Date: 20040615
Docket: T-647-03
CALGARY, Alberta, this 15th day of June, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
PETER ARCHER
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the March 20, 2003 third level inmate grievance decision of Larry Motiuk, representing the Assistant Commissioner of the Correctional Service of Canada, ("CSC") which denied the applicant's request for an inter-regional institutional transfer, pursuant to section 28 of the Corrections and Conditional Release Act.
FACTS
[2] The applicant has been serving a 6 year, 6 month sentence for sexual assault and related offences committed against two of his step-daughters. He has been incarcerated at the Bowden Institution in Alberta, since February 2, 2001. The applicant considers his home province to be British Colombia because he resided there for the 10 years preceding his incarceration. He brings this application to compel CSC to transfer him from Bowden Institution in Alberta (Prairie Region) to Mountain Institution in British Columbia (Pacific Region).
[3] Since his incarceration, the applicant has continually expressed a desire to be transferred to the Pacific Region but has been denied at various times for lack of adequate community support, and for non-completion of the recommended treatment programs in the applicant's Correctional Plan.
CSC DECISION
[4] The reviewing officer concluded that the applicant's request failed to meet the criteria outlined in section 28 of the CCRA because the requirements of his Correction Plan were being addressed in the Prairie Region, and could not be similarly dealt with in the Pacific Region. He also concluded that the applicant had failed to establish any significant family or community support in the Pacific Region. The single page decision states:
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Our inquiry has revealed that your transfer request does not meet the above criteria. We note that the program requirements as outlined in your Correctional Plan are currently being addressed within the Prairie Region. You have been accepted for admission to the High Intensity Family Violence Program and your participation will be dependant upon your admission to, and successful completion of, the Clearwater Sex Offender Treatment Program at the Regional Psychiatric Center (Prairie). You were also informed that Mountain Institution does not offer the High Intensity Family Violence Program. Your Case management Team has acknowledged your intent to seek release to Chilliwack, British Columbia, however the Community Assessment did not establish your having any significant family or community support in that region.
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LEGISLATION
[5] Section 28 of the Corrections and Conditional Release Act provides:
| Criteria for selection of penitentiary 28. Where a person is, or is to be, confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which the person is confined is one that provides the least restrictive environment for that person, taking into account (a) the degree and kind of custody and control necessary for (I) the safety of the public, (ii) the safety of that person and other persons in the penitentiary, and (iii) the security of the penitentiary; (b) accessibility to (I) the person's home community and family, (ii) a compatible cultural environment, and (iii) a compatible linguistic environment; and (c) the availability of appropriate programs and services and the person's willingness to participate in those programs.
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Incarcération_: facteurs à prendre en compte
28. Le Service doit s'assurer, dans la mesure du possible, que le pénitencier dans lequel est incarcéré le détenu constitue le milieu le moins restrictif possible, compte tenu des éléments suivants_: a) le degré de garde et de surveillance nécessaire à la sécurité du public, à celle du pénitencier, des personnes qui s'y trouvent et du détenu; b) la facilité d'accès à la collectivité à laquelle il appartient, à sa famille et à un milieu culturel et linguistique compatible; c) l'existence de programmes et services qui lui conviennent et sa volonté d'y participer.
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ANALYSIS
[6] The parties agreed that the sole issue raised in this application is whether the Assistant Commissioner's decision to uphold the denial of the applicant's transfer request is patently unreasonable.
[7] The decision to transfer an inmate from one institution to another is a discretionary one, and Parliament has entrusted this administrative function to CSC as an expert tribunal. In Gravel v. Canada (Correctional Services) [1999] F.C.J. No. 1569 (T.D.) Pinard J. reviews the applicable standard of review, at paragraph 4, and concludes that deference ought to the be paid to CSC in accordance with the Supreme Court of Canada's decision in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2. In that decision the Supreme Court states at pages 7 - 8 per McIntyre J.:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[8] In Marshall v. Canada (Solicitor General) (2002), 216 F.T.R. 85 (T.D), at paragraph 41, Dawson J. accepts that the applicable standard of review for transfer of an inmate from one institution to another is patent unreasonableness.
[9] Neither the applicant nor the Courts decide where the applicant is to be incarcerated. The duty of weighing the advantages and disadvantages of the various penitentiaries has been entrusted to CSC. See Kelly v. Canada (Attorney General) (1987), 12 F.T.R. 296 (T.D); and Careen, supra.
[10] While the applicant is of little risk to prison security, the assessments undertaken by CSC indicate that he is an untreated repeat sex offender warranting high public safety concern. The certified record indicates that CSC has not permanently denied a transfer to the applicant; on the contrary, the evidence indicates that the applicant's request for a transfer may be supported once he completes the required treatment programs. On the basis of the evidence on record, I cannot conclude that it was patently unreasonable for CSC to have denied the applicant's request for a transfer.
[11] Both parties advised the Court that the applicant is now enrolled in an eight month sex offender treatment program at a Regional Psychiatric Centre. The applicant can apply for a transfer after the successful completion of this program and possibly the High Intensity Family Violence Program.
[12] For these reasons, this application for judicial review must be dismissed.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:T-647-03
STYLE OF CAUSE:Peter Archer v. Attorney General of Canada
PLACE OF HEARING:Calgary, Alberta
DATE OF HEARING:June 14, 2004
REASONS FOR ORDER AND ORDER : KELEN J.
DATED:June 15, 2004
APPEARANCES:
Mr. John A. MacNaughtonFOR APPLICANT
Ms. Stacey DejFOR RESPONDENT
SOLICITORS OF RECORD:
Sproule MacNaughton
Red Deer, AlbertaFOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of CanadaFOR RESPONDENT