ARTHUR ROSS Applicant v. THE WARDEN OF BOWDEN INSTITUTION, 2003 FCT 333

Date: 20030320 Docket: T-1959-01 Neutral citation: 2003 FCT 333 Ottawa, Ontario, March 20, 2003 Present: The Honourable Madam Justice Dani èle Tremblay-Lamer BETWEEN: ARTHUR ROSS Applicant and THE WARDEN OF BOWDEN INSTITUTION Respondent REASONS FOR ORDER AND ORDER [ 1 ] This is an application for judicial review of the September 25, 2001 decision of the Commissioner of the Correctional Service of Canada ("the Commissioner") denying the grievance of the applicant at the third and final level of the grievance process prescribed under the Corrections and Conditional Release Act , S.C. 1992, c-20 (the " Act ") and the Corrections and Conditional Release Regulations , SOR/92-620 , (the " Regulations ").

The grievance arose out of the applicant's involuntary transfer from Bowden Institution to the Saskatchewan Penitentiary Max Unit in Prince Albert. [ 2 ] The applicant, Arthur Ross is an inmate. Fie is currently incarcerated in Saskatchewan Penitentiary Max Unit. [ 3 ] He is serving a concurrent sentence for sexual assault. He was sentenced to 16 years and given one-half parole eligibility. His sentence commenced on May 30, 1997. [ 4 ] On January 22, 2001, the applicant, who was serving his sentence at Bowden Institution, asked for a voluntary transfer to Edmonton Institution Max Unit.

His request was refused on February 8, 2001. [ 5 ] On March 5, 2001, the applicant was placed in administrative segregation after the completion of an investigation. The investigation revealed that the applicant, along with another inmate McDonald, were involved in a scheme to discredit and set up members of the Bowden Institution staff.

The scheme consisted of the applicant and Inmate McDonald paying another inmate, Anderson, two bails of tobacco to beat them up and then make it look as if staff had set up the assaults (the "assault conspiracy"). [ 6 ] The applicant's security classification score was at the top end of the point range for a medium security classification when this incident occurred.

Following this incident, the applicant's security rating was reviewed, and was determined to be at a maximum security level. [ 7 ] The applicant was not transferred to Edmonton Institution Max Unit because Inmate MacDonald who was involved in the assault conspiracy was there. The two inmates were considered incompatibles and it was determined that they not be placed in the same facility. As a result, it was decided that the applicant would be transferred to Saskatchewan Penitentiary Max Unit. [ 8 ] The applicant grieved his involuntary transfer to Saskatchewan Penitentiary Max Unit on April 11, 2001.

He received the first level decision of Grievance V50A00000550, the second level decision on May 7, 2001, and the third level decision on September 25, 2001. [ 9 ] The applicant claims essentially that his transfer was unfair in that it amounted to retribution and that the grounds used to classify him at a maximum security level were not justified. [ 10 ] The decision to transfer an inmate to one institution rather than another is a discretionary one.

It is not the rote of the Court to embark on a detailed review of the substantive merits of the decision unless there is unequivocal evidence that the decision was arbitrary or that there is a clear breach of procedural fairness ( Kelly v. Canada (Correctional Service) (1992), 56 F.T.R. 166 ). In Cline v.

Reynett (18 March 1981), T-894-81 (F.C.T.D.), Addy J. explained the limits of this Court's jurisdiction to intervene in the transfer decisions made by prison authorities: 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.

[ 11 ] It is clearly established that the exercise of discretion by a statutory authority should not be disturbed merely because the Court might have exercised the discretion otherwise ( Légère v. Canada (1998), 1997 CanLII 5306 (FC) , 133 F.T.R. 77). [ 12 ] In the present case, a review of the material before me does not support the conclusion that the Commissioner's decision was unreasonable. The decision was based on the evidence and in accordance with principles of procedural fairness. The applicant knew the case against him and was provided with all the necessary information.

Of particular significance is the fact that after being notified of his involuntary transfer, the applicant declined to submit a rebuttal. He signed the notice of Involuntary Transfer indicating that he did not wish to present reasons to justify a new case study (Tribunal record at p. 296), and sent a letter to the Warden apologizing for his actions. [ 13 ] For these reasons, the application for judicial review is dismissed. ORDER THIS COURT ORDERS that the application for judicial review is dismissed. "Danièle Tremblav-Lamer" J. F. C. C.

FEDERAL COURT OF CANADA TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: T-1959-01 STYLE OF CAUSE: ARTHUR ROSS Applicant and THE WARDEN OF BOWDEN INSTITUTION Respondent PLACE OF HEARING: Saskatoon, Saskatchewan DATE OF HEARING: March 18, 2003 REASONS FOR ORDER AND ORDER OF THE HONOURABLE MADAM JUSTICE DANIÈLE TREMBLAY-LAMER DATED: March 20, 2003 APPEARANCES: Mr. Arthur Ross ON HIS OWN BEHALF Mr.

Chris Bernier FOR RESPONDENT SOLICITORS OF RECORD: Morris Rosenberg Deputy Attorney General of Canada Department of Justice Saskatchewan Regional Office 10thfloor 123-2nd Avenue South Saskatoon, Saskatchewan S7K 7E6 FOR RESPONDENT