Ottawa, Ontario, April 10, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR JUDGMENT AND JUDGMENT
[1] Kevin Brown is a federal inmate serving a 25 year sentence for a variety of serious offenses. In April of 2003, an inmate, who shall be referred to in these reasons as JB, accused Mr. Brown of having assaulted him. Although Mr. Brown was charged criminally with assault, these charges were subsequently withdrawn. However, information relating to the allegations of assault remains on Mr. Brown's institutional "Preventative Security" and "Offender Management System" files, despite his repeated attempts to have it removed.
[2] By this application for judicial review, Mr. Brown seeks to review a third level grievance decision refusing to remove all information relating to the allegations of assault from his file. For the reasons that follow, I am satisfied that there are portions of the "Security Intelligence Report" relating to this matter that are not accurate, up to date and complete. Accordingly, this application for judicial review will be allowed, and the decision of the Commissioner's delegate set aside, insofar as it relates to specific portions of the document in question.
Background
[3] In the Spring of 2003, Mr. Brown was incarcerated in Warkworth Institution. On April 2, 2003, JB accused Mr. Brown of having assaulted him with a knife. JB alleged that the assault took place just before noon that day.
[4] Mr. Brown says that he was in a meeting with several Correctional Service of Canada personnel, including the Warden of Warkworth Institution, between 11 am and 12 noon on the day in question. The Warden subsequently confirmed Mr. Brown's presence at the meeting, and in August of 2003, the criminal charges that had been laid against Mr. Brown were withdrawn by the Crown Attorney charged with responsibility for the case, who evidently felt that in light of all of the available information, including Mr. Brown's alibi, there was no longer a reasonable prospect of conviction.
[5] Information regarding this matter was summarized in a Security Intelligence Report, copies of which remain on Mr. Brown's institutional files.
[6] Although he had not seen the Security Intelligence Report itself, Mr. Brown was nevertheless of the view that the information contained in the Report was not accurate, up to date or complete, and that it should therefore be removed from his file. To this end, he filed a series of grievances, which culminated in a March 18, 2005 decision rendered by a Commissioner's delegate. The Commissioner's delegate allowed Mr. Brown's grievance, in part.
[7] The Commissioner's delegate agreed with Mr. Brown that as the information on his file relating to the allegations of assault could not be validated, it should not have been used in determining his Offender Security Level. Thus, to this extent, Mr. Brown's grievance was allowed, and a memo was added to his file to this effect.
[8] However, Mr. Brown's request that the information relating to the allegations of assault be removed from his file altogether was rejected. In this regard, the Commissioner's delegate noted that the Correctional Service of Canada has the right to keep preventative security information on file, which would include accusations made by one inmate against another.
[9] The Commissioner's delegate did, however, direct that a notation be added to Mr. Brown's file, reflecting his request to have the file amended.
[10] Mr. Brown now seeks judicial review of this decision, asserting that the Correctional Service of Canada failed to take reasonable steps to ensure that JB's allegation that he had been assaulted by Mr. Brown was accurate, up to date and complete. Having failed to do so, Mr. Brown says the decision of the Commissioner's delegate was unreasonable, and should be set aside.
Procedural History of this Application
[11] Before addressing the submissions of each of the parties in this case, reference should be made to the way in which this hearing unfolded. The Security Intelligence Report itself was not included in either party's record, and was thus not before the Court when the application was heard. As a result, the parties' submissions as to what was and was not in the Report were made in something of a vacuum.
[12] As a result of concerns expressed by the Court as to the ability of the Court to address the issues raised in the application without seeing the Report itself, a copy of the Report was produced by the respondent after the hearing. Each party was given an opportunity to make further submissions in writing, addressing the specific wording of the report. Counsel for Mr. Brown chose to avail himself of that opportunity. The respondent did not.
Standard of Review
[13] The parties are in agreement that the standard of review to be applied to decisions of the type in issue here is that of reasonableness simpliciter. Both rely on the decision of this Court in Tehrankari v. Canada, [2000] F.C.J. No. 495 (F.C.) as authority for this proposition.
[14] I have reviewed the decision in Tehrankari, and in particular have considered the pragmatic and functional analysis carried out by Justice Lemieux in that case leading to his conclusion that decisions of the sort in issue here are to be reviewed against the standard of reasonableness. I am satisfied that, as was the case in Tehrankari, this case involves the application of provisions of the Corrections and Conditional Release Act to a specific set of facts, and that in these circumstances, the decision of the commissioner's delegate should be reviewed against the standard of reasonableness.
[15] In coming to this conclusion, I adopt Justice Lemieux's pragmatic and functional analysis as my own.
The Parties' Positions
[16] The Security Intelligence Report addresses the allegations of assault made against Mr. Brown, and, in addition, addresses Mr. Brown's alleged involvement in thefts from the prison canteen. Mr. Brown's submissions in this Court were confined to the alleged inaccuracies in the report insofar as it related to the allegations of assault.
[17] In this regard, Mr. Brown relies on subsection 24(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which provides that:
| 24. (1) The Service shall take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible.
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24. (1) Le Service est tenu de veiller, dans la mesure du possible, à ce que les renseignements qu'il utilise concernant les délinquants soient à jour, exacts et complets.
|
[18] Mr. Brown says that there is no evidence to suggest that the Correctional Service of Canada did anything to investigate the veracity of JB's claim that he had been assaulted by Mr. Brown, nor did it do anything to determine whether the information regarding JB's allegations was as accurate, up to date and complete as possible.
[19] In support of his contention that the information on file is not accurate, Mr. Brown swears that he did not assault JB, and points to the unassailability of his main alibi witness.
[20] In these circumstances, Mr. Brown says, any information relating to JB's allegations should be removed from his file.
[21] Mr. Brown also asserts that if the disputed information is not removed from his file, it will be available for review by the National Parole Board at his future parole hearing or hearings, and will potentially have a negative impact on his chances for parole. In support of this contention, Mr. Brown deposes that his understanding is that the Parole Board assumes that if information regarding an inmate is in the inmate's file, it is generally accurate, reliable and persuasive.
[22] At the hearing of this application, counsel for the respondent contended that the Security Intelligence Report did not state as a fact that Mr. Brown had assaulted JB, but instead simply recorded the fact that such an allegation had been made.
[23] Moreover, the respondent contends that there are legitimate security reasons why the Correctional Service of Canada would need to keep track of allegations made by one inmate against another.
[24] As was noted earlier, the Security Intelligence Report was not before the Court when the parties' oral submissions were made. Counsel for the respondent conceded, however, that if the Report stated, as a matter of fact, that Mr. Brown had assaulted JB, that would indeed be problematic.
Analysis
[25] A distinction has to be drawn between an allegation that a particular event has taken place, and an assertion that the event has, in fact, taken place.
[26] To a large extent, what is recorded in the Security Intelligence Report on Mr. Brown's file is that the allegation was made by JB that Mr. Brown had assaulted him, that criminal charges were laid, and that these charges were subsequently dropped. That an allegation was made against Mr. Brown by JB, resulting in criminal charges being laid is a historical fact, and the statements in Mr. Brown's file to this effect are entirely accurate, up to date and complete.
[27] However, the Security Intelligence Report goes further. The "Summary" section of the Report consists of six paragraphs, the first of which records the author's belief that the assault actually took place as alleged by JB, and that JB had made an error as to the timing of the assault.. The third paragraph in this section refers to the assault as something that had actually occurred, and not merely something that was alleged to have occurred.
[28] In this regard, the facts of this case are similar to those of the Tehrankari case, previously cited. In Tehrankari, the substance of the allegations in question were stated as facts, with the result that the information in issue did not meet the standard required by subsection 24(1) of the Act.
[29] I agree with the respondent that even if the allegations made by JB were indeed totally spurious, there are very good reasons why the Correctional Service of Canada may quite properly want to keep a record on Mr. Brown's file of the fact that the allegations had been made against him.
[30] Indeed, Mr. Brown himself concedes that the fact that an allegation was made against him by JB, with the resultant potential for ongoing animus between the two men, might be very important information for representatives of the Correctional Service to have when making decisions, for example, as to who should be assigned to share Mr. Brown's cell. What he takes issue with is having this information recorded on his institutional files.
[31] I do not accept Mr. Brown's contention that this type of information should not be placed on his institutional files. Not only did he not offer any support for his contention, but it seems to me that having this sort of information readily available is especially important where, as in this case, Mr. Brown is serving a lengthy sentence, and may be required to deal with a variety of Correctional Service personnel over the life of his sentence in a number of different institutions.
[32] As a consequence, I am satisfied that the reasons of the Commissioner's delegate, insofar as they relate to the bulk of the information contained in the Security Intelligence Report, are entirely reasonable, and that this information can properly remain on Mr. Brown's files.
[33] The same cannot be said of the first and third paragraph of the Summary section of the Report, which make the positive assertion that Mr. Brown did in fact assault JB. The decision of the Commissioner's delegate is premised on the assertion that the Report does not say that Mr. Brown did in fact assault JB. In light of the wording of the Summary portion of the Report, this conclusion cannot stand up to a somewhat probing examination, and is unreasonable.
[34] Indeed, as counsel for the respondent himself conceded in oral argument, that to the extent that the allegations of assault may be referred to in the Report as matters of fact, the Report would not be accurate.
[35] Finally, with respect to Mr. Brown's concerns regarding the potential future use that the National Parole Board may make of the information on his file, it must be observed that, in acknowledging that the allegation of assault could not be verified and should thus not have been considered in assessing Mr. Brown's Offender Security Level, the Correctional Service of Canada has implicitly recognized that the allegations made by JB are not reliable.
[36] Moreover, there is a duty on the National Parole Board to act fairly, and to base its decisions on reliable information: Canada v. Zarzour, 153 C.C.C. (3d) 284, at ¶ 27. In the event that at some point in the future, Mr. Brown forms the view that the Parole Board has made improper use of the information currently on his file in denying him parole, it would be open to him to seek judicial review of any negative decision that he might receive.
Conclusions
[37] For these reasons, this application for judicial review is allowed, in part. The respondent is directed to remove the first and third paragraph of Summary section of the Security Intelligence Report from Mr. Brown's "Preventative Security" and "Offender Management System" files. I further direct that a copy of this decision be place on these same files.
[38] In all of the circumstances, I am satisfied that Mr. Brown should have his costs.
JUDGMENT
THIS COURT ORDERS that:
1. This application for judicial review is allowed, with costs.
2. The Correctional Service of Canada is directed to remove the first and third paragraph of Summary section of the Security Intelligence Report in issue, and to place a copy of this decision on Mr. Brown's "Preventative Security" and "Offender Management System" files.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-942-05
STYLE OF CAUSE: KEVIN MASON BROWN v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT
AND JUDGMENT: Mactavish J.
DATED: April 10, 2006
APPEARANCES:
Mr. Brian A. Callender FOR THE APPLICANT
Mr. Alexandre Kaufman FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Brian A. Callender
Barrister and Solicitor
Kingston, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT