and (g) any recommendations respecting the appropriate sanction made during the hearing.
35. (1) The maximum number of days of privileges that may be lost by an inmate pursuant to paragraph 44(1)(b) of the Act is (a) seven days, for a minor disciplinary offence; and
(b) 30 days, for a serious disciplinary offence. 35. (2) A sanction of the loss of privileges (a) shall be limited to a loss of access to activities that are recreational in nature; and (b) shall not be imposed where the loss of privileges would be contrary to the inmate's correctional plan. |
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Règlement sur le système correctionnel et la mise en liberté sous condition, DORS/92-620 34. Avant d'infliger une peine visée à l'article 44 de la Loi, la personne qui tient l'audition disciplinaire doit tenir compte des facteurs suivants : a) la gravité de l'infraction disciplinaire et la part de responsabilité du détenu quant à sa perpétration; b) ce qui constitue la mesure la moins restrictive possible dans les circonstances; c) toutes les circonstances, atténuantes ou aggravantes, qui sont pertinentes, y compris la conduite du détenu au pénitencier; d) les peines infligées à d'autres détenus pour des infractions disciplinaires semblables commises dans des circonstances semblables; e) la nature et la durée de toute autre peine visée à l'article 44 de la Loi qui a été infligée au détenu, afin que l'ensemble des peines ne soit pas excessif; f) toute mesure prise par le Service par rapport à cette infraction avant la décision relative à l'accusation; g) toute recommandation présentée à l'audition quant à la peine qui s'impose.
35. (1) Le nombre de jours de privilèges que peut perdre un détenu aux termes de l'alinéa 44(1)b) de la Loi ne peut dépasser : a) sept jours dans le cas d'une infraction disciplinaire mineure; b) 30 jours dans le cas d'une infraction disciplinaire grave. 35. (2) La peine qui consiste en la perte de privilèges : a) ne peut viser que la participation à des activités récréatives; b) ne doit pas être infligée si elle va à l'encontre du plan correctionnel du détenu.
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[16] Subsection 40(3) of the Regulations addresses the confinement of an individual in disciplinary segregation:
| 40.(3) An inmate who is serving a period of segregation as a sanction for a disciplinary offence shall be accorded the same conditions of confinement as would be accorded to an inmate in administrative segregation. |
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40.(3) Le détenu purgeant une peine d'isolement pour une infraction disciplinaire se voit accorder les mêmes conditions que les détenus mis en isolement préventif.
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THE ARGUMENT
[17] Mr. Graham contends that subsection 44(1) of the CCRA must be read in conjunction with subsection 40(3) of the Regulations. The latter requires that an inmate serving a period of disciplinary segregation be accorded the same conditions of confinement as those afforded an inmate in administrative segregation. To ascertain the conditions of confinement for administrative segregation, Mr. Graham turns to section 37 of the Act. That provision (with specified exceptions that are not relevant here) states that inmates in administrative segregation have the same rights, privileges and conditions of confinement as the general population.
[18] Mr. Graham maintains that taking away privileges, such as access to television and radio, creates a situation whereby he does not have the same conditions of confinement as an inmate in administrative segregation or an inmate in the general population. He concludes that the combined effect of subsection 40(3) of the Regulations and section 37 of the CCRA is that loss of privileges cannot be used in conjunction with punitive segregation in a disciplinary sanction.
[19] He further submits that this position is consistent with the reality that segregation is very serious. Its nature can be inferred from the fact that daily visits by a registered health care professional and the institutional head are required - CCRA section 36, subsections (1) and (2) - as well as from the studies that concluded that segregation has significant psychopathological effects on inmates: Canada, Commission of Inquiry into Certain Events at the Prison for Women in Kingston, (Ottawa: Public Works and Government Services Canada, 1996) at 186-187 (Commissioner: The Honourable Louise Arbour).
[20] Alternatively, if his first submission is not accepted, Mr. Graham asserts that there is ambiguity in the legislation that should be resolved in his favour with the effect that disciplinary segregation should not be imposed along with loss of privileges. In this respect, he relies on the jurisprudence that requires strict construction of penal statutes with the benefit of doubt going to the subject. He submits that the terms "conditions of confinement" and "rights, privileges, and conditions of confinement" are not defined in the CCRA, but, in any case, privileges such as access to radio and television should be included in "conditions of confinement".
ANALYSIS
Combined Effect of the CCRA and the Regulations
[21] The CCRA contains a number of references to the rights and privileges of inmates. Inmates retain the same rights and privileges of all members of society, except for those rights and privileges that are necessarily removed or restricted by their sentences: CCRA, ss. 4(e). The purpose of administrative segregation is to keep an inmate from associating with the general inmate population: CCRA, ss. 31(1). Inmates in administrative segregation do not lose any of their rights or privileges: CCRA, s. 37. In contrast, inmates found guilty of a disciplinary offence can lose privileges that are recreational in nature for a specified period of time: CCRA, para. 44(1)(b); Regulations, s. 35. The purpose of the disciplinary provisions is to encourage inmates to conduct themselves in a manner that promotes the good order of the penitentiary: CCRA s. 38.
[22] Neither the CCRA nor the Regulations states that privileges cannot be taken away from inmates in disciplinary segregation. Subsection 44(1) of the Act, by using the phrase "one or more of the following", permits the imposition of more than one sanction for inmates found guilty of a disciplinary offence - including disciplinary segregation and loss of privileges - subject to the limitations imposed by the Regulations regarding the kinds of privileges that can be lost and the duration of the loss.
[23] Based on a reading of the provisions, according to their ordinary and grammatical meaning, it appears that the ICP correctly interpreted the Act. However, this interpretation must also be consistent with the purpose of the provision, the purpose of the Act, and the intention of Parliament: Re. Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27; Chartier v. Chartier, [1999]
1 S.C.R. 242; R. v. Gladue, [1999] 1 S.C.R. 688; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; R. v. Sharpe, [2001] 1 S.C.R. 45; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559.
[24] The provisions of the CCRA relating to the purposes and underlying principles of the Act have been noted earlier. It bears repeating that the purpose of the disciplinary system, as stated in section 38 of the Act, is to "encourage inmates to conduct themselves in a manner that promotes the good order of the penitentiary". In order to promote good order, the ICP must have the capacity to sanction inmates who have committed disciplinary offences.
[25] The combined effect of section 37 of the CCRA and subsection 40(3) of the Regulations does not yield the result suggested by Mr. Graham. Subsection 40(3) states that inmates in disciplinary segregation shall be accorded the "same conditions of confinement" as inmates in administrative segregation while section 37 of the Act states that inmates in administrative segregation shall be afforded the "same rights, privileges and conditions of confinement" as inmates in the general population. The wording of section 37 indicates that "privileges" are separate and distinct from "conditions of confinement". Therefore, it does not follow that being accorded the "same conditions of confinement" means that an inmate in disciplinary segregation is afforded all of the same rights and privileges as an inmate in administrative segregation.
[26] I agree with the respondent that, in the case of an inmate already in administrative segregation, the practical effect of Mr. Graham's position is that no further sanction could be imposed upon that inmate for a disciplinary offence. The inmate could be sanctioned with disciplinary segregation but that inmate, who is already segregated from the general inmate population, would not stand to lose anything further upon being found guilty of a disciplinary offence. Such a result is inconsistent with the purpose of the disciplinary provisions.
[27] Additionally, Mr. Graham's interpretation would mean that there is little, if any, difference between administrative segregation and disciplinary segregation. It is presumed that Parliament does not speak in vain. Since a reference to "rights and privileges" is included in section 37 of the Act and not in subsection 40(3) of the Regulations, Parliament must have intended to distinguish between administrative and disciplinary segregation. Mr. Graham is attempting to read the words "rights and privileges" into subsection 40(3) of the Regulations. This approach is unnecessary and is "tantamount to amending [ss. 40(3)], which is a legislative and not a judicial function. The contextual approach provides no basis for the courts to engage in legislative amendment": R. v. McIntosh, [1995] 1 S.C.R. 686 at paragraph 26.
[28] In a similar vein, the Federal Court of Appeal in Biolyse Pharma Corp. v. Bristol-Myer Squibb Co., [2003] 4 F.C. 505 (C.A.) stated at paragraph 13:
This holistic approach to the interpretation of legislation, including, as here, subordinate legislation, requires a court to attribute the meaning that provides the best fit with both the text and the context of the provision in question. Neither can be ignored, although the clearer the "ordinary meaning" of the text, the more compelling the contextual considerations must be in order to warrant a different reading of it, especially when that involves adding words to those used by the legislator.
[29] I agree that there is some evidence that long-term segregation is harmful to inmates (Arbour Report), but there is no evidence before me that short-term segregation has similar harmful effects. In any case, the serious and harmful effects of disciplinary segregation must be balanced against the need for the security of the penitentiary and the safety of its staff, inmates and the general public. In my view, the potentially harmful effects of short-term disciplinary segregation do not outweigh the importance of maintaining order within the institution and ensuring the safety of other inmates and penitentiary staff.
[30] In conclusion, the CCRA permits the imposition of both disciplinary segregation and a loss of privileges (simultaneously) for an inmate found guilty of a serious disciplinary offence. Consequently, the ICP was correct in his interpretation of the CCRA.
Ambiguity
In Bell ExpressVu, supra, the Supreme Court of Canada, at paragraph 29, addressed the issue of ambiguity:
The words of the provision must be "reasonably capable of more than one meaning" (Westminster Bank Ltd. v. Zang, [1996] A.C.182 (H.L.), at p. 22, per Lord Reid). By necessity, however, one must consider the "entire context" of a provision before one can determine if it is reasonably capable of multiple interpretations. In this regard, Major J.'s statement in CanadianOxy Chemicals Ltd. v.Canada (Attorney General), [1999] 1 S.C.R. 743, at para. 14, is apposite: "It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids"...to which I would add, "including other principles of interpretation".
[31] In my view, there is no ambiguity here. For the reasons previously stated, the provisions are not capable of more than one plausible reading that accords with the intent and purposes of the CCRA. Again, I agree with the respondent that inmates in the general population and in administrative segregation can lose their privileges as a disciplinary sanction under subsection 44(1) of the Act. If it is possible under the "conditions of confinement" for inmates in the general population and those in administrative segregation to be sanctioned with a loss of privileges, so too is it possible for inmates in disciplinary segregation.
[32] Regarding Mr. Graham's submissions that penal statutes are to be strictly construed in favour of the subject, that principle of statutory interpretation applies only where there is ambiguity as to the meaning of a provision: Bell ExpressVu, supra. Moreover, discipline provisions do not amount to penal consequences. A penal consequence is imposed for the wrong done to society at large rather than for the maintenance of internal discipline: R. v. Shubley, [1990] 1 S.C.R. 3.
[33] The application for judicial review must be dismissed. The respondent seeks costs in an unspecified amount. Although this application raises novel issues of statutory interpretation, costs normally follow the event. In the exercise of my discretion, the respondent will have costs in the all inclusive amount of $100 to be paid by Mr. Graham.
ORDER
THIS COURT ORDERS THAT:
The application for judicial review is dismissed with costs in the all inclusive amount of $100 to be paid by the applicant to the respondent.
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Judge
Ottawa, Ontario
30 September, 2004
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-608-04
STYLE OF CAUSE: GARFIELD GRAHAM v. INDEPENDENT CHAIRPERSON AT MILLHAVEN PENITENTIARY ET AL
PLACE OF HEARING: Kingston, Ontario
DATE OF HEARING: September 22, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Madam Justice Layden-Stevenson
DATED: September 30, 2004
APPEARANCES:
Mr. Fergus O'Connor FOR THE APPLICANT
Ms. Ramona Rothschild FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Fergus O'Connor FOR THE APPLICANT
104 Johnson Street P.O. Box 1959,
Kingston, Ontario.
K7L 5J7
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario