OTTAWA, ONTARIO, October 11, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Donald Russell, (the “Applicant”) pleaded guilty to second degree murder of John Whittaker and forcible confinement of Janet Seccombe. The Applicant was also charged with sexual assault and sexual assault with a weapon of Ms. Seccombe, but those charges were withdrawn in a plea agreement. The Applicant was convicted on October 3, 2001 and is currently serving a life sentence without eligibility of parole for 11 years.
[2] The Agreed Statement of Fact established that on December 28, 1997 the Applicant was at the home of Janet Seccombe. The Applicant and Ms. Seccombe had been in a relationship since 1992, while he was still serving a jail term for a previous conviction. While she was in her bedroom, the Applicant, who had been drinking, bound her to the bed with extension cords and shoelaces. The victim, John Whittaker, engaged in a fight with the Applicant during which the victim was stabbed to death. When the police came, they found Ms. Seccombe still tied up in the bedroom. The Police Report contained the following statements (Peel Regional Police Report for occurrence # 97-196243, Affidavit of Carolyn Gilbert):
At approximately 5:00 p.m. the accused lured Seccombe up to her bedroom under the pretext of trying on a dress that he had bought her for Christmas. Once in the bedroom, the accused grabbed Seccombe by the throat and pulled a knife from a nylon bag that he was carrying. The accused threatened Seccombe with the knife and demanded sex.
The accused then tied the victim to the bed using assorted cords from the residence and had sexual intercourse with her. The accused left her in that position for two hours.
[3] During the trial, the court instructed the Crown to remove all references to the alleged sexual assault from the Victim Impact Statement and the Agreed Statement of Fact. However, references to the alleged sexual assault still appear on the Police Report.
[4] The following information is contained in his inmate files (as taken from the Police Report) (Executive Summary Offender Grievance Presentation – Third Level, Affidavit of Carolyn Gilbert):
Mr. Russell is a 50-year-old federal recidivist currently serving a Life sentence for 2nd degree murder. The victim was his girlfriend’s male friend, and the offence took place on 1997-12-28. He was arrested on the same day without incident. He was charged with 1st Degree Murder, Sexual Assault with a weapon, Sexual Assault and Unlawful Confinement (latter three against his then girlfriend.). He pled guilty to 2nd Degree Murder and Forcible Confinement and was subsequently sentenced by Justice Dumo on 2001-10-03 to Life with parole eligibility after 11 years.
[5] When a psychiatric assessment was done on the Applicant, the Sexual Offender Report completed on January 11, 2002 by Dr. Malcolm indicated that the Applicant’s offences did not have a clear sexual component and a full Specialized Assessment was not needed at that time. However, it was later recommended that he attend a moderate intensity sex offender program.
[6] The Applicant moved pursuant to s. 24 of the Corrections and Conditional Release Act, 1992, S.C. c. 20 (“CCRA”) to have all references to the alleged sexual assault removed from his inmate files. However, that request was denied by the Correctional Service of Canada (“CSC”). The Applicant grieved the matter to the third level without success.
[7] The Applicant is willing to seek sex offender counseling but fears he would be required to admit guilt to the alleged sexual assault of Ms. Seccombe. Without such admission he will be deemed to be in a state of denial and this will negatively impact his chances of being granted Private Family Visits (“PFV”) and/or a conditional release. He has participated twice in a Sex Offender Treatment Program in 1992 and 1995.
[8] The Applicant is now seeking judicial review of that third level decision.
DECISION
[9] The decision at the third level succinctly stated:
The fact that legislation and Correctional Service Canada policy makes it mandatory that Police Reports are acquired and the information contained therein used in the case management process, your grievance is denied.
ISSUE
[10] Is the CSC in violation of its section 24 obligation under the CCRA to ensure that information that it uses is accurate, complete and up-to-date? If so, what information contained in the Applicant’s inmate files should be expunged?
STANDARD OF REVIEW
[11] I have examined and adopt as my own the pragmatic and functional analysis of Justice Lemieux in Tehrankari v. Canada, [2000] F.C.J. No. 495 who stated at paragraph 44:
¶ 44 To conclude on this point, I would apply a correctness standard if the question involved is the proper interpretation of section 24 of the Act; however, I would apply the standard of reasonableness simpliciter if the question involved is either the application of proper legal principles to the facts or whether the refusal decision to correct information on the offender's file was proper.
STATUTORY FRAMEWORK
[12] Section 23 of the CCRA states that when an offender is admitted into federal custody, relevant information is obtained about the offence and the offender.
23. (1) When a person is sentenced, committed or transferred to penitentiary, the Service shall take all reasonable steps to obtain, as soon as is practicable,
(a) relevant information about the offence;
(b) relevant information about the person's personal history, including the person's social, economic, criminal and young-offender history;
(c) any reasons and recommendations relating to the sentencing or committal that are given or made by
(i) the court that convicts, sentences or commits the person, and
(ii) any court that hears an appeal from the conviction, sentence or committal;
(d) any reports relevant to the conviction, sentence or committal that are submitted to a court mentioned in subparagraph (c)(i) or (ii); and
(e) any other information relevant to administering the sentence or committal, including existing information from the victim, the victim impact statement and the transcript of any comments made by the sentencing judge regarding parole eligibility.
[13] Section 24 of the CCRA provides that:
24. (1) The Service shall take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible.
(2) Where an offender who has been given access to information by the Service pursuant to subsection 23(2) believes that there is an error or omission therein,
(a) the offender may request the Service to correct that information; and
(b) where the request is refused, the Service shall attach to the information a notation indicating that the offender has requested a correction and setting out the correction requested.
[14] Section 10 of the CSC’s Standard Operating Practice 700-02 Intake Information Collection contains a similar provision to s. 23(1)(a) of the CCRA. Although revoked on April 10, 2006, this Standard Operating practice was in force at the time the decision under review was made. It stated:
10 When a person is sentenced, committed or transferred to penitentiary, the Service shall take all reasonable steps to obtain, as soon as is practicable, and shall enter into the Offender Management System and, where applicable, record in the CDC:
a. relevant information about the offence, such as:
- Finger Print System (FPS) or SPIC;
- Police report providing critical details of the offence;
ANALYSIS
1. Is the CSC in violation of its section 24 obligation under the CCRA to ensure that information that it uses is accurate, complete and up-to-date? If so, what information contained in the Applicant’s inmate files should be expunged?
[15] The Applicant submits that the CSC has a duty to take reasonable steps to ensure that all information concerning an offender is accurate and up-to-date. The Applicant in a nutshell argues that since he was not convicted of sexual assault, and since the court deliberately removed all references in the Victim Impact Statement to the alleged sexual assault, any reference in his file to the alleged sexual assault on Ms. Seccombe should be removed or alternatively, the record should be clarified to state that present offenses for which he is incarcerated do not include a sexual component.
[16] Before considering these submissions it is important that the court take note of the context. As Lemieux J. noted in Tehrankari, supra (another case involving s. 24):
¶ 32 Any remedy flowing from this proceeding must take into account the prison context is a special one. For example, in Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, Le Dain J. pointed out the minimal or essential requirements of procedural fairness in the circumstances must be "fully compatible with the concern that the process of prison administration, because of its special nature and exigencies, should not be unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedural requirements ...”
[17] Clearly s. 24 contains two very distinct provisions. The first is to collect and maintain accurate information, and the second is to correct inaccurate information at the request of inmates. As Lemieux J. in Tehrankari, supra observed:
¶ 50 There are two separate components to section 24 of the Act. First, the legal obligation in subsection (1) concerning the accuracy, completeness and currency of any information about an offender the Service uses and the reasonableness of the steps taken to ensure this is so. Second, the provisions in subsection (2) where an offender believes certain information contains an error or omission and requests a correction which is refused.
¶ 51 The purpose of subsection 24(1) seems clear. Parliament has said in plain words that reliance on erroneous and faulty information is contrary to proper prison administration, incarceration and rehabilitation. Counsel for the respondent focussed on the limitation in the subsection -- the information must be used by the Service. If the information is simply on file and not used it has no consequence, he argues …
¶ 52 … The structure of section 23 and 24 of the Act signal the type of information contemplated for correction. It is profile information from which the Service can use to predict an offender's likely behaviour. The Commissioner acknowledged this DNA type information as at the root of the Service exercising "the option of increasing your security level based on a number of your history of violent offences, your record of escape and an evaluation of information identifying you as an escape risk".
[18] Here we are clearly dealing with both obligations. First, I can see no argument as to why a police record should not be kept under s. 23(10 (a) of the CCRA. Indeed, Section 10 of the CSC’s Standard Operating Practice 700-02 mandates the keeping of such information. The information involved in this case is DNA type information, as that term is used by Lemieux J., i.e. information that CSC can use to predict an offender’s likely behaviour.
[19] The mere fact that information kept within CSC files contains information obtained from a police report (which describes charges that were not prosecuted) by itself does not make the information incorrect as long as there is a clear distinction between allegations and facts. As Mactavish J. pointed out in Brown v. Canada (A.G.), [2006] FC 463, a case where allegations and charges of assault (never prosecuted) were contained in the inmate’s record:
¶ 25 A distinction has to be drawn between an allegation that a particular event has taken place and an assertion that the event has, in fact, taken place.
…
¶ 31 I do not accept Mr. Brown's contention that this type of information should not be placed on his institutional files. Not only did he not offer any support for his contention, but it seems to me that having this sort of information readily available is especially important where, as in this case, Mr. Brown is serving a lengthy sentence, and may be required to deal with a variety of Correctional Service personnel over the life of his sentence in a number of different institutions.
[20] However the existence of such information can and sometimes does lead to erroneous conclusions or statements. In the case at bar, the executive summary regarding the Applicant’s grievance, which denied him PFV stated quite correctly:
Mr. Russell is a 50-year-old federal recidivist currently serving a Life sentence for 2nd degree murder. The victim was his girlfriend’s male friend, and the offence took place on 1997-12-28. He was arrested on the same day without incident. He was charged with 1st Degree Murder, Sexual Assault with a weapon, Sexual Assault and Unlawful Confinement (latter three against his then girlfriend.). He pled guilty to 2nd Degree Murder and Forcible Confinement and was subsequently sentenced by Justice Dumo on 2001-10-03 to Life with parole eligibility after 11 years …
According to the brief police report, Mr. Russell got into an argument with the victim in the basement of his girlfriend’s apartment. Mr. Russell stabbed and killed the victim. Neighbors contacted the police as they overheard the confrontation. When the police arrived, Mr. Russell was covered in blood and admitted to stabbing the victim.
This report also indicates that at this residence just prior to the murder, Mr. Russell lured his girlfriend up to her bedroom under the pretext of trying on a dress he bought her for Christmas. Once there, Mr. Russell allegedly grabbed the victim by the throat, pulled a knife and threatened the victim while he demanded sex. He tied the victim to the bed and had forced vaginal intercourse with her. He left her in this position for approximately two hours, during which time the altercation and eventual murder took place.
(Underlining added)
Respondent’s Record page 107
[21] Similarly, the psychological assessment dated January 11, 2002 stated:
“B. Malcolm and K. Thibault briefly interviewed Mr. Russell on January 9, 2002 and briefly discussed his current offences, as well as, his prior sexual offences and treatment. In light of Mr. Russell’s current offences not having a clear sexual component, and because he successfully completed the Sex Offender Treatment Program at Warkworth Institution in 1992 and 1995 a full Specialized Assessment was not deemed necessary at this time.
(Underlining added)
Respondent’s Record page 95
[22] However psychological assessment dated January 28, 2003 mixed up allegations and facts and flatly observed:
That afternoon Mr. Russell attended the victim’s home, when they consumed some alcohol and exchanged gifts. Following this Mr. Russell lured the victim to her bedroom on the pretext of having her try on a dress he given her as a gift. Once in the bedroom, Mr. Russell produced a knife from a bag he was carrying and grabbed the victim by the throat and demanded sex. Mr. Russell then proceeded to tie the victim to the bed using cords from around the house. Mr. Russell forced sexual intercourse with the victim and afterwards left the victim tied to the bed for approximately two hours.
(Underlining added)
Respondent’s Record page 97
[23] Thus, while the decision of the third level grievance was reasonable as far as it went, it failed to take into account the fact that police reports can lead to false conclusions and in the case of the psychological assessment dated January 28, 2003, it actually did. Thus, this application will succeed in part.
[24] Under these circumstances and taking into account the prison context, what proper remedy will ensure that the record does not lead to inaccurate conclusions, yet also guard against tying up the CSC in unnecessary red tape?
[25] In my view the easiest way to achieve such a balanced result would be to order that the Respondent:
a) amend its Offender Management System (“OMS”) to note that no conviction ever resulted from any charges of sexual assault and sexual assault with a weapon (involving Ms. Seccombe) laid against the Applicant on December 28, 1997; and
b) amend the psychological assessment report dated January 28, 2003 (found at p. 97 of the Respondents Record) in order that the third sentence on page 2 starts with the words According to the police report” so that the complete sentence will read “According to police report, Mr. Russell forced sexual intercourse with the victim and afterwards left the victim tied to the bed for approximately two hours.”
ORDER
THIS COURT ORDERS that:
- This application for judicial review is allowed in part;
- The respondent is ordered to:
- amend its OMS to note that no conviction ever resulted from any charges of sexual assault and sexual assault with a weapon (involving Ms. Seccombe) laid against the Applicant on December 28, 1997.
- amend the psychological assessment report dated January 28, 2003 (found at p. 107 of the Respondents Record) in order that the third sentence on page 2 starts with the “According to the police report” so that the complete sentence will read “According to police report, Mr. Russell forced sexual intercourse with the victim and afterwards left the victim tied to the bed for approximately two hours.”
- Given the split result there will be no order as to costs.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-455-06
STYLE OF CAUSE: Donald Russell
v. The Attorney General of Canada
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 10, 2006
REASONS FOR
ORDER AND ORDER: von FINCKENSTEIN J.
DATED: October 11, 2006
APPEARANCES:
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Mr. John L. Hill |
FOR THE APPLICANT |
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|
|
|
Mr. Derek Edwards |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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John L. Hill Toronto, Ontario |
FOR THE APPLICANT |
|
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John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |