2003 MBCA 37, 2003 MBCA 37

IN THE COURT OF APPEAL OF MANITOBA Coram: Huband, Twaddle, Freedman JJ.A. B E T W E E N : RONALD HICKEY ) R. Hickey ) In person (Applicant) Appellant ) ) D. A. Fraser - and - ) for the Respondents ) CORRECTIONAL SERVICE CANADA ) Appeal heard: ROCKWOOD INSTITUTION ) February 21, 2003 ) (Respondents) Respondents ) Judgment delivered: ) March 21, 2003 FREEDMAN J.A. 1 The applicant, Ronald Hickey, is presently an inmate at Stony Mountain Institution, the federal penitentiary in Manitoba. In 1999 he was convicted of trafficking in a narcotic and possession of proceeds of crime and he received a federal sentence.

His initial security classification was “medium” and his initial penitentiary placement was Stony Mountain. 2 In October 2001, his security classification was reassessed as “minimum” and he was voluntarily transferred to Rockwood Institution, a minimum-security institution. A few months later, as a result of various concerns that came to the attention of the authorities regarding the applicant’s conduct at Rockwood, they took three separate but related decisions. The first was a decision that the applicant be placed in what the Crown describes as “administrative segregation” at Rockwood.

The second was to increase his security classification from “minimum” to “medium” as it was originally. The third was that he be involuntarily transferred from Rockwood back to Stony Mountain, which occurred on August 7, 2002. 3 The applicant filed proceedings in the Court of Queen’s Bench raising a number of complaints related to these decisions. He wanted to be returned from Stony Mountain to Rockwood.

He sought a writ of habeas corpus , and after a hearing on the merits, Kaufman J. dismissed the application. 4 In dismissing the application the motions judge relied on the decision of the Alberta Court of Appeal in Armaly v. Canada (Parole Service) (2001), 299 A.R. 188 , 2001 ABCA 280 , to which I will refer below. He referred to the internal grievance procedure designed to address complaints of inmates and to the fact that the applicant had not availed himself of the internal appeal process.

He said that the applicant should have demonstrated diligence in pursuing internal remedies instead of seeking a remedy through the court process. Since the granting of a writ of habeas corpus is an extraordinary and discretionary remedy, and given the failure of the applicant to pursue the internal grievance process, Kaufman J. exercised his discretion to dismiss the application.

From that decision, the applicant appeals. 5 The substantive issue before us is whether the alternative remedy, which is prescribed in detail in the federal regulatory regime, is in the circumstances of this case an “adequate” alternative remedy. (See Canadian Pacific Ltd. v.

Matsqui Indian Band , 1995 CanLII 145 (SCC) , [1995] 1 S.C.R. 3.) If so, and it being undisputed that those processes have not been complied with, there was ample justification for the motions judge to deny the application, and there would be no reason for this court to interfere with the motion judge’s exercise of his discretion. 6 The Crown asserted that the authorities scrupulously observed procedural fairness at every stage in respect of each of the three decisions.

Nothing that I have seen in the material raises any doubt in my mind about the accuracy of that assertion. 7 The move into segregation was required once the authorities concluded that the continued presence of the applicant in the minimum-security institution jeopardized the security of that institution (see s. 31(3) (

a) of the Corrections and Conditional Release Act , S.C. 1992, c. 20 [C-44.6], (the Act )). 8 His security classification was changed to “medium.” In the decision document given to the applicant there is a clear statement that the decision “may be appealed through the inmate grievance procedure.” Written material prepared by Mr. Hickey was considered by the authorities but the decision to change his security classification was not altered.

When that decision was confirmed, he was again advised in writing that he could appeal the decision through the inmate grievance process. 9 Once his security classification was increased, he had to be transferred to Stony Mountain, since medium-security inmates are not maintained at Rockwood. Written material prepared by Mr. Hickey was considered by the authorities as a rebuttal to this

involuntary transfer but the decision was maintained. He was again advised that he could appeal this decision through the inmate grievance process. 10 There is ample authority that the transfer of an inmate from one institution to another is an administrative matter and will not be interfered with by the courts unless it is patently clear that the inmate has not been dealt with fairly (see Faulkner v. Canada (Solicitor General) et al . (1992), 62 F.T.R. 19 (T.D.) at para. 17 ). The material demonstrates that Mr.

Hickey was dealt with fairly according to any reasonable, objective standard, and was dealt with in conformity with the relevant statute and regulations. He was given detailed information about the concerns regarding his behaviour in relation to his transfer from Rockwood to Stony Mountain. He responded to those concerns. He was informed clearly of his right to grieve the decision but he chose not to do so. The reason that he chose not to grieve the decision, according to Mr.

Hickey, is that the internal grievance process is too slow. 11 The Act , the related regulations, and the administrative manuals establish detailed mechanisms of appeal for inmates. There is a four-stage process regarding the disposition of complaints by inmates which includes a review by an outside review board comprised of non-involved persons. The “Commissioner’s Directive” issued by the Commissioner of Correctional Service of Canada in 2002 indicates that written responses to grievances are to be provided within 15 working days of their receipt when the grievance is assessed as being a priority case.

The grievance process commences at the first level at the institution, then moves to the regional level, then to the national level, and finally there may be an outside review. 12 The 1998 Offender Complaint Grievance System Training Manual indicates that involuntary transfers are ranked as a high priority subject matter. 13 A 1998 review of the process indicates that by 1997 priority grievances were being responded to within nine days. 14 Based on all the material filed, the motions judge concluded, I think correctly, that there was no reason to think that had Mr.

Hickey engaged the grievance procedure relating to this situation the decisions would have been made other than within the mandated time. In fact, although he complains that the process is slow, the evidence is to the contrary. 15 The adequate alternative remedy principle has been described in many authorities (see for example Canadian Pacific Ltd. v. Matsqui Indian Band , and Harelkin v. University of Regina, 1979 CanLII 18 (SCC) , [1979] 2 S.C.R. 561). The principle can be summarized in simple terms.

Barring exceptional circumstances, administrative procedures should be allowed to run their own course and courts should not interfere by granting an extraordinary remedy unless no other effective recourse is open and available. 16 In the Armaly decision, the Chief Justice of the Alberta Court of Appeal said (at para. 2): Habeas corpus is an extraordinary and discretionary remedy and should not be granted where adequate alternative remedies are available. … It is clear that an alternate adequate remedy exists in this case: the appeal procedures set forth in s. 147 of the CCRA [ Corrections and Conditional Release Act ]. 17 On the evidence, the alternative remedy was available and clearly adequate, and Mr.

Hickey is obliged to exhaust the internal processes available to him before seeking extraordinary remedies from the court. Lamer C.J.C. in the Supreme Court of Canada in Canadian Pacific Ltd. v. Matsqui Indian Band , at para. 8 , quoted with approval the following statement of Joyal J. at trial (at pp. 86- 87): … extraordinary remedy … can only be maintained when no other effective recourse is open to a litigant. Absent any statutory bar to jurisdiction … the relief which a court may grant by way of judicial review remains essentially discretionary.

On such an application, the court must view all the circumstances of the case and decide if any other recourse or remedy is available. Such a recourse is … usually by way of an appeal. … the practice is to decline jurisdiction where there is a right of appeal, except under special circumstances. There are no special circumstances that have been identified here. 18 There was ample justification for the motions judge to exercise his discretion as he did. There is no reason for this court to interfere with his exercise of discretion. 19 I would dismiss the appeal without costs. J.A. I agree: J.A. I agree: J.A.