Date: 20021119
Neutral Citation: 2002 FCT 1198
BETWEEN:
ADAM HUTTON
Applicant
and
MICHAEL PROVAN IN HIS CAPACITY AS
WARDEN OF FENBROOK INSTITUTION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
INTRODUCTION
[1] Mr. Adam Hutton (the "Applicant") seeks judicial review of the decision made by Mr. Michael Provan in his capacity as Warden of Fenbrook Institution (the "Respondent"). The decision in issue, made on or about February 27, 2001, was to transfer the Applicant involuntarily from Fenbrook Institution to Joyceville Institution.
FACTS
[2] The Applicant is a convicted murderer for which he received a life sentence. He began serving his sentence on June 30, 1992 and becomes eligible for day parole on October 9, 2002. He becomes eligible for full parole on October 9, 2005.
[3] Following his conviction, the Applicant was taken to Millhaven Assessment Unit and was eventually placed at Joyceville Institution in early 1993. He remained at Joyceville until September 29, 1998 when he was among the first inmates transferred to the newly opened Fenbrook Institution. According to the Applicant's affidavit, Joyceville Institution is considered a "high-medium" security institution, whereas Fenbrook Institution is considered as a "low-medium" security institution.
[4] In December 2000, the Applicant held a security level of minimum security. He was employed at Fenbrook as a chapel clerk, assisting in the Catholic Chaplaincy Program.
[5] On December 28, 2000 the Applicant became involved in a verbal dispute with another inmate. In the course of that verbal altercation, he grabbed the other inmate by the sleeve. This incident ultimately led to an investigation at Fenbrook Institution into allegations that the Applicant was a homosexual predator and further, was involved in institutional drug dealing.
[6] As a result of the allegations and in the course of the investigation, the Applicant was placed in involuntary segregation. According to the institution, this was necessary in order to guarantee the personal safety of the Applicant. He entered involuntary segregation on January 4, 2001 and remained there for 63 days. His employment was terminated.
[7] Prior to the imposition of involuntary segregation on January 4, 2001, the Applicant had sought voluntary segregation on the basis of concerns for his safety. He sought voluntary segregation on December 31, 2000 and January 1, 2001. He was granted the opportunity of sleeping in a place other than his usual living quarters.
[8] The incident with the other inmate on December 28, 2000 was investigated. Initially, the other inmate described it merely as a verbal altercation but a few days later, that is on January 3, 2001, he described the incident as an assault. The Applicant admitted that he had indeed engaged in an argument with the other inmate and grabbed his arm but denied, throughout the investigation and consistently, that any assault was made upon the other inmate. He steadfastly maintained that his version of events was correct and the other inmate was not telling the truth.
[9] The investigation into the allegations of sexual predation and drug dealing did not yield evidence to support the allegations. However, the affidavit of the Respondent filed in this proceeding states that the investigation showed that the Applicant had assaulted another inmate. The Respondent further states that in accordance with the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the "Act") section 41, "this issue was resolved informally without the need for further disciplinary measures".
[10] In the course of the investigation, however, the Respondent determined that the Applicant no longer fit the profile of inhabitants of Fenbrook Institution. The Applicant's "institutional adjustment" rank was changed from low to moderate. His risk to public safety classification was also changed from low to moderate. According to the Respondent, these changes meant that the Applicant was no longer eligible for a minimum security classification.
[11] On February 19, 2001, the Applicant was served with a Notice of Involuntary Transfer. He was still in segregation at the time this notice was served upon him by a probation officer, Mr. Darrio Yellina. The Applicant availed of the opportunity to file a rebuttal against the Notice of Involuntary Transfer and filed a lengthy rebuttal. According to the affidavit of the Respondent, consultations were held with acting Warden Robert MacLean and the decision was made to approve the recommendations that the Applicant be classified as medium security and be involuntarily transferred to Joyceville Institution.
[12] The Applicant was transferred to Joyceville on or about February 28, 2001. According to admissions made by his counsel upon the hearing of the application and an agreed statement of facts subsequently filed by counsel for both parties, he was reclassified by that institution to the level of a minimum security inmate shortly after his arrival at Joyceville Institution. However, according to the Applicant, this reclassification does not render the present application moot. The fact that the initial decision was made at all by Fenbrook Institution reclassifying him from a minimum to medium security level, has the potential to affect the Applicant's parole eligibility in the future.
APPLICANT'S SUBMISSIONS
[13] The Applicant argues that the decisions in issue, that is to reclassify him from minimum to medium security and to involuntarily transfer him to a medium security institution, were made unfairly and without due regard to the principles of procedural fairness.
[14] The Applicant submits that these two decisions, which are inter-related, represent a disproportionate response by the Respondent to the incident which occurred on December 28, 2000, involving another inmate at Fenbrook. He says there is no evidence to support the allegations concerning homosexual activity or drug dealing in the institution, and these are not relevant to the decision to reclassify his security level and to transfer him involuntarily. The only basis upon which these two decisions could be made is the issue of the alleged assault upon a fellow inmate.
[15] According to the Applicant, the alleged assault was only a minor matter since no criminal charges were pursued and no further disciplinary action was taken against him under the Act. He contends this institutional response, that is the failure to pursue a criminal charge or other disciplinary charges, suggests that the incident was minor. According to the Applicant, the maxim de minimis non curat lex applies and would render the decision as being disproportionate to the offence.
[16] The Applicant argues that a disproportionate response breaches the duty of fairness in the administrative decision making process.
RESPONDENT'S SUBMISSIONS
[17] The Respondent argues that the decision to reclassify the Applicant, leading to an involuntary transfer is an administrative decision which merits curial deference. The Respondent here relies on Faulkner v. Canada (Solicitor General) et al (1992), 62 F.T.R. 19 at 24.
[18] Specifically, the Respondent argues that as long as the decision in question is not demonstrably unfair, the Court should not intervene, and relies on Hay v. National Parole Board (1985), 13 Admin. L.R. 17 (F.C.T.D.).
[19] The Respondent submits that there is evidence to support the re-classification of the Applicant from minimum security to medium security, having regard to the nature of Fenbrook Institution which is specifically designed to encourage and accommodate less restrictive communal living among inmates. This type of community depends upon low level of negative interactions among the inmates and if the behavioural patterns of a particular inmate change, the institution is justified in responding.
[20] The Respondent argues that the security classification and involuntary transfer were procedurally fair. The Applicant was given the opportunity to respond to both the proposed security reclassification and involuntary transfer.
[21] The Respondent recognizes that a change in security classification directly affects the Applicant's liberty interest. Because that interest is engaged, the concepts of procedural fairness apply; see Zarzour v. Canada (Procureur Général) (2000), 176 F.T.R. 252.
[22] The Respondent says that the Applicant was given the opportunity to present a reasonable defence to the decision to alter his security classification and exercise that right.
[23] The involuntary transfer, according to the Respondent is also subject to the duty to act fairly. The Respondent says this duty was met since the Notice of Transfer issued on February 19 provided reasons for the intended transfer and provided the opportunity to respond. The Applicant availed of that opportunity.
[24] Furthermore, the Respondent submits that all required steps in effecting the involuntary transfer of the Applicant were followed in accordance with the applicable directives, in this case Commissioner's Directive 540.
ANALYSIS
[25] The disposition of this application turns on the applicable standard of review. In Hay, supra, the Court identified that standard at page 27 as follows:
Whether or not it was made in good faith, the decision to transfer the applicant from the Saskatchewan Farm Institution back to the penitentiary was arbitrary and unfair. In light of the well founded notion of "a prison within a prison", transfers from open to close or closer custody can certainly engage the provisions of ss. 7 and 9 of the Canadian Charter of Rights and Freedoms. The decision to effect such an involuntary transfer, without any fault or misconduct on the part of the inmate, as it is abundantly clear was done in the applicant's case is the quintessence of unfairness and arbitrariness.
[26] On the basis of this authority, I accept the applicable standard of review is one of deference. The basis for judicial intervention in an administrative decision to reclassify the Applicant is limited to whether the decision was made in a demonstrably unfair manner.
[27] In Hay, supra, the Court found that the decision in question was made without a precipitating cause. However, in the present case the Applicant had been involved in an incident. That incident led to an investigation. The incident, not the investigation, is the root cause of the decision to reclassify him and to effect an involuntary transfer.
[28] In my opinion, the Applicant is arguing that the authorities assigned too much importance to the incident and the institutional response was too strong. That is the basis of his argument concerning the applicability of the maxim de minimis non curat lex, that is, the investigation into the incident did not lead to the imposition of discipline pursuant to the Act. He implies that the investigation did not support the serious allegation made against him and the incident involving the other inmate was not serious enough to justify the reclassification of his status.
[29] In my opinion, this argument invites the Court to engage in weighing the evidence before the prison authorities and to make its own decision. That role is beyond the Court in this application, having regard to the deferential standard of review enunciated in Hay, supra.
[30] The record shows an incident occurred. It is for the Respondent to assess the gravity of that incident and its effect upon the Applicant. It is not the role of the Court. The future impact of the re-classification by Fenbrook Institution upon the Applicant's parole eligibility is a matter to be considered by the Parole Board in the future and is not an issue currently before the Court.
[31] The application for judicial review is dismissed. In the exercise of my discretion, there will be no order as to costs.
ORDER
This application for judicial review is dismissed.
"E. Heneghan"
J.F.C.C.
OTTAWA, ONTARIO
November 19, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-443-01
STYLE OF CAUSE: Adam Hutton v. Michael Provan in his capacity as Warden of Fenbrook Inst.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 26, 2002
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MADAM JUSTICE HENEGHAN
DATED: November 19, 2002
APPEARANCES:
Mr. Derek Edwards FOR RESPONDENT
Mr. John Hill FOR APPLICANT
SOLICITORS OF RECORD:
Mr. Derek Edwards FOR RESPONDENT
Department of Justice
Toronto, Ontario
Mr. John Hill FOR APPLICANT
Barrister & Solicitor
Toronto, Ontario