2011 QCCA 140, 2011 QCCA 140

Lena c. Donnacona Prison 2011 QCCA 140 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No: 200-10-002553-100 (200-36-001654-102) DATE: 28 janvier 2011 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. BENOÎT MORIN, J.A. JEAN BOUCHARD, J.A. MICHAEL ANGELO LENA APPELLANT - Plaintiff v.

DONNACONA PRISON RESPONDENT – Defendant and SYLVIE PATENAUDE RICHARD PAQUET MAURICE LABRESQUE CAROLINE TREMBLAY CAROLINE BÉDARD PIERRE PAQUET ATTORNEY GENERAL OF CANADA CANADIAN CORRECTIONAL OFFICERS UNION FOR QUEBEC ATTORNEY GENERAL OF QUEBEC RESPONDENTS JUDGMENT [ 1 ] Michael Angelo Lena is appealing from a judgment of the Superior Court, District of Quebec (the honourable Justice Richard Grenier), rendered on August 2, 2010, that dismissed his motion for habeas corpus . [ 2 ] This judgment reads as follows : So, this Court has to decide on habeas corpus .

What this Court has to decide on habeas corpus is whether your deprivation of liberty is unlawful by reason of absence, excess or usurpation of jurisdiction. The Supreme Court of Canada set out the caveat in a case called May versus Ferndale that Provincial Superior Courts should decline habeas corpus jurisdiction only when the legislator has put in place complete, comprehensive and expert procedure for review of an administrative detention.

Such procedure has been put in place by… and this procedure is governed by the National Parole Board and its appeal is also existing against the National Parole Board decision. Six months prior to the expiration of your… of the two-thirds of your sentence, the National Parole Board concluded that the commission of your offenses comport reasonable grounds to believe that you would likely commit an offense causing death or serious harm to another person before the expiration of your sentence. And this is, in Canada or the United States.

The law doesn't say that you… there are reasonable grounds to believe that you would commit crimes in Canada. So, they decided twice to detain you. And I have no jurisdiction over the National Parole Board Appeal Board. So, for these reasons, your habeas corpus , your petition is dismissed. And I have also no jurisdiction concerning the conditions of your detention.

[3] On October 27, 2010, our colleague Justice Julie Dutil renders a judgment on Motions for

summary judgment and directionsregarding case management. [4] The last two paragraphs of that judgment are the following : [16] GIVES ACT of the Appellant's stated wish to remain in segregation at the Donnacona Penitentiary until the hearing before the Courtof Appeal at the end of January 2011. [17] ORDERS the Donnacona authorities not to transfer the Appellant to the Atlantic Penitentiary until completion of the hearing at theend of January 2011. [5] The Appellant submits one ground of appeal : the trial judge had jurisdiction to hear his motion for habeas corpus and hewas wrong in declining such jurisdiction. [6] Before the Superior Court, the Appellant based his motion for habeas corpus on the two following grounds : 10 he has been illegally detained past his statutory release date, at which time he should have been released to the American authority; 20 he was illegally placed in segregation following a fight with another inmate that was allegedly set-up by prison guards and he shouldbe transferred to a medium security institution. [7] The appeal relating to the first of those two grounds must fail, because the trial judge was right in deciding that he could notoverrule a decision made by the National Parole Board Appeal Division acting within the limits of its power. [8] That part of the judgment rendered by Justice Grenier was in compliance with paragraph 44 of the judgment of the SupremeCourt of Canada, May v.

Ferndale Institution, 2005 SCC 82 , [2005] 3 S.C.R. 809 : To sum up therefore, the jurisprudence of this Court establishes that prisoners may choose to challenge the legality of a decisionaffecting their residual liberty either in a provincial superior court by way of habeas corpus or in the Federal Court by way of judicialreview. As a matter of principle, a provincial superior court should exercise its jurisdiction when it is requested to do so. Habeas corpusjurisdiction should not be declined merely because another alternative remedy exists and would appear as or more convenient in the eyesof the court.

The option belongs to the applicant. Only in limited circumstances will it be appropriate for a provincial superior court todecline to exercise its habeas corpus jurisdiction. For instance, in criminal law, where a statute confers jurisdiction on a court of appeal tocorrect the errors of a lower court and release the applicant if need be, habeas corpus will not be available (i.e. Gamble). Jurisdictionshould also be declined where there is in place a complete, comprehensive and expert procedure for review of an administrative decision(i.e.

Pringle and Peiroo). [9] According to the jurisprudence[1], the statutory appeal process to the National Parole Board Appeal Division is a complete,comprehensive and expert procedure and consequently provincial superior courts should decline to exercise their habeas corpusjurisdiction in this regard as Justice Grenier did. [10] However, the same cannot be said concerning the second ground on which the Appellant was relying in his motion for habeascorpus. [11] In May v.

Ferndale Institution, the Supreme Court of Canada declares[2]-[3] : The respondents argue that the same reasoning that applies to immigration cases should apply to prison law.

In their view, Parliament hascreated a comprehensive statutory scheme, in the Corrections and Conditional Release Act, S.C. 1992, c. 20 ("CCRA"), and itsregulations, for the resolution of inmate grievances, including those relating to decisions to transfer, segregate or otherwise restrictliberty. […] In contrast, the internal grievance process set out in the CCRA prescribes the review of decisions made by prison authorities by otherprison authorities.

Thus, in a case where the legality of a Commissioner's policy is contested, it cannot be reasonably expected that thedecision-maker, who is subordinate to the Commissioner, could fairly and impartially decide the issue. It is also noteworthy that thereare no remedies set out in the CCRA and its regulations and no articulated grounds upon which grievances may be reviewed. Lastly, thedecisions with respect to grievances are not legally enforceable.

In Peiroo, the Ontario Court of Appeal emphasized that Parliament hadput in place a complete, comprehensive and expert statutory scheme that provided for a review at least as broad as habeas corpus and noless advantageous. That is clearly not the case in this appeal. [12] Consequently, the Superior Court should not have declined jurisdiction concerning the second ground on which the motion forhabeas corpus was based. [13] Normally, the Court should send the file back to the Superior Court for a new hearing.

However, since the sentence of theAppellant will expire on May 20 of this year and since all relevant material is before the Court[4], as admitted by the Appellant, it ismore appropriate for the Court to examine the merits of the case. [14] Counsel for the Respondents in the preliminary remarks of her written representations declares : In the style of cause of his proceedings, the Appellant named several respondents. Some have no interest in this matter, such as the Unionof Canadian Correctional Officers of Quebec and the Attorney General of Quebec.

Some exercise no authority to detain the Appellant,such as Richard Paquet, Maurice Labrecque, Caroline Tremblay, Caroline Bédard and Pierre Paquet who are employed by theCorrectional Service of Canada (the Service). In fact, only Warden Sylvie Patenaude and the Attorney General of Canada should remain.

[ 15 ] The Court agrees with that statement, since a motion for habeas corpus seeks relief from detention and, according to Law, only the warden of Donnacona Institution and the Attorney General of Canada exercise authority in that regard. [ 16 ] Moreover, in paragraphs 41 and 42 of the written representations of the Respondents we read : 41.

Since he was placed in segregation, the Service has, pursuant to the CCRA and its regulations, periodically reviewed his status and recommended his transfer to another maximum security penitentiary in another region in order to return him to the general population in accordance with subsection 31(2) of the CCRA . However, since the Appellant's request not to be transferred to another penitentiary was granted by this Court, the process to transfer him to another penitentiary was stopped. 42.

Finally, it should be noted that the remedy sought by the Appellant cannot be granted by this Court since he has a maximum security classification and therefore cannot be transferred to a medium security penitentiary. [ 17 ] Subsections 31(2) and 31(3) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 , read as follows : 31.

(2) Where an inmate is in administrative segregation in a penitentiary, the Service shall endeavour to return the inmate to the general inmate population, either of that penitentiary or of another penitentiary, at the earliest appropriate time. 31(3) The institutional head may order that an inmate be confined in administrative segregation if the institutional head believes on reasonable grounds (

a) that (

i) the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person, and (ii) the continued presence of the inmate in the general inmate population would jeopardize the security or the penitentiary or the safety of any person, (

b) that the continued presence of the inmate in the general inmate population would interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of a serious disciplinary offence, or,

c) that the continued presence of the inmate in the general inmate population would jeopardize the inmate's own safety , and the institutional head is satisfied that there is no reasonable alternative to administrative segregation. (emphasis added) [ 18 ] We must also take into account

section 30 of the same Act : 30.

(1) The Service shall assign a security classification of maximum, medium or minimum to each inmate in accordance with the regulations made under paragraph 96 (z.6).

(2) The Service shall give each inmate reasons, in writing, for assigning a particular security classification or for changing that classification. [ 19 ] Sections 17 and 18 of the Corrections and Conditional Release Regulations, SOR/92-620 , are also of interest : 17. The Service shall take the following factors into consideration in determining the security classification to be assigned to an inmate pursuant to

section 30 of the Act : (

a) the seriousness of the offence committed by the inmate; (

b) any outstanding charges against the inmate; (

c) the inmate's performance and behaviour while under sentence; (

d) the inmate' social, criminal and, if available, young-offender history and any dangerous offender designation under the Criminal Code ; (

e) any physical or mental illness or disorder suffered by the inmate; (

f) the inmate's potential for violent behaviour; and (

g) the inmate's continued involvement in criminal activities. 18. For the purposes of

section 30 of the Act, an inmate shall be classified as (

a) maximum security where the inmate is assessed by the Service as (

i) presenting a high probability of escape and a high risk to the safety of the public in the event of escape , or (ii) requiring a high degree of supervision and control within the penitentiary;

(

b) medium security where the inmate is assessed by the Service as (

i) presenting a low to moderate probability of escape and a moderate risk to the safety of the public in the event of escape, or (ii) requiring a moderate degree of supervision and control within the penitentiary; and (

c) minimum security where the inmate is assessed by the Service as (

i) presenting a low probability of escape and a low risk to the safety of the public in the event of escape, and (ii) requiring a low degree of supervision and control within the penitentiary. (emphasis added) [ 20 ] In a global assessment of the Appellant made on March 29, 2010, by Correctional Service Canada, it is written : While he is a defiant individual, his behaviour in the past has shown that he could reside in a medium-security environment were it not for the high escape risk that he presents . […] In the CMT's estimation there are still reasonable grounds to believe that the offender is likely to commit an offence causing serious harm prior to the expiration of the offender's sentence according to law. (emphasis added) [ 21 ] The Appellant has not convinced the Court that those conclusions are unreasonable [5] and that his security classification should be changed. [ 22 ] Moreover, in a review of the Appellant's segregated status by Correctional Service Canada on June 1, 2010, we read : 4.

Overall Assessment The subject had been involuntary segregated for 49 days. On April 12 th , 2010, at approximately at 04:30 pm, he was involved in a fight with another inmate in the IM range common room (L block). During this incident, the buzzer alarm and chemical agents were used to stop the fight. The subject suffered some injuries that required his transfer to an exterior hospital. He is back since 2010.04.13 and is held in the segregation since. He was involuntary placed under section 31(3) (a).

However, on 2010-04-19, we received confirmation that subject's security was compromised in L Block, where he was before, so he was placed under section 31(3) c). Integration plan Following the Segregation Review Board, we had a case conference with the Security Department in regards to his situation. We were told that the subject is not welcomed back in his wing for the moment. As we received information that Mr Lena cannot go back in his former unit (L block), we request that verifications be made in the T unit.

We are still waiting to get the final conclusions of the CM to determine if Mr Lena can go in the 119 sector. (…) 6. Recommendation We recommend that the subject stays in involuntary segregation under article 31(3) c). (emphasis added) [ 23 ] The recommendation was agreed to by the Assistant Warden on the same day and it was confirmed again on July 27, 2010, by Johanne Marcoux, DA Intervention, who wrote : In accordance with the recommendation.

According to the information we have, I decide to maintain you in administrative segregation involuntarily, since it is the only alternative at this moment to assure your own safety . (emphasis added) [ 24 ] Again the Appellant has not convinced the Court that those recommendations and conclusions are unreasonable and that he was illegally placed in segregation. [ 25 ] Consequently the second ground on which the motion for habeas corpus is based must fail and Correctional Service Canada is no longer prevented from transferring the Appellant to another penitentiary by the judgment rendered by Justice Dutil on October 27, 2010.

FOR THESE REASONS, THE COURT :

[ 26 ] DISMISSES the appeal. LOUIS ROCHETTE, J.A. BENOÎT MORIN, J.A. JEAN BOUCHARD, J.A. Mr. Michael Angelo Lena Personally Nadia Hudon Joyal, Leblanc for the Respondents – Sylvie Patenaude, Richard Paquet, Maurice Labresque, Caroline Tremblay, Caroline Bédard, Pierre Paquet and Attorney General of Canada Date of hearing: January 27, 2011