Date: 20050228

Docket: A-137-04

Citation: 2005 FCA 77

CORAM:        RICHARD C.J.

LÉTOURNEAU J.A.

NADON J.A.

BETWEEN:

ATTORNEY GENERAL OF CANADA

Appellant

and

FRANÇOIS BOUCHER

Respondent

Hearing held at Ottawa, Ontario, February 8, 2005.

Judgment delivered at Ottawa, Ontario, February 28, 2005.

REASONS FOR JUDGEMENT:                                                                         LÉTOURNEAU J.A.

CONCURRED IN BY:                                                                                                RICHARD C.J.

                                                                                                                                      NADON J.A.

Date: 20050228

Docket: A-137-04

Citation: 2005 FCA 77

CORAM:        RICHARD C.J.

LÉTOURNEAU J.A.

NADON J.A.

BETWEEN:

ATTORNEY GENERAL OF CANADA

Appellant

and

FRANÇOIS BOUCHER

Respondent

REASONS FOR JUDGMENT

LÉTOURNEAU J.A.

[1]                On an application for judicial review, did the Federal Court Judge properly quash the decision of May 15, 2003, by the Commissioner of the Correctional Service of Canada (CSC)? In that decision, the Commissioner had raised the respondent's security classification and the respondent was transferred from the medium security La Macaza penitentiary to the maximum security Port Cartier penitentiary.

[2]                In addition, this appeal raises the mootness of the exercise, as the respondent's security classification has, since the decision under appeal, been revised downward. As a result, the respondent went back to a medium security penitentiary, Cowansville Institution. I will quickly dispose of this preliminary issue.

Has the appeal become moot or pointless?

[3]                Both parties agreed that the appeal was not made pointless by the respondent's suing CSC for damages on December 3, 2004, following his placement in administrative segregation, increased security classification and transfer to Port Cartier. The merits of that suit depend in part on the unlawfulness or arbitrariness of the CSC decision. And yet this is precisely the issue that the Federal Court Judge settled in the respondent's favour and that is now under appeal here.

[4]                At the hearing, the panel members indicated to the parties that under the circumstances, the appeal served a useful purpose both for the parties and for the administration of justice considering the damage suit. This leads me to consider the appeal on the merits, but not without first summarizing the relevant facts of the case.

Facts and proceedings

[5]                The respondent is serving a life sentence for second degree murder, with eligibility for parole after 18 years. He was also sentenced to 14 years' imprisonment for another homicide. The respondent began serving the second sentence in 1993. Both offences were committed in 1977.

[6]                The respondent has, so far, served over 27 years of his murder sentence. He has been eligible for parole for nine years. He is 49 years old. He was transferred to the medium security La Macaza Institution for the first time in 1995 and subsequently returned to maximum security at Port Cartier. From there, he was brought back to La Macaza on October 6, 2000. The following facts gave rise to his placement in administrative segregation on December 4, 2002, to his emergency transfer to the regional reception centre on December 10, 2002, to his increased security classification and notice of transfer to Port Cartier on December 12, 2002, to the notice of transfer to the regional reception centre on December 18, 2002, and finally to his transfer to Port Cartier on December 27.

[7]                CSC officials received information from Leclerc Institution, from a source of unknown reliability, that the respondent had allegedly conspired to kill an employee of La Macaza on his release, commit an armed robbery and flee to Africa. The information was considered sufficiently serious to involve the Sûreté du Québec.

[8]                Obviously, the information also triggered an investigation by preventive security staff at La Macaza penitentiary. The respondent's cell was searched and so was his computer. The respondent co-operated with investigators, giving them his computer password.

[9]                The search revealed letters to various people, some of whom were associated with crime. The correspondence was with people in the United States, Finland, Germany and Africa. Although the source of the information indicated that the respondent had fake identification and had taken steps to get a weapon, the search did not confirm these two allegations.

[10]            The respondent was confronted with this information by two police officers from the Sûreté du Québec on December 4, 2002. It is common ground that although there is no record of what transpired, the meeting lasted at least two hours. In the overall assessment of the situation, consideration was given to the evaluation of the respondent's progress in terms of his correctional plan progress report and steps to be taken, if any, and the expertise and experience of the inmate management staff, case management team, preventive security officers, psychologists and parole officer. The recommendation to raise the security classification and transfer to a maximum security institution was unanimous: see Appeal Book, pages 272 to 282, Assessment for Decision. This assessment report expressed a heightened apprehension of escape due to the nature of the information and the fact that it had been shared with the respondent.

[11]            The respondent grieved the decision to raise his security classification and transfer him involuntarily. The third and final level grievance review decision was made on May 15, 2003: the grievance was dismissed and the corrective action sought by the respondent was refused. That administrative decision was successfully challenged in Federal Court; it was quashed in a decision dated February 26, 2004. It is from that decision of the Federal Court that the Attorney General of Canada is appealing.

Grounds for appeal raised by the Attorney General of Canada

[12]            Basically, the appellant claims the Federal Court Judge made two errors. First, he did not identify the nature of the issues before him, so there is no way of knowing what standard of review he applied in examining and deciding those issues. Second, he erred in analyzing the appropriateness of the decision and substituting his own opinion for that of the corrections officials; his role on judicial review was restricted to determining the lawfulness of the administrative decision that was made.

Failure to identify the nature of the issues and the appropriate standard of review

[13]            At paragraph 17 of his decision, the Judge referred to the Commissioner's expertise in grievance adjudication and to the need for considerable deference to the Commissioner's decisions on matters of penitentiary management. He then endorsed the following findings made by his colleague, Lemieux J., in Tehrankari v. Canada (Correctional Service), [2000] F.C.J. No. 495, at paragraph 44, and Ennis v. Canada(Attorney General), [2003] F.C.J. No. 633, at paragraph 19:

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. The patently unreasonable standard applies to pure findings of fact.

[14]            This passage merely restates the three applicable standards. In the case at bar, in my view, the appellant's argument is valid; the Judge did fail to give a legal description (question of law, question of fact or question of mixed fact and law) of the two questions involved in the Commissioner's decision. That was an error of law because the failure produced, legally speaking, the same effect as an erroneous decision on those questions. I will come back later to the legal consequences.

[15]            The first issue before the Judge had to do with the increased security classification, which led to the involuntary transfer. Sections 17 and 18 of the Corrections and Conditional Release Regulations, SOR/92-620, October 29, 1992, set out the factors to be taken into consideration in determining a security classification and the progression in classification levels:

[16]            Paragraph 18(a) of the Regulations, dealing with maximum security, refers to a high probability of escape, risk to the safety of the public and need for a high degree of supervision and control with the penitentiary. These are essentially questions of fact to be determined by corrections officials. These determinations, as can be seen in this case, draw on the experience and expertise of security and behaviour assessment professionals. On judicial review, the appropriate standard of review of the determination of these questions of fact is patent unreasonableness, i.e., in the words of Iacobucci J. in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paragraph 52, the decision must be "clearly irrational or evidently not in accordance with reason", or a decision "so flawed that no amount of curial deference can justify letting it stand": ibid.

[17]            The second problem before the Judge had to do with the disclosure of information to the inmate subject to involuntary transfer. More often than not, the decision on information disclosure involves an analysis of the legislative provisions authorizing and requiring the disclosure of relevant information, and the application of those provisions to the facts of the case. This is a question of mixed fact and law. Accordingly, the parties agree and there is no dispute as to the appropriate standard of review: the decision need only be unreasonable.

[18]            In support of his arguments and to illustrate this standard, counsel for the appellant referred to the decision of the Federal Court in Ross v. Bowden Institution, [2003] F.C.J. No. 470, where the Court cites with approval, at paragraph 10, the following passage from Addy J. in Cline v. Reynett, T-894-81, March 18, 1981, F.C.T.D.:

There is no "right" for a prisoner to be in one prison rather than another and the decision to transfer from a medium to a maximum security prison or vice versa is basically and essentially an administrative decision which must not be interfered with by the courts failing clear and unequivocal evidence that the decision was taken arbitrarily and in bad faith or in a capricious manner and in addition that the decision is quite unfair and works a serious injustice on the prisoner.

                                                                                                                                 (emphasis added)

[19]            With respect, some distance should be taken from this passage, in my view. The decision dates back to 1981. The Canadian Charter of Rights and Freedoms has since guaranteed an inmate's right to greater procedural fairness when it comes to involuntary transfer. Inmates are entitled to enough information for them to be able to participate meaningfully in the transfer process and to oppose it.

[20]            In addition - and this, in my humble opinion, is a key consideration - the standard of review of administrative decisions has evolved and is based on a pragmatic and functional analysis. The quoted passage contains a confusing build-up of elements that the reasonableness simpliciter standard does not call for. So, for example, in order for a decision to be simply unreasonable, it does not have to have been taken arbitrarily or in bad faith. The standard does not require the decision to be quite unfair or to work a serious injustice. In short, it is better to stick to the now common and current standard, as I intend to do.

The appropriate standard on appeal from a judicial review decision

[21]            Davies v. Attorney General of Canada et al., 2005 FCA 41, delivered on January 28, 2005, by Richard C.J., of this Court, states that on appeal from a decision of a judge sitting in judicial review, the principles in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, apply: the standard of correctness serves as the yardstick for decisions involving questions of law, while decisions on questions of fact or of mixed fact and law should only be disturbed in the presence of palpable and overriding error. However, the standard of correctness applies where, on a question of mixed fact and law, it is possible to extricate the legal question from the factual, deal with it separately and determine that a legal error has been made: see Sherman v. Canada (Minister of National Revenue - M.N.R.), [2003] 4 FC 865 (F.C.A.); Baker Petrolite Corp. v. Canwell Enviro-Industries Ltd., [2003] 1 FC 49 (F.C.A.).

[22]            At paragraph 8 of that decision, the Chief Justice points out that choosing the proper standard of review is a question of law. Accordingly, this Court of Appeal must determine whether the Judge whose decision is under appeal chose and applied the proper standard. If not, the Court of Appeal must correct the error, substitute the appropriate standard for the erroneous one, and apply the new standard to the facts of the case.

[23]            In my view, the same legal consequence follows and the same approach applies where the judge in judicial review has neglected to identify the standard used in reviewing the administrative decision, unless, of course, the analysis of the decision fills in the author's silence and satisfies that the proper standard was applied. Unfortunately, that is not so in the case at bar. As a result, both issues that were before the Judge should be reviewed based on the appropriate standards of review.

Application of the chosen standard of review to the issues

a)         the respondent's increased security classification and involuntary transfer

[24]            The allegations against the respondent were serious, and were taken seriously by corrections officials. As previously mentioned, the whole apparatus swung into gear to find out whether there was any truth to the allegations and to assess the risk of escape and of the allegations materializing. The in-depth overall assessment report found in the Appeal Book, at pages 96 to 107, found that there were factors pointing to a high probability of escape and high risk to the safety of the public. At pages 104, 105 and 106, the authors of the report wrote:

[TRANSLATION]

The addition of the latest information supports the previous assessment of the risk to the safety of the public and is consistent with the offence cycle. The very nature of the subject's criminality compels us to view that risk as being higher than ever.

The inmate has a violent criminal record and has made no progress or insufficient progress toward eliminating the dynamic factors that contributed to his violent behaviour.

. . .

The new information points to an aggravation of the offender's situation. Boucher has long counted on his apparent compliance to gain ever greater freedom. He has, however, refused all introspection with the potential to affect his risk factors. Unable to offer anything other than what he considers sufficient, we now see him turning to criminal means to get what he wants. The new information regarding a conspiracy to murder a La Macaza employee and plans to be unlawfully at large cannot be taken lightly. The offender has for a number of years exhibited a deep-seated sense of injustice toward CSC and those managing his sentence. That feeling has only grown over the years. No amount of effort has given any insight into his criminal dynamics. And Boucher's writings seized in his cell unfortunately reveal a very strong attachment to criminal values, a deep desire to retain his personality and an obvious hatred toward those he sees as interfering with his freedom. His contacts with individuals associated with crime could provide him with the means to carry out plans such as those suspected. In light of all this, we can only find a high risk of reoffending and dangerousness at this time. And we include in that risk the potential to escape from a medium security institution.

[25]            As the report reveals at page 98, corrections officials expressed grave concern about the respondent's negative and violent reaction when confronted with the allegations potentially leading to his return to a maximum security penitentiary.

[26]            Last, here is a passage from the psychological assessment found at page 104 of the report:

[TRANSLATION]

Participation in programs:

The subject has participated in psychological treatment. However, the results are inconclusive; the subject's progress has been superficial, according to the psychologist. The new information appears to indicate that the subject is stuck in the same patterns because he is still using unlawful means to get what he wants. His current goal is freedom without fear of police reprisals.

Illness or mental disorder:

According to the latest psychological assessment, the subject has a mixed personality disorder, with antisocial and narcissistic traits. However, no illness or mental disorder has been diagnosed.

[27]            With respect, in light of this evidence, I cannot find that the CSC decision to raise the respondent's security classification was patently unreasonable.

b)         the disclosure of information to the respondent at the time of his involuntary transfer

[28]            The issue here is whether CSC disclosed enough information to the respondent for him to be able to participate meaningfully in the process of determining whether he should be transferred and to oppose it. In my view, it helps to remember the distinctions drawn by Marceau J.A. in Gallant v. Canada (Deputy Commissioner, Correctional Service Canada), [1989] 3 F.C. 329 (F.C.A.), recently taken up by our colleague, Pelletier J.A., in Blass v. Canada (Attorney General), 2002 FCA 220, [2002] F.C.J. No. 810.

[29]            In Gallant, Marceau J.A. wrote at pages 342 and 343:

It seems to me that, to appreciate the practical requirements of the audi alteram partem principle, it is wrong to put on the same level all administrative decisions involving inmates in penitentiaries, be they decisions of the National Parole Board respecting the revocation of parole, or decisions of disciplinary boards dealing with disciplinary offences for which various types of punishments, up to administrative segregation, can be imposed, or decisions, such as the one here involved, of prison authorities approving the transfer of inmates from one institution to another for administrative and good order reasons. Not only do these various decisions differ as to the individual's rights, privileges or interests they may affect, which may lead to different standards of procedural safeguards; they also differ, and even more significantly, as to their purposes and justifications, something which cannot but influence the content of the information that the individual needs to be provided with, in order to render his participation, in the making of the decision, wholly meaningful. In the case of a decision aimed at imposing a sanction or a punishment for the commission of an offence, fairness dictates that the person charged be given all available particulars of the offence. Not so in the case of a decision to transfer made for the sake of the orderly and proper administration of the institution and based on a belief that the inmate should, because of concerns raised as to his behaviour, not remain where he is. In such a case, there would be no basis for requiring that the inmate be given as many particulars of all the wrong doings of which he may be suspected. Indeed, in the former case, what has to be verified is the very commission of the offence and the person involved should be given the fullest opportunity to convince of his innocence; in the latter case, it is merely the reasonableness and the seriousness of the belief on which the decision would be based and the participation of the person involved has to be rendered meaningful for that but nothing more. In the situation we are dealing with here, guilt was not what had to be confirmed, it was whether the information received from six different sources was sufficient to raise a valid concern and warrant the transfer.

[30]            As can be seen from that decision, the issue is whether the respondent was provided with information that rendered his participation in the making of the transfer decision wholly meaningful. Section 27 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, creates a requirement to disclose information:

27.(1) Where an offender is entitled by this Part or the regulations to make representations in relation to a decision to be taken by the Service about the offender, the person or body that is to take the decision shall, subject to subsection (3), give the offender, a reasonable period before the decision is to be taken, all the information to be considered in the taking of the decision or a summary of that information.

(2) Where an offender is entitled by this Part or the regulations to be given reasons for a decision taken by the Service about the offender, the person or body that takes the decision shall, subject to subsection (3), give the offender, forthwith after the decision is taken, all the information that was considered in the taking of the decision or a summary of that information.

(3) Except in relation to decisions on disciplinary offences, where the Commissioner has reasonable grounds to believe that disclosure of information under subsection (1) or (2) would jeopardize

(a)      the safety of any person,

(b)      the security of a penitentiary, or

(c)       the conduct of any lawful investigation,

the Commissioner may authorize the withholding from the offender of as much information as is strictly necessary in order to protect the interest identified in paragraph (a), (b) or (c).

What actually happened, and what information was disclosed to the respondent?

[31]            Even though it is not known what exactly transpired during the two-hour discussion the police officers from the Sûreté du Québec had with the respondent, it is undisputed that he was informed of the allegations against him: the intent to murder an employee of La Macaza, the use of accomplices to carry out the act, the temporal circumstances in which the act would be committed, i.e., when conditions of confinement were eased, the intent to commit armed robbery and then to flee to Africa. He was also informed of the results of his cell search and the discovery of his address book. Similarly, the authorities told him that letters were found on his computer, addressed to known criminals and revealing, in their view, his attachment to criminal values.

[32]            In addition, the respondent received:

a)         the report of December 4, 2002, on his placement in administrative segregation, which refers to the allegations against the respondent and to the two-hour meeting with the Sûreté du Québec;

b)         the in-depth, detailed overall Assessment for Decision report dated December 12, 2002, referred to earlier in these reasons;

c)         the Notice of Involuntary Transfer Recommendation dated December 12, 2002, which repeats the same information;

d)         the Correctional Plan Progress Report for decision dated December 17, 2002, which deals, among other things, with the incident of December 4, the meeting with the Sûreté du Québec and the allegations against him;

e)          the Notice of Involuntary Transfer Decision of December 18, 2002, which again recounts the facts and meetings; and

f)           the Notice of Involuntary Transfer Recommendation dated December 18, 2002.

[33]            It is true that the security information reports of December 11 and 18, 2002, which were edited for security reasons, were not disclosed to the respondent until August 2003. But these reports essentially repeat the same information that had already been disclosed to the respondent. The issue is not whether the respondent should have been given all existing reports, but rather whether he was given all of the information relevant to the making of the administrative decision on a transfer to enable him to make representations. With respect, in my view this requirement was met qualitatively and quantitatively, factually and legally.

[34]            From a review of the Judge's decision, it appears he embarked on an analysis of the merits of the CSC decisions on information disclosure and raising the security classification, and then substituted his own for theirs. His role was to determine the lawfulness of those decisions, i.e., to determine whether they were consistent with the provisions of the Act, not to review the appropriateness of those decisions.

[35]            Last, in my view the Judge erred in finding that the raising of the security classification and involuntary transfer were the result of incidents that had occurred over 20 years earlier. At paragraphs 24 and 25 of his decision, he wrote:

There is not to be any derogation from the results obtained with the security rating reassessment scale unless the officer considers that a derogation would be in order. A detailed explanation must be included in the Assessment for Decision, in accordance with section 18 of the Regulations, ensuring that the analysis takes the following categories into account: adjustment to the institution, probability of escape and risk to the safety of the public.

In the case at bar, the prison authorities did not comply with this Standard Operating Practice. To raise the security rating, they referred to incidents of violence that took place in 1981, 1983 and 1984, which was over 20 years earlier. The applicant has never been charged with violent incidents or serious disciplinary offences since that time. Before the recent events in 2002, he had always earned a low or medium rating for adjustment to the institution, probability of escape and risk to the safety of the public. Moreover, the authorities had to derogate from the reassessment in order for the applicant to be classified as a high risk and transferred to a maximum security institution. It is unreasonable to take incidents that occurred over 20 years earlier to justify increasing a security rating, and moreover, derogating from the reassessment scale so the applicant will end up in a maximum security institution.

                                                                                                                                 (emphasis added)

[36]            With respect, the decision to review the security classification and revise it upward was dictated by the allegations in December 2002 of conspiracy to murder a staff member and escape or be unlawfully at large. Reclassification was not unreasonable under the circumstances.

[37]            For these reasons, I would allow the appeal and set aside the decision of the Federal Court Judge. To make the decision he should have made, I would dismiss the application for judicial review.

                                                                                                                  "Gilles Létourneau"               

                                                                                                                        Judge

"I concur.

J. Richard C.J."

"I concur.

M. Nadon J.A."

Certified true translation

Peter Douglas

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKET:                                          A-137-04

Appeal from a decision of Hon. Harrington J. dated February 26, 2004, in docket T-914-03.

STYLE OF CAUSE:                          ATTORNEY GENERAL OF CANADA

v.

FRANÇOIS BOUCHER

PLACE OF HEARING:                    Ottawa, Ontario

DATE OF HEARING:                      February 8, 2005

REASONS FOR JUDGMENT:      LÉTOURNEAU J.A.

CONCURRED IN BY:                     RICHARD C.J.

NADON J.A.

DATE OF REASONS:                      February 28, 2005

APPEARANCES:

Sébastien Gagné                                                                           FOR THE APPELLANT

Diane Magas                                                                                FOR THE RESPONDENT

SOLICITORS OF RECORD:

John Sims, Deputy Attorney General of Canada                            FOR THE APPELLANT

Ottawa, Ontario

Magas Law Office                                                                        FOR THE RESPONDENT

Ottawa, Ontario