Date: 20040705
Docket: T-1115-02
Ottawa, Ontario, this 5th day of July, 2004
Present: The Honourable Johanne Gauthier
BETWEEN:
KEVIN MASON BROWN
Applicant
and
THE ATTORNEY GENERAL OF CANADA
on behalf of THE COMMISSIONER OF CORRECTIONAL SERVICE CANADA
and THE WARDEN OF KINGSTON PENITENTIARY
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Brown seeks judicial review of the decision of the Commissioner of Correctional Service Canada (the Commissioner), who rejected his third level grievance and upheld the decision to reclassify him as a maximum security level inmate and to involuntarily transfer him to the maximum security penitentiary.
[2] Since the filing of his application for judicial review, Mr. Brown has been re-transferred to a medium security institution to complete his 25 years sentence that commenced on March 17, 1992.
[3] In view of that transfer, the respondent argues that the application is moot and that the Court should not exercise its discretion to decide the matter because there is no evidence that this transfer will have an impact on Mr. Brown's chances for parole.
[4] However, applying the two steps approach set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R 342, I have decided to exercise my discretion to hear and decide this application. Although there is no live controversy, this Court has already recognized in cases such as, Zarzour v. Canada (Attorney General), [2000] F.C.J. No. 103 (T.D.) (QL) (at paragraph 33), that maximum security level reclassification and a transfer from a medium to a maximum institution will be considered when an inmate becomes eligible to make a parole application.[1]
[5] Mr. Brown submits that the decision of the Commissioner was arbitrary because his transfer was not properly justified on the true facts of his case.[2] In addition, he argues that the Commissioner failed to consider his representations that the process leading to his transfer had not been carried out in a fair and just manner because the multidisciplinary team reviewing his transfer was not independent and based its assessment, among other things, upon biased evidence originating from Mr. Frankovitch, the Internal Preventive Security Officer (IPSO Frankovitch).
[6] This last argument was not argued in the plaintiff's written submissions, although the evidence relating to it was produced. It was raised as a last argument at the first hearing. Because the respondent did not have a proper opportunity to prepare its response to this argument, the Court, in agreement with the parties, scheduled a second hearing to deal only with this issue and gave the parties permission to file supplementary material.
THE FACTS
[7] In March of 2001, shortly after he had been moved to Collins Bay's institution, a medium security institution (C.B.), Mr. Brown was appointed Chairman of the Inmate Committee. In that capacity on April 3, 2001, he appeared on a CBC television special entitled: "Inside Canada's Prisons" hosted by Peter Mansbridge and airing from C.B. During that program, he discussed a recent incident involving three female visitors to C.B. that were allegedly improperly strip-searched at the request of IPSO Frankovitch.
[8] Then on April 16, May 19 and June 17, 2001, Mr. Brown wrote to the Commissioner to petition on behalf of the C.B.'s Inmate Committee for the removal of IPSO Frankovitch. Mr. Brown claims that as a result of these events, IPSO Frankovitch started building a case against him which resulted in his suspension on June 5, 2001, and later to the termination of his appointment as Chairman of the Inmate Committee, on June 15, 2001.
[9] During that period, several incident reports involving Mr. Brown were filed by various members of C.B.'s staff. Then, on June 20, 2001, based on information obtained by IPSO Frankovitch, a permission was granted to tape Mr. Brown's telephone conversations. During one such conversation with his wife, Mr. Brown made some very inappropriate comments about Warden Stevenson, the head of C.B., who upon returning from a sick leave during which he was treated for cancer, had suspended him from his function as Chairman of the Inmate Committee.
[10] On the basis of this taped conversation, as well as other information relating to an organized attempt to regain his status as Chairman, IPSO Frankovitch advised Warden Stevenson that Mr. Brown had issued threats against him and his family and may now pose a security risk. The procedure for a reassessment of Mr. Brown's security level and for his emergency transfer to a maximum security institution was initiated. On June 21, 2001, after an emergency meeting of a multidisciplinary team composed of six members of C.B.'s staff, which included IPSO Frankovitch, Mr. Brown was effectively transferred to Millhaven's maximum security penitentiary on the basis that he was a threat to C.B.'s staff.[3]
[11] Mr. Brown grieved his emergency transfer up to the second level and filed an application for an habeas corpus before the Ontario Superior Court. The matter was settled after it was determined, on December 5, 2001, that his transfer had not been properly documented and Correctional Service Canada agreed that he should return to C.B. In the document giving the rationale for this decision (exhibit HH to Mr. Brown's Affidavit), it is expressly mentioned that the warden of C.B. may review Mr. Brown's security classification to determine if his rating is still medium.
[12] On July 31, 2001, Mr. Brown was stabbed nine times and was hospitalized. Because of the stabbing at Millhaven, it was found that Mr. Brown required protective segregation but that no such segregation unit was currently available at C.B. Thus, even though Mr. Brown remained a C.B.'s inmate on paper, he was never actually re-transferred to that facility again.
[13] It also appears, from C.B.'s Deputy Warden Janet de Laat's affidavit dated December 5, 2001, and filed in the Ontario Court's proceedings, that C.B.'s management was aware of the need to avoid any issue of bias in the re-assessment of Mr. Brown's security level. She mentions that this exercise was being conducted by the Correctional Service Canada staff (Regional Headquarters) outside C.B. It appears that this exercise was felt to be necessary as a result of Mr. Brown's improper relationship with a former unit clerk of C.B., which allegedly continued after his transfer to Millhaven.[4]
[14] On December 18, 2001, Mr. Brown met with Mr. Granovic, a parole officer from the Frontenac Institution, which had been designated as a member of the multidisciplinary team tasked on the re-assessment of Mr. Brown's security classification and the potential need to transfer him to a maximum security facility. The only two other members of this team were Warden Stevenson and IPSO Frankovitch.
[15] The report of the multidisciplinary team was completed (form A4D-DEC) either on December 21, 2001, or before December 24, 2001.[5] It states that the multidisciplinary team unanimously recommends that inmate Brown's security classification be rated at maximum and that he be transferred to a maximum security facility. The report also says that the security classification scale was calculated on December 17, 2001,[6] by Mr. Granovic (28 points) who then interviewed Mr. Brown on December 18, 2001, reviewing in detail his version of the past several months including the issue of an improper relationship with the former unit clerk at C.B. It also states that Mr. Brown was made aware that, based on current file information reviewed by Mr. Granovic, "his security classification review came out as Maximum" (28 points).[7]
[16] In coming to its conclusion, the multidisciplinary team reviewed several documents and considered information originating from independent sources of information and documents, other than IPSO Frankovitch, including, but not limited to, Progress Summary 1995/07/11, Intake Assessment 1998/08/25, and various psychological and incident reports dating from before April 3 and after June 21, 2001. However, it is also clear that the team did consider the opinion of IPSO Frankovitch and information received from him on several issues.
[17] It appears that before the notice of involuntarily transfer was issued by Warden Stevenson, on December 24, 2001, to advise Mr. Brown that CB agreed with the multidisciplinary team's recommendation and to provide him with the A4D-DEC, the applicant had caused a statement of claim to be served on IPSO Frankovitch and Warden Stevenson claiming damages resulting from his stabbing at Millhaven and their role in his transfer to that institution.
[18] After receiving Mr. Brown's written submissions on the report, the decision to transfer him was finalized and made effective January 3, 2002. It was signed on behalf of Warden Stevenson by the Assistant Warden on January 4, 2001. In the section entitled "Rationale", it mentions Mr. Brown's allegation that the A4D-DEC's report cannot be considered independent because Mr. Granovic worked at a C.B. annex, but concludes that his allegation in that respect is wrong because, in fact, Mr. Granovic worked at the Frontenac Institution, which is a separate correctional facility. It also says:
"I find that your attacks on the credibility of staff members involved in your case and on the accuracy of the information used to support your classification as a maximum security offender are entirely unfounded. The facts of the case speak for themselves and I have no hesitation in proceeding with the transfer."
[19] In his second level grievance, Mr. Brown again contested the accuracy of the information on which the transfer was based, and the fact that Mr. Granovic's involvement in the multidisciplinary team was not sufficient to make the report independent because the Frontenac Institution was closely related to C.B. and that while Mr. Granovic was very familiar with IPSO Frankovitch and Warden Stevenson, he had little knowledge of Mr. Brown, having met him only once. He also raised the fact that two thirds of the multidisciplinary team, that is the Warden and the IPSO, were tainted and that the whole process was part of a vendetta against him instigated by IPSO Frankovitch.
[20] In his decision, the Regional Grievance Coordinator (level II grievance) notes that Mr. Brown filed a lawsuit against C.B.'s staff with regards to his invalid transfer in June 2001, before stating that all the information submitted by Mr. Brown had been reviewed and concluding that Mr. Brown had been provided with all the required information and that his case was handled according to policy and procedure with regard to his current involuntary transfer. It also states that the Regional Grievance Coordinator agrees with the Warden of C.B. that the increase in security level and subsequent transfer are justified and substantiated.
[21] In the third level grievance, Mr. Brown concluded his written submissions by saying that the C.B.'s staff had not been honest or fair when it came to his transfer, among other things, because of his petition against the IPSO Frankovitch and his lawsuit against IPSO and Warden Stevenson.
[22] In her decision, the Commissioner reviews various factual points raised by Mr. Brown, such as, the alleged lack of counselling with respect to his deteriorating behaviour prior to his transfer, the assessment of his potential for violence and particularly the report completed by Mr. Rowe, his questioning of proof of his ability to incite others based on information provided by the IPSO, the presence of his observation reports in his file, his claim that he was not provided with adequate documentation and other incidental issues.
[23] With respect to the security reclassification and his involuntary transfer to Kingston penitentiary the report states:
"Finally with regard to your security reclassification and involuntary transfer to Kingston Penitentiary, consultation with the Institutional Reintegration Operations Division at National Headquarters has taken place. It is their opinion that the assessment of your security requirement and subsequent transfer are appropriate in light of the behaviour you displayed at Collins Bay....Therefore, based on the above information, it has been determined that the increased security classification and involuntary transfer to Kingston Penitentiary are appropriate."
[24] There is no mention of the allegation of unfairness during the process based on the involvement of IPSO Frankovitch and Warden Stevenson. It is to be noted that Mr. Brown's affidavit in this matter is uncontradicted because the respondent has not put forth any affidavit evidence.
ANALYSIS
[25] In Ennis v. Canada (Attorney General), [2003] F.C.J. No. 633, this Court analysed the standard of review applicable to third level decisions on grievances, such as the one under review, using the pragmatic and functional approach mandated by the Supreme Court of Canada. I adopt the Court's comments and analysis with respect to the first three factors to be considered.
[26] As to the fourth factor which is the nature of the question, I agree with the parties that, in this case, the first question raised of whether or not the transfer was justified on the facts is a mixed question of fact and law, which is very much fact intensive. Thus, with respect to such issue, considering all four factors, I find that I should apply the standard of the patently unreasonable decision.
[27] However, the second issue that is, determining whether there was a breach of procedural fairness in the process which affected the validity of the decision under review by the Commissioner, is either a question of law or a mixed question of fact and law, which is more law intensive. On this, the standard of review would be either correctness or reasonableness simpliciter. But the Court need not decide which of those standards should apply because either the Commissioner did not address the issue at all and therefore her decision could not meet even the most deferential standard of patent unreasonableness or her decision was unreasonable for the reasons explained below.
[28] Dealing first with the question of whether or not the reassessment and the transfer were properly justified on the facts, and leaving aside for the moment the issue of possible bias, I find that after a careful review of all the material on the record, the conclusion that the reassessment and the transfer were properly justified and substantiated was open to the Commissioner. Under the applicable standard of review, the fact that one could have come to a different conclusion on the basis of that material is not relevant.
[29] With respect to the second issue, it is trite law that even purely administrative decisions such as the one under review are subject to a duty of procedural fairness. This has been recognized often by our Court and it is implicit in the decision making process imposed in the regulations, the Commissioner Directives and the Standard Operations Practices with respect to security reassessment and involuntary transfer.
[30] A subset of the duty of procedural fairness is that decisions be made by unbiased decision- makers. However, just as the content of the duty of fairness varies depending on the legal and factual context in which a decision is taken, so does the standard of impartiality required from an administrative agency or body.
[31] In this particular case, there is no dispute as to where the standard of impartiality required of the person making the decision to raise Mr. Brown's security level or to transfer him, is in the spectrum because both parties agree that the Court should apply the standard of the "reasonable apprehension of bias" as opposed to the standard of "actual bias".
[32] As mentioned in Ross v. Canada 2003 FCA 296, [2003] F.C.J. No. 1047 (F.C.A.) (QL), this test is well known and need not be repeated here (Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; R. v. R.D.S. [1997] 3 S.C.R. 484; Wewaykum Indian Band v. Canada [2003] 2 S.C.R. 259).
[33] As I said earlier, I do not believe that the Commissioner actually turned her mind to the argument of procedural unfairness or to use a more precise legal language to the alleged "partiality" or "bias" of at least two persons involved in the decision she was reviewing.
[34] Even if Mr. Brown did not use the words "bias" or "partiality", his submissions as a lay person were such that this issue should have been reviewed. It is clear that it was not properly dealt with in the decision at the second level. It could not simply be ignored by the Commissioner.
[35] In his written submissions, the respondent focusses on the role of Warden Stevenson and the fact that there was no choice but to involve him. It is submitted that a notice of involuntary transfer could only be signed by the warden of C.B. (Commissioner Directive No. 540). The warden was also the only person who could decide to reclassify Mr. Brown in accordance with the applicable Standard Operating Practices (700-14). This power could not be delegated to a deputy warden.
[36] It was also argued, wrongly in my view, that Warden Stevenson consulted with the Institutional Reintegration Operations Division at National Headquarters prior to the transfer of Mr. Brown. The Court is not satisfied that in her decision, the Commissioner was referring to a consultation by the Warden prior to the transfer. Rather, it appears that she refers to an exercise carried out as part of her third level review.
[37] Also, the applicable Commissioner's Directive 540 at Annex "A" does not mandate consultation with the Regional Headquarters as argued by the respondent. In respect of intra-regional involuntary transfers, it only refers to notification.
[38] The respondent also mentioned that because of the timing of the multidisciplinary team's report, neither Warden Stevenson nor IPSO Frankovitch could have been influenced by the service of the statement of claim.[8]
[39] At the hearing, when dealing with the allegation of partiality of IPSO Frankovitch, the respondent also said that an independent assessment had been made by the third member of the team, Mr. Granovic, on December 18 as well as on December 21, 2001. All this was to show that the recommendation and the decision of the Warden were justified and that a reasonable and properly informed person could not think it more likely than not that either the Warden or the multidisciplinary team, whether consciously or unconsciously, would not decide fairly.
[40] If, as argued, only the warden of C.B. could make those decisions, the role of the multidisciplinary team becomes of particular importance in cases where the warden's impartiality may be at issue.
[41] The statement of Janet de Laat (see para. 13 above) indicates that C.B.'s management was alerted to the fact that an issue of bias could be raised. It should have been relatively easy to ensure that the multidisciplinary team assigned to Mr. Brown's case would be composed of persons not personally involved in his first transfer.
[42] In that respect, the respondent could not point to any document or rule requiring the presence of IPSO Frankovitch or of Warden Stevenson on that team.
[43] As mentioned by the Supreme Court of Canada in the Wewaykum Indian Band, supra, to say that there is no evidence of actual bias or that the decision appears to be justified, is not an answer to the question of whether there is a reasonable apprehension of bias. The relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the decision-maker, but whether a reasonable person properly informed would apprehend that there was (para. 66 of Wewaykum Indian Band, supra; also R. v. R.D.S., supra, at para. 100).
[44] The standard of reasonable apprehension of bias is a manifestation of a broader preoccupation about the image of the administrative agency or body concerned.
[45] The facts raised by Mr. Brown were serious. So are the arguments raised by the respondent as to the social context and timing of the events. But it is not for this Court to determine whether or not, after reviewing all the evidence from all those involved (this certainly includes Mr. Granovic, IPSO Frankovitch and Warden Stevenson) and all the relevant facts, there was a reasonable apprehension of bias. This is exactly what the Commissioner had to do. Instead, she based her decision on the fact that the decision to transfer Mr. Brown was substantiated and appropriate. This reasoning alone cannot justify her decision. It thus constitutes an unreasonable conclusion.
[46] Finally, the Court could not conclude that this error is not material because the breach of fairness has been cured by the fact that an independent assessment has been carried out by the Institutional Reintegration Operations Division. Some further evidence of the nature and extent of this review would have been required. There is no indication that this opinion was based on a completely independent de novo assessment as opposed to a simple review of the previous assessments looking for a palpable error. (Kampman v. Canada (Treasury Board), (C.A.) 1996 2 F.C. 798 at para. 79).
[47] The decision of the Commissioner is thus set aside. However, the Court is not satisfied that in the circumstances, the record in respect of this transfer in Mr. Brown's Correctional Service file should be struck. Rather, the Court strongly recommends to the Commissioner to take the necessary steps to ensure that this information is not part of the file that will be sent to the Parole Board reviewing Mr. Brown's parole application, if any. If this is done, a redetermination of the third level grievance of Mr. Brown becomes moot.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is granted in part, with costs to the applicant.
2. The decision of the Commissioner is set aside. Unless it becomes moot by the issuance of appropriate directions ensuring that the information relating to Mr. Brown's transfer to Millhaven is not part of the file sent to the Parole Board, his grievance should be redetermined taking into consideration the above Reasons for order.
"Johanne Gauthier"
F.C.J.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1115-02
STYLE OF CAUSE: Kevin Mason Brown v. The Attorney General of Canada
et al
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: Monday, October 6, 2003
REASONS FOR ORDER AND ORDER OF
THE HONOURABLE JUSTICE JOHANNE GAUTHIER
APPEARANCES:
Mr. Brian A. Callender FOR APPLICANT
Mr. Alex Gay FOR RESPONDENTS
SOLICITORS OF RECORD:
Mr. Brian A. Callender FOR APPLICANT
Kingston, Ontario
Morris Rosenberg FOR RESPONDENTS
Deputy Attorney General of Canada
[1] It appears from Mr. Brown's Affidavit that he could have made such an application in December 2001.
[2] The argument based on the Canadian Charter of Rights and Freedoms, Schedule B, Part 1 to the Canada Act 1982 (U.K.) 1982, c. 11, s. 7, and the allegation that the Commissioner had failed to respect the requirements of procedural fairness were raised in the plaintiff's written submissions, but the Court was advised at the first hearing that they would not be pursued.
[3] The Security Reclassification Scale Mr. Brown had been rated at medium (20.5 points) by his parole officer on June 22, 2001, but with an override it was set at a maximum for the reasons expressed in the multidisciplinary team report dated June 25, 2001.
[4] It is not clear how this event impacts on the security level of Mr. Brown as opposed to the need to transfer him to another medium security facility.
[5] The only copy of the report in the applicant's record is dated December 21, 2001, but it is not signed. At the bottom, it bears a notation "Date and Time locked 2001/12/24 08:56."
[6] It appears from the uncontradicted allegation at paragraph 122 of the Brown affidavit that, at the time this calculation was done, Mr. Granovic had not seen the observation reports filed by Mr. Brown.
[7] This is contested at paragraph 122 of Mr. Brown's affidavit. However, Mr. Brown appears to base his denial on the fact that the security reclassification had not been completed rather than his recollection. Mr. Brown has no direct knowledge of the date on which the calculation was made and I give more weight to the statement contained in the A4DEC that this calculation was done on December 17, 2001.
[8] As mentioned, it is not clear on the record when exactly the report of that team was completed.