2015 FC, 2015 FC 1148

Date: 20151008 Docket: T-1761-14 Citation: 2015 FC 1148 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario, October 8, 2015 PRESENT: The Honourable Mr. Justice Shore BETWEEN: JACQUES ÉMOND Applicant and THE ATTORNEY GENERAL OF CANADA Respondent JUDGMENT AND REASONS I. Introduction [ 1 ] The applicant is seeking judicial review of a decision dated June 6, 2014, by Correctional Service Canada (CSC) denying his third-level grievance of a intraregional transfer request under the Corrections and Conditional Release Act , SC 1992, c 20 (Act) to be closer to his resources. II.

Facts [ 2 ] The applicant, Jacques Émond, is a full-patch member of the Hell’s Angels Sherbrooke chapter, and since August 27, 2012, has been serving a federal sentence of six years and three months for conspiracy to commit murder.

The applicant was assigned a medium security classification and was sent to the Archambault Institution, a medium security institution, following his arrival at the Regional Reception Centre in September 2012. [ 3 ] On June 26, 2013, the applicant applied to be transferred to the Drummond Institution (medium security) or the Donnacona Institution (maximum security) to be closer to his resources (his family). The applicant’s intraregional transfer application was denied in a third-level grievance. This is the judicial review of that decision. III.

Impugned decision [ 4 ] In its decision (third-level grievance), dated June 6, 2014, CSC stated that it considered the applicant’s prior responses and submissions, the applicable legislation and policies and the documents relevant to the applicant’s case in the Offender Management System. [ 5 ] CSC also considered the applicant’s request, in his initial penitentiary placement, to be transferred to the Drummond Institution or the Donnacona Institution.

But after discussions with the Division of Operations, Security Intelligence, at Regional Headquarters, and the authorities at the Regional Reception Centre and at the Archambault Institution, it was decided that the applicant’s criminal profile fit the type of clientele present at the Archambault Institution. [ 6 ] Furthermore, CSC considered an Assessment for Decision, dated July 8, 2013, which reads as follows: [ translation ] “the population management plan indicates that the target institution for inmates connected to the Hell’s Angels is the Archambault Institution, and it should have priority, notwithstanding distance from resources” . [ 7 ] In one paragraph, CSC summarized why it was denying the grievance, finding that the decision-making process was fair, reasonable and based on a review of all of the relevant information and in accordance with

section 28 of the Act : [ translation ] The Correctional Service of Canada (CSC) recognizes that affiliation with a security threat group is a significant risk, poses a serious threat to the safety and security of CSC operations and compromises the protection of society. In fact, your affiliation with the Hell’s Angels was considered in the review of your request [for a voluntary transfer] to the Drummond Institution.

Moreover, your programming and intervention needs, management of co-convicted and incompatible inmates, cell availability, cultural and linguistic environments as well as your resources in the community were also considered. Thus, it was established that the [Archambault Institution] was the most appropriate environment, and will allow you to pursue your correctional planning. (Respondent’s Record, Offender Grievance Response (Third Level), JR-05)

IV. Issues [8] The applicant presents the following two issues: (

a) Did CSC breach its duty of procedural fairness with respect to disclosing information? (

b) Was the CSC decision reasonable given the evidence in the record? V. Position of the parties [9] The applicant contends that CSC decided that he should be confined in the Archambault Institution based on the RegionalPopulation Management Plan (Plan), which was never disclosed to the inmate, which would be a failure to disclose information(according to May v Ferndale Institution, [2005] 3 SCR 809, 2005 SCC 82; and, also according to Mission Institution v Khela, [2014] 1SCR 502, 2014 SCC 24 (Khela)). Also, the applicant submits that under

section 28 of the Act, accessibility to community, whichincludes family, is a criterion that CSC must take into account when selecting a penitentiary. The applicant also maintains that hispersonal situation was not taken into account and that he never received an explanation as to why his co-accused—who belong to thesame criminal group—are at the Drummond Institution (according to Lebon v Canada (Attorney General), 2012 FCA 132). Finally, theapplicant argues that the Archambault Institution and the Drummond Institution offer the same degree and kind of custody and controland the same programs and services.

It would thus be erroneous to state that only the Archambault Institution offers the programs andinterventions that the applicant requires. [10] In short, the applicant submits that the CSC third-level grievance decision is unreasonable and that CSC denied his transferrequest on the basis of a non-existent placement plan.

In doing so, it did not comply with the requirements. [11] The respondent argues that CSC has expertise in matters of inmate classification, and that following the applicant’sassessment, which included discussions with a number of groups, it found that the Archambault Institution fit the inmate’s profile. Inshort, CSC considered the safety of the public, legislation, directives, the profile and needs of the applicant and was entitled to concurthat the transfer had to be denied because the Archambault Institution is more suitable for clientele such as the applicant. VI.

Standard of review [12] CSC has expertise in matters of inmate transfers; therefore, the law is settled that decisions of fact and decisions of fact andlaw by CSC are reviewable on the standard of reasonableness (Khela, above at paras 75 and 76).

Reasonableness is concerned with theexistence of justification, transparency and intelligibility within the decision-making process, but it is also concerned with whether thedecision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir v NewBrunswick, 2008 SCC 9 , [2008] 1 SCR 190 at para 47). [13] However, with regard to determining a breach of the principles of procedural fairness, the correctness standard will alwaysapply (Khela, above at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43). VII. Analysis A.

Statutory and jurisprudential framework [14] The protection of society is the paramount consideration of the Act (section 3.1 of the Act). However, that does not mean thatCSC has absolute freedom with respect to the inmate transfer process. CSC must consider the criteria listed in

section 28 of the Act whendetermining in which penitentiary an inmate is to be confined. In this case, paragraph 28(

b) of the Act is in issue: Criteria for selection of penitentiary Incarcération : facteurs à prendre encompte28. If a person is or is to be confined in apenitentiary, the Service shall take allreasonable steps to ensure that thepenitentiary in which they are confined is onethat provides them with an environment thatcontains only the necessary restrictions,taking into account 28. Le Service doit s’assurer, dans la mesuredu possible, que le pénitencier dans lequel estincarcéré le détenu constitue un milieu oùseules existent les restrictions nécessaires,compte tenu des éléments suivants : (

a) the degree and kind of custody and controlnecessary for (

i) the safety of the public, (ii) the safety of that person and otherpersons in the penitentiary, and (iii) the security of the penitentiary;

a) le degré de garde et de surveillancenécessaire à la sécurité du public, à celle dupénitencier, des personnes qui s’y trouvent etdu détenu;

(

b) accessibility to (

i) the person’s home community and family, (ii) a compatible cultural environment, and (iii) a compatible linguistic environment; and

b) la facilité d’accès à la collectivité à laquelle il appartient, à sa famille et à un milieu culturel et linguistique compatible; (

c) the availability of appropriate programs and services and the person’s willingness to participate in those programs.

c) l’existence de programmes et services qui lui conviennent et sa volonté d’y participer. [ 15 ] When it decides whether a transfer can be granted, CSC must consider the criteria in

section 28 of the Act , as set forth in

section 29 of that same Act: Transfers Transfèrements 29. The Commissioner may authorize the transfer of a person who is sentenced, transferred or committed to a penitentiary to (

a) another penitentiary in accordance with the regulations made under paragraph 96(d), subject to

section 28; or (

b) a provincial correctional facility or hospital in accordance with an agreement entered into under paragraph 16(1)(

a) and any applicable regulations. 29 . Le commissaire peut autoriser le transfèrement d’une personne condamnée ou transférée au pénitencier, soit à un autre pénitencier, conformément aux règlements pris en vertu de l’alinéa 96d), mais sous réserve de l’article 28, soit à un établissement correctionnel provincial ou un hôpital dans le cadre d’un accord conclu au

titre du paragraphe 16(1), conformément aux règlements applicables. [ 16 ] Pursuant to

section 27 of the Act , CSC has a duty to disclose information: Information to be given to offenders Communication de renseignements au délinquant 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. 27 .

(1) Sous réserve du paragraphe (3), la personne ou l’organisme chargé de rendre, au nom du Service, une décision au sujet d’un délinquant doit, lorsque celui-ci a le droit en vertu de la présente

partie ou des règlements de présenter des observations, lui communiquer, dans un délai raisonnable avant la prise de décision, tous les renseignements entrant en ligne de compte dans celle-ci, ou un

sommaire de ceux-ci. Exceptions Exception

(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 ). [Emphasis added.]

(3) Sauf dans le cas des infractions disciplinaires, le commissaire peut autoriser, dans la mesure jugée strictement nécessaire toutefois, le refus de communiquer des renseignements au délinquant s’il a des motifs raisonnables de croire que cette communication mettrait en danger la sécurité d’une personne ou du pénitencier ou compromettrait la tenue d’une enquête licite. [ 17 ] The purpose of

section 27 of the Act is to provide procedural protections in the context of transfer decisions under

section 29 . A failure to disclose information may render a transfer decision procedurally unfair: Rather, s. 27 serves as a statutory guide to procedural protections that have been adopted to ensure that decisions under s. 29 and other provisions are taken fairly. When a transfer decision is made under s. 29 and an inmate is entitled to make representations pursuant to the CCRR , s. 27 is engaged and decisions made under it are reviewable . If the correctional authorities failed to comply with s. 27 as a whole, a reviewing court may find that the transfer decision was procedurally unfair, and the deprivation of the inmate’s liberty will not be

lawful. [Emphasis added.] (Khela, above at para 85) [18] Finally, it goes without saying that not all breaches of

section 27 will necessarily result in procedural unfairness (Khela, aboveat para 90; Mobil Oil Canada Ltd. v Canada-Newfoundland Offshore Petroleum Board, (SCC), [1994] 1 SCR 202(Mobil Oil)). B.

Respect for the principles of procedural fairness to the applicant [19] The applicant argues that CSC breached its duty of procedural fairness in light of its failure to disclose the RegionalPopulation Management Plan as required by subsection 27(1) of the Act. [20] Indeed, the Court finds that CSC breached the principles of procedural fairness to the applicant only by failing to discloseinformation, concerning the Plan, without at least explaining, even briefly, the need to not disclose the information to the applicant forreasons set out in subsection 27(3) of the Act. [21] Even though there was a breach of procedural fairness, the Court is not required to allow the application for judicial reviewwhen the result would be exactly the same (Mobil Oil, above; Khela, above). [22] In this case, while it is possible that CSC will make the exact same finding when faced with the applicant’s situation beforethe Court can make its decision, the Court has before it a case where the need for disclosure, or, at least, a brief explanation specifyingthe reason for non-disclosure is in itself essential.

VIII. Conclusion [23] In light of the foregoing, the application for judicial review is allowed. JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is allowed and the matter is returned for redetermination by adifferently constituted panel, the whole without costs. “Michel M.J. Shore” Judge Certified true translation Janine Anderson, Translator FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1761-14 STYLE OF CAUSE: JACQUES ÉMOND v THE ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Montréal, QuEbecDATE OF HEARING: september 24, 2015 JUdGMENT and reasons: SHORE J.

DATED: october 8, 2015 APPEARANCES: Sylvie Bordelais FOr the applicant

Toni Abi Nasr for the respondent SOLICITORS OF RECORD : Sylvie Bordelais, Counsel Montréal, Quebec FOr the applicant William F. Pentney Deputy Attorney General of Canada Montréal, Quebec for the respondent