PENITENTIARIES
Judicial review of Commissioner of Correctional Service of Canada’s (CSC) decision denying applicant’s grievance re: placement in administrative segregation at Fenbrook Institution (FI)—Applicant placed in administrative segregation on grounds actual or intended acts jeopardized security of institution or persons, that continued presence in general inmate population would prolong risk—Prison authorities receiving information alleging applicant involved in drug subculture at FI; directly, indirectly intimidated other inmates; periodically carried weapon on person—Involuntary Segregation Placement Report (Placement Report) outlining grounds, rationale for administrative segregation decision— Segregation Review Board (SRB) conducted review of applicant’s placement in segregation in accordance with Corrections and Conditional Release Regulations, s. 21(2)(a) —Applicant attended hearing, submitted rebuttal denying allegations—On SRB’s recommendation, applicant kept in administrative segregation pending completion of Security Intelligence Officer’s (SIO) investigation—Applicant provided with written reasons for SRB’s recommendation— Later, substance of allegations told to him in detail but not provided with Security Intelligence Reports, Record of Intercepted Telephone Communications (involving applicant using false PIN number to avoid detection) to protect security of Institution, sources of information—Applicant grieved segregation decision through CSC’s internal resolution process—Grievance denied at second level by Ontario Regional Deputy Commissioner—CSC’s third‑level decision affirmed Deputy Commissioner’s rejection of applicant’s grievance—Prison authorities having duty of procedural fairness when exercising authority to place inmates in involuntary administrative segregation—Review standard of correctness applicable to duty of fairness—CSC not failing to disclose sufficient particulars of allegations to enable applicant to know case to be met, make meaningful reply—Fairness principle requiring that individual be apprised of case to be met, be afforded opportunity to meaningfully answer allegations faced—Fairness also depending on appreciation of context of particular statute, rights affected—Fairness principle in context of decision to administratively segregate inmate requiring that inmate placed in segregation be told grounds for decision, facts underlying grounds—Requiring that relevant justification under Regulations, s. 31(3) be disclosed, factual underpinning of grounds be identified— Disclosure requirement mandated by fairness principle in disciplinary cases greater than in institutional administrative cases—Fairness satisfied once inmate informed information exists in relation to specific ground cited for segregation— Applicant repeatedly informed that ground for segregation contained in Act, s. 31(3)(i), (ii) (actual or intended acts jeopardized security of institution or persons)—Information provided satisfied requirement to disclose ground of segregation to applicant—Applicant further given synopsis detailing existence of information relating to issue of security of institution—Particulars of allegations described in Placement Report—Each allegation related directly to security of institution, of other inmates—Disclosure properly informed applicant of case to be met—CSC Security Officer apprised applicant of details of allegations, including use of fake PIN number to place telephone calls, use of bank account to do suspicious transactions, etc.—Prison authorities not required to disclose to applicant that some of information obtained by interception of telephone communications—Once nature of allegations relating to ground of segregation identified, burden to disclose discharged—No further obligation to disclose specific sources of information—Sufficient disclosure of grounds of confinement, information underlying grounds to allow applicant to properly respond with meaningful submissions—Standard of review applicable to CSC’s third‑ level decision to uphold applicant’s administrative segregation —Application of pragmatic, functional approach—(1) Act neither containing privative clause insulating Commissioner’s decisions made pursuant to grievance process, nor providing route of appeal from Commissioner’s decision—First factor therefore neutral—(2) Commissioner or delegate had obvious expertise relating to CSC, institutional administration, including administrative segregation—Factor favouring curial deference to Commissioner’s decisions relating to internal prison management, including inmate segregation grievances —(3) Overall objective of Act to contribute to maintenance of just, peaceful, safe society—Act recognizing CSC’s necessity to oversee own internal administrative matters—Act, s. 31 outlining purpose of administrative segregation to separate inmate from general institutional population on basis of one of grounds enumerated in s. 31(3)—Each ground relating to security of inmate, other persons, institution itself—Purpose of legislation favouring greater deference to Commissioner’s decision—(4) Nature of question to be addressed— Commissioner’s decision turning on determination of fact— CSC’s third‑level decision to be assessed against standard of patent unreasonableness—Decision‑maker arrived at conclusion having regard to grounds justifying involuntary segregation, information held by CSC in relation to ground, applicant’s denials of allegations against him, written reasons of second level disposition—Based on allegations specified in Placement Report, further particulars from SIO’s investigation cited in Deputy Commissioner’s reasons for decision, institutional head had reasonable grounds to believe applicant had jeopardized security of institution, would continue to do so if allowed to remain in general inmate population— Alternatives to segregation contemplated by institutional head from outset rejected—Confinement of applicant to cell not possible given institutional structure—Rejection of alterna-tives to administrative segregation reasonable—CSC’s third‑level decision to uphold Deputy Commissioner’s denial of applicant’s grievance not patently unreasonable— Application dismissed—Correctional and Conditional Release Act, S.C. 1992, c. 20, ss. 3, 31—Correctional and Conditional Release Regulations, SOR/92‑620, ss. 21, 94.
MacDonald v. Canada (T‑330‑05, 2005 FC 1326, Kelen J., order dated 29/9/05, 29 pp.)