Federal Court Decisions

Date: 20050711

Docket: T-1328-04

Citation: 2005 FC 967

Ottawa, Ontario, Monday the 11^th day of July 2005

PRESENT:      THE HONOURABLE MADAM JUSTICE DAWSON

BETWEEN:

ROBERT LABBE

Applicant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

DAWSONJ.

[1]      Robert Labbe is an inmate of Kingston Penitentiary, who is confined in administrative segregation. In his words, he brings "this application for judicial review to expose [the] cruel and inhumane conditions to which inmates are exposed in the segregation cells". Specifically, he seeks two declarations:

            i)           First, a declaration that the Correctional Service of Canada is in breach of its legislated duties under sections 31, 36 and 37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("Act") in its treatment of offenders confined to the segregation cells at Kingston Penitentiary, by failing to treat inmates in the segregation cells as it would treat inmates in general population (save and except for security purposes specific to the segregation cells).

            ii)          Second, a declaration that the treatment of inmates in the segregation cells at Kingston Penitentiary is in violation of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("Charter") specifically sections 7 and 12.

[2]      Sections 31, 36 and 37 of the Act are set out in the Appendix to these reasons.

[3]      In support of his application, Mr. Labbe filed his own brief and non-specific affidavit. The Attorney General neither cross-examined Mr. Labbe upon his affidavit, nor adduced contrary evidence. The Attorney General thus leaves unanswered serious allegations, including that:

•                                              the warden of the institution does not make daily inspections of the segregation cells, as she is obliged to do by subsection 36(2) of the Act;

•                                              no daily visit by registered health care professional is provided to inmates in the segregation unit, as required by subsection 36(1) of the Act; and

•                                              unspecified guards have engaged in conduct amounting to harassment, and this misconduct is pervasive throughout the segregation unit.

[4]      Instead, the Attorney General argues that this application for judicial review should be dismissed on a series of technical grounds: there is no single decision to be judicially reviewed; the Correctional Service of Canada, when carrying out its daily duties, cannot be considered to be a federal board, commission or other tribunal; the declarations sought are declarations of fact, not law; there is an incomplete and inadequate factual record before the Court; and, Mr. Labbe has available to him adequate, internal recourse mechanisms.

[5]      Declaratory relief is discretionary, and, for the following reasons, I have concluded that this is not an appropriate case for the exercise of that discretion.

[6]      First, the evidentiary record is not sufficient to support the relief sought. For example, Mr. Labbe states that neither the warden, nor a registered health care professional, make daily inspections or visits. In order to conclude that any such failure rises to the level of a breach of statutory duty that would attract a remedy, or constitutes a breach of rights guaranteed by the Charter, more information is required. Are such visits missed only infrequently? Most of the incidents complained of lack specifics, such as the date, the name of the affected inmate, and the name of the relevant corrections officer. Because of the lack of particularity in the evidence, it is impossible to assess the evidence to see whether it establishes the cumulative effect Mr. Labbe asserts it does. Further, there is no evidence as to the treatment provided to inmates in general population. This evidence is required in order to allow the Court to determine whether inmates in the segregation cells are similarly treated, save and except for security purposes, as required by the Act. In sum, the evidence falls far short of that put before the Court in McCann et al. v. The Queen et al. (1975), 29 C.C.C. (2d) 337 (F.C.T.D.), a case relied upon by Mr. Labbe.

[7]      Further, to the extent that Mr. Labbe alleges that the treatment of inmates in segregation violates rights protected by sections 7 and 12 of the Charter, the Supreme Court of Canada has repeatedly warned that alleged Charter violations are not to be determined in the absence of a proper evidentiary record. See, for example, Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at paragraph 80, and MacKay v. Manitoba, [1989] 2 S.C.R. 357 at paragraph 8 and following.

[8]      I have considered Mr. Labbe's counsel's submissions that it asks too much of an inmate to report or to grieve conduct on the part of corrections officers that might be criminal, and that, because documents kept by an inmate are subject to seizure, Mr. Labbe was required to rely only on his memory when preparing his affidavit. However, those submissions are not supported by evidence to that effect from Mr. Labbe.

[9]      The second reason for declining to grant declaratory relief in this case is the existence of the internal grievance procedure. In principle, as a matter of law, an applicant must exhaust alternate, internal remedies before seeking declaratory relief. See, for example, Kourtessis v. Canada (Minister of National Revenue), [1993] 2 S.C.R. 53 and Canada(Auditor General) v. Canada(Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49. A reviewing Court must, however, determine the adequacy of the alternate remedy. In this regard, Mr. Labbe swore that, in the past, he used the institution's grievance procedure to grieve the lack of mirrors for shaving. His grievance was upheld and shaving mirrors were to have been installed by January 31, 2004. However, shaving mirrors were only installed around August of 2004. This experience does not persuade me that the grievance procedure is inadequate. The Commissioner's Directive concerning "Offender Complaints and Grievances" is premised on a number of specific principles, one of which is:

d.    Complaints and grievances which significantly impact upon offenders' rights and freedoms will be assigned priority for investigation, resolution and response;

[10]     This principle may provide an explanation as to why there was delay in the response to Mr. Labbe's grievance, and it supports the view that any grievance of the serious matters raised here would be afforded a higher priority.

[11]     Finally, notwithstanding what I understand to be the submission of the Attorney General on this point, I accept that the exercise of jurisdiction under section 18 of the Federal Courts Act, R.S.C. 1985, c. F-7 does not depend upon the existence of a specific decision or order. See, for example, Krause v. Canada, [1999] 2 F.C. 476 (C.A.) and Lac des Mille Lacs First Nation v. Hogan (2000), 198 F.T.R. 48 where judicial reviews of a course of conduct were permitted. However, Mr. Labbe's affidavit falls short of establishing a course of conduct encouraged or permitted by a federal board, commission or other tribunal in that no allegation is made that the conduct he complains of was knowingly permitted or condoned by any specific person or institution whose conduct is capable of judicial review.

[12]     It follows that the application for judicial review will be dismissed, but upon two conditions. The first is that the Court makes no finding upon the merits of Mr. Labbe's allegations so that the dismissal is without prejudice to his ability to bring a further application, upon proper evidence, should recourse to internal procedures prove to be inadequate, or should further evidence be available to establish the inadequacy of such recourse. The second condition is that counsel for the Attorney General is required, within seven days of receipt of these reasons, to provide a copy of these reasons to both the warden of Kingston Penitentiary and to the appropriate Regional Deputy Commissioner of Corrections, and to confirm to the Court their receipt of these reasons. This second condition is to insure that the Correctional Service of Canada understands the Court's concern that serious allegations were raised, but unanswered, in this application. Of particular concern are the unanswered allegations of failure to comply with subsection 36(1) and subsection 36(2) of the Act.

[13]     The Attorney General seeks the costs of this application. In view of the fact that the substance of Mr. Labbe's concerns was not addressed in this application, and that the Court did not accept a number of the procedural objections raised by the Attorney General, this is an appropriate case, in my view, where costs should not follow the event. Rather, each side should bear their own costs.

ORDER

[14]     THIS COURT ORDERS THAT:

1.          The application for judicial review is dismissed on the conditions set out above.

2.          No costs are awarded.

"Eleanor R. Dawson"

APPENDIX

Sections 31, 36 and 37 of the Corrections and Conditional Release Act:

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-1328-04

STYLE OF CAUSE:                           ROBERT LABBE V. THE ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       MAY 17, 2005

REASONS FOR ORDER AND        DAWSON J.

   ORDER

DATED:                                              JULY 11, 2005

APPEARANCES:

JOHN HILL                                                                              FOR THE APPLICANT

NATALIE HENEIN                                                                 FOR THE RESPONDENT

SOLICITORS OF RECORD:

JOHN HILL                                                                             FOR THE APPLICANT

BARRISTER AND SOLICITOR

JOHN H. SIMS, Q.C.

DEPUTY ATTORNEY GENERAL OF CANADA                  FOR THE RESPONDENT