Judgments

Decision Information

Decision Content

T-2410-87
Vincenzo DeMaria (Applicant) v.
Regional Transfer Board and Mr. Tom Epp, Warden of Joyceville Institution (Respondents)
INDEXED AS: DEMARIA V. CANADA (REGIONAL TRANSFER BOARD)
Trial Division, Reed J.—Toronto, January 11; Ottawa, January 29, 1988.
Penitentiaries — Telephone conversation in which inmate advising office of Member of Parliament as to consequences if convicts' requests not met used as basis for transfer to higher security penal institution — Written communications between inmates and M.P.'s privileged — Arbitrary exercise of administrative authority — Choice of maximum security institution arbitrary in light of inmate's personal circum stances, lack of substance to charge — Doctrine of curial deference as to prison management not preventing judicial review of arbitrary decision.
Constitutional law — Charter of Rights — Life, liberty and security — Charter, s. 7 guarantee applicable to involuntary transfers of inmates to higher security institutions — S. 7 requiring procedural fairness and also decisions not be arbi trary (without factual basis).
Judicial review — Prerogative writs — Certiorari — Application to quash warden's decision to transfer inmate to higher security penal institution — Transfer decision, based on telephone conversation between inmate and Member of Parlia ment, arbitrary, as no factual basis supporting it — Applica tion allowed.
Barristers and solicitors Duty of counsel appearing
before Court to present all relevant case law, including cases contrary to position.
This was a motion for certiorari to quash a decision of the warden to transfer an inmate from a medium security (Joyce - ville) to a maximum security (Millhaven) institution. This decision was confirmed by the Regional Transfer Board. The applicant also sought mandamus to require the warden to transfer him back to Joyceville, and to have a Penitentiary Service Regulations charge quashed. The transfer and the charge were based on a telephone conversation between the applicant, who was Chairman of the Inmate Committee, and the executive assistant to his Member of Parliament, the offi cial Opposition critic of the Solicitor General. A corrections officer reported that the inmate said that if inmates' requests were not met "something heavy was going to go down — maybe this weekend." The reasons given for the transfer were that the inmate had made inciteful remarks and had failed to negotiate in good faith regarding the normalization routine following recent riots at Joyceville. The warden thought it inappropriate for the applicant to discuss the agenda of an
upcoming meeting with someone outside the institution, and to indicate that there was tension inside. There was no assertion that the applicant was involved in stirring up trouble at the institution. The Offence Report, leading to a charge under the Regulations, was a watered down version of the Unusual Occurrence Report. The applicant contended that the decisions in question constituted an arbitrary exercise of administrative authority, and therefore were without regard to the principles of fundamental justice.
Held, the application for certiorari should be allowed; the application for mandamus and to have the charge against the inmate quashed should be denied.
It is well established that the Charter, section 7 applies to decisions concerning the involuntary transfer of an inmate to a higher security penal institution. Both the Federal Court of Appeal and the Supreme Court of Canada have interpreted section 7 as requiring that there be not only procedural fairness in the narrow sense, but also that decisions not be made in an unreasonable or arbitrary manner. Setting aside a decision of an administrative body on the ground that it was arbitrary, or unreasonable as having been made without evidence to support it, is one of the traditional grounds of judicial review. As such it is within the concept of "fundamental justice".
There was no evidence that a transfer was necessary on an "emergency basis". The applicant was not suspected of plan ning a disturbance within the institution. It is repugnant that the communication of information about the situation inside a prison to one's Member of Parliament was considered an inciteful activity. A Penitentiary Service directive treats written communications between inmates and Members of Parliament as privileged. The same policy reasons should apply to tele phone communications. Basing a decision to transfer an inmate to a higher security institution on such a communication was an arbitrary exercise of administrative authority. The choice of Millhaven was arbitrary in the extreme, in that the inmate's family lived in Toronto, and their visits were a positive influ ence on his life. Warkworth was a medium security institution closer to Toronto than either Joyceville or Millhaven. Nor was there evidence that the applicant had been negotiating in bad faith, in that he was never told to keep information concerning the proposed negotiations with the institution.
The doctrine of curial deference — which gives administra tive decision-makers, particularly those required to make impromptu decisions relating to the conduct of prisons, "the right to be wrong" — does not prevent judicial review of an arbitrary decision. In any event, the Board's decision confirm ing the transfer was not made "in the heat of the moment" and will fall with the warden's decision.
The charge of an offence against the Regulations would not be quashed, as argument as to the Court's authority to grant the relief sought was inadequate.
Neither of the respondents had authority to move the appli cant from Millhaven, so the application for mandamus must be denied. However, a failure to transfer the applicant to a medium security institution would be a breach of the order for certiorari.
Counsel were reminded that as officers of the Court, they have a duty to bring forward all relevant case law, including cases contrary to their position.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 7.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 11. Penitentiary Service Regulations, C.R.C., c. 1251, s. 39(k).
CASES JUDICIALLY CONSIDERED
APPLIED:
Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486: Howard v. Stony Mountain Institution, [1984] 2 F.C. 642 (C.A.); Re Hay and National Parole Board et al. (1985), 21 C.C.C. (3d) 408 (F.C.T.D.); Collin v. Lussier, [1983] 1 F.C. 218; 6 C.R.R. 89 (T.D.).
REFERRED TO:
Jacobson v. Canada (Regional Transfer Board (Pacific)) T-2307-86, judgment dated April 14, 1987, F.C.T.D., not yet reported; Jamieson v. Commissioner of Corrections (1986), 2 F.T.R. 146; 51 C.R. (3d) 155 (T.D.).
COUNSEL:
Dianne L. Martin for applicant. Michael Duffy for respondents.
SOLICITORS:
Dianne L. Martin, Toronto, for applicant. Deputy Attorney General of Canada for respondents.
The following are the reasons for order ren dered in English by
REED J.: The applicant brings a motion for a writ of certiorari to quash a decision made by the Warden of Joyceville Institution and the confirma tion of that decision by the Regional Transfer Board.
The decision challenged was made on October 22, 1987. It ordered the applicant transferred from Joyceville, a medium security correctional institu tion, to Millhaven, a maximum security correc tional institution. The applicant also seeks a writ of mandamus requiring the warden to transfer him back to Joyceville or to some other medium secu rity institution.
In addition, the applicant seeks to have a charge quashed. The charge, which has not yet been heard, is that he committed a "serious or flagrant" institutional offence contrary to paragraph 39(k) of the Penitentiary Service Regulations, C.R.C., c. 1251.
The transfer from Joyceville to Millhaven, and the charge that a serious or flagrant institutional offence had occurred, arose as a result of certain conversations the applicant had with Mr. Nun- ziata's office on October 21, 1987. Mr. Nunziata is both the applicant's Member of Parliament and the Official Opposition critic of the Solicitor- General.
The applicant contends that the decision to transfer him and the decision by the Regional Transfer Board confirming that decision constitut ed an arbitrary exercise of administrative author ity and, therefore, was taken without regard to the principles of fundamental justice. Section 7 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)] requires that:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
It is now well established that this section applies to decisions taken with respect to the involuntary transfer of an inmate from one penal institution to another (at least when that transfer involves the move from a lower security to a higher security institution). See: Re Hay and National Parole Board et al. (1985), 21 C.C.C. (3d) 408 (F.C.T.D.); Jacobson v. Canada (Regional Trans fer Board (Pacific)), judgment dated April 14, 1987, Federal Court, Trial Division, T-2307-86, not yet reported; Jamieson v. Commissioner of Corrections (1986), 2 F.T.R. 146; 51 C.R. (3d) 155 (T.D.).
In the Hay case, Mr. Justice Muldoon wrote, at page 415:
Ordinarily and quite properly the courts are reluctant to interfere with the penitentiary authorities' administrative deci sions to transfer inmates from one institution to another and from one security setting to another. So long as those adminis trative decisions are not demonstrably unfair, they ought prop erly to be left to those who have the heavy responsibility of preserving good order and discipline among the prison population.
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.
Also, in Collin v. Lussier, [1983] 1 F.C. 218; 6 C.R.R. 89 (T.D.), Mr. Justice Decary, at pages 229 F.C.; 97 C.R.R. said:
The fact of transferring an inmate from an institution with a lower security level to one with a higher level in fact constitutes a punishment, for it is a reduction in his freedom.
The applicant, in this case, argues that the transfer decision and its confirmation were made arbitrarily and without regard to the rules of fundamental justice because there are no facts which can reasonably support the decisions which were taken.
The facts which gave rise to the decision to transfer the applicant are as follows. In August, 1987, there had been serious disturbances at Joyceville resulting in extensive property damage. Consequently, stringent controls were imposed on the prison population. The applicant, Vincenzo James DeMaria, was elected Chairman of the Inmate Committee at Joyceville on October 8, 1987. Thomas Epp became Warden of Joyceville on October 13, 1987. For nine years previous to that date he had worked in the national headquar ters of the Correctional Services of Canada, a position which involved little direct contact with inmates. The two men met on Monday, October 19, 1987; it was agreed the warden would meet with the Inmate Committee on Friday, October 23, 1987, to discuss an agenda which had previous ly been received by him. The agenda related to the lessening of the restrictions which had been placed
on the inmates as a result of the riots of the previous August.
On October 21, 1987, Mr. DeMaria, the appli cant, spoke on the telephone to Mr. Nunziata's executive assistant, a Mr. David Pratt. The correc tions officer who was in the room at the time of the telephone conversation reported this to Warden Epp. The report stated that the applicant had discussed the agenda of the upcoming meeting with Mr. Pratt and had said:
... if some of their requests weren't met that "something heavy was going to go down—maybe this weekend". And if something happened it wasn't the inmates' fault—it was THEIRS! He said committee was trying to diffuse (sic) situation but things were pretty hot right now.
The warden prepared an Emergency Involun tary Transfer Notice to transfer the inmate from Joyceville to Millhaven the next day. The reasons given for the transfer were:
1. Inciteful remarks made to M.P.'s office threatening incidents at Joyceville should inmate demands not be met.
2. Failure to negotiate in good faith with the warden on serious matters regarding the normalization routine.
As I understand the respondents' position with respect to the second reason, it was originally asserted that Mr. DeMaria had agreed not to discuss the agenda with anyone outside the institu tion and thus, the warden viewed the discussion with Mr. Nunziata's office as a breach of that agreement. However, on cross-examination on his affidavit, the warden conceded that no such agree ment had existed. It is clear that the reason for the transfer was that the warden thought it inappro priate for Mr. DeMaria to discuss the agenda with Mr. Nunziata (or his executive assistant) and par ticularly to indicate that there was a high degree of tension in the institution. The warden circulated a notice to the prison population the following day which said, in part:
Some eight short days ago, I assumed the position of Warden of this Institution. One of my first priorities at that time was to familiarize myself with the institution, its policies and routines. I also met with the Inmate Committee on Monday, 1987-10-19 on an informal basis to get to know the individual committee members and to prepare for a more formal meeting, complete with agenda, which was to be held on Friday, 1987-10-23. The members of the Inmate Committee agreed to this arrangement. Unfortunately, Inmate Committee Chairman, DeMaria, chose not to respect this agreement and, in fact, aired the concerns of
the Committee, which we are actively studying, to persons outside the Service. Such conduct on the part of an Inmate Committee Chairman is totally unacceptable to me. As a result, I have taken steps to relieve him of his position as Chairman and am transferring him to another institution. [Underlining added.]
With respect to the first ground given for the transfer, no assertion is made that the applicant intended to or was involved in any stirring up to trouble at the institution. The warden took no action after the report of the telephone conversa tion to investigate as to whether or not, in fact, there was an incipient disturbance being planned at the institution. On cross-examination he stated that given the extensive restrictions, which at the time were imposed on the inmates, it was unlikely that any such disturbance could occur. It is clear the Warden was annoyed that Mr. DeMaria was talking to Mr. Nunziata's office. He referred to it as "a tawdry tactic".
With respect to the allegation that the remarks made by Mr. DeMaria were inciteful, Mr. Pratt signed an affidavit stating:
I have come to know the Applicant and his wife as Constitu ents through my employment as Mr. Nunziata's Executive Assistant. I have corresponded and had telephone communica tion with the applicant's wife on many occasions over the years and have corresponded with the applicant on many occasions over the years, as has Mr. Nunziata. I had telephone communi cation with the applicant on October 20th, 1987 for the first time. This communication has always related to matters of concern to the Applicant or his wife which come within the ambit of a member of Parliament's duty to his constituents and on a number of occasions have included advice.
On or about the 20th and 21st of October, 1987 in the course of my duties as Executive Assistant to Mr. John Nunziata, I spoke on the telephone with the applicant at Joyceville Institution.
Without breaching the confidentiality of my telephone con versations with the Applicant herein, I am prepared to swear unequivocally that: 1. The conversations in question were nei ther inciteful nor intimidative; 2. The applicant in these conver sations sought the advice and assistance of his member of parliament, and made no demands or threats; 3. The conversa tions were intended to be private and confidential. With the exception of discussing them with Mr. Nunziata in the normal course, I did not reveal the contents of these conversations with anyone until the matter became public knowledge through the media. [the media became aware of the phone conversation as a result of Mr. DeMaria's transfer to Millhaven] 4. On behalf of Mr. Nunziata I gave the applicant advice which I verily believe he accepted. That advice could in no way prejudice the security or good order of the institution. If ordered by this Honourable Court I am prepared to reveal the full content of these conver sations to the best of my ability.
The corrections officer who wrote up the Unusu al Occurrence Report, also wrote out the Offence Report which led to Mr. DeMaria being charged with an act "calculated to prejudice the discipline or good order of the institution", contrary to para graph 39(k) of the Penitentiary Service Regula tions. The text of that report states:
... during a phone conversation with M.P. Nunciatta's [sic] office, inmate DeMaria indicated that if some of the inmates' requests were not met that something might happen. The committee had tried to diffuse the situation, but things were pretty hot and if something did happen, it wouldn't be the inmates' fault.
It is to be noted that the tone of this description is much milder than that contained in the Unusual Occurrence Report. Also, there is no reference to something being about to happen "this weekend". When the warden made enquiries about the differ ence in the wording, he was given an explanation by the officer's supervisor. This explanation appears in the warden's answers during cross- examination:
A. She was, she was concerned about, about the ramifica tions of the transfer and the subsequent case in inmate court and she was personally somewhat reluctant to go on record in court as in independent chairperson court as having said that, so she ....
Q. So she was concerned about the accuracy of her recollec tion of the conversation?
A. No she was concerned about the, no, I asked her about that or I asked that question. I said, was the original statement true? Yes. Well, was it watered down then, which is really what's happened? And ....
Q. Yes?
A. ... There was some visibility that she was acquiring as having heard this call and reporting on it and subsequently writing the Offence Report. She felt personally being a little bit uneasy about the visibility that it was generating for her, so she concluded by toning down the wording in that Offence Report.
During the cross-examination, on being asked as to how one could conclude that remarks made over the telephone to a Member of Parliament would be inciteful and constitute a threat to the security of the institution, the warden indicated that this con clusion arose because the comments were made to Mr. Nunziata's office. His concern was that such discussions would lead to the information being disclosed to the press. The press would then report that information in the newspapers. Inmates
receive and read newspapers. Thus, the informa tion would be circulated back within the prison and have a "destabilizing" effect.
The applicant's position is that he was entitled to consult with Mr. Nunziata, who may be the opposition critic for the Solicitor General, but, who is also Mr. DeMaria's Member of Parliament. It is argued that the conversations with Mr. Pratt were of the same privileged character as those with Mr. Nunziata would be, because Mr. Pratt was really acting as a stand-in for Mr. Nunziata. The appli cant takes the position that his communications with his Member of Parliament are privileged.
I accept that Mr. Pratt should be treated as a stand-in for Mr. Nunziata, in this case, and that whatever privilege attaches to communications be tween Mr. DeMaria and Mr. Nunziata would also attach to those with Mr. Pratt.
It is clear that had the communications with Mr. Nunziata's office been by letter they would have been treated as privileged by the Correctional Services officers. Commissioner's Directive No. 085 provides that correspondence with Members of Parliament will be privileged. The Directive is silent, however, as to the status of such communi cation if it takes place by telephone. Thus, the applicant cannot rely on Directive No. 085 as a source of claim for privilege.
The applicant was given notice of the reasons for his transfer and an opportunity to respond thereto. Thus, the fact situation in this case raises more than just procedural fairness in the narrow sense of that concept. Both the Federal Court of Appeal and the Supreme Court of Canada, in my view, have interpreted section 7 of the Canadian Charter of Rights and Freedoms as requiring that there be not only procedural fairness, in the narrow sense, but also that decisions not be made in an unreasonable or arbitrary manner. In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, Mr. Justice Lamer, speaking for the majority of the Court, said at pages 512-513:
We should not be surprised to find that many of the princi ples of fundamental justice are procedural in nature. Our common law has largely been a law of remedies and procedures and, as Frankfurter J. wrote in McNabb v. United States 318 U.S. 332 (1942), at p. 347, "the history of liberty has largely
been the history of observance of procedural safeguards". This is not to say, however, that the principles of fundamental justice are limited solely to procedural guarantees.
And in Howard v. Stony Mountain Institution, [1984] 2 F.C. 642, at page 661, the Federal Court of appeal (per Thurlow C.J.) indicated that even in a procedural sense, what is required by section 7 would:
... no doubt vary with the particular situation and the nature of the particular case. An unbiased tribunal, knowledge by the person whose life, liberty or security is in jeopardy of the case to be answered, a fair opportunity to answer and a decision reached on the basis of the material in support of the case and the answer made to it are features of such a procedure. [Underlining added.]
Setting aside a decision of an administrative body on the ground that it is arbitrary, or unreasonable as having been made without evidence to support it is, of course, one of the traditional grounds of judicial review. As such, it is within the concept of "fundamental justice".
There are a number of reasons why I am of the view that the applicant must succeed in this case. In the first place, there is absolutely no evidence that a transfer was necessary on an "emergency basis". There is no suggestion by the prison offi cials that they thought the applicant was causing or planning to cause disturbances within the insti tution. It is repugnant to think that the communi cation of information about the situation inside a prison to one's Member of Parliament could be considered an inciteful activity. The Penitentiary Services' own directive treats communications be tween inmates and Members of Parliament as privileged, when they occur by letter. The policy reasons for such should be equally applicable to telephone communication. Obviously such com munications can be monitored, as can written cor respondence, to ensure that they are bona fide. But to base a decision to transfer an inmate from a medium to a maximum security institution on the fact that the inmate had a telephone conversation with his Member of Parliament, even if the inmate is saying things the prison officials do not want said, or even if the communication exaggerates in some way the actual facts, is an arbitrary exercise of administrative authority. Also, the choice of
Millhaven was arbitrary in the extreme. The warden indicated that Millhaven was chosen because it was a maximum security institution and because he understood that the inmate had a girlfriend or common-law wife in the Kingston area. In fact, the inmate has a legal wife and two children who live in Toronto and who have always lived in Toronto. The relevant prison reports indi cate that the inmate's wife and children visit the inmate often and are a very positive influence in his life. There is a medium security prison closer to Toronto than either Millhaven or Joyceville: that is Warkworth. Transfer to that institution would cer tainly have been a more suitable choice if the objective of fostering the familial relationship had been a strong consideration. Also, there is no evidence that Mr. DeMaria was negotiating in bad faith. There is no indication that he was asked to keep information concerning the agenda or pro posed negotiations within the institution. The warden may have felt that it was appropriate to do so but there is no evidence that Mr. DeMaria was told of this condition.
Counsel for the respondents argues that there has developed, in recent years, the doctrine of curial deference. That is, the courts, in general, are reluctant to second guess administrative decision- makers, especially with respect to decisions that relate to the conduct of prisons and especially with respect to decisions which need to be made on the spur of the moment. It is argued that administra tive decision-makers have "the right to be wrong" I accept that argument. But it does not go so far as to prevent judicial review of an arbitrary decision, that is, one made without a factual basis to sup port it.
I note that in this case, even if one were to accept the argument that the warden, being required to decide on the spur of the moment, was entitled to "the right to be wrong", the Regional Transfer Board's confirmation of that decision was not one made "in the heat of the moment". The Board had an opportunity to reflect on the appro priateness of punishing an inmate for communicat-
ing by telephone with his Member of Parliament. The Board had before it both the original version of the conversation with Mr. Nunziata's office and the "watered-down" version found in the offence report. There was an opportunity to make inquiries of Mr. Nunziata's office as to the nature of the communication. (In fact, Mr. Nunziata had called the warden's office to discuss the matter with him but the warden did not return the call.) There were the personal circumstances of the applicant (his family living in Toronto) and particularly his transfer to Millhaven. The Regional Transfer Board could have rescinded the transfer decision and returned the inmate to Joyceville, or they could have transferred him to Warkworth. Instead, they confirmed the transfer to Millhaven. In the circumstances, I think this decision was arbitrary and made in the absence of any evidence to sup port it. Since the initial decision made by Warden Epp will be quashed, the confirmation of that decision by the Regional Transfer Board will fall with it. Therefore, there will be no need to deal specifically with the confirmation decision in the order to be given.
It is argued that this Court has no authority to grant the third relief sought, that is, to quash the charge that an offence contrary to the Penitentiary Service Regulations occurred. To some extent, I think this issue becomes somewhat moot in the light of the decision given with respect to the transfer. If there is a lack of factual basis to support a decision to transfer the inmate, there is equally a lack of factual basis on which a charge can be supported. Nevertheless, argument before me on the question of where this Court received authority to grant such an order was so sparse that I am not prepared to formally grant that remedy.
With respect to the request for an order of mandamus, I am not convinced that either of the respondents to this application have authority to move the applicant from Millhaven. Certainly Warden Epp does not, and I have been referred to no authority which demonstrates to me that the Regional Transfer Board has that authority. Clearly, quashing the original transfer order car ries with it a requirement that DeMaria be either transferred back to Joyceville or to another medium security institution. While I am not pre-
pared to grant the order of mandamus sought, for the reasons noted above, it is clear that if the appropriate prison officials do not transfer DeMaria either back to Joyceville or to another medium security institution, they would be, in this case, in breach of the order of certiorari which is to be given.
I think it was conceded by counsel for the applicant that the request for a declaration that communications between the applicant and his Member of Parliament are privileged is not one procedurally open in the context of this motion.
I will make one last comment with respect to this case. Counsel who appear before this Court are, by operation of section 11 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, officers of the Court. As such, they have a duty to call to the Court's attention the jurisprudence which is relevant to the issue in question, that is, the juris prudence which is contrary to their position, as well as that which supports their position. I can understand that it is difficult to keep up to date with respect to the many Charter decisions which are being rendered. This area of the law is, at present, fast-developing. Nevertheless, when there is a failure to bring relevant jurisprudence to the attention of the Court, it puts the Court in a difficult position. The ends of justice would be much better served if all counsel could be a bit more diligent with respect to this aspect of their obligation to the Court.
An order shall go in accordance with these reasons. The applicant will be awarded his costs.
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