Date: 20010820
Docket: T-1662-98
Neutral citation: 2001 FTC 918
BETWEEN:
ALLEN TEHRANKARI
Applicant
-and-
CORRECTIONAL SERVICES OF CANADA
Respondent
REASONS FOR ORDER
LEMIEUX J.
INTRODUCTION
[1] This is an application by Allen Tehrankari (hereinafter the "applicant"), for an order pursuant to Rules 369, 466(b) and 467 of the Federal Court Rules, 1998, (hereinafter the "Rules") to compel Correctional Service of Canada or CSC (hereinafter the "respondent") to answer to allegations of contempt for failing to comply with an Order of the Court dated April 13th, 2000 directing CSC to correct the applicant's case file.
BACKGROUND
[2] The applicant commenced an application for judicial review pursuant to s. 18.1 of the Federal Court Act, seeking to set aside the decision of Karen Wiseman, a delegate of the Commissioner of Corrections denying the Applicant's Third Level Grievance on July 23, 1998.
[3] The applicant, who was incarcerated at Kingston Penitentiary, sought to challenge the respondent's refusal to alter certain information in the applicant's file as he felt it contained inaccurate or incomplete information.
[4] I issued an Order and Reasons allowing the judicial review on April 13, 2000. The relevant passages of that decision are the following:
(2) Was the information accurate, complete and up-to-date?
(a) The March 12, 1996 incident
[ 55] The OSLRDS report said the applicant assaulted another inmate. He denies it. The applicant was charged and found not guilty. It matters little the prison guard witnesses did not show up. In the circumstances, it is not accurate to assert, as a fact, he assaulted the other inmate particularly when regard is had to the reports of the prison guards who witnessed the incident. At best, as the matter stands today, he was suspected of assaulting another inmate. The Citizens' Advisory Committee recommended that this assault information be removed from his file.
(b) Escapes and recent or attempted escapes
[56] The OSLRDS of May 1997 noted his escape risk as high: a past prison escape from Iran and alleged attempted prison escapes while in Ontario penitentiaries.
[57] I agree with the applicant, the reference to escape from Iran is without more misleading because it is not complete. The record shows he escaped from prison in Iran because he was tortured for not wanting to fight in the Iran/Iraq war.
[58] To assert as a fact as some file reports do, the applicant attempted to escape from OCRDC in 1992, was caught with hacksaw blades and was accused of trying to escape by cutting through the window bars is, on the evidence in the record, also not accurate; he was never charged with such an attempt. At best, the authorities may have suspected the applicant would attempt an escape.
[ 59] His CMO said there is reliable preventive information in 1995 implicating him in an attempt to escape from Warkworth Institution. Yet, the security analyst's summary given to him in 1998 at the recommendation of the Citizens' Advisory Committee said that in his preventive security file "[T]here is no information contained in this particular report to indicate that he was planning to or attempted to escape". How, in those circumstances, can the preventive security information on file be valid when there is this internal contraction.
[60] I find the applicant has made out his case on the balance of probabilities; the information he complained of in his files did not meet the standards required by section 24.
(3) On what basis can the refusal to correct be reviewed?
[61] Paragraph 24(2)(b) provides "where the request is refused, the Service shall attach to the information a notation...". Do these words preclude this Court reviewing the CSC's decision not to correct because the only remedy provided by the Act in such a case is a notation to be attached to the offender's file?
[62] Properly construed, these words enable the CSC to correct or refuse to correct the information -- because there is this choice, the CSC exercises a discretion when making the decision to correct or not. (See Baker v. Canada, (M.C.I.), supra, at paragraph 52.) If so, such a discretion is reviewable on proper principles governing the review of discretionary decisions such as bad faith, improper purpose, irrelevant consideration and error of law. (See Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2 at pp. 7-8.)
...
F. CONCLUSION
[63] Under section 24 of the Act, the CSC must take reasonable steps to ensure that any information in an offender's files is as accurate, up-to-date and complete. For reasons given, I have found the specific information in the applicant's files which the applicant complained of do not comply with the standards of the section. The applicant requested correction but the CSC refused the request.
[64] I find the Commissioner, in exercising his discretion to refuse to correct the information requested, committed a number of reviewable errors.
[65] First, he did not properly interpret the scope of the CSC's obligations in terms of the accuracy, completeness and up-to-date nature of the information. This misinterpretation led him to conclude some of the information on file was valid or justified. Second, he failed to appreciate the nature and limits of the discretion inherent in a decision to refuse to correct information. Parliament simply did not intend inaccurate information remain on file counterbalanced only by an offender's correction request noted on file. The CSC, in the circumstances, was obligated to consider why a correction was not appropriate. Third, whatever appreciation the Commissioner had on the scope of the discretion to refuse a correction, such refusal had to be based on proper considerations which were lacking in this case. To refuse to correct misinformation on the grounds the Service exercised its option to increase the applicant's security level or to justify inaction to correct on the basis the information was still relevant for administrative purposes amount to, in my view, improper considerations.
[66] I conclude the applicant succeeds in this judicial review application. The question remains as to the appropriate remedy.
[67] I am sensitive to the fact the information the applicant sought to have corrected in his files is dated in 1997 and that the CSC has a continuous process of reevaluating offenders. Indeed, a file correction relating to one item the applicant complained of here was made in the applicant's OSLRD file (see page 85 of the applicant's record) but this information does not seem to have been reflected in other files (see applicant's record, page 86).
[68] I am also sensitive to what was said by Le Dain J. in Cardinal, supra, regarding imposing burdens on the CSC. As I see it, the case management officer is the point person with the offender. The application record reveals the CMO interfaces on a daily basis with an offender.
[69] In the circumstances, the CMO is required to review the offender's current files and determine whether they should be corrected in accordance with these reasons. What should be reviewed is limited to those matters in the applicant's original complaint. The applicant is to be advised of the results of the CMO's review and proposed action.
G. DISPOSITION
[70] For all these reasons, this judicial review is allowed, the decision of the Commissioner is set aside, and the matter remitted for reconsideration on the basis of these reasons.
[5] The applicant alleges that the respondent has not complied with this Order and should be cited for contempt.
ISSUE
[6] Has the applicant demonstrated that there is a prima facie case of contempt?
LEGISLATIVE PROVISIONS
[7] The Rules provide as follows:
Contempt
466. Subject to rule 467, a person is guilty of contempt of Court who
(a) at a hearing fails to maintain a respectful attitude, remain silent or refrain from showing approval or disapproval of the proceeding;
(b)disobeys a process or order of the Court;
(c)acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the Court;
(d)is an officer of the Court and fails to perform his or her duty; or
(e) is a sheriff or bailiff and does not execute a writ forthwith or does not make a return thereof or, in executing it, infringes a rule the contravention of which renders the sheriff or bailiff liable to a penalty.
Right to a hearing
467. (1) Subject to rule 468, before a person may be found in contempt of Court, the person alleged to be in contempt shall be served with an order, made on the motion of a person who has an interest in the proceeding or at the Court's own initiative, requiring the person alleged to be in contempt
(a) to appear before a judge at a time and place stipulated in the order;
(b) to be prepared to hear proof of the act with which the person is charged, which shall be described in the order with sufficient particularity to enable the person to know the nature of the case against the person; and
(c) to be prepared to present any defence that the person may have.
Ex parte motion
(2) A motion for an order under subsection (1) may be made ex parte.
Burden of proof
(3) An order may be made under subsection (1) if the Court is satisfied that there is a prima facie case that contempt has been committed.
Service of contempt order
(4) An order under subsection (1) shall be personally served, together with any supporting documents, unless otherwise ordered by the Court.
ARGUMENTS
[8] The applicant submits the respondent has failed to comply with the Order in that it has not properly corrected the applicant's file. The applicant alleges that the respondent's only endeavour to rectify the errors, was to acknowledge the errors. The applicant further submits that a substantial amount of information has been omitted or misconstrued by the respondent.
[9] The respondent submits the Order was complied with and the spirit and import of the reasons were applied to a review and correction of the applicant's entire file. The respondent submits that a draft of the corrective document, a "Baseline Correctional Plan Progress Report" (hereinafter the "Baseline report") was shared with the applicant to which he provided extensive commentary and challenge. In light of the these comments, further corrections were made where information could be verified. The applicant was provided with an explanation where corrections were not made. In addition, a copy of the applicant's comments was placed on his file to be read in conjunction with the Baseline report.
[10] The respondent alleges that all of the concerns arising out of the decision of the Court have been addressed. Furthermore, the Baseline report goes beyond the four issues reviewed by the Court.
DISCUSSION
[11] The rules provide a two stage process with respect to contempt of Court: 1) a motion for an order under Rule 467 requiring the alleged contemnor to appear before the Court to answer to the allegations, and 2) the contempt hearing. However, before requiring a party to appear before the Court, I must be satisfied that a prima facie case of contempt has been made out.
[12] A review of the applicant's file reveals that it was corrected in accordance with the Order rendered and its reasons. I am satisfied that all of the information that was inaccurate, incomplete or out of date has been corrected. Specifically, with respect to the information regarding the " March 12, 1996 incident", I am satisfied on reviewing the corrections made by CSC that they strike the appropriate balance relating to the incident and, in particular, the circumstances which led to it.
[13] It should not be forgotten that the threshold for citing a person for contempt is high. In Profekta International Inc. v. Pearl Video Limited et al. [1987] F.C.J. No. 606 (T.D.) (QL), Teitelbaum J. held:
The disobedience by the persons charged with contempt must be deliberate or willful.It must be done knowingly, that is, with full knowledge of the existence and terms of the injunction (Brown v. Britnell & Co. (1924) 27 O.W.N. 232). [my emphasis]
[14] In Nguyen v. Canada (Minister of Citizenship and Immigration) [1996] F.C.J. No. 1478 (T.D.) (QL), the applicant alleged that the respondent acted so as to impair the authority or dignity of the Court by giving false information to the Court and by not observing directives in an order of Mr. Justice Gibson to assess the applicant's application for landing "by reference to the particular merits of his case and not the general situation of others in the camps (the floodgates argument)". Madam Justice Reed concluded that the respondent appeared to have erred in its assessment of the file. However, she held:
[26] I cannot conclude that the evidence establishes a prima facie case of contempt, which is the test required to be met for the issuance of a show cause order. I consider that test to require that the evidence brought forward by an applicant must be sufficient, with nothing more, to establish a finding of contempt. The burden of proof in a contempt proceeding is "beyond a reasonable doubt". The applicants' evidence in this application, standing on its own, does not in my mind establish a prima facie case of contempt. Accordingly, the motion for a show cause order will be dismissed. [my emphasis]
[15] The applicant has not met his evidentiary burden with respect to the allegation of contempt and has failed to satisfy me that there is a prima facie case of contempt. Accordingly, this motion is dismissed.
COSTS
[16] The respondent submits there is no merit to the applicant's claim, that he makes several unfounded and prejudicial statements illustrating that there is a vexatious element to the applicant's challenge which should result in an award of costs to the respondent on a solicitor and client basis.
[17] With respect to the issue of costs on a solicitor and client basis, Madam justice L'Heureux-Dubé held in Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 what follows:
The appellant requested that solicitor-client costs be awarded to her if she were successful in her appeal. The majority of this Court held as follows in Young v. Young, [1993] 4 S.C.R. 3, at p. 134:
Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties.
[18] I am not satisfied that the applicant's conduct was such as to warrant costs on a solicitor and client basis. This is not the kind of case for an award of any costs against the applicant.
DISPOSITION
[19] The motion for a show cause order pursuant to Rule 467 is dismissed with no award with respect to costs.
J. François Lemieux
__________________
JUDGE
OTTAWA ONTARIO
August 20, 2001