Date: 20020822
Docket: T-2363-00
Neutral Citation: 2002 FCT 896
Ottawa, Ontario, the 22nd day of August, 2002
Present: THE HONOURABLE MR. JUSTICE MICHEL BEAUDRY
BETWEEN:
GUY LAPLANTE
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review by the applicant, who has been in voluntary administrative segregation since 1998 at Donnacona, for an order seting aside the decision by the Chairperson of the Disciplinary Court, Paul Maranda, dated November 23, 2000. That decision sentenced the applicant to five days of disciplinary detention with loss of privileges because he refused to return to the general inmate population.
ISSUES IN DISPUTE
[2] Based on the facts, is the decision of the Disciplinary Board manifestly unreasonable or did it make a reviewable error in law?
[3] For the following reasons, I am of the view that the decision should be set aside.
FACTUAL BACKGROUND
[4] The applicant has been serving a life sentence since 1979 for second degree murder. He was granted day parole in 1987 and full parole in 1989. However, in 1997 his parole was suspended. The suspension was caused by the applicant's alleged association with organized crime and his possible involvement in two murders as well as trafficking in narcotics, all of which is denied by the applicant.
[5] Since his incarceration, the applicant has been moved from one institution to another. Between 1997 and 1999, he was incarcerated in both the Leclerc Institution and in Archambault. Since May 1999, the applicant has been incarcerated at Donnacona, a maximum security institution.
[6] In a penal institution, an inmate may be placed in administrative segregation. The segregation may be requested by the inmate or may be imposed on him on the grounds set out in subsection 31(3) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act). For purposes of this discussion, section 31 of the Act is reproduced in its entirety:
| 31. (1) The purpose of administrative segregation is to keep an inmate from associating with the general inmate population.
(2) Where an inmate is in administrative segregation in a penitentiary, the Service shall endeavour to return the inmate to the general inmate population, either of that penitentiary or of another penitentiary, at the earliest appropriate time.
(3) The institutional head may order that an inmate be confined in administrative segregation if the institutional head believes on reasonable grounds
(a) that
(i) the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person, and
(ii) the continued presence of the inmate in the general inmate population would jeopardize the security of the penitentiary or the safety of any person,
(b) that the continued presence of the inmate in the general inmate population would interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of a serious disciplinary offence, or
(c) that the continued presence of the inmate in the general inmate population would jeopardize the inmate's own safety, and the institutional head is satisfied that there is no reasonable alternative to administrative segregation.
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31. (1) L'isolement préventif a pour but d'empêcher un détenu d'entretenir des rapports avec l'ensemble des autres détenus.
(2) Le détenu en isolement préventif doit être replacé le plus tôt possible parmi les autres détenus du pénitencier où il est incarcéré ou d'un autre pénitencier.
(3) Le directeur du pénitencier peut, s'il est convaincu qu'il n'existe aucune autre solution valable, ordonner l'isolement préventif d'un détenu lorsqu'il a des motifs raisonnables de croire, selon le cas :
a) que celui-ci a agi, tenté d'agir ou a l'intention d'agir d'une manière compromettant la sécurité d'une personne ou du pénitencier et que son maintien parmi les autres détenus mettrait en danger cette sécurité;
b) que son maintien parmi les autres détenus peut nuire au déroulement d'une enquête pouvant mener à une accusation soit d'infraction criminelle soit d'infraction disciplinaire grave visée au paragraphe 41(2);
c) que le maintien du détenu au sein de l'ensemble des détenus mettrait en danger sa sécurité. |
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[7] Since his reincarceration, the applicant has chosen to remain apart from the general population, and is therefore in voluntary administrative segregation.
[8] On October 30, 2000, a Correctional Service Canada (CSC) staff member met with him and ordered him to return to the general population. The staff member told him that if he did not do so, he would receive a disciplinary offence report. Because the applicant refused to comply, he was given an offence report on November 1, 2000. The staff member indicated in his report that the offence was "[TRANSLATION] serious". The legal basis for this charge is found in subsection 40(a) of the Act, which provides:
| 40. An inmate commits a disciplinary offence who
(a) disobeys a justifiable order of a staff member;
. . .
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40. Est coupable d'une infraction disciplinaire le détenu qui : a) désobéit à l'ordre légitime d'un agent;
[...] |
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[9] The applicant disputed this charge before the serious offences court. Mr. Paul Maranda, the Chairperson at the hearing of the complaint on November 23, 2000, found the applicant guilty of the offence, and sentenced him to five days of disciplinary detention with loss of privileges.
[10] The solicitors of record before me admitted that the CSC staff member testified and was cross-examined by counsel for the applicant.
[11] At paragraph 24 of his affidavit, the applicant admits that he had already received offence reports in October 1999 and January 2000. Following the report of October 31, 2000, he received five more, all reports of serious disciplinary offences, all of the same type, on November 10, 15, 16, and 29 and on December 6, 2000. He maintains in his memorandum that all these similar decisions are unreasonable.
SUBMISSIONS OF THE APPLICANT
[12] The applicant believes that the Chairperson's decision is patently unreasonable because the staff member's order is not legitimate and does not meet the criteria of subsection 40(a) of the Act, supra.
[13] He contends that the staff member who wrote the offence report did not comply with the obligation under subsection 41(1) of the Act to attempt to resolve the matter informally:
| 41. (1) Where a staff member believes on reasonable grounds that an inmate has committed or is committing a disciplinary offence, the staff member shall take all reasonable steps to resolve the matter informally, where possible.
(2) Where an informal resolution is not achieved, the institutional head may, depending on the seriousness of the alleged conduct and any aggravating or mitigating factors, issue a charge of a minor disciplinary offence or a serious disciplinary offence. [emphasis added]
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41. (1) L'agent qui croit, pour des motifs raisonnables, qu'un détenu commet ou a commis une infraction disciplinaire doit, si les circonstances le permettent, prendre toutes les mesures utiles afin de régler la question de façon informelle.
(2) À défaut de règlement informel, le directeur peut porter une accusation d'infraction disciplinaire mineure ou grave, selon la gravité de la faute et l'existence de circonstances atténuantes ou aggravantes. [je souligne] |
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[14] He adds that the offence report was brought before the serious offences court without considering whether the existence of aggravating or mitigating factors had been taken into account, as required by subsection 41(2) of the Act.
[15] The applicant submits that the dispute should have been brought before the review committee that deals with segregation cases, and that it is the responsibility of the institution, not the serious offences court, to develop a plan to resolve the situation at the root of the segregation. Therefore, he submits that the Chairperson erred in agreeing with the manner in which CSC proceeded, by punishing a refusal to leave segregation with a period of detention in segregation.
[16] He also takes issue with the Chairperson for breaching his duty to verify whether the charge concerning his behaviour could have been reduced from serious to minor.
[17] He relies on the Commissioner's Directives to support his submission that the Chairperson should have considered amending the charge, and submits that CSC should have used the review process for segregation cases, instead of appealing to the disciplinary regime to bring about his return to the general population.
[18] As an additional argument, the applicant relies on section 68 of the Act, which prohibits applying an instrument of restraint to an offender as punishment, thus circumventing section 37 of the Act which provides:
| 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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[19] For purposes of analysis, section 68 of the Act is also reproduced:
| 68. No person shall apply an instrument of restraint to an offender as punishment. |
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68. Il est interdit d'user de moyens de contrainte à titre de sanction contre un délinquant. |
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[20] In conclusion, the applicant asserts that his parole was revoked on the basis of suspicions of criminal conduct that never materialized into formal charges against him. He also believes that the respondent is in breach of section 24 of the Act by failing to comply with the obligation to ensure that the information the respondent uses to keep him incarcerated is up to date, accurate and complete. He concludes by reiterating that he has not committed any disciplinary offence.
SUBMISSIONS OF THE RESPONDENT
[21] The respondent submits that the administrative decision by CSC ordering the applicant to return to the general population is valid.
[22] She submits that the applicant is precluded from pleading that the offence was minor and that there was no attempt at informal resolution because those two arguments were not made before the Chairperson.
[23] Relying on section 31(2) of the Act, the respondent argues that the decision was valid because the order given to the applicant to return to the general population is consistent with the Act (subsection 31(2) supra).
[24] According to the respondent, the Chairperson only has the power to decide whether the accused is guilty or not. The Act and the Regulations do not give him the power to rule on the validity of the administrative decision by the prison authorities to order the applicant to return to the general population or to serve him with an offence report after he refused. The respondent submits that such an interpretation of the powers of the Chairperson would contravene section 18 of the Federal Court Act, R.S.C., 1985, c. F-7.
[25] The respondent submits that the offence falls within paragraph 8 of Commissioner's Directive No. 580, which defines a serious offence (see page 57 of the applicant's record).
[26] In support of his submission, the respondent relies on section 302 of the Federal Court Rules, and contends that the application for judicial review shall be limited to a single administrative decision.
[27] In conclusion, the respondent maintains that the decision of the Chairperson is well founded in fact and in law, that his decision is reasonable and that the application for judicial review should be dismissed.
ANALYSIS
[28] The respective submissions of the parties raise a number of issues:
1. The validity of the order;
2. The procedure;
3. The characterization of the offence;
4. The responsibility and the authority for return to the general population following a period of segregation;
5. The prohibition against applying an instrument of restraint against an offender.
[29] I will deal only with the first two questions because I am of the view that the decision should be set aside.
1. The validity of the order
[30] An order to leave segregation is normally a valid order. This issue was discussed in Migneault v. Canada (Attorney General), [1996] F.C.J. No. 1485 (QL) (T.D.). Mr. Justice Noël, as he then was, dismissed the application for judicial review and upheld the decision of the Chairperson of the disciplinary court. He focused on the absence of bad faith on the part of the CSC staff members when they ordered the inmate to leave his cell, and the lack of justification for the purely subjective fear that motivated the inmate's refusal to leave his cell.
[31] In this case, there is no evidence of bad faith on the part of the CSC staff member, and since the applicant refused to explain why he wanted to remain in segregation, there is also no evidence of subjective fear on his part.
[32] In addition, a number of decisions have found orders that are much more invasive with respect to inmates to be valid, for example, orders to provide urine samples (see Opoonechaw v. Stoney Mountain Institution, [1996] F.C.J. No.1049 (QL) (T.D.) and Simoneau v. Canada (Correctional Service), [1998] F.C.J. No. 1078 (QL) (T.D.).
[33] An analysis of the Act allows us to extract the following principles and purposes: the importance of protecting society, minimizing the restrictive nature of measures, the necessary restriction of certain rights as a result of a sentence, the importance of compliance with penitentiary regulations.
[34] The applicant in this case surely does not have the right to freely choose where he lives within the penitentiary.
[35] Therefore, I consider his refusal to comply with the order to leave administrative segregation an offence under subsection 40(a) of the Act.
2. The procedure
[36] The respondent invites me to find that the applicant is precluded from arguing that nothing was done to resolve the matter informally under subsection 41(1) of the Act. Unfortunately, I do not agree, because I consider this provision of the Act, which specifies the word "shall" after the words "has committed a disciplinary offence" to be mandatory.
[37] Given that we are dealing with a statute, I am of the view that the Chairperson of the Disciplinary Board should have dismissed the offence or found the applicant not guilty of the offence. In this case, there is no evidence of any attempt whatsoever to resolve the matter informally as set out in subsection 41(1) of the Act. Campbell J. in Schimmens v. Canada (Attorney General), [1998] F.C.J. No.1486 (QL) (T.D.), dealt with this issue and stated at paragraph 3:
I agree with the Applicant's argument that s. 41(1) establishes a condition precedent which must be met before the institutional court has jurisdiction to proceed with the hearing of a charge. Thus, I find s. 41(1) creates an obligation on the institutional court member before hearing a charge to investigate to be satisfied that "all reasonable steps to resolve the matter informally, where possible" have been taken. [Emphasis added]
[38] Therefore, I am of the view that this obligation is a question of law that can be raised at any time by the applicant. Accordingly, the decision must be set aside, because the Chairperson of the disciplinary bord at Donnacona should have made inquiries as to whether steps had in fact been taken to resolve the matter informally or, at the very least, whether particular circumstances prevented such steps from being taken.
[39] Accordingly, the application for judicial review is allowed, and the decision of the Chairperson of the Disciplinary Board at Donnacona dated November 23, 2000, is set aside.
ORDER
THE COURT ORDERS that:
1. The application for judicial review is allowed, without costs.
2. The decision of the Chairperson of the Disciplinary Board at Donnacona dated November 23, 2000, is set aside.
(signed) Michel Beaudry
Judge
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF LAWYERS AND SOLICITORS OF RECORD
DOCKET: T-2363-00
STYLE OF CAUSE: GUY LAPLANTE and
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: August 7, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MICHEL BEAUDRY
DATED: August 22, 2002
APPEARANCES
Julie Gagné for the applicant
Sébastien Gagné for the respondent
SOLICITORS OF RECORD
Julie Gagné for the applicant
Sainte-Foy, Quebec
Morris Rosenberg for the respondent
Deputy Attorney General of Canada
Ottawa, Ontario