|
M was an inmate in a medium security penitentiary and applied for a voluntary transfer to minimum security. On the basis of the criteria that are usually applied to the assessment of risk, M’s classification should have been reduced to minimum. However, the warden denied the application on the basis of the existence of secret information, provided to the CSC by the RCMP and the Canadian Security Intelligence Service (CSIS), within M’s preventive security file. The CSC argued that it was justified in denying the disclosure of the information on the basis of section 27(3) of the CCRA. As well, the CSC raised the point that M had not exhausted his internal remedies, through the grievance process, and therefore had submitted a premature application for review to the Court. The issues thus centred upon the proper level of disclosure in a challenge to the denial of an application for voluntary transfer, and whether the applicant was obligated to exhaust internal remedies before seeking judicial review.
|
|
Pelletier J. upheld the general rule that internal remedies should be exhausted before judicial review is sought. However, the facts of this case constituted an exception. There existed evidence supporting M’s contention that the CSC had allowed its position regarding his security classification to be dictated to it by another agency – namely the RCMP and CSIS. A grievance that put such an issue into question could not be credibly be adjudicated by the CSC since the CSC itself was implicated. Pelletier J. found that the refusal to reclassify and transfer M was based upon an allegation that had not been shared with M and to which he did not have the opportunity to respond. The evidentiary record clearly showed that the only obstacle in the way of M’s reclassification was the undisclosed information on the applicant’s preventive security file. Although the refusal to reclassify in this application did nothing more than maintain the status quo, the disclosure obligations and constraints ought to be the same as a case of involuntary transfer for disciplinary reasons – for instance in Demaria v. Regional Classification Board, [1987] 1 F.C. 74. As a result, it was Pelletier J.’s view that the failure to advise M of the substance of the RCMP and CSIS allegations, so as to allow him to meet those objections, was a breach of M’s rights to procedural fairness. Alternatively, Pelletier J. found that section 27 of the CCRA was not complied with. Since M did not receive the information relied upon or a summary of that information, subsection 27(2) had not been complied with. The CSC cannot avoid its obligations to inmates by means of an agreement with third parties. The CSC’s obligation to comply with subsection 27(2) is qualified only by subsection 27(3) and not by any contractual arrangements that the CSC may make with other agencies. Thus the CSC was not entitled to withhold the information solely on the basis that it promised the RCMP or CSIS that it would not disclose that information without their consent. The application for judicial review was allowed.
|
TOP