Docket: T-1598-03
BETWEEN:
PERRY ACORN
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
[1] Mr. Acorn, an inmate, was involuntarily transferred from Warkworth Institution, a medium security facility, to Kingston Penitentiary, a maximum security facility. He unsuccessfully challenged the transfer through all levels of the grievance process. He asks that I quash the Commissioner's third level grievance decision dated July 25, 2003, and order that he be returned to Warkworth Institution.
[2] Mr. Acorn is a 23-year-old first-time federal offender serving a seven year sentence for armed robbery, forcible confinement and attempt to obstruct justice. On April 15, 2003, at Warkworth, he was involved in a fight with another inmate. There were two witnesses - an officer and another inmate - both of whom agree that the altercation was started by the other inmate who took a swing at Mr. Acorn but missed him. Mr. Acorn responded by pushing the inmate to the ground and kicking him in the head. As a result, he was charged with disciplinary offences - "refusing an order and fights/assaults/threats".
[3] After the incident, Mr. Acorn's case management team concluded that Mr. Acorn's behaviour had become more problematic and violent and recommended that his security rating be raised to maximum. A notice of involuntary transfer recommendation (the transfer recommendation), dated May 13, 2003, recommended a transfer to Kingston Penitentiary.
[4] The transfer recommendation lists a number of pre-fight incidents in relation to Mr. Acorn:
- February 27, 2003 He was found in another inmate's cell in possession of marijuana and a water pipe. He claimed ownership and was charged with
"possession/deals in contraband". The charges were outstanding at the time of the Commissioner's decision. On August 12, 2003, he was found not guilty of those charges;
- March 2, 2003 Mr. Acorn was found in his cell in possession of a "brew-like" substance in a peanut-butter jar. Due to contamination of the evidence, no disciplinary charge followed;
- April 1, 2003 He was placed in segregation overnight because of suspicion that he was involved in the institutional drug culture. The suspicion was based on Mr. Acorn's telephone discussions with his girlfriend regarding methods of introducing drugs into the institution. His girlfriend's visitor status and telephone access were revoked pending the investigation.
[5] The assessment for decision states, among other things, that throughout his custody at Warkworth Institution, Mr. Acorn was unable to maintain employment for a significant period of time without getting suspended, fired, or both.
[6] The information before the Commissioner on the third level grievance included Mr. Acorn's third level grievance, the transfer recommendation, the assessment for decision, the decision sheets regarding the increased security and involuntary transfer, the response to Mr. Acorn's rebuttal to the notice and the response to Mr. Acorn's second level grievance.
[7] The parties agree that a decision to transfer an inmate from one institution to another is essentially an administrative matter and that deference is owed in relation to it. Judicial intervention is not appropriate unless the decision is demonstrably unfair: Faulkner v. Canada (Solicitor General) (1992), 62 F.T.R. 19 (T.D.); Hay v. National Parole Board (1985), 13 Admin. L.R. 17 (F.C.T.D.); Hutton v. Fenbrook Institution (2002), 48 Admin. L.R. (3d) 167 (F.C.T.D.). The parties further agree that based on these principles, the applicable standard of review, in current terms, is patent unreasonableness.
[8] Mr. Acorn argues that the Commissioner's decision was based on erroneous and incorrect information and is therefore patently unreasonable. It was so capricious and unfair that it violates the principles of fundamental justice thereby triggering a breach of his section 7 Charter rights. The primary basis for this argument is that, on October 8, 2003, the independent chairperson dismissed the disciplinary charges (arising from the fight) against Mr. Acorn. He contends that it is demonstrably unfair that the transfer, which was effected because of the fight, be maintained when he has been absolved of liability.
[9] Mr. Acorn submits that the description of the fight contained in the transfer recommendation was contradicted at the disciplinary hearing by the officer who witnessed the altercation. Additionally, the independent chairperson noted that there was no evidence before him to indicate that Mr. Acorn had continued his attack after being ordered to stop. He alleges that the Commissioner's decision was made without regard to the evidence and asserts that the Commissioner was under a duty to investigate. Specifically, it is contended that the Commissioner ought to have interviewed the inmate eye-witness.
[10] With respect, I am unable to accept Mr. Acorn's position. The relevant question, in reviewing an inmate transfer, is whether the information available to the correctional service justifies a transfer: Cartier v. Canada (1998), 165 F.T.R. 209 (T.D.). What is required is a reasonable belief that the prisoner should be moved for the sake of the orderly and proper administration of the institution: Camphaug v. Canada (1990), 34 F.T.R. 165 (T.D.).
[11] Mr. Acorn's argument is fundamentally flawed in two respects. First, it is premised on the basis that the Commissioner's decision was predicated solely on the altercation incident. That is not so. The decision states that "the incident of 2003-04-15 clearly identifies that you cannot be managed at a medium security facility", but it also states that the decision is based on "the information previously presented to you" as well as the Commissioner's Directive 006, Classification of Institutions.
[12] The information "previously presented" includes the transfer recommendation and the assessment for decision, both of which detail, among other things, the previously noted incidents that occurred between February 27th and April 15th, 2003. The assessment for decision refers to Mr. Acorn's employment difficulties. The "previously presented" information also includes the response to the second level grievance where it is noted that the victim was left unconscious, required outside medical attention and sustained injury that included memory loss, stuttering and slurred speech.
[13] Second, Mr. Acorn, understandably, places much significance on the result of the disciplinary hearing. The difficulty is that the hearing occurred more than two months after the Commissioner's decision. The Commissioner's determination was made on the basis of the information in existence at that time. The court's role on judicial review is to review the impugned decision on the basis of the record that was before the decision-maker. It is not for the court to speculate as to why Mr. Acorn was found not guilty of the disciplinary charges. Mr. Acorn insists that his exoneration was largely due to the evidence of the officer who witnessed the incident. However, Mr. Acorn's rendition of the officer's evidence (contained in his affidavit) is contradicted by the evidence of the officer in question whose affidavit was sworn in response to that of Mr. Acorn.
[14] Regarding the argument that the Commissioner ought to have investigated the matter and should have spoken with the inmate witness, no authority is offered in support of that position. There is authority to the contrary. In Camphaug, supra, Mr. Justice Strayer, then of the Trial Division, commented that it is not for the Commissioner to retry all allegations against an inmate on the basis of detailed evidence. It is sufficient to form a reasonable opinion that the inmate should be moved after the inmate has an adequate opportunity to comment on that issue. That opportunity was provided to Mr. Acorn and he availed himself of it.
[15] With respect to the allegation that the Commissioner ignored relevant evidence, when pressed to identify what evidence was ignored, Mr. Acorn's counsel could point to none other than that of Mr. Acorn. In effect, counsel is asking that I re-weigh the evidence and substitute my opinion for that of the Commissioner. That is not my function. To the extent that it is suggested that the Commissioner ought not to have considered incidents for which no disciplinary charges had been laid, I need not address that question for there was ample information before the Commissioner (excluding incidents for which no charges were laid) to support the involuntary transfer and thus, to deny Mr. Acorn's grievance.
[16] The application will be dismissed but, in the exercise of my discretion, I decline to award costs.
ORDER
THIS COURT ORDERS THAT the application for judicial review is dismissed. No costs are awarded.
< < Carolyn Layden-Stevenson > >
Judge, FC
Fredericton, New Brunswick
October 18, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1598-03
STYLE OF CAUSE: PERRY ACORN v. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Kingston, Ontario
DATE OF HEARING: October 12, 2004
REASONS FOR ORDER AND ORDER : LAYDEN-STEVENSON J.
APPEARANCES:
Mr. Philip Casey FOR APPLICANT
Mr. Alex Kaufman FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Philip Casey FOR APPLICANT
Barrister & Solicitor
Kingston, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Ottawa, Ontario