ARTHUR ROSS Applicant v. THE WARDEN OF BOWDEN INSTITUTION #2, 2003 FCT 331

Date: 20030320 Docket: T-2063-01 Neutral citation: 2003 FCT 331 Ottawa, Ontario, March 20, 2003 Present: The Honourable Madam Justice Dani èle Tremblay-Lamer BETWEEN: ARTHUR ROSS Applicant and THE WARDEN OF BOWDEN INSTITUTION #2 THE DIRECTOR OF INMATE AFFAIRS OTTAWA MR.

YVAN THIBAULT and 3 rd LEVEL ANALYST CHRISTINE LACHANCE Respondents REASONS FOR ORDER AND ORDER [ 1 ] This is an application for judicial review of the 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 pay while he was in administrative segregation. [ 2 ] The applicant, Arthur Ross is an inmate. He is currently incarcerated in Saskatchewan Penitentiary Max Unit. He was previously incarcerated in Bowden Institution. [ 3 ] On March 5, 2001, the applicant, while at Bowden Institution, was placed in administrative segregation, pursuant to paragraph 31(3) (

a) of the Act . [ 4 ] Prior to being in segregation, the applicant worked in the Corcan Cabinet program and was paid $5.80 per day. Upon placement in segregation, the applicant was given no pay. This was later corrected to $2.50 per day for the entire period the applicant was in administrative segregation, pursuant to

section 18 of the Commissioner's Directive 730 (the "Directive") which provides: 18. An allowance of $2.50 shall be awarded to inmates who are unable to participate in a program for reasons beyond their control. 18.

Une indemnité de 2,50$ sera versée aux détenus qui ne peuvent participer à des programmes pour des raisons indépendantes de leur volonté. [ 5 ] The applicant was informed verbally on March 22, 2001 that he would be paid $2.50 per day while in administrative segregation. [ 6 ] At the third level of the grievance, the applicant took issue with the timeliness of the Program Board's written notification concerning the decrease in his pay following his placement in administrative segregation. [ 7 ] The applicant submitted that although Programming staff verbally informed him that his pay would be reduced from $5.80 to $2.50, the Program Board did not provide him with a written notification of this reduction within five working days of having rendered its decision, contrary to

section 28 which provides:

28. The Program Board shall give the inmate written notification within five working days of its decision regarding his/her pay level and underlying reasons. Upon receipt of the Board's decision, the inmate shall be given five working days to make a written or oral representation to the Board. The Board shall provide the inmate with its final decision within five working days. 28. Le Comité des programmes doit, dans un délai de cinq jours ouvrables, aviser le détenu par écrit de sa décision concernant son niveau de rémunération ainsi que des motifs de celle-ci.

Sur réception de I'avis de décision du Comité, le détenu disposera de cinq jours ouvrables pour lui communiquer des observations part écrit ou de vive voix. Le Comité doit ensuite transmettre sa décision définitive au détenu dans les cinq jours ouvrables qui suivent. [ 8 ] The Commissioner concurred that the Program Board did not proceed in accordance with

section 28 of the Directive, as it failed to provide the applicant with written notification within five days of having rendered its decision regarding the reduction in his pay level. This portion of the grievance was upheld. However, the Commissioner did not believe that Bowden Institution owed the applicant any money as corrective action, since he was appropriately renumerated in accordance with

section 18 of the Directive. [ 9 ] In my opinion,

section 28 is not applicable when an inmate's pay is reduced as a result of being placed in administrative segregation. This

section falls under the heading of Program Assessment. It pertains to the inmate's overall participation in the program. The Program Board reviews the inmate's overall participation in the program and decides the inmate's pay level based on input from the program supervisor, parole officer, unit staff and other individuals. It is here that

section 28 comes into play. The Program Board gives the inmate written notification within five working days of its decision regarding pay level and underlying reasons. Upon receipt of the Board's decision, the inmate has five working days to make a written or oral representation to the Board. A final decision is rendered within five working days. This procedure is done in order to give the inmate an opportunity to respond to the discretionary decision of the Board. [ 10 ] The situation that exists in the case at bar is different. The applicant was placed in administrative segregation. He was paid $2.50 per day pursuant to

section 18. This is a standard procedure and is not discretionary. As such, the decision to lower the applicant's pay was not arbitrary or contrary to law. [ 11 ] The applicant further argues that his documentation categorizes his pay as "level C $5.80" with the comment "Maintain No Change of Status". As such, according to the applicant, his pay level should not have been changed. [ 12 ] The comment "Maintain No Change of Status" is in reference to the applicant's pay, pursuant to

section 17 of the Directive. It was determined that his pay remain at a level C where he would be paid $5.80 per day, based on his participation in a program assignment. It does not apply in the case at bar, where the applicant had his pay reduced as a result of his placement in administrative segregation. [ 13 ] For all these reasons, this application for judicial review is dismissed. ORDER THIS COURT ORDERS that the application for judicial review is dismissed. "Daniele Tremblay-Lamer" J. F. C. C.

FEDERAL COURT OF CANADA TRIAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: T-2063-01 STYLE OF CAUSE: ARTHUR ROSS Applicant and THE WARDEN OF BOWDEN INSTITUTION #2 THE DIRECTOR OF INMATE AFFAIRS OTTAWA

MR. YVAN THIBAULT and 3 rd LEVEL ANALYST CHRISTINE LACHANCE Respondents 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 10 th floor 123-2nd Avenue South Saskatoon, Saskatchewan S7K 7E6 FOR RESPONDENT